People v. Yarbrough

• Docket Number: Docket No. 161513,Calendar No. 1
• Decision Date: 14 July 2023
• Citation: 999 N.W.2d 372,511 Mich. 252
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert YARBROUGH, Jr., Defendant-Appellant.
• Court: Michigan Supreme Court

999 N.W.2d 372

511 Mich. 252

The PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Robert YARBROUGH, Jr., Defendant-Appellant.

Docket No. 161513

Calendar No. 1

Supreme Court of Michigan.

Argued January 11, 2023

Decided July 14, 2023

Dalton A. Roberson, J.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jon P. Wojtala, Chief of Research, Training and Appeals, and Deborah K. Blair, Assistant Prosecuting Attorney, for the people.

State Appellate Defender(by Steven Helton and Michael L. Mittlestat) for defendant.

BEFORE THE ENTIRE BENCH

OPINION

Bernstein, J.

₂₅₆This case grants us the opportunity to revisit a question left unresolved in People v Kabongo, 507 Mich. 78, 968 N.W.2d 264(2021)—whether the erroneous denial or deprivation of a criminal defendant’s peremptory strike of a prospective juror constitutes a structural error warranting automatic reversal, or whether it is instead subject to harmless-error review.This Court, split by equal division in Kabongo, was unable to reach a majority conclusion on that question.Today, we conclude that such an error requires automatic reversal.

I.FACTUAL AND PROCEDURAL HISTORY

Defendant was charged with kidnapping, MCL 750.349; assault with intent to do great bodily harm, MCL 750.84; felonious assault, MCL 750.82; and three counts of criminal sexual conduct in the first degree, MCL 750.520b. Voir dire in defendant’s jury trial began on November 26, 2018, in the Wayne Circuit Court.The court explained the process to the jury panel, or venire, and initiated questioning of the prospective jurors, questioning fifteen and excusing one for cause before allowing the prosecution to ask questions.Following the prosecution’s questioning, defense counsel was permitted to question the prospective jurors.After an off-the-record sidebar conversation, the prosecution exercised its first peremptory challenges.Once again, the court questioned the prospective jurors, followed by the prosecution and then defense counsel.After this second round of questioning, defense counsel issued peremptory challenges of its own.This cycle repeated, with additional prospective jurors being dismissed ₂₅₇both for cause and pursuant to peremptory challenges.Eventually, a full jury was selected.Outside the presence of the jury, defense counsel informed the court that she wished to make a statement on the record.The following exchange between defense counsel and the court, addressing restrictions the court had placed on the peremptory-challenge process, ensued:

[Defense counsel]: Judge, I just want the record to reflect, which the Court gave us permission to address in a separate matter.The Court brought us to sidebar and indicated as we were conducting voir dire in this case that neither party, as a part of the Court’s rule, would be allowed to exercise peremptory challenges to excuse any Members of the Jury other than new members who were replaced.

As a result of that, and I made a contemporaneous objection, but obviously we were not going to deal with that in front of the jury.

I would argue you, your Honor, that the failure to allow ongoing peremptory challenges is governed by both court rule and statute[,] specifically MCL 768.13 and court ruleMCR 6.412.

The Court: What’s your first rule?

[Defense Counsel]:[MCL] 768.13 in which there’s a discussion, your Honor, about peremptories and they’re [sic] ability to be ongoing objections.

MCR. 2.511(G) provides [in] pertinent part:

After jurors have been seated in the jurors’ box and a challenge for cause is sustained or a peremptory challenge or challenges are exercised, another juror or other jurors may be selected and examined.Such jurors are subject to challenge as are previously seated jurors.

The most recent case, your Honor, concerning this matter is an unpublished opinion which is People v London Deshann Harris.I can provide copies of these matters ₂₅₈as well as the court rule and statute, which is Court of AppealsNo. 325356 in which the Court determined that it was, in fact, reversible error to fail—that it was error, not of a constitutional magnitude.

There was an earlier Supreme Court case that had said that it was subject to harmless error analysis which is People v Schmidt.

But in that case, they opine that the practice and procedure of not allowing ongoing peremptory challenges with respect to initial venire or replaced jurors deprive the defendant of his opportunity to select and participate in the voir dire process.Obviously, as the Court is aware while the questions are simply being directed to new people that are on the panel, the process is ongoing and people are reacting—

The Court: Well, you’ve made your argument, counsel.

[Defense Counsel]: —defendants are reacting.And it’s very important that the decision while processing peremptories or whatever is an ongoing process, not precluded by the actual acts or questions.More importantly defendant—

The Court: What are you asking for?What are you asking for, counsel?

[Defense Counsel]: At this time, your Honor, I think the remedy would be a new venire based upon the fact that I would have made challenges.

The Court: You indicated you were satisfied with the jury.

[Defense Counsel]: I was satisfied pursuant to compliance with the Court’s direction, not satisfied as to the—

The Court: Okay.All right.Take it up with the Court of Appeals.

Defendant went on to be tried by the empaneled jury and was convicted as charged.Defendant was sentenced₂₅₉ to serve 7 to 15 years in prison for the felonious-assault conviction and 40 to 60 years for each of the remaining convictions.

Defendant challenged the trial court’s restriction on peremptory challenges in the Court of Appeals.The Court of Appeals affirmed in an unpublished per curiam opinion, acknowledging that the trial court abused its discretion by restricting peremptory challenges to newly seated prospective jurors who replaced a dismissed juror but holding that the practice did not warrant automatic reversal.Instead, the Court of Appeals held that it was subject to review for harmless error and that defendant had not established the prejudice necessary for relief.People v Yarbrough, unpublished per curiam opinion of the Court of Appeals, issued April 80, 2020(Docket No. 347400), 2020 WL 2096051.We granted leave on this issue.People v Yarbrough,508 Mich. 985, 966 N.W.2d 345(2021).

II.ANALYSIS

A.PEREMPTORY CHALLENGES

The Michigan Legislature has elected to protect a criminal defendant’s constitutional right to an impartial jury by mandating that a defendant be permitted to peremptorily challenge prospective jurors, with the number of challenges dependent upon the maximum punishment for the offense.SeeMCL 768.12 and MCL 768.13.Peremptory challenges are further governed by MCR 2.511, which provides in relevant part:

(E) Peremptory Challenges.

* * *

(3) Peremptory challenges must be exercised in the following manner:

₂₆₀(a) First the plaintiff and then the defendant may exercise one or more peremptory challenges until each party successively waives further peremptory challenges or all the challenges have been exercised, at which point jury selection is complete.

(b) A "pass" is not counted as a challenge but is a waiver of further challenge to the panel as constituted at that time.

(c) If a party has exhausted all peremptory challenges and another party has remaining challenges, that party may continue to exercise their remaining peremptory challenges until such challenges are exhausted.

* * *

(G) Replacement of Challenged Jurors.After the jurors have been seated in the jurors’ box and a challenge for cause is sustained or a peremptory challenge or challenges exercised, another juror or other jurors must be selected and examined.Such jurors are subject to challenge as are previously seated jurors.

[1, 2] As the Court of Appeals concluded below, it is readily apparent that the trial court’s practice of restricting peremp- tory challenges to newly seated prospective jurors ran afoul of the statute and court rule.¹A trial court’s conduct of voir dire is reviewed for an abuse of ₂₆₁discretion.SeePeople v Tyburski,445 Mich. 606, 619, 518 N.W.2d 441(1994).The legal error here necessarily means that the trial court abused its discretion by adopting and enforcing this practice.People v Duncan,494 Mich. 713, 723, 835 N.W.2d 399(2013).The parties do not dispute this.

B.STANDARD OF REVIEW

[3] Because there is no dispute that the trial court erred, we must ask what standard of review applies to determine whether defendant is entitled to relief.Ordinarily, in the case of preserved, nonconstitutional error, reversal is only warranted if "after an examination of the entire cause, it shall affirmatively appear that it is more probable than not that the error was outcome determinative."People v Lukity,460 Mich. 484, 495-496, 596 N.W.2d 607(1999)(quotation marks and citation omitted).The Lukity rule arose out of this Court’s grappling with MCL 769.26, which provides:

No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.

Defendant contends that the trial court’s error in precluding peremptory challenges defies harmless-error analysis under the standard of Lukity.

₂₆₂C. THE APPROPRIATE REMEDY FOR ERRONEOUS DENIALSOF PEREMPTORY CHALLENGES

Peremptory challenges have a long history in Michigan, as does the debate concerning which standard of review applies to an assertion that such challenges were erroneously denied.In People v Gratz,35 Mich App 42, 192 N.W.2d 304(1971), ...