Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  April 7, 2006                                                                        Clifford W. Taylor,
                                                                                               Chief Justice

  128863                                                                             Michael F. Cavanagh
                                                                                     Elizabeth A. Weaver
                                                                                            Marilyn Kelly
                                                                                       Maura D. Corrigan
  PEOPLE OF THE STATE OF MICHIGAN,                                                   Robert P. Young, Jr.
            Plaintiff-Appellee,                                                      Stephen J. Markman,
                                                                                                    Justices

  v        	                                               SC: 128863
                                                           COA: 250977
                                                           Ogemaw CC: 03-002091-FH
  JONATHON CARL SCHEIDLER, 

           Defendant-Appellant. 


  _________________________________________/

        On order of the Court, the application for leave to appeal the April 19, 2005
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

         CAVANAGH and KELLY, JJ., would remand this case to the Ogemaw Circuit Court
  for an evidentiary hearing on defendant’s claims of juror bias regarding juror Burgher.

         MARKMAN, J., dissents and states as follows:

         Although the post-trial standard for granting a new trial on the basis of juror bias
  is a demanding one, People v Daoust, 228 Mich App 1 (1998), the allegation of bias in
  this case is unusually compelling and raises a serious question regarding whether
  defendant received a fair trial. Under the unusual circumstances of this case, I would
  remand for an evidentiary hearing regarding defendant's claims of bias on the part of one
  juror. In all other respects, I would deny defendant's application.

         Defendant was convicted by a jury of child sexually abusive activity, MCL
  750.145c(2), for filming underage girls engaging in sexual conduct. Defendant admitted
  that he filmed the activity, but claimed in defense that he believed the girls to be over 18.
  After trial, defendant obtained an affidavit from a juror who claimed that she had not
  disclosed that she had been raped by one of defendant’s potential witnesses, Jason
  Krueger. The trial court denied defendant’s motion for an evidentiary hearing, and the
  Court of Appeals affirmed defendant’s conviction.
                                                                                                               2


       In Daoust, supra at 9, the Court of Appeals stated:

              [W]hen information potentially affecting a juror’s ability to act
       impartially is discovered after the jury is sworn, the defendant is entitled to
       relief only if he can establish (1) that he was actually prejudiced by the
       presence of the juror in question or (2) that the juror was properly
       excusable for cause.

Here, the juror stated that had she known during voir dire the extent of Kruger’s
involvement -- that he was to attest to defendant's credibility and that he allegedly was a
participant himself in defendant's unlawful conduct -- she would not have told the judge
that she could be fair and impartial. She also stated that she could not say how she would
have voted had Kruger not been involved and that, had she been the defendant, she would
not want herself on the jury.

       It is relevant here that: (1) the juror claimed that Kruger had committed a sex
crime against her, (2) the instant offense concerned illegal sexual activity, (3) there was
testimony that Kruger himself participated in the illegal sexual activity, (4) the statute at
issue, MCL 750.145c(2), contains a requirement regarding knowledge of the victim's age,
(5) the defendant claimed to have no knowledge that the girls involved were under 18,
and (6) Kruger was mentioned by a character witness for the defendant as one of three
people who could vouch for defendant's trustworthiness. In other words, credibility was
a key question at trial, and the juror was asked to believe that defendant had not engaged
in any sexual impropriety on the basis that her own rapist would vouch for him.

       In light of these unusual circumstances, I believe that defendant has presented
sufficient evidence warranting an evidentiary hearing on the issue of juror bias. I would
therefore remand to the trial court for that purpose.




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         April 7, 2006                       _________________________________________
        t0404                                                                Clerk
