People v. Sears

88 Mich. App. 1 (1979) 276 N.W.2d 496

PEOPLE
v.
SEARS

Docket No. 78-1313.

Michigan Court of Appeals.

Decided January 3, 1979.

Kraus & Ferris, P.C., for defendant on appeal.

Before: CYNAR, P.J., and R.B. BURNS and M.B. BREIGHNER,^[*] JJ.

R.B. BURNS, J.

Defendant was convicted by a jury of larceny in a building, contrary to MCL 750.360; MSA 28.592, and appeals.

The jury that sat at defendant's trial was selected three weeks prior to trial in a procedure by which the entire jury panel was assembled on one day and all defendants who had trials scheduled that month were required with their attorneys to choose a jury for their trial. Defense counsel objected that the procedure restricted defendant's rights to conduct a voir dire of the jurors and to challenge the jurors. In the interval between the date the jury was selected and defendant's trial, various members of his jury heard unspecified types of criminal trials. However, on the date set for trial, defendant was not given an opportunity to conduct a voir dire of the jury to ascertain whether any of the jurors had formed opinions prejudicial to defendant while sitting on these other trials.

In Fedorinchik v Stewart, 289 Mich. 436, 438-439; 286 N.W. 673, 674 (1939), the Supreme Court wrote:

"It is indispensable to a fair trial that a litigant be given a reasonable opportunity to ascertain on the voir dire whether any of the jurors summoned are subject to being challenged for cause or even peremptorily. In a large measure the scope of examination of jurors on voir dire is within the discretion of the trial judge; but it must not be so limited as to exclude a showing of facts that would constitute ground for challenging for cause or the reasonable exercise of peremptory challenges. So to limit the examination is an abuse of discretion."

The procedure of jury selection in this case improperly restricted defendant's ability to conduct a voir dire of the jurors and engage in the reasonable exercise of challenges.

Reversed and remanded.

M.B. BREIGHNER, J., concurred.

CYNAR, P.J. (dissenting).

I would affirm. No further voir dire was requested at the time of the trial. Furthermore, prior to the start of the trial the trial judge asked the jurors if they had heard anything further about the case since then; whether they had formed an opinion regarding the innocence or guilt of defendant; and whether anything had occurred that would cause them in any way to change their mind about anything. Although I do not favor the procedure used, I believe the jurors' negative response to these questions plus the voir dire previously conducted sufficiently protected defendant's right to a fair trial in this case.

NOTES

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