If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 31, 2022
Plaintiff-Appellee,
v No. 338238
Wayne Circuit Court
JEFFREY MARTIN SIX, LC No. 16-001862-01-FH
Defendant-Appellant.
AFTER REMAND
Before: STEPHENS, P.J., and K. F. KELLY and BOONSTRA, JJ.
STEPHENS, P.J. (concurring in part, dissenting in part).
I concur, but write to depart from the majority on the issue of voir dire. Unlike the majority
I believe that the failure to allow voir dire regarding attitudes, bias and experiences with the
LGBT+ community was an abuse of discretion that deprived defendant of an impartial jury.
Defendant argues that his status as a gay man was a source of potential prejudice and was
inextricably bound up with the conduct of the trial and, as a result, the trial court should have
questioned the prospective jurors regarding potential anti-LGBT bias. I agree.
The majority has accurately outlined both the facts of the case and procedural history. The
manner in which a trial court conducts voir dire is reviewed by this Court for an abuse of discretion.
People v Williams, 241 Mich App 519, 522; 616 NW2d 710 (2000). “An abuse of discretion
occurs when the trial court’s decision falls outside the range of reasonable and principled
outcomes.” People v Baskerville, 333 Mich App 276, 287; 963 NW2d 620 (2020).
Although trial courts have wide discretion in the manner employed to achieve an impartial
jury, People v Sawyer, 215 Mich App 183, 186-187; 545 NW2d 6 (1996), when the trial court,
instead of the attorneys, conducts voir dire, “the court abuses its discretion if it does not adequately
question jurors regarding potential bias so that challenges for cause, or even peremptory
challenges, can be intelligently exercised,” Tyburski, 445 Mich at 619 (citation omitted).
Accordingly, “a trial court may not restrict voir dire in a manner that prevents the development of
a factual basis for the exercise of peremptory challenges.” People v Taylor, 195 Mich App 57, 59;
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489 NW2d 99 (1992). That is, a trial court should not limit voir dire in a manner that restricts an
“intelligent assessment of bias.” Tyburski, 445 Mich at 623.
Failure to conduct a sufficiently probative voir dire regarding prejudices that may influence
a juror’s decision does not adequately protect a litigant’s right to a fair trial and impartial jury. See
Ham v South Carolina, 409 US 524, 526-527; 93 S Ct 848; 35 L Ed 2d 46 (1973). When there
exists a “reasonable probability” that a particular prejudice might influence the jury, courts must
allow specific questioning during voir dire regarding that issue. See Rosales-Lopez v United
States, 451 US 182, 191-192; 101 S Ct 1629; 68 L Ed 2d 22 (1981); see also Ristaino v Ross, 424
US 589, 596-598; 96 S Ct 1017; 47 L Ed 2d 258 (1976) (holding that specific questions regarding
racial bias were not necessary when the circumstances of the case “did not suggest a significant
likelihood that racial prejudice might infect [the] trial.”). The critical factor for “making this
determination is whether the potentially prejudicial issue is ‘inextricably bound up with the
conduct of the trial,’ such that there is a ‘consequent need, under all the circumstances, specifically
to inquire into [the] possible [specific] prejudice in order to assure an impartial jury.’ ” Berthiaume
v Smith, 875 F3d 1354, 1358 (CA 11, 2017), quoting Rosales-Lopez, 451 US at 189.1
On remand, Serra acknowledged having concerns regarding bias against LGBT people and
indicated that, at a pretrial conference in chambers, he “made clear” that he believed “it was
essential that the jury be questioned about” anti-LGBT bias. Serra wanted to ask the prospective
jurors whether they knew any LGBT people, if they had any LGBT friends or relatives, or if they
thought that LGBT people were more likely to be dishonest or commit crimes. Serra testified that,
regarding whether prospective jurors would be questioned about LGBT issues, he “vividly
recall[ed], at the very end of the conference, the Judge saying, I find that most people can be pretty
fair about that sort of thing, most of the time, Mr. Serra.” Serra believed “that that’s pretty much
a direct quote, because that really stood out to [him], because it was at the end.”
The trial court was adamant that it did not address the issue of anti-LGBT bias because
“[i]t was a matter of trying to stay on point.” The trial court articulated its “motivation was to keep
the case focused, not confuse the jury with what [he] regarded as extraneous information . . . .”
The trial court wanted to keep the jury “focused on the issue of whether or not the defendant
committed the crimes that he was charged with, and not go off on social tangents, that . . . you may
think are important, but I didn’t think were important to this case.” To clarify, counsel asked the
trial court: “[S]o the decision to deny voir dire, on the topic of anti-L.G.B.T bias . . . was not based
on the belief by the Court that anti-gay prejudice is not a problem?” The trial court answered,
“No” and that it “ha[d] no such belief. I don’t know if it’s a problem or not a problem.”
Additionally, the trial court stated its concern was “it was not an issue in this case” and that “the
case could have been tried without the jury ever knowing that the defendant was gay.” The trial
court added: “[I]t was about as relevant as his shoe size.” Moreover, the trial court stated that it
would have allowed the voir dire, or conducted it itself, if it believed it was a “central issue in the
case” or “the credibility of a witness might be decided on the basis of an anti-L.G.B.T bias . . . .”
1
Decisions of lower federal courts are not binding on this Court, but they may be considered as
persuasive authority. People v Walker (On Remand), 328 Mich App 429, 444-445; 938 NW2d 31
(2019).
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The trial court also addressed Serra’s request to query prospective jurors about membership
in the American Family Association [AFA], an organization Serra characterized as, “dedicated
to what they call[] traditional family values” and that has “taken public positions against” same-
sex relationships and marriage. Concluding that there could be approximately 330 people in
Wayne County who were members of the AFA (based on the approximate 100,000 members of
the AFA in the United States as a whole), the trial court described the “prospects of one of them
being on a twenty-five person jury pool” in Wayne County as “virtually non-existent” and “close
to non-existent.” The trial court admitted it was “very hesitant” about asking prospective jurors
about potential membership in the AFA, just as it would have been to ask “what their religious
beliefs are . . . .” The trial court recognized, however, that “inquiring about religious beliefs might
unveil some indication of a possible anti-gay bias,” although it “suspect[ed] that our appellate
courts would not condone, or approve” of inquiries into jurors’ “religious beliefs, or social beliefs,
or what political party they belong to, and so on.” Counsel referenced several public opinion polls
from Michigan, including one from the year in which defendant’s trial was held. That specific
poll showed “over a third of the people polled, voters, potential jurors, uhm [sic], had anti-gay
marriage attitudes.” Counsel believed that “in a case where the theory of defense was that,
[defendant] was framed by [his] lover, who [he] trusted so much, and why [he] was so gullible,”
those polls provided a compelling reason to “explore juror bias” related to the LGBT community.
The trial court also explained that when it revoked defendant’s jury waiver, it had “some
reason” to take “a deep dive into the defense’s conspiracy theory” regarding Orsette’s
involvement. The trial court stated that “defendant’s conspiracy theory” was “very convoluted”
and “essentially irrelevant” because the prosecution’s evidence against defendant for the crimes
with which he was charged was “apparent.” Defendant’s theory was also described by the trial
court as “far[]fetched” and “just off point,” while the prosecution’s case was described as “pretty
strong, and pretty clear, and fairly simple . . . .” Thus, the trial court “pretty much” overruled “the
defense’s ability to . . . try to float that conspiracy theory.” The trial court also noted that Orsette
refused to testify, so there “wasn’t even any way” for Serra to have “proven, with competent
evidence, the conspiracy theory that he had in mind.” Accordingly, the trial court “didn’t really
see that the defendant’s sexual orientation was an issue[] in the case.” In fact, the trial court noted,
the prosecution’s case was tried “without any reference to the defendant’s sexual orientation.”
The trial court abused its discretion when it denied voir dire regarding anti-LGBT bias.
While the court has broad discretion in trial management, it is left to the defendant and trial counsel
to determine the theory of defense within the confines of the law. The trial court clearly articulated
its view that the theory of conspiracy arising from a failed relationship was not likely to be
successful but it did not find that the theory was contrary to the law of the state. The trial court
believed that unless the case was about same-sex relationships or marriage, queries regarding
jurors’ experience, knowledge, and attitudes regarding those issues and LGBT people generally
were irrelevant. Indeed, the trial court stated that had this been a sexual assault case with same-
sex actors, or a domestic violence case with a same-sex relationship, it “would have made a very
different call, because, then, the orientation of the parties, or one party or the other” would be “a
sort of central fact in the case.” But, the trial court stated, “that was not the case here.” The trial
court regarded the fact that defendant was in a same-sex relationship with Orsette as “extraneous
information” and it did not want to “go off on social tangents” that it “didn’t think were important
to this case.” True, the sexual orientation and relationship of defendant and Orsette were not
central issues in this case related to financial crimes. But defendant’s theory was that Orsette
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orchestrated the fraud at issue by virtue of abusing defendant’s trust in their relationship. And
because the believability of that theory depended on defendant’s credibility, attitudes regarding
issues that may affect that credibility, i.e., anti-LGBT bias, are relevant inquiries.
Moreover, the trial court and the parties were aware of defendant’s theory of the case before
trial began. As discussed earlier, Serra explained his theory of the case to the trial court and
prosecutor during an in-chambers conference. Serra also testified that, at a pretrial conference in
chambers, he “made clear” his belief that it “was essential that the jury be questioned about bias”
against the LGBT community and whether they had been, or knew anyone who had been, in an
abusive relationship. Serra “vividly recall[ed]” the trial court saying, “I find that most people can
be pretty fair about that sort of thing, most of the time, Mr. Serra.” At the remand hearing, the trial
court acknowledged being aware of defendant’s theory around the time of trial and believed it was
an “essentially irrelevant” “conspiracy theory.” Despite its awareness that defendant was in a
same-sex relationship and blamed his partner for the crimes at issue, the trial court declined to ask
any specific questions to determine whether any of the prospective jurors may harbor prejudices
against defendant based on his sexual orientation. The trial court’s failure to ask questions during
voir dire about anti-LGBT bias improperly restricted voir such that it prevented an “intelligent
assessment of bias.” Tyburski, 445 Mich at 623; see Morgan v Illinois, 504 US 719, 734-736; 112
S Ct 2222; 119 L Ed 2d 492 (1992) (explaining that, where there exists a reasonable probability
of prejudice on a specific subject, general questions regarding fairness and impartiality do not
sufficiently address the specific concern).
Additionally, there is a “reasonable possibility” that bias regarding sexual orientation may
have influenced the jury. See Rosales-Lopez, 451 US at 192. As articulated in Berthiaume:
Given the long history of cultural disapprobation and prior legal condemnation of
same-sex relationships, the risk that jurors might harbor latent prejudices on the
basis of sexual orientation is not trivial. Just two terms ago in Obergefell[ v Hodges,
576 US 644; 135 S Ct 2584; 192 L Ed 2d 609 (2015)], the Supreme Court noted
that for much of the 20th century, homosexuality was considered a mental illness,
and same-sex intimacy was prohibited by law in many states. And despite the more
recent “shift in public attitudes toward greater tolerance,” Obergefell itself is
evidence that issues regarding homosexuality continue to be debated in our society.
While some jurors are not biased based on sexual orientation, some realistically are.
[Berthiaume, 875 F3d at 1359 (citations omitted).]
The disclosure of defendant’s sexual orientation was not discreet. On direct examination,
defendant testified about his same-sex relationship with Orsette and expressed his belief that
Orsette was the one who committed the crimes at issue. On cross-examination, defendant
acknowledged that he saw his relationship with Orsette as “a miracle [sic: marital] type
relationship.” Thereafter, however, the prosecutor extensively questioned defendant about his
relationships with several other male partners, including some while he was in a relationship with
Orsette. This line of questioning appears to have served two purposes: (1) to reveal that defendant
habitually lied about his dealings with other persons and that he engaged in a pattern of false
accusations against his partners and ex-partners; and (2) to reveal that defendant associated with
other partners at the same time he allegedly had a marital-type relationship with Orsette. That is,
the prosecutor used defendant’s relationships with various men to attack defendant’s credibility.
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In a case where defendant’s credibility was of critical importance—because he claimed
that Orsette was the one who actually committed the crimes at issue and had abused his relationship
with defendant to do so—the risk that the jury’s verdict may have been influenced by “latent
prejudices on the basis of sexual orientation” is substantial. Berthiaume, 875 F3d at 1360. Again,
although defendant’s sexual orientation and the former relationship between defendant and Orsette
may not be the central issues here, defendant’s credibility was of the utmost importance. And
attitudes regarding issues that may affect that credibility—such as defendant’s sexual orientation—
are relevant inquiries that should be sufficiently probed during voir dire. The trial court declined
to ask prospective jurors about potential anti-LGBT bias because it did not believe it was relevant
to the issues at trial, despite indicating that it would have allowed such questions if “the credibility
of a witness might be decided on the basis of an anti-L.G.B.T bias . . . .” Therefore, I conclude
there was a substantial risk that defendant’s credibility may have been affected on the basis of an
anti-LGBT bias. Accordingly, the trial court’s failure to explore anti-LGBT bias during voir dire
was an abuse of discretion that deprived defendant of an impartial jury and, thus, he is entitled to
a new trial.
/s/ Cynthia Diane Stephens
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