People v. Sanders

• Decision Date: 12 February 1975
• Docket Number: Docket No. 19057,No. 2,2
• Citation: 228 N.W.2d 439,58 Mich.App. 512
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles E. SANDERS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 439

228 N.W.2d 439

58 Mich.App. 512

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles E. SANDERS, Defendant-Appellant.

Docket No. 19057.

Court of Appeals of Michigan, Division No. 2.

Feb. 12, 1975.

Released for Publication May 7, 1975.

Thomas G. Plunkett, Campbell, Lee, Kurzman & Leitman, Bloomfield Hills, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and R. B. BURNS and VanVALKENBURG, ^* JJ.

HOLBROOK, Presiding Judge.

On September 28, 1973, defendant Charles E. Sanders was found guilty by a jury of felonious assault, M.C.L.A. § 750.82; M.S.A. § 28.277, in Oakland County Circuit Court. On October 18, 1973, defendant was sentenced to a term of from 2 to 4 years to run consecutively after the sentence imposed on May 31, 1973, pursuant to M.C.L.A. § 768.7b; M.S.A. § 28.1030(2).

The basis for this offense arose during the final day of the first trial, Friday, May 4, 1973. The jury had come in with a verdict of guilty of felonious assult. During the polling of the jury, at the request of defendant and before the verdict was accepted, the defendant grabbed the chair that he was sitting on and threw it at the bench. The judge saw the chair coming, moved and avoided being hit.

At the time of trial in the instant case, counsel for defendant challenged the jury array based upon its racial makeup and selection process, as defendant was black and the entire jury was white. Defendant also claims that his last sentence, which was made to run consecutively after the first sentence, was improper.

I

Outside the hearing of the jury, defense counsel challenged the jury array as follows:

'My challenge goes simply to this process. I don't believe, in view of the number of blacks there are in the county, the County of Oakland, and the fact that there were no blacks at all on the panel, that this represents a cross section of the community. It seems to me that the panel itself, should have a number of blacks, in percentage as the number of blacks that would be in Oakland County itself.

'For this reason, I challenge the array of the jury.'

M.C.L.A. § 600.1304; M.S.A. § 27A.1304 provides that selection of persons to be named to serve as jurors shall be taken from current voter registration lists. The use of this method of selecting jurors has been approved by this Court. People v. Gray, 45 Mich.App. 643, 645, 207 N.W.2d 161, 163 (1973), aff'd, 393 Mich. 1, 222 N.W.2d 515 (1974), citing People v. Robinson, 41 Mich.App. 259, 263, 199 N.W.2d 878, 880 (1972). The same assertion as made herein was made in People v. Bell Williams, 50 Mich.App. 763, 767--768, 213 N.W.2d 754, 755--756 (1973). Therein this writer wrote in part:

'Purposeful discrimination may not be merely assumed or asserted. It must be proven. Unlike the defendant in Robson v. Grand Trunk W.R. Co., 5 Mich.App. 90, 145 N.W.2d 846 (1966), the defendant has not met that burden here.

'In the use of voter lists that is challenged here, the state has done nothing to affirmatively tailor the rolls to exclude blacks. The jury array is drawn by random selection from voter registration lists submitted by the several political subdivisions of Oakland County. No showing is made that court officers in any way failed or refused to make use of the lists covering the Pontiac ghetto in selecting potential jurors. Defendant's contention is simply a claim that the array from which his panel was chosen had to include a percentage of blacks equal to their percentage of Pontiac's population. That is not a tenable position.' ¹

See also People v. Tunstull, 54 Mich.App. 254, 220 N.W.2d 703 (1974). Likewise, in the present case, the defendant has not made a showing of systematic, intentional exclusion of blacks from juries in Oakland County by the means of selecting names from jury lists, which is required by the statute.

In his partial dissent in Carter v. Jury Commission of Greene County, 396 U.S. 320, 343, 90 S.Ct. 518, 530, 24 L.Ed.2d 549, 565 (1970), Mr. Justice DOUGLAS wrote:

'We have often said that no jury need represent proportionally a cross-section of the community. See Swain v. Alabama, 380 U.S. 202, 208--209, 85 S.Ct. 824, 829--830, 13 L.ed.2d 759(766) (1965); Cassell v. Texas, 339 U.S. 282, 286--287, 70 S.Ct. 629, 631--632, 94 L.Ed. 839 (846--847) (1950). Jury selection is largely by chance; and no matter what the race of the defendant, he bears the risk that no racial component, presumably favorable to him, will appear on the jury that tries him. The law only requires that the panel not be purposely unrepresentative. See Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 646, 17 L.Ed.2d 599(603) (1967). Those finally chosen may have no minority representation as a result of the operation of chance, challenges for cause, and peremptory challenges.' (Fn. omitted.)

The mere fact that no black persons were on the jury which passed upon defendant's case does not rise to the level of showing discrimination.

II

Defendant asserts that his sentence should not have read to run consecutively.

M.C.L.A. § 768.7b; M.S.A. § 28.1030(2) provides:

'When a person, who has been charged with a felony and Pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction or acceptance of a guilty plea of the subsequent offense, the sentences imposed for conviction of the prior charged offense and any subsequent offense, may run consecutively.' 1927 P.A. 175, c. VIII, § 7b, added by 1971 P.A. 180, § 1, eff. March 30, 1972. (Emphasis supplied.)

Defendant here asserts that his case had been disposed of as a verdict had been rendered and relies upon People v. Bonner, 49 Mich.App. 153, 158, 211 N.W.2d 542, 545 (1973). In pertinent part Judge Gillis therein wrote:

'Defendant concedes that the Legislature may differentiate, as it has by the above statute, 2 classes of persons; those who have committed subsequent felonies while on bond and those who have not, and provide for different punishments between those classes. We think that is a wise concession. The purpose of the statute is to deter persons accused of one crime from committing others by removing the security fo concurrent sentences should conviction result on any or all of the crimes so committed. Such a purpose is laudable, rational and the statute reasonably tends to achieve that purpose. See Naudzius v. Lahr, 253 Mich. 216, 234 N.W. 581 (1931).

'Rather, defendant's concern is that all persons subject to consecutive sentencing are not treated alike. The statute is permissive; a sentence imposed on the bonded offender 'may run consecutively'. The essence of d...