People of Michigan v. Marlon Bell

• Court: Michigan Supreme Court
• Decided: July 21, 2005
• Docket: 125375
• Status: Published

Opinion

Michigan Supreme Court Lansing, Michigan Chief Justice: Justices:

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

JULY 21, 2005

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 125375

MARLON BELL,

Defendant-Appellee. _______________________________

BEFORE THE ENTIRE BENCH

CORRIGAN, J.

In this case, we consider whether the trial court

failed to follow the three-step process of Batson v

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 and, thus, requires automatic reversal. In

Batson, the United States Supreme Court held that a

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. Id. at 97. Finally, the

trial court must decide whether the opponent of the

challenge has proven purposeful discrimination. Id. at

100.

In this case, a prima facie showing was made that two

of defendant’s peremptory challenges were based on race.

The trial court initially erred in failing to allow

defendant to provide race-neutral reasons for the

challenges. The trial court subsequently cured this error

by allowing defendant to provide reasons for the

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. We further

conclude that the trial judge’s initial error does not

require automatic reversal. We thus reverse the judgment

of the Court of Appeals.

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 imprisonment without parole for the first-degree

felony murder convictions and life imprisonment for the

armed robbery and conspiracy to commit armed robbery

convictions.

Defendant is African-American and the two victims were

Caucasian. During jury selection, defense counsel attempted

to exercise a peremptory challenge to strike potential

juror number ten, who is Caucasian. Juror ten stated

during voir dire that three of his friends were high-

ranking police officers, but that he “wouldn’t think” that

this fact would affect his ability to be fair and

impartial. When defense counsel attempted to excuse this

juror peremptorily, the trial court disallowed the

challenge, concluding that counsel had exercised the

challenge on the basis of race. The trial court initially

refused to allow defense counsel to make a record, but

reconsidered after defense counsel expressed

dissatisfaction with the trial court’s refusal. Defense

counsel then furnished a race-conscious, rather than race-

neutral, 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 to exclude Caucasian males from the jury.

Defense counsel replied that the prosecution’s argument

would have some merit if no other Caucasian males remained

on the jury. Defense counsel also noted that the majority

of the remaining jurors was Caucasian. Defense counsel

offered no other explanation for his challenge. The trial

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.

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

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

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. Alternatively, the prosecution argues that even if

the trial court erred in failing to follow the Batson

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).

application of the law. People v Goldston, 470 Mich 523,

528; 682 NW2d 479 (2004). We review for clear error a

trial court’s decision on the ultimate question of

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, 96-

98. The prosecution in Batson attempted to exclude African-

American jurors solely on the basis of their race. Id. at

82-83. The Court determined that the prosecution’s actions

violated 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

showing of discrimination based on race. Id. at 94-97. To

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

was based on race. Id. at 96. The Batson Court directed

trial courts to consider all relevant circumstances in

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. Id.

at 97. The neutral explanation must be related to the

particular case being tried and must provide more than a

general assertion in order to rebut the prima facie

showing. Id. at 97-98. If the challenging party fails to

come forward with a neutral explanation, the challenge will

be denied. Id. at 100.

Finally, the trial court must decide whether the

nonchallenging party has carried the burden of establishing

purposeful discrimination. Id. at 98. Since Batson, the

Supreme Court has commented that the establishment of

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

Ct 1029; 154 L Ed 2d 931 (2003). The Court further stated,

“Credibility can be measured by, among other factors, the

. . . [challenger’s] demeanor; by how reasonable, or how

improbable, the explanations are; and by whether the

proffered rationale has some basis in accepted trial

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

challenge is provided by court rule and statute. According

to MCR 6.412(E)(1), a defendant is entitled to five

peremptory challenges unless an offense charged is

punishable by life imprisonment, in which case a defendant

being tried alone is entitled to twelve peremptory

challenges. Further, under MCL 768.13, “[a]ny person who

is put on trial for an offense punishable by death or

imprisonment for life, shall be allowed to challenge

peremptorily twenty of the persons drawn to serve as

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 punishable by life

imprisonment. Defendant claims that the trial court

violated his right to two of the peremptory challenges by

5 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.

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. While in

chambers, the trial court stated that it was going to

disallow the challenge because defense counsel had based

his challenges on the race of the juror. The trial court

reached this conclusion because defense counsel had

established a pattern of excusing Caucasian males.7

After defense counsel’s peremptory challenge of juror

five, the prosecution objected, reasoning that juror five

6 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”). 7 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.

was Caucasian and the two previous challenges by defense

counsel were of Caucasian males. The trial court agreed

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.

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. The Court of Appeals, however, concluded

that because the record did not reveal the racial

identities of the prospective jurors, it could not

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

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

8 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).

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 policies embodied in that prohibition. [Id. at 416 (citation omitted).]

The Supreme Court’s rationale for allowing a defendant

to raise a Batson issue supports our conclusion that a

trial court may sua sponte raise a Batson issue. Trial

courts are in the best position to enforce the statutory

and constitutional policies prohibiting racial

discrimination. Further, wrongly excluded jurors have

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

is an African-American male. While the challenged jurors

were not of defendant’s racial group, it is equally harmful

to challenge only members outside a defendant’s racial

group. Powers, supra at 415-416. The trial court

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.

9 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.

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 against Caucasian males. The

prosecution objected to defense counsel’s challenge of

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. This pattern was sufficient to raise an

inference that defense counsel was indeed excluding

potential jurors on the basis of their race. See Batson,

supra at 97 (a pattern of strikes against jurors of a

specific race may give rise to an inference of

discrimination). We thus conclude that the Court of

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

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 trial court responded by stating that defense

counsel’s reason supported its prima facie finding that

counsel had exercised the challenge on the basis of race

and upheld its disallowance of the challenge.

After the prosecutor objected to defense counsel’s

peremptory challenge of juror five, the trial court

disallowed the challenge “for the same reasons as asserted

before.” Defense counsel objected and attempted to make a

record, but the trial court interrupted him. The trial

court then allowed defense counsel to make a record, but

only after the prosecutor asked to approach the bench. The

prosecutor stated that defense counsel’s three previous

peremptory challenges, including juror five, were of

Caucasian males. Defense counsel responded by giving race-

neutral reasons for two of the challenges. The trial court

noted that it was only concerned with defense counsel’s

reasons for challenging juror five. Defense counsel

replied:

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 counsel gave no other reason for his

challenge. The trial court stated that peremptory

challenges could not be based on race and 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 race-

neutral reasons for his challenges. We conclude, however,

that these errors were cured when the trial court, almost

immediately after each challenge, permitted defense counsel

to make a record. It then based its ultimate conclusion to

disallow the challenges on defendant’s race-conscious

reasons. Because the trial court did perform the steps

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 prima facie showings of racial

discrimination. We are not persuaded by this argument.

Defense counsel never contended that the trial court and

the prosecution had not made a prima facie case of racial

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 to juror five, defense counsel merely

stated that the prosecution’s argument failed because

Caucasian males still remained on the jury. Defendant

clearly demonstrated his understanding and ability to

provide race-neutral reasons when needed. In juror five’s

case, he failed to do so.10 While defense counsel may not

10 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.

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.”

hinge on the credibility of the challenger’s race-neutral

explanations, but only if the challenger provided race-

neutral explanations. Here, defense counsel provided race-

conscious, rather than race-neutral, reasons for his

challenges. This reinforces the prima facie showings that

the challenges were based on race. Consequently, the trial

court did not clearly err in finding purposeful

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 conclusion by recognizing the

distinction between a Batson error and a denial of a

peremptory challenge. A Batson error occurs when a juror

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

is undisputed that this type of error is of constitutional

dimension and is subject to automatic reversal.12 In

contrast, a denial of a peremptory challenge on other

grounds amounts to the denial of a statutory or court-rule-

based 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 Batson, supra. 12 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). 13 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 Miller, supra at 326.

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

Mich 750, 774; 597 NW2d 130 (1999).16 Under Carines, a

nonconstitutional error does not require automatic

reversal. Id. 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 Schmitz, supra at 530-532. 16 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).

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 non-

constitutional dimension.18 Thus, under our jurisprudence,

18 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 Martinez- Salazar, 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.

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. 19 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 Martinez- Salazar 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.

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, that inadequacy would not be outcome

determinative because defendant subsequently offered an

explanation for his challenges. Further, the trial court

ruled on the ultimate question of intentional

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 of intentional discrimination, the preliminary

issue of whether the defendant had made a prima facie

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

Hernandez observes that a defendant may concede the first

Batson step by moving to the second step. We agree and

suggest that is exactly what occurred in this case. Both

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 recanted its refusal and allowed

defense counsel to provide reasons, which were race-

conscious. The trial court ultimately denied defense

counsel’s challenges, finding that defense counsel’s race-

conscious 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. Rather, if

anything, it amounted to imperfect compliance 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.

Justice Kelly incorrectly assumes that strict

adherence to the Batson procedures is constitutionally

mandated. 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

failed to comply perfectly with Batson in the past. See

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 intent was not clearly

erroneous.”); Saiz, supra (the United States Court of

20 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).

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 Kelly contends that the trial court, by

collapsing the three Batson steps into one, placed the

burden on defense counsel to counter the trial court’s

finding of purposeful discrimination. The record does not

support this contention. 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 race-

neutral reasons, but almost immediately reconsidered and

allowed defense counsel to make a record. Defense counsel

gave race-conscious reasons regarding 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

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

discrimination nor erred in rejecting defense counsel’s

challenges.

Justice Kelly further asserts that our discussion

regarding Miller and Schmitz is inappropriate. We

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 As stated above, in light of our current

harmless error jurisprudence, Miller and Schmitz are no

longer precedentially binding. We thus disagree with

22 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.

Justice Kelly’s conclusion that our Miller and Schmitz

discussion is inappropriate.

VI. CONCLUSION

We hold that the trial court’s initial failure to

follow the three-step process set forth in Batson was

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

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.

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).]

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

SUPREME COURT

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

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 issue because it is in response to the

dissent. Ante at 21-25, 30-31. In my opinion, such

discussion is unnecessary to the opinion and therefore is dicta. I would wait until the issue is squarely before us

before determining whether the improper denial of a

peremptory challenge is subject to structural error

analysis. Therefore, I do not join part IV or the last

paragraph of part V.

Elizabeth A. Weaver

TAYLOR, C.J. (dissenting in part and concurring in part).

I respectfully dissent from the lead opinion’s

conclusion that defense counsel provided race-conscious

reasons for the two peremptory challenges the trial court

refused to allow him to exercise. Rather, I agree with

Justice Kelly’s dissent that defense counsel’s comments

were intended only to challenge the idea that a prima facie

showing of discrimination had been made. Thus, defense

counsel’s comments were legitimate and directed only at

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 Constitution or the Michigan

Constitution. Denial of the statutory right requires

reversal of a conviction only if it resulted in a

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

entitled to a new trial. I specifically join footnote 18

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

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).

1 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.]

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

KELLY, J. (dissenting).

I dissent from the lead opinion for two reasons.

First, the trial judge erred by failing to follow the

procedures required by Batson v Kentucky, 476 US 79; 106 S

Ct 1712; 90 L Ed 2d 69 (1986). Despite the lead opinion’s

contention to the contrary, the Batson errors were

incurable. Second, the lead opinion’s dictum regarding

Miller1 is inappropriate, and, as dictum, has no legal

effect or precedential value. There is no legal basis to

overrule Miller.

I. THE BATSON RULE

The United States Supreme Court ruled in Batson that,

when selecting a jury, a prosecutor may not use a

peremptory challenge to remove a juror because of the

1 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 a peremptory challenge has an improper racial

basis.

First, the objecting party must make a prima facie

showing, based on the totality of all relevant

circumstances, that the other party discriminated in

removing the juror. Id. at 93-94. Second, the party

exercising the peremptory challenge must give a neutral

explanation for the removal, showing that it was not based

on race. Id. at 94, 97. Third, the trial judge must

determine if the objecting 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. For example, in Georgia v McCollum,2 it

stated that the United States Constitution prohibits a

criminal defendant from engaging in 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).

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, it and previous defense challenges were based on

race. Defense counsel asked to comment, but the judge

refused 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

outnumbered and exceeded the minorities on the panel. The

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

not exercise a peremptory challenge. Without asking for

defense counsel’s input, the judge stated, “We have a

jury.”

Defense counsel approached the bench and an off-the-

record 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 discussion or input from the parties, the

judge disallowed the peremptory challenge for the same

reasons he had given regarding Juror No. 10. 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. She also indicated that Juror No. 5 was a

Caucasian male. 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

the jury. He insisted that there were valid reasons to

remove the intervening jurors who were excused. One had

expressed bias towards police officers. The other, years

before, had resided on the street where the crime was

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

precedent that is binding on state courts. Moreover, the

courts may neither ignore one step nor combine the three

steps of Batson. Purkett v Elem, 514 US 765, 768; 115 S Ct

1769; 131 L Ed 2d 834 (1995). Instead, they must carefully

and individually consider each. The Batson procedure was

designed to carefully balance the free exercise of

peremptory challenges and the evils of racial

discrimination in the selection of jurors. Batson, supra

at 98-99. It was crafted specifically to 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

that a prima facie case exists does the burden shift to the

party exercising the peremptory challenge. Then the trial

court must allow that party to articulate race-neutral

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 that trial courts often fail to comply with

Batson. 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. But

an error often repeated is no less an error. In fact, what

we should draw from their research is that we must more

scrupulously hold our courts responsible for following

Batson. The United States Supreme Court has carefully laid

3 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.

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. The record does not support

this conclusion.

The trial court never articulated that a prima facie

case of discrimination had been made. Therefore, when it

allowed defense counsel to speak, counsel dwelt on the

first Batson element. He denied the existence of a

discriminatory pattern in his peremptory challenges. It

appears that he was encouraging the court to refocus and

follow the Batson procedure. Given that the court had not

completed the first step 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

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. Batson, supra at

99; Purkett, supra at 768.

have supplied a race-neutral reason for the challenges.

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

court never asked for a response and never gave counsel an

opportunity to offer one. Instead, after concluding

discussion on what should have been the first step of

Batson, the judge stopped counsel and overruled his

challenges. This was clearly erroneous. The judge was

required to ask specifically for race-neutral responses

4 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.

pursuant to the second Batson step. Batson, supra at 94,

97.

Instead of that, the judge combined all the Batson

steps into one and placed the burden on defendant to

counter his erroneous ruling. It is impermissible to shift

the burden in this manner. 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.” Ante at 26.

As noted above, this simply did not happen. Defense

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

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

(1976).

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. It quotes a Title VII civil

rights case: “‘[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.’” Hernandez, supra at 359,

quoting United States Postal Service Bd of Governors v

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,

defendant did not concede the first Batson step. Instead,

counsel’s comments were specifically directed at rebutting

the claim of a prima facie case. It was not defendant who

moved the process beyond the first step. It was the trial

court that improperly passed over the first and second

steps of Batson. Given this situation, the Hernandez

plurality opinion simply does not apply.

II. A BATSON ERROR IS STRUCTURAL

The lead opinion concedes that Batson errors are

subject to automatic reversal, but I find it important to

explain why nearly every court that has considered the

issue reached the same conclusion.5 This includes the

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 See United States v McFerron, 163 F3d 952, 955-956 (CA 6, 1998), United States v Hall, 152 F3d 381, 408 (CA 5, 1998), Tankleff v Senkowski, 135 F3d 235, 249-250 (CA 2, 1998), United States v Underwood, 122 F3d 389, 392 (CA 7, 1997), and Ford v Norris, 67 F3d 162, 170-171 (CA 8, 1995).

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. It is more than a mere

error in presenting the proofs of 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. Id.

Although no constitutional guarantee exists with

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. And they do not

occur during the presentation of evidence. Given that they

do not involve evidence, they cannot be quantitatively

assessed in the context of other evidence. This fact is a

further indicator that they are not in the nature of trial

errors. Id.

Structural errors require automatic reversal. Id. at

309-310; People v Cornell, 466 Mich 335, 363 ns 16-17; 646

NW2d 127 (2002). Therefore, once we conclude that a Batson

error existed, we must automatically reverse a conviction.

Because this is exactly what the Court of Appeals did, I

would affirm its decision.

Automatic reversal leaves no room for error on the

part of trial courts. But, as the United States Court of

Appeals for the Ninth Circuit stated, referring to Batson:

It is true that trial courts bear a heavy burden in enforcing Batson's anti-discrimination principle, given that the erroneous denial of a party's peremptory challenge has traditionally warranted automatic reversal. However, this concern was alleviated by a recent Supreme Court decision offering guidance to trial courts faced with deciding whether a particular peremptory challenge has a discriminatory motive. [United States v Annigoni, 96 F3d 1132, 1142 (CA 9, 1996), citing Purkett, supra at 767-768.]

The Supreme Court has carefully laid out the procedure

required to satisfy Batson. We must insist that trial

courts adhere to it.

III. PEREMPTORY CHALLENGES AND AUTOMATIC REVERSAL

Had no Batson errors occurred here and were the errors

under scrutiny no more than the wrongful denial of a

peremptory challenge,6 we should nonetheless issue an

6 Of course, I disagree with this assumption because I believe that Batson errors occurred. But I also question the assumption for the reason that the judge was considering Batson when deciding to deny the challenges. This means that, in denying defendant’s challenges, the judge specifically left certain individuals on the jury Footnotes continued on following page.

automatic reversal. The lead opinion’s attempt to apply

harmless error review is contrary to the decisions of most

other courts that have reviewed the issue. Moreover,

harmless error review is simply unworkable and cannot

logically apply to rulings on peremptory challenges.

The lead opinion departs from the trend set by most

other courts that have considered the application of a

harmless error analysis to peremptory challenges. It cites

United States v Martinez-Salazar,7 to demonstrate that a

harmless error analysis is appropriate here. Use of this

authority illustrates the dangers in relying on dictum.8

It is undeniable that the cited language is dictum

given that the Supreme Court concedes that it need not have

reached the issue of an appropriate remedy for the claimed

error. “Because we find no impairment, we do not decide in

this case what the appropriate remedy for a substantial

because of their race. If the judge erred in denying the peremptory challenges, he erroneously empanelled jurors because of their race under the belief that defendant was targeting members of the jurors’ race. The issue before us does not involve the typical denial of a peremptory challenge. The lead opinion has not made this distinction. 7 528 US 304; 120 S Ct 774; 145 L Ed 2d 792 (2000). 8 There is unavoidable irony in the lead opinion’s reliance on this footnote. The footnote’s purpose is to criticize the existence of dicta in Swain v Alabama, 380 US 202; 85 S Ct 824; 13 L Ed 2d 759 (1965). Martinez-Salazar, supra at 317 n 4.

impairment would be.” Id. at 317 n 4. I disagree with the

lead opinion’s assertion that the dictum of this footnote

can constitute “a significant shift” in the law.

The lead opinion’s reliance on Martinez-Salazar is

further misplaced given that the case dealt with an issue

distinct from the denial of the use of peremptory

challenges. In Martinez-Salazar, the trial court

erroneously refused to remove a juror for cause. The

defendant then used a peremptory challenge to remove the

juror. Id. at 307. The defendant was not denied the use

of his peremptory challenges. In fact, he exercised one so

that the objectionable juror did not sit in judgment of

him. Therefore, Martinez-Salazar did not deal with the

denial of a peremptory challenge, and its dictum should not

be read as a comment on the issue before us.

The distinction between peremptory denial cases and

Martinez-Salazar makes a real difference when we consider

whether harmless error review applies. In Martinez-

Salazar, the only existing error was the trial court’s

error in denying a challenge for cause. It was cured when

the defendant used a peremptory challenge to remove the

juror. Consequently, the juror took no part in the trial

proceedings. The error arose and was cured before the

trial began.

On the other hand, when a peremptory challenge is

denied, the challenged juror stays on the jury and sits in

judgment of the defendant. His or her presence permeates

the trial, and the error infects the entire case.9

The all-encompassing penetration of the error explains

why a harmless error analysis is out of place in the review

of the wrongful denial of a peremptory challenge. To

accurately make a harmless error analysis, the court would

have to determine the effect that the challenged juror had

on the verdict. In a case directly on point, the United

States Court of Appeals for the Ninth Circuit expressed the

problem in these words: “To subject the denial of a

peremptory challenge to harmless-error analysis would

require appellate courts to do the impossible: to

reconstruct what went on in jury deliberations through

nothing more than post-trial hearings and sheer

speculation.” Annigoni, supra at 1145.

Appellate courts have no record of what is said in

jury rooms and no record of what potentially subtle

influences one juror had on the others. Therefore, no

9 See State v Vreen, 143 Wash 2d 923; 26 P3d 236 (2001), People v Lefebre, 5 P3d 295 (Colo, 2000).

device exists with which to plumb the magnitude of the

error.

Unlike the typical error subject to harmless error

review discussed in Fulminante, errors in leaving

individuals on a jury cannot be quantitatively assessed in

the context of the evidence presented. Fulminante, supra

at 308. Without a means of comparison or measurement,

meaningful harmless error analysis is impossible. For this

reason, it is illogical to rule as the majority does. It

ignores the plight of courts in future cases that attempt

to follow its ruling.

Chief Justice Taylor demonstrates in his opinion

dissenting in part and concurring in part the difficulty

faced in trying to apply the harmless error standard.

Although he finds the error harmless, he offers no analysis

for his conclusion. Likely, this is because there is no

legitimate analysis, beyond mere speculation, that can be

applied. In fact, the Chief Justice has demonstrated that

the rule now created by the majority is a rule of automatic

affirmance. It defies fair appellate scrutiny.

The lead opinion implies that a rule requiring

automatic reversal would contradict MCL 769.26.10 This is

inaccurate. Allowing a peremptory challenge error to stand

would always amount to a miscarriage of justice. A

miscarriage of justice exists if it affirmatively appears

that the error undermines the reliability of the verdict.

People v Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999).

Given that an error in denying a peremptory challenge

changes the makeup of the jury, it potentially changes the

verdict. It alters the jury deliberation and interaction

process. The point of a peremptory challenge is to remove

someone who appears biased but who might not be removed for

cause. Rejecting the peremptory challenge leaves this

potentially biased or prejudiced juror on the jury,

undermining the validity of the verdict.

10 MCL 769.26 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.

Requiring automatic reversal for peremptory challenge

errors is consistent with the plain error standard of

review articulated by this Court in People v Carines, 460

Mich 750; 597 NW2d 130 (1999). Carines gave three

requirements for plain error: the error (1) must have

occurred, (2) must be clear or obvious, and (3) must affect

substantial rights. Id. at 763. Peremptory challenge

errors would always meet this standard.

A peremptory challenge error becomes obvious after the

trial court rules on an objection to it. The error is that

either a juror who should not be on a jury remains or one

who should remain does not.

These errors affect substantial rights because they

shape the jury. Peremptory challenges are a means of

eliminating extreme beliefs or partiality from a jury.

Batson, supra at 91. The right to a peremptory challenge

enables the parties to strike jurors who, although not

necessarily excusable for cause, appear biased or hostile

in some way. Therefore, the right implicates defendant’s

right to a fair and impartial trial.

Those plain errors require reversal because they

“‘“seriously [affect] the fairness, integrity or public

reputation of judicial proceedings” . . . .’” Carines,

supra at 763, quoting United States v Olano, 507 US 725,

736; 113 S Ct 1770; 123 L Ed 2d 508 (1993), quoting United

States v Atkinson, 297 US 157, 160; 56 S Ct 391; 80 L Ed

555 (1936). Given the fundamental nature of the jury

process, having an unfairly chosen jury raises serious

questions regarding the integrity and public reputation of

the judicial proceedings.11 Therefore, the errors require

automatic reversal. Id.

Because we have no tools to gauge the effect of errors

in denying peremptory challenges, a harmless error analysis

of them is simply unworkable. Therefore, such errors must

result in automatic reversal.

IV. PRIMA FACIE CASE OF DISCRIMINATION

The trial court erred in failing to follow Batson’s

three-step process, and the error is subject to automatic

reversal. Hence, the issue whether a prima facie case of

discrimination actually existed is technically irrelevant

to my dissent. But I feel that it is appropriate to

respond to the majority’s conclusion that a prima facie

case existed.

11 The lead opinion itself concedes that the exclusion of even one juror undermines public confidence in the fairness of the system. Ante at 21-22, citing 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). Therefore, it has conceded the necessity of automatic reversal.

To reach the majority’s conclusion requires not only a

strained reading of the existing law regarding Batson, but

also a strained reading of the factual record in this case.

The members of the majority attempt to save the trial

judge’s ruling by using twenty-twenty hindsight to fit his

actions into the Batson procedure. Initially, they

conclude that, despite the fact that the judge never ruled

that prima facie discrimination had occurred, his comments

equated to such a ruling.

The trial judge stated that he disallowed the

peremptory challenges because defense counsel was using his

challenges for the purpose of excluding white males. The

record does not support his conclusion. First, at least

two of the jurors that defense counsel challenged were

female. Second, the race of each challenged juror is not

in the record. Therefore, we do not know how many of the

challenged male jurors were Caucasian.12 Third, we know

from defense counsel’s comments regarding the jurors

12 The lead opinion bases its contention that the race of the excused jurors is determinable on the judge’s statement that defense counsel had repeatedly excused Caucasian male jurors. Obviously, this statement is unclear. It is well established that at least two of the challenged jurors were female. Hence, the statement is simply too inexact to determine the race of the challenged jurors, and it is inappropriate for the lead opinion to rely heavily on it.

challenged between Jurors No. 10 and No. 5 that valid

reasons existed to challenge some of the Caucasian male

jurors. Finally, we can tell from the record that the

number of Caucasian males left on the jury was either equal

to or exceeded the number of minorities on the jury.

Considering all these facts, a prima facie case of

discrimination did not exist. Batson requires a court to

carefully examine all relevant factors as well as the

totality of the circumstances in making its decision.

Batson, supra at 93-94, 96-97. The record indicates that

the judge here failed to exercise that careful scrutiny.

Instead, he rushed to a conclusion before hearing a

thorough discussion and without making an adequate

investigation.

It is true that a pattern of strikes against one

racial group in jury selection might support an inference

of discrimination. Id. at 97. But defendant countered

this alleged pattern when finally allowed to respond.13 He

indicated that his intervening peremptory challenges fit no

13 The lead opinion contends that the trial judge “almost immediately” allowed defense counsel to respond. Ante at 17-18. The record does not support this. Defense counsel and the prosecution had to demand that the judge allow them to make a record. The judge only belatedly and reluctantly allowed defense counsel to speak.

pattern. The fact that a large number of Caucasian males

remained on the jury, he argued, demonstrates that he was

not targeting such jurors. Our courts have held that a

showing that the challenged racial group continued to have

a strong representation on the jury is significant evidence

that no discriminatory intent existed. People v Eccles, 260

Mich App 379, 387-388; 677 NW2d 76 (2004); People v

Williams, 174 Mich App 132, 137; 435 NW2d 469 (1989).14

Given the weak evidence of a pattern and the fact that

Caucasian males constituted a significant portion of the

jury, the prosecution failed to make a prima facie case of

discrimination. Therefore, defense counsel did not need to

offer race-neutral reasons for his peremptory challenges.

The burden never shifted to him. The trial judge never

concluded the first Batson step. Hence, he erred in

allowing Jurors No. 10 and No. 5 to remain on the jury.

V. THE LEAD OPINION’S DICTUM REGARDING MILLER

Part IV of Justice Corrigan’s opinion concerns our

decision in Miller, supra, and the Court of Appeals

14 See also United States v Sangineto-Miranda, 859 F2d 1501, 1521-1522 (CA 6, 1988), United States v Grandison, 885 F2d 143, 147 (CA 4, 1989), Commonwealth v Clark, 551 Pa 258, 280; 710 A2d 31 (1998), and Valdez v People, 966 P2d 587, 594 (Colo, 1998).

decision in People v Schmitz, 231 Mich App 521; 586 NW2d

766 (1998). As Justice Weaver points out, the entire

section is dictum.

In Miller, the trial court diluted the defendant’s

peremptory challenge rights by using the struck jury

method.15 Miller, supra at 323. The case before us does

not deal with the dilution of a defendant’s right to

peremptory challenges. It deals with the denial of his

peremptory challenges. For this reason, Miller is clearly

distinguishable from this case.

The lead opinion concedes that its discussion of

Miller is dictum by stating that “we have concluded that

the trial court did not err in denying defense counsel’s

peremptory challenges.” Ante at 30. Because it concludes

that Miller does not apply to its decision, any discussion

of Miller must be obiter dictum. Part IV lacks the force

of an adjudication and is not binding under the principles

of stare decisis. People v Borchard-Ruhland, 460 Mich 278,

286 n 4; 597 NW2d 1 (1999). Therefore, it is of no value.

15 Under the struck jury method, all members of the jury array are called into the courtroom at once. They are questioned collectively, not individually. After the parties exhaust their preemptory challenges, the judge assembles the jury using the remaining members of the array, starting with the lowest numbers. Miller, supra at 323-324.

The issue raised in Miller is not before us, and the lead

opinion has offered no legal basis to overrule this

precedent or to support a conclusion that some former case

overruled this precedent.

Oddly enough, the lead opinion claims that I “labor[]”

to avoid reference to Miller and Schmitz. Ante at 30 n 22.

Nothing can be further from the truth. Even a cursory

reading of this section of my dissent indicates that I find

Miller irrelevant. Miller deals with a struck-jury method,

which is inapplicable to this case. Nor do I labor to

avoid referencing Schmitz. I simply found other and more

persuasive authority.

Those on the lead opinion state that they may reach

Miller because I reference it. As stated above, I would

not reference either Miller or Schmitz if the lead opinion

had not attempted to overrule them.

Contrary to the lead opinion’s statement, nothing in

my opinion would prohibit the Court from revisiting Miller

in the future. If a case actually raising a struck-jury

method should come before the Court, the issue in Miller

could be relevant and the Court could address it. There is

nothing novel in my legal conclusion that it is

inappropriate to overrule precedent in a case that

addresses issues irrelevant to the precedent. But it is

inappropriate, as a plurality of the Court does here, to

attempt to signal the future demise of the precedent in

dictum.

No case has ever explicitly overruled Miller. And the

lead opinion’s attempt today amounts to nothing more than

dictum. Therefore, Miller should remain valid law.

The trial judge erred by failing to follow the Batson

steps and by shifting the burden to defendant to disprove a

presumption of discrimination. He also erred by concluding

that a prima facie case of discrimination existed. He did

not cure these errors. Batson errors and erroneous denials

of peremptory challenges are subject to automatic reversal.

Therefore, I would affirm the decision of the Court of

Appeals, reverse defendant’s conviction, and remand the

case for retrial.

Also, no legal basis exists to overrule this Court’s

decision in the Miller case. Any comment here on Miller is

mere dictum without precedential value. I would leave

Miller unmolested.

Marilyn Kelly

CAVANAGH, J. (dissenting).

I dissent from the majority’s decision and I agree

with the result reached in Justice Kelly’s dissent. I

would likewise conclude that the trial court erred by

collapsing the three steps of Batson v Kentucky, 476 US 79;

106 S Ct 1712; 90 L Ed 2d 69 (1986), into one. See, e.g.,

834 (1995). Further, the trial court erred when it failed

to allow defendant an opportunity to articulate race-

neutral explanations for the challenges. When defense

counsel was finally allowed an opportunity to speak, I

agree with Justice Kelly and Chief Justice Taylor that

defense counsel’s comments were directed at Batson’s first

step. Thus, I would conclude that the trial court’s

failure to follow Batson was error and defendant was improperly denied the use of his peremptory challenges

because the trial court misapplied that decision.

Because the trial court erroneously denied the

peremptory challenges on Batson grounds, and Batson error

is subject to automatic reversal and not amenable to

harmless error review, I would conclude that defendant is

entitled to a new trial. See, e.g., United States v

McFerron, 163 F3d 952, 956 (CA 6, 1998) (“[W]e find that

harmless error analysis is not applicable to the district

court’s erroneous application of the three-step Batson test

and the improper denial of [the defendant’s] peremptory

challenges.”).

Further, I agree with Justices Weaver and Kelly that

the majority’s dicta regarding People v Miller, 411 Mich

App 521; 586 NW2d 766 (1998), is inappropriate given the

majority’s conclusion that the trial court ultimately did

not err.

For these reasons, I must respectfully dissent from

the majority’s decision. Accordingly, I would affirm the

decision of the Court of Appeals.

Michael F. Cavanagh