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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v

UNPUBLISHED March 4, 1997

No. 191384 Jackson Circuit Court LC No. 95-072916-FH

EARL FLYNN TRUSS, Defendant-Appellant.

Before: O'Connell, P.J., and Markman and M. J. Talbot,* JJ. PER CURIAM. Following a jury trial, defendant was convicted for possession of a weapon by a prisoner, MCL 800.283(4); MSA 28.1623. Defendant's sentence of three to five years on that conviction was enhanced to five to fifteen years on a finding by the trial court that defendant was a habitual offender, fourth offense, MCL 769.12; MSA 28.1084. Defendant appeals as of right from his conviction and sentence. We affirm in part and reverse in part. First, defendant argues that he was denied his right to a trial by a jury which adequately represented a cross-section of the community. We disagree. We review de novo issues regarding the systematic exclusion of minorities from jury venires. People v Hubbard (After Remand), 217 Mich App 459, 465; 552 NW2d 593 (1996). A criminal defendant is entitled to trial by a jury from a fair cross section of the community. Hubbard, supra, at 472; People v Guy, 121 Mich App 592, 599; 329 NW2d 435 (1982). This does not entitle a defendant to a jury venire that mirrors the community and each of its distinctive population groups. Hubbard, supra, at 472. A prima facie case of a violation of the right to a jury drawn from a fair cross section of the community requires a showing that (1) the allegedly excluded group is a "distinctive" group, (2) the group was unfairly and unreasonably underrepresented in jury venires, and (3) the underrepresentation reflects a systematic exclusion of the group from the jury selection process. Id. (quoting Duren v Missouri, 439 US 357, 364; 99 S Ct 664; 58 L Ed 2d 579 (1979)).

* Circuit judge, sitting on the Court of Appeals by assignment. -1

African-Americans are considered a constitutionally cognizable "distinctive" group; therefore, the first requirement is met. Hubbard, supra, at 473. However, defendant has failed to provide any evidence that African-Americans are underrepresented in Jackson County jury venires nor that there was a systematic exclusion of members of this group from jury service. The mere fact that no person from some group is on a specific jury panel does not establish systematic exclusion. People v Sanders, 58 Mich App 512, 514; 228 NW2d 439 (1975). Therefore, we conclude that defendant has failed to make out a prima facie case of a violation of the right to a jury selected from a fair cross section of the community. For the same reasons, we reject defendant's claim that he was denied equal protection due to the alleged "underrepresentation." Next, defendant argues that the trial court erred in applying the amended habitual offender statute to his criminal offense because that offense occurred prior to the effective date of the statute. We agree. The proper interpretation of a statute is a question of law, and we review questions of law de novo. People v Connor, 209 Mich App 419, 423; 531 NW2d 734 (1995). By 1994 PA 110, the Legislature completely revised the procedures for sentence enhancement on the basis of a defendant's status as a habitual offender. MCL 769.13; MSA 28.1085. This amendment abolished the requirement of a separate information for a habitual offender charge and abolished the statutory right to a jury trial on such a charge. People v Zinn, 217 Mich App 340, 344-347; 551 NW2d 704 (1996). 1994 PA 110, specifically states that the amendment took "effect May 1, 1994, and [applies] to prosecutions for criminal offenses committed on or after that date." See MCL 769.13; MSA 28.1085. In the present case, the underlying criminal offense took place on April 17, 1994. Yet, the trial court applied the amended habitual offender statute over defendant's objection. Clearly, the trial court erred in utilizing the amended procedures, thereby denying defendant the right to jury trial on the habitual offender charge. Therefore, we vacate the trial court's finding on the habitual offender charge and the enhanced sentence pursuant to that finding. Defendant also argues that the trial court erred in admitting improper rebuttal evidence over defense counsel's objection. We disagree. The decision to admit evidence is within the sound discretion of the trial court and we will not disturb that decision absent an abuse of that discretion. People v Lugo, 214 Mich App 699, 709; 542 NW2d 921 (1995). The determination whether rebuttal evidence was properly admitted is not whether it could have been offered during the case-in chief; rather, it is whether it is responsive to evidence introduced or a theory developed by the defendant during the presentation of his case. People v Figgures, 451 Mich 390, 399; 547 NW2d 673 (1996). So long as rebuttal evidence satisfies this standard, it is proper. Id. Here, defense counsel raised the issue of what witness Wesley Rivers saw in order to support his assertion that the prison guards had apprehended the wrong man in defendant. The prosecution attempted to rebut this theory by presenting the testimony of the investigating officer regarding what Rivers told the officer during the investigation. This testimony was responsive to the defense theory of improper identification. Therefore, we conclude that the trial court did not abuse its discretion in allowing the evidence. Moreover, the testimony merely reiterated Rivers' earlier testimony. Hence, -2

there was no prejudicial effect to a substantial right which would warrant reversal. MRE 103(a); People v Travis, 443 Mich 668, 686; 505 NW2d 563 (1993). Defendant next argues that his trial counsel's reference to the fact that defendant had refused to speak to the investigating officers violated his constitutional right to silence. We disagree. The right to silence derives from the constitutional prohibition against compelling a defendant to be a witness against himself in a criminal trial found in US Const, Am V and Const 1963, art 1,

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