                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 17, 2015
              Plaintiff-Appellee,

v                                                                  No. 319058
                                                                   Wayne Circuit Court
MARVIN KEITH BANBURY,                                              LC No. 13-006785-FH

              Defendant-Appellant.


Before: GLEICHER, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of operating while intoxicated,
third offense, MCL 257.625(1), and operating with a suspended license, second offense, MCL
257.904(1). Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to 46 months
to 15 years’ imprisonment for his operating while intoxicated conviction, and to one year
imprisonment for his operating with a suspended license conviction. We reverse and remand for
a new trial.

       Defendant argues that the trial court plainly erred and committed reversible error when it
administered the incorrect jury oath prior to trial. We agree.

        “For an issue to be preserved for appellate review, it must be raised, addressed, and
decided by the lower court.” People v Metamora Water Serv, 276 Mich App 376, 382; 741
NW2d 61 (2007). Defendant failed to raise the issue of an improper jury oath at trial. Thus, the
issue is unpreserved. This Court reviews unpreserved issues for plain error affecting defendant’s
substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). In order for
defendant to establish plain error, he must show that (1) an error occurred, (2) the error was
plain, (3) and the plain error affected substantial rights. Id. To show that an error affected
substantial rights, a defendant must have been prejudiced. Id. Prejudice occurs when the “error
affected the outcome of the lower court proceedings.” Id. Reversal is warranted only if the error
seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Id.

       Defendant contends that the trial court erred when administering the oath to the jury
before trial because the court did not administer the oath in the form as defined in MCL 768.14
and MCR 2.511(H)(1). MCL 768.14 provides:



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       The following oath shall be administered to the jurors for the trial of all criminal
       cases: “You shall well and truly try, and true deliverance make, between the
       people of this state and the prisoner at bar, whom you shall have in charge,
       according to the evidence and the laws of this state; so help you God.”

Pursuant to MCR 6.412(A), MCR 2.511 governs the procedure for impaneling the jury. MCR
2.511(H)(1) provides:

       The jury must be sworn by the clerk substantially as follows:

       “Each of you do solemnly swear (or affirm) that, in this action now before the
       court, you will justly decide the questions submitted to you, that, unless you are
       discharged by the court from further deliberation, you will render a true verdict,
       and that you will render your verdict only on the evidence introduced and in
       accordance with the instructions of the court, so help you God.”

This Court has “opined that the oath that must be administered at the beginning of trial pursuant
to statute and court rule protects the fundamental right to a trial by a fair and impartial jury.”
People v Allan, 299 Mich App 205, 211; 829 NW2d 319 (2013), citing People v Pribble, 72
Mich App 219, 224-225; 249 NW2d 363 (1976).1

       Before jury selection, the trial court’s clerk administered the following oath to the jury:

               THE CLERK: You do solemnly swear or affirm that you will truthfully
       answer questions asked of you to determine if you are qualified to serve as for the
       jury in the case now pending before this court.

Before trial, the trial court’s clerk administered the following oath:

                THE CLERK: Do you solemnly swear or affirm that you will truthfully
       and completely answer all questions about your qualifications to serve as jurors in
       this case, whom you shall have in charge according to the evidence and the laws
       of this state, so help you God?

               JURY PANEL: I do.

       The oath administered did not require the jurors to swear or affirm that they would justly
decide the questions submitted to them or render a true verdict based on the evidence introduced



1
   We note that MCR 2.511 and MCL 768.14 conflict regarding the requirements for
administering the oath to the jury. Because the administration of the jury oath is a procedural
matter, the court rule governs over the statute. Allan, 299 Mich App at 211; People v Conat, 238
Mich App 134, 162; 605 NW2d 49 (1999). However, in this case, the conflict between the court
rule and statute is not at issue, as it appears the trial court followed neither the court rule or the
statute.


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and in accordance with the instruction of the court. Thus, the oath administered to the jury panel
did not substantially follow the oath prescribed in MCR 2.511(H)(1). Further, the oath also did
not comply with MCL 768.14. Therefore, plain error occurred. See Carines, 460 Mich at 763.

        In Allan, 299 Mich App 205, the trial court did not administer the oath to the jury
pursuant to the court rule or statute. Id. at 208, 211. The Allan Court held that a trial court’s
failure to administer the jury oath was a structural error that affected the outcome of the trial,
and, thus, defendant’s substantial rights. Id. at 218. The Court further held that the failure to
administer the oath to the jury seriously affected the fairness, integrity, and public reputation of
the proceedings. Id. Accordingly, the Allan Court concluded that the proper remedy was
reversal of the defendant’s convictions and remanded the case for a new trial. Id. at 219. Retrial
was permitted because the jury was not properly sworn and jeopardy did not attach. Id., citing
People v Grace, 258 Mich App 274, 279; 671 NW2d 554 (2003).

        Here, the trial court failed to properly administer the jury oath pursuant to the court rule
or statute, which affected defendant’s substantial right to be tried by an impartial jury. See
Allan, 299 Mich App at 218. Additionally, the failure to administer the oath to the jury seriously
affected the fairness, integrity, and public reputation of the proceedings. See Id. Accordingly,
we reverse defendant’s convictions and remand for a new trial. Retrial is permitted as the jury
was not properly sworn and jeopardy did not attach. Id. at 219, citing Grace, 258 Mich App at
279.2

       Reversed and remanded for a new trial. We do not retain jurisdiction.

                                                             /s/ Elizabeth L. Gleicher
                                                             /s/ Mark J. Cavanagh
                                                             /s/ Karen M. Fort Hood




2
 We note that the issue of whether “the failure to properly swear the jury, even in the absence of
a timely objection, is a structural error requiring a new trial[,]” is currently pending before our
Supreme Court. People v Cain, 497 Mich 861; 852 NW2d 898 (2014). However, this Court is
bound by the decision in Allan, and a Supreme Court order granting leave to appeal does not
diminish the precedential effect of a published opinion of the Court of Appeals. MCR
7.215(C)(2).


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