People v. Richardson

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CURTIS LEE RICHARDSON III, Defendant-Appellant.

No. 360600

Court of Appeals of Michigan

December 21, 2023

UNPUBLISHED

Saginaw Circuit Court LC No. 17-043882-FC

Before: Elizabeth L. Gleicher, C.J., and JANSEN and Michelle M. Rick, JJ.

PER CURIAM.

An all-white jury convicted Curtis Lee Richardson III of domestic violence and several other offenses. During jury selection, Richardson insisted that his trial counsel lodge an objection under Batson v Kentucky, 476 U.S. 79 106 S.Ct. 1712; 90 L.Ed.2d 69 (1986), after the prosecution peremptorily challenged three black jurors. Counsel reluctantly complied with the request, and the trial court overruled the objection.

The parties agree that the prosecutor's challenge of three black jurors established a prima facie case of discrimination under Batson, and that the prosecutor offered race-neutral reasons for the jurors' dismissals. Step three of the Batson analysis required the trial court to consider whether the reasons for the challenges were pretextual- veiled excuses for purposeful discrimination. Our review of this decision is highly deferential. But even applying that standard, the trial court clearly erred by dismissing two of the black jurors.^[1] We reverse and remand for a new trial.

I. FACTUAL BACKGROUND

Because the Batson issue is dispositive, we need not recap the trial evidence. We instead focus on the voir dire, the statements made by the prosecutor in response to the Batson challenge, and the trial court's ruling.

The prosecutor peremptorily challenged three black jurors, and the trial court upheld the strikes. Even a single peremptory strike exercised based on race requires reversal. See Snyder v Louisiana, 552 U.S. 472, 478; 128 S.Ct 1203; 170 L.Ed.2d 175 (2008) ("[T]he Constitution forbids striking even a single prospective juror for a discriminatory purpose") (quotation marks and citation omitted; alteration in original); see also JEB v Alabama ex rel TB, 511 U.S. 127, 142 n 13; 114 S.Ct. 1419; 128 L.Ed.2d 89 (1994) ("The exclusion of even one juror for impermissible reasons harms that juror and undermines public confidence in the fairness of the system.").

After Richardson's jury was selected but before it was sworn, defense counsel raised a halfhearted Batson challenge, stating:

My client has asked me to make a challenge to the array under [Batson], I believe it's a Supreme Court case, for the reason that what we're left with is an all-white jury. My client is African American.

As we went through the challenges, I believe the prosecution challenged, using peremptory challenges, three African-Americans. I don't believe I challenged any. I did challenge Mrs. Gomez who I think is Hispanic, but, you know, it would appear, at least to my client, there's a systematic effort to exclude blacks from the jury, so we would raise an objection to this jury and a challenge under [Batson]. Thank you.

The prosecutor responded by defending his three peremptory challenges of black jurors. Regarding the first challenged juror, DC, the prosecutor explained:

It was actually brought to my attention by my officer in charge and then I observed it myself that she was just kind of looking down, may have appeared to doze off. I know that when the Court advised her that she had been challenged, she was a little bit-she seemed to be a little bit startled, so I want attentive jurors.

The prosecutor also challenged juror SP, describing his reasoning as follows:

With respect to [SP], at that point, it just was a question of demeanor. It was a question of some the answers that she gave with respect to prior jury service, not really [having] any memory of it. There were a number of things that went into the calculation. Race was definitely one of them.^[2]

So race did not come into it. I did not-and having done this for 36 years, I do not systematically exclude anybody from jury service based on their race or their gender or whatever preferences they may or may not have.

Questioned further by the trial court, the prosecutor expanded on his explanation for challenging SP as follows:

The Court: I just want to follow up on [SP]. I'm not clear as to the non-discriminatory reason set forth. You said demeanor.

[The Prosecutor]: That was one of many, your Honor, again, her answers to my questions, and I focused on the jury service. She seemed to be-again, I don't know the woman so I don't want to speculate. I perceived a little bit of standoffishness, but, again, and that's not really fair to her because I don't know the woman. It was just-it was a perception. It had nothing to do with the color of her skin whatsoever, and to the extent that I almost resent the accusation.

The trial court heard more argument on the Batson challenges the next day. After reviewing the Batson's "three-step process" for evaluating Batson challenges, the court questioned the prosecutor, Dan VanNorman, as follows:

. . . I'd like to inquire further of Mr. VanNorman as to [DC], [for] who[m] I reviewed the transcript or portions of the transcript, and found that she did not- I don't believe she was asked any questions nor did she make any statements prior to your dismissal of her as a peremptory challenge. You did state on the record as evidence that she may not be paying attention, that she was startled when her name was spoken, but that was at the time that you were challenging her on your peremptory, so I'm looking for some evidence.

I think you put on the record that she wasn't paying attention, but I-and let me say this for the record. I did not watch her intently during the voir dire[,] so the Court doesn't have any firsthand knowledge of whether she was paying attention or the like. So, with that, I'll turn it over to Mr. VanNorman and have you tell me, if you can, precisely why you dismissed [DC] based on the reasons you set forth yesterday.

The prosecutor responded:

Certainly, your Honor. I did have-as the Court is aware, I'm assisted by an officer in charge....

Detective Yant has been an officer for a number of years, has sat on, I believe, a number of jury trials .... She-while I'm doing certain things in the courtroom as far as questioning jurors or maybe observing jurors, listening to the Court, or whatever, she takes time on occasion to observe the jurors. At least that's-and that's my understanding and my experience with most officers in charge.

She had indicated to me that Juror Number 1, [DC], wasn't showing any emotion, just wasn't paying attention, frequently closed her eyes to the extent that Detective Yant came to the-considered the possibility, at the very least, that she may have been dozing off or falling asleep.

In consulting with the detective, and, again, I believe I have the right to consult with the officer in charge in this, I take her at her word, and that was my reason for excluding that juror.

The court then consulted defense counsel regarding his observations of DC; he stated:

I would just state that [DC] in Seat 1, I didn't observe her dozing off or anything. I've had a lot of trials and I have had cases during voir dire where people's heads have fallen on their chest or been snoring and different things like that. I didn't see anything like that from [DC], so I'll leave it to the Court's discretion based on Officer Yant's recollection.

Defense counsel conceded that DC could have dozed off, but he was focused elsewhere during voir dire.

The court resolved the challenge to DC as follows:

Let's walk through the explanations provided by the prosecution .... [The prosecutor asserts that DC] did not seem to be paying attention. I, the Court, did not witness that. I did certainly witness her being startled. And let me also say my memory is not that it was startled like [she was] very closely paying attention. It was more of a-I believe her head was down and she kind of jerked her head up when she-when she-when her name was called. That, in and of itself, I don't think is credible as to the fact that she wasn't paying attention.

However, when you couple it with the fact that Miss Yant described what Mr. VanNorman described here on the record, it does-at least it does show that that is a possible and probable result. In other words, if someone isn't paying attention, it's very plausible that someone dozing off, so to speak, or looking like their head's bobbing gives that credence, so I don't believe there is a pretext.

I offered an opportunity for [defense counsel]. He just simply said he didn't see that, which is fine, but I don't think-I don't think there is a pretext there. The Court makes such a finding.

The court then turned to SP, recounting that the prosecutor based his challenge to this juror on "the fact that [SP] had somewhat of a poor memory when trying to harken back to her service as a juror in Wayne County," which the prosecution described earlier as raising a question concerning SP's demeanor.

Relevant to the challenge of SP, the trial court conducted the initial voir dire, which included asking the jurors if they had any previous jury service. SP answered affirmatively and engaged in the following colloquy with the court:

[SP]: Yeah, about 10 years ago [I served] in Wayne County. I don't remember-

The Court: Well, we are in Saginaw County.

[SP]: Yeah.

The Court: We are better. Right?

[SP]: No.

The Court: To my colleagues in Wayne County, I'm just teasing. Anything about that experience that left a bad taste in your mouth or would cause you to have a problem serving?

[SP]: No.

The prosecutor followed up by confirming that SP sat on a jury "about 10 years ago." The prosecutor asked "Was it a civil or criminal?" SP responded, "I don't remember." The questioning continued as...