People v. Williams, Docket No. 106712

• Decision Date: 24 February 1989
• Docket Number: Docket No. 106712
• Citation: 435 N.W.2d 469,174 Mich.App. 132
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Maurice Lamar WILLIAMS, Defendant-Appellant. 174 Mich.App. 132, 435 N.W.2d 469
• Court: Court of Appeal of Michigan — District of US

Page 469

435 N.W.2d 469

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Maurice Lamar WILLIAMS, Defendant-Appellant.

Docket No. 106712.

174 Mich.App. 132, 435 N.W.2d 469

Court of Appeals of Michigan.

Submitted Nov. 10, 1988.

Decided Jan. 3, 1989.

Released for Publication Feb. 24, 1989.

[174 MICHAPP 133] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Thomas S. Richards, Asst. Pros. Atty., for the people.

Law Offices of Louis Demas, P.C. by Randy E. Davidson, Southfield, for defendant-appellant on appeal.

Before MacKENZIE, P.J., and WEAVER and QUINNELL, ^* JJ.

PER CURIAM.

Following a 1984 jury trial, defendant was convicted of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, breaking and entering an occupied dwelling with intent to commit larceny, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, assault with intent to commit criminal sexual conduct, M.C.L. Sec. 750.87; M.S.A. Sec. 28.282, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant, who is black, appealed and claimed purposeful discrimination in the selection [174 MICHAPP 134] of an all-white jury. This Court affirmed, unpublished opinion per curiam, decided September 22, 1986 (Docket No. 84817). Our Supreme Court subsequently vacated our judgment and remanded the case to this Court for reconsideration in light of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), 428 Mich. 868, 400 N.W.2d 602 (1987). We then remanded the case back to the trial court with the following instructions:

"If the trial court decides that the facts establish prima facie purposeful discrimination as defined in Batson, and the prosecutor does not come forward with a neutral explanation for his action, defendant's conviction must be set aside and defendant granted a new trial. If not, defendant's conviction is affirmed. Remanded." Unpublished opinion per curiam, decided May 22, 1987 (Docket No. 98787).

The trial court, on remand, held an evidentiary hearing to determine whether the facts established a prima facie case of purposeful discrimination by the prosecutor. At that hearing, defense counsel established that four blacks were called during jury selection and that, during voir dire, one was excused for cause by the court, two were peremptorily excused by the prosecutor, and one, Mrs. Mabel Davis, was seated and sworn as a juror.

During voir dire, the government could exercise fifteen peremptory challenges, M.C.L. Sec. 768.13; M.S.A. Sec. 28.1036, but exercised only four, using two to remove black jurors and two to remove non-black jurors. No clear reason for these challenges appears on the trial court record. The prosecutor did not use any of his remaining eleven peremptory challenges to remove Mrs. Davis. Halfway through the trial, Mrs. Davis was excused by the court for cause. Following Mrs. Davis's departure, no blacks remained on the jury.

[174 MICHAPP 135] At the evidentiary hearing, the trial court concluded that the above facts failed to establish a prima facie case of purposeful discrimination by the prosecution, stating, in part:

"Now, there has just been no showing whatsoever of any pattern by the prosecutor any discrimination, purposeful, or any kind of discrimination to eliminate blacks from the jury.

"The prosecutor had fifteen preemptory [sic] challenges, this being a capital offense, he only exercised four of the challenges, and allowed one black to remain on the jury, and this Court finds that the Defendant has not met his burden of showing the discrimination, any pattern by the prosecutor as required by the Batson case, so I'm denying the motion."

The parties have cited a number of cases from other jurisdictions dealing specifically with whether the defendant established a prima facie case of discrimination under the Batson test. The courts in three of these cases found that the defendant had established a prima facie case of discrimination. In State v. Blackmon, 744 S.W.2d 482 (Mo.App.1988), the prosecutor used two peremptory challenges to remove two blacks from the venire, leaving no blacks on the panel. In State v. Walton, 227 Neb. 559, 418 N.W.2d 589 (1988), the prosecutor exercised a total of six peremptory challenges. Three of the challenges were exercised against blacks, leaving no blacks on the panel. In State v. Tolliver, 750 S.W.2d 624 (Mo.App.1988), the prosecutor exercised all six available peremptory challenges to strike four black and two white veniremen, leaving one black juror. Contrary to this Court's remand instructions in the instant case, the Tolliver court required the prosecutor's explanation for his peremptory challenges [174 MICHAPP 136] to be considered before making a determination as to whether a prima facie case existed and found those explanations insufficiently neutral.

In the remaining four cases, the courts found that the defendants failed to show a prima facie case of discrimination. In Allen v. State, 726 S.W.2d 636 (Tex.App.1987), no blacks were left on the jury when the prosecutor exercised three peremptory challenges to remove three prospective black jurors. Two blacks were left on the jury in United States v. Dennis, 804 F.2d 1208 (CA 11, 1986), cert. den. 481 U.S. 1037, 107 S.Ct. 1973, 95 L.Ed.2d 814 (1987), when the prosecutor used three of the four peremptory challenges he exercised to remove three blacks on the venire. Two blacks were challenged and two remained on the panel in United States v. Montgomery, 819 F.2d 847 (CA 8, 1987), where the prosecutor exercised a total of six challenges. Finally, in United States v. Porter, 831 F.2d 760 (CA 8, 1987), the government challenged one black and left one on the jury.

Numerically, these cases provide very little guidance. The only meaningful observation that can be made is that courts faced with a prosecutor who uses his peremptory challenges to obtain an all-white jury tend to infer discriminatory intent (Allen, supra, is the only exception), while those faced with prosecutors who allow some blacks to remain do not. This observation is supported in Montgomery, supra, p. 851:

"The fact that the government accepted a jury which included two blacks, when it could have used its remaining peremptory challenges to strike these potential jurors, shows that the government did not attempt to exclude all blacks, or as many blacks as it could, from the jury."

See also Dennis, supra, p. 1211. But see Tolliver, supra, p. 629.

[174 MICHAPP 137] In the present case, the prosecution exercised peremptory challenges to remove two prospective black jurors, but it allowed one to remain on the panel even though it had eleven challenges to use. That the prosecutor did not try to remove...