People v. Legrone

205 Mich. App. 77 (1994) 517 N.W.2d 270

PEOPLE
v.
LEGRONE

Docket No. 155256.

Michigan Court of Appeals.

Submitted March 2, 1994, at Detroit. Decided May 2, 1994, at 10:00 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Nancy A. Neff, Assistant Prosecuting Attorney, for the people.

Daniel J. Blank, for the defendant on appeal.

Before: REILLY, P.J., and GRIFFIN and C.L. BOSMAN,^[*] JJ.

REILLY, P.J.

Defendant appeals as of right his jury conviction of murder in the first degree, felony murder, MCL 750.316; MSA 28.548, armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to mandatory life imprisonment without parole for the murder conviction, a concurrent term of twenty-five to forty years for the armed robbery conviction, and a consecutive term of two years for the felony-firearm conviction. We affirm.

Defendant contends that the trial court erred in refusing to grant his motion for a new trial when a juror, who had been convicted of a felony, was permitted to remain on the jury after she had been challenged for cause by the prosecutor. A trial court's decision on a motion for a new trial is reviewed for an abuse of discretion. People v Langley, 187 Mich. App. 147, 151; 466 NW2d 724 (1991).

The challenged juror had been convicted seventeen years earlier of selling cocaine. Following a guilty plea, she was sentenced to five years of probation. In response to questions by the judge, the juror stated that she could be fair and impartial even though much of the evidence would be provided by police officers and might involve testimony regarding dealing in drugs. The judge then indicated that he was exercising his discretion and denied the challenge for cause.

The record shows that the defendant used only five of the twelve peremptory challenges available to him during jury voir dire. In addition, defendant did not object to the composition of the jury. Rather, defendant indicated that he was "very satisfied" with the jury as empaneled after the trial court denied the prosecutor's challenge for cause.

Defendant contends that the juror was not competent as a matter of law to sit on the jury and that the trial court had no discretion in the determination of the juror's competency. Defendant relies on MCR 2.511(D)(2) and MCR 6.412(D)(2) to support his position.

MCR 2.511(D)(2) provides that grounds for a challenge for cause exist where a prospective juror has been convicted of a felony.^[1] MCR 6.412(D)(1), relating to criminal procedure, provides that a prospective juror is subject to challenge for cause on any ground set forth in MCR 2.511(D) or for any other reason recognized by law. MCR 6.412(D) (2) sets forth the procedure to be followed:

If, after the examination of any juror, the court finds that a ground for challenging a juror for cause is present, the court on its own initiative should, or on motion of either party must, excuse the juror from the panel.

Defendant also cites People v Lamar, 153 Mich. App. 127, 134-135; 395 NW2d 262 (1986), and People v Badour, 167 Mich. App. 186; 421 NW2d 624 (1988), rev'd on other grounds 434 Mich. 691; 456 NW2d 391 (1990), to support his position that the trial court is without discretion to retain a convicted felon as a juror.

In Lamar, supra, this Court held that GCR 1963, 511.4, now MCR 2.511(D), requires a court to excuse a juror whenever a challenge for cause clearly falls within one of the grounds enunciated in GCR 1963, 511.4(4)-(13). In Badour, supra, as here, the defendant did not argue that she was denied an impartial jury. Rather, she asserted that reversal of her conviction was required because she was forced to use her final peremptory challenge to excuse a juror challenged under GCR 1963, 511.4(3) and (4). Neither case is applicable here, where the defendant's challenge is based upon MCR 2.511(D)(2) and defendant failed to exhaust all his peremptory challenges.

In Poet v Traverse City Osteopathic Hosp, 433 Mich. 228; 445 NW2d 115 (1989), our Supreme Court arrived at the same conclusions reached in Lamar and Badour. In Poet, the Court considered whether the plaintiffs were entitled to a new trial after the trial court denied the plaintiffs' challenge of a juror for cause under MCR 2.511(D)(5). The plaintiffs used a peremptory challenge to excuse that person. After the plaintiffs had exhausted their peremptory challenges, the plaintiffs challenged another juror for cause under MCR 2.511(D)(10) and (12). The challenge was also denied. The Court determined that the first challenge for cause was denied improperly and that the denial resulted in the use of a peremptory challenge that otherwise would have been available to remove the last juror from the panel. The Court enunciated a four-pronged test to determine whether an error in refusing a challenge for cause merits reversal:

[W]e hold that in order for a party to seek relief in this instance, there must be 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, supra at 241.]

The Court also ruled that when counsel demonstrates that a prospective juror fits one of the categories enumerated in MCR 2.511(D)(4)-(13), a trial court is required to excuse such juror for cause because "[t]his showing is equivalent to proving a biased or prejudicial state of mind." However, "[u]ltimately ... the decision to grant or deny a challenge for cause is within the sound discretion of the trial court." Poet, supra at 236.

In the case before us, even if we were to concede that the trial court erred in refusing to excuse the prospective juror because she had been convicted of a felony, reversal is not required. Defendant did not move for disqualification of the prospective juror, was "very satisfied" with the panel finally selected, and, therefore, cannot be considered the "aggrieved" party. Moreover, defendant did not exhaust all his peremptory challenges, did not demonstrate a desire to excuse any subsequently called juror, and did not show that any other juror was objectionable. Applying the Poet test to the facts presented here, defendant has failed to show that reversal is required.

Although the Poet case involved a civil matter, we believe the principles announced in that case are appropriately applied in criminal cases as well. Badour, supra at 190. When the defendant expressed satisfaction with the jury with several peremptory challenges remaining, he waived the issue whether a juror should have been excused for cause. People v Daniels, 192 Mich. App. 658, 666-667; 482 NW2d 176 (1992). Consequently, we conclude that reversal is not required because a convicted felon was permitted to sit as a juror.

We also reject defendant's contention that he is entitled to a new trial because of the prosecutor's closing argument. Questions of misconduct by the prosecutor are decided case by case. People v Mack, 190 Mich. App. 7, 19; 475 NW2d 830 (1991). On review, this Court examines the pertinent portion of the record and evaluates the prosecutor's remarks in context in order to determine whether the defendant was denied a fair and impartial trial. Id. See also, e.g., People v Saunders, 189 Mich. App. 494, 496; 473 NW2d 755 (1991).

We recognize that the prosecutor's remarks were strong, and that the trial court refused to give a curative instruction to avoid emphasizing the remarks. However, we cannot say that the remarks were unwarranted or that because of them defendant was denied a fair trial. People v Guenther, 188 Mich. App. 174, 181; 469 NW2d 59 (1991).

Finally, defendant contends that when a police detective testified that two witnesses had picked defendant out of a photographic showup, classic hearsay was injected improperly into the trial. We disagree. Third-party identification testimony by a police officer, including repetition of the statements of identification, is not hearsay, and the admission of such testimony is within the discretion of the trial court. MRE 801(d)(1); People v Newcomb, 190 Mich. App. 424, 430; 476 NW2d 749 (1991). The trial court did not abuse its discretion in refusing to grant a new trial on this basis.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] In contrast, MCL 600.1307a(1)(e); MSA 27A.1307(1)(1)(e) provides that in order to qualify as a juror, a person shall "[n]ot be under sentence for a felony at the time of jury selection." It has been stated that the juror qualifications are matters of legislative control. People v Barltz, 212 Mich. 580; 180 N.W. 423 (1920). Arguably, because § 1307a(1)(e) determines when a convicted felon's civil right to sit as a juror is restored, following a period of suspension during incarceration, the provision is substantive in nature, rather than procedural, and would take precedence over any court rules pertaining to the practice and procedure of selecting a jury. Because the issue has not been raised and argued in a brief, we take no position on it. See United States v Gilliam, 979 F2d 436 (CA 6, 1992), cert den ___ US ___; 113 S. Ct. 1856; 123 L. Ed. 2d 478 (1993); United States v Driscoll, 970 F2d 1472 (CA 6, 1992), cert den ___ US ___; 113 S. Ct. 1056; 122 L. Ed. 2d 362 (1993).