People v. Bryant

491 Mich. 575

822 N.W.2d 124

PEOPLE

v.BRYANT.

Docket No. 141741.

Calendar No. 2.

Supreme Court of Michigan.

Argued Dec. 6, 2011.

Decided June 28, 2012.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Assistant Prosecuting Attorney, for the people.

Arthur James Rubiner, West Bloomfield, for defendant.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and B. Eric Restuccia, Deputy Solicitor General, for the Attorney General.

Bradley R. Hall for Criminal Defense Attorneys of Michigan.

ZAHRA, J.

This case presents the question whether defendant was denied his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community. A fair-cross-section claim under the Sixth Amendment requires a defendant to make a prima facie case as set forth by the United States Supreme Court in Duren v. Missouri.¹ Namely, a defendant must show:

(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.[[²

The Court of Appeals concluded that defendant had satisfied the three Duren prongs, establishing a violation of his right to an impartial jury drawn from a fair cross section of the community, and granted defendant a new trial. We conclude that the Court of Appeals erred because defendant failed to show under the second prong that the representation of African–Americans in venires from which juries were selected was not fair and reasonable in relation to the number of African–Americans in the community. The Court of Appeals erred in evaluating the second prong in two significant ways.

First, the Court of Appeals wrongly relied on misleading representation data by considering the representation of African–Americans only in defendant's venire when addressing whether representation was fair and reasonable. Duren explicitly requires courts to consider the representation of a distinct group in venires. The use of this inadequate sample from only defendant's venire caused the tests evaluating the degree of any underrepresentation to produce skewed and exaggerated results.

Second, the Court of Appeals misapplied our decision in People v. Smith.³ In Smith, we held that an evaluation of the second prong requires courts to employ a case-by-case approach that considers all the relevant statistical tests for evaluating the data regarding representation of a distinct group without using any one individual method exclusive of the others. Contrary to this holding, the Court of Appeals effectively adopted a bright-line rule in favor of the comparative-disparity test in all instances in which the population of the distinct group is small. Given that all the relevant tests have shortcomings, Smith requires courts to take a comprehensive view of the degree of underrepresentation without elevating one test over the others. Nonetheless, the Court of Appeals, using a skewed result from the comparative-disparity test, elevated this test above the others in precisely the situation in which its use is most criticized—distorting the degree of underrepresentation when the population of the distinct group is small.

We hold that when applying all the relevant tests for evaluating the representation data, a court must examine the composition of jury pools or venires over time using the most reliable data available to determine whether representation of a distinct group is fair and reasonable.⁴ Having considered the results of these tests using the most reliable data set, which included the composition of jury pools or venires over a three-month period, we conclude that defendant failed to show that the representation of African–Americans was not fair and reasonable. Accordingly, we reverse the judgment of the Court of Appeals and reinstate defendant's convictions and sentences. ⁵

FACTS AND PROCEDURAL HISTORY

A jury convicted defendant of first-degree criminal sexual conduct, MCL 750.520b(1)(e), armed robbery, MCL 750.529, and possession of marijuana, MCL 333.7403(2)(d). The victim testified that when she attempted to buy crack cocaine from defendant, he put a gun to her head and demanded her money. He then ordered her to perform oral sex on him, taking her car keys and telling her that he would not let her leave until she did so. When the police apprehended defendant, he had marijuana in his possession.

After the jury was selected, but before it was sworn, defendant made a timely objection to the racial composition of his jury venire. The trial court noted that it observed one African–American and one Latino in defendant's 45–person venire, but decided to reserve its ruling on the objection until a hearing the following day.⁶

At the hearing, the jury clerk testified in regard to the procedure for composing jury pools and venires. According to the jury clerk, the Secretary of State provides the court a list of all the residents of Kent County who are at least 18 years of age and have a valid driver's license or valid state identification. From that list, a computer program randomly selects residents to be sent jury questionnaires. The program then randomly selects jurors to be summoned using the names of those who responded to the jury questionnaire and had not been disqualified or opted out of jury service because of age.⁷

The jury clerk testified that the Secretary of State database does not include the race of the individuals listed and that the computer program does not account for race when selecting jurors. For the date defendant's jury was selected, January 28, 2002, only 132 of the 182 people who had been randomly selected by the computer program and issued jury summonses appeared for service. By the jury clerk's visual inspection, only one was African–American. Of the 132 appearing, the computer program randomly selected 45 people for defendant's venire. The jury clerk also submitted to the trial court the results of voluntary surveys taken by some of those actually appearing for jury duty on given days in January 2002.⁸

Defendant, relying on the results of the voluntary surveys, argued that the disparity of African–Americans appearing for jury duty compared to the African–American population of the county showed that the current jury-selection method did not include a fair cross section of the community. The trial court ultimately denied defendant's challenge to his venire, ruling that because the jury-selection system was race neutral, the underrepresentation of African–Americans was a function of the voluntary failure of those individuals to participate.

Following his conviction and sentencing, defendant appealed. The Court of Appeals majority affirmed in part, but remanded the case to the trial court for an evidentiary hearing regarding defendant's claim that his venire did not reflect a fair cross section of the community.⁹ Addressing whether the representation of the distinct group (African–Americans) was fair and reasonable under Duren 's second prong, the majority concluded that defendant had not shown that the representation was not fair and reasonable under the relevant statistical tests.¹⁰ Nonetheless, the majority applied the approach set forth in People v. Hubbard (After Remand),¹¹ in which “the defendant was found to have shown substantial underrepresentation where the disparity resulted from ‘non-benign’ circumstances; that is, where the underrepresentation did not occur as the result of random chance.” ¹² Under this approach, the majority assumed that defendant had satisfied the second prong because the evidence indicated the possibility that the underrepresentation was not the result of random selection.¹³

Regarding the third prong, the prosecution admitted that the jury-selection process disproportionately selected jurors from certain zip codes. ¹⁴ As a result, the majority remanded the case to the trial court for an evidentiary hearing in which defendant could “present evidence that the Kent County jury selection system resulted in systematic exclusion of African–Americans causing this group to be substantially underrepresented in defendant's jury venire.” ¹⁵

On remand, the trial court ¹⁶ held several hearings and heard testimony from the court's case manager, the jury clerk, a member of the Kent County Jury Board, and two statistical experts. From this testimony, the trial court found that a computer programming error was responsible for the underrepresentation of African–Americans in venires from June 2001 to August 2002.¹⁷

The trial court found that Kent County, in an effort to save money spent on software fees, switched in April 2001 from using a vendor's software for summoning jurors to software developed by its information technology department. Rather than drawing from the entire database ¹⁸ of 456,435 names that the Michigan Secretary of State had provided for Kent County, the new computer program had an erroneous setting using only 118,169 of those names. The program selected randomlywho from the list of 118,169 names would be sent jury questionnaires. Because the 118,169 individuals selected came disproportionately from certain zip codes, jury questionnaires were disproportionately sent to those zip codes.¹⁹ This resulted in a disproportionately larger number of jury questionnaires going to zip codes with smaller African–American populations and disproportionately fewer questionnaires going to zip codes with larger African–American populations.²⁰

For the week that defendant's jury was selected, the court summoned 293 people for jury service. The court specifically summoned 183 of the 293 for January 28, 2002, when defendant's jury was...