Opinion
359837
04-20-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DEVANTE KYRAN JENNINGS, Defendant-Appellant.
UNPUBLISHED
Macomb Circuit Court LC No. 2019-001800-FH.
Before: Michelle M. Rick, P.J., and SHAPIRO and Anica Letica, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of carrying a concealed weapon, MCL 750.227. Defendant was sentenced to one to five years' imprisonment on the carrying a concealed weapon conviction. We affirm.
I. BACKGROUND
In the early morning hours of April 30, 2019, a witness named Alexandria McCorkle heard a group of people getting into an argument outside her apartment complex in Clinton Township. She and her fiance looked outside and saw a group of five men and one woman standing in the complex's parking lot. In what McCorkle believed was an attempt to get the group's attention, one of the men fired a gun into the air three times. Three of the men, including the shooter, then got into a white Dodge Charger and quickly drove away. McCorkle called 911 to report the incident. While on their way to speak with McCorkle, two police officers saw a Dodge Charger that matched the description McCorkle had given the 911 dispatcher and pulled it over. The officers discovered that defendant was driving the Charger and had two passengers with him in the car. There was a loaded handgun in the car's glove box, and the police later determined that the ammunition in the gun matched spent shell casings recovered from the apartment parking lot. None of the occupants of the vehicle had a concealed pistol license, and the handgun was not registered to defendant or anyone in Michigan.
Defendant was interviewed by police on the same day that the shooting occurred. During the interview, he admitted that he went to the apartment complex with the other two occupants of the Charger, that there was a disturbance at the apartment complex, and that he was the driver of the Charger, which was registered in his and his father's names. The police then asked defendant if he would allow them to take a DNA swab to determine whether his DNA was on the handgun they had found in the glove box, but at that point, defendant ended the interview and refused to give a DNA sample.
Defendant was charged with carrying a concealed weapon, MCL 750.227. His first jury trial ended in a mistrial because the prosecutor elicited testimony and presented argument concerning defendant's invocation of his right to silence. Specifically, in his closing argument, the prosecutor suggested to the jury that defendant exhibited a guilty conscience when he abruptly ended his police interview, stating:
Defendant was also charged with altering marks of identity on a firearm, MCL 750.230, but the prosecutor agreed to dismiss the charge.
Now, during the officer's questioning, [defendant] admits that he was present for this disturbance and he had agreed to speak to the officers, he knew what it was about. He agreed to waive his Miranda rights, he said he understood everything, he didn't want an attorney, he-he was waving [sic] his right to remain silent at that point in time, but low [sic] and behold, after answering a few questions he says, no, I don't want to talk anymore. Why would he do that? Well, that shows a guilty conscience, like, well, okay, if I start going down this road further I am going to get into some territory that's not good for me. I am going to start making admissions that I know are going to put me in further trouble. Maybe if I keep my mouth shut at this point, I can kind of walk out of this.
Following the declaration of a mistrial, defense counsel argued that retrial may be barred by double jeopardy on the basis of prosecutorial misconduct. The prosecutor responded that double jeopardy did not attach unless it could be established that the prosecution intended to goad defendant into requesting a mistrial. The trial court agreed with the prosecutor, finding nothing in the record to suggest that he intended to cause the mistrial. Defendant was later retried, convicted, and sentenced as described earlier. This appeal followed.
II. ANALYSIS
A. DOUBLE JEOPARDY
Defendant first argues that his retrial was barred by double-jeopardy principles because the prosecutor intentionally goaded the defense into moving for a mistrial. We are required by existing precedent to disagree.
"A constitutional double jeopardy challenge presents a question of law that [is] review[ed] de novo." People v Lett, 466 Mich. 206, 212; 644 N.W.2d 743 (2002). The trial court's factual findings regarding whether the prosecutor intended to goad the defense into moving for a mistrial are reviewed for clear error. People v Dawson, 431 Mich. 234, 258; 427 N.W.2d 886 (1988). "A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made." People v Mullen, 282 Mich.App. 14, 22; 762 N.W.2d 170 (2008) (quotation marks and citation omitted).
"Under both the Double Jeopardy Clause of the Michigan Constitution and its federal counterpart, an accused may not be 'twice put in jeopardy' for the same offense." Lett, 466 Mich. at 213, citing U.S. Const, Am V, and Const 1963, art 1, § 15. "The constitutional prohibition against multiple prosecutions arises from the concern that the prosecution should not be permitted repeated opportunities to obtain a conviction." Lett, 466 Mich. at 214. "Jeopardy is said to 'attach' when a jury is selected and sworn, and the Double Jeopardy Clause therefore protects an accused's interest in avoiding multiple prosecutions even where no determination of guilt or innocence has been made." Id. at 215 (citations omitted).
If "a defendant requests or consents to a mistrial, retrial is not barred unless the prosecutor has engaged in conduct intended to provoke or 'goad' the mistrial request." Id. (citations omitted). "Additionally, retrial is always permitted when the mistrial is occasioned by 'manifest necessity.'" Id. (citations omitted). In Oregon v Kennedy, the United States Supreme Court ruled that "[p]rosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on [the] defendant's motion, . . . does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause." 456 U.S. 667, 675-676; 102 S.Ct. 2083; 72 L.Ed.2d 416 (1982) (emphasis added). Therefore, when determining whether double jeopardy attaches, the central focus is on the intent of the prosecutor.
Michigan first had the opportunity to address Kennedy in People v Dawson, 154 Mich.App. 260, 273 (1986). But rather than apply the Kennedy test, this Court applied a different three-prong test, which was first set forth in Pool v Superior Court, 139 Ariz 98, 108-109; 677 P.2d 261 (1984), which states that double jeopardy attaches where:
1. Mistrial is granted because of improper conduct or actions by the prosecutor; and
2. such conduct is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal; and
3. the conduct causes prejudice to the defendant which cannot be cured by means short of a mistrial. [Id.]
On appeal, our Supreme Court declined to adopt the Pool test because the appellate prosecutor conceded at oral argument that the trial prosecutor's conduct violated the federal Kennedy standard. Dawson, 431 Mich. at 257. The Dawson Court reviewed the facts of the case, observing that "[t]he prosecutor's case was going badly" at trial, and that after several unfavorable trial developments, he began asking inappropriate questions of witnesses. Id. at 258-259. The Court further stated that the prosecutor knew that the questions were improper, and that when the defendant moved for a mistrial, the prosecutor "neither appeared surprised by nor argued against the mistrial motion." Id. at 259. And "[w]hen asked whether he had any response to defense counsel's request for a mistrial, the prosecutor responded, 'Nope.'" Id.
In analyzing whether double jeopardy barred retrial, the Dawson Court found that "[w]here a mistrial results from apparently innocent or even negligent prosecutorial error, or from factors beyond his control, the public interest in allowing a retrial outweighs the double jeopardy bar," but that "[t]he balance tilts . . . where the judge finds, on the basis of the objective facts and circumstances of the particular case, that the prosecutor intended to goad the defendant into moving for a mistrial." Dawson, 431 Mich. at 257 (quotation marks and citation omitted). Citing Kennedy, the Court noted that the trial court's findings regarding a prosecutor's intent are of key importance, and noted that "[t]he 'goad the defendant into moving for a mistrial' standard 'calls for a finding of fact by the court . . ., an inquiry for which the trial court is best suited.'" Dawson, 431 Mich. at 258 n 57, quoting United States v Posner, 724 F.2d 1535, 15399 n 56 (CA 11, 1985). Ultimately, given the prosecutor's concession on appeal and the obvious errors made by the trial prosecutor, our Supreme Court held that the defendant's retrial was barred by double-jeopardy principles. Id. at 259.
The instant case differs from Dawson in several respects. Here, the prosecutor did not concede that he intended to cause a mistrial. To the contrary, the prosecutor stated that his statements were designed "to get the jury to find [defendant] guilty, not for a mistrial." At most, this evidences a concession of recklessness, not a specific intent to cause a mistrial. In response, the trial court ruled that nothing in the record suggested that the prosecutor engaged in conduct so egregious as to suggest an intent to bring about a mistrial. In Dawson, our Supreme Court declined to apply the Pool test, choosing to go no further than the Kennedy test. But regardless of which test is applied, the primary consideration in both is whether the prosecutor's actions evince an intent to cause a mistrial. And since we must rely in large part on the trial court's assessment of the prosecutor's behavior, we conclude that the trial court did not clearly err in finding that the prosecutor did not intend to goad the defense into requesting a mistrial. The objective facts presented here do not contradict the prosecutor's denial that he intended to provoke a mistrial, and the record indicates that the prosecutor's error was the result of recklessness, negligence, or a lack of skill rather than an intentional effort to goad the defense into requesting a mistrial in this relatively straight-forward case. Accordingly, we find that double-jeopardy principles did not bar retrial.
The dissent would find that the prosecutor's actions here were intentionally designed to cause a mistrial, and argues that this Court should adopt the Pool test, stating that it is the better test because it changes the applicable standard from specific intent to" 'intentional conduct which the prosecutor knows to be improper and prejudicial[.]'" Dawson, 154 Mich.App. at 272, quoting Pool, 139 Ariz at 108 (footnote omitted). But the fact remains that both tests require a showing of intent; even the Pool test requires the trial court to evaluate "what the prosecutor 'intends' and 'knows' by objective factors." Pool, 139 Ariz at 108 n 9. The dissent does not explain how we might find in favor of defendant under Pool here, where the prosecutor expressly stated that he did not intend to cause a mistrial, and the trial court believed him. As there is little evidence to support the conclusion that defendant could meet the Kennedy or Pool standards, we see no need to determine whether this Court should adopt one test over the other. We leave the question of whether objective intent should be the primary factor for determining whether double jeopardy attaches, or whether the courts should adopt a different test that would allow double jeopardy to attach where a prosecutor causes a mistrial by acting unintentionally, in the capable hands of our Supreme Court.
B. WITNESS TESTIMONY
Defendant next argues that the trial court erred by admitting into evidence testimony from Clinton Township Police Detective Carl Simon that, according to defendant, opined on his guilt of the charged offense. Defendant further argues that his trial counsel was ineffective for failing to object to the admission of this testimony. Both of defendant's claims lack merit.
"To preserve an evidentiary issue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal." People v Thorpe, 504 Mich. 230, 252; 934 N.W.2d 693 (2019), citing MRE 103(a)(1). Defendant concedes on appeal that he did not object to the testimony that is the subject of his argument. Therefore, the evidentiary issue is unpreserved, and this Court's review is for plain error affecting substantial defendant's rights. Thorpe, 504 Mich. at 252, citing People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). Under this standard, defendant must show that an error occurred, that it was clear or obvious, and that it caused prejudice, i.e., that the error affected the outcome of the proceedings. Carines, 460 Mich. at 763. Reversal is proper only if it can be shown that defendant is innocent or that the error seriously affected the fairness, integrity, or public reputation of the proceedings. Thorpe, 504 Mich. at 252-253, citing Carines, 460 Mich. at 763-764.
To preserve a claim of ineffective assistance of counsel, a defendant must raise the issue in a motion for a new trial or a Ginther hearing filed in the trial court, People v Heft, 299 Mich.App. 69, 80; 829 N.W.2d 266 (2012), or in a motion to remand for a Ginther hearing filed in this Court, People v Abcumby-Blair, 335 Mich.App. 210, 227; 966 N.W.2d 437 (2020). Defendant has not filed any such motions raising his ineffective-assistance claim, so the issue is unpreserved. "This Court reviews unpreserved claims of ineffective assistance of counsel for errors apparent on the record." People v Spaulding, 332 Mich.App. 638, 656; 957 N.W.2d 843 (2020). Whether a defendant was denied the effective assistance of counsel presents a mixed question of fact and constitutional law. Heft, 299 Mich.App. at 80. Findings of fact are reviewed for clear error, and questions of law are reviewed de novo. Id.
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
It is a well-understood principle that a police officer "may not opine about the defendant's guilt or innocence in a criminal case." Id. at 81. Under MRE 701,
[i]f the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.
Thus, while an offer cannot make a bald assertion about a defendant's guilt, an officer can certainly give an opinion regarding the defendant's actions based on their personal experience, observations, and training, so long as the testimony is rationally based on perceptions made during an investigation. Under MRE 704, "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."
On direct examination, Detective Simon stated that he did not believe he could prove that defendant was the person who was in physical possession of the gun when shots were fired in the parking lot of the apartment complex. Detective Simon then explained why he recommended that defendant be charged with carrying a concealed weapon:
The charge of carrying a concealed weapon now is in control of the vehicle, use of vehicle and knowingly possessing that. I reviewed reports and spoke with the witness indicating that they could hear a gunshot inside a building, knowing that there were 3 occupants reported getting back into the Charger, any one of the occupant[s] was the person with the gun. I believed that [defendant] had knowledge that gun was in there. It had been discharged in the parking lot, recovered shell casings that were consistent with what was found in the gun, in the gun that was recovered in [defendant's] car. Based upon that that is the charge that I requested.
At most, Detective Simon testified about his investigation and his role in recommending charges to the prosecutor. His testimony was based on reasonable inferences drawn from the facts of his investigation, and at no point did he definitively state that he believed defendant was guilty. See Heft, 299 Mich.App. at 83 (concluding that police testimony did not address the defendant's guilt but instead merely "explain[ed] the steps of their investigations from their personal perceptions.").
But even if Detective Simon's testimony was improper, defendant cannot show that the error affected the outcome of the proceedings. Initially, Detective Simon's belief that defendant knew the gun was in the vehicle was intrinsically implied from the nature of the proceedings, which would not excuse any impropriety, but would blunt any prejudice. See People v Lowrey, Mich. App,; N.W.2d (2022) (Docket No. 355364); slip op at 6-7 (stating that "we are not unmindful of the fact that [a police detective's] general disbelief of [the] defendant was intrinsically implied from the nature of the proceedings; although this does not excuse the impropriety, it does blunt any ensuing prejudice."). But setting aside the allegedly tainted portion of Detective Simon's testimony, the evidence at trial supported a reasonable inference that defendant knew the gun was in the vehicle. Defendant admitted that he went to the apartment complex with the other two occupants of the Charger and that there was a disturbance at the apartment complex. Defendant was driving the Charger when it was pulled over by the police, and the gun was found in the glove box of the car. Additionally, shell casings recovered from the parking lot of the apartment complex matched the ammunition found in the gun and magazine. Thus, the evidence presented strongly indicated that defendant knew the gun was in the car.
Further, in its final jury instructions, the trial court strongly and repeatedly emphasized that the jurors were "the judges of the facts and the evidence" and that it was for them to decide whether they "believe[d] what each of the witness[es] said." The court also explained to the jury that defendant is presumed innocent and that the prosecutor was required to prove each element of the charged offense beyond a reasonable doubt. Finally, the court told the jury that they should not place undue significance on police testimony, stating that the testimony must "be judged by the same standard you use to evaluate the testimony of any other witness." "It is well established that jurors are presumed to follow their instructions." People v Graves, 458 Mich. 476, 486; 581 N.W.2d 229 (1998). Hence, even if Detective Simon's testimony was improper, the jury presumably followed the trial court's instructions that the jurors were the sole judges of the facts and that they were free to accept or reject any portion of any witness's testimony. Accordingly, defendant has failed to establish that any clear or obvious error in the admission of Detective Simon's testimony was outcome-determinative.
Defendant's claim of ineffective assistance of counsel is likewise unavailing. "To prove that his defense counsel was not effective, the defendant must show that (1) defense counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that counsel's deficient performance prejudiced the defendant." People v Lane, 308 Mich.App. 38, 68; 862 N.W.2d 446 (2014). "Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise." People v Head, 323 Mich.App. 526, 539; 917 N.W.2d 752 (2018) (quotation marks, brackets, and citation omitted). "In examining whether defense counsel's performance fell below an objective standard of reasonableness, a defendant must overcome the strong presumption that counsel's performance was born from a sound trial strategy." People v Trakhtenberg, 493 Mich. 38, 52; 826 N.W.2d 136 (2012). To establish prejudice, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." People v Randolph, 502 Mich. 1, 9; 917 N.W.2d 249 (2018) (quotation marks and citation omitted). A "defendant has the burden of establishing the factual predicate for his claim of ineffective assistance of counsel." People v Hoag, 460 Mich. 1, 6; 594 N.W.2d 57 (1999).
As we have explained, Detective Simon's testimony was properly admitted at trial. Thus, defense counsel was not ineffective for failing to raise a futile objection. See People v Ericksen, 288 Mich.App. 192, 201; 793 N.W.2d 120 (2010) ("Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel."). But even if Detective Simon's testimony improperly expressed an opinion on defendant's guilt or innocence, it was not apparent from the prosecutor's question that Detective Simon would express such an opinion. The prosecutor asked the following question immediately before the portion of Detective Simon's testimony that defendant challenges on appeal: "Okay. Now, so [defendant], just to be clear, [defendant] you didn't make recommendations for charges based on [defendant] possessing, physically possessing that weapon?" It was not clear from this question that Detective Simon would testify regarding his belief that defendant knew the gun was in the vehicle. Although it is clear in hindsight that the question led to the testimony that is being challenged on appeal, this Court cannot "use the benefit of hindsight when assessing counsel's competence." People v Unger, 278 Mich.App. 210, 243; 749 N.W.2d 272 (2008). And defense counsel may have reasonably declined to object or request a curative instruction, to avoid drawing further attention to the allegedly improper testimony. See People v Bahoda, 448 Mich. 261, 287 n 54; 531 N.W.2d 659 (1995) ("Certainly there are times when it is better not to object and draw attention to an improper comment."); People v Dunigan, 299 Mich.App. 579, 584; 831 N.W.2d 243 (2013) ("Failing to request a particular jury instruction can be a matter of trial strategy.").
Further, even if defense counsel's performance fell below an objective standard of reasonableness, defendant cannot demonstrate a reasonable probability of a different outcome but for his counsel's failure to object or request a curative instruction. As explained earlier, the evidence properly admitted at trial strongly supported the inference that defendant knew the gun was in the vehicle he was driving. Also, the jury was instructed that it was the sole judge of the facts, that it was free to accept or reject any portion of any witness's testimony, and that the testimony of police officers should be evaluated in the same way as that of any other witness. For all of these reasons, defendant's ineffective-assistance claim must fail.
C. ANONYMOUS JURIES
Defendant's final argument on appeal is that the trial court empaneled an anonymous jury by referring to the jurors by number rather than by name, and that this violated his constitutional right to due process. We disagree.
To preserve a due-process challenge to the trial court's practice of referring to the jurors by number rather than by name, the defendant must object to the practice in the trial court. People v Hanks, 276 Mich.App. 91, 92; 740 N.W.2d 530 (2007). As defendant concedes on appeal, he did not raise an objection on this issue in the trial court. Therefore, the issue is unpreserved, and this Court's review is for plain error affecting defendant's substantial rights. Id., citing Carines, 460 Mich. at 763-764. Under this standard, defendant must show that an error occurred, that it was clear or obvious, and that it caused prejudice, i.e., that the error affected the outcome of the proceedings. Carines, 460 Mich. at 763. Reversal is proper only if defendant can show that he is actually innocent or that the error seriously affected the fairness, integrity, or public reputation of the proceedings. Id. at 763-764.
In People v Williams, 241 Mich.App. 519, 522; 616 N.W.2d 710 (2000), this Court rejected the defendant's argument that the trial court had violated his right to due process by impaneling an "anonymous jury," i.e., by referring to the jurors by number rather than by name. This Court stated that "[a]n 'anonymous jury' is one in which certain information is withheld from the parties, presumably for the safety of the jurors or to prevent harassment by the public." Id. Although the use of an "anonymous jury" may protect the safety of jurors, there was also "a potential expense to two interests of the defendant: (1) the defendant's interest in being able to conduct a meaningful examination of the jury and (2) the defendant's interest in maintaining the presumption of innocence." Id. at 522-523. This Court held that, "[i]n order to successfully challenge the use of an 'anonymous jury,' the record must reflect that the parties have had information withheld from them, thus preventing meaningful voir dire, or that the presumption of innocence has been compromised." Id. at 523.
In Williams, this Court discerned no basis to conclude that an anonymous jury, in the "strict sense" of the term, was empaneled. Id. That is, the "jurors were merely referred to at trial by number rather than by name. There is nothing in the record to support the conclusion that any information was actually withheld from the parties. At most, the names of the jurors were replaced by numbers." Id. Hence, the jurors were not truly anonymous except in the literal sense that their names were not read into the record. Id. The defendant had access to the jurors' biographical information as contained in juror questionnaires, and the defendant's ability to effectively examine the venire was not compromised. Id. at 523-524. Nor was there any indication that the use of juror numbers undermined the presumption of innocence. Id. at 524. There was no basis to conclude "that jurors understood the use of numbers rather than names to be anything out of the ordinary. Thus, there was no suggestion that defendant's trial was being handled in a special way, with the resulting implication that he was generally dangerous or guilty as charged." Id. This Court thus concluded that, under the facts of this case, defendant's due process rights were not violated by using juror numbers instead of names at trial. However, we caution the trial courts about the potential for prejudice arising from the use of anonymous juries. The procedure should be employed only when jurors' safety or freedom from undue harassment is, in fact, an issue, and, when used, appropriate safeguards should be carefully followed to assure a fair trial. [Id. at 525.]
In Hanks, this Court cited Williams for the proposition that "[a] challenge to an 'anonymous jury' will only succeed where the record reflects that withholding information precluded meaningful voir dire or that the defendant's presumption of innocence was compromised." Hanks, 276 Mich.App. at 93, citing Williams, 241 Mich.App. at 523. This Court in Hanks explained that Williams "opted for a strict definition of 'anonymous jury,' where something more than just the jurors' names is withheld from the parties." Hanks, 276 Mich.App. at 93. Applying the holding in Williams, this Court in Hanks reasoned:
In this case, the record reflects that the jurors were identified by numbers. However, the record also demonstrates that the juror questionnaires containing biographical information were provided to the parties, and that both parties conducted extensive voir dire. There is no indication that any of the jurors believed that there was any significance in the use of numbers instead of names. Further, defendant failed to demonstrate that the use of numbers prevented him from conducting meaningful voir dire or that his presumption of innocence was compromised. We conclude that the jury in this case was anonymous only in a literal sense, so none of the dangers of an "anonymous jury" was implicated. Thus, defendant has not established that plain error affected his substantial rights. [Id. at 94 (citations omitted).]
The defendant in Hanks relied on cases from other jurisdictions to support his argument, but this Court stated that it was "bound by Williams" and was "not persuaded that Williams was wrongly decided." Id. at 95.
In the present case, defendant argues that he was denied due process because the trial court empaneled an anonymous jury by referring to the jurors by number rather than by name. His argument is unavailing under this Court's decisions in Williams and Hanks. As explained, "[a] challenge to an 'anonymous jury' will only succeed where the record reflects that withholding information precluded meaningful voir dire or that the defendant's presumption of innocence was compromised." Hanks, 276 Mich.App. at 93, citing Williams, 241 Mich.App. at 523. Although the trial court referred to the jurors by number rather than by name, that by itself did not render the jury "anonymous" under the definition of that term adopted by this Court. Hanks, 276 Mich.App. at 93. The record contains no indication that any biographical information regarding the jurors was withheld from the parties, and no basis exists to conclude that defendant was prevented from conducting an effective examination of the prospective jurors. Moreover, there is no indication that the presumption of innocence was compromised. The jurors were given no reason to believe that the use of numbers instead of names was of any significance. The jurors were instructed, both at the outset of jury selection and in the court's final instructions, that defendant was presumed innocent. "[J]urors are presumed to follow their instructions." Graves, 458 Mich. at 486. Defendant has not established any plain error related to the trial court's reference to the jurors by number rather than by name.
Although the jurors were referred to by number rather than name on the record at trial, we note that the verdict form contains the signed name of the jury foreperson.
Defendant acknowledges that the issue is unpreserved, that the plain-error standard applies, and that this Court's decisions in Williams and Hanks addressed this issue. Yet defendant does not argue that he can establish plain error under Williams and Hanks. Instead, defendant argues that this Court's caselaw is inadequate and that this Court should adopt a different test based on factors set forth in a number of lower federal court opinions. Defendant cites United States v Thomas, 757 F.2d 1359, 1365 (CA 2, 1985), to support his position that, before impaneling an anonymous jury, a trial court must (1) find that there is a "strong reason to believe that the jury needs protection" and (2) ensure that "reasonable precaution [is] taken to minimize the effect that such a decision might have on the jurors' opinions of the defendants." Defendant further cites United States v Ross, 33 F.3d 1507, 1520 (CA 11, 1994), for the proposition that the following factors should be used to determine whether a jury needs protection:
(1) the defendant's involvement in organized crime, (2) the defendant's participation in a group with the capacity to harm jurors, (3) the defendant's past attempts to interfere with the judicial process, (4) the potential that, if convicted, the defendant will suffer a lengthy incarceration and substantial monetary penalties, and (5) extensive publicity that could enhance the possibility that jurors' names would become public and expose them to intimidation or harassment.
Defendant argues that Michigan's courts could adopt the test and factors set forth in Thomas and Ross, which he states would result in better trial court rulings on the matter, and improved appellate review of such decisions as well.
This Court is bound by Williams and Hanks because they are published opinions of this Court issued after November 1, 1990. See MCR 7.215(J)(1) ("A panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990 ...."); Hanks, 276 Mich.App. at 95 (noting that this Court is "bound by Williams"). Lower federal court decisions like those cited by defendant here "are not binding on this Court, but may be considered on the basis of their persuasive analysis." People v Fomby, 300 Mich.App. 46, 50 n 1; 831 N.W.2d 887 (2013). We do not find Thomas and Ross persuasive, and we can discern no reason to express disagreement with Williams and Hanks in order to invoke the procedure for convening a special panel under MCR 7.215(J). Again, it must be emphasized that by defendant's own concession, this issue is unpreserved and review is for plain error. Defendant fails to explain how a clear or obvious error could be found to exist on the basis of the nonbinding decisions of the lower federal courts. Ultimately, defendant has failed to establish plain error under this Court's decisions in Williams and Hanks, and we decline to revisit or revise our jurisprudence on the use of anonymous juries.
Defendant also argues that the erroneous impaneling of an anonymous jury should be considered a structural error that is not subject to harmless-error review. Again, however, defendant has not established that an error occurred under this Court's governing caselaw. It is thus unnecessary to consider whether such an error would be considered structural.
Affirmed.
Douglas B. Shapiro, J. (dissenting).
I respectfully dissent and would find that defendant may not be retried under the federal standard set forth in Oregon v Kennedy, 456 U.S. 667; 102 S.Ct. 2083; 72 L.Ed.2d 416 (1982). In addition, as we are not bound by the federal standard, I would adopt the objective standard defined in Pool v Superior Court, 139 Ariz 98; 677 P.2d 261 (1984), which is both easier to apply than Kennedy's subjective standard and a more appropriate means of protecting the right against double jeopardy and deterring prosecutorial misconduct.
It is difficult to imagine a principle of constitutional criminal procedure more universally known to attorneys than the rule that a defendant's decision to remain silent is constitutionally protected and may not be introduced or commented upon at trial. And it is difficult to imagine how a prosecutor could be unaware that purposely introducing a defendant's silence as evidence of guilt is grounds not only for reversal, but also for mistrial.
I. BACKGROUND
In this case, the investigating officer was called as a witness by the prosecution. The officer reviewed the statements made by defendant after he waived his Miranda rights. However, during the interview, defendant unambiguously relied on his right to remain silent, reviving his constitutional right to do so. Rather than ending his questioning about the conversation, the prosecutor pressed on to bring out defendant's reliance on his right to remain silent and to contrast it with the behavior of the other individuals in the car:
Q. How did the interview end?
A. He did not wish to speak to us anymore.
Q. Did you also speak to the other occupants in the vehicle?
A. Yes, they were both interviewed. As typical and routine, we separate them, they were all separated and interviewed separately.
Q. Did they agree to speak to you?
A. No.
Q. So they provided a full statement?
A. They did.
Not long thereafter, closing arguments were given. The prosecutor argued:
Now, during the officer's questioning, [defendant] admits that he was present for this disturbance and he had agreed to speak to the officers, he knew what it was about. He agreed to waive his Miranda rights, he said he understood everything, he didn't want an attorney, he-he was waving [sic] his right to remain silent at that point in time, but low [sic] and behold, after answering a few questions he says, no, I don't want to talk anymore. Why would he do that? Well, that shows a guilty conscience, like, well, okay, if I start going down this road further I am going to get into some territory that's not good for me. I am going to start making admissions that I know are going to put me in further trouble. Maybe if I keep my mouth shut at this point, I can kind of walk out of this. [Emphasis added.]
The record indicates that during his closing argument, the prosecutor placed the words "guilty conscience" in red on a board for the jury to view, and in granting the mistrial, the trial court noted that the prosecutor had "essentially weaponized [defendant's] invocation as consciousness of guilt." Notably, the prosecution elected to not file a brief in this appeal. It provides no evidence to suggest that the prosecutor's actions were not intended to goad the defendant into requesting a mistrial, other than the prosecutor's self-serving statement that he "was trying . . . to get the jury to find [defendant] guilty, not for a mistrial."
II. ANALYSIS
A. RETRIAL IS BARRED UNDER THE KENNEDY STANDARD
Summarizing the Kennedy standard, our Supreme Court stated in People v Dawson, 431 Mich. 234, 253; 427 N.W.2d 886 (1988):
Where [a] motion for mistrial was made by defense counsel, or with his consent, and the mistrial was caused by innocent conduct of the prosecutor or judge, or by factors beyond their control, or by defense counsel himself, retrial is also generally allowed, on the premise that by making or consenting to the motion the defendant waives a double jeopardy claim. [Emphasis added.]
The prosecutor's conduct in this case was not "innocent" nor was the mistrial caused by "factors beyond [his] control." Dawson went on to hold that
[w]here a defendant's motion for mistrial is prompted by intentional prosecutorial conduct, however, the defendant may not, by moving for a mistrial, have waived double jeopardy protection. The United States Supreme Court has held that the Double Jeopardy Clause bars retrial where prosecutorial conduct was intended to provoke the defendant into moving for a mistrial. [Id., citing Kennedy, 456 U.S. 667.]
The trial court concluded that defense counsel's failure to object during the officer's testimony established that the prosecution did not intend to cause a mistrial. However, the initial lack of objection is irrelevant to the applicable analysis. Even if it was, the prosecution's closing argument demonstrated a determination to make the issue so central that a mistrial would be the likely result.
The prosecutor's questions and closing argument were not minor foot faults. They were sufficient enough errors for the judge to sua sponte raise the question of a mistrial. Under these circumstances, I would conclude that there was an intent to cause a mistrial, or at minimum to take the very substantial risk that one would be granted in order to introduce prejudicial and unconstitutional evidence.
B. THE MICHIGAN SUPREME COURT HAS NEVER "ADOPTED" THE KENNEDY STANDARD FOR PURPOSES OF STATE LAW AND SHOULD INSTEAD ADOPT THE POOL STANDARD
There has never been a decision of record in Michigan that holds that the test under the Michigan Constitution is identical to the one set forth in Kennedy.
In Dawson, whether the defendant could be retried was initially addressed by the Court of Appeals. This Court adopted the standard defined in Pool, 139 Ariz 98, which held that the Double Jeopardy Clause barred retrial when it results from "intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal." People v Dawson, 154 Mich.App. 260, 272; 397 N.W.2d 277 (1986), aff'd 431 Mich. 234 (1988), quoting Pool, 139 Ariz at 108109. After this Court concluded in Dawson that the federal standard defined in Kennedy would not bar a retrial, it adopted the Pool standard for purposes of the Michigan Constitution and quoted the following statement in Pool:
We agree with the Oregon Supreme Court that when such conduct occurs the burden of another trial cannot be attributed to defendant's preference to start anew rather than "completing the trial infected by error" and is, rather, attributable to the "state's readiness, though perhaps not calculated intent, to force the defendant to such a choice." State v Kennedy, 295 Or at 276, 666 P.2d at 1326. In such a situation, the State has intentionally exposed the defendant to multiple trials for the same crime and had destroyed his expectation of completing the proceeding before the original tribunal. This is exactly what the double jeopardy provision was
intended to prevent. [Dawson, 154 Mich.App. at 272, quoting Pool, 139 Ariz at 109.]
Applying that standard, this Court concluded that retrial was precluded in that case because the record showed "that the prosecutor consciously and wilfully engaged in improper conduct indifferent to the probability that a mistrial would result." Dawson, 154 Mich.App. at 274.
In its appeal to the Michigan Supreme Court, the prosecution changed its appellate strategy. It conceded that a retrial was barred under the Kennedy test and so there was no need for the Court to consider whether or not to adopt the Pool standard. The Court made clear that the prosecution's change in strategy was the reason it did not address the Pool standard. It stated, "In light of the prosecutor's concession that the trial prosecutor's conduct was improper under the Oregon v Kennedy standard, there is no need in the instant case to decide whether this Court should go further than the federal standard." Dawson, 431 Mich. at 257.
To reiterate, the Michigan Supreme Court did not "adopt" the Kennedy standard. Rather, the Court held that given the prosecution's concession it was not necessary to consider whether to adopt the more stringent Pool test. And since Dawson, no other case of record has required a Michigan court to make that determination. Accordingly, I believe we should request supplemental briefing as to whether this Court should adopt the Pool standard for determining whether the Double Jeopardy Clause bars a retrial for purposes of the Michigan Constitution.
Demonstrating that a prosecutor specifically intended to cause a mistrial insufficiently protects the principles of double jeopardy because absent an admission of such (as in Dawson), it is virtually impossible to determine what the prosecutor's subjective intent was. In contrast, the Pool standard provides the necessary protection by changing the standard from specific intent to cause a mistrial to "intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal[.]" Dawson, 154 Mich.App. at 272 (citation omitted). This objective test provides the necessary deterrence against purposeful prosecutorial error or misconduct that invites a mistrial.
Finally, I submit that this is an appropriate case for the Supreme Court to finally determine whether the Pool standard or some other standard should be adopted rather than the Kennedy standard and so respectfully urge the Court to grant leave to appeal for that purpose.