People v. Schmitz

• Decision Date: 11 September 1998
• Docket Number: Docket No. 200485
• Citation: 231 Mich.App. 521,586 N.W.2d 766
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jonathan Tyler SCHMITZ, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 766

586 N.W.2d 766

231 Mich.App. 521

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jonathan Tyler SCHMITZ, Defendant-Appellant.

Docket No. 200485.

Court of Appeals of Michigan.

Submitted July 1, 1998, at Detroit.

Decided Sept. 11, 1998, at 9:05 a.m.

Released for Publication Dec. 10, 1998.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., David G. Gorcyca, Pros. Atty., Robert C. Williams, Acting Chief, Appellate Div., and Anica Lettica, Asst. Pros. Atty., for People.

State Appellate Defender by Peter Jon Van Hoek, for defendant on appeal.

Before MARKEY, P.J., and SAWYER and NEFF, JJ.

PER CURIAM.

Defendant appeals as of right his convictions by a jury of second-degree murder, M.C.L. § 750.317; MSA 28.549, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; MSA 28.424(2). Defendant was sentenced to consecutive sentences of two years for the felony-firearm conviction and twenty-five to fifty years for the second-degree murder conviction. We reluctantly reverse and remand for a new trial.

I

This case arises from defendant's killing of Scott Amedure with a shotgun on March 9, 1995. Three days before the shooting, defendant appeared with Amedure and Donna Riley in Chicago for a taping of an episode of the Jenny Jones talk show, during which defendant was surprised by Amedure's revelation that he had a secret crush on him. After the taping, defendant told many friends and acquaintances that he was quite embarrassed and humiliated by the experience and began a drinking binge.

On the morning of the shooting, defendant found a sexually suggestive note from Amedure on his front door. Defendant then drove to a local bank, withdrew money from his savings account, and purchased a 12-gauge pump-action shotgun and some ammunition. Defendant then drove to Amedure's trailer, where he confronted Amedure about the note. When Amedure just smiled at him, defendant walked out of the trailer, stating that he had to shut off his car. Instead, defendant retrieved the shotgun and returned to the trailer. Standing at the front door, defendant fired two shots into Amedure's chest, leaving him with no chance for survival. Defendant left the scene and telephoned 911 to confess to the shooting.

The defense theory was primarily that of diminished capacity. The defense argued that defendant, who already had a badly damaged psyche, was ambushed by the Jenny Jones show, betrayed by Amedure and Riley, and unrelentingly stalked by Amedure. The defense further argued that defendant did not have sufficient mental capacity to form any intent, general or specific, because he was suffering from recurrent bipolar or unipolar depressive disorder and from the psychological consequences of untreated Graves' disease.

Defendant was charged with first-degree murder and felony-firearm. However, the jury returned a verdict finding defendant guilty of the lesser offense of second-degree murder.

II

Defendant argues that the trial court erred in refusing to allow him to exercise a peremptory challenge against a venireman he had previously "passed." On the basis of the current state of the law that we are constrained to follow, we agree, and further hold that under current controlling case law this error cannot be deemed harmless and thus requires reversal of defendant's convictions.

A

Jury selection in this case took more than three days to complete and was filled with probing questions regarding highly personal matters such as mental illness, homosexuality, past embarrassing moments, and betrayal by others. The array completed individual questionnaires before the start of voir dire, and many potential jurors were dismissed for cause on the basis of their answers to the questionnaires.

Pursuant to MCR 6.412(E)(1), each side was allotted twelve peremptory challenges. On the final day of jury selection, the defense sought to peremptorily challenge a venireman that had been on the panel when the defense passed for peremptory challenges on the second day of jury selection. The prosecutor objected and stated that defendant should be deemed to have accepted the venireman and that defendant's request to later peremptorily challenge the venireman should be denied. The trial court denied defendant's request to exercise a peremptory challenge to the venireman and noted that the court's routine interpretation of the court rule was that by passing the panel defendant could not "open up the preemptory [sic] challenges again." The court continued:

Both having waived any further preemptory [sic] challenges by their indications to the Court, the Court would indicate that we have a Jury now that will be the Jury to sit on this case.

Defense counsel did not challenge the court's statement that defendant had waived his remaining peremptory challenges, and turned his attention to how to minimize the potential prejudice of the jury resulting from the unsuccessful attempt to challenge one of the venireman. With the court's permission, defense counsel was permitted to withdraw the challenge in the presence of the veniremen.

B

On appeal, defendant argues that reversal of his convictions is required because the trial court denied him the opportunity to exercise a peremptory challenge in accordance with the court rules. Before reaching the merits of this argument, we must first address the prosecution's assertion that this issue has not been properly preserved for our consideration.

Where a party fails to object to the method of jury selection at trial, he has waived the issue on appeal. See People v. Lawless, 136 Mich.App. 628, 636, 357 N.W.2d 724 (1984); People v. Goode, 78 Mich.App. 781, 789, 261 N.W.2d 47 (1977). Moreover, a party's claim that the jury selection process was defective generally is not preserved if the party fails to use all available peremptory challenges. People v. Taylor, 195 Mich.App. 57, 59-60, 489 N.W.2d 99 (1992). A party may also preserve a challenge to the jury selection process by refusing to express satisfaction with the jury. Id.

In People v. Russell, 182 Mich.App. 314, 451 N.W.2d 625 (1990), rev'd 434 Mich. 922, 456 N.W.2d 83 (1990), this Court reversed the defendant's conviction of first-degree criminal sexual conduct because of a defective jury selection process. ¹ This Court held, over Judge Sawyer's dissent, that the trial court's procedure was a clear violation of the court rule, and that the defendant's failure to exercise all his peremptory challenges did not preclude reversal. 182 Mich.App at 319-320, 451 N.W.2d 625.

Dissenting, Judge Sawyer agreed that the trial court's methods at the beginning of jury selection were improper, and that the defendant effectively objected to the erroneous procedure. However, he concluded that reversal should not be required for two reasons. First, the trial court changed the procedure early enough in the process to correct the error, and second, the defendant failed to use four of the twenty peremptory challenges he was allotted and expressed his satisfaction with the jury. Id. at 324-326, 451 N.W.2d 625 (Sawyer, J. dissenting). Our Supreme Court peremptorily reversed the judgment of this Court and reinstated the judgments of the circuit court for the reasons stated in Judge Sawyer's dissent. 434 Mich. 922, 456 N.W.2d 83.

Turning to the facts of this case, we note that defendant had exercised only five of his twelve peremptory challenges at the completion of jury selection. We find, however, that Russell does not control the outcome here for two reasons. First, the trial court in the instant case did not correct its error so as to afford defendant an opportunity to cure the error. To the contrary, jury selection ended with the trial court's denial of defendant's attempt to exercise a peremptory challenge to the venireman at issue. Furthermore, unlike defense counsel in Russell counsel here did not express his satisfaction with the jury. ²

No waiver resulted from the fact that defendant did not exercise his remaining peremptory challenges because the trial court refused to allow defendant to challenge the one venireman he wished to excuse. The purpose of the appellate preservation of error requirements is to induce litigants to do what they can in the trial court to prevent error and eliminate its prejudice, or to create a record of the error and its prejudice. Taylor, supra at 60, 489 N.W.2d 99. Under the circumstances presented here, requiring defendant to exercise a peremptory challenge for veniremen other than the one he wished to excuse would not further the goals of issue preservation. Accordingly, we conclude that defendant has sufficiently preserved his challenge to the trial court's method of permitting the exercise of peremptory challenges.

C

We now turn to the merits of defendant's claim. Without question, a criminal defendant has a constitutional right to be tried by a fair and impartial jury. US Const, Am VI; Const 1963, art 1, § 20; People v. Daoust, 228 Mich.App. 1, 577 N.W.2d 179 (1998). There is, however, no constitutional right to exercise peremptory challenges. Id.; People v. Juarez, 158 Mich.App. 66, 71, 404 N.W.2d 222 (1987). Nonetheless, peremptory challenges have long been an important tool for ensuring a fair trial, both in fact and in appearance. See Georgia v. McCollum, 505 U.S. 42, 57, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). We review de novo alleged violations of the jury selection process. Daoust, supra.

Michigan common law has long provided that peremptory challenges may be exercised at any time before the swearing of the jury. People v. Rich, 237 Mich. 481, 487, 212 N.W. 105 (1927); In re Bennett Estate, 51 Mich. 71, 72, 16 N.W. 236 (1883); Jhons v. People, 25 Mich. 499 (1872). When jury selection procedures became a matter of court rule, this Court retained this view. See Goode, supra at 783-786, 261 N.W.2d 47. Presently, the court rule governing the exercise of peremptory challenges is MCR 2.511,...