People of Michigan v. London Deshann Harris

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 14, 2016
Plaintiff-Appellee,
v No. 324987
Wayne Circuit Court
LONDON DESHANN HARRIS, LC No. 14-005108-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 325356
Wayne Circuit Court
DAWYNE MATTEWS ANDREWS, LC No. 14-005108-FC
Defendant-Appellant.
Before: O’CONNELL, P.J., AND MARKEY AND O’BRIEN, JJ.
PER CURIAM.
Defendants London Deshann Harris and Dawyne Mattews Andrews were tried jointly but
before separate juries. Harris was convicted of first-degree felony murder, MCL 750.316(1)(b),
and Andrews was convicted of first-degree felony murder, armed robbery, MCL 750.529, and
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The
trial court sentenced Harris to life imprisonment for his felony-murder murder conviction.
Andrews received concurrent terms of life in prison for the felony-murder conviction and 18 to
40 years for the armed robbery conviction, and a consecutive two-year term of imprisonment for
the felony-firearm conviction. Harris appeals by right in Docket No. 324987, and Andrews
appeals by right in Docket No. 325356. We affirm in both appeals.
Defendants’ convictions arise from the April 30, 2014, shooting death of Marquise
Moncrief, who was fatally shot during a robbery at a drug house on Keating Street in Detroit.
The prosecutor’s theory at trial was that Harris aided and abetted Andrews and a third co-
perpetrator, Timothy Brown, by using his status as a regular customer at the house to enable
-1-
Andrews and Brown to gain access to the house. All three of them then acted in concert to rob
Moncrief, who was carrying a large amount of cash, and to steal marijuana.
Deon Alexander, the owner of the house, and Anthony Johnson, who was working at the
house on the night of the offense, both testified at trial. Johnson testified that the house only sold
marijuana to regular customers. Johnson denied knowing Andrews and Brown, but said they
arrived with Harris, a regular customer, so Johnson agreed to sell them marijuana. After the men
entered the house, Johnson heard a gunshot. He saw that Andrews had shot Moncrief in the
head, and then he removed money from Moncrief’s pockets. According to Johnson, both
Andrews and Brown were armed with guns. According to Alexander, defendant Harris and one
of the other men both issued instructions for the occupants of the house to get down and not
move. After the robbery, Harris, Andrews, and Brown all fled from the house together.
I. DOCKET NO. NO. 324987
A. PROSECUTORIAL MISCONDUCT
Defendant Harris raises several claims of prosecutorial misconduct. Harris failed to
preserve these claims with a timely objection in the trial court. People v Bennett, 290 Mich. App.
465, 475; 802 NW2d 627 (2010). Therefore our review is limited to plain error affecting
Harris’s substantial rights. Id. Harris also raises a related claim of ineffective assistance of
counsel, arguing that defense counsel was ineffective for failing to object to the prosecutor’s
challenged remarks. Because Harris did not raise that claim in a motion for a new trial or request
for a Ginther1 hearing, our review of that issue is limited to mistakes apparent from the record.
People v Jordan, 275 Mich. App. 659, 667; 739 NW2d 706 (2007).
“[A]llegations of prosecutorial misconduct are considered on a case-by-case basis, and
the reviewing court must consider the prosecutor’s remarks in context.” Bennett, 290 Mich. App.
at 475. Generally, prosecutors have great latitude with respect to their arguments and conduct.
People v Bosca, 310 Mich. App. 1, 34; 871 NW2d 307 (2015). “The prosecution has wide
latitude in arguing the facts and reasonable inferences, and need not confine argument to the
blandest possible terms.” People v Dobek, 274 Mich. App. 58, 66; 732 NW2d 546 (2007).
1. DENIGRATION OF DEFENSE COUNSEL
Harris first argues that the prosecutor improperly denigrated defense counsel in the eyes
of the jury by accusing him of distracting the jury with the “nonissue” of whether the physical
evidence of the shooting was consistent with the close-range shooting Johnson described in his
testimony. A prosecutor may not personally attack the credibility of defense counsel or suggest
that defense counsel is intentionally attempting to mislead the jury. Attacks on defense counsel’s
credibility undermine the defendant’s presumption of innocence by implying to the jury that
defense counsel does not believe his own client. People v Dalessandro, 165 Mich. App. 569, 580;
419 NW2d 609 (1988).
1
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
-2-
The prosecutor’s remarks did not clearly exceed the bounds of acceptable argument.
Harris’s counsel cross-examined the medical examiner and firearms expert regarding stippling
and other evidence of close-range firing with the apparent purpose of establishing discrepancies
between the physical evidence and the prosecutor’s theory of how the shooting occurred. In
closing argument, defense counsel argued that the evidence disproved the prosecutor’s evidence
regarding the shooter’s position in relation to Moncrief inside the house. Counsel suggested that
Moncrief was not killed during a robbery, but rather was targeted by an assassin. The
prosecutor’s theory was that Harris was guilty of felony murder under an aiding and abetting
theory because he acted in concert with Andrews and Tim Brown to rob the occupants of the
drug house, and Moncrief was murdered during the robbery. It was not unreasonable for the
prosecutor to argue that Harris’s counsel’s emphasis on the specific physical circumstances was
immaterial to the prosecution’s theory and that the absence of stippling was not inconsistent with
Johnson’s testimony. The prosecutor’s use of the words “nonissue” and “distraction” did not
push the argument past the boundaries of acceptable argument into a personal attack on defense
counsel’s character. Accordingly, there was no plain error.
2. DENIGRATION OF DEFENDANT’S CHARACTER
Harris next argues that the prosecutor improperly denigrated defendant by referring to
him as a “coward” and accusing him of “weaseling behavior.” “It is not proper for the
prosecutor to comment on the defendant’s character when his character is not in issue.” People v
Quinn, 194 Mich. App. 250, 253; 486 NW2d 139 (1992). In this case, the prosecutor’s remarks
were not an ad hominem attack on Harris’s character; they were part of an argument explaining
why Harris’s defense of mere presence was not credible because he repeatedly tried to evade
responsibility for his conduct. The prosecutor’s use of the terms “coward” and “weaseling” does
not elevate the prosecutor’s argument to plain error because a prosecutor is not required to
confine argument to the blandest possible terms, Dobek, 274 Mich. App. at 66, and because the
references were brief and were made during an otherwise proper argument that focused on the
evidence.
3. DENIGRATION OF TYESHIA PROFIT
Harris further complains that the prosecutor also improperly denigrated witness Tyeshia
Profit. Profit, who was Harris’s domestic partner, testified that she was with Harris when Harris
visited the drug house. She claimed, however, that she waited outside in a car while Harris went
inside the house. Profit testified that she saw two other persons enter the house at the same time
Harris did, but she denied that the other persons were with Harris. The prosecutor extensively
attacked Profit’s credibility using recorded telephone conversations between Harris and Profit,
which were made while Harris was incarcerated and awaiting trial. In closing argument, the
prosecutor argued that Profit was not credible and remarked that it was “despicable” and
“disgusting” that Profit lied to help Harris escape conviction.
A prosecutor is permitted to argue from the facts that a witness is not credible or worthy
of belief. Dobek, 274 Mich. App. at 67. Defendant’s reliance on Hodge v Hurley, 426 F3d 368,
378 (CA 6, 2005), to argue that the prosecutor’s remarks were improper is misplaced because the
prosecutor did not suggest that she had some personal knowledge not presented to the jury that
Profit was untruthful. Rather, the prosecutor argued from the evidence that Profit was not a
-3-
credible witness. Further, the prosecutor’s use of the harsh terms “despicable” and “disgusting”
does not render the otherwise proper argument improper. Dobek, 274 Mich. App. at 66. The
remarks do not rise to a level of plain error.
4. APPEAL TO JURORS’ SYMPATHY AND CIVIC DUTY
Harris also argues that the prosecutor improperly urged the jury to convict him as part of
its civic duty. “[I]t is improper for a prosecutor to appeal to the jury’s civic duty by injecting
issues broader than guilt or innocence or encouraging jurors to suspend their powers of
judgment.” People v Thomas, 260 Mich. App. 450, 455-456; 678 NW2d 631 (2004). Similarly,
the prosecutor may not “seek the jury’s sympathy for the victim.” Dobek, 274 Mich. App. at 80.
In the instant case, the prosecutor’s general statement about the value of jury duty did not
encourage the jurors to suspend their powers of judgment or to convict Harris out of a sense of
duty or sympathy for Moncrief’s family. The prosecutor’s statement about “justice for
Marquise” came at the conclusion of a lengthy argument explaining how the evidence proved
Harris’s guilt. This was not a plea for justice regardless of the evidence. It is an argument that
justice would be served by convicting Harris because the evidence proved his guilt. The
prosecutor simply and plainly stated that the family should have justice and did not appeal to the
jury’s emotions in the dramatic manner of the prosecutor in Dalessandro. And, in contrast to
People v Unger, 278 Mich. App. 210, 237; 749 NW2d 272 (2008), the prosecutor did not imply
that Moncrief’s family was “re-victimized” by the proceedings. Similar to People v Lane, 308
Mich. App. 38, 66; 862 NW2d 446 (2014), the prosecutor’s argument for justice was integrated
into an argument that the evidence proved Harris’s guilt. Accordingly, there was no plain error.
5. INEFFECTIVE ASSISTANCE OF COUNSEL
Harris argues that defense counsel was ineffective for failing to object to the prosecutor’s
remarks discussed above. To prevail on a claim of ineffective assistance of counsel, a defendant
must establish that (1) counsel’s performance was deficient, meaning that it fell below an
objective standard of reasonableness, and (2) but for counsel’s error, there is a reasonable
probability that the outcome of the proceeding would have been different. Jordan, 275 Mich
App at 667. Because we have concluded that the prosecutor’s remarks were not improper,
defendant’s ineffective assistance of counsel claim cannot succeed. Counsel is not ineffective
for failing to make a meritless objection. Unger, 278 Mich. App. at 255-256.
B. MOTION FOR MISTRIAL
Harris next argues that the trial court erred in denying his motion for a mistrial after the
court rebuked defense counsel for instructing a witness to stop talking while counsel was
objecting. “We review for an abuse of discretion a trial court’s decision regarding a motion for a
mistrial.” People v Schaw, 288 Mich. App. 231, 236; 791 NW2d 743 (2010). “This Court will
find an abuse of discretion if the trial court chose an outcome that is outside the range of
principled outcomes.” Id.
A trial court should grant a mistrial only when an error is so prejudicial that the
defendant’s right to fair trial is impaired. Id. Harris argues that his ability to obtain a fair trial
-4-
was impaired by the trial court’s comments after he objected during Profit’s testimony because
the comments pierced the veil of judicial impartiality. We disagree.
In People v Stevens, 498 Mich. 162, 164; 869 NW2d 233 (2015), our Supreme Court
clarified the proper analysis under which a claim of judicial misconduct is to be reviewed:
A trial judge’s conduct deprives a party of a fair trial if a trial judge’s conduct
pierces the veil of judicial impartiality. A judge’s conduct pierces this veil and
violates the constitutional guarantee of a fair trial when, considering the totality of
the circumstances, it is reasonably likely that the judge’s conduct improperly
influenced the jury by creating the appearance of advocacy or partiality against a
party.
Judicial misconduct includes the belittling of counsel, inappropriate questioning of witnesses,
providing improper strategic advice to one side, or biased commentary in front of the jury. Id. at
172-173.
In this case, the challenged conduct involved an isolated rebuke during trial. A single
inappropriate act generally will not give the appearance of advocacy or partiality unless it is
egregious. Id. at 171. In this instance, however, the trial court legitimately intervened when
Harris’s counsel attempted to usurp the trial court’s authority by chastising a witness. It is the
court’s responsibility to exercise reasonable control over the mode and order of interrogation,
and to protect witnesses from harassment or undue embarrassment. MRE 611(a). Moreover, the
court’s conduct during the rebuke did not convey any views concerning the weight or strength of
any of the parties’ theories, arguments, or evidence in the case, but rather it was directed at
clarifying the attorneys’ and the court’s respective roles in the conduct of the proceedings after
an objection. Thus, under the totality of the circumstances, the trial court’s comments were not
reasonably likely to create an appearance of advocacy or partiality for or against a party.
Therefore, the trial court’s conduct did not pierce the veil of judicial impartiality, and
accordingly, the trial court did not abuse its discretion in denying Harris’s motion for a mistrial.
C. SUFFICIENCY OF THE EVIDENCE
Harris argues that the evidence was insufficient to support his felony-murder conviction
because the evidence failed to establish his participation in the robbery of the drug house, which
served as the predicate felony for the felony-murder charge. We disagree.
“In reviewing a claim of insufficient evidence, we view the evidence in a light most
favorable to the prosecution to determine whether a rational trier of fact could have concluded
that the elements of the offense were proven beyond a reasonable doubt.” Unger, 278 Mich. App.
at 222. We resolve all conflicts in the evidence in favor of the prosecution and will not interfere
with the jury’s determinations regarding the weight of the evidence and the credibility of the
witnesses. Id. Circumstantial evidence and reasonable inferences arising from the evidence can
constitute satisfactory proof of the elements of a crime. Bennett, 290 Mich. App. at 472. A
defendant’s state of mind with respect to knowledge and intent may be inferred from minimal
circumstantial evidence. Bosca, 310 Mich. App. at 16.
-5-
The elements of first-degree felony murder were stated in People v Smith, 478 Mich. 292,
318-319; 733 NW2d 351 (2007):
(1) the killing of a human being, (2) with 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 (i.e., malice), (3) while
committing, attempting to commit, or assisting in the commission of any of the
felonies specifically enumerated in MCL 750.316(1)(b) . . . . [Citation, quotation
marks, and brackets omitted.]
Armed robbery was the predicate felony supporting Harris’s first-degree felony-murder
charge. To establish the elements of armed robbery, the prosecutor must prove that
(1) the defendant, in the course of committing a larceny of any money or other
property that may be the subject of a larceny, used force or violence against any
person who was present or assaulted or put the person in fear, and (2) the
defendant, in the course of committing the larceny, either possessed a dangerous
weapon, possessed an article used or fashioned in a manner to lead any person
present to reasonably believe that the article was a dangerous weapon, or
represented orally or otherwise that he or she was in possession of a dangerous
weapon. [People v Chambers, 277 Mich. App. 1, 7, 742 NW2d 610 (2007).]
To prove a defendant’s guilt of felony murder under an aiding and abetting theory, the
prosecutor must establish that the defendant:
(1) performed acts or gave encouragement that assisted in the commission of the
killing of a human being, (2) with 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 the predicate felony. [People v Riley
(After Remand), 468 Mich. 135, 140; 659 NW2d 611 (2003).]
A defendant is guilty of aiding and abetting a felony murder when he has the requisite
malice, which need not be identical to the principal’s. People v Robinson, 475 Mich. 1, 14; 715
NW2d 44 (2006). To prove malice required by People v Aaron, 409 Mich. 672; 299 NW2d 304
(1980),
the prosecution must show that the aider and abettor either intended to kill,
intended to cause great bodily harm, or wantonly and willfully disregarded the
likelihood that the natural tendency of his behavior was to cause death or great
bodily harm. Further, if an aider and abettor participates in a crime with
knowledge of the principal’s intent to kill or to cause great bodily harm, the aider
and abettor is acting with ‘wanton and willful disregard’ sufficient to support a
finding of malice. [Riley, 468 Mich. at 140-141.]
A jury may infer malice necessary for a felony-murder conviction “from evidence that the
defendant intentionally set in motion a force likely to cause death or great bodily harm” or “from
the use of a deadly weapon.” People v Carines, 460 Mich. 750, 759; 597 NW2d 130 (1999).
-6-
Under the “natural and probable consequences” theory, an aider and abettor is criminally
responsible for anything that is fairly within the common enterprise such that one might
anticipate its commission should the opportunity arise. Robinson, 475 Mich. at 9-13. “[A]
natural and probable consequence of a plan to assault someone is that one of the actors may well
escalate the assault into a murder.” Id. at 11.
The prosecution presented evidence that Harris and Andrews were cousins who resided in
the same home in 2008. Johnson testified that Harris was with two other men, whom Johnson
later identified in photographs as Andrews and Brown, when Harris came to the house after
midnight. Johnson and Alexander both testified that the drug dealers at the Keating house would
not admit anyone they did not know, and that Harris was a regular customer at the house.
Johnson, who was working the house on the night of the offense, testified that he did not
recognize the two persons who were with Harris. This evidence supports an inference that Harris
knew that Andrews and Brown could not gain access to the house on their own, and that Harris
aided and abetted Andrews and Brown by accompanying them to the drug house to enable them
to gain access to the house.
The events following Harris’s admission to the drug house further support that the three
men entered the house with a common intent to rob the occupants. After the men entered the
house, Harris did not follow Brown’s order to get down. Alexander was certain that Harris was
one of the men who told the other occupants to get down and not move. Andrews’s mother
testified that Moncrief was carrying $1,000 in cash to pay a deposit on an apartment. After
entering the house, Andrews shot Moncrief and then searched Moncrief’s pockets. Moncrief’s
money was missing after the offense. After the robbery, Harris ran with Brown and Andrews as
they fled the house.
The prosecution also presented evidence that Harris had a motive to rob because he had
no funds in his bank account, and his bondsman was threatening to revoke his bond if he did not
make a scheduled bond payment. Harris made the payment approximately five hours after the
robbery. Although Profit testified that Harris’s SSI payment would have been deposited at
midnight on the evening of April 29 and 30, Harris’s bank records indicated that the deposit was
made the next day, after the bond payment was made.
Viewed in a light most favorable to the prosecution, the evidence was sufficient to enable
the jury to find beyond a reasonable doubt that Harris was acting in concert with Andrews and
Brown, knew that they were carrying firearms, and aided and abetted them in committing the
robbery by providing them with access to the house and by assisting them in detaining the
occupants inside the house during the robbery. Harris’s participation in the offense, knowing
that his co-perpetrators were carrying firearms, was sufficient to enable the jury to find the
requisite malice for felony murder, because a shooting is a natural and probable consequence that
may arise from the armed robbery of a drug house. Robinson, 475 Mich. at 9-13.
D. TRIAL COURT’S CONDUCT OF JURY VOIR DIRE
Harris argues that the trial court’s decision to conduct jury voir dire itself, without
allowing questions from the attorneys, violated his right to a fair trial. Harris did not object to
the trial court’s jury voir dire or request the court to inquire into any specific subjects during voir
-7-
dire; therefore, this issue is unpreserved and our review is limited to plain error affecting Harris’s
substantial rights. People v King, 297 Mich. App. 465, 472; 824 NW2d 258 (2012); People v
Cameron, 291 Mich. App. 599, 617; 806 NW2d 371 (2011).
“A defendant who chooses a jury trial has an absolute right to a fair and impartial jury.”
People v Tyburski, 445 Mich. 606, 618; 518 NW2d 441 (1994). “The scope of voir dire
examination of prospective jurors is within the discretion of the court.” MCR 6.412(C)(1). Voir
dire “should be conducted for the purposes of discovering grounds for challenges for cause and
of gaining knowledge to facilitate an intelligent exercise of peremptory challenges.” Id.
Although voir dire is the defendant’s safeguard for ensuring an impartial jury, a defendant does
not have the right to have his attorney conduct voir dire, or to have the trial court ask questions
submitted by his attorney. Tyburski, 445 Mich. at 619. “The court may conduct the examination
of prospective jurors or permit the lawyers to do so.” MCR 6.412(C)(2). “If the court conducts
the examination, it may permit the lawyers to supplement the examination by direct questioning
or by submitting questions for the court to ask.” Id. Trial courts have wide discretion when
conducting voir dire, and what is acceptable practice is not governed by hard and fast rules.
Tyburski, 445 Mich. at 623. On appeal, “this Court must determine whether the trial court
conducted a voir dire ‘sufficiently probing . . . to uncover potential juror bias.’ ” People v
Sawyer, 215 Mich. App. 183, 187; 545 NW2d 6 (1996), quoting Tyburski, 445 Mich. at 609.
In this case, the trial court’s voir dire included examination into the jurors’ personal
beliefs, situations, and experiences. The court also addressed circumstances pertinent to this
particular case and queried them about any possible philosophical or ideological disagreement
they might harbor with the presumption of innocence and the prosecutor’s burden of proving the
defendant’s guilt beyond a reasonable doubt. The court also asked the jurors about their own
experiences, including whether they had been the victim of a crime, whether they or anyone
close to them had been charged with or convicted of any crime, and whether they or any
associates had any experience in positions related to law enforcement. The court also explained
the concept of aiding and abetting theory, and it asked if anyone was unable to agree with the
concept that a person who encourages or aids another person in the commission of the crime is as
guilty as the person who committed the act. Although Harris argues that the jurors might have
been biased because of their beliefs about drug dealing, witnesses’ credibility, and perpetrators
“snitching” against their co-perpetrators, we note nothing in the record that defense counsel
asked the trial court to explore these specific subjects during voir dire. Moreover, the trial
court’s general questions about the jurors’ willingness and ability to decide the facts and assess
the witnesses’ credibility based on the evidence presented, and not on the basis of their past
experiences and beliefs about criminal activity, were sufficient to delve into juror bias. The trial
court’s voir dire was sufficiently probing to allow the parties to discover grounds for challenges
for cause and to provide them with knowledge to facilitate intelligent exercise of peremptory
challenges. Harris has not met his burden of establishing a plain error affecting his substantial
rights.
Harris also claims ineffective assistance of counsel arising from counsel’s failure to
object to the trial court’s decision to conduct voir dire by itself. Because the scope of voir dire is
within the trial court’s discretion and a defendant does not have the right to have his attorney
conduct voir dire, trial counsel did not commit an objectively unreasonable error by failing to
object to the trial court’s decision to conduct voir dire. Jordan, 275 Mich. App. at 667.
-8-
II. DOCKET NO. 325356
A. PEREMPTORY CHALLENGES
Defendant Andrews argues that the trial court violated his right to fully exercise his
peremptory challenges. Andrews preserved this issue by objecting to the trial court’s ruling that
neither party would be allowed to exercise a peremptory challenge to excuse any member of the
jury other than a new juror who replaced Juror No. 8.2
A defendant’s right to peremptory challenges is governed by statute, MCL 768.13, and
court rule, MCR 6.412. The trial court’s application and interpretation of a statute or court rule
is reviewed de novo. People v Lee, 489 Mich. 289, 295; 803 NW2d 165 (2011).
In the course of jury selection for Andrews’s jury, 14 jurors were eventually seated, and
both attorneys stated that they had no objections for cause, and both declined to exercise any
peremptory challenges. However, the trial court delayed swearing a jury in order to inquire into
a situation involving Juror No. 8. The trial court ultimately excused Juror No. 8 for cause for
reasons not relevant to this appeal. After doing so, the trial court stated:
The People by my calculation have six more peremptory challenges. The defense
has four more. And we have, I think, only five [prospective] jurors left.
So in my view you should be allowed to exercise our remaining
peremptory challenges only as to juror number eight because you’ve all
subsequently, you’ve all passed on the whole jury.
***
And if you don’t agree to that, I’m just going with a jury of 13, and I’m
ending it right now.
Both attorneys disagreed with the trial court’s proposal. Andrews’s counsel explained:
2
The prosecutor argues that Andrews waived any error by affirmatively agreeing with the trial
court’s decision to proceed to trial with one less alternate juror. A waiver is “the intentional
relinquishment or abandonment of a known right,” and is different from a forfeiture, which
involves the “failure to make the timely assertion of a right.” People v Carter, 462 Mich. 206,
215; 612 NW2d 144 (2000). “One who waives his rights under a rule may not then seek
appellate review of a claimed deprivation of those rights, for his waiver has extinguished any
error.” Id. (citation and quotation marks omitted). Andrews did not affirmatively approve the
trial court’s plan to restrict peremptory challenges if Juror No. 8 were replaced. He affirmatively
objected to that plan. Andrews approved the alternative plan to proceed to trial with only one
alternate juror after the trial court overruled Andrews’s objection. Under these circumstances,
Andrews’s approval of the alternative plan did not constitute a waiver of his objection to the
prior ruling.
-9-
[W]hen I pick a jury or when I have one picked for me by the courts, I look at the
interaction even in terms of body language and everything among all the jurors.
So when you take – when one comes out and another one comes in, that to me
changes the whole dynamics.
Instead of seating a new juror to replace Juror No. 8, the trial court stated, “[T]hen we’re just
gonna go with a 13 person jury.”
Peremptory challenges may be exercised at any time before the swearing of the jury. “A
‘pass’ is not counted as a challenge but is a waiver of further challenge to the panel as constituted
at that time.” MCR 2.511(E)(3)(b). MCR 2.511(G) provides:
After the jurors have been seated in the jurors’ box and a challenge for
cause is sustained or a peremptory challenge or challenges exercised, another
juror or other jurors must be selected and examined. Such jurors are subject to
challenge as are previously seated jurors.
In People v Schmitz, 231 Mich. App. 521, 529-530; 586 NW2d 766 (1998) (citations
omitted), this Court, construing then MCR 2.511(F) (current MCR 2.511(G)), stated:
The plain language of this rule is clear. If the composition of the panel is
changed after a party passes a panel (either by challenges for cause or the exercise
of peremptory challenge by another party), the party is free to exercise further
peremptory challenges to any member of the new panel. Any other interpretation
would ignore the phrase “as constituted at that time” and violate the principle that
every word in a court rule should be given meaning and no word should be treated
as surplusage or rendered nugatory if at all possible. . . . It is not until both parties
pass for peremptory challenges, and there has been no change in the makeup of
the panel, that the party’s pass may be deemed conclusive. Accordingly, we hold
that the trial court erred in equating a pass of the panel as an acceptance of each
venireman thereon. [Citations omitted.]
The Court further held that a violation of this rule was not subject to harmless-error analysis
because “subject[ing] this issue to harmless-error analysis would be to require this Court to do
the impossible.” Id. at 531.
Applying Schmitz to the instant case, we conclude that the trial court erred when it ruled
that neither party would be permitted to use a peremptory challenge to excuse any member of the
newly composed panel that would have been formed if Juror No. 8 were replaced. Under the
plain language of MCR 2.511(G), once Juror No. 8 was dismissed for cause, upon selection of a
replacement juror, the new juror would be subject to challenge, “as are previously seated jurors.”
However, the error does not require reversal as mandated by Schmitz.
Our Supreme Court, in People v Bell, 473 Mich. 275; 702 NW2d 128 (2005), mod 474
Mich. 1201 (2005), addressed whether a trial court’s error regarding peremptory challenges could
be deemed harmless. The pertinent facts in Bell were summarized in the lead opinion as follows:
-10-
Defendant is African-American and the two victims were Caucasian.
During jury selection, defense counsel attempted to exercise a peremptory
challenge to strike potential juror number ten, who is Caucasian. Juror ten stated
during voir dire that three of his friends were high-ranking police officers, but that
he “wouldn’t think” that this fact would affect his ability to be fair and impartial.
When defense counsel attempted to excuse this juror peremptorily, the trial court
disallowed the challenge, concluding that counsel had exercised the challenge on
the basis of race. The trial court initially refused to allow defense counsel to
make a record, but reconsidered after defense counsel expressed dissatisfaction
with the trial court’s refusal. Defense counsel then furnished a race-conscious,
rather than race-neutral, reason for the challenge and the trial court continued to
disallow the challenge.
Jury selection continued. After several more defense peremptory
challenges, the prosecutor objected when defense counsel attempted to excuse
juror number five. The prosecutor claimed that defense counsel was attempting to
strike juror five on the basis of race, contrary to Batson [v Kentucky, 476 U.S. 79;
106 S. Ct. 1712; 90 L. Ed. 2d 69 (1986)]. The trial court excused the jury in order to
make a record regarding the challenge. The prosecutor noted that the current
challenge was defense counsel’s third consecutive strike on a Caucasian male and
that defense counsel was attempting to exclude Caucasian males from the jury.
Defense counsel replied that the prosecution’s argument would have some merit if
no other Caucasian males remained on the jury. Defense counsel also noted that
the majority of the remaining jurors was [sic] Caucasian. Defense counsel offered
no other explanation for his challenge. The trial court found defense counsel’s
explanation race-conscious and disallowed the challenge. Consequently, both
jurors five and ten sat on the jury that convicted defendant. [Bell, 473 Mich. at
279-280.]
A majority of justices in Bell held that the trial court did not err in finding purposeful
discrimination because the defendant provided race-conscious reasons for exercising the
peremptory challenge. Id. at 290, 300 (CORRIGAN, J., joined by YOUNG and MARKMAN, JJ.),
300-301 (WEAVER, J., concurring). The lead opinion further stated:
In light of our conclusion that the trial court’s initial error was cured, we
need not address whether a denial of a peremptory challenge is subject to
automatic reversal. Had we concluded, however, as do our dissenting colleagues,
that defendant’s peremptory challenges had been improperly denied, we would
have applied a harmless error standard to the error, because People v Miller, 411
Mich. 321, 307 NW2d 335 (1981), and People v Schmitz, 231 Mich. App. 521, 586
NW2d 766 (1998), are no longer binding, in light of our current harmless error
jurisprudence, to the extent that they hold that a violation of the right to a
peremptory challenge requires automatic reversal.
We arrive at this conclusion by recognizing the distinction between a
Batson error and a denial of a peremptory challenge. A Batson error occurs when
a juror is actually dismissed on the basis of race or gender. It is undisputed that
-11-
this type of error is of constitutional dimension and is subject to automatic
reversal. In contrast, a denial of a peremptory challenge on other grounds
amounts to the denial of a statutory or court-rule-based right to exclude a certain
number of jurors. An improper denial of such a peremptory challenge is not of
constitutional dimension. [Bell, 473 Mich. at 292-293 (CORRIGAN, J., joined by
YOUNG and MARKMAN, JJ.) (citations omitted).]
In a separate opinion, Chief Justice Taylor “concur[red] with the lead opinion that the denial of a
statutory peremptory challenge is subject to harmless error review and that People v Schmitz, 231
Mich. App. 521[,] . . . must be repudiated to the extent that it held to the contrary.” Bell, 473
Mich. at 302 (TAYLOR, C.J., concurring in part and dissenting in part). Thus, a majority of the
Court in Bell agreed that the denial of a peremptory challenge may be harmless error.3
We conclude that the trial court’s error here was harmless. The right to a peremptory
challenge in Michigan is provided by statute and court rule and is of non-constitutional
dimension. Bell, 473 Mich. at 294-295, 302. Where, as in this case, the error is preserved, it is
reviewed under the “more probable than not” standard set forth in People v Lukity, 460 Mich.
484, 495-496; 596 NW2d 607 (1999). See Bell, 473 Mich. at 294. Under that standard, reversal
is not required unless “it is more probable than not that a different outcome would have resulted
without the error.” Lukity, 460 Mich. at 495.
Andrews had previously passed on challenges for cause and peremptory challenges when
the jury panel consisted of Juror No. 8 and 13 other jurors. After Juror No. 8 was excused,
Andrews had the same jury panel, minus one, in which any of the remaining 13 could be excused
as an alternate. Thus, the jury remained composed of members that Andrews’s counsel had
previously approved individually and as a group. Andrews’s counsel expressed the concern at
trial that a new incoming juror might affect the interaction “among all the jurors” and thereby
“change[] the whole dynamics.” That concern never materialized because Juror No. 8 was never
replaced by a new juror. Although Andrews did not waive any error when he affirmatively
approved the trial court’s plan to hold trial with only one alternate juror, we believe that this
approval, combined with the fact that the jury composition that Andrews’s counsel had already
approved was not changed by the addition of a new person, supports the conclusion that the error
was harmless. That is, considering that Andrews willingly proceeded with an agreeable jury
composed of one less alternate juror, and that Andrews was never presented with a situation
where the dynamics of the jury were changed by a newly added juror, we agree that the trial
court’s error did not affect the outcome. Accordingly, Andrews is not entitled to relief based on
this issue.
B. PROSECUTORIAL MISCONDUCT
3
Although plurality opinions where a majority of justices do not agree on the reasoning for a
result are not binding precedent, Negri v Slotkin, 397 Mich. 105, 109; 244 NW2d 98 (1976), a
ground for decision to which a majority of the Court agrees, is binding precedent, People v
Tanner, 496 Mich. 199, 214 n 6; 853 NW2d 653 (2014).
-12-
Andrews argues that a new trial is required because the prosecutor improperly discussed
“civic duty” in her closing argument. Because Andrews did not object to the prosecutor’s
argument at trial, this issue is unpreserved, and our review is limited to plain error affecting
Andrews’s substantial rights. Bennett, 290 Mich. App. at 475.
As stated earlier when addressing Harris’s appeal, “it is improper for a prosecutor to
appeal to the jury’s civic duty by injecting issues broader than guilt or innocence or encouraging
jurors to suspend their powers of judgment.” Thomas, 260 Mich. App. at 455-456. Viewed in
context, the prosecutor’s arguments did not inject issues broader than Andrews’s guilt or
innocence, and she was not encouraging the jurors to suspend their powers of judgment and
convict him regardless of the evidence. She argued that Johnson’s testimony was credible
because he consistently described what he saw. She argued that Johnson did not know Andrews
or know that Andrews was Harris’s cousin, but he identified Andrews in the photographic lineup,
which was an unlikely coincidence if he did not recognize Andrews from the incident. She also
argued that Andrews’s statements in recorded telephone calls after hearing Johnson’s testimony
at the preliminary examination indicated that Andrews was conscious of his own guilt and
realized that Johnson’s testimony would likely result in his conviction. The prosecutor’s
comments that a guilty verdict would provide justice and closure for the family and that it would
vindicate Johnson’s cooperation with the police and the prosecutor were integrated into
arguments based on the evidence. Therefore, they did not rise to the level of improper civic duty
arguments. See Lane, 308 Mich. App. at 66. Accordingly, there was no plain error.
Because the prosecutor’s arguments were not improper, there is no basis for Andrews’s
related ineffective assistance of counsel argument, so it also cannot succeed. Counsel is not
ineffective for failing to assert a futile objection. Unger, 278 Mich. App. at 256.
We affirm in both appeals.
/s/ Peter D. O'Connell
/s/ Jane E. Markey
/s/ Colleen A. O’Brien
-13-