Opinion
Docket No. 51415.
Decided July 12, 1982. Leave to appeal denied, 414 Mich. 926.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Kay F. Pearson, Assistant Prosecuting Attorney, for the people.
Karla Kendall, Assistant State Appellate Defender, for defendant on appeal.
Defendant, Acy Adkins, was convicted following a jury trial of possession of heroin, MCL 333.7403 (2)(a)(iv); MSA 14.15 (7403) (2)(a)(iv), and possession of marijuana, MCL 333.7403 (2)(d); MSA 14.15 (7403(2)(d), and was sentenced to concurrent terms of two to four years and one year, respectively, with seven days credit. Defendant appeals as of right.
Defendant raises two issues on appeal. The first issue relates to the jury selection process. Trial began on January 16, 1980, with jury voir dire. After 13 prospective jurors had been impanelled, both sides passed for cause. The prosecution then passed for peremptory challenge and defendant exercised a peremptory challenge. This procedure was repeated two more times. However, after defendant had exercised three of his five peremptory challenges, the prosecution then challenged a prospective juror and the trial judge immediately asked defendant if he had a peremptory challenge without replacing the challenged juror. Defendant immediately challenged a juror and two more prospective jurors were put in place of the two that had just been challenged. This procedure was repeated in the next round, and immediately afterward, two more prospective jurors were put in their place. Defendant, having exhausted his peremptory challenges, then attempted to challenge prospective juror James D. Dunlap for cause because Dunlap had worked in the United States Secret Service and knew some of the police involved. The challenge was denied. The prosecution failed to exercise any more of its peremptory challenges. At the end of the trial, Dunlap happened to be the 13th juror stricken from this panel. Defendant failed to object to the jury selection procedure until after the prosecution rested its case.
The trial court used the "struck method" for jury selection for the defendant's last two peremptory challenges. This method violates GCR 1963, 511.6, which requires that after a challenge for cause is sustained or a peremptory challenge exercised, another juror shall be selected and examined before further challenges are made. Not only did the jury selection violate the court rule, the violation clearly disfavored the defendant because he was required to exercise two peremptory challenges from a smaller group of potential jurors.
Although this Court previously took the view that a showing of prejudice was needed to reverse a defendant's conviction for violation of this court rule, this position has clearly been rejected by our Supreme Court in People v Miller, 411 Mich. 321; 307 N.W.2d 335 (1981). In Miller, the trial court entered an order describing the manner in which jury selection would be conducted more than five weeks before trial. Defense counsel objected to the procedure before jury selection began. Although the procedure violated GCR 1963, 511.6, this Court affirmed the defendant's conviction because no prejudice was shown. Our Supreme Court agreed that there was nothing in the record from which one could affirmatively find prejudice; nevertheless, the Court reversed the defendant's convictions, reasoning that, given the fundamental nature of the right to trial by an impartial jury and the inherent difficulty of evaluating claims of prejudice, a requirement that a defendant demonstrate prejudice would impose an often impossible burden. The Court held that the failure to follow the procedure prescribed in the court rule requires reversal. Miller requires the reversal of the defendant's conviction in this case. The fact that Mr. Dunlap was stricken from the jury before deliberations began is irrelevant. Potential for prejudice affected the entire jury selection procedure, not just defense counsel's inability to exercise a peremptory challenge for one particularly objectionable juror. Each time the prosecutor exercised a peremptory challenge he faced a full panel of 13 jurors, whereas twice defense counsel was directed to exercise a challenge when only 12 prospective jurors were present. This diluted the effectiveness of defense counsel's use of the peremptory challenges.
People v Stein, 90 Mich. App. 159; 282 N.W.2d 269 (1979), lv den 411 Mich. 880 (1981), People v Miller, 88 Mich. App. 210; 276 N.W.2d 558 (1979), rev'd 411 Mich. 321; 307 N.W.2d 335 (1981). Contra, People v Gratz, 35 Mich. App. 42 ; 192 N.W.2d 304 (1971).
The people argue that defense counsel's failure to object precludes reliance on the improper jury selection procedure on appeal. In People v Miller, supra, the Supreme Court specifically stated: "Where, as here, a selection procedure is challenged before the process begins, the failure to follow the procedure prescribed in the rule requires reversal". (Emphasis added.) 411 Mich. 321, 326. The facts in this case differ, however, in a very significant way from the Miller situation. In Miller, the trial court revealed the jury selection procedure more than five weeks before trial. Defense counsel had ample opportunity to object before jury selection in that case. In this case, however, defense counsel had no indication before trial that the struck method would be used. Indeed, jury selection proceeded in compliance with the court rule until the prosecutor exercised his first peremptory challenge. Defense counsel had no opportunity to object before jury selection began.
To require defense counsel to object to the procedure after jury selection began would be unfair to the defendant. Jury selection is probably the most sensitive part of a trial. The courtroom is often full of potential jurors. An objection made in their presence could create the unfavorable impression in their minds that defense counsel is an obstructionist or that he is nit-picking. Yet to require all prospective jurors to leave the courtroom while defense counsel argues his objection might appear dilatory and tend to make them hostile to the defense. We note that defense counsel in this case did object, albeit at the close of the prosecution's case. Defense counsel did not wait for an unfavorable jury verdict before voicing his objection.
We emphasize the narrowness of our holding with respect to the failure to object. Where it is impossible or impractical to make an objection out of the presence of the jury we will reverse for failure to comply with the court rule.
We reverse the defendant's conviction and remand for a new trial. Should the search and seizure question be raised at the new trial, we find that the evidence was properly admitted for the reasons set out in Judge BRONSON'S opinion. We note that the question has not been raised whether the courts of this state should reject the United States Supreme Court's decision in Michigan v Summers, 452 U.S. 692; 101 S Ct 2587; 69 L Ed 2d 340 (1981), on the independent state grounds that the Michigan Constitution affords greater protection than the United States Constitution. Since the question has not been raised, we will not answer it, but our decision does not prevent the question from being raised in a future case.
Reversed and remanded for a new trial.
T.M. BURNS, J., concurred.
Following a jury trial in the Saginaw County Circuit Court, defendant was convicted of possession of heroin, MCL 333.7403 (2)(a)(iv); MSA 14.15 (7403)(2)(a)(iv), and possession of marijuana, MCL 333.7403 (2)(d); MSA 14.15 (7403)(2)(d). He was sentenced to concurrent terms of imprisonment of from two to four years for possession of the heroin and one year for possession of the marijuana. Defendant now appeals as of right.
Defendant, citing the Michigan Supreme Court opinion in People v Summers, 407 Mich. 432; 286 N.W.2d 226 (1979), contends that the trial court erred in failing to suppress heroin and marijuana found on his person. We agree with defendant that the facts of this case are strikingly similar to those of Summers. However, the United States Supreme Court reversed the decisions of the Michigan appellate courts and found the search in Summers to be lawful. Michigan v Summers, 452 U.S. 692; 101 S Ct 2587; 69 L Ed 2d 340 (1981). Given the United States Supreme Court decision in Summers, this assignment of error presents no basis for reversal.
Defendant also contends that the "struck method" used to impanel the jury at his trial requires reversal. The method of selecting a jury in issue departed from GCR 1963, 511.6, in that each time a prospective juror was removed by peremptory challenge, another potential juror was not immediately called to fill the removed venireman's place. Thus, defendant was called upon to exercise peremptory challenges when less than a full jury panel was constituted. In this case, pursuant to this method, defendant had exhausted his peremptory challenges by the time a potential juror who had worked for the United States Secret Service and who knew some of the police involved in the arrest was selected. Defendant's challenge for cause was rejected by the court. However, before the jury began its deliberations, this juror was removed by lot and did not participate in the process of reaching a verdict.
In light of the Michigan Supreme Court decision in People v Miller, 411 Mich. 321; 307 N.W.2d 335 (1981), this issue is extremely close. In Miller, the Supreme Court held that a defendant need not establish that he was prejudiced by the jury selection where GCR 1963, 511 is not complied with. The Court also said, however:
"A defendant is entitled to have the jury selected as provided by the rule. Where, as here, a selection procedure is challenged before the process begins, the failure to follow the procedure prescribed in the rule requires reversal. The `struck jury method' or any system patterned thereafter is disapproved and may not be used in the future." Id., 326.
Unlike the situation in Miller, here defendant did not object to the struck method used to select his jury until after the prosecution rested its case. We also note that in this case, the specific juror defendant's trial counsel desired to have removed ultimately did not participate in the deliberations. While trials conducted after the decisional date of Miller using struck methods of jury selection may have to be reversed even absent a timely objection from defense counsel, the trial in this case was conducted some 18 months before Miller. For these reasons, I would conclude that defendant's convictions need not be reversed.