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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v MARLON BELL, Defendant-Appellee. _______________________________ BEFORE THE ENTIRE BENCH CORRIGAN, J. In failed this to case, we the consider

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

JULY 21, 2005

No. 125375

whether

the

trial of

court v

follow

three-step

process

Batson

Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986), when it prohibited defendant from exercising his right to two peremptory challenges and, if so, whether that error is structural Batson, and, thus, requires automatic Court reversal. held that In a

the

United

States

Supreme

peremptory challenge to strike a juror may not be exercised on the basis of race. Id. at 89, 96-98. The Court set forth a three-step process for determining whether a challenger has improperly exercised peremptory challenges. First, the

opponent of the challenge must make a prima facie showing of discrimination based on race. Id. at 94-97. Next, once

the prima facie showing is made, the burden then shifts to the challenging party to come forward with a neutral

explanation for the challenge. trial court has must decide

Id. at 97. the

Finally, the of Id. the at

whether

opponent

challenge 100.

proven

purposeful

discrimination.

In this case, a prima facie showing was made that two of defendant's peremptory challenges were based on race. The trial court to initially erred in failing reasons to for allow the

defendant challenges. by

provide

race-neutral

The trial court subsequently cured this error defendant to provide reasons for the

allowing

challenges.

Defendant's reasons were race-conscious rather

than race-neutral. Accordingly, the trial court disallowed the challenges. Because the trial court's initial error

was subsequently cured and because defendant's reasons were race-conscious, we conclude that the trial court did not fail to follow the three-step Batson procedure and did not err in disallowing the challenges in question. conclude that the trial judge's initial error We further does not

require automatic reversal. of the Court of Appeals.

We thus reverse the judgment

2


I. UNDERLYING FACTS AND PROCEDURAL HISTORY On July 29, 1999, defendant robbed and shot Chanel Roberts and Amanda Hodges, killing both victims. Following

a jury trial, defendant was convicted of two counts of first-degree felony murder, MCL 750.316; two counts of

armed robbery, MCL 750.529; and one count of conspiracy to commit armed robbery, MCL 750.529 and MCL 750.157a.

Defendant was sentenced to concurrent terms of mandatory life felony armed imprisonment murder robbery without parole and life to for the first-degree for the

convictions and

imprisonment commit armed

conspiracy

robbery

convictions. Defendant is African-American and the two victims were Caucasian. During jury selection, defense counsel attempted to exercise number voir a peremptory who that is challenge Caucasian. of his to strike Juror friends potential ten were stated high-

juror during

ten, dire

three

ranking police officers, but that he "wouldn't think" that this fact would affect his ability to be fair and

impartial. juror

When defense counsel attempted to excuse this the that trial court had disallowed exercised the the

peremptorily, concluding

challenge,

counsel

challenge on the basis of race.

The trial court initially

refused to allow defense counsel to make a record, but

3


reconsidered

after

defense

counsel

expressed Defense

dissatisfaction with the trial court's refusal.

counsel then furnished a race-conscious, rather than raceneutral, reason for the challenge and the trial court

continued to disallow the challenge. Jury selection continued. After several more defense peremptory challenges, the prosecutor objected when defense counsel attempted to excuse juror number five. The

prosecutor claimed that defense counsel was attempting to strike juror five on the basis of race, contrary to Batson. The trial court excused the jury in order to make a record regarding the challenge. The prosecutor noted that the

current challenge was defense counsel's third consecutive strike on a Caucasian male and that defense counsel was attempting Defense to exclude replied Caucasian that the males from the jury.

counsel

prosecution's

argument

would have some merit if no other Caucasian males remained on the jury. Defense counsel also noted that the majority Defense counsel The trial

of the remaining jurors was Caucasian.

offered no other explanation for his challenge. court found defense counsel's explanation

race-conscious

and disallowed the challenge.

Consequently, both jurors

five and ten sat on the jury that convicted defendant.

4


On appeal, defendant raised several claims of error, including the claim that the trial court failed to follow the three-step procedure mandated in Batson in disallowing his peremptory challenges of jurors five and ten. The

Court of Appeals, in a split decision, agreed that the trial court failed to follow the Batson procedure, but, nevertheless, upheld defendant's convictions.1 Judges Zahra

and Wilder concluded that the trial court's Batson error was not of constitutional dimension and was subject to

harmless error analysis, while Judge Fitzgerald would have held that the error was structural and required automatic reversal. Defendant sought reconsideration. The Court of Appeals granted defendant's motion and vacated its prior opinion.2 On reconsideration, the Court held that a denial of the statutory right to a peremptory challenge is error per se.3 Judges Zahra and Wilder concurred, stating that they were "duty-bound" to follow the holdings in People v Miller, 411

Unpublished opinion per curiam, issued October 2, 2003 (Docket No. 233234). Unpublished order of the Court of Appeals, entered October 30, 2003 (Docket No. 233234). (On Reconsideration), 259 Mich App 583; 675 NW2d 894 (2003).
3 2

1

5


Mich 321; 307 NW2d 335 (1981), and People v Schmitz, 231 Mich App 521; 586 NW2d 766 (1998). The prosecutor applied for leave to appeal, contending that the alleged denial of defendant's statutory right to remove prospective jurors peremptorily was not error

requiring automatic reversal. We granted the prosecution's application for leave to appeal.4 The prosecution contends that the trial court did

not err in failing to follow the procedures set forth in Batson. the Alternatively, the prosecution argues that even if court erred in failing to follow the Batson

trial

procedures, the error was harmless. Defendant argues that the trial court denied him his right to exercise two peremptory challenges by arbitrarily disallowing the challenges without following the mandated Batson procedures. Defendant further argues that the

denial of this right requires automatic reversal. II. STANDARD OF REVIEW This case requires us to determine whether the trial court failed to follow the procedures set forth in Batson in disallowing two of defendant's peremptory challenges. We review de novo issues regarding a trial court's proper

4

470 Mich 870 (2004).

6


application of the law.

People v Goldston, 470 Mich 523, We review for clear error a on the ultimate question of

528; 682 NW2d 479 (2004). trial court's decision

discriminatory intent under Batson.

Hernandez v New York,

500 US 352, 364-365; 111 S Ct 1859; 114 L Ed 2d 395 (1991); United States v Hill, 146 F3d 337, 341 (CA 6, 1998). III. ANALYSIS A. Batson Rule In Batson, the United States Supreme Court made it clear that a peremptory challenge to strike a juror may not be exercised on the basis of race. Batson, supra at 89, 9698. The prosecution in Batson attempted to exclude AfricanAmerican jurors solely on the basis of their race. Id. at 82-83. violated The Court determined that the prosecution's actions the Equal Protection Clause. It set forth a

three-step process for determining an improper exercise of peremptory challenges. First, there must be a prima facie Id. at 94-97. To

showing of discrimination based on race.

establish a prima facie case of discrimination based on race, the opponent of the challenge must show that: (1) the defendant is a member of a cognizable racial group; (2) peremptory challenges are being exercised to exclude

members of a certain racial group from the jury pool; and (3) the circumstances raise an inference that the exclusion

7


was based on race. trial courts to

Id. at 96. all

The Batson Court directed relevant circumstances in

consider

deciding whether a prima facie showing has been made.

Id.

Once the opponent of the challenge makes a prima facie showing, the burden shifts to the challenging party to come forward with a neutral explanation for the challenge. at 97. Id.

The neutral explanation must be related to the

particular case being tried and must provide more than a general showing. assertion in order to rebut the prima facie

Id. at 97-98.

If the challenging party fails to

come forward with a neutral explanation, the challenge will be denied. Id. at 100. the trial court must decide whether the

Finally,

nonchallenging party has carried the burden of establishing purposeful discrimination. Supreme Court has Id. at 98. that the Since Batson, the establishment of

commented

purposeful discrimination "comes down to whether the trial court finds the . . . race-neutral explanations to be

credible."

Miller-El v Cockrell, 537 US 322, 339; 123 S The Court further stated,

Ct 1029; 154 L Ed 2d 931 (2003).

"Credibility can be measured by, among other factors, the . . . [challenger's] demeanor; by how reasonable, or how improbable, proffered the explanations has some are; and in by whether the trial

rationale

basis

accepted

8


strategy."

Id. at 339.

If the trial court finds that the

reasons proffered were a pretext, the peremptory challenge will be denied. Batson, supra at 100.

B. Application of Batson to the Facts in this Case In Michigan, the right to exercise a peremptory According to five is

challenge is provided by court rule and statute. to MCR 6.412(E)(1), challenges a defendant unless an is entitled

peremptory

offense

charged

punishable by life imprisonment, in which case a defendant being tried alone is entitled to twelve peremptory

challenges. is put on

Further, under MCL 768.13, "[a]ny person who trial for for an offense shall the be punishable allowed drawn by to to death or

imprisonment peremptorily

life, of

challenge serve as

twenty

persons

jurors, and no more . . . ."5 The trial court followed the court rule, which

entitled defendant to twelve peremptory challenges because he was on trial for an offense claims punishable the by life court

imprisonment.

Defendant

that

trial

violated his right to two of the peremptory challenges by

MCR 6.412(E) departs from the statute by reducing the number of peremptory challenges to which a defendant is entitled. We need not resolve the discrepancy between the statute and the court rule because this issue is not before us.

5

9


failing

to

follow

the

three-step

procedure

mandated

in

Batson in disallowing the challenges. Applying the above rules to the facts in this case, we conclude that no such error occurred.6 1. Prima Facie Showing of Discrimination Based on Race Here, defense counsel had already exercised several peremptory challenges and was attempting to challenge juror ten when the trial court interrupted and requested that counsel for both parties proceed to chambers. chambers, the trial court stated that it was While in going to

disallow the challenge because defense counsel had based his challenges on the race of the juror. reached this conclusion because The trial court counsel had

defense

established a pattern of excusing Caucasian males.7 After defense counsel's peremptory challenge of juror five, the prosecution objected, reasoning that juror five

In Georgia v McCollum, 505 US 42, 59; 112 S Ct 2348; 120 L Ed 2d 33 (1992), on remand 262 Ga 554; 422 SE2d 866 (1992), the United States Supreme Court extended the Batson rule to govern the conduct of criminal defendants ("the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges"). The challenge to juror ten was defense counsel's ninth challenge. Of the nine challenges, defense counsel exercised seven against Caucasian males and two against females whose race could not be determined from the record.
7

6

10


was Caucasian and the two previous challenges by defense counsel were of Caucasian males. and disallowed the challenge. On appeal, defendant argued that the trial court erred by raising Batson sua sponte to question defense counsel's reasons for peremptorily challenging juror number ten. The trial court agreed

Defendant further maintained that neither the trial court nor the prosecution established a prima facie showing of discrimination based on race for either challenge. The Court of Appeals held that a trial court may raise a Batson issue sua sponte, noting that virtually all state courts have concluded that a trial court may raise a Batson issue sua sponte. that because of the the The Court of Appeals, however, concluded record did not reveal it the racial not

identities

prospective

jurors,

could

determine whether a prima facie case of discrimination had been established. We have not previously addressed the question whether a trial court may raise a Batson issue sua sponte. The rationale underlying Batson and its progeny, however,

supports the Court of Appeals position that the trial court may make an inquiry sua sponte after observing a prima facie case of purposeful discrimination through the use of

11


peremptory challenges.

Batson and its progeny8 make clear

that a trial court has the authority to raise sua sponte such an issue to ensure the equal protection rights of individual jurors. See Batson, supra at 99 ("In view of

the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race."); Georgia v

McCollum, 505 US 42, 49-50; 112 S Ct 2348; 120 L Ed 2d 33 (1992), quoting State v Alvarado, 221 NJ Super 324, 328; 534 A2d 440 (1987) ("`Be it at the hands of the State or the defense,' if a court allows jurors to be excluded

because of group bias, `[it] is [a] willing participant in a scheme that could only undermine the very foundation of our system of justice--our citizens' confidence in it.'"). The United States Supreme Court, in Powers v Ohio, 499 US 400, 416; 111 S Ct 1364; 113 L Ed 2d 411 (1991), held

The Court of Appeals correctly noted that the following cases have held that a trial court may raise a Batson issue sua sponte to protect the rights secured by the Equal Protection Clause: State v Evans, 100 Wash App 757, 765-767; 998 P2d 373 (2000); Commonwealth v Carson, 559 Pa 460, 476-479; 741 A2d 686 (1999); Brogden v State, 102 Md App 423, 430-432; 649 A2d 1196 (1994); Lemley v State, 599 So 2d 64, 69 (Ala App, 1992).

8

12


that

a

criminal

defendant

has

standing

to

object

to

a

prosecutor's peremptory challenges. It reasoned: The barriers to a suit by an excluded juror are daunting. Potential jurors are not parties to the jury selection process and have no opportunity to be heard at the time of their exclusion. Nor can excluded jurors easily obtain declaratory or injunctive relief when discrimination occurs through an individual prosecutor's exercise of peremptory challenges. Unlike a challenge to systematic practices of the jury clerk and commissioners such as we considered in Carter [v Jury Comm of Greene Co, 396 US 320; 90 S Ct 518; 24 L Ed 2d 549 (1970)], it would be difficult for an individual juror to show a likelihood that discrimination against him at the voir dire stage will recur. And, there exist considerable practical barriers to suit by the excluded juror because of the small financial stake involved and the economic burdens of litigation. The reality is that a juror dismissed because of race probably will leave the courtroom possessing little incentive to set in motion the arduous process needed to vindicate his own rights. [Id. at 414-415 (citations omitted).]

The Powers Court further stated: The statutory prohibition on discrimination in the selection of jurors, enacted pursuant to the Fourteenth Amendment's Enabling Clause, makes race neutrality in jury selection a visible, and inevitable, measure of the judicial system's own commitment to the commands of the Constitution. The courts are under an affirmative duty to enforce the strong statutory and constitutional [Id. at policies embodied in that prohibition. 416 (citation omitted).]

The Supreme Court's rationale for allowing a defendant to raise a Batson issue supports our conclusion that a

13


trial court may sua sponte raise a Batson issue.

Trial

courts are in the best position to enforce the statutory and constitutional policies wrongly prohibiting excluded jurors racial have

discrimination.

Further,

little incentive to vindicate their own rights.

We thus

conclude, for the foregoing reasons, that a trial court may sua sponte raise a Batson issue. We reject the Court of Appeals assertion that it could not establish whether a prima facie case of discrimination had been made regarding the challenges because of the

inadequacy of the record.

It is undisputed that defendant While the challenged jurors

is an African-American male.

were not of defendant's racial group, it is equally harmful to challenge only members supra at outside a defendant's The trial racial court

group.

Powers,

415-416.

specifically stated that it was disallowing the challenges because defense counsel, for the better part of the day, had only excused Caucasian male jurors.9 Defense counsel

did not dispute that he had only excused Caucasian males.

We recognize that the trial court's statement is not entirely accurate because defense counsel peremptorily challenged two females. We conclude, however, that this fact does not diminish defense counsel's pattern of peremptorily challenging Caucasian males.

9

14


Instead, he pointed to the racial make-up of the remaining jurors to justify his challenges. The trial court rejected defense counsel's challenge of juror ten because defense counsel had exercised seven of nine peremptory challenges to against Caucasian males. The of

prosecution

objected

defense

counsel's

challenge

juror five because defense counsel consecutively excused three Caucasian male jurors. In both instances, defense

counsel's challenges created a pattern of strikes against Caucasian males. inference that This pattern was sufficient to raise an defense counsel was indeed excluding See Batson, jurors inference the Court of a of of

potential jurors on the basis of their race. supra at 97 (a pattern may We of strikes rise to against an that

specific

race

give thus

discrimination).

conclude

Appeals erred in failing to find a prima facie showing of discrimination based on race. 2. Neutral Explanation for the Challenge Once a prima facie showing is made, the burden shifts to the challenger to provide a neutral explanation for the challenge. Upon the trial court's finding that defense

counsel's challenge of juror ten was based on race, defense counsel requested an opportunity to make a record. The

trial court initially denied defense counsel's request, but

15


reconsidered

upon

defense

counsel's

objection.

Defense

counsel stated: I would bring to the Court's attention that the number of white males on that panel still exceeds the number of the minorities on that panel. Why don't you talk about the whole racial composition of that panel? There's still a vast majority of white members on that panel than it is [sic] black members on that panel. The counsel's trial reason court responded its by stating facie that defense that

supported

prima

finding

counsel had exercised the challenge on the basis of race and upheld its disallowance of the challenge. After peremptory the prosecutor of objected juror to defense the counsel's court

challenge

five,

trial

disallowed the challenge "for the same reasons as asserted before." Defense counsel objected and attempted to make a The trial

record, but the trial court interrupted him.

court then allowed defense counsel to make a record, but only after the prosecutor asked to approach the bench. prosecutor peremptory stated that defense counsel's juror three five, The

previous were of

challenges,

including

Caucasian males.

Defense counsel responded by giving raceThe trial court

neutral reasons for two of the challenges.

noted that it was only concerned with defense counsel's reasons replied: for challenging juror five. Defense counsel

16


Judge, again, if there were no other white males on that jury, or white males were a minority on that jury, then there may be some persuasive force to [the assistant prosecutor's] argument about a Battson [sic] challenge. That simply is not the case. The demographics of that jury do not hold up to that kind of a challenge. And I think I don't have to have a reason for exercising a peremptory challenge. Defense challenge. challenges counsel The could trial not be gave no other stated on race reason that and for his

court based

peremptory found that

defense counsel's peremptory challenge of juror five had been based on gender and race. The Court of Appeals concluded that even if a prima facie case had been established, the trial court failed to comply with steps two and three of the Batson process. It

found that the trial court erred by denying defense counsel the opportunity to make a record before disallowing the peremptory challenge of juror ten. It further found that

the trial court failed to inquire whether defense counsel had a race-neutral reason for striking juror five. We agree that the trial court initially erred in

denying defense counsel the opportunity to provide raceneutral reasons for his challenges. We conclude, however, that these errors were cured when the trial court, almost

17


immediately after each challenge, permitted defense counsel to make a record. disallow reasons. the It then based its ultimate conclusion to on defendant's did race-conscious the steps

challenges the

Because

trial

court

perform

required by Batson, albeit somewhat belatedly, it did not improperly deny defendant the right to exercise two of his statutorily prescribed peremptory challenges. We reject the claim that the trial court failed to inquire whether defense counsel had a race-neutral reason for striking juror five because the record shows otherwise. Defense counsel provided only one reason for his

challenges, which was not race-neutral and did not refute the prima facie showing that his challenges were based on race. Just as a challenger may not exclude a prospective

juror on the basis of race, it is equally improper for a challenger to engineer the composition of a jury to reflect the race of the defendant. Finally, defendant claims on appeal that his responses were not given as race-neutral reasons for his challenges, but, rather, as attempts to disprove the trial court's and the prosecution's We prima are not facie showings by of racial argument.

discrimination.

persuaded

this

Defense counsel never contended that the trial court and the prosecution had not made a prima facie case of racial

18


discrimination.

If he was merely attempting to disprove

the prima facie showings, defense counsel would not have stopped there, but would have also provided race-neutral reasons for the challenges in the event that the trial court refused to accept his argument. Additionally, the

record indicates that defense counsel understood that he was to provide race-neutral reasons. The prosecution

objected to the challenge of juror five because defense counsel's three previous peremptory challenges, including juror five, were of Caucasian males. Defense counsel then

furnished race-neutral reasons for two of the challenges. But with respect the to juror five, defense counsel failed merely because Defendant ability to

stated

that

prosecution's still remained his

argument on the

Caucasian clearly

males

jury. and

demonstrated

understanding

provide race-neutral reasons when needed. In juror five's case, he failed to do so.10 While defense counsel may not

Defense counsel's failure to provide race-neutral reasons for his challenges, especially after demonstrating his ability to do so, provide additional support for the inference of discrimination. See Johnson v California,___ US ___; 125 S Ct 2410; 162 L Ed 2d 129 (2005), in which the United States Supreme Court stated: In the unlikely hypothetical in which the prosecutor declines to respond to a trial judge's inquiry regarding his justification for making a Footnotes continued on following page. 19


10

have

effectively

used

his

opportunity

to

provide

race-

neutral reasons for his challenges, he had the opportunity. Defendant cannot complain now that the opportunity was

insufficient. 3. Trial Court's Decision Regarding Purposeful Discrimination Finally, the trial court must determine whether the opponent of the challenge has carried the burden of

establishing purposeful discrimination.

This decision may

strike, the evidence before the judge would consist not only of the original facts from which the prima facie case was established, but also the prosecutor's refusal to justify his strike in light of the court's request. Such a refusal would provide additional support for the inference of discrimination raised by a defendant's prima facie case. [Id., ___ US ___ n 6; 125 S Ct ___ n 6; 162 L Ed 2d 140 n 6.] Justice Kelly claims that defendant did not provide race-neutral reasons for his challenges because he was never asked for his reasons. The trial transcript, however, indicates that defendant did provide reasons, which the trial court found to be race-conscious. After the prosecutor's objection to the exclusion of prospective juror five, defense counsel volunteered race-neutral reasons for excluding the two prospective jurors preceding prospective juror five. The trial court then stated, "That's not an issue. The issue is the last juror." Defense counsel responded, "Judge, again, if there were no other white males on the jury, or white males were a minority on that jury, then there may be some persuasive force to [the prosecutor's] argument about a Battson [sic] challenge." The trial court then indicated, "[b]ut you cannot use a racial basis or a gender basis for excusing jurors." Defense counsel responded, "And I've given my reasons on the record, and . . . none of them were related to race or gender."

20


hinge on the credibility of the challenger's race-neutral explanations, but only if the challenger provided race-

neutral explanations. conscious, challenges. rather

Here, defense counsel provided racerace-neutral, reasons for his

than

This reinforces the prima facie showings that Consequently, the trial in finding purposeful

the challenges were based on race. court did not clearly err

discrimination. IV.  STANDARD OF REVIEW FOR DENIALS OF PEREMPTORY CHALLENGES In light of our conclusion that the trial court's initial error was cured, we need not address whether a denial of a peremptory challenge is subject to automatic reversal. Had we concluded, however, as do our dissenting

colleagues, that defendant's peremptory challenges had been improperly denied, we would have applied a harmless error standard to the error, because People v Miller, 411 Mich 321; 307 NW2d 335 (1981), and People v Schmitz, 231 Mich App 521; 586 NW2d 766 (1998), are no longer binding, in light of our current harmless error jurisprudence, to the extent that they hold that a violation of the right to a peremptory challenge requires automatic reversal. We arrive at this a conclusion error by and recognizing a denial the of a

distinction

between

Batson

peremptory challenge.

A Batson error occurs when a juror

21


is actually dismissed on the basis of race or gender.11

It

is undisputed that this type of error is of constitutional dimension contrast, and a is subject of a to automatic reversal.12 on In other

denial

peremptory

challenge

grounds amounts to the denial of a statutory or court-rulebased right to exclude a certain number of jurors. An

improper denial of such a peremptory challenge is not of constitutional dimension.13 In Miller, this Court held that "a defendant is

entitled to have the jury selected as provided by the rule. Where, as here, a selection procedure is challenged before the process begins, the failure to follow the procedure prescribed in the rule requires reversal.14 In Schmitz, the

Court of Appeals relied on Miller to hold that a denial of

11 12

Batson, supra.

See Johnson v United States, 520 US 461, 468-469; 117 S Ct 1544; 137 L Ed 2d 718 (1997); J E B v Alabama ex rel T B, 511 US 127, 142 n 13; 114 S Ct 1419; 128 L Ed 2d 89 (1994). United States v Martinez-Salazar, 528 US 304, 311; 120 S Ct 774; 145 L Ed 2d 792 (2000); Ross v Oklahoma, 487 US 81, 88; 108 S Ct 2273; 101 L Ed 2d 80 (1988)(the United States Supreme Court recognized that peremptory challenges are not of constitutional dimension and are merely a means to achieve the end of an impartial jury).
14 13

Miller, supra at 326.

22


a

peremptory

challenge

requires

automatic

reversal.15

Following Miller and Schmitz, however, our harmless error jurisprudence has evolved a great deal, as has that of the United States Supreme Court. See People v Carines, 460 Under Carines, a require automatic

Mich 750, 774; 597 NW2d 130 (1999).16 nonconstitutional reversal. Id. error does not

Rather, if the error is preserved, it is

subject to reversal only for a miscarriage of justice under the Lukity17 "more probable than not" standard. Id. See

15 16

Schmitz, supra at 530-532.

See, also, Martinez-Salazar, supra at 317 n 4, in which the Supreme Court recognized that the rule of automatic reversal for an erroneous denial of peremptory challenges makes little sense in light of its recent harmless error jurisprudence. It stated: Relying on language in Swain v Alabama . . . Martinez-Salazar urges the Court to adopt a remedy of automatic reversal whenever a defendant's right to a certain number of peremptory challenges is substantially impaired. . . . Because we find no impairment, we do not decide in this case what the appropriate remedy for a substantial impairment would be. We note, however, that the oft-quoted language in Swain was not only unnecessary to the decision in that case--because Swain did not address any claim that a defendant had been denied a peremptory challenge--but was founded on a series of our early cases decided long before the adoption of harmless-error review.
17

People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607

(1999).

23


also MCL 769.26.

If the error is forfeited, it may be

reviewed only for plain error affecting substantial rights. Carines, supra. Because the right to a peremptory challenge in

Michigan is not provided by the Michigan Constitution but, rather, by statute and court rule, we conclude, as did the United States Supreme Court, that the right is of nonconstitutional dimension.18 Thus, under our jurisprudence,

Although courts in other jurisdictions have reached contrary conclusions, we believe their analyses are unpersuasive. In United States v McFerron, for example, the Sixth Circuit Court of Appeals held that the erroneous denial of a peremptory challenge is a structural error. 163 F3d 952, 956 (CA 6, 1998). But McFerron predated Martinez-Salazar and is therefore of questionable weight. The Washington Supreme Court also held that the denial of a peremptory challenge in a so-called "reverse-Batson" context is structural error. State v Vreen, 143 Wash 2d 923; 26 P3d 236 (2001). While Vreen acknowledges MartinezSalazar, the court dismisses that case with a cursory and, in our view, unpersuasive analysis. Indeed, all the cases cited by the Vreen court for its assertion that "the vast majority [of courts] have found harmless error doctrine simply inappropriate in such circumstances" predate Martinez-Salazar. See id. at 929. We agree with the Court of Appeals for the Seventh Circuit that Martinez-Salazar marked a significant shift in the standard of review applicable to the erroneous denial of a peremptory challenge. United States v Harbin, 250 F3d 532, 546 (CA 7, 2001), citing United States v Patterson, 215 F3d 776 (CA 7, 2000), vacated in part by Patterson v United States, 531 US 1033 (2000). In Harbin, the Seventh Circuit noted that it had been "[f]reed from the Swain language by the Court's footnote in Martinez-Salazar Footnotes continued on following page. 24


18

a violation of the right is reviewed for a miscarriage of justice if the error is preserved and for plain error

affecting substantial rights if the error is forfeited.19 V. RESPONSE TO THE DISSENT

Justice Kelly's dissent asserts that the trial court's failure to follow the three-step Batson procedures was

. . . ." Harbin, supra at 546 (holding, however, that the prosecution's mid-trial use of a peremptory challenge was a structural error). United States v Jackson, 2001 US Dist LEXIS 4900, *7 n 1 (SD Ind, 2001) ("The bottom line is that [the] discussion of the need for a clear understanding of the peremptory challenge [in United States v Underwood, 122 F3d 389, 392 (CA 7, 1997)] process remains good law, but the automatic reversal standard is no longer applicable.") Given the standard of harmless error review that now prevails in both the United States Supreme Court and this Court, we believe that the erroneous denial of a peremptory challenge is not subject to automatic reversal. Justice Kelly inaccurately states that we are departing from the trend set by most other courts that have considered harmless error application to denials of peremptory challenges. We do not depart from that trend, however, because the trend leans toward application of harmless error analysis to improper denials of peremptory challenges. Justice Kelly further states that we rely on MartinezSalazar to support our alleged departure. We, however, rely on current Michigan harmless error jurisprudence to support our conclusion that an improper denial of a peremptory challenge is subject to harmless error analysis. We discuss Martinez-Salazar to merely show that the United States Supreme Court's harmless error jurisprudence is evolving, which strongly indicates that in the federal system nonconstitutional errors, such as an improper denial of peremptory challenges, would be subject to harmless error analysis.
19

25


incurable and requires automatic reversal. She states that the trial court failed to complete a single step of the three-step Batson procedures and collapsed all three steps into one. In reaching this conclusion, Justice Kelly

states that the trial court failed to scrutinize carefully whether a prima facie case had been made. Even if the trial court's prima facie findings were inadequate, determinative that inadequacy defendant would not be outcome an

because

subsequently

offered

explanation for his challenges. ruled on the ultimate

Further, the trial court of intentional

question

discrimination.

See Hernandez v New York, 500 US 352, 359;

111 S Ct 1859; 114 L Ed 2d 395 (1991) ("Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question issue of of intentional the discrimination, had made the a preliminary prima facie

whether

defendant

showing becomes moot."); see also Saiz v Ortiz, 392 F3d 1166, 1179 n 8 (CA 10, 2004) (the existence or absence of a prima facie case is moot where the trial court refused to make a finding regarding whether a prima facie case had been established, but proceeded to hear the prosecution's explanation for the challenge). Justice Kelly states that our reliance on Hernandez is misplaced. She notes that

26


Hernandez observes that a defendant may concede the first Batson step by moving to the second step. We agree and Both

suggest that is exactly what occurred in this case. the trial court and the prosecutor objected to

defense

counsel's use of peremptory challenges, claiming that he was using them to exclude African-American veniremembers. While the trial court did not initially allow defense

counsel to provide race-neutral reasons for his challenges, it almost immediately to recanted its refusal which and were allowed racedefense

defense

counsel The

provide court

reasons,

conscious.

trial

ultimately

denied

counsel's challenges, finding that defense counsel's raceconscious reasons supported the initial allegations that he had been excluding veniremembers on the basis of race. The

trial court's initial refusal to allow defense counsel to provide race-neutral reasons for his challenges does not amount to a collapsing of the Batson steps. anything, it amounted to imperfect compliance Rather, if with the

Batson procedures.

The trial court, however, ultimately

conducted each Batson step and made a ruling on the basis of defense counsel's race-conscious reasons. Thus, any

error that may have occurred in the trial court's Batson application was subsequently cured.

27


Justice adherence mandated. to

Kelly the

incorrectly Batson

assumes is

that

strict

procedures

constitutionally

To the contrary, the purpose of the Batson test

is to ensure adherence to the "principle that the ultimate burden of persuasion regarding racial motivation rests

with, and never shifts from, the opponent of the strike." Purkett v Elem, 514 US 765, 768; 115 S Ct 1769; 131 L Ed 2d 834 (1995).20 Our research reflects that trial courts have See

failed to comply perfectly with Batson in the past.

United States v Castorena-Jaime, 285 F3d 916, 929 (CA 10, 2002) ("Notwithstanding the district court's failure to

make express findings on the record [regarding the Batson steps] in the present case, the district court's ultimate conclusion on discriminatory Saiz, supra (the intent United was not clearly Court of

erroneous.");

States

See, also, Johnson, supra, ___ US ___ n 7; 125 S Ct ___ n 7; 162 L Ed 2d 140 n 7, in which the United States Supreme Court compared the Batson burden-shifting framework to the framework set forth in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). The Johnson Court cited St Mary's Honor Ctr v Hicks, 509 US 502; 113 S Ct 2742; 125 L Ed 2d 407 (1993), for the proposition that the "burden-shifting framework [set forth in Batson and McDonnell Douglas] triggered by a defendant's prima face case is essentially just `a means of "arranging the presentation of evidence."'" Johnson, supra, ___ US ___ n 7; 125 S Ct ___ n 7; 162 L Ed 2d 140 n 7, quoting St Mary's, supra, 509-510, quoting Watson v Fort Worth Bank & Trust, 487 US 977, 986; 108 S Ct 2777; 101 L Ed 2d 827 (1988).

20

28


Appeals inferred from the record that the trial court did not find a prima facie case of discrimination).21 Their

failure to do so, however, is not error as long as trial courts do not shift the burden of persuasion onto the

challenger. Justice collapsing burden on Kelly contends Batson to that steps the into trial one, court, placed by the

the

three

defense

counsel

counter

the

trial

court's

finding of purposeful discrimination. support this contention.

The record does not

Both the trial court and the

prosecution made a prima facie showing that defense counsel had excluded jurors on the basis of race. The trial court

initially refused to allow defense counsel to provide raceneutral reasons, but almost immediately reconsidered and allowed defense counsel to make a record. gave race-conscious reasons regarding Defense counsel both challenges.

Thus, he failed to meet the burden of coming forward with race-neutral explanations. Defense counsel's proffer of

race-conscious reasons did not rebut the trial court's and the prosecution's prima facie showings of discrimination. Thus, the trial court neither erred in finding purposeful

See, also, United States v Perez, 35 F3d 632, 636 (CA 1, 1994).

21

29


discrimination challenges. Justice regarding

nor

erred

in

rejecting

defense

counsel's

Kelly

further and

asserts is

that

our

discussion We

Miller

Schmitz

inappropriate.

recognize that Miller and Schmitz need not be addressed, because we have concluded that the trial court did not err in denying defense counsel's peremptory challenges. We

disagree, however, that our discussion regarding Miller and Schmitz is inappropriate and has no legal value. Rather,

such discussion is in direct response to the arguments of the dissent, and without such discussion our response would be incomplete. That a response to a dissent may encompass

discussion that is dictum does not render it inappropriate or of no legal value; otherwise, only dissenting opinions would be able to opine upon decisions such as Miller and Schmitz.22 harmless longer As error stated above, in light and thus of our current are no

jurisprudence, binding.

Miller We

Schmitz

precedentially

disagree

with

Although the dissent labors hard to avoid referencing Miller and Schmitz, it is puzzling why it would do this with regard to two decisions that are so obviously helpful to its conclusion, except that to reference these decisions would only make obvious the asymmetry of the dissent's position, namely, that the dissent, but not the majority, should be able to analyze Miller and Schmitz.

22

30


Justice

Kelly's

conclusion

that

our

Miller

and

Schmitz

discussion is inappropriate. VI. CONCLUSION We follow hold the that the trial process court's set initial in failure Batson to was

three-step

forth

subsequently cured.

Despite our ultimate conclusion that

the trial court complied with the requirements of Batson, trial courts are well advised to articulate and thoroughly analyze each of the three steps set forth in Batson, see pp 7-9 of this opinion, in determining whether peremptory

challenges were improperly exercised.

In doing so, trial

courts should clearly state the Batson step that they are addressing and should articulate their findings regarding that step.23

Federal courts have encountered similar problems regarding appellate review of a trial court's inadequate Batson findings. See Castorena-Jaime, supra at 929: Although we affirm the district court's ruling, we encourage district courts to make explicit factual findings on the record when ruling on Batson challenges. "Specifically, . . . a district court should state whether it finds the proffered reason for a challenged strike to be facially race neutral or inherently discriminatory and why it chooses to credit or discredit the given explanation." A district court's clearly articulated findings assist our appellate review of the court's Batson ruling, and "ensure[] that the trial court has indeed Footnotes continued on following page. 31


23

We further hold that the trial court did not commit clear error in finding as a matter of fact that defense counsel exercised peremptory challenges on the basis of the race of the prospective jurors. Accordingly, we reverse

the judgment of the Court of Appeals. Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

made the crucial credibility determination that is afforded such great respect on appeal." [Quoting Perez, supra at 636 (citation omitted).]

32


S T A T E

O F

M I C H I G A N


SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v MARLON BELL, Defendant-Appellee. _______________________________ WEAVER, J. (concurring). I concur in the result of the lead opinion and join parts I to III of the opinion. As the lead opinion has No. 125375

explained, the record reflects that any initial error by the trial court was cured when the trial court allowed defendant to provide reasons for the peremptory challenges and that the reasons proffered by defendant for the

challenges were race-conscious. I do not join part IV of the lead opinion, which

addresses whether the violation of a right to a peremptory challenge requires automatic reversal, nor do I join the last paragraph of part V, which concludes that it is proper to address the Ante issue at because it is in In response my to the such

dissent.

21-25,

30-31.

opinion,

discussion is unnecessary to the opinion and therefore is

dicta. before

I would wait until the issue is squarely before us determining challenge whether is the improper to denial of a

peremptory analysis.

subject

structural

error

Therefore, I do not join part IV or the last

paragraph of part V. Elizabeth A. Weaver

2


S T A T E

O F

M I C H I G A N


SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v MARLON BELL, Defendant-Appellee. _______________________________ TAYLOR, C.J. (dissenting in part and concurring in part). I respectfully that dissent from the lead opinion's No. 125375

conclusion

defense

counsel

provided

race-conscious

reasons for the two peremptory challenges the trial court refused to allow him to exercise. Justice Kelly's dissent that Rather, I agree with counsel's comments

defense

were intended only to challenge the idea that a prima facie showing of discrimination had been made. counsel's comments were legitimate and Thus, defense only at

directed

Batson's first step.

Thereafter the trial court did not

follow the Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986), requirement that it allow defendant the opportunity to articulate a race-neutral explanation for the challenges. Accordingly, I conclude that the trial

court

erroneously

deprived

defendant

of

two

of

his

peremptory challenges. As noted by the lead opinion, peremptory challenges are granted to a defendant by statute and by court rule-not by the United States Denial a of Constitution the only or the right Michigan requires in a

Constitution. reversal of

statutory if it

conviction

resulted

miscarriage of justice.

MCL 769.26.

Thus, I concur with

the lead opinion that the denial of a statutory peremptory challenge is subject to harmless error review and that

People v Schmitz, 231 Mich App 521; 586 NW2d 766 (1998), must be repudiated to the extent that it held to the

contrary.

Applying this standard, I find defendant is not I specifically join footnote 18

entitled to a new trial.

of the lead opinion because I am persuaded that foreign cases that have concluded that the denial of a statutory right to a peremptory challenge requires automatic reversal were wrongly decided. An automatic reversal should not be

required for the mere violation of a statutory right just because the trial court misperceived defense counsel's

2


effort to peremptorily strike two prospective jurors as a constitutional Batson violation.1 To the extent that the error is considered to have violated our court rule, the denial is not grounds for granting a new trial unless refusal to grant a new trial is inconsistent with substantial justice. MCR 2.613(A).

Applying this standard, I find defendant is not entitled to a new trial. I also join the lead opinion in questioning the

continuing viability of People v Miller, 411 Mich 321; 307 NW2d 335 (1981).

I do, however, recognize that if a statutory right is denied in a manner that violates equal protection or due process guarantees that such denial may warrant a new trial. As the United States Supreme Court stated in Evitts v Lucey, 469 US 387, 401; 105 S Ct 830; 83 L Ed 2d 821 (1985): [A]lthough a State may choose whether it will institute any given welfare program, it must operate whatever programs it does establish subject to the protections of the Due Process Clause. Similarly, a State has great discretion in setting policies governing parole decisions, but it must nonetheless make those decisions in accord with the Due Process Clause. In short, when a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution -- and, in particular, in accord with the Due Process Clause. [Citations omitted.]

1

3


Because I find that the error here was harmless, under both MCL 769.26 and MCR 2.613(A), I agree with the lead opinion that the Court of Appeals decision must be reversed and defendant's convictions should be reinstated. Clifford W. Taylor

4


S T A T E O F M I C H I G A N
SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v MARLON BELL, Defendant-Appellee. _______________________________ KELLY, J. (dissenting). I First, dissent the from the lead erred opinion by for two to reasons. the No. 125375

trial

judge

failing

follow

procedures required by Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986). contention incurable. Miller1 is to the contrary, the lead and, Despite the lead opinion's the Batson errors were

Second,

opinion's as

dictum has

regarding no legal

inappropriate,

dictum,

effect or precedential value. overrule Miller.

There is no legal basis to

I. THE BATSON RULE The United States Supreme Court ruled in Batson that, when selecting a jury, to a prosecutor a juror may not use of a the

peremptory
1

challenge

remove

because

People v Miller, 411 Mich 321; 307 NW2d 335 (1981).

juror's race.

Batson, supra at 89.

The Supreme Court gave

trial judges a specific three-step procedure to determine whether basis. First, the objecting party must make a prima facie showing, based on that juror. the the Id. totality other at party of all relevant in a peremptory challenge has an improper racial

circumstances, removing the

discriminated Second, the a

93-94.

party

exercising

the

peremptory

challenge

must

give

neutral

explanation for the removal, showing that it was not based on race. determine Id. at 94, 97. if the objecting Third, the trial judge must party established purposeful

discrimination.

Id. at 98.

Although Batson dealt with a prosecutor's exercise of peremptory challenges, the Supreme Court extended the rule in later cases. stated that the For example, in Georgia v McCollum,2 it United States from Constitution in prohibits a

criminal

defendant

engaging

purposeful

discrimination in the exercise of peremptory challenges. A. THE PEREMPTORY CHALLENGES In this case, each party had made several peremptory challenges before defense counsel challenged Juror No. 10.

2

505 US 42, 59; 112 S Ct 2348; 120 L Ed 2d 33 (1992).

2


During voir dire, Juror No. 10 stated that he was a close friend of several police officers, including a "chief." He

stated that he "wouldn't think" that his friendships would make a difference in his ability to make a fair decision. He also responded, when asked if he would feel obliged to apologize should he vote to acquit defendant, that he

"hope[d] not." When defense counsel peremptorily challenged Juror No. 10, the trial judge disallowed the challenge because, he said, race. refused it and previous defense challenges were based on

Defense counsel asked to comment, but the judge him the opportunity. Counsel then boisterously

objected to the refusal, stating that it was "garbage." The judge then relented and allowed a statement. Defense counsel argued that he had not attempted to eliminate Juror No. 10, a Caucasian male, because of his race. He pointed out that the Caucasians on the jury The

outnumbered and exceeded the minorities on the panel.

judge then allowed the prosecution to respond, refused to hear more from defense counsel, and ruled that Juror No. 10 would remain on the jury. Jury selection continued, and the attorneys made more peremptory challenges. When Juror No. 5 was called,

neither side objected for cause, and the prosecution did

3


not exercise a peremptory challenge. defense jury." counsel's input, the judge

Without asking for stated, "We have a

Defense counsel approached the bench and an off-therecord discussion ensued. When the proceeding resumed on

the record, defense counsel asked to excuse Juror No. 5. The prosecution objected, stating that it was making a

Batson objection to the defense's peremptory challenge of Juror No. 5. Without judge discussion the given or input from the parties, for 10. the the same

disallowed he had

peremptory regarding

challenge Juror No.

reasons

Again,

defense counsel sought to comment on the ruling but was refused. After the prosecution evidenced some discomfort

with the lack of a record, the judge allowed counsel to make a record outside the presence of the jury. The prosecutor then observed that the two jurors

excused between Juror No. 10 and Juror No. 5 were both Caucasian males. Caucasian male. She also indicated that Juror No. 5 was a She offered no additional basis for her

objection to the peremptory challenge of Juror No. 5. Defense counsel pointed out that there had been no discriminatory pattern to his challenges. He stated that

at least as many white males as minority males remained on

4


the jury.

He insisted that there were valid reasons to One had

remove the intervening jurors who were excused. expressed bias towards police officers. before, had resided on the street

The other, years the crime was

where

alleged to have occurred, and his home had been broken into. The juror expressed concern about the influence the

break-in would have on his decision in this case. The judge stated that defense counsel's argument was unpersuasive. Without making further rulings, he brought

back the jury, and the trial continued. B. THE TRIAL COURT'S FAILURE
TO

FOLLOW

THE

BATSON PROCEDURES

The judge failed to follow the three-step procedure required by Batson. In fact, he failed to complete a

single step of the procedure.

He did not make a finding

regarding whether there had been a prima facie showing of purposeful discrimination. Instead, it appears that he

lumped all three steps into one and made his ruling without further regard to Batson. Trial judges are not at liberty to disregard the

Batson procedure.

Batson is United States Supreme Court Moreover, the

precedent that is binding on state courts.

courts may neither ignore one step nor combine the three steps of Batson. Purkett v Elem, 514 US 765, 768; 115 S Ct Instead, they must carefully

1769; 131 L Ed 2d 834 (1995).

5


and individually consider each. designed peremptory to carefully challenges balance and

The Batson procedure was the the free evils exercise of of

racial

discrimination in the selection of jurors. at 98-99. It was crafted specifically to

Batson, supra enforce the

mandate of equal protection as well as to further the ends of justice. Id. at 99.

In this case, when the trial judge allowed defense counsel to speak, he erroneously placed the burden on

counsel to show that the peremptory challenge should not be disallowed. Although Batson provides a burden-shifting

procedure, the party objecting to a peremptory challenge, in this case the prosecutor, has the ultimate burden of proving purposeful discrimination. Purkett, supra at 768.

Improperly shifting the burden "violates the principle that the ultimate burden of persuasion regarding racial

motivation rests with, and never shifts from, the opponent of the strike." Id. Therefore, the trial court erred

twice in disallowing the peremptory challenges to Jurors No. 5 and No. 10. The trial court was required to make a ruling on the first step. The court's failure to arrive at a clear

conclusion and articulate its findings amounted to error in and of itself. Only if, and when, a trial court concludes

6


that a prima facie case exists does the burden shift to the party exercising the peremptory challenge. court must allow that party to Then the trial race-neutral

articulate

reasons for the challenge. In this case, the trial court glossed over the first step, skipped the second step, and jumped to the third. At

the third step, the court impermissibly placed on defendant the burden to rebut presumed racial prejudice. These

multiple and repeated errors are patently inconsistent with the established Batson precedent. They cannot remain

uncorrected. Those on the lead opinion state that their "research"3 reflects Batson. that trial courts often fail to comply with

They appear to believe that, because there is a

supposed generalized failure of compliance, the seriousness of the trial court's Batson errors here is diminished. an error often repeated is no less an error. But

In fact, what

we should draw from their research is that we must more scrupulously Batson. hold our courts responsible for following

The United States Supreme Court has carefully laid

The lead opinion makes no mention of what the "research" consisted of, and I have no knowledge of what it might be. I know of no research project on this subject conducted by this Court.

3

7


out the steps necessary for determining if a Batson error exists. It is for us to see that they are followed. C. THE TRIAL COURT DID NOT CURE
THE

ERRORS

The lead opinion concludes that the trial court cured its errors by allowing defense counsel to respond to its ruling. Those on the lead opinion attempt to fit the facts

of this case into Batson, rather than apply Batson to the facts. They conclude that defense counsel should have used

his opportunity to respond to offer race-neutral reasons for the peremptory challenges. this conclusion. The trial court never articulated that a prima facie case of discrimination had been made. allowed first defense Batson counsel to He speak, denied Therefore, when it dwelt on the a It The record does not support

counsel the

element.

existence

of

discriminatory pattern in his peremptory challenges. appears that he was encouraging the follow the Batson procedure. completed the first step

court to refocus and

Given that the court had not of Batson, it was wholly

reasonable for defense counsel to direct his comments to that step. And he did just that.

The lead opinion concludes that defense counsel should have surmised that the judge was ignoring Batson and

8


tailored

his

answers

accordingly.4

This

unfairly

holds

defendant responsible for alleviating the court's error. Trial courts have a clear map to follow in Batson cases. Given the magnitude of the error when they fail in that endeavor, it is imperative that we hold courts responsible for correctly applying the Batson test. 99; Purkett, supra at 768. The lead opinion concludes that defense counsel should have supplied a race-neutral reason for the challenges. The Batson, supra at

However, a good reason exists why he did not respond.

court never asked for a response and never gave counsel an opportunity discussion Batson, to on offer what judge one. Instead, have been after concluding step of his

should stopped

the and

first

the

counsel

overruled

challenges. required to

This was clearly erroneous. ask specifically for

The judge was responses

race-neutral

The lead opinion also quotes Johnson v California, 545 US __; 125 S Ct 2410; 162 L Ed 2d 129 (2005), to contend that defendant's failure to give race-neutral reasons should show support for an inference of discrimination. But defendant did not refuse to provide race-neutral reasons for his challenge. He was never asked for his reasons. Therefore, there was no refusal to answer and the quoted material from Johnson is inapplicable to this case. Id., 545 US ___ n 6; 125 S Ct 2418 n 6; 162 L Ed 2d 140 n 6.

4

9


pursuant to the second Batson step. 97.

Batson, supra at 94,

Instead of that, the judge combined all the Batson steps into one and placed the burden on defendant to

counter his erroneous ruling. the burden in this manner.

It is impermissible to shift Purkett, supra at 768. Given

that shifting the burden is error in itself, it cannot constitute a cure for the judge's other errors as the lead opinion concludes. The lead opinion states, "Even if the trial court's prima facie findings were inadequate, that inadequacy would not be outcome determinative because defendant subsequently offered an explanation for his challenges." As noted above, this simply did not Ante at 26. Defense

happen.

counsel's comments were directed to the first Batson step. Being that a prima facie case was never established, the burden never shifted to defendant, and he was not required to offer race-neutral reasons. Hence, the court's failure

must have been outcome determinative. The lead opinion attempts to support its position by quoting Hernandez v New York, 500 US 352, 359; 111 S Ct 1859; 114 L Ed 2d 395 (1991). But this reliance is

misplaced.

First, the quotation is drawn from a plurality

opinion that, under the doctrine of stare decisis, is not

10


binding. (1976).

Negri v Slotkin, 397 Mich 105, 109; 244 NW2d 98

Second, the quotation is taken out of context.

One

has only to read the sentence above it to understand the Supreme Court's true meaning. rights case: It quotes a Title VII civil

"`[W]here the defendant has done everything

that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.'" quoting United States Postal Hernandez, supra at 359, Bd of Governors v

Service

Aikens, 460 US 711, 715; 103 S Ct 1478; 75 L Ed 2d 403 (1983). The Supreme Court plurality in no place states

that, as long as a court rules on Batson's third step, the first step can be ignored. Rather, it observes that a

defendant may concede the first Batson step by moving the discussion to the second step. This is a far cry from what

the lead opinion claims Hernandez stands for. But even if this section of Hernandez were controlling precedent, it would not apply to this case. Here, Instead,

defendant did not concede the first Batson step.

counsel's comments were specifically directed at rebutting the claim of a prima facie case. It was not defendant who It was the trial first and second

moved the process beyond the first step. court that improperly passed over the

11


steps

of

Batson.

Given

this

situation,

the

Hernandez

plurality opinion simply does not apply. II. A BATSON ERROR The lead opinion concedes
IS

STRUCTURAL that Batson errors are

subject to automatic reversal, but I find it important to explain issue why nearly the every same court that has considered includes the the

reached

conclusion.5

This

United States Supreme Court, because Batson itself ordered an automatic reversal. Batson, supra at 100.

The Supreme Court gave this reasoning for requiring automatic reversal: "[W]hen a petit jury has been selected

upon improper criteria or has been exposed to prejudicial publicity, we have required reversal of the conviction

because the effect of the violation cannot be ascertained." Vasquez v Hillery, 474 US 254, 263; 106 S Ct 617; 88 L Ed 2d 598 (1986). This is in line with the appropriate

handling of all structural errors. The Supreme Court articulated the difference between trial error and structural error in Arizona v Fulminante, 499 US 279; 111 S Ct 1246; 113 L Ed 2d 302 (1991). A trial

5

(CA 6, 1998), 1998), 1997),

See United States v McFerron, 163 F3d 952, 955-956 1998), United States v Hall, 152 F3d 381, 408 (CA 5, Tankleff v Senkowski, 135 F3d 235, 249-250 (CA 2, United States v Underwood, 122 F3d 389, 392 (CA 7, and Ford v Norris, 67 F3d 162, 170-171 (CA 8, 1995).

12


error occurs during the presentation of the case to the jury. It can be quantitatively assessed in the context of

other evidence for the purpose of determining whether it was harmless beyond a reasonable doubt. Id. at 307-308.

A structural error, on the other hand, affects the framework of the trial proceeding. error in presenting the proofs of It is more than a mere guilt. Id. at 310.

When a structural error occurs, a criminal trial cannot serve as a reliable vehicle for the determination of guilt. No criminal punishment could be fair if structural error existed in the framework of the trial. Although no constitutional Id. exists with

guarantee

regard to them, Batson errors resulting in a denial of the use of peremptory challenges must be structural. They

attack the fundamental framework of the trial proceeding. They change the very makeup of the jury. occur during the presentation of evidence. do not involve evidence, they cannot be And they do not Given that they quantitatively This fact is a

assessed in the context of other evidence.

further indicator that they are not in the nature of trial errors. Id. Id. at

Structural errors require automatic reversal.

309-310; People v Cornell, 466 Mich 335, 363 ns 16-17; 646 NW2d 127 (2002). Therefore, once we conclude that a Batson

13


error existed, we must automatically reverse a conviction. Because this is exactly what the Court of Appeals did, I would affirm its decision

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