DocketNumber： Docket 8,148
Citation Numbers： 184 N.W.2d 273, 28 Mich. App. 267, 384 Mich. 803, 1970 Mich. App. LEXIS 1153
Judges： Lesinski, Levin, O'Hara
Filed Date： 12/1/1970
Status： Precedential
Modified Date： 10/19/2024
Michigan Court of Appeals.
*268 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Gerard A. Poehlman, Assistant Prosecuting Attorney, for the people.
Dennis Parham, in propria persona.
Before: LESINSKI, C.J., and LEVIN and O'HARA,[*] JJ.
Leave to appeal denied February 9, 1971. 384 Mich. 803.
O'HARA, J.
Defendant was found guilty by a jury of the felony of carnal knowledge of a female with force against her will and was sentenced to a term of 7-1/2 to 15 years in prison. At the voir dire examination the trial judge refused to alternate peremptory jury challenges. Defendant appeals claiming error.
This Court recently[1] held in People v. Thomas (1970) 25 Mich. App. 213, that the requirement of GCR 1963, 511.5, that peremptory challenges must be alternated, applies to criminal cases. The Court further held that failure to require alternating of challenges is reversible error. In the instant case, the defendant was required to exhaust his peremptory challenges before the prosecution was required to exercise any peremptory challenges. On the basis of the above cited authority we must reverse and remand for a new trial.
Our attention has been called to People v. Kregger (1953), 335 Mich. 457, as being in conflict with *269 Thomas, supra. We do not so read Kregger. In the only part of the decision relating to the decisional issue here the Supreme Court said at p 472:
"In selecting a jury the prosecuting attorney and counsel for defendant exercised their peremptory challenges alternately". (Emphasis supplied.)
The precise issue involved here is that whether it was error not to allow the peremptory challenges to be exercised alternately. It is difficult to see how Kregger conflicts with Thomas when alternation was in fact allowed in Kregger.
The balance of the pertinent paragraph in Kregger deals only with the question of whether to "pass" the jury constitutes a waiver of a peremptory challenge. The trial judge and the Supreme Court held it did not. The point is not involved here.
The defendant also contends that the lineup identification irreparably tainted the in-court identification. At the original trial the trial court declined to hold a separate evidentiary hearing on this question. Because this question may arise on retrial, we hold that the trial court is required to hold an evidentiary hearing out of the presence of the jury to determine whether the pretrial confrontation was so unnecessarily and impermissibly suggestive as irreparably to taint any subsequent in-court identification. People v. Young (1970), 21 Mich. App. 684. In so holding, we express no opinion on the merits of this question.
Reversed and remanded for a new trial.
All concurred.
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
[1] This opinion, it should be noted, was released after the learned trial judge denied the motion for a new trial based in part upon refusal to alternate the peremptory challenges.