Opinion
SC: 163884 COA: 352655
10-14-2022
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andrew James GRUBER, Defendant-Appellant.
Order
On order of the Court, the application for leave to appeal the November 4, 2021 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
McCormack, C.J. (dissenting).
I dissent from the Court's denial and write separately because it isn't clear to me that the test to determine if the jury was impartial from Poet v Traverse City Osteopathic Hosp , 433 Mich. 228, 445 N.W.2d 115 (1989), is one this Court should continue to use in criminal adjudication.
Mr. Gruber was convicted of one count of first-degree criminal sexual conduct, two counts of second-degree criminal sexual conduct, and one count of accosting a minor for immoral purposes. During voir dire, a prospective juror expressed hesitation about her ability to be impartial. When asked by the court if there was anything that prohibited her from being a fair juror, the prospective juror answered, "I have three daughters, I work in an elementary school. My half-sister was abused when she was probably seven." When the court followed up and asked if the juror thought she could put those things aside to make a fair decision, she responded, "I will do my best."
She was clearer about her inability to be fair in response to Mr. Gruber's counsel, who asked her to explain her hesitancy about her ability to be fair. Counsel asked the juror whether her hesitancy meant she would have "prejudice against the Defendant," and she replied that it would. When counsel asked the juror directly whether she would be "a suitable juror" in Mr. Gruber's case, she candidly replied, "Probably not."
The court attempted to rehabilitate the juror, "just to straighten this out a little bit." The court did so by reminding her that even though it was a "[d]ifficult case," that it comes down to whether the juror can base their decision on what's said in the courtroom, "[p]ut aside any sympathy or prejudice that you may have about the topic and follow the law. And make an assessment based on the evidence and the law." The juror wasn't able to confirm that she could do that. She responded, "It's just really hard. I think – I mean, it's hard for everybody. But I think it's just a tough topic."
When the court refused to remove this prospective juror for cause, defense counsel used a peremptory challenge. Subsequently, a second prospective juror expressed concern about his ability to remain impartial. But this prospective juror eventually stated that he would be able to evaluate the evidence without prejudice according to the law. As a result, the court correctly refused to remove this prospective juror for cause. Defense counsel did not have any peremptory challenges left, and therefore, this juror was seated.
This Court announced a four-part test to determine whether a trial court erred by not granting a for-cause challenge in Poet , a civil dispute. The test requires "some clear and independent showing on the record that":
(1) the court improperly denied a challenge for cause, (2) the aggrieved party exhausted all peremptory challenges, (3) the party demonstrated the desire to excuse another subsequently summoned juror, and (4) the juror whom the party wished later to excuse was objectionable. [ Poet , 433 Mich. at 241, 445 N.W.2d 115.]
The Court of Appeals imported the test into the criminal context in People v Legrone , 205 Mich App 77, 517 N.W.2d 270 (1994), but the panel did not explain how the test mapped on to a criminal defendant's Sixth Amendment right to an impartial jury.
In applying the Poet test to Mr. Gruber's claim, the panel held that the court's decision not to excuse the first prospective juror for cause was not an abuse of discretion. People v Gruber , unpublished per curiam opinion of the Court of Appeals, issued November 4, 2021 (Docket No. 352655), pp. 3-4, 2021 WL 5141764. The panel reasoned that the first prospective juror's "ambivalence did not demonstrate that she was biased against defendant, or that she had firmly made up her mind about the case on the basis of her personal experience." Id. at 3. According to the panel, the juror's "statements were not declarations that [she] could not set aside her views. Rather, the statements demonstrate hesitancy about the ‘subject matter.’ " Id.
I disagree. While the abuse of discretion standard is high, in my view, Mr. Gruber's claim meets it. The prospective juror said she was not a suitable juror because of a personal history with the accusation at issue, and she resisted the trial court's rehabilitation attempt. See People v Lee , 212 Mich App 228, 251, 537 N.W.2d 233 (1995) (a juror does not have to be excused if the juror can set aside his or her previous opinion in order to render a fair and impartial verdict).
As a result of its holding about the first juror, the panel did not address whether the seated juror "was objectionable." Whether the seated juror "was objectionable" is a harder question, because I don't know what this standard means. The Poet decision tried to explain it in a footnote:
Furthermore, as the term "objectionable," defined in The Random House Dictionary of the English Language: Unabridged Edition as "causing or tending to cause an objection, disapproval or protest" lends itself to the concededly imprecise "know it when one sees it" standard, we submit that a determination of objectionableness does not require proof that a potential juror be excusable for cause. See Longshore [ v Fronrath Chevrolet , 527 So 2d 922, 924 n 12 (Fla App, 1988) ]. However, the articulated reasons should include factors which amount to more than mere triviality, i.e., juror Doe is objectionable because the juror is wearing bright orange jewelry or a punk rock hair cut. [ Poet , 433 Mich. at 241 n 15, 445 N.W.2d 115.]
The room between a juror who should have been excused for cause and one with an unusual hair cut is pretty vast. I am not aware of another jurisdiction with a similar standard.
Some jurisdictions apply the harmless-error standard to this claim. In those jurisdictions, the defendant must establish that the jury was not impartial to prevail. See United States v Rubin , 37 F.3d 49, 54 (CA 2, 1994) ; United States v Wharton , 320 F.3d 526, 535-536 (CA 5, 2003) ; United States v Snarr , 704 F.3d 368, 387-388 (CA 5, 2013) ; State v Hickman , 205 Ariz. 192, 196, 201, 68 P.3d 418 (2003) ; Klahn v State , 96 P.3d 472, 482-484 (Wy, 2004).
Other jurisdictions consider a trial court's failure to grant a for-cause challenge as automatically requiring reversal. See State v Odenbaugh , 82 So 3d 215 (La, 2011) ; State v Hausauer , 335 Mont. 137, 149 P.3d 895 (2006). "Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and the defendant has exhausted his peremptory challenges. An erroneous ruling depriving an accused of a peremptory challenge is a substantial violation of his constitutional and statutory rights and constitutes reversible error." Odenbaugh , 82 So 3d at 237 (citations omitted).
I would follow Louisiana and Montana's lead. For reasons that I have expressed before, see People v Kabongo , 507 Mich. 78, 151, 968 N.W.2d 264 (2021) (opinion by MCCORMACK , C.J.), the erroneous denial of a defendant's peremptory challenge requires automatic reversal because of the difficulty of showing actual prejudice. Id. at 152, 968 N.W.2d 264 ; State v Mootz , 808 N.W.2d 207, 225 (Iowa, 2012). "The rationale underlying an automatic-reversal rule in this context is precisely the same as one that drives the structural-error doctrine—the difficulty or impossibility of determining prejudice to the defendant as a result of the error." Kabongo , 507 Mich. at 153, 968 N.W.2d 264 (opinion by MCCORMACK , C.J.). See United States v Gonzalez-Lopez , 548 U.S. 140, 149 n 4, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (stating that "here, as we have done in the past, we rest our conclusion of structural error upon the difficulty of assessing the effect of the error"); see also Hausauer , 335 Mont. at 147, 149 P.3d 895 ("The District Court's failure to dismiss [juror] B.M. for cause [requiring the use of a peremptory challenge] was an abuse of discretion, and resulted in structural error which requires a new trial."); State v Campbell , 772 N.W.2d 858, 862 (Minn App, 2009) ("[A]utomatic reversal remains the appropriate remedy when a trial court erroneously denies a defendant's peremptory challenge, even after the United States Supreme Court's recent decision in Rivera v Illinois , , 129 S.Ct. 1446, 173 L.Ed.2d 320 , (2009)," because an " ‘erroneous denial of a peremptory challenge ... does not lend itself to harmless error analysis.’ ") (alteration in original), quoting State v Reiners , 664 N.W.2d 826, 835 (Minn, 2003). The cost of a court's erroneous refusal to strike a juror, resulting in a defendant's inability to strike another juror, is not measurable from a trial record; therefore, a harmfulness analysis is inappropriate.
I would have granted leave to address this question and therefore respectfully dissent from the Court's denial order.
Bernstein, J., joins the statement of McCormack, C.J.