Opinion
No. 233234.
October 2, 2003 at 9:00 a.m.
Appeal from Wayne Circuit Court, LC No. 99-009228.
Before: Wilder, P.J., and Fitzgerald and Zahra, JJ.
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, arising from the July 29, 1999, robbery and shooting deaths of Chanel Roberts and Amanda Hodges. Defendant was sentenced to concurrent terms of mandatory life imprisonment without parole for each of the felony-murder convictions and life imprisonment for the armed robbery and conspiracy to commit armed robbery convictions. Defendant appeals as of right.
The most contested issue presented on appeal is whether the trial court's failure to strictly follow the three-step procedure set forth in Kentucky v. Batson, 476 U.S. 79; 106 S.Ct. 1712; 90 L.Ed.2d 69 (1986), for determining whether there has been an improper exercise of peremptory challenges amounted to structural error not subject to harmless error analysis. We conclude that under the facts presented in this case, the trial court's error is not structural error, but rather preserved, nonconstitutional error. Because defendant failed to demonstrate that it was more probable than not that a miscarriage of justice occurred, People v. Lukity, 460 Mich. 484; 495-496; 596 N.W.2d 607 (1999), we conclude the trial court's failure to strictly adhere to the Batson procedures is not error requiring reversal. We affirm defendant's convictions in all respects except for our conclusion that the constitutional provision against double jeopardy prevents defendant from being convicted of both felony murder and the underlying felony of armed robbery. Accordingly, defendant's armed robbery convictions and sentences must be vacated. We affirm in part and vacate in part.
I. Facts and Procedure A. Facts Elicited at Trial
Reginald and Isiah Murray operated an escort service that employed the victims in this case, Roberts and Hodges. Defendant and two of his codefendants, Troy King and Matthew Bell (defendant's cousin), provided security for the female employees of the escort service. On July 28, 1999, Roberts, accompanied by King, collected approximately $4,000 from the Murray brothers. Thereafter, Achleng Dobbs (King's cousin) drove King and Roberts to Ann Arbor, where Dobbs rented a car for Roberts. Roberts paid for the car with cash.
Isiah Murray testified that Matthew Bell never worked for the escort service. However, Reginald Murray testified that Matthew Bell did indeed work for the escort service.
Defendant lived with Darrell Deed and Richard Bell (defendant's cousin) in a house at 8066 Marlowe Street in Detroit. At about 11:00 a.m. on July 29, 2000, Matthew Bell and King stopped by the house. King called Dobbs and told him that he needed the rental car so that he could "hit a lick." Deed testified that he heard King and understood this phrase to mean "to rob someone." King told Dobbs that he needed the car quickly so that he could "pick the girls up." He also mentioned that "the girls had the money." Defendant and Matthew Bell were sitting at the dining room table, about twenty feet away from King, during this conversation. While King was waiting for Dobbs to arrive, he, defendant, and Matthew Bell sat at the table talking. When Dobbs arrived in the car, King left with Dobbs and picked up Roberts. Outside of Roberts' presence, King told Dobbs, "I'll rob her. I did it before."
In contrast, defendant testified that he was attending a funeral at the time, and that he did not return to 8066 Marlowe until 6:30 p.m.
At approximately 6:00 p.m., King came back to the house on Marlowe, accompanied by Roberts and Hodges. The Murray brothers had paid Hodges $1,200 that day. King, Roberts, and Hodges joined defendant, Deed, Matthew Bell, and Richard Bell on the porch. Matthew Bell then escorted Hodges into the house, where music was playing at a high volume, and into the basement, where he shot and killed Hodges. Shortly after that, the people on the porch moved inside the house. Defendant, King, and Roberts sat at the dining room table. Matthew Bell came back upstairs. Roberts was shot by Mathew Bell while seated at the dining room table. Deed testified that he did not hear anyone scream or see anyone express shock or surprise at what happened. Richard Bell and Deed left the house immediately after the shootings. Defendant helped Matthew Bell take Roberts' body to the basement.
In contrast, defendant testified that, when he arrived at the Marlowe house at approximately 6:30 p.m., King, Deed, and Matthew Bell were already at the house.
Matthew Bell and King later left the house, leaving the victims' bodies on the basement floor next to defendant's bedroom. When Deed returned to the house, defendant asked Deed if he would help move the bodies. When Deed declined, defendant left the house and returned with Donald Brown (defendant's father), who brought his pickup truck. Defendant and Brown wrapped the bodies in sheets, tied them up with electrical cords, placed them in Brown's truck, and drove to a nearby park, where they dumped the bodies. On the following morning, defendant and Deed cleaned up the blood in the basement. Defendant told Deed that the two victims were killed for their money, which totaled about $4,000 or $5,000.
B. Jury Selection and the Trial
During the jury selection for defendant's trial, defendant's trial counsel attempted to exercise a peremptory challenge to strike potential juror number 10, who was Caucasian. Juror 10 stated during voir dire that three of his friends were high-ranking police officers, but that he "wouldn't think" that this fact would make a difference to him in bringing back a verdict of not guilty. When defense counsel attempted to exercise a peremptory challenge to excuse this juror, the trial court concluded that defendant's peremptory challenge was based on race and disallowed the challenge.
Later, during voir dire conducted by the trial court, defense counsel sought to strike juror number 5, another Caucasian juror, despite juror 5's statement that he promised to be fair to both sides. This prompted the prosecutor to object, claiming that defendant was attempting to strike juror 5 on the basis of his race, contrary to Batson, supra. The trial court "disallow[ed] the challenge, for the same reasons as asserted before." Consequently, juror 5 and juror 10 sat on the jury that convicted defendant, notwithstanding defense counsel's attempts to remove these jurors peremptorily.
Defendant stood trial with King and Matthew Bell as codefendants. At the close of the prosecution's case, the trial court granted defendant's motion for directed verdict of acquittal on the charges of first-degree premeditated murder, MCL 750.316, and conspiracy to commit firstdegree premeditated murder, MCL 750.316 and MCL 750.157a, but denied the motion as to the remaining charges. Defendant was convicted of two counts of first-degree felony murder, two counts of armed robbery, and one count of conspiracy to commit armed robbery.
King was convicted of two counts of armed robbery and conspiracy to commit armed robbery. Matthew Bell's jury was apparently unable to reach a verdict and a mistrial was declared. On retrial, he was convicted of first-degree premeditated murder, first-degree felony-murder, two counts of armed robbery, conspiracy to commit armed robbery, and felony-firearm.
II. Analysis A. Peremptory Challenges
Defendant argues that his constitutional right to due process, as well as his Sixth Amendment right to trial by an impartial jury, was violated when the trial court refused to allow him to exercise peremptory challenges to excuse two jurors without following the procedure set forth in Batson, supra at 96-98. In Batson, supra at 89, 96-98, the Court made clear that a prosecutor may not exercise peremptory challenges to strike jurors solely on the basis of their race and set forth a three-step test for determining whether there has been an improper exercise of peremptory challenges in criminal or civil proceedings. The United States Supreme Court has reaffirmed Batson's three-step test for determining whether there has been an improper exercise of peremptory challenges in criminal or civil proceedings. See, e.g., Miller-El v. Cockrell, 537 U.S. 322; 123 S.Ct. 1029; 154 L.Ed.2d 931 (2003), on remand 330 F.3d 690 (CA 5, 2003); Georgia v. McCollum, 505 U.S. 42; 112 S.Ct. 2348; 120 L.Ed.2d 33 (1992), on remand 422 S.E.2d 866 (Ga, 1992). Under Batson, supra at 96-98, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination (step three). Id.; Hernandez v. New York, 500 U.S. 352, 358-359; 111 S.Ct. 1859; 114 L.Ed.2d 395 (1991).
Defendant is African-American and the two victims were Caucasian.
Although the Court declined in Batson to express a view "on whether the Constitution imposes any limit on the exercise of peremptory challenges by defense counsel," id. at 89 n. 12, later cases have held that under the Equal Protection Clause, a defendant may not exercise a peremptory challenge to remove potential jurors solely on the basis of the juror's gender, ethnic origin, or race. See, e.g., United States v. Martinez-Salazar, 528 U.S. 304, 315; 120 S.Ct. 774; 145 L.Ed.2d 792 (2000), on remand 278 F.3d 1357 (CA 9, 2002).
Defendant argues that the trial court failed to comply with the Batson test when it refused to allow him to use peremptory challenges to excuse juror 5 and juror 10. In regard juror 10, defendant argues that the trial court erred because it sua sponte raised the Batson challenge. Although Batson does not explicitly address whether a trial court may sua sponte raise a Batson challenge, it is clear from the reasoning of Batson and its progeny that the United States Supreme Court recognizes a trial court's authority to bring such a challenge on its own to ensure the integrity of the judicial process. See Rose v. Mitchell, 443 U.S. 545, 555-556; 99 S.Ct. 2993; 61 L.Ed.2d 739 (1979) (noting that racial discrimination in the selection of jurors "casts doubt on the integrity of the judicial process"). Specifically, Batson, supra at 87-88, recognized that the Equal Protection Clause protects not only the rights of the criminally accused, but also the rights of individual jurors not to be excluded from the jury pool on account of their race, and the right of society as a whole to rely upon the integrity of the judicial system. The Supreme Court in its subsequent decisions has forcefully reiterated these points. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 624; 111 S.Ct. 2077; 114 L.Ed.2d 660 (1991), on remand 943 F.2d 551 (CA 5, 1991) ("By enforcing a discriminatory peremptory challenge, the court has not only made itself a party to the biased act, but has elected to place its power, property and prestige behind the alleged discrimination" [internal quotation marks and brackets omitted]); McCollum, supra, at 49-50 ("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" [internal quotation marks and brackets omitted]).
There is no dispute that defendant had not exhausted his peremptory challenges.
Virtually all state courts addressing whether a trial court may sua sponte raise a Batson challenge have concluded that, subject to the Equal Protection Clause, it is within the discretion of the trial court to conduct a Batson hearing, even absent an objection. See Washington v. Evans, 998 P.2d 373, 379 (Wash.App., 2000) (a trial judge has the discretion to raise a Batson issue sua sponte to protect the rights secured by the Equal Protection Clause); Pennsylvania v. Carson, 741 A.2d 686, 695-696 (Pa, 1999) (to allow the trial court to sua sponte raise the issue of a discriminatory peremptory challenge would be consistent with Batson, because "dictum appearing in Batson and its progeny suggests the existence of an affirmative trial court duty to prevent the discriminatory use of peremptory challenges"); Brogden v. Maryland, 649 A.2d 1196, 1200 (Md App, 1994) (a trial court may exercise its discretion in raising a Batson challenge sua sponte, since "[a] trial judge need not sit idly by when he or she observes what he [or she] perceives to be racial discrimination in the exercise of peremptory challenges"); Lemley v. Alabama, 599 So.2d 64, 69 (Ala App, 1992) (the trial judge, as the presiding officer of the court, was authorized to conduct a Batson hearing absent an objection to ensure that discrimination did not mar the proceedings in his courtroom). The weight of authority and the persuasiveness of the reasoning clearly support the position that a trial court may sua sponte raise a Batson challenge.
Despite the Supreme Court of Pennsylvania's statements regarding the trial court's sua sponte raising of the Batson issue, the court in Carson declined "to step into the morass of `peremptory challenge jurisprudence,'" and disposed of the case by concluding that any error in the trial court's sua sponte raising of a Batson challenge did not prejudice the defendant. Carson, supra at 696.
Nevertheless, defendant asserts the trial court erred by raising a Batson challenge on its own initiative, and relies on Clarke v. Kmart Corp., 220 Mich. App. 381; 559 N.W.2d 377 (1996), in which a panel of this Court held:
Defendant argues that it was deprived of its right to a fair and impartial jury because of errors that occurred in the jury selection process. We agree. Here, the trial court's rulings regarding the seating of minority jurors demonstrate a failure to comply with the procedures outlined in Batson v. Kentucky, 476 U.S. 79; 106 S.Ct. 1712; 90 L.Ed.2d 69 (1986). The trial court, apparently on its own initiative, required defendant to state a neutral reason for its challenge to the first black juror to be challenged despite the fact that plaintiff had not even raised the issue or made an objection based upon Batson. The trial court likewise required defendant to give race-neutral reasons for challenges to two minority jurors whom defendant unsuccessfully tried to challenge peremptorily later in the proceedings.
To compound the problem, the trial court did not require plaintiff to make a prima facie showing of discrimination, a required first step. It is well settled that the party opposing the strike must make a prima facie showing of discrimination before the burden shifts to the other party to provide a race-neutral rationale for striking the juror. Harville v. State Plumbing Heating, Inc., 218 Mich. App. 302, 319, 553 N.W.2d 377 (1996), quoting Batson, supra; Haberkorn v. Chrysler Corp., 210 Mich. App. 354, 369; 533 N.W.2d 373 (1995). In the instant case, the trial court concluded sua sponte, after hearing defendant's race-neutral reason for its first challenge to a minority juror that a prima facie case had "obviously" been made out because the juror was black. Similarly, the trial court recognized that the two other challenged jurors were minorities because one had a Hispanic surname and the other was "biracial." However, the race of a challenged juror alone is not enough to make out a prima facie case of discrimination. The mere fact that a party uses one or more peremptory challenges in an attempt to excuse minority members from the jury venire, which is at most what was shown in the instant case, is not enough to establish a prima facie showing of discrimination. People v. Williams, 174 Mich. App. 132, 137; 435 N.W.2d 469 (1989).
Furthermore, even assuming that plaintiff could have met her burden of establishing a prima facie showing of discrimination, we believe that the trial court abused its discretion in determining that defendant's reasons for seeking dismissal of the challenged jurors were not race-neutral. [ Clarke, supra at 382-384.]
We disagree with defendant's assertion that Clarke holds that it is error for a trial court to raise a Batson challenge "on its own initiative." Clark merely makes reference to the fact that the trial court raised the issue on its own initiative, and does not definitively hold that the trial court's raising of the issue sua sponte was improper. Instead, the central holding in Clark is premised upon the conclusion that the prosecution did not establish a prima facie showing of prejudice. Thus, to the extent Clarke may be read as being critical of a court raising a Batson challenge sua sponte, such language is dicta that is not binding precedent.
Defendant also argues that the court erred by failing to follow the three-step test mandated by Batson. Defendant maintains that the first step of Batson was not satisfied because there was not a prima facie showing of discrimination based on race. To establish a prima facie case of discrimination based on race, the opponent of the challenge must: (1) show that members of a cognizable racial group are being peremptorily removed from the jury pool; and (2) articulate facts to establish an inference that the right to remove jurors peremptorily is being used to exclude one or more potential jurors from the jury on the basis of race. Batson, supra at 96. It is not apparent from the trial record in this case whether there was a pattern of discrimination evinced by defense counsel's exercise of peremptory challenges that would give rise to an inference that prospective Caucasian jurors were being excluded on account of race. The trial court did not make a record of the racial identities of the prospective jurors, and the record does not otherwise reveal that information. Thus, we are unable to determine whether a prima facie case of discrimination was established.
While plaintiff claims that there was a pattern of discrimination based upon the fact that "[o]f seven defense peremptory challenges made, five were against white males," we cannot determine whether that is true because the trial court did not make a record of the racial identities of the prospective jurors.
Even assuming that a prima facie case of discrimination was established, the trial court also failed to comply with steps two and three of the Batson test. The court did not give defense counsel an opportunity to state race-neutral reasons for his peremptory challenge before disallowing the peremptory challenge. Rather, the court collapsed all three steps into one, ruling without a hearing that the juror had to be seated because "racism is being used in jury selection." This was error. See Purkett v. Elem, 514 U.S. 765, 768; 115 S.Ct. 1769; 131 L.Ed.2d 834 (1995), on remand 64 F.3d 1195 (CA 8, 1995) (deciding that the court erred by combining Batson's second and third steps into one step). The trial court further erred by seemingly placing the burden of persuasion on defendant, the proponent of the strike. While "the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation," United States v. McFerron, 163 F.3d 952, 954 (CA 6, 1998), the burden of persuasion never shifts to the party exercising the challenge. Id. at 955. Accordingly, we conclude that the trial court erred when it disallowed defendant's peremptory challenge of juror 10 without proper implementation of the three-step Batson test.
The court did not allow defense counsel to make a record of the Batson challenge until after it had ruled that it was disallowing defendant's peremptory challenge.
The trial court also failed to follow the Batson process when disallowing defense counsel's peremptory challenge to juror 5. In that instance, the prosecutor objected to defendant's strike. The trial court proceeded to disallow the challenge "for the same reasons as asserted before." The trial court failed to inquire whether there was a prima facie showing of discrimination and whether defense counsel had a race-neutral explanation for striking this prospective juror. In short, the trial court simply failed to apply Batson as mandated by the United States Supreme Court. Because the trial court failed to follow the Batson test, it erred in disallowing defendant's peremptory challenge to juror 5.
It was only after the trial court disallowed defendant's peremptory challenge of juror 5 that the prosecutor explained that she objected to the strike because there was no basis for defense counsel to challenge juror 5, unlike two other Caucasians who were peremptorily removed by defense counsel shortly beforehand. Whether the prosecutor's explanation established a prima facie case of discrimination is not clear. However, even if it did, defense counsel was never given an opportunity to provide a race-neutral explanation for his strike, and the trial court decided to "stand on the record" in leaving juror 5 on the jury.
Having concluded that the trial court erred in failing to strictly adhere to the three-pronged Batson test, we must next consider whether this error supports reversal of defendant's convictions. When error occurs in the lower court, a reviewing court must first determine whether the error was constitutional or nonconstitutional. People v. Cornell, 466 Mich. 335, 363; 646 N.W.2d 127 (2002). If the error is constitutional, then it must next be determined whether the error was a structural or nonstructural. Id. If the error is nonconstitutional or, if constitutional, it is nonstructural, then the error is subject to harmless error analysis. People v. Carines, 460 Mich. 750, 774; 597 N.W.2d 130 (1999).
Applying the above-described error review process, we conclude the error in this case is nonconstitutional in dimension and, therefore, cannot be structural. First, neither the Sixth Amendment right to an impartial jury, nor the right to due process of law guaranteed under the Fifth and Fourteenth Amendments was infringed in this case. The United States Supreme Court has repeatedly held that the right to a peremptory challenge may be withheld altogether without impairing the constitutional guarantee of an impartial jury and a fair trial. See Frazier v. United States, 335 U.S. 497, 505 n. 11; 69 S.Ct. 201; 93 L.Ed. 187 (1948); United States v. Wood, 299 U.S. 123, 145; 57 S.Ct. 177; 81 L.Ed. 78 (1936); Stilson v. United States, 250 U.S. 583, 586; 40 S.Ct. 28; 63 L.Ed. 1154 (1919); see also Swain, supra at 219. The United States Supreme Court further held in Ross v. Oklahoma, 487 U.S. 81, 88; 108 S.Ct. 2273; 101 L.Ed.2d 80 (1988), that the loss of a peremptory challenge does not constitute "a violation of the constitutional right to an impartial jury," because peremptory challenges are only "a means to achieve the end of an impartial jury." Defendant was not precluded from a trial by impartial jury, and thus, his Sixth Amendment rights were not violated.
Defendant's due process rights regarding peremptory challenges are not denied or impaired if the defendant receives that which state law provides. Ross, supra at 89. State law provides for the free exercise of peremptory challenges constitutionally constrained only by equal protection concerns as defined in Batson and its progeny. However, state law also provides a standard for reviewing procedural errors in criminal cases. The Michigan Legislature, which granted defendant the right to peremptory challenges, has also stated that a criminal conviction ought not be set aside for a procedural error except where, "after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice." MCL 769.26. The statutory provision granting peremptory challenges must be read in context with the statutory directive on procedural error in a criminal case. It is apparent that, to the extent that the statutory right to peremptory challenges is impaired, state law guarantees that a criminal conviction will only be set aside where the error results in a miscarriage of justice. Thus, because state law dictates that a harmless error analysis must apply to procedural errors, such as errors involving peremptory challenges, the mere infringement on the right to exercise peremptory challenges, without more, cannot be a violation of the constitutional guarantee to due process of law. Thus, the error in this case was nonconstitutional and subject to the harmless error analysis.
The only constitutional limitation on the statutory right of a peremptory challenge is the prohibition from exercising peremptory challenges on the basis of gender, ethnic origin, or race, which is violative of the Equal Protection Clause. Martinez-Salazar, supra at 315, citing J.E.B v. Alabama ex rel T.B., 511 U.S. 127; 114 S.Ct. 1419; 128 L.Ed. 89 (1994), on remand 641 So.2d 821 (Ala App, 1994) (gender); Hernandez, supra (ethnic origin); and Batson, supra (race). However, in the present case, defendant claims he never exercised his peremptory challenges in an unconstitutional manner. Rather, defendant claims he was denied his right to the actual use of his peremptory challenges.
Our Supreme Court has interpreted the statutory phrase "miscarriage of justice" to require reversal of a criminal conviction only where "`after an examination of the entire cause, it shall affirmatively appear' that it is more probable than not that the error was outcome determinative." Lukity, supra at 495-496, quoting MCL 769.26.
We are mindful that courts from many other jurisdictions have noted, as has our dissenting colleague, that the United States Supreme Court long ago observed in Swain v. Alabama, 380 U.S. 202, 219; 85 S.Ct. 824; 13 L.Ed.2d 759 (1965), overruled in part by Batson, supra, that the denial or impairment of the statutory right to peremptorily strike jurors constitutes error not subject to harmless error analysis. Significantly, however, the United State Supreme Court has recently retreated from the Swain dicta that is the foundation for our dissenting colleague's opinion. In United States v. Martinez-Salazar, 528 U.S. 304, 317 n. 4; 120 S.Ct. 774; 145 L.Ed.2d 792 (2000), on remand 278 F.3d 1357 (CA 9, 2002), the Supreme Court noted that "the oft-quoted language in Swain was not only unnecessary to the decision in that case . . . but was founded on a series of our earlier cases decided long before the adoption of harmless-error review."
Our dissenting colleague cites to Ogletree v. Local 79, AFL-CIO, 141 Mich. App. 738, 750; 368 N.W.2d 882 (1985), for the proposition that we are bound to follow the decision of the United States Court of Appeals for the Sixth Circuit in United States v. McFerron, 163 F.3rd 952 (CA6, 1999). We respectfully disagree, for the reason that the statement in Ogletree, that decisions on federal law by the United States Court of Appeals for the Sixth Circuit are binding on Michigan (continued_) (_continued) courts, is incorrect. It is well-settled that
[w]here federal questions are involved, the Court of Appeals is bound to follow the prevailing opinions of the United States Supreme Court. Betty v. Brooks Perkins, 446 Mich. 270, 276; 521 N.W.2d 518 (1994). Moreover, Michigan adheres to the rule that a state court is bound by the authoritative holdings of federal courts regarding federal questions when there is no conflict. Young v. Young, 211 Mich. App. 446, 450; 536 N.W.2d 254 (1995); Kocsis v. Pierce, 192 Mich. App. 92, 98; 480 N.W.2d 598 (1991). However, where an issue has divided the circuits of the federal courts of appeals, this Court is free to choose the most appropriate view. Young, supra. [ People v. Riggs, 223 Mich. App. 662; 568 N.W.2d 101 (1997) (emphasis added). See also Abela v. General Motors Corp., ___ Mich. App. ___; ___ N.W.2d ___ (2003).]
As we note infra in the body of the opinion, in United States v. Martinez-Salazar, 528 U.S. 304, 317 n. 4; 120 S.Ct. 774; 145 L.Ed.2d 792 (2000), the United States Supreme Court retreated from the dicta in Swain. Subsequently, in United States v. Patterson, 215 F.3d 776, 781 (CA 7, 2000), vacated in part on other grounds 531 U.S. 1033; 121 S.Ct. 621; 148 L.Ed.2d 531 (2000), on remand 241 F.3d 912 (CA 7, 2001), the United States Court of Appeals for the Seventh Circuit concluded that wrongful denial of one or more peremptory challenges is error subject to a harmless error analysis. Not only is Patterson the most recent federal court decision on this question, the Patterson decision created a split in the federal circuits on the issue. Furthermore, we are aware of no other federal circuit court to rely on Swain for the proposition that wrongful denial of peremptory challenges is structural error requiring reversal after Martinez-Salazar was decided. For these reasons, we conclude that we are free to reject the Sixth Circuit's holding in McFerron and instead adopt the analysis and reasoning employed in Patterson.
The Supreme Court's observations in Martinez-Salazar caused the United States Court of Appeals for the Seventh Circuit to reject the automatic reversal rule involving claims of error arising from the loss or impairment of peremptory challenges. United States v. Patterson, 215 F.3d 776, 781 (CA 7, 2000), vacated in part on other grounds 531 U.S. 1033; 121 S.Ct. 621; 148 L.Ed.2d 531 (2000), on remand 241 F.3d 912 (CA 7, 2001) (stating " Martinez-Salazar . . . pulls the plug on the Swain dictum and requires us to address the harmless-error question as an original matter"). Unrestrained by the dicta of Swain, the United States Court of Appeals for the Seventh Circuit rejected the traditional view that errors concerning peremptory challenges always affect a substantial right, and instead, applied a harmless error analysis:
A right is "substantial" when it is one of the pillars of a fair trial. Trial before an orangutan, or the grant of summary judgment against the accused in a criminal case, would deprive the defendant of a "substantial" right even if it were certain that a jury would convict. For the same reason, a biased tribunal always deprives the accused of a substantial right. Deprivation of counsel likewise so undermines the ability to distinguish the guilty from the innocent that it always leads to reversal. But "if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis." Rose v. Clark, 478 U.S. 570, 579; 92 L.Ed.2d 460; 106 S.Ct. 3101 (1986). It is impossible to group an error concerning peremptory challenges with the denial of counsel or trial before a bribed judge. When the jury that actually sits is impartial, as this one was, the defendant has enjoyed the substantial right. Peremptory challenges enable the defendants to feel more comfortable with the jury that is to determine their fate, but increasing a litigants' comfort level is only one goal among many, and reduced peace of mind is a bad reason to retry complex cases decided by impartial juries. [ Patterson, supra at 781-782 (citations omitted).]
Before Martinez-Salazar, the District of Columbia Court of Appeals followed the Swain dicta and concluded that a defendant's right to peremptory challenge was so fundamental that any infringement of that right resulted in reversal as a matter of law without the need to show actual bias. E.g., Wells v. United States, 515 A.2d 1108, 1111 (DC App, 1986), overruled by Lyons v. United States, 683 A.2d 1066 (DC App, 1996) (en banc). However, after the Supreme Court's decision in Arizona v. Fulminante, 499 U.S. 279, 310; 111 S.Ct. 1246; 113 L.Ed.2d 302 (1991), which distinguished trial errors from structural errors and concluded that only structural errors could never be deemed harmless, the District of Columbia Court of Appeals reconsidered this issue in Lyons v. United States, 683 A.2d 1066 (DC App, 1996) (en banc), rejected the automatic reversal rule and instead adopted a harmless error standard of review for errors affecting the right to exercise peremptory challenges. In concluding that a harmless error analysis applies, the court reasoned:
Critical to the [Supreme] Court's distinction between these two types of errors is that the category of "structural defect" discussed in Fulminante is limited to fundamental constitutional errors. The Court repeatedly referred to those defects it deemed "structural" as "constitutional errors," "constitutional deprivations," or "constitutional violations." Subsequent decisions have made clear that Fulminante's discussion of "structural defects" applied only to certain constitutional errors that were too fundamental to be harmless. . . .
Since it has been settled for decades that the right of peremptory challenge is not a constitutional right at all, let alone a "basic" or "fundamental" constitutional right, it follows from Fulminante that any error relating to the use of peremptory challenges cannot be regarded as a "structural defect." [ Lyons, supra at 1071 (citations omitted).]
Like the District of Columbia Court of Appeals and the United States Court of Appeals for the Seventh Circuit, we conclude that recent directives from the United States Supreme Court mandate the finding that any error infringing upon the statutory right to peremptory challenge is subject to harmless error review.
Neither the Michigan Supreme Court nor the United States Supreme Court has found structural error from error that is not of constitutional dimension. Furthermore, errors that require automatic reversal, i.e., "structural errors" have only been applied to certain constitutional errors in a "limited class" of cases. People v. Duncan, 462 Mich. 47, 51; 610 N.W.2d 551 (2000), quoting Neder v. United States, 527 U.S. 1, 8; 119 S.Ct. 1827; 144 L.Ed.2d 35 (1999), on remand 197 F.3d 1122 (CA 11, 1999). The Court in Neder stated several examples of structural error:
Indeed, we have found an error to be "structural" and thus subject to automatic reversal, only in a "very limited class of cases." Johnson v. United States, 520 U.S. 461, 468; 117 S.Ct. 1544; 137 L.Ed.2d 718 (1997) (citing Gideon v. Wainwright, 372 U.S. 335; 83 S.Ct. 792; 9 L.Ed.2d 799 (1963) (complete denial of counsel); Tumey v. Ohio, 273 U.S. 510; 47 S.Ct. 437; 71 L.Ed. 749 (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254; 106 S.Ct. 617; 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury); McKaskle v. Wiggins, 465 U.S. 168; 104 S.Ct. 2210; 81 L.Ed.2d 31 (1984) (denial of self-representation at trial); Waller v. Georgia, 467 U.S. 39; 104 S.Ct. 2210; 81 L.Ed.2d 31 (1984) (denial of public trial); Sullivan v. Louisiana, 508 U.S. 275; 113 S.Ct. 2078; 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction). [ Duncan, supra at 52, quoting Neder, supra at 8.]
The denial or impairment of a peremptory challenge has yet to fall under the "limited class of constitutional errors [that] are structural and subject to automatic reversal." Duncan, supra at 51, citing Neder, supra at 8. We decline to expand the "very limited class" of errors to include this type of error that arises from a statutory right.
Having determined that this case presents a preserved nonconstitutional error subject to harmless error analysis, reversal is warranted only if defendant establishes under a "more probable than not" standard that a miscarriage of justice occurred. Lukity, supra at 495. Defendant carries the burden of demonstrating that it is "more probable than not that the outcome would have been different without this error." Lukity, supra at 497. However, defendant produces no evidence that these two jurors who were not stricken were biased in any way, or precluded him from receiving a fair trial. Defendant never attempted to challenge these jurors for cause, which he could have done had he thought that these jurors exhibited bias or a state of mind that would prevent the jurors from rendering a just verdict. MCR 2.511(D). Defendant has made no claim that the jury that sat was biased in any way, or that answers given in voir dire by these two jurors prohibited him from having a fair trial or impartial jury. Rather, the crux of defendant's argument is that he was denied peace of mind that the jurors selected would not only be impartial, but also favorably disposed to his defense. However, as observed by the Seventh Circuit Court of Appeals, "reduced peace of mind is a bad reason to retry complex cases decided by impartial juries." Patterson, supra at 782. Consequently, because there is no evidence to establish that the denial or impairment of these peremptory challenges affected the verdict, the trial court's error in failing to adhere to Batson's three-prong test was harmless as a matter of law.
B. Sufficiency of Evidence
Defendant also argues there was insufficient evidence presented at trial to support his convictions. We disagree. When considering a challenge to the sufficiency of the evidence, this Court must consider the evidence presented at trial in the light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the charged crime were proven beyond a reasonable doubt. People v. Hunter, 466 Mich. 1, 6; 643 N.W.2d 218 (2002). Circumstantial evidence and reasonable inferences drawn from it may be sufficient to prove the elements of the crime. People v. Jolly, 442 Mich. 458, 466; 502 N.W.2d 177 (1993).
To convict a defendant of felony murder, the prosecution must prove: (1) the killing of a human being, (2) the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result, (3) while committing, attempting to commit, or assisting in the commission of any of the felonies enumerated in MCL 750.316(1)(b). People v. Tanner, 255 Mich. App. 369, 418; 660 N.W.2d 746 (2003). In People v. Turner, 213 Mich. App. 558, 569-570; 540 N.W.2d 728 (1995), overruled in part on other grounds by People v. Mass, 464 Mich. 615, 627-628 (2001), this Court set forth the elements of a conspiracy as follows:
"A conspiracy is a partnership in criminal purposes. . . . The gist of the offense of conspiracy lies in the unlawful agreement between two or more persons. . . . Establishing a conspiracy requires evidence of specific intent to combine with others to accomplish an illegal objective." [ People v. Blume, 443 Mich. 476, 481; 505 N.W.2d 843 (1993) (quotations omitted from Blume).] To prove the intent to combine with others for an unlawful purpose, it must be shown that the intent, including knowledge, was possessed by more than one person. Id. at 482. A defendant may become a member of an existing conspiracy if he cooperates knowingly to further the object of the conspiracy, although mere knowledge that someone proposes unlawful action is alone not enough. Id. at 483-484. For intent to exist, the defendant must know of the conspiracy, know of the objective of the conspiracy, and intend to participate cooperatively to further that objective. Id. at 485.
It was the prosecution's theory that defendant aided and abetted the robbery and killing of Roberts and Hodges. To support a finding that a defendant aided and abetted in committing an offense, the prosecution must show that (1) the crime charged was committed by the defendant or some other person, (2) the defendant performed acts or gave encouragement that assisted the commission of the crime, and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time that he gave aid and encouragement. Tanner, supra at 418-419. All forms of assistance are included within the scope of the aiding and abetting theory. People v. Usher, 196 Mich. App. 228, 233; 492 N.W.2d 786 (1992), overruled in part on other grounds by People v. Perry, 460 Mich. 55 (1999). An aider and abettor must have the same requisite intent as that required of a principal. People v. Barrera, 451 Mich. 261, 294; 530 N.W.2d 748 (1996). Thus, "`"the prosecutor must show that the aider and abettor had the intent to commit not only the underlying felony, but also to kill or cause great bodily harm, or had wantonly and willfully disregarded the likelihood of the natural tendency of this behavior to cause death or great bodily harm."'" Tanner, supra at 419, quoting Turner, supra at 567, quoting People v. Flowers, 191 Mich. App. 169, 178; 477 N.W.2d 473 (1991).
In Usher, supra at 232-233, this Court distinguished the substantive crime of accessory after the fact from aiding and abetting another in the commission of a crime:
A person is an accessory after the fact when, after obtaining knowledge of the principal's guilt after the completion of the crime, he renders assistance in an effort to hinder the detection, arrest, trial, or punishment of the principal.
In contrast, to be convicted of aiding and abetting first-degree murder a defendant must either himself commit the first-degree murder or participate in the crime while knowing that a coparticipant possessed the requisite intent. Aiding and abetting includes all forms of assistance rendered to the perpetrator of the crime.
The distinction between the two crimes depends upon when the defendant's intent was formed and whether the assistance was rendered before, during, or after completion of the crime. The Criminal Jury Instructions explain the difference by providing that an aider and abettor must know about and intend to further the commission of the crime before it is completed and must do some act or give some encouragement that helps in the commission; an accessory after the fact helps the person who committed the crime only after the crime has ended. CJI 8:2:02, now CJI2d 8.7. [Citations omitted.]
See also Issue IV.
We need not consider whether there was sufficient evidence presented to the jury to sustain defendant's armed robbery convictions. As set forth later in this opinion, we vacate those convictions because they violate defendant's constitutional right against double jeopardy.
The linchpin in the prosecution's case against defendant is King's "hit a lick" statement during the phone conversation that took place in defendant's presence on July 29, 1999, before the murders. During the conversation, King stated that he needed the rental car so that he could "hit a lick," i.e., rob someone, and that he needed the car quickly because he had to go "pick the girls up" and that the "girls had the money." King's statements, in the presence of defendant and Matthew Bell, are circumstantial evidence that King, Matthew Bell, and defendant jointly planned to rob someone.
Moreover, Roberts was seated at the same table as defendant when she was shot in the head by Matthew Bell. The evidence established that defendant expressed no shock or surprise that Roberts was murdered in his presence. This evidence is probative of defendant's state of mind, supporting an inference the murders were not an unintended or unanticipated result from defendant's perspective. After the murders, defendant's house mates, Deed and Richard Bell, immediately left their home while defendant remained in the house to assist in the cover-up of the murders. Defendant arranged with Brown to wrap the victims' bodies in sheets and electrical cords and dump them in a park. On the day after the shooting, defendant further assisted in covering up the murders by cleaning the crime scene. Defendant also told Deed that the victims were killed for their money. This evidence supports an inference that defendant had information concerning the purpose of the crime and the intended results.
We acknowledge that there are other plausible ways in which this evidence could be construed. Defendant testified on his own behalf and explained that he participated in coveringup the murders out of fear for his own safety. However, the jury was charged with resolving credibility issues, see People v. Hughes, 217 Mich. App. 242, 248; 550 N.W.2d 871 (1996), and the jury construed the evidence against defendant. On appeal, we must construe the evidence in the light most favorable to the prosecution. Hunter, supra at 6. In so doing, we conclude the evidence was sufficient to support each of defendant's convictions.
C. Hearsay Testimony
Defendant next argues that the trial court committed error requiring reversal by allowing into evidence under MRE 801(d)(2)(E) the "hit a lick" statement attributed to King. Defendant maintains this statement does not qualify as a statement made in furtherance of a conspiracy pursuant to MRE 801(d)(2)(E) because the prosecution never presented independent proof of a conspiracy. We review a trial court's ruling regarding the admission of evidence for an abuse of discretion. People v. Crawford, 458 Mich. 376, 383; 582 N.W.2d 785 (1998). We conclude that he trial court did not abuse its discretion in admitting this evidence.
MRE 801(d)(2)(E) provides, in pertinent part, that "[a] statement is not hearsay if . . . [t]he statement is offered against a party and is . . . a statement by a coconspirator of a party during the course and in furtherance of the conspiracy on independent proof of the conspiracy." Hearsay statements of a coconspirator are thus not admissible as an exception to the hearsay rule unless the existence of the conspiracy is established by independent evidence. People v. Vega, 413 Mich. 773, 780; 321 N.W.2d 675 (1982). In ruling on the question, the trial court uses the preponderance of the evidence standard. Id. at 782. The order in which proofs are presented is unimportant, and a trial court may admit a coconspirator's statements contingent upon later production of the independent evidence of the conspiracy required under MRE 801(d)(2)(E). People v. Till, 115 Mich. App. 788, 794; 323 N.W.2d 14 (1982).
We conclude the prosecution provided independent proof of a conspiracy. As previously stated, "`establishing a conspiracy requires evidence of specific intent to combine with others to accomplish an illegal objective.'" Turner, supra at 570, quoting Blume, supra at 481. Circumstantial evidence is sufficient to establish a conspiracy. Here, much of the evidence previously discussed in addressing defendant's claim of insufficiency of the evidence supports a finding of conspiracy. Defendant, King, and Matthew Bell knew the victims through the escort service. King arrived at defendant's home with both victims on the night of the murders. Defendant, Matthew Bell, and others were on the front porch of the home when King arrived. Matthew Bell followed one of the victims into the basement, where he shot her twice in the head at close range. Defendant and King then escorted the second victim into the house, where she was also shot by Matthew Bell. Defendant did not express shock or surprise when he witnessed Matthew Bell shoot and kill Roberts. Defendant's conduct before and immediately after witnessing the murder of Roberts supports the conclusion that defendant expected Roberts to be murdered. Thereafter, defendant took the lead in the post-murder cover-up. Taken as a whole, this evidence supports a conspiracy by and between defendant, King, and Matthew Bell. The evidence supports the prosecution's theory there was an agreement that King would set up the murders, Matthew Bell would kill the victims, and defendant would clean up the crime scene.
D. Jury Instructions
Defendant also argues the trial court committed error requiring reversal because the instructions created a probability that defendant would be convicted of murder and armed robbery. Defendant maintains the jury instructions did not characterize accessory after the fact as a separate crime and instead characterized it as a way of aiding and abetting the underlying crimes. Defendant also argues that reversal is required because the trial court failed to instruct the jury on the essential elements of accessory after the fact.
Defendant did not object to this aspect of the jury instructions and, thus, defendant failed to preserve the issue. Unpreserved claims of instructional error are reviewed for plain error affecting defendant's substantial rights. Carines, supra at 763. "A court must properly instruct the jury so that it may correctly and intelligently decide the case." People v. Clark, 453 Mich. 572, 583; 556 N.W.2d 820 (1996). This Court reviews jury instructions in their entirety to determine if there is error requiring reversal. People v. Daniel, 207 Mich. App. 47, 53; 523 N.W.2d 830 (1994). Even if imperfect, instructions do not create an error requiring reversal if they fairly present to the jury the issues for trial and sufficiently protect the defendant's rights. People v. Piper, 223 Mich. App. 642, 648; 567 N.W.2d 483 (1997).
We conclude that the trial court's accessory after the fact instruction did not affect defendant's substantial rights. Defendant was not charged with accessory after the fact. Nonetheless, defendant's counsel requested the accessory after the fact instruction. Given the uncontested evidence that defendant was involved in efforts to remove the bodies and dispose of evidence, defendant's counsel requested the instruction for the purpose of distinguishing such conduct from that which assists the commission of an offense. Defendant's counsel requested the instruction to alert the jury that, if it found that defendant's conduct was limited solely to the cleanup efforts after the killings, that would be insufficient to support a finding of guilt under an aiding and abetting theory. On appeal, defendant claims that the trial court's accessory-after-thefact instruction made it seem that such conduct could establish guilt under an aiding and abetting theory.
An accessory after the fact is someone "`who, with knowledge of the other's guilt, renders assistance to a felon in the effort to hinder his detection, arrest, trial or punishment.'" People v. Lucas, 402 Mich. 302, 304; 262 N.W.2d 662 (1978), quoting Perkins, Criminal Law (2d ed), p. 667. CJI2d 8.6 is the standard instruction on the offense of accessory after the fact. On the other hand, CJI2d 8.7 explains how aiding and abetting differs from accessory after the fact.
CJI2d 8.6 provides:
(1) The defendant is charged with being an accessory after the fact to [ state principal offense]. An accessory after the fact is someone who knowingly helps a felon avoid discovery, arrest, trial, or punishment.
(2) To prove that the defendant is guilty, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(3) First, that someone else committed [ state principal offense]. [ State principal offense] is defined as [ summarize all the elements of the principal offense]. [The prosecutor does not have to prove that the other person has been charged with or convicted of ( state principal offense); [he/she] just has to prove that ( state principal offense) was committed.]
(4) Second, that the defendant helped the other person in an effort to avoid discovery, arrest, trial, or punishment.
(5) Third, that when the defendant gave help, [he/she] knew the other person had committed a felony.
(6) Fourth, that the defendant intended to help the other person avoid discovery, arrest, trial, or punishment.
CJI2d 8.7 provides:
(1) You must decide if the defendant is guilty of [ state principal offense] as an aider and abettor, or is guilty of being an accessory after the fact to the felony of [ state principal offense], or if [he/she] is not guilty.
(2) If the prosecutor has proven beyond a reasonable doubt that before or during the [ state principal offense] the defendant gave [his/her] encouragement or assistance intending to help another commit that crime, then you may find the defendant guilty of aiding and abetting the crime.
(3) If the prosecutor has proven beyond a reasonable doubt that the defendant knew about [ state principal offense] and helped the person who committed it avoid discovery, arrest, trial, or punishment after the crime ended, then you may find the defendant guilty of being an accessory after the fact. The felony of [ state principal offense] ends when __________.
(4) If the prosecutor has not proven either of these charges beyond a reasonable doubt, your verdict must be not guilty.
The trial court did not give CJI2d 8.6 or CJI2d 8.7, but rather the trial court charged the jury with its own abbreviated version of the accessory-after-the-fact instruction, which omitted the elements of the separate offense of accessory after the fact. Further, the trial court, without explaining the difference between being an accessory after the fact and an aider and abettor, proceeded to give the instruction for aiding and abetting.
By leaving out the elements of the offense, the trial court's own jury instruction was, arguably, plainly wrong. Daniel, supra at 53 (noting that jury instructions must include all the elements of the offense). However, defendant was not charged with accessory after the fact. Thus, this case is factually distinguishable from Daniel, where the elements excluded from the jury instructions related to a charged offense.
Defendant also claims that the trial court erred by not having the verdict form provide an option for guilty or not guilty with respect to the offense of accessory after the fact. But it was not error to omit from the verdict form the option of finding defendant guilty or not guilty of accessory after the fact because defendant was not charged with accessory after the fact and defense counsel agreed that this offense was not to be one of the possible conviction options.
Assuming, without deciding, that the trial court plainly erred by giving an incomplete instruction on accessory after the fact, we conclude that this error did not affect defendant's substantial rights because this error related only to the offense of accessory after the fact.
However, defendant was not charged with accessory after the fact. Rather, the prosecution's theory was that defendant was an aider and abettor. The trial court charged the jury with an aiding and abetting jury instruction, which accurately set forth the law on aiding and abetting.
We must presume the jury followed this instruction. Moreover, the evidence and arguments in this case do not support the conclusion that the jury may have been misled by the court's accessory-after-the-fact instruction. The prosecution sought to establish defendant's guilt on the basis of evidence of his conduct before and after the murders, and defendant defended the claim by arguing and presenting evidence that defendant's participation in the murders was limited to after-the-fact assistance to Matthew Bell and King.
It should be noted that defendant was not entitled to an accessory-after-the-fact instruction as a lesser offense option in the first instance. Because the common-law offense of accessory after the fact is not in the same class or category as murder, it is not a cognate offense of murder. People v. Perry, 460 Mich. 55, 62-63; 594 N.W.2d 477 (1999). Rather, the offense of accessory after the fact is akin to obstruction of justice and serves a very different purpose than the statute prohibiting murder. Id. at 62. Thus, because accessory after the fact is neither a necessarily included lesser offense nor a cognate lesser offense of murder, it would not have been error for the trial court to refuse to give the instruction in the context of a lesser offense option. See also Cornell, supra at 353-359 (holding that the statute on lesser offenses, MCL 768.32(1), does not authorize consideration of cognate lesser offenses), and People v. Alter, 255 Mich. App. 194, 200-201; 659 N.W.2d 667 (2003).
E. Right to Call Witnesses and Present a Defense
Defendant also argues the trial court committed error requiring reversal by refusing to allow defendant to call Jocarroll George to testify at trial. The trial court made this ruling on the grounds that George was a alibi witness and defendant failed to give timely notice of an alibi defense. Defendant maintains George was not an alibi witness. Defendant contends that the evidentiary error of excluding this witness was not harmless error because it enabled the prosecution to dismiss defendant's testimony as uncorroborated.
The trial court's decision to exclude George's testimony was based upon its application of the alibi notice statute, MCL 768.20. This Court reviews for an abuse of discretion the trial court's decision whether to permit a party to introduce alibi evidence where the party has not complied with the notice-of-alibi statute. People v. Travis, 443 Mich. 668, 679-680; 505 N.W.2d 563 (1993). To the extent that this issue involves the interpretation of a statute, our review is de novo as matters of statutory interpretation are questions of law. People v. Small, 467 Mich. 259, 261; 650 N.W.2d 328 (2002).
Defendant wanted to call George to testify that, on July 29, 1999, from 11:00 a.m. to 12:00 p.m., he was with her and other family members at a funeral. The record indicates that defendant did not notify the prosecutor of his intent to call this witness until the first day of trial. The final conference was held on May 10, 2000, and the trial did not start until November 6, 2000. Thus, the prosecutor objected when defense counsel called George as a witness and she testified that, on the morning of July 29, 1999, she had been preparing to attend a funeral. After a side bar conference, the trial court excused George as a witness. Thereafter, defendant testified that he was at a funeral in the late morning of July 29, 1999.
The basis for the trial court's decision to prevent George from testifying was that defendant had failed to give timely notice of an alibi defense under MCL 768.20(1) and (3). Under MCL 768.21, a trial court must exclude alibi evidence when a defendant fails to comply with the notice requirement of MCL 768.20(1). While defendant argues that the trial court found that George was not an alibi witness, the prosecution rightly points out that George would have testified as an alibi witness concerning the conspiracy to commit armed robbery charge. In People v. Gillman, 66 Mich. App. 419, 424; 239 N.W.2d 396 (1976), this Court stated:
MCL 768.20(1) provides, in pertinent part:
If a defendant in a felony case proposes to offer in his defense testimony to establish an alibi at the time of the alleged offense, the defendant shall at the time of arraignment on the information or within 15 days after that arraignment but not less than 10 days before the trial of the case, or at such other time as the court directs, file and serve upon the prosecuting attorney a notice in writing of his intention to claim that defense.
MCL 768.20(3) provides, in pertinent part:
Both the defendant and the prosecuting attorney shall be under a continuing duty to disclose promptly the names of additional witnesses which come to the attention of either party subsequent to filing their respective notices as provided in this section.
Alibi testimony is testimony that is offered in order to prove that the defendant was somewhere else than at the scene of the crime when the crime occurred. People v. Watkins, 54 Mich. App. 576, 580, 221 N.W.2d 437, 440 (1974). This witness did not give any testimony as to defendant's whereabouts at any time material to the theories of proof in this case. Therefore, she was not an alibi witness and we need not consider defendant's arguments in relation to her testimony or the possible rebuttal thereof.
See also People v. McGinnis, 402 Mich. 343, 345; 262 N.W.2d 669 (1978), quoting Watkins, supra at 580 ("alibi testimony has been defined as `testimony offered for the sole purpose of placing the defendant elsewhere than at the scene of the crime'"). By calling George to provide testimony that he was attending a funeral at the time King made his "hit a lick" statement, defendant was calling her as an alibi witness, with respect to the charge of conspiracy to commit armed robbery. Thus, George's testimony was properly excluded because defendant failed to satisfy the requirements of the alibi notice statute.
F. Prosecutor Misconduct
Next, defendant claims he was denied a fair trial and reversal is required because of prosecutorial misconduct arising when the prosecution argued in closing that defendant's claim that he was not present when King made the "hit a lick" statement was not corroborated. Defendant argues the prosecution improperly exploited the trial court's order precluding George from testifying and corroborating defendant's testimony in this regard. Although defendant claims that the issue was preserved because defendant's counsel objected to the prosecutor's remarks in closing argument, an examination of the trial record shows that defendant's counsel objected on the ground that the prosecutor shifted the burden of proof to defendant. By contrast, defendant argues on appeal that the prosecutor made an improper comment on the failure of defendant to call a witness to corroborate his testimony in support of his alibi defense. At trial, the trial court overruled defendant's objection, noting that the burden of proof "does not shift, and is on the People."
Given that the basis for the objection at trial is not the same basis for defendant's argument on appeal, we conclude defendant failed to preserve this issue for appellate review. Unpreserved issues are reviewed for plain error affecting substantial rights. Carines, supra at 763. Reversal is appropriate only if the alleged prosecutorial misconduct deprives defendant of a fair and impartial trial. People v. McElhaney, 215 Mich. App. 269, 283; 545 N.W.2d 18 (1996).
Generally, a prosecutor may comment on the lack of corroboration for a defendant's alibi story. People v. Fields, 450 Mich. 94, 108; 538 N.W.2d 356 (1995). Defendant argues that the general rule, which is premised upon the defendant's ability to call witnesses to support his alibi, did not apply in this case because it was not within his power to corroborate his story. Defendant cites no authority for his position. According to defendant, the prosecutor engaged in misconduct because it was the prosecutor's objection, sustained by the trial court, that prevented his alibi witness from corroborating defendant's testimony that he was at a funeral on the morning of July 29, 1999, and thus not present when King made the "hit a lick" statement.
We are not inclined to recognize an exception to the rule that a prosecutor may comment on the lack of corroboration for a defendant's alibi merely because the prosecution asserted a meritorious objection to limit defendant's alibi proofs. The evidence presented at trial was properly limited due to defendant's failure to comply with the alibi witness statute. Defendant's failure to comply with this statute should not be rewarded with an order precluding the prosecution from arguing to the jury that defendant's alibi lacks corroboration. We conclude the prosecutor's remarks in closing argument regarding the absence of evidentiary support for defendant's testimony were within the bounds of zealous advocacy. Defendant has failed to show that the prosecutor's remarks in closing argument were plain error affecting defendant's substantial rights.
G. Double Jeopardy
Finally, defendant argues and the prosecution concedes that defendant's convictions and sentences for both felony murder and the underlying felony of armed robbery violate defendant's constitutional right against double jeopardy. Defendant was convicted of two counts of felony murder and two counts of armed robbery, arising from the robbery and killing of the two victims. Defendant's convictions and sentences for both felony murder and the underlying felony of armed robbery violate his right against double jeopardy. People v. Coomer, 245 Mich. App. 206, 224; 627 N.W.2d 612 (2001). The remedy is to vacate the armed robbery convictions and sentences. Id.
III. Conclusion
In summary, we conclude that: (1) Errors that impair or deny a litigant of the statutory right to peremptory challenges are nonstructural errors subject to harmless error analysis; (2) There was sufficient evidence to support defendant's convictions; (3) The prosecution presented sufficient independent evidence of the conspiracy to support the admission of King's telephone conversation under MRE 801(d)(2)(E); (4) Defendant was not denied his constitutional right to present a defense; (5) The prosecution's closing argument was not improper; and (6) Defendant's constitutional right to be free from double jeopardy was violated by his convictions for felony murder and the underlying felonies of armed robbery.
Affirmed in part and vacated in part.
I concur with the majority's conclusion that the trial court erred by failing to follow the three-step test mandated by Kentucky v. Batson, 476 U.S. 79; 106 S.Ct. 1712; 90 L.Ed.2d 69 (1986) in ruling on defendant's peremptory challenges. But I strongly disagree with the majority's conclusion that the trial court's improper denial of defendant's right to exercise peremptory challenges of prospective jurors is subject to harmless error analysis. I would reverse defendant's conviction and remand for a new trial.
"The peremptory challenge is one of the oldest established rights of the criminal defendant." United States v. Annigoni, 96 F.3d 1132, 1136 (CA 9, 1996). Black's Law Dictionary defines "peremptory" as "imperative; absolute; conclusive." Black's Law Dictionary (1968), p. 1295. For more than one hundred years, the United States Supreme Court has recognized that peremptory challenges are "an essential part of the trial." Lewis v. United States, 146 U.S. 370, 376; 13 S.Ct. 136, 138; 36 L.Ed. 1011 (1892). The Supreme Court has also stated that the right of peremptory challenge is "one of the most important rights secured to the accused." Pointer v. United States, 151 U.S. 396, 408; 14 S.Ct. 410; 38 L.Ed. 208 (1894). Unlike the right to an impartial jury guaranteed by the Sixth Amendment, peremptory challenges are not of federal constitutional dimension. Ross v. Oklahoma, 487 U.S. 81, 88; 108 S.Ct. 2273; 101 L.Ed.2d 80 (1988). See also Stilson v. United States, 250 U.S. 583, 586; 40 S.Ct. 28; 63 L.Ed. 1154 (1919). However, a principal reason for peremptory challenges is to help secure the constitutional guarantee of trial by an impartial jury. See, e.g., Georgia v. McCollum, 505 U.S. 42, 57; 112 S.Ct. 2348; 120 L.Ed.2d 33 (1992) (peremptory challenges are "one state-created means to the constitutional end of an impartial jury and a fair trial").
In Michigan, the right to exercise peremptory challenges is codified by statute, MCL 768.12 (offenses not punishable by life imprisonment) and MCL 768.13 (offense punishable by life imprisonment), and court rule, MCR 6.412(E)(1). The court rule provides, in pertinent part:
Each defendant is entitled to 5 peremptory challenges unless an offense charged is punishable by life imprisonment, in which case a defendant being tried alone is entitled to 12 peremptory challenges, 2 defendants being tried jointly are each entitled to 10 peremptory challenges, 3 defendants being tried jointly are each entitled to nine peremptory challenges . . .
By contrast, MCL 768.13 provides:
Any person who is put on trial for an offense punishable by death or imprisonment for life, shall be allowed to challenge peremptorily twenty [20] of the persons drawn to serve as jurors, and no more. . . . In cases involving two [2] or more defendants, who are being jointly tried for such an offense, each of said defendants shall be allowed to challenge peremptorily twenty [20] persons returned as jurors, and no more. . . .
The state-based right to exercise peremptory challenges is limited, however, by the Equal Protection Clause of the Fourteenth Amendment. In Batson, supra 476 U.S. at 89, the United States Supreme Court held that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race." In McCollum, supra at 505 U.S. 59, the Supreme Court extended this rule to prohibit defendants from striking jurors solely on account of their race.
The United States Supreme Court in subsequent cases has reaffirmed Batson's three-step test for determining whether there has been an improper exercise of peremptory challenges in criminal or civil proceedings. See, e.g., Miller-El v. Cockrell, 537 U.S. 322; 123 S.Ct. 1029; 154 L.Ed.2d 931 (2003); McCollum, supra. I agree with the majority that the trial court erred by failing to follow the three-step test mandated by Batson.
The Supreme Court has long held that "[t]he denial or impairment of the right [of peremptory challenge] is reversible error without a showing of prejudice." Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 836, 13 L.Ed.2d 759 (1965), overruled on other grounds by Batson, 476 U.S. at 92-93. Thus, the trial court's improper denial of defendant's right to exercise peremptory strikes of prospective jurors is not subject to harmless error analysis. United States v. McFerron, 163 F.3d 952, 955-956 (CA 6, 1998). Indeed, nearly every United States Court of Appeals to address this issue agrees that the erroneous deprivation of a defendant's right to peremptory challenge requires automatic reversal without a requirement of a showing of prejudice. See, e.g., United States v. Gibbs, 182 F.3d 408, 435 (CA 6, 1999) (denial of right to peremptory challenge "amounts to reversible error, there is no requirement of a showing of prejudice" (citation omitted)); United States v. Hall, 152 F.3d 381, 408 (CA 5, 1998), abrogated on other grounds by United States v. Martinez-Salazar, 528 U.S. 304; 120 S.Ct. 774; 145 L.Ed.2d 792 (2000) (noting circuit's holding that doctrine of harmless error does not apply to denial or impairment of right to exercise peremptory challenges); Tankleff v. Senkowski, 135 F.3d 235, 248 (CA 2, 1998) (holding that harmless error analysis is inappropriate for Batson errors); Annigoni, supra at 1141 (declining to adopt a harmless error standard for the erroneous deprivation of the right to peremptory challenge); Ford v. Norris, 67 F.3d 162, 170 (CA 8, 1995) (holding Batson error not amenable to harmless error review); cf. Kirk v. Raymark Industries, Inc., 61 F.3d 147, 159 (CA 3, 1995) (holding that remedy for impairment or denial of right to peremptory challenges is per se reversal).
Although Batson reversed parts of Swain, Batson never addressed this issue. For that reason, Batson left intact that portion of Swain that set forth the remedial rule for such errors.
Martinez-Salazar, supra, abrogated the holding in Hall that a defendant's rights under a rule governing entitlement to peremptory strikes were not violated when the defendant exercised a peremptory challenge to remove a potential juror after the trial court erroneously refused to dismiss the potential juror for cause.
The exception is the case on which the majority relies. See United States v. Patterson, 215 F.3d 776, 781 (CA 7, 2000), vacated in part on other grounds, 531 U.S. 1033; 121 S.Ct. 621; 148 L.Ed.2d 531 (2000). Patterson, however, is factually distinguishable. In Patterson, as in the case on which Patterson relies, Martinez-Salazar, supra, the defendants were not denied the right to peremptorily challenge a specific juror, as in the present case. In Patterson, the defendant objected to the trial court's use of a struck-jury system to select jurors. The defendant argued that the system denied him the opportunity to make the best use of his peremptory challenges. In rejecting the defendant's argument, the Court noted that the jury chosen was impartial and that the defendant was given the number of peremptory challenges to which he was entitled. In Martinez-Salazar, the defendant had to use a peremptory challenge to remove a juror that he wanted to strike for cause. Thus, the objectionable juror was, in fact, removed from the jury. The defendant argued on appeal that the erroneous denial of the challenge for cause effectively denied him the right to exercise the number of peremptory challenges to which he was entitled. The Court disagreed, stating that the defendant was allowed a certain number of peremptory challenges and was given that number of peremptory challenges. Although the Court mentioned harmless error in a footnote, the Court did not apply a harmless error analysis under facts such as those presented in the present case. Neither Martinez-Salazar nor Patterson involved a trial court's denial of a defendant's peremptory challenge to a particular defendant as a result of a trial court's erroneous application of the Batson test.
I would hold that harmless error analysis is not applicable to the trial court's failure to apply the three-step Batson test and the improper denial of defendant's peremptory challenges. "When a defendant is wrongly deprived of peremptory challenges because of a trial court's erroneous application of the Batson test, the remedy is a reversal of the conviction and a remand for a new trial." McFerron, supra at 955. A Batson error involves a "structural error" that is not subject to harmless error analysis. McFerron, supra at 956. Under federal law, defendant's convictions must be reversed. See Ogletree v. Local 79, AFL-CIO, 141 Mich. App. 738, 750; 368 N.W.2d 882 (1985) (the Sixth Circuit's decisions regarding an issue of federal law are binding precedent).
The majority suggests that Ogletree wrongly concluded that decisions of federal law decided by the United States Court of Appeals for the Sixth Circuit are binding on Michigan courts. However, Ogletree has not been reversed and remains good law. The majority concedes that "Michigan adheres to the rule that a state court is bound by the authoritative holdings of federal courts regarding federal questions when there is no conflict," and then concludes that a conflict exists among the circuits because the seventh circuit decided, in a factually distinguishable case, that the wrongful denial of one or more peremptory challenges is error subject to harmless error analysis." However, the federal circuit courts are, with the exception of the seventh circuit, in agreement that the denial of one or more peremptory challenges is error not subject to harmless error analysis.
A new trial is necessary to protect defendant's right to a fair trial. The relatively unusual procedural posture of this case, involving a challenge to a defendant's peremptory challenge, distinguishes it from cases in which the prosecution strikes a prospective juror and the trial court overrules the defendant's Batson challenge. When a juror is removed from the jury, it is impossible to know what verdict the jury might have returned, had the juror been seated, and a harmless error analysis might be appropriate. But where, as here, the trial court erroneously places a juror on the jury over the objection of the defendant, and the juror participates in a guilty verdict, the error is presumptively substantial and prejudicial, and I see no appropriate remedy other than to grant defendant a new trial.