                       STATE OF MICHIGAN

                        COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      March 24, 2015
               Plaintiff-Appellee,

v                                                                     No. 315196
                                                                      Wayne Circuit Court
CHRISTIAN BELL,                                                       LC No. 12-006721-FJ

               Defendant-Appellant.


Before: BECKERING, P.J., and HOEKSTRA and GLEICHER, JJ.

PER CURIAM.

                                     AFTER REMAND

        This case returns to us after remand for a hearing to determine whether the
prosecutor exercised two peremptory challenges in a racially discriminatory manner. In
accord with our instructions, the trial court conducted a hearing pursuant to Batson v
Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986). After taking testimony from
the prosecutor, the trial court concluded that the two peremptory challenges at issue had
not been motivated by purposeful racial discrimination. We affirm the trial court’s ruling
that the prosecutor stated “valid,” race-neutral justifications for the strikes.

        As detailed in this Court’s original opinion, a jury convicted Christian Bell of
second-degree murder, MCL 750.317, and possession of a firearm during the commission
of a felony, MCL 750.227b. On direct appeal, Bell raised several challenges to his
convictions and sentences. We found all of them unpersuasive but for Bell’s argument
that the trial court failed to consider his counsel’s timely Batson objection in the three-
step manner Batson prescribes. Our opinion outlined Batson’s analytical methodology,
which is set in motion when an objection is made to a peremptory challenge. The trial
court must first consider whether the challenger has established a prima facie case of
purposeful racial discrimination. Batson, 476 US at 93-94. If this showing is made, the
burden shifts to the prosecutor to articulate a race-neutral reason for the strike. Id. at 97.
The prosecutor’s justification need not be persuasive; at this second step in the process,
even “a frivolous or utterly nonsensical justification” will do, as long as the explanation
is race-neutral. Johnson v California, 545 US 162, 171; 125 S Ct 2410; 162 L Ed 2d 129
(2005).



                                             -1-
        The third step commences if and when the challenger contends that a racially
discriminatory motive actually inspired the prosecutor’s peremptory challenge. The trial
court must then review the evidence elicited during voir dire, and determine whether the
proffered reason is credible. “There will seldom be much evidence bearing on that issue,
and the best evidence often will be the demeanor of the attorney who exercises the
challenge.” Hernandez v New York, 500 US 352, 365; 111 S Ct 1859; 114 L Ed 2d 395
(1991). “While the reason offered by the prosecutor for a peremptory strike need not rise
to the level of a challenge for cause, the fact that it corresponds to a valid for-cause
challenge will demonstrate its race-neutral character.” Id. at 362-363 (citation omitted).

       Because the third-step findings hinge on credibility, it follows that our review is
deferential. “[A] trial court’s determination concerning whether the opponent of the
peremptory challenge has satisfied the ultimate burden of proving purposeful
discrimination is a question of fact that is reviewed for clear error.” People v Knight, 473
Mich 324, 344; 701 NW2d 715 (2005) (citation omitted). “Moreover, the trial court’s
ultimate factual finding is accorded great deference.” Id. “[A] reviewing court, which
analyzes only the transcripts from voir dire, is not as well positioned as the trial court is
to make credibility determinations.” Miller-El v Cockrell, 537 US 322, 339; 123 S Ct
1029; 154 L Ed 2d 931 (2003).

        At the Batson hearing, the parties devoted most of their efforts to reconstructing
the racial composition of the jury at the time of the two contested strikes. Our original
opinion had directed this exercise, although we also posited that the parties could instead
omit this step and proceed directly to testimony eliciting the prosecutor’s justifications
for the strikes. After reaching an agreement as to the race of the jurors in the venire at the
time of the strikes, the trial court ruled that Bell had failed to establish a prima facie case
of racial discrimination. We have our doubts about the correctness of that ruling, but our
concerns are of no consequence. Despite having rejected that defendant established an
inference of discrimination, the trial court explored through sworn testimony the
prosecutor’s justifications for the strikes, and rendered a determination that they were not
infected with racial bias. Having engaged the prosecutor and defense counsel on the
merits of Batson steps two and three, whether defendant made a sufficient prima facie
showing of discrimination no longer mattered. “Once a prosecutor has offered a race-
neutral explanation for the peremptory challenges and the trial court has ruled on the
ultimate question of intentional discrimination, the preliminary issue of whether the
defendant had made a prima facie showing becomes moot.” Hernandez, 500 US at 359.

       The prosecutor offered the following reasons for the contested strikes of jurors
Ethel Thomas and Gary Fizer:

             As it relates to Ms. Thomas, she indicated that her brother had
       been murdered in the City of Detroit. I think it was two years prior to her
       coming into court.

               That she had met with Homicide Detectives from the Detroit
       Police Department’s Homicide Division. And that even after an
       investigation, there was [sic] no suspects that had been developed.

                                             -2-
               Because of that, I excused her.

               As it relates to Mr. Fizer, Mr. Fizer had indicated that - - he
       indicated a lot of things.

               First he indicated that he was friends with a judge in Inkster. That
       led me to believe that at the time there was an ongoing situation with the
       current sitting Inkster judge.

               But he - - the thing that was most troubling to me, he also indicated
       that he had some children that had been investigated in the City of Detroit
       for criminal activity.

              But the reason why I kicked him was because he had indicated that
       he couldn’t even look at the defendant, because he reminded him of his
       grandson.

               And so that’s why I excused him.

        Defense counsel challenged these reasons. As to Ms. Thomas, counsel argued
that a Caucasian juror, Jenny Yates, revealed that “her father had been shot in the line of
duty,” and Ms. Yates’s grandmother “had been killed with a gun during domestic
violence.” No one was prosecuted for Ms. Yates’s father’s murder. Employing a
comparative juror analysis, counsel asserted that the reasons given for the strikes were
unconvincing. Counsel disputed that Mr. Fizer had actually expressed that “he would not
even look at the defendant,” and emphasized that Mr. Fizer had reassured the court that
“he could convict with a clear conscience” if he felt that the prosecution had proved its
case.

       The trial court found that juror Yates’s father’s shooting occurred 17 years
previously, “when she was a small child,” and that Ms. Yates had “indicated that it would
not impact her.” In contrast, the court recollected, Ms. Thomas’s brother was killed only
two years earlier, the case remained unsolved, and Ms. Thomas had personal contact with
the Homicide Unit. The trial court deemed the prosecutor’s explanation for excusing Ms.
Thomas “valid” because the Homicide Department’s failure to find Ms. Thomas’s
brother’s killer “was fresh in her mind,” which distinguished her from Ms. Yates.

        Quoting directly from the transcript of the prior trial, the court confirmed that Mr.
Fizer had indeed attested that “defendant reminded him of his grandson,” and that he had
expressed “I really don’t want to look at him” for that reason. These statements, the court
ruled, also constituted “valid” reasons for a peremptory challenge.

       We presume that by using the term “valid,” the trial court meant that the
prosecutor’s explanations for the challenges were credible, and that the prosecutor had
exercised the challenges in a nondiscriminatory manner. Given the “great deference”




                                            -3-
owed to trial courts’ Batson findings and that the court followed our directive by
engaging in the constitutionally required analysis, we affirm the denial of Bell’s Batson
claim.

       We affirm.

                                                           /s/ Jane M. Beckering
                                                           /s/ Joel P. Hoekstra
                                                           /s/ Elizabeth L. Gleicher




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