Opinion
Docket No. 80312.
Decided July 8, 1986. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Peter D. Houk, Prosecuting Attorney, and Robert B. Ebersole, Chief Appellate Attorney, for the people.
State Appellate Defender (by Karla K. Goodman), for defendant on appeal.
Defendant appeals from his conviction of armed robbery, MCL 750.529; MSA 28.797, following a jury trial. He was sentenced to from five to twenty years imprisonment. He appeals as of right, alleging three grounds for reversal. We affirm.
Defendant first claims that the in-court identification by the complainant, Matthias Schueller, was tainted by an impermissibly suggestive confrontation at the preliminary examination. See People v Solomon, 391 Mich. 767; 214 N.W.2d 60 (1974), rev'g 47 Mich. App. 208; 209 N.W.2d 257 (1973). However, defense counsel failed to object to this identification procedure at the preliminary examination and at trial and failed to request a lineup. Therefore, we will not reverse or remand for an evidentiary hearing unless fundamental injustice would otherwise result. People v Missias, 106 Mich. App. 549, 555-556; 308 N.W.2d 278 (1981). We are convinced that no manifest injustice would result here.
First, defendant fit the physical description which Schueller provided to the police and, at the time of his arrest, was wearing the clothing described by Schueller. Schueller observed defendant for two to three minutes as the robbery occurred. Schueller got the license number of the vehicle defendant drove away in and defendant was seen opening the trunk of that vehicle shortly before his apprehension. In the totality of these circumstances, we find that we need not consider whether this identification, by itself, was so unduly suggestive that a remand is required as a matter of law. Missias, supra. The fact that Schueller did not describe the robber as being bearded when he initially described the robber to the police does not mandate a contrary result.
Defendant claims that he was denied due process when he was subjected to a second preliminary examination at which, according to defendant, Schueller's testimony was "coached." Subjecting a defendant to repeated preliminary examinations violates due process if the prosecutor attempts to harass the defendant or engage in "judge-shopping." People v Vargo, 139 Mich. App. 573, 578; 362 N.W.2d 840 (1984); People v George, 114 Mich. App. 204, 211-214; 318 N.W.2d 666, lv den 414 Mich. 931 (1982). Unless the prosecutor presents new evidence, a second preliminary examination constitutes harassment violative of due process. Vargo, supra, p 578.
There was no "judge-shopping" here. Further, new evidence was presented at the second preliminary examination, namely, the testimony of Officer Underhill, the officer who arrested defendant based on Schueller's description of the robber, the license number of the robber's vehicle as reported by Schueller, and the defendant's flight upon seeing the officers.
Defendant's allegation that Schueller's testimony was coached finds no support in the record. At the conclusion of Schueller's testimony, the examining magistrate examined Schueller extensively concerning why his testimony concerning the robber's facial hair had changed since the first preliminary examination. The magistrate appeared to be satisfied that the testimony was not coached. So are we.
Finally, defendant claims that he was denied his Sixth Amendment right to trial by jury when the prosecutor peremptorily challenged the only two blacks on the petit jury during voir dire. Defendant properly preserved this issue by objecting to the prosecutor's challenge of the blacks on the jury.
The United States Supreme Court has recently held that the peremptory challenge of all members of a defendant's race, on the basis of race, is a denial of equal protection. Batson v Kentucky, 476 US ___; 106 S Ct 1712; 90 L Ed 2d 69 (1986).
In reviewing this issue, this Court must first determine if Batson is to be given retroactive, limited retroactive, or prospective application. We conclude that it is properly given only prospective application, i.e., shall be applied only to cases tried subsequent to its release.
The criteria guiding resolution of the question implicates: (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement officials on the old standards, and (c) the effect on the administration of justice of retroactive application of the new standards. Stovall v Denno, 388 U.S. 293, 297; 87 S Ct 1967; 18 L Ed 2d 1199 (1967).
Batson fashions a jury selection rule designed to: (1) prevent the arbitrary ouster of fairminded and impartial jurors who might protect a defendant from the caprice of government of the majority, (2) assure members of all races the privilege of sitting on a jury unhindered by arbitrary elimination, and (3) assure public confidence in the fairness of our system of justice.
The reliance of prosecutors and trial courts on the previously unfettered right to use peremptory challenges without explanation was great, in light of the United States Supreme Court holding in Swain v Alabama, 380 U.S. 202; 85 S Ct 824; 13 L Ed 2d 759 (1965) (no equal protection violation) and the Michigan Supreme Court holding in People v Roxborough, 307 Mich. 575, 594; 12 N.W.2d 466 (1943), cert den 323 U.S. 749; 65 S Ct 80; 89 L Ed 600 (1944).
A retroactive application of the Batson rule would require review of a multitude of convictions. Even limited retroactive application, i.e., to those appeals pending when Batson was decided, would require new trials or, at the least, evidentiary hearings in each appeal where the issue has been preserved.
None of the above considerations favors even limited retroactive application of Batson. However, before our analysis is complete, those considerations should properly be weighed against the effect that the Batson rule has on the reliability of the fact-finding process at trial. Denno, supra. While we believe that the holding in Batson is laudable and necessary for the reasons stated by the Supreme Court, we believe that the Batson rule has at best an uncertain effect on the fact-finding process. In balance, we believe that Batson v Kentucky should be given only prospective application. Accordingly, we decline to reverse on the basis of defendant's last claim of error.
Affirmed.