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.
2
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
On July 29, 1999, defendant robbed and shot Chanel
Roberts and Amanda Hodges, killing both victims. Following
a jury trial, defendant was convicted of two counts of
first-degree felony murder, MCL 750.316; two counts of
armed robbery, MCL 750.529; and one count of conspiracy to
commit armed robbery, MCL 750.529 and MCL 750.157a.
Defendant was sentenced to concurrent terms of mandatory
life 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
3
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.
4
On appeal, defendant raised several claims of error,
including the claim that the trial court failed to follow
the three-step procedure mandated in Batson in disallowing
his peremptory challenges of jurors five and ten. The
Court of Appeals, in a split decision, agreed that the
trial court failed to follow the Batson procedure, but,
nevertheless, upheld defendant’s convictions.1 Judges Zahra
and Wilder concluded that the trial court’s Batson error
was not of constitutional dimension and was subject to
harmless error analysis, while Judge Fitzgerald would have
held that the error was structural and required automatic
reversal.
Defendant sought reconsideration. The Court of Appeals
granted defendant’s motion and vacated its prior opinion.2
On reconsideration, the Court held that a denial of the
statutory right to a peremptory challenge is error per se.3
Judges Zahra and Wilder concurred, stating that they were
“duty-bound” to follow the holdings in People v Miller, 411
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).
5
Mich 321; 307 NW2d 335 (1981), and People v Schmitz, 231
Mich App 521; 586 NW2d 766 (1998).
The prosecutor applied for leave to appeal, contending
that the alleged denial of defendant’s statutory right to
remove prospective jurors peremptorily was not error
requiring automatic reversal.
We granted the prosecution’s application for leave to
appeal.4 The prosecution contends that the trial court did
not err in failing to follow the procedures set forth in
Batson. 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).
6
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
7
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
8
strategy.” Id. at 339. If the trial court finds that the
reasons proffered were a pretext, the peremptory challenge
will be denied. Batson, supra at 100.
B. Application of Batson to the Facts in this Case
In Michigan, the right to exercise a peremptory
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.
9
failing to follow the three-step procedure mandated in
Batson in disallowing the challenges.
Applying the above rules to the facts in this case, we
conclude that no such error occurred.6
1. Prima Facie Showing of Discrimination Based on Race
Here, defense counsel had already exercised several
peremptory challenges and was attempting to challenge juror
ten when the trial court interrupted and requested that
counsel for both parties proceed to chambers. 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.
10
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
11
peremptory challenges. Batson and its progeny8 make clear
that a trial court has the authority to raise sua sponte
such an issue to ensure the equal protection rights of
individual jurors. See Batson, supra at 99 (“In view of
the heterogeneous population of our Nation, public respect
for our criminal justice system and the rule of law will be
strengthened if we ensure that no citizen is disqualified
from jury service because of his race.”); Georgia v
McCollum, 505 US 42, 49-50; 112 S Ct 2348; 120 L Ed 2d 33
(1992), quoting State v Alvarado, 221 NJ Super 324, 328;
534 A2d 440 (1987) (“‘Be it at the hands of the State or
the defense,’ if a court allows jurors to be excluded
because of group bias, ‘[it] is [a] willing participant in
a scheme that could only undermine the very foundation of
our system of justice--our citizens’ confidence in it.’”).
The United States Supreme Court, in Powers v Ohio, 499
US 400, 416; 111 S Ct 1364; 113 L Ed 2d 411 (1991), held
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).
12
that a criminal defendant has standing to object to a
prosecutor’s peremptory challenges. It reasoned:
The barriers to a suit by an excluded juror
are daunting. Potential jurors are not parties to
the jury selection process and have no
opportunity to be heard at the time of their
exclusion. Nor can excluded jurors easily obtain
declaratory or injunctive relief when
discrimination occurs through an individual
prosecutor’s exercise of peremptory challenges.
Unlike a challenge to systematic practices of the
jury clerk and commissioners such as we
considered in Carter [v Jury Comm of Greene Co,
396 US 320; 90 S Ct 518; 24 L Ed 2d 549 (1970)],
it would be difficult for an individual juror to
show a likelihood that discrimination against him
at the voir dire stage will recur. And, there
exist considerable practical barriers to suit by
the excluded juror because of the small financial
stake involved and the economic burdens of
litigation. The reality is that a juror dismissed
because of race probably will leave the courtroom
possessing little incentive to set in motion the
arduous process needed to vindicate his own
rights. [Id. at 414-415 (citations omitted).]
The Powers Court further stated:
The statutory prohibition on discrimination
in the selection of jurors, enacted pursuant to
the Fourteenth Amendment’s Enabling Clause, makes
race neutrality in jury selection a visible, and
inevitable, measure of the judicial system’s own
commitment to the commands of the Constitution.
The courts are under an affirmative duty to
enforce the strong statutory and constitutional
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
13
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.
14
Instead, he pointed to the racial make-up of the remaining
jurors to justify his challenges.
The trial court rejected defense counsel’s challenge
of juror ten because defense counsel had exercised seven of
nine peremptory challenges 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
15
reconsidered upon defense counsel’s objection. Defense
counsel stated:
I would bring to the Court’s attention that
the number of white males on that panel still
exceeds the number of the minorities on that
panel. Why don’t you talk about the whole racial
composition of that panel? There’s still a vast
majority of white members on that panel than it
is [sic] black members on that panel.
The 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:
16
Judge, again, if there were no other white
males on that jury, or white males were a
minority on that jury, then there may be some
persuasive force to [the assistant prosecutor’s]
argument about a Battson [sic] challenge.
That simply is not the case. The
demographics of that jury do not hold up to that
kind of a challenge.
And I think I don’t have to have a reason
for exercising a peremptory challenge.
Defense 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
17
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
18
discrimination. If he was merely attempting to disprove
the prima facie showings, defense counsel would not have
stopped there, but would have also provided race-neutral
reasons for the challenges in the event that the trial
court refused to accept his argument. Additionally, the
record indicates that defense counsel understood that he
was to provide race-neutral reasons. The prosecution
objected to the challenge of juror five because defense
counsel’s three previous peremptory challenges, including
juror five, were of Caucasian males. Defense counsel then
furnished race-neutral reasons for two of the challenges.
But with respect 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.
19
have effectively used his opportunity to provide race-
neutral reasons for his challenges, he had the opportunity.
Defendant cannot complain now that the opportunity was
insufficient.
3. Trial Court’s Decision Regarding Purposeful
Discrimination
Finally, the trial court must determine whether the
opponent of the challenge has carried the burden of
establishing purposeful discrimination. This decision may
strike, the evidence before the judge would
consist not only of the original facts from which
the prima facie case was established, but also
the prosecutor's refusal to justify his strike in
light of the court’s request. Such a refusal
would provide additional support for the
inference of discrimination raised by a
defendant's prima facie case. [Id., ___ US ___
n 6; 125 S Ct ___ n 6; 162 L Ed 2d 140 n 6.]
Justice Kelly claims that defendant did not provide
race-neutral reasons for his challenges because he was
never asked for his reasons. The trial transcript,
however, indicates that defendant did provide reasons,
which the trial court found to be race-conscious. After
the prosecutor’s objection to the exclusion of prospective
juror five, defense counsel volunteered race-neutral
reasons for excluding the two prospective jurors preceding
prospective juror five. The trial court then stated,
“That’s not an issue. The issue is the last juror.”
Defense counsel responded, “Judge, again, if there were no
other white males on the jury, or white males were a
minority on that jury, then there may be some persuasive
force to [the prosecutor’s] argument about a Battson [sic]
challenge.” The trial court then indicated, “[b]ut you
cannot use a racial basis or a gender basis for excusing
jurors.” Defense counsel responded, “And I’ve given my
reasons on the record, and . . . none of them were related
to race or gender.”
20
hinge on the credibility of the challenger’s race-neutral
explanations, but only if the challenger provided race-
neutral explanations. 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
21
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.
22
a peremptory challenge requires automatic reversal.15
Following Miller and Schmitz, however, our harmless error
jurisprudence has evolved a great deal, as has that of the
United States Supreme Court. See People v Carines, 460
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).
23
also MCL 769.26. If the error is forfeited, it may be
reviewed only for plain error affecting substantial rights.
Carines, supra.
Because the right to a peremptory challenge in
Michigan is not provided by the Michigan Constitution but,
rather, by statute and court rule, we conclude, as did the
United States Supreme Court, that the right is of 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.
24
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.
25
incurable and requires automatic reversal. She states that
the trial court failed to complete a single step of the
three-step Batson procedures and collapsed all three steps
into one. In reaching this conclusion, Justice Kelly
states that the trial court failed to scrutinize carefully
whether a prima facie case had been made.
Even if the trial court’s prima facie findings were
inadequate, 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
26
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.
27
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).
28
Appeals inferred from the record that the trial court did
not find a prima facie case of discrimination).21 Their
failure to do so, however, is not error as long as trial
courts do not shift the burden of persuasion onto the
challenger.
Justice 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).
29
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.
30
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.
31
We further hold that the trial court did not commit
clear error in finding as a matter of fact that defense
counsel exercised peremptory challenges on the basis of the
race of the prospective jurors. Accordingly, we reverse
the judgment of the Court of Appeals.
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
made the crucial credibility determination that
is afforded such great respect on appeal.”
[Quoting Perez, supra at 636 (citation omitted).]
32
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 125375
MARLON BELL,
Defendant-Appellee.
_______________________________
WEAVER, J. (concurring).
I concur in the result of the lead opinion and join
parts I to III of the opinion. As the lead opinion has
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
2
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 125375
MARLON BELL,
Defendant-Appellee.
_______________________________
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
2
effort to peremptorily strike two prospective jurors as a
constitutional Batson violation.1
To the extent that the error is considered to have
violated our court rule, the denial is not grounds for
granting a new trial unless refusal to grant a new trial is
inconsistent with substantial justice. MCR 2.613(A).
Applying this standard, I find defendant is not entitled to
a new trial.
I also join the lead opinion in questioning the
continuing viability of People v Miller, 411 Mich 321; 307
NW2d 335 (1981).
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.]
3
Because I find that the error here was harmless, under
both MCL 769.26 and MCR 2.613(A), I agree with the lead
opinion that the Court of Appeals decision must be reversed
and defendant’s convictions should be reinstated.
Clifford W. Taylor
4
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 125375
MARLON BELL,
Defendant-Appellee.
_______________________________
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).
2
During voir dire, Juror No. 10 stated that he was a close
friend of several police officers, including a “chief.” He
stated that he “wouldn’t think” that his friendships would
make a difference in his ability to make a fair decision.
He also responded, when asked if he would feel obliged to
apologize should he vote to acquit defendant, that he
“hope[d] not.”
When defense counsel peremptorily challenged Juror No.
10, the trial judge disallowed the challenge because, he
said, 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
3
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
4
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
5
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
6
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.
7
out the steps necessary for determining if a Batson error
exists. It is for us to see that they are followed.
C. THE TRIAL COURT DID NOT CURE THE ERRORS
The lead opinion concludes that the trial court cured
its errors by allowing defense counsel to respond to its
ruling. Those on the lead opinion attempt to fit the facts
of this case into Batson, rather than apply Batson to the
facts. They conclude that defense counsel should have used
his opportunity to respond to offer race-neutral reasons
for the peremptory challenges. 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
8
tailored his answers accordingly.4 This unfairly holds
defendant responsible for alleviating the court’s error.
Trial courts have a clear map to follow in Batson cases.
Given the magnitude of the error when they fail in that
endeavor, it is imperative that we hold courts responsible
for correctly applying the Batson test. Batson, supra at
99; Purkett, supra at 768.
The lead opinion concludes that defense counsel should
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.
9
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
10
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
11
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).
12
error occurs during the presentation of the case to the
jury. It can be quantitatively assessed in the context of
other evidence for the purpose of determining whether it
was harmless beyond a reasonable doubt. Id. at 307-308.
A structural error, on the other hand, affects the
framework of the trial proceeding. 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
13
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.
14
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.
15
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.
16
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).
17
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.
18
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.
19
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,
20
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.
21
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.
22
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.
23
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).
24
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.
25
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
26
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.
VI. CONCLUSION
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
27
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 125375
MARLON BELL,
Defendant-Appellee.
_______________________________
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.,
Purkett v Elem, 514 US 765, 768; 115 S Ct 1769; 131 L Ed 2d
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
321; 307 NW2d 335 (1981), and People v Schmitz, 231 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
2