                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 7, 2017
               Plaintiff-Appellee,

v                                                                  No. 329849
                                                                   Wayne Circuit Court
YASMEEN JASMILLA TAYLOR,                                           LC No. 15-002737-01-FC

               Defendant-Appellant.


Before: STEPHENS, P.J., and SERVITTO and SHAPIRO, JJ.

PER CURIAM.

        Defendant appeals as of right her jury trial convictions of second-degree murder, MCL
750.317, assault with intent to commit murder, MCL 750.83, and possession of a firearm during
the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced
defendant to 39 to 55 years’ imprisonment for the second-degree murder conviction, 20 to 30
years’ imprisonment for the assault with intent to commit murder conviction, and two years’
imprisonment for the felony-firearm conviction. Appellant’s counsel made an oral motion to
hold this case in abeyance pending action by our Supreme Court on this issue.1 We decline. We
affirm in part, and remand for a proportionately review as required by People v Steanhouse, 313
Mich App 1, 46-49; 880 NW2d 297 (2015), lv gtd 499 Mich 934 (2016).

                                      I. BACKGROUND

      This case arises from the death of Marquez Douglas (Douglas), and the assault of Latoya
Johnson. Defendant, who testified at trial, offered a defense of alibi and denied being present at

1
   Our Supreme Court granted leave to appeal in “Steanhouse in Docket No. 152849, and in
Masroor in Docket Nos. 152946–8” with the parties in each case directed to address (1) whether
MCL 769.34(2) and (3) remain in full force and effect where the defendant’s guidelines range is
not dependent on judicial fact-finding, see MCL 8.5; (2) whether the prosecutor's application
asks this Court in effect to overrule the remedy in People v. Lockridge, 498 Mich. 358, 391, 870
N.W.2d 502 (2015), and, if so, how stare decisis should affect this Court’s analysis; (3) whether
it is proper to remand a case to the circuit court for consideration under Part VI of this Court's
opinion in People v. Lockridge where the trial court exceeded the defendant’s guidelines range;
and, (4) what standard applies to appellate review of sentences following the decision in People
v. Lockridge.” People v Steanhouse, 499 Mich 934; 879 NW2d 252 (2016).


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the crime scene or in the state on the day of the offense. In contrast, the prosecution presented
the testimony of Johnson. Johnson testified that on February 13, 2015, she, her children, brother
Milton, and the decedent lived at the house of Alicia Johnson, her mother, located at Teppert
street, in Detroit. She testified that Douglas returned home around 5:50 a.m. accompanied by
defendant whom she had seen previously. Johnson overheard conversational exchanges between
defendant and Douglas both of whom were in Douglas’s bedroom. At some point, the
conversation and laughter were replaced by about 15 minutes of silence that ended with a single
gunshot. As she was seeking cover, Johnson heard approximately five more gunshots. Minutes
later, defendant entered the room where Johnson was hiding, and despite her pleading shot her.
Johnson called 911, and she then went to the living room. She saw Douglas on the floor of the
living room. Douglas had a pulse, but he was not responsive. She testified that Douglas “was
shot above the chest on his left side and on his stomach on his left side.” When the police
arrived, Johnson gave them a statement. Eventually, defendant was apprehended in Huntington,
West Virginia

         Defendant’s trial began on September 14, 2015. During voir dire, defense counsel
exhausted his twelve preemptory challenges. Subsequently, voir dire was conducted on juror H,
who stated that she had just started a new job as a medical assistant. According to juror H, she
was scheduled to begin work on that day. When asked if she would be totally focused on the
trial, juror H responded, “[h]onestly, I’m thinking about my new job.” Similarly, when asked if
she would be able to devote her full attention to the trial, she responded, “[n]ot really.” Defense
counsel moved that juror H be removed for cause, “because she wouldn’t be able to - -[.]” The
trial court interjected and denied defense counsel’s challenge for cause. In response, defense
counsel stated, “[w]e would object.”

        The jury ultimately found defendant guilty of second-degree murder, assault with intent
to commit murder, and felony-firearm. Defendant’s sentencing information report (SIR)
recommended a sentencing guidelines minimum range of 225 to 375 months’ imprisonment or
life. During sentencing, the trial court stated, “[t]his was a cold blooded killing. So I don’t
believe that the guideline minimum range fully reflects the brutality and heartlessness of
[defendant’s] attack on Mr. Douglas and Ms. Johnson.” The trial court noted that defendant shot
Douglas multiple times, and that after Johnson pleaded for her life defendant shot at her. The
trial court also noted the “excessively violent nature of [defendant’s] fatal assault on Mr.
Douglas and her cold-blooded firing of a gun at Ms. Johnson’s head, as well as the evidence
presented at trial, which clearly established her guilt[.]”

        In sentencing defendant, the trial court referenced the Michigan Supreme Court’s holding
in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), noting that a sentence that departs
from the sentencing guidelines will be reviewed for reasonableness. The trial also court noted
that it was required to justify the sentence it imposed in order to facilitate appellate review. It
then stated, “I think in this case given the testimony educed at trial and the reasons set forth in
the sentencing memorandum, which both counsel have, I believe an upward departure from the
guidelines is warranted in this case.”

                              II. THE CHALLENGE FOR CAUSE




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       On appeal, defendant first argues that the trial court abused its discretion when it did not
dismiss juror H for cause, because juror H’s statements indicated that she had a state of mind that
prevented her from rendering a just verdict. We disagree.

       This Court reviews a trial court’s ruling on whether to excuse a juror for cause for an
abuse of discretion. People v Williams, 241 Mich App 519, 521; 616 NW2d 710 (2000), citing
People v Roupe, 150 Mich App 469, 474; 389 NW2d 449 (1986). “An abuse of discretion will
be found only if the trial court’s decision falls outside the range of principled outcomes.” People
v Blevins, 314 Mich App 339, 361; 886 NW2d 456 (2016), citing People v Blackston, 481 Mich
451, 467; 751 NW2d 408 (2008).

       “[A] criminal defendant has a constitutional right to be tried by an impartial jury[.]”
People v Miller, 482 Mich 540, 547; 759 NW2d 850 (2008), citing US Const, Am VI; and Const
1963, art 1, § 20. Under MCR 6.412(D), a prospective juror may be challenged for cause. MCR
6.412(D) provides:

       (D) Challenges for Cause.

       (1) Grounds. A prospective juror is subject to challenge for cause on any ground
       set forth in MCR 2.511(D) or for any other reason recognized by law.

       (2) Procedure. If, after the examination of any juror, the court finds that a ground
       for challenging a juror for cause is present, the court on its own initiative should,
       or on motion of either party must, excuse the juror from the panel.

        Under MCR 2.511(D)(3), a party can challenge a juror for cause if the juror “shows a
state of mind that will prevent the person from rendering a just verdict, or has formed a positive
opinion on the facts of the case or on what the outcome should be[.]” (Emphasis added.)
“Although, as a general matter, the determination whether to excuse a prospective juror for cause
is within the trial court’s discretion, once a party shows that a prospective juror falls within the
parameters of one of the grounds enumerated in MCR 2.511(D), the trial court is without
discretion to retain that juror, who must be excused for cause.” People v Eccles, 260 Mich App
379, 382-383; 677 NW2d 76 (2004).

        “Jurors are presumptively competent and impartial, and the party alleging the
disqualification bears the burden of proving its existence.” People v Johnson, 245 Mich App
243, 256; 631 NW2d 1 (2001), citing People v Collins, 166 Mich 4, 9; 131 NW 78 (1911), and
People v Walker, 162 Mich App 60, 63; 412 NW2d 244 (1987). This Court has stated, “the fact
that the jurors would rather not serve on the jury did not establish a ground for their dismissal.”
People v Vaughn, 291 Mich App 183, 193; 804 NW2d 764 (2010), vacated in part on other
grounds by 491 Mich 642 (2012). Further, “[t]his Court defers to the trial court’s superior ability
to assess from a venireman’s demeanor whether the person would be impartial.” Williams, 241
Mich App at 522, citing Butler v Detroit Auto Inter-Ins Exch, 121 Mich App 727, 746; 329
NW2d 781 (1982).

       The trial court did not abuse its discretion when it denied defense counsel’s challenge for
cause against juror H. During voir dire, juror H indicated that she was scheduled to begin a new
job on that day, that she would be thinking about her new job, and that she would “[n]ot really”


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be able to devote her full attention to the trial. However, juror H did not demonstrate any bias or
an inability to impartially weigh testimony. When juror H was questioned by the trial court, she
said that she would give a police officer’s testimony that same weight as any other witness,
despite the fact that her uncle worked for a “gang squad.” Juror H also stated that she would be
able to put aside any feelings of sympathy, and that she would be able to keep an open mind.

        The trial court was in the best position to assess whether juror H would be impartial.
Thus, considering juror H’s equivocal statements about her ability to focus on the trial, as well as
her clear statements that indicated she would be an unbiased and impartial juror, the trial court’s
denial of defense counsel’s challenge for cause was not outside the range of principled outcomes.
Juror H’s stated lack of focus, and her seeming desire to not serve on the jury, was not a ground
for her dismissal for cause.

         On appeal, defendant contends that juror H’s state of mind prevented her from rendering
a just verdict. In support of her contention, defendant relies on People v DeFreitas, 116 AD3d
1078, 1080; 984 NYS2d 423 (2014), a nonbinding extra-jurisdictional authority. In DeFreitas,
the Appellate Division of the New York Supreme Court noted that, in the context of a challenge
for cause, dismissal of a juror who expressed concerns about her employment responsibilities
would only be warranted if “the juror indicates that he or she would be distracted or preoccupied
to the extent that it would preclude him or her from deliberating in a fair and impartial manner.”
Id. (citations omitted). Ultimately, the Appellate Division held that the trial court did not abuse
its discretion when it failed to discharge that juror because that juror’s responses did not “in any
way intimat[e] that she would be incapable of rendering an impartial verdict.” Id. at 1080-1081
(citations omitted).

        Disregarding the nonbinding nature of defendant’s supporting authority, defendant’s
contention is without merit. The extra-jurisdictional authority relied on by defendant wholly
comports with Williams, 241 Mich App at 519, as the key inquiry is whether the juror is capable
of rendering an impartial verdict. Further, defendant concludes without explication that juror
H’s state of mind prevented her from rendering a just verdict, and that there was a real likelihood
that her distraction affected her vote. Therefore, defendant has failed to carry her burden to
demonstrate that juror H was either biased or incompetent.

                                        III. SENTENCING

        Defendant’s second argument on appeal is that the trial court imposed an unreasonable
sentence when it departed upward from her recommended minimum sentencing guidelines range.
This Court reviews a departure sentence imposed by a trial court for reasonableness. Lockridge,
498 Mich at 392. Whether a sentence is reasonable is determined by applying the principle of
proportionality found in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), overruled by
statute as recognized in People v Armisted, 295 Mich App 32, 51, 811 NW2d 47 (2011).
Steanhouse, 313 Mich App at 46-47. Under Milbourn, “ ‘a given sentence [could] be said to
constitute an abuse of discretion if that sentence violate[d] the principle of proportionality, which
require[d] sentences imposed by the trial court to be proportionate to the seriousness of the
circumstances surrounding the offense and the offender.’ ” Id. at 45, quoting Milbourn, 435
Mich at 651 (alteration in original).



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       In Lockridge, the Michigan Supreme Court held that Michigan’s mandatory sentencing
guidelines were “constitutionally deficient,” and therefore, “sever[ed]” MCL 769.34(2) to the
extent necessary to render the sentencing guidelines “advisory.” Lockridge, 498 Mich at 364,
391, 399. Further, the Michigan Supreme Court held that a sentence that departed from the now
advisory sentencing guidelines should be reviewed for “reasonableness.” Id. at 365, citing
United States v Booker, 543 US 220, 264; 125 S Ct 738; 160 L Ed 2d 621 (2005).

        This Court held in Steanhouse that a sentence is reasonable if it “fulfills the principle of
proportionality under Milbourn, and its progeny[.]” Steanhouse, 313 Mich App at 47-48. Under
Milbourn, trials courts were “required to impose a sentence that took ‘into account the nature of
the offense and the background of the offender.’ ” Id. at 45, quoting Milbourn, 435 Mich at 651.
Milbourn also offered additional guidance for the review of a departure sentence:

               Where there is a departure from the sentencing guidelines, an appellate
       court’s first inquiry should be whether the case involves circumstances that are
       not adequately embodied within the variables used to score the guidelines. A
       departure from the recommended range in the absence of factors not adequately
       reflected in the guidelines should alert the appellate court to the possibility that
       the trial court has violated the principle of proportionality and thus abused its
       sentencing discretion. Even where some departure appears to be appropriate, the
       extent of the departure (rather than the fact of the departure itself) may embody a
       violation of the principle of proportionality. [Steanhouse, 313 Mich App at 45-
       46, quoting Milbourn, 435 Mich at 659-660 (quotation marks omitted).]

        Additionally, Steanhouse provided factors that were considered under the principle of
proportionality, and these factors included: “(1) the seriousness of the offense; (2) factors that
were inadequately considered by the guidelines; and (3) factors not considered by the guidelines,
such as the relationship between the victim and the aggressor, the defendant’s misconduct while
in custody, the defendant’s expressions of remorse, and the defendant’s potential for
rehabilitation.” Steanhouse, 313 Mich App at 46 (citations omitted).

        Defendant’s recommended sentencing guidelines range was 225 to 375 months or life.
Ultimately, the trial court departed upward, and sentenced defendant to a minimum sentence of
39 years’ (468 months’) imprisonment for her second-degree murder conviction. The trial court
sentenced defendant on October 1, 2015, which was after the Michigan Supreme Court decided
Lockridge, and prior to this Court’s decision in Steanhouse. Thus, during sentencing the trial
court acknowledged that, under Lockridge, a departure sentence would be reviewed for
reasonableness, and therefore, it provided its reasons for the upward departure on the record.
The trial court also issued a sentencing memorandum that stated its reasons for departing
upward. The trial court justified its upward departure by noting “the excessively violent nature”
of defendant’s attack on Douglas, defendant’s “coldblooded firing of a gun” at Johnson’s head,
and “the evidence presented at trial that clearly established” defendant’s guilt. As this Court had
not yet decided Steanhouse, the trial court did not specifically address whether its sentence also
satisfied the principle of proportionality.

       In Steanhouse, this Court required that implementation of the principle of proportionality
required remand for consideration of a sentence’s proportionality pursuant to Milbourn, utilizing


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the remand procedure adopted in United States v Crosby, 397 F3d 103 (CA 2, 2005).
Steanhouse, 313 Mich App at 48. Subsequently, this Court has held that a “trial court must be
permitted to reconsider defendant’s sentence in the light of Milbourn,” where the defendant was
sentenced prior to Steanhouse and Lockridge. People v Heller, ___ Mich App ___, ___; ___
NW2d ___ (2016) (Docket No. 326821); slip op at 2. Similarly, this Court has required a Crosby
remand even where a trial court went “went to great lengths to support its sentencing decision,”
because the trial court did not specifically consider whether the sentence imposed was “
‘proportionate to the seriousness of the circumstances of the offense and the offender.’ ” People
v Stevens, ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 328097); slip op at 3
quoting Milbourn, 435 Mich at 636.

        Thus, despite the trial court’s extensive explanation for its upward departure, a remand to
the trial court is necessary for the trial court to consider the principle of proportionality. As
defendant is entitled to a Crosby remand, we need not reach her arguments concerning the
unreasonableness of her sentence.

       Affirmed in part, and remanded for further sentencing proceedings consistent with
Lockridge, Steanhouse, and Crosby. We do not retain jurisdiction.

                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Deborah A. Servitto
                                                            /s/ Douglas B. Shapiro




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