                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      October 30, 2014
               Plaintiff-Appellee,

v                                                                     No. 318254
                                                                      Saginaw Circuit Court
GREGORY DARNELL AGEE,                                                 LC No. 12-038086-FC

               Defendant-Appellant.


Before: SAAD, P.J., and O’CONNELL and MURRAY, JJ.

PER CURIAM.

       Defendant appeals by right his jury-based convictions of carjacking, MCL 750.529a;
kidnapping, MCL 750.349; armed robbery, MCL 750.529; carrying a dangerous weapon with
unlawful intent, MCL 750.226; three counts of first-degree criminal sexual conduct (CSC I),
MCL 750.520b; torture, MCL 750.85; third-degree fleeing and eluding a police officer, MCL
257.602a(3); and resisting and obstructing a police officer, MCL 750.81d(1). We affirm.

        Defendant’s sole argument on appeal is that the trial court improperly dismissed several
potential jurors for cause. Specifically, defendant asserts that the dismissal of several potential
jurors under MCR 2.511(D)(10) violates MCL 600.1307a(1) and MCL 600.1355, as well as his
state and federal constitutional rights to be tried by a fair and impartial jury. We review the trial
court’s rulings for abuse of discretion. See People v Williams, 241 Mich App 519, 522; 616
NW2d 710 (2000). A trial court abuses its discretion when its decision is outside the range of
principled outcomes. People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010).

        At the start of jury selection, the trial court asked for, and the prosecutor provided, a list
of several potential jurors who had been subjected to criminal prosecution by the Saginaw
County Prosecutor’s Office. The trial court then asked defense counsel if he had any objection
to those people being excused for cause. Defense counsel objected, stating that the jurors should
not be automatically excused. The prosecutor responded that the case law was clear and that
these people “must be dismissed as they would bear prejudice in this case.” The trial court ruled
that the jurors would be dismissed.

       MCL 600.1307a sets out the requirements a person must meet to qualify as a juror, one of
which is having not been convicted of a felony. MCL 600.1307a(1)(e). MCL 600.1355 provides
that “[w]ith respect to jury selection, any examination, replacement, oath or other practice not
otherwise governed by the provisions of this chapter shall be governed by rules adopted by the
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supreme court.” MCR 6.412 provides that MCR 2.510 and MCR 2.511 govern the procedure for
selecting and impaneling jury members unless stated otherwise in that chapter. Pursuant to MCR
6.412(D)(1), any prospective juror may be challenged for cause for any reason set forth in MCR
2.511(D), or any other legally recognized reason. “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.” MCR
6.412(D)(2). Under MCR 2.511(D)(10), grounds for a challenge for cause exist if the potential
juror “is or has been a party adverse to the challenging party or attorney in a civil action, or has
complained of or has been accused by that party in a criminal prosecution.”

       On appeal, defendant contends that the governing case law—People v Eccles, 260 Mich
App 379; 677 NW2d 76 (2004)—is incorrect on the ground that it violates MCL 600.1307a(1)
and MCL 600.1355. In Eccles, the prosecutor challenged four members of the jury array
because they had been the subject of misdemeanor criminal prosecution in that county. Id. at
381. This Court stated the following:

               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 a prospective juror falls within the parameters of one of the grounds
       enumerated in MCR 2.511(D),1 the trial court is without discretion to retain that
       juror, who must be excused for cause. [Id. at 382-383 (citation omitted).]

This Court further explained that once a proper ground for a challenge for cause has been shown,
“the trial court [is] without discretion to retain these individuals regardless of whether they
asserted an ability to be fair and impartial.” Id. at 385.

       We are bound by the Eccles holding, and we conclude that the holding is consistent with
MCR 2.511(D). Further, even assuming that the jurors were improperly excused, defendant’s
appeal fails for failure to demonstrate prejudice. “Failure to comply with the provisions of this
chapter shall not . . . affect the validity of a jury verdict unless . . . the party demonstrates actual
prejudice to his cause and unless the noncompliance is substantial.” MCL 600.1354. Defendant
does not argue he was prejudiced, but instead argues that a showing of prejudice should not be
required.

        In support of his contention, defendant cites US v Donato, 321 US App DC 287, 291; 99
F3d 426 (1996). In Donato, the trial court dismissed a juror after jury instructions were given
because the juror had airplane tickets to teach an out-of-state course and was concerned
deliberations might cause her to miss her flight. Id. at 429. The trial court excused her without
explaining why or under what rule such determination was made. Id. On appeal, the
government argued “that even if the trial court did violate [Federal] Rule 24(c), the defendant has
not shown that she suffered prejudice from the error and the conviction therefore should not be


1
  The Supreme Court modified MCR 2.511, effective January 1, 2006, by eliminating a felony
conviction as grounds for a challenge for cause. This modification changed the provision at
issue from (D)(11), as it was in Eccles, to (D)(10), as it is in this case.


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reversed.” Id. The court of appeals stated that “[i]t will nearly always be impossible . . . for a
defendant to show prejudice” when a juror is wrongfully removed from a jury array. Further, the
court stated that requiring a showing of prejudice would make Rule 24(c) “entirely precatory.”
Id. Instead of requiring prejudice, the court applied the Kotteakos standard: an error “will be
considered harmless so long as we can say ‘with fair assurance . . . that the judgment was not
substantially swayed by the error.’ ” Id., quoting Kotteakos v US, 328 US 750, 765; 66 S Ct
1239; 90 L Ed 1557 (1946).

        In this case, defendant makes no argument that the jurors who were selected were unfair
or biased. Further, the complainant testified in detail about defendant’s acts, and her testimony
was corroborated by several witnesses. In Donato, the trial court dismissed an already-
impaneled juror, and yet the appellate court noted it was “possible that [the court] would not
have reversed” if that had been the only error. Donato, 321 US App DC at 291. In this case, the
people excused were potential jurors, who may not have even been impaneled, and this is the
only error defendant alleges.

        In any event, defendant has failed to support his conclusory argument that he was denied
his right to a trial by a fair and impartial jury from a cross-section of the community. In Duren v
Missouri, 439 US 357, 364; 99 S Ct 664; 58 L Ed 2d 579 (1979), the United States Supreme
Court laid out the following three-part test to establish a violation of a defendant’s right to a trial
by a fair and impartial jury from the cross-section of the community:

       The defendant must show (1) that the group alleged to be excluded is a
       “distinctive” group in the community; (2) that the representation of this group in
       venires from which juries are selected is not fair and reasonable in relation to the
       number of such persons in the community; and (3) that this underrepresentation is
       due to systematic exclusion of the group in the jury selection process. [Id.
       (citation omitted).]

In this case, defendant has not shown that persons who have been subject to criminal prosecution
in Saginaw County are a distinctive group. Consequently, he cannot prevail on his challenge to
the dismissal of potential jurors.

       Affirmed.

                                                               /s/ Henry William Saad
                                                               /s/ Peter D. O’Connell
                                                               /s/ Christopher M. Murray




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