People v. Six

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JEFFREY MARTIN SIX, Defendant-Appellant.

No. 338238

Court of Appeals of Michigan

March 31, 2022

UNPUBLISHED

Wayne Circuit Court LC No. 16-001862-01-FH

Before: Stephens, P.J., and K. F. Kelly and Boonstra, JJ.

AFTER REMAND

Per Curiam.

Defendant appealed as of right his jury convictions of uttering and publishing a false instrument, MCL 750.249, and receiving or concealing stolen property with a value of more than $1, 000 MCL 750.535(2)(a). The trial court sentenced defendant to two years' probation which he has now successfully completed. On appeal, we remanded to the trial court to further develop the record on the issue of voir dire, retaining jurisdiction. We now affirm.

I. FACTS AND PROCEEDINGS

This Court previously articulated the facts from which defendant's convictions arose as follows:

Defendant's convictions arise from a scheme to fraudulently use the bank account of an innocent third party Forrest Health Services (Forrest Health), to make online payments of driver responsibility fees on the Michigan Department of Treasury's website. The online payments were made in substantially greater amounts than the amounts due. The overpayments were credited to the online accounts of the driver who was liable for the driver responsibility fee. Four such payments were made on July 9, 2014, including a payment of $15, 000 for defendant, whose driver responsibility fee was $150, a payment of $50, 500 for Gordon Orsette, and overpayments for two other persons. Orsette and defendant were involved in a same-sex relationship at the time the overpayments were made.

The overpayments for Orsette and the two other persons were reversed before they were credited toward their respective driver responsibility accounts. No refunds were issued for these three overpayments. However, the $15, 000 payment was credited to defendant's driver responsibility account, for which he owed a $150 fee. The payment was made from a Forrest Health account without that payer's authorization. The Department of Treasury later approved a refund payment to defendant for $14, 850. Defendant cashed the check at a party store. In September 2014, Forrest Health notified the Department of Treasury that its account had been hacked. The state refunded the unauthorized $15, 000 payment to Forrest Health and began an investigation of defendant's refund payment.

The defense theory at trial was that Orsette told defendant that he paid defendant's driver responsibility fee out of Orsette's own account, accidentally adding two zeros to the amount paid. Defendant testified at trial that he cashed the check and gave the proceeds to Orsette because he did not know that Orsette's online payment was fraudulent. [People v Six, unpublished per curiam opinion of the Court of Appeals, issued January 21, 2020 (Docket No. 338238), pp 1-2.]

On appeal, defendant argued he was denied a fair trial by the trial court's refusal to question prospective jurors during voir dire regarding any potential anti-LGBT bias. Six, unpub op at 2. We were unable to determine the basis for the trial court disallowing voir dire regarding juror perception, bias, or experience with the LGBT community, nor the arguments, facts, and law presented to the judge. Id. at 5. Thus, we remanded to the trial court for "settlement of the record," id., instructing the trial court in our accompanying order to "articulate its reasons for denying defendant voir dire to question the jury for any anti-LGBT bias," People v Six, unpublished order of the Court of Appeals, entered January 21, 2020 (Docket No. 338238), and retained jurisdiction.

On remand, a hearing was held at which defendant's trial counsel, Rudolph Serra, testified. Serra was concerned about anti-LGBT bias among jurors and, at a pretrial conference in chambers, he expressed his belief that it was "essential" for the prospective jurors to be questioned about anti-LGBT bias. According to Serra, this line of questioning would have included asking whether they knew anyone in the LGBT community or believed that members of that community were more likely to be dishonest or commit crimes. Serra "vividly recall[ed]" that, at the end of the pretrial conference and related to whether prospective jurors would be questioned about LGBT issues, the trial court said, "I find that most people can be pretty fair about that sort of thing, most of the time, Mr. Serra." The trial court disallowed the requested voir dire.

After testimony and limited argument, the trial court provided its reasoning of its ruling:

THE COURT: [The ruling] was a matter of staying on point.

Uhm, you know, I - and reeling back a bit, uhm, when I, uhm, revoked the waiver in this case, it was because I had had some reason to, uh, to take a, a deep dive into the defendant's conspiracy theory.

And I don't know if it was a motion in limine, or, or how it came to my attention, before trial, but I, I came to understand the defendant's conspiracy theory, which was very, you know, I saw - I said it then, and I'll say it again, very convoluted and essentially irrelevant, because the People's evidence, against the defendant, for having participated in this fraudulent theft of, of approximately fifteen thousand dollars worth of State money, was, uhm, apparent.

Now, Gorden Orsetti [sic] may also have participated, in some way.

And maybe he even, insome [sic] way directed the, the fraud, but ultimately, it was the defendant who engaged in various acts along the way, that were proven, and established by the People in their case, that created a very strong question of fact on whether or not he was a direct, or even sole participant in the, uh, in the fraud; or, at the very least, a, uh, an aider and abettor.

And then, by all accounts, he was the, the person who profited from it as well.

Uhm, the People's case was pretty strong, and pretty clear, and fairly simple.

And the defendant's conspiracy was just off point.

Uhm, my, uhm - and then, without that conspiracy theory, uhm, being a part - and I, and I did order the, that neither the - well, the, People wouldn't, of course, embarked on, on trying to disprove the theory in their case in chief.

But I did, pretty much overrule the, the defense's ability to, try to float that conspiracy theory.

And then, of course, as the record shows, George Orsetti[sic] uh, in the end, refused to testify, anyway.

He took the Fifth Amendment, and so that was that.

There really wasn't even any way that Mr. Serra could have proven, with competent evidence, the conspiracy theory that he had in mind.

Uhm, you know, and as result of all of that, I really didn't see that defendant's sexual orientation was an issue in the case.

You know, the case could have easily been tried, and actually with, as far as the People's proofs were concerned, it was tried, without any reference to the defendant's sexual orientation.

Now, if this had been a sex assault case, involving same sex actors; or a domestic violence case, involving a same sex relationship, or partnership, or marriage; uhm you know, obviously, that would made, I would have made a very different call, because, then, the orientation of the parties, or one party or the other, is, is a sort of central fact in the case.

But that was not the case here.

And, so, my, I guess to go back to your question, directly, to make a, in an effort to make a long story, short, uhm, my effort wasn't really to save time.

Because if I thought there was issues that needed to be flushed out, in the trial, and that the jury needed to hear, in order to consider, ultimately, whether the defendant committed the crime he was charged with, uh, you know, I would have presided over the trial in a month, if I thought that's what had to happen.

My, my effort, or my motivation was the keep the case focused, not confuse the jury with what I regarded as extraneous information, to keep their attention focused on the issue of whether or not the defendant committed the crimes he was charged with, and not go off on social tangents, that, uhm, you may think are important, but I didn't think were important to this case. (Emphasis added.)

Subsequently, the trial court further reiterated that sexual orientation was "not an issue in this case," was not an issue "in this trial" and that the case "could have been tried without the jury ever knowing that the defendant was gay." (Emphasis added.)

II. JURY VOIR DIRE

Defendant argues that he was denied a fair trial by the trial court's refusal to question prospective jurors during voir dire regarding any potential anti-LGBT bias. "The trial court has discretion in both the scope and the conduct of voir dire." People v Washington, 468 Mich. 667, 674; 664 N.W.2d 203 (2003) (quotation marks and citation omitted). "An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." People v Unger, 278 Mich.App. 210, 217; 749 N.W.2d 272 (2008).

Voir dire of prospective jurors is governed by MCR 6.412(C), which provides:

(1) Scope and Purpose. The scope of voir dire examination of prospective jurors is within the discretion of the court. It should be conducted for the purposes of discovering grounds for challenges for cause and of gaining knowledge to facilitate an intelligent exercise of peremptory challenges. The court should confine the examination to these purposes and prevent abuse of the examination process.

(2) Conduct of the Examination. The court may conduct the examination of prospective jurors or permit the lawyers to do so. If the court conducts the examination, it may permit the lawyers to supplement the examination by direct questioning or by submitting questions for the court to ask. On its

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