                                                                       Michigan Supreme Court
                                                                             Lansing, Michigan
                                                Chief Justice:	          Justices:



Opinion                                         Clifford W. Taylor 	     Michael F. Cavanagh
                                                                         Elizabeth A. Weaver
                                                                         Marilyn Kelly
                                                                         Maura D. Corrigan
                                                                         Robert P. Young, Jr.
                                                                         Stephen J. Markman




                                                                    JULY 21, 2005

 PEOPLE OF THE STATE OF MICHIGAN,

      Plaintiff-Appellant,

 v                                                                       No. 125375

 MARLON BELL,

      Defendant-Appellee.
 _______________________________

 BEFORE THE ENTIRE BENCH

 CORRIGAN, J.

      In   this     case,    we    consider   whether         the      trial         court

 failed    to     follow     the   three-step     process           of     Batson        v

 Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986),

 when it prohibited defendant from exercising his right to

 two peremptory challenges and, if so, whether that error is

 structural     and,   thus,       requires   automatic           reversal.             In

 Batson,    the     United     States   Supreme       Court         held     that        a

 peremptory challenge to strike a juror may not be exercised

 on the basis of race. Id. at 89, 96-98. The Court set forth

 a three-step process for determining whether a challenger

 has improperly exercised peremptory challenges.                         First, the
opponent of the challenge must make a prima facie showing

of discrimination based on race.                    Id. at 94-97.        Next, once

the prima facie showing is made, the burden then shifts to

the    challenging        party    to    come        forward     with    a      neutral

explanation for the challenge.                      Id. at 97.      Finally, the

trial     court       must    decide     whether       the      opponent      of      the

challenge       has    proven     purposeful         discrimination.            Id.    at

100.

        In this case, a prima facie showing was made that two

of defendant’s peremptory challenges were based on race.

The     trial     court      initially        erred    in    failing       to      allow

defendant        to     provide        race-neutral          reasons         for      the

challenges.        The trial court subsequently cured this error

by     allowing        defendant        to        provide    reasons         for      the

challenges.        Defendant’s reasons were race-conscious rather

than race-neutral. Accordingly, the trial court disallowed

the challenges.              Because the trial court’s initial error

was subsequently cured and because defendant’s reasons were

race-conscious, we conclude that the trial court did not

fail to follow the three-step Batson procedure and did not

err in disallowing the challenges in question.                           We further

conclude    that       the    trial    judge’s        initial    error       does     not

require automatic reversal.                   We thus reverse the judgment

of the Court of Appeals.


                                             2

                I. UNDERLYING FACTS AND PROCEDURAL HISTORY

        On July 29, 1999, defendant robbed and shot Chanel

Roberts and Amanda Hodges, killing both victims.                                 Following

a jury trial, defendant was convicted of two counts of

first-degree       felony      murder,       MCL       750.316;         two    counts       of

armed robbery, MCL 750.529; and one count of conspiracy to

commit     armed       robbery,       MCL        750.529       and       MCL     750.157a.

Defendant was sentenced to concurrent terms of mandatory

life     imprisonment         without       parole        for      the     first-degree

felony    murder       convictions        and     life     imprisonment              for   the

armed     robbery      and     conspiracy          to     commit         armed       robbery

convictions.

        Defendant is African-American and the two victims were

Caucasian. During jury selection, defense counsel attempted

to   exercise      a    peremptory        challenge           to   strike        potential

juror    number     ten,      who    is     Caucasian.             Juror       ten    stated

during    voir     dire      that    three       of     his    friends         were    high-

ranking police officers, but that he “wouldn’t think” that

this     fact    would       affect       his      ability         to     be    fair       and

impartial.       When defense counsel attempted to excuse this

juror     peremptorily,             the     trial        court          disallowed         the

challenge,       concluding          that        counsel       had       exercised         the

challenge on the basis of race.                       The trial court initially

refused to allow defense counsel to make a record, but


                                            3

reconsidered            after         defense         counsel         expressed

dissatisfaction with the trial court’s refusal.                            Defense

counsel then furnished a race-conscious, rather than race-

neutral,    reason      for     the    challenge      and   the    trial    court

continued to disallow the challenge.

        Jury selection continued. After several more defense

peremptory challenges, the prosecutor objected when defense

counsel    attempted       to    excuse       juror    number      five.      The

prosecutor claimed that defense counsel was attempting to

strike juror five on the basis of race, contrary to Batson.

The trial court excused the jury in order to make a record

regarding the challenge.                The prosecutor noted that the

current challenge was defense counsel’s third consecutive

strike on a Caucasian male and that defense counsel was

attempting       to    exclude     Caucasian        males   from     the    jury.

Defense    counsel      replied       that    the   prosecution’s      argument

would have some merit if no other Caucasian males remained

on the jury.          Defense counsel also noted that the majority

of the remaining jurors was Caucasian.                       Defense counsel

offered no other explanation for his challenge.                       The trial

court    found    defense       counsel’s     explanation       race-conscious

and disallowed the challenge.                  Consequently, both jurors

five and ten sat on the jury that convicted defendant.




                                         4

      On appeal, defendant raised several claims of error,

including the claim that the trial court failed to follow

the three-step procedure mandated in Batson in disallowing

his peremptory challenges of jurors five and ten.                    The

Court of Appeals, in a split decision, agreed that the

trial court failed to follow the Batson procedure, but,

nevertheless, upheld defendant’s convictions.1            Judges Zahra

and Wilder concluded that the trial court’s Batson error

was   not   of   constitutional   dimension   and   was    subject   to

harmless error analysis, while Judge Fitzgerald would have

held that the error was structural and required automatic

reversal.

      Defendant sought reconsideration. The Court of Appeals

granted defendant’s motion and vacated its prior opinion.2

On reconsideration, the Court held that a denial of the

statutory right to a peremptory challenge is error per se.3

Judges Zahra and Wilder concurred, stating that they were

“duty-bound” to follow the holdings in People v Miller, 411




      1
       Unpublished opinion per curiam, issued October 2,
2003 (Docket No. 233234).
      2
       Unpublished order of the Court of Appeals, entered
October 30, 2003 (Docket No. 233234).
      3
       (On Reconsideration), 259 Mich App 583; 675 NW2d 894
(2003).



                                  5

Mich 321; 307 NW2d 335 (1981), and People v Schmitz, 231

Mich App 521; 586 NW2d 766 (1998).

      The prosecutor applied for leave to appeal, contending

that the alleged denial of defendant’s statutory right to

remove     prospective       jurors     peremptorily       was    not    error

requiring automatic reversal.

      We granted the prosecution’s application for leave to

appeal.4        The prosecution contends that the trial court did

not err in failing to follow the procedures set forth in

Batson.     Alternatively, the prosecution argues that even if

the   trial      court    erred   in   failing     to   follow    the   Batson

procedures, the error was harmless.

      Defendant argues that the trial court denied him his

right to exercise two peremptory challenges by arbitrarily

disallowing the challenges without following the mandated

Batson     procedures.        Defendant       further    argues    that    the

denial of this right requires automatic reversal.

                             II. STANDARD OF REVIEW

      This case requires us to determine whether the trial

court failed to follow the procedures set forth in Batson

in disallowing two of defendant’s peremptory challenges. We

review     de    novo    issues   regarding    a   trial   court’s      proper


      4
          470 Mich 870 (2004).



                                       6

application of the law.          People v Goldston, 470 Mich 523,

528; 682 NW2d 479 (2004).              We review for clear error a

trial    court’s     decision    on        the   ultimate    question      of

discriminatory intent under Batson.               Hernandez v New York,

500 US 352, 364-365; 111 S Ct 1859; 114 L Ed 2d 395 (1991);

United States v Hill, 146 F3d 337, 341 (CA 6, 1998).

                                III. ANALYSIS

                                A. Batson Rule

     In Batson, the United States Supreme Court made it

clear that a peremptory challenge to strike a juror may not

be exercised on the basis of race. Batson, supra at 89, 96-

98. The prosecution in Batson attempted to exclude African-

American jurors solely on the basis of their race. Id. at

82-83.     The Court determined that the prosecution’s actions

violated    the    Equal   Protection       Clause.    It    set   forth    a

three-step process for determining an improper exercise of

peremptory challenges.        First, there must be a prima facie

showing of discrimination based on race.              Id. at 94-97.        To

establish a prima facie case of discrimination based on

race, the opponent of the challenge must show that: (1) the

defendant is a member of a cognizable racial group; (2)

peremptory     challenges     are     being      exercised    to   exclude

members of a certain racial group from the jury pool; and

(3) the circumstances raise an inference that the exclusion


                                      7

was based on race.             Id. at 96.              The Batson Court directed

trial    courts     to    consider         all     relevant           circumstances      in

deciding whether a prima facie showing has been made.                                 Id.

        Once the opponent of the challenge makes a prima facie

showing, the burden shifts to the challenging party to come

forward with a neutral explanation for the challenge.                                    Id.

at 97.      The neutral explanation must be related to the

particular case being tried and must provide more than a

general     assertion         in     order        to     rebut        the   prima     facie

showing.     Id. at 97-98.               If the challenging party fails to

come forward with a neutral explanation, the challenge will

be denied.       Id. at 100.

        Finally,    the       trial      court         must    decide       whether      the

nonchallenging party has carried the burden of establishing

purposeful discrimination.                 Id. at 98.               Since Batson, the

Supreme    Court     has      commented           that     the        establishment      of

purposeful discrimination “comes down to whether the trial

court    finds     the    .    .    .    race-neutral           explanations        to    be

credible.”         Miller-El v Cockrell, 537 US 322, 339; 123 S

Ct 1029; 154 L Ed 2d 931 (2003).                        The Court further stated,

“Credibility can be measured by, among other factors, the

. . . [challenger’s] demeanor; by how reasonable, or how

improbable,        the    explanations            are;        and     by    whether      the

proffered     rationale            has    some         basis     in     accepted      trial


                                             8

strategy.”        Id. at 339.           If the trial court finds that the

reasons proffered were a pretext, the peremptory challenge

will be denied.           Batson, supra at 100.

            B. Application of Batson to the Facts in this Case

      In    Michigan,        the       right        to     exercise      a      peremptory

challenge is provided by court rule and statute.                                According

to   MCR    6.412(E)(1),           a    defendant           is    entitled       to      five

peremptory         challenges          unless         an       offense       charged       is

punishable by life imprisonment, in which case a defendant

being      tried     alone        is    entitled           to     twelve        peremptory

challenges.         Further, under MCL 768.13, “[a]ny person who

is   put    on    trial     for    an    offense          punishable       by    death    or

imprisonment        for     life,       shall        be     allowed      to     challenge

peremptorily        twenty        of    the        persons       drawn   to      serve    as

jurors, and no more . . . .”5

      The     trial       court        followed          the     court     rule,      which

entitled defendant to twelve peremptory challenges because

he   was     on     trial     for       an     offense          punishable       by      life

imprisonment.             Defendant          claims        that    the       trial    court

violated his right to two of the peremptory challenges by


      5
       MCR 6.412(E) departs from the statute by reducing the
number of peremptory challenges to which a defendant is
entitled. We need not resolve the discrepancy between the
statute and the court rule because this issue is not before
us.



                                              9

failing   to   follow      the   three-step   procedure    mandated      in

Batson in disallowing the challenges.

     Applying the above rules to the facts in this case, we

conclude that no such error occurred.6

   1. Prima Facie Showing of Discrimination Based on Race

     Here, defense counsel had already exercised several

peremptory challenges and was attempting to challenge juror

ten when the trial court interrupted and requested that

counsel for both parties proceed to chambers.                   While in

chambers,    the   trial    court   stated    that   it   was   going   to

disallow the challenge because defense counsel had based

his challenges on the race of the juror.              The trial court

reached     this   conclusion       because    defense     counsel      had

established a pattern of excusing Caucasian males.7

     After defense counsel’s peremptory challenge of juror

five, the prosecution objected, reasoning that juror five



     6
       In Georgia v McCollum, 505 US 42, 59; 112 S Ct 2348;
120 L Ed 2d 33 (1992), on remand 262 Ga 554; 422 SE2d 866
(1992), the United States Supreme Court extended the Batson
rule to govern the conduct of criminal defendants (“the
Constitution prohibits a criminal defendant from engaging
in purposeful discrimination on the ground of race in the
exercise of peremptory challenges”).
     7
       The challenge to juror ten was defense counsel’s
ninth challenge.   Of the nine challenges, defense counsel
exercised seven against Caucasian males and two against
females whose race could not be determined from the record.



                                    10

was Caucasian and the two previous challenges by defense

counsel were of Caucasian males.                   The trial court agreed

and disallowed the challenge.

       On appeal, defendant argued that the trial court erred

by raising Batson sua sponte to question defense counsel’s

reasons   for     peremptorily       challenging         juror    number    ten.

Defendant further maintained that neither the trial court

nor the prosecution established a prima facie showing of

discrimination based on race for either challenge.

       The Court of Appeals held that a trial court may raise

a Batson issue sua sponte, noting that virtually all state

courts have concluded that a trial court may raise a Batson

issue sua sponte.          The Court of Appeals, however, concluded

that    because      the    record     did        not    reveal   the      racial

identities      of    the    prospective          jurors,    it    could      not

determine whether a prima facie case of discrimination had

been established.

       We have not previously addressed the question whether

a trial court may raise a Batson issue sua sponte. The

rationale    underlying       Batson        and    its    progeny,      however,

supports the Court of Appeals position that the trial court

may make an inquiry sua sponte after observing a prima

facie case of purposeful discrimination through the use of




                                      11

peremptory challenges.             Batson and its progeny8 make clear

that a trial court has the authority to raise sua sponte

such an issue to ensure the equal protection rights of

individual jurors.              See Batson, supra at 99 (“In view of

the heterogeneous population of our Nation, public respect

for our criminal justice system and the rule of law will be

strengthened if we ensure that no citizen is disqualified

from       jury   service       because    of   his   race.”);    Georgia    v

McCollum, 505 US 42, 49-50; 112 S Ct 2348; 120 L Ed 2d 33

(1992), quoting State v Alvarado, 221 NJ Super 324, 328;

534 A2d 440 (1987) (“‘Be it at the hands of the State or

the    defense,’     if     a   court     allows   jurors   to   be   excluded

because of group bias, ‘[it] is [a] willing participant in

a scheme that could only undermine the very foundation of

our system of justice--our citizens’ confidence in it.’”).

       The United States Supreme Court, in Powers v Ohio, 499

US 400, 416; 111 S Ct 1364; 113 L Ed 2d 411 (1991), held




       8
        The Court of Appeals correctly noted that the
following cases have held that a trial court may raise a
Batson issue sua sponte to protect the rights secured by
the Equal Protection Clause: State v Evans, 100 Wash App
757, 765-767; 998 P2d 373 (2000); Commonwealth v Carson,
559 Pa 460, 476-479; 741 A2d 686 (1999); Brogden v State,
102 Md App 423, 430-432; 649 A2d 1196 (1994); Lemley v
State, 599 So 2d 64, 69 (Ala App, 1992).



                                          12

that   a   criminal   defendant   has   standing   to   object   to   a

prosecutor’s peremptory challenges. It reasoned:

            The barriers to a suit by an excluded juror
       are daunting. Potential jurors are not parties to
       the   jury   selection    process  and    have   no
       opportunity to be heard at the time of their
       exclusion. Nor can excluded jurors easily obtain
       declaratory     or    injunctive    relief     when
       discrimination   occurs   through  an    individual
       prosecutor’s exercise of peremptory challenges.
       Unlike a challenge to systematic practices of the
       jury   clerk   and   commissioners   such   as   we
       considered in Carter [v Jury Comm of Greene Co,
       396 US 320; 90 S Ct 518; 24 L Ed 2d 549 (1970)],
       it would be difficult for an individual juror to
       show a likelihood that discrimination against him
       at the voir dire stage will recur. And, there
       exist considerable practical barriers to suit by
       the excluded juror because of the small financial
       stake involved and the economic burdens of
       litigation. The reality is that a juror dismissed
       because of race probably will leave the courtroom
       possessing little incentive to set in motion the
       arduous process needed to vindicate his own
       rights. [Id. at 414-415 (citations omitted).]


       The Powers Court further stated:

            The statutory prohibition on discrimination
       in the selection of jurors, enacted pursuant to
       the Fourteenth Amendment’s Enabling Clause, makes
       race neutrality in jury selection a visible, and
       inevitable, measure of the judicial system’s own
       commitment to the commands of the Constitution.
       The courts are under an affirmative duty to
       enforce the strong statutory and constitutional
       policies embodied in that prohibition.    [Id. at
       416 (citation omitted).]


       The Supreme Court’s rationale for allowing a defendant

to raise a     Batson   issue supports our conclusion that a



                                  13

trial court may sua sponte raise a Batson issue.                         Trial

courts are in the best position to enforce the statutory

and        constitutional        policies         prohibiting           racial

discrimination.          Further,     wrongly    excluded      jurors       have

little incentive to vindicate their own rights.                     We thus

conclude, for the foregoing reasons, that a trial court may

sua sponte raise a Batson issue.

       We reject the Court of Appeals assertion that it could

not establish whether a prima facie case of discrimination

had    been   made   regarding      the     challenges    because      of   the

inadequacy of the record.           It is undisputed that defendant

is an African-American male.                While the challenged jurors

were not of defendant’s racial group, it is equally harmful

to    challenge   only    members     outside     a   defendant’s       racial

group.        Powers,    supra   at       415-416.       The   trial    court

specifically stated that it was disallowing the challenges

because defense counsel, for the better part of the day,

had only excused Caucasian male jurors.9                  Defense counsel

did not dispute that he had only excused Caucasian males.




       9
       We recognize that the trial court’s statement is not
entirely accurate because defense counsel peremptorily
challenged two females.    We conclude, however, that this
fact does not diminish defense counsel’s pattern of
peremptorily challenging Caucasian males.



                                      14

Instead, he pointed to the racial make-up of the remaining

jurors to justify his challenges.

        The trial court rejected defense counsel’s challenge

of juror ten because defense counsel had exercised seven of

nine    peremptory        challenges       against       Caucasian        males.    The

prosecution         objected     to   defense       counsel’s         challenge         of

juror five because defense counsel consecutively excused

three Caucasian male jurors.                     In both instances, defense

counsel’s challenges created a pattern of strikes against

Caucasian males.           This pattern was sufficient to raise an

inference       that      defense       counsel      was     indeed        excluding

potential jurors on the basis of their race.                           See Batson,

supra    at    97    (a   pattern     of    strikes       against     jurors       of    a

specific        race      may    give       rise     to     an      inference           of

discrimination).            We    thus      conclude       that     the    Court        of

Appeals erred in failing to find a prima facie showing of

discrimination based on race.

                    2. Neutral Explanation for the Challenge

        Once a prima facie showing is made, the burden shifts

to the challenger to provide a neutral explanation for the

challenge.          Upon the trial court’s finding that defense

counsel’s challenge of juror ten was based on race, defense

counsel       requested    an    opportunity        to    make    a    record.      The

trial court initially denied defense counsel’s request, but


                                           15

reconsidered      upon    defense    counsel’s       objection.         Defense

counsel stated:

          I would bring to the Court’s attention that
     the number of white males on that panel still
     exceeds the number of the minorities on that
     panel. Why don’t you talk about the whole racial
     composition of that panel? There’s still a vast
     majority of white members on that panel than it
     is [sic] black members on that panel.

     The    trial     court   responded      by    stating      that    defense

counsel’s    reason      supported    its    prima      facie   finding       that

counsel had exercised the challenge on the basis of race

and upheld its disallowance of the challenge.

     After    the    prosecutor      objected      to     defense    counsel’s

peremptory     challenge      of     juror     five,      the   trial     court

disallowed the challenge “for the same reasons as asserted

before.”     Defense counsel objected and attempted to make a

record, but the trial court interrupted him.                        The trial

court then allowed defense counsel to make a record, but

only after the prosecutor asked to approach the bench.                        The

prosecutor    stated      that   defense     counsel’s      three      previous

peremptory     challenges,         including      juror     five,      were     of

Caucasian males.         Defense counsel responded by giving race-

neutral reasons for two of the challenges.                  The trial court

noted that it was only concerned with defense counsel’s

reasons     for     challenging      juror     five.       Defense      counsel

replied:


                                      16

          Judge, again, if there were no other white
     males on that jury, or white males were a
     minority on that jury, then there may be some
     persuasive force to [the assistant prosecutor’s]
     argument about a Battson [sic] challenge.

          That   simply   is not   the  case.     The
     demographics of that jury do not hold up to that
     kind of a challenge.

          And I think I don’t have to have a reason
     for exercising a peremptory challenge.

     Defense      counsel     gave     no    other       reason     for     his

challenge.     The    trial        court    stated       that     peremptory

challenges   could    not     be    based    on   race    and     found   that

defense counsel's peremptory challenge of juror five had

been based on gender and race.

     The Court of Appeals concluded that even if a prima

facie case had been established, the trial court failed to

comply with steps two and three of the Batson process.                       It

found that the trial court erred by denying defense counsel

the opportunity to make a record before disallowing the

peremptory challenge of juror ten.                It further found that

the trial court failed to inquire whether defense counsel

had a race-neutral reason for striking juror five.

     We   agree    that     the    trial    court   initially       erred    in

denying defense counsel the opportunity to provide race-

neutral reasons for his challenges. We conclude, however,

that these errors were cured when the trial court, almost



                                     17

immediately after each challenge, permitted defense counsel

to make a record.          It then based its ultimate conclusion to

disallow     the   challenges         on      defendant’s    race-conscious

reasons.    Because    the    trial      court    did   perform     the      steps

required by Batson, albeit somewhat belatedly, it did not

improperly deny defendant the right to exercise two of his

statutorily prescribed peremptory challenges.

        We reject the claim that the trial court failed to

inquire whether defense counsel had a race-neutral reason

for striking juror five because the record shows otherwise.

Defense     counsel        provided      only     one    reason        for    his

challenges, which was not race-neutral and did not refute

the prima facie showing that his challenges were based on

race.     Just as a challenger may not exclude a prospective

juror on the basis of race, it is equally improper for a

challenger to engineer the composition of a jury to reflect

the race of the defendant.

        Finally, defendant claims on appeal that his responses

were not given as race-neutral reasons for his challenges,

but, rather, as attempts to disprove the trial court’s and

the     prosecution’s        prima       facie     showings       of      racial

discrimination.       We    are   not      persuaded    by   this      argument.

Defense counsel never contended that the trial court and

the prosecution had not made a prima facie case of racial


                                        18

discrimination.         If he was merely attempting to disprove

the prima facie showings, defense counsel would not have

stopped there, but would have also provided race-neutral

reasons for the challenges in the event that the trial

court refused to accept his argument.                      Additionally, the

record indicates that defense counsel understood that he

was   to     provide    race-neutral          reasons.        The   prosecution

objected to the challenge of juror five because defense

counsel’s three previous peremptory challenges, including

juror five, were of Caucasian males.                   Defense counsel then

furnished race-neutral reasons for two of the challenges.

But   with    respect    to     juror    five,      defense    counsel    merely

stated     that   the     prosecution’s         argument       failed    because

Caucasian     males     still    remained      on    the   jury.        Defendant

clearly      demonstrated       his     understanding         and   ability   to

provide race-neutral reasons when needed. In juror five’s

case, he failed to do so.10              While defense counsel may not



      10
        Defense counsel’s failure to provide race-neutral
reasons for his challenges, especially after demonstrating
his ability to do so, provide additional support for the
inference of discrimination. See Johnson v California,___
US ___; 125 S Ct 2410; 162 L Ed 2d 129 (2005), in which the
United States Supreme Court stated:

              In the unlikely hypothetical in which the
       prosecutor declines to respond to a trial judge's
       inquiry regarding his justification for making a
Footnotes continued on following page.


                                        19

have   effectively     used   his   opportunity    to     provide   race-

neutral reasons for his challenges, he had the opportunity.

Defendant    cannot    complain     now   that   the    opportunity     was

insufficient.

            3. Trial Court’s Decision Regarding Purposeful
                          Discrimination

       Finally, the trial court must determine whether the

opponent    of   the   challenge     has    carried      the   burden    of

establishing purposeful discrimination.                This decision may


       strike, the evidence before the judge would
       consist not only of the original facts from which
       the prima facie case was established, but also
       the prosecutor's refusal to justify his strike in
       light of the court’s request. Such a refusal
       would   provide   additional   support    for   the
       inference   of   discrimination    raised    by   a
       defendant's prima facie case.    [Id., ___ US ___
       n 6; 125 S Ct ___ n 6; 162 L Ed 2d 140 n 6.]

      Justice Kelly claims that defendant did not provide
race-neutral reasons for his challenges because he was
never asked for his reasons.         The trial transcript,
however, indicates that defendant did provide reasons,
which the trial court found to be race-conscious.     After
the prosecutor’s objection to the exclusion of prospective
juror    five,   defense  counsel  volunteered race-neutral
reasons for excluding the two prospective jurors preceding
prospective juror five.       The trial court then stated,
“That’s not an issue.       The issue is the last juror.”
Defense counsel responded, “Judge, again, if there were no
other white males on the jury, or white males were a
minority on that jury, then there may be some persuasive
force to [the prosecutor’s] argument about a Battson [sic]
challenge.”     The trial court then indicated, “[b]ut you
cannot use a racial basis or a gender basis for excusing
jurors.”     Defense counsel responded, “And I’ve given my
reasons on the record, and . . . none of them were related
to race or gender.”



                                    20

hinge on the credibility of the challenger’s race-neutral

explanations,         but       only    if    the    challenger    provided       race-

neutral explanations.                 Here, defense counsel provided race-

conscious,         rather        than     race-neutral,          reasons    for    his

challenges.         This reinforces the prima facie showings that

the challenges were based on race.                      Consequently, the trial

court        did     not        clearly       err     in    finding        purposeful

discrimination.

           IV. 	 STANDARD OF REVIEW FOR DENIALS OF PEREMPTORY
                             CHALLENGES
        In light of our conclusion that the trial court’s

initial error was cured, we need not address whether a

denial of a peremptory challenge is subject to automatic

reversal.          Had we concluded, however, as do our dissenting

colleagues, that defendant’s peremptory challenges had been

improperly denied, we would have applied a harmless error

standard to the error, because People v Miller, 411 Mich

321; 307 NW2d 335 (1981), and People v Schmitz, 231 Mich

App 521; 586 NW2d 766 (1998), are no longer binding, in

light of our current harmless error jurisprudence, to the

extent that they hold that a violation of the right to a

peremptory challenge requires automatic reversal.

        We    arrive       at    this        conclusion     by    recognizing      the

distinction         between       a     Batson      error   and    a   denial     of   a

peremptory challenge.                  A Batson error occurs when a juror


                                              21

is actually dismissed on the basis of race or gender.11                    It

is undisputed that this type of error is of constitutional

dimension    and   is     subject    to       automatic   reversal.12      In

contrast,    a   denial    of    a   peremptory      challenge     on   other

grounds amounts to the denial of a statutory or court-rule-

based right to exclude a certain number of jurors.                         An

improper denial of such a peremptory challenge is not of

constitutional dimension.13

     In     Miller,     this    Court     held    that    “a   defendant   is

entitled to have the jury selected as provided by the rule.

Where, as here, a selection procedure is challenged before

the process begins, the failure to follow the procedure

prescribed in the rule requires reversal.14                In Schmitz, the

Court of Appeals relied on Miller to hold that a denial of




     11
          Batson, supra.
     12
        See  Johnson v United States, 520 US 461, 468-469;
117 S Ct 1544; 137 L Ed 2d 718 (1997); J E B v Alabama ex
rel T B, 511 US 127, 142 n 13; 114 S Ct 1419; 128 L Ed 2d
89 (1994).
     13
        United States v Martinez-Salazar, 528 US 304, 311;
120 S Ct 774; 145 L Ed 2d 792 (2000); Ross v Oklahoma, 487
US 81, 88; 108 S Ct 2273; 101 L Ed 2d 80 (1988)(the United
States Supreme Court recognized that peremptory challenges
are not of constitutional dimension and are merely a means
to achieve the end of an impartial jury).
     14
          Miller, supra at 326.



                                        22

a   peremptory      challenge   requires       automatic   reversal.15

Following Miller and Schmitz, however, our harmless error

jurisprudence has evolved a great deal, as has that of the

United States Supreme Court.           See People v Carines, 460

Mich 750, 774; 597 NW2d 130 (1999).16              Under Carines, a

nonconstitutional      error    does     not     require    automatic

reversal.     Id.    Rather, if the error is preserved, it is

subject to reversal only for a miscarriage of justice under

the Lukity17 “more probable than not” standard.             Id.   See




     15
          Schmitz, supra at 530-532.
     16
        See, also, Martinez-Salazar, supra at 317 n 4, in
which the Supreme Court recognized that the rule of
automatic reversal for an erroneous denial of peremptory
challenges makes little sense in light of its recent
harmless error jurisprudence. It stated:

          Relying on language in Swain v Alabama . . .
     Martinez-Salazar urges the Court to adopt a
     remedy    of   automatic    reversal    whenever    a
     defendant’s   right   to   a   certain    number   of
     peremptory challenges is substantially impaired.
     . . .   Because we find no impairment, we do not
     decide in this case what the appropriate remedy
     for a substantial impairment would be. We note,
     however, that the oft-quoted language in Swain
     was not only unnecessary to the decision in that
     case—because Swain did not address any claim that
     a   defendant   had   been   denied   a    peremptory
     challenge—but was founded on a series of our
     early cases decided long before the adoption of
     harmless-error review.
     17
          People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607
(1999).



                                 23

also MCL 769.26.     If the error is forfeited, it may be

reviewed only for plain error affecting substantial rights.

Carines, supra.

     Because   the   right    to     a   peremptory   challenge   in

Michigan is not provided by the Michigan Constitution but,

rather, by statute and court rule, we conclude, as did the

United States Supreme Court, that the right is of non-

constitutional dimension.18        Thus, under our jurisprudence,




     18
        Although courts in other jurisdictions have reached
contrary conclusions, we believe their analyses are
unpersuasive.   In United States v McFerron, for example,
the Sixth Circuit Court of Appeals held that the erroneous
denial of a peremptory challenge is a structural error.
163 F3d 952, 956 (CA 6, 1998).        But McFerron predated
Martinez-Salazar and is therefore of questionable weight.

     The Washington Supreme Court also held that the denial
of a peremptory challenge in a so-called “reverse-Batson”
context is structural error. State v Vreen, 143 Wash 2d
923; 26 P3d 236 (2001). While Vreen acknowledges Martinez-
Salazar, the court dismisses that case with a cursory and,
in our view, unpersuasive analysis. Indeed, all the cases
cited by the Vreen court for its assertion that “the vast
majority [of courts] have found harmless error doctrine
simply   inappropriate  in   such   circumstances”  predate
Martinez-Salazar. See id. at 929.

       We agree with the Court of Appeals for the Seventh
Circuit that Martinez-Salazar marked a significant shift in
the standard of review applicable to the erroneous denial
of a peremptory challenge. United States v Harbin, 250 F3d
532, 546 (CA 7, 2001), citing United States v Patterson,
215 F3d 776 (CA 7, 2000), vacated in part by Patterson v
United States, 531 US 1033 (2000). In Harbin, the Seventh
Circuit noted that it had been “[f]reed from the Swain
language by the Court’s footnote in Martinez-Salazar
Footnotes continued on following page.


                                   24

a violation of the right is reviewed for a miscarriage of

justice   if   the   error       is   preserved    and     for   plain   error

affecting substantial rights if the error is forfeited.19

                      V.     RESPONSE TO THE DISSENT

     Justice Kelly’s dissent asserts that the trial court’s

failure   to   follow      the    three-step      Batson    procedures     was



. . . .” Harbin, supra at 546 (holding, however, that the
prosecution’s mid-trial use of a peremptory challenge was a
structural error).   United States v Jackson, 2001 US Dist
LEXIS 4900, *7 n 1 (SD Ind, 2001) (“The bottom line is that
[the] discussion of the need for a clear understanding of
the peremptory challenge [in United States v Underwood, 122
F3d 389, 392 (CA 7, 1997)] process remains good law, but
the automatic reversal standard is no longer applicable.”)

     Given the standard of harmless error review that now
prevails in both the United States Supreme Court and this
Court, we believe that the erroneous denial of a peremptory
challenge is not subject to automatic reversal.
     19
        Justice Kelly inaccurately states that we are
departing from the trend set by most other courts that have
considered harmless error application to denials of
peremptory challenges.   We do not depart from that trend,
however, because the trend leans toward application of
harmless error analysis to improper denials of peremptory
challenges.

     Justice Kelly further states that we rely on Martinez-
Salazar to support our alleged departure.      We, however,
rely on current Michigan harmless error jurisprudence to
support our conclusion that an improper denial of a
peremptory challenge is subject to harmless error analysis.
We discuss Martinez-Salazar to merely show that the United
States Supreme Court’s harmless error jurisprudence is
evolving, which strongly indicates that in the federal
system nonconstitutional errors, such as an improper denial
of peremptory challenges, would be subject to harmless
error analysis.



                                       25

incurable and requires automatic reversal. She states that

the trial court failed to complete a single step of the

three-step Batson procedures and collapsed all three steps

into    one.        In    reaching   this      conclusion,      Justice     Kelly

states that the trial court failed to scrutinize carefully

whether a prima facie case had been made.

        Even if the trial court’s prima facie findings were

inadequate,         that     inadequacy        would     not        be   outcome

determinative        because      defendant     subsequently        offered   an

explanation for his challenges.                 Further, the trial court

ruled      on       the      ultimate         question    of         intentional

discrimination.           See Hernandez v New York, 500 US 352, 359;

111 S Ct 1859; 114 L Ed 2d 395 (1991) (“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.”); see also Saiz v Ortiz, 392 F3d

1166, 1179 n 8 (CA 10, 2004) (the existence or absence of a

prima facie case is moot where the trial court refused to

make a finding regarding whether a prima facie case had

been established, but proceeded to hear the prosecution’s

explanation for the challenge). Justice Kelly states that

our reliance on Hernandez is misplaced.                       She notes that


                                        26

Hernandez observes that a defendant may concede the first

Batson step by moving to the second step.                           We agree and

suggest that is exactly what occurred in this case.                              Both

the    trial    court      and    the    prosecutor      objected     to    defense

counsel’s use of peremptory challenges, claiming that he

was using them to exclude African-American veniremembers.

While    the    trial      court    did     not     initially    allow      defense

counsel to provide race-neutral reasons for his challenges,

it    almost    immediately        recanted        its   refusal    and     allowed

defense     counsel        to    provide         reasons,   which    were    race-

conscious.           The   trial        court     ultimately    denied      defense

counsel’s challenges, finding that defense counsel’s race-

conscious reasons supported the initial allegations that he

had been excluding veniremembers on the basis of race.                           The

trial court’s initial refusal to allow defense counsel to

provide race-neutral reasons for his challenges does not

amount to a collapsing of the Batson steps.                           Rather, if

anything,       it   amounted      to     imperfect      compliance       with    the

Batson procedures.               The trial court, however, ultimately

conducted each Batson step and made a ruling on the basis

of    defense    counsel’s        race-conscious         reasons.      Thus,      any

error that may have occurred in the trial court’s Batson

application was subsequently cured.




                                           27

        Justice          Kelly     incorrectly        assumes        that      strict

adherence          to    the     Batson   procedures        is    constitutionally

mandated.          To the contrary, the purpose of the Batson test

is to ensure adherence to the “principle that the ultimate

burden        of    persuasion      regarding       racial       motivation    rests

with, and never shifts from, the opponent of the strike.”

Purkett v Elem, 514 US 765, 768; 115 S Ct 1769; 131 L Ed 2d

834 (1995).20            Our research reflects that trial courts have

failed to comply perfectly with Batson in the past.                                 See

United States v Castorena-Jaime, 285 F3d 916, 929 (CA 10,

2002)        (“Notwithstanding        the    district       court’s       failure   to

make express findings on the record [regarding the Batson

steps] in the present case, the district court’s ultimate

conclusion          on     discriminatory          intent    was      not     clearly

erroneous.”);            Saiz,    supra     (the    United       States     Court   of


        20
        See, also, Johnson, supra, ___ US ___ n 7; 125 S Ct
___ n 7; 162 L Ed 2d 140 n 7, in which the United States
Supreme Court compared the Batson burden-shifting framework
to the framework set forth in McDonnell Douglas Corp v
Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).
The Johnson Court cited St Mary’s Honor Ctr v Hicks, 509 US
502; 113 S Ct 2742; 125 L Ed 2d 407 (1993), for the
proposition that the “burden-shifting framework [set forth
in Batson and McDonnell Douglas] triggered by a defendant’s
prima face case is essentially just ‘a means of “arranging
the presentation of evidence.”’” Johnson, supra, ___ US ___
n 7; 125 S Ct ___ n 7; 162 L Ed 2d 140 n 7, quoting St
Mary’s, supra, 509-510, quoting Watson v Fort Worth Bank &
Trust, 487 US 977, 986; 108 S Ct 2777; 101 L Ed 2d 827
(1988).



                                            28

Appeals inferred from the record that the trial court did

not find a prima facie case of discrimination).21                           Their

failure to do so, however, is not error as long as trial

courts      do   not   shift   the   burden        of    persuasion      onto   the

challenger.

       Justice     Kelly    contends        that    the        trial   court,   by

collapsing       the   three   Batson      steps        into   one,    placed   the

burden      on   defense   counsel    to     counter       the    trial   court’s

finding of purposeful discrimination.                     The record does not

support this contention.             Both the trial court and the

prosecution made a prima facie showing that defense counsel

had excluded jurors on the basis of race.                        The trial court

initially refused to allow defense counsel to provide race-

neutral reasons, but almost immediately reconsidered and

allowed defense counsel to make a record.                        Defense counsel

gave     race-conscious        reasons      regarding          both    challenges.

Thus, he failed to meet the burden of coming forward with

race-neutral explanations.               Defense counsel’s proffer of

race-conscious reasons did not rebut the trial court’s and

the prosecution’s prima facie showings of discrimination.

Thus, the trial court neither erred in finding purposeful



       21
        See, also, United States v Perez, 35 F3d 632, 636
(CA 1, 1994).



                                      29

discrimination       nor   erred    in      rejecting       defense    counsel’s

challenges.

      Justice    Kelly      further      asserts       that    our    discussion

regarding      Miller      and    Schmitz      is      inappropriate.            We

recognize that Miller and Schmitz need not be addressed,

because we have concluded that the trial court did not err

in   denying    defense     counsel’s       peremptory        challenges.        We

disagree, however, that our discussion regarding Miller and

Schmitz is inappropriate and has no legal value.                           Rather,

such discussion is in direct response to the arguments of

the dissent, and without such discussion our response would

be incomplete.       That a response to a dissent may encompass

discussion that is dictum does not render it inappropriate

or of no legal value; otherwise, only dissenting opinions

would be able to opine upon decisions such as Miller and

Schmitz.22      As    stated      above,     in     light     of     our   current

harmless     error   jurisprudence,         Miller     and     Schmitz     are   no

longer     precedentially        binding.         We   thus     disagree     with




      22
         Although   the  dissent   labors   hard  to   avoid
referencing Miller and Schmitz, it is puzzling why it would
do this with regard to two decisions that are so obviously
helpful to its conclusion, except that to reference these
decisions would only make obvious the asymmetry of the
dissent’s position, namely, that the dissent, but not the
majority, should be able to analyze Miller and Schmitz.



                                      30

Justice    Kelly’s    conclusion      that    our    Miller    and   Schmitz

discussion is inappropriate.

                               VI. CONCLUSION

      We   hold    that   the   trial      court’s   initial    failure   to

follow     the    three-step    process     set   forth   in   Batson     was

subsequently cured.         Despite our ultimate conclusion that

the trial court complied with the requirements of Batson,

trial courts are well advised to articulate and thoroughly

analyze each of the three steps set forth in Batson, see pp

7-9   of   this    opinion,     in   determining     whether    peremptory

challenges were improperly exercised.                In doing so, trial

courts should clearly state the Batson step that they are

addressing and should articulate their findings regarding

that step.23



      23
        Federal courts have encountered similar problems
regarding appellate review of a trial court’s inadequate
Batson findings. See Castorena-Jaime, supra at 929:

              Although we affirm the district court’s
       ruling, we encourage district courts to make
       explicit factual findings on the record when
       ruling on Batson challenges.            “Specifically, . .
       . a district court should state whether it finds
       the proffered reason for a challenged strike to
       be      facially        race    neutral    or    inherently
       discriminatory and why it chooses to credit or
       discredit the given explanation.”               A district
       court’s clearly articulated findings assist our
       appellate review of the court’s Batson ruling,
       and “ensure[] that the trial court has indeed
Footnotes continued on following page.


                                     31

     We further hold that the trial court did not commit

clear error in finding as a matter of fact that defense

counsel exercised peremptory challenges on the basis of the

race of the prospective jurors.     Accordingly, we reverse

the judgment of the Court of Appeals.

                              Maura D. Corrigan
                              Robert P. Young, Jr.
                              Stephen J. Markman




     made the crucial credibility determination that
     is afforded such great respect on appeal.”
     [Quoting Perez, supra at 636 (citation omitted).]



                             32

                      S T A T E     O F     M I C H I G A N 


                                  SUPREME COURT 



PEOPLE OF THE STATE OF MICHIGAN,

       Plaintiff-Appellant,

v                                                                         No. 125375

MARLON BELL,

     Defendant-Appellee.
_______________________________

WEAVER, J. (concurring).

       I concur in the result of the lead opinion and join

parts I to III of the opinion.                     As the lead opinion has

explained, the record reflects that any initial error by

the trial court was cured when the trial court allowed

defendant to provide reasons for the peremptory challenges

and    that     the    reasons      proffered       by        defendant    for    the

challenges were race-conscious.

       I   do   not    join   part     IV   of     the   lead       opinion,     which

addresses whether the violation of a right to a peremptory

challenge requires automatic reversal, nor do I join the

last paragraph of part V, which concludes that it is proper

to    address    the    issue     because     it    is    in    response     to   the

dissent.        Ante    at    21-25,      30-31.         In    my   opinion,      such

discussion is unnecessary to the opinion and therefore is
dicta.   I would wait until the issue is squarely before us

before   determining     whether    the   improper   denial   of   a

peremptory   challenge     is   subject    to   structural    error

analysis.    Therefore, I do not join part IV or the last

paragraph of part V.

                                   Elizabeth A. Weaver




                                   2

                S T A T E       O F    M I C H I G A N 


                            SUPREME COURT 



PEOPLE OF THE STATE OF MICHIGAN,

     Plaintiff-Appellant,

v                                                               No. 125375

MARLON BELL,

     Defendant-Appellee.
_______________________________

TAYLOR, C.J. (dissenting in part and concurring in part).

     I    respectfully     dissent       from    the     lead     opinion’s

conclusion    that   defense     counsel    provided      race-conscious

reasons for the two peremptory challenges the trial court

refused to allow him to exercise.               Rather, I agree with

Justice   Kelly’s    dissent    that    defense       counsel’s   comments

were intended only to challenge the idea that a prima facie

showing of discrimination had been made.                   Thus, defense

counsel’s    comments    were   legitimate      and    directed    only   at

Batson’s first step.        Thereafter the trial court did not

follow the Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90

L Ed 2d 69 (1986), requirement that it allow defendant the

opportunity to articulate a race-neutral explanation for

the challenges.         Accordingly, I conclude that the trial
court     erroneously      deprived          defendant        of     two    of        his

peremptory challenges.

       As noted by the lead opinion, peremptory challenges

are granted to a defendant by statute and by court rule-not

by     the    United    States        Constitution        or        the     Michigan

Constitution.          Denial    of    the     statutory           right    requires

reversal      of   a   conviction       only     if      it    resulted          in    a

miscarriage of justice.              MCL 769.26.      Thus, I concur with

the lead opinion that the denial of a statutory peremptory

challenge     is   subject      to   harmless     error       review       and    that

People v Schmitz, 231 Mich App 521; 586 NW2d 766 (1998),

must    be   repudiated    to    the    extent     that       it     held    to       the

contrary.      Applying this standard, I find defendant is not

entitled to a new trial.              I specifically join footnote 18

of the lead opinion because I am persuaded that foreign

cases that have concluded that the denial of a statutory

right to a peremptory challenge requires automatic reversal

were wrongly decided.           An automatic reversal should not be

required for the mere violation of a statutory right just

because      the   trial   court      misperceived        defense          counsel’s




                                        2

effort to peremptorily strike two prospective jurors as a

constitutional Batson violation.1

     To the extent that the error is considered to have

violated our court rule, the denial is not grounds for

granting a new trial unless refusal to grant a new trial is

inconsistent    with   substantial         justice.      MCR   2.613(A).

Applying this standard, I find defendant is not entitled to

a new trial.

     I   also   join   the   lead        opinion   in   questioning   the

continuing viability of People v Miller, 411 Mich 321; 307

NW2d 335 (1981).




     1
      I do, however, recognize that if a statutory right is
denied in a manner that violates equal protection or due
process guarantees that such denial may warrant a new
trial. As the United States Supreme Court stated in Evitts
v Lucey, 469 US 387, 401; 105 S Ct 830; 83 L Ed 2d 821
(1985):
          [A]lthough a State may choose whether it
     will institute any given welfare program, it must
     operate whatever programs it does establish
     subject to the protections of the Due Process
     Clause.   Similarly, a State has great discretion
     in setting policies governing parole decisions,
     but it must nonetheless make those decisions in
     accord with the Due Process Clause.     In short,
     when a State opts to act in a field where its
     action has significant discretionary elements, it
     must nonetheless act in accord with the dictates
     of the Constitution -- and, in particular, in
     accord with the Due Process Clause.    [Citations
     omitted.]




                                    3

     Because I find that the error here was harmless, under

both MCL 769.26 and MCR 2.613(A), I agree with the lead

opinion that the Court of Appeals decision must be reversed

and defendant’s convictions should be reinstated.

                              Clifford W. Taylor




                             4

                       S T A T E O F M I C H I G A N 


                                SUPREME COURT 



PEOPLE OF THE STATE OF MICHIGAN,

       Plaintiff-Appellant,

v                                                                        No. 125375

MARLON BELL,

     Defendant-Appellee.
_______________________________

KELLY, J. (dissenting).

       I    dissent     from   the     lead    opinion    for      two     reasons.

First,      the   trial     judge     erred    by   failing     to    follow         the

procedures required by Batson v Kentucky, 476 US 79; 106 S

Ct 1712; 90 L Ed 2d 69 (1986).                 Despite the lead opinion’s

contention        to    the    contrary,       the    Batson         errors      were

incurable.         Second,     the    lead    opinion’s      dictum      regarding

Miller1      is   inappropriate,       and,    as    dictum,       has    no    legal

effect or precedential value.                 There is no legal basis to

overrule Miller.

                               I. THE BATSON RULE

       The United States Supreme Court ruled in Batson that,

when       selecting    a     jury,    a     prosecutor      may     not       use     a

peremptory        challenge     to    remove    a    juror    because       of       the

       1
           People v Miller, 411 Mich 321; 307 NW2d 335 (1981).
juror’s race.        Batson, supra at 89.             The Supreme Court gave

trial judges a specific three-step procedure to determine

whether    a     peremptory       challenge       has     an     improper      racial

basis.

     First, the objecting party must make a prima facie

showing,       based        on    the      totality         of     all       relevant

circumstances,         that      the    other       party      discriminated       in

removing    the     juror.        Id.    at     93-94.      Second,      the    party

exercising     the     peremptory       challenge        must    give    a   neutral

explanation for the removal, showing that it was not based

on race.       Id. at 94, 97.                 Third, the trial judge must

determine      if   the     objecting       party    established         purposeful

discrimination.           Id. at 98.

     Although Batson dealt with a prosecutor’s exercise of

peremptory challenges, the Supreme Court extended the rule

in later cases.            For example, in Georgia v McCollum,2 it

stated    that      the    United      States     Constitution        prohibits    a

criminal       defendant            from        engaging         in      purposeful

discrimination in the exercise of peremptory challenges.

                           A. THE PEREMPTORY CHALLENGES

     In this case, each party had made several peremptory

challenges before defense counsel challenged Juror No. 10.


     2
         505 US 42, 59; 112 S Ct 2348; 120 L Ed 2d 33 (1992).



                                           2

During voir dire, Juror No. 10 stated that he was a close

friend of several police officers, including a “chief.”                           He

stated that he “wouldn’t think” that his friendships would

make a difference in his ability to make a fair decision.

He also responded, when asked if he would feel obliged to

apologize       should   he    vote    to        acquit   defendant,      that    he

“hope[d] not.”

        When defense counsel peremptorily challenged Juror No.

10, the trial judge disallowed the challenge because, he

said,    it     and   previous      defense       challenges    were      based   on

race.      Defense counsel asked to comment, but the judge

refused    him    the    opportunity.             Counsel   then    boisterously

objected to the refusal, stating that it was “garbage.”

The judge then relented and allowed a statement.

        Defense counsel argued that he had not attempted to

eliminate Juror No. 10, a Caucasian male, because of his

race.      He    pointed      out   that        the   Caucasians    on    the   jury

outnumbered and exceeded the minorities on the panel.                             The

judge then allowed the prosecution to respond, refused to

hear more from defense counsel, and ruled that Juror No. 10

would remain on the jury.

        Jury selection continued, and the attorneys made more

peremptory       challenges.          When       Juror    No.   5   was    called,

neither side objected for cause, and the prosecution did


                                           3

not exercise a peremptory challenge.                      Without asking for

defense       counsel’s    input,      the    judge    stated,       “We   have    a

jury.”

        Defense counsel approached the bench and an off-the-

record discussion ensued.               When the proceeding resumed on

the record, defense counsel asked to excuse Juror No. 5.

The   prosecution        objected,      stating    that      it    was    making   a

Batson objection to the defense’s peremptory challenge of

Juror No. 5.

        Without     discussion     or    input     from      the    parties,     the

judge    disallowed       the    peremptory       challenge        for    the   same

reasons       he   had   given    regarding       Juror      No.    10.     Again,

defense counsel sought to comment on the ruling but was

refused.       After the prosecution evidenced some discomfort

with the lack of a record, the judge allowed counsel to

make a record outside the presence of the jury.

        The    prosecutor       then    observed      that    the    two    jurors

excused between Juror No. 10 and Juror No. 5 were both

Caucasian males.          She also indicated that Juror No. 5 was a

Caucasian male.           She offered no additional basis for her

objection to the peremptory challenge of Juror No. 5.

        Defense counsel pointed out that there had been no

discriminatory pattern to his challenges.                         He stated that

at least as many white males as minority males remained on


                                         4

the jury.        He insisted that there were valid reasons to

remove the intervening jurors who were excused.                                One had

expressed bias towards police officers.                           The other, years

before,    had    resided    on       the    street       where       the   crime    was

alleged to have occurred, and his home had been broken

into.     The juror expressed concern about the influence the

break-in would have on his decision in this case.

        The judge stated that defense counsel’s argument was

unpersuasive.        Without making further rulings, he brought

back the jury, and the trial continued.

    B. THE TRIAL COURT’S FAILURE            TO   FOLLOW   THE   BATSON PROCEDURES

        The judge failed to follow the three-step procedure

required    by    Batson.        In    fact,       he     failed      to    complete    a

single step of the procedure.                     He did not make a finding

regarding whether there had been a prima facie showing of

purposeful       discrimination.            Instead,        it    appears     that     he

lumped all three steps into one and made his ruling without

further regard to Batson.

        Trial    judges    are    not       at    liberty        to   disregard      the

Batson procedure.           Batson is United States Supreme Court

precedent that is binding on state courts.                             Moreover, the

courts may neither ignore one step nor combine the three

steps of Batson.          Purkett v Elem, 514 US 765, 768; 115 S Ct

1769; 131 L Ed 2d 834 (1995).                    Instead, they must carefully


                                            5

and individually consider each.                  The Batson procedure was

designed       to     carefully      balance       the      free      exercise        of

peremptory          challenges         and      the        evils         of       racial

discrimination in the selection of jurors.                            Batson, supra

at    98-99.        It   was    crafted      specifically        to    enforce      the

mandate of equal protection as well as to further the ends

of justice.         Id. at 99.

        In this case, when the trial judge allowed defense

counsel    to       speak,     he   erroneously       placed       the    burden     on

counsel to show that the peremptory challenge should not be

disallowed.          Although       Batson     provides      a     burden-shifting

procedure, the party objecting to a peremptory challenge,

in this case the prosecutor, has the ultimate burden of

proving purposeful discrimination.                    Purkett, supra at 768.

Improperly shifting the burden “violates the principle that

the     ultimate         burden     of    persuasion         regarding            racial

motivation rests with, and never shifts from, the opponent

of the strike.”              Id.     Therefore, the trial court erred

twice in disallowing the peremptory challenges to Jurors

No. 5 and No. 10.

        The trial court was required to make a ruling on the

first    step.        The    court’s     failure      to   arrive        at   a   clear

conclusion and articulate its findings amounted to error in

and of itself.           Only if, and when, a trial court concludes


                                          6

that a prima facie case exists does the burden shift to the

party exercising the peremptory challenge.                      Then the trial

court       must   allow    that    party      to     articulate    race-neutral

reasons for the challenge.

        In this case, the trial court glossed over the first

step, skipped the second step, and jumped to the third.                         At

the third step, the court impermissibly placed on defendant

the   burden       to   rebut     presumed      racial     prejudice.        These

multiple and repeated errors are patently inconsistent with

the     established        Batson    precedent.          They      cannot    remain

uncorrected.

        Those on the lead opinion state that their “research”3

reflects       that     trial   courts        often    fail   to    comply    with

Batson.       They appear to believe that, because there is a

supposed generalized failure of compliance, the seriousness

of the trial court’s Batson errors here is diminished.                         But

an error often repeated is no less an error.                       In fact, what

we should draw from their research is that we must more

scrupulously        hold    our     courts     responsible      for    following

Batson.       The United States Supreme Court has carefully laid



        3
        The lead opinion makes no mention of what the
“research” consisted of, and I have no knowledge of what it
might be.   I know of no research project on this subject
conducted by this Court.



                                         7

out the steps necessary for determining if a Batson error

exists.     It is for us to see that they are followed.

               C. THE TRIAL COURT DID NOT CURE          THE   ERRORS

        The lead opinion concludes that the trial court cured

its errors by allowing defense counsel to respond to its

ruling.     Those on the lead opinion attempt to fit the facts

of this case into Batson, rather than apply Batson to the

facts.     They conclude that defense counsel should have used

his opportunity to respond to offer race-neutral reasons

for the peremptory challenges.                The record does not support

this conclusion.

        The trial court never articulated that a prima facie

case of discrimination had been made.                    Therefore, when it

allowed    defense    counsel      to   speak,        counsel       dwelt    on   the

first     Batson    element.       He        denied    the     existence      of    a

discriminatory pattern in his peremptory challenges.                               It

appears that he was encouraging the                    court to refocus and

follow the Batson procedure.                 Given that the court had not

completed     the    first     step      of     Batson,        it      was   wholly

reasonable for defense counsel to direct his comments to

that step.    And he did just that.

        The lead opinion concludes that defense counsel should

have    surmised     that    the   judge       was     ignoring        Batson      and




                                        8

tailored       his    answers         accordingly.4          This    unfairly    holds

defendant responsible for alleviating the court’s error.

Trial courts have a clear map to follow in Batson cases.

Given the magnitude of the error when they fail in that

endeavor, it is imperative that we hold courts responsible

for correctly applying the Batson test.                            Batson, supra at

99; Purkett, supra at 768.

       The lead opinion concludes that defense counsel should

have       supplied       a   race-neutral         reason    for    the    challenges.

However, a good reason exists why he did not respond.                                The

court never asked for a response and never gave counsel an

opportunity          to       offer    one.         Instead,       after   concluding

discussion       on       what    should      have    been    the    first    step   of

Batson,       the     judge       stopped          counsel   and     overruled       his

challenges.           This was clearly erroneous.                     The judge was

required       to    ask       specifically         for   race-neutral       responses




       4
        The lead opinion also quotes Johnson v California,
545 US __; 125 S Ct 2410; 162 L Ed 2d 129 (2005), to
contend that defendant’s failure to give race-neutral
reasons    should  show  support   for  an   inference  of
discrimination.   But defendant did not refuse to provide
race-neutral reasons for his challenge. He was never asked
for his reasons. Therefore, there was no refusal to answer
and the quoted material from Johnson is inapplicable to
this case. Id., 545 US ___ n 6; 125 S Ct 2418 n 6; 162 L
Ed 2d 140 n 6.



                                              9

pursuant to the second Batson step.                   Batson, supra at 94,

97.

        Instead of that, the judge combined all the Batson

steps    into       one   and   placed    the     burden   on     defendant   to

counter his erroneous ruling.                  It is impermissible to shift

the burden in this manner.               Purkett, supra at 768.          Given

that shifting the burden is error in itself, it cannot

constitute a cure for the judge’s other errors as the lead

opinion concludes.

        The lead opinion states, “Even if the trial court’s

prima facie findings were inadequate, that inadequacy would

not be outcome determinative because defendant subsequently

offered an explanation for his challenges.”                       Ante at 26.

As    noted    above,      this   simply       did   not   happen.     Defense

counsel’s comments were directed to the first Batson step.

Being that a prima facie case was never established, the

burden never shifted to defendant, and he was not required

to offer race-neutral reasons.                  Hence, the court’s failure

must have been outcome determinative.

        The lead opinion attempts to support its position by

quoting Hernandez v New York, 500 US 352, 359; 111 S Ct

1859;    114    L    Ed   2d    395   (1991).        But   this    reliance   is

misplaced.      First, the quotation is drawn from a plurality

opinion that, under the doctrine of stare decisis, is not


                                         10

binding.     Negri v Slotkin, 397 Mich 105, 109; 244 NW2d 98

(1976).

        Second, the quotation is taken out of context.                       One

has only to read the sentence above it to understand the

Supreme Court’s true meaning.              It quotes a Title VII civil

rights case:         “‘[W]here the defendant has done everything

that would be required of him if the plaintiff had properly

made out a prima facie case, whether the plaintiff really

did so is no longer relevant.’”               Hernandez, supra at 359,

quoting    United     States   Postal      Service       Bd    of   Governors   v

Aikens, 460 US 711, 715; 103 S Ct 1478; 75 L Ed 2d 403

(1983).      The Supreme Court plurality in no place states

that, as long as a court rules on Batson’s third step, the

first step can be ignored.                 Rather, it observes that a

defendant may concede the first Batson step by moving the

discussion to the second step.             This is a far cry from what

the lead opinion claims Hernandez stands for.

        But even if this section of Hernandez were controlling

precedent,      it    would    not   apply    to     this       case.      Here,

defendant did not concede the first Batson step.                        Instead,

counsel’s comments were specifically directed at rebutting

the claim of a prima facie case.              It was not defendant who

moved the process beyond the first step.                      It was the trial

court    that   improperly     passed      over    the    first      and   second


                                     11

steps       of   Batson.         Given      this     situation,        the     Hernandez

plurality opinion simply does not apply.

                         II. A BATSON ERROR         IS   STRUCTURAL

        The      lead    opinion       concedes          that   Batson       errors    are

subject to automatic reversal, but I find it important to

explain       why    nearly      every      court     that      has    considered      the

issue       reached      the    same    conclusion.5            This        includes   the

United States Supreme Court, because Batson itself ordered

an automatic reversal.                Batson, supra at 100.

        The Supreme Court gave this reasoning for requiring

automatic reversal:              “[W]hen a petit jury has been selected

upon improper criteria or has been exposed to prejudicial

publicity,          we   have    required          reversal     of    the     conviction

because the effect of the violation cannot be ascertained.”

Vasquez v Hillery, 474 US 254, 263; 106 S Ct 617; 88 L Ed

2d   598      (1986).          This    is   in      line    with      the    appropriate

handling of all structural errors.

        The Supreme Court articulated the difference between

trial error and structural error in Arizona v Fulminante,

499 US 279; 111 S Ct 1246; 113 L Ed 2d 302 (1991).                               A trial


        5
            See United States v McFerron, 163 F3d 952, 955-956
(CA 6,      1998), United States v Hall, 152 F3d 381, 408 (CA 5,
1998),      Tankleff v Senkowski, 135 F3d 235, 249-250 (CA 2,
1998),      United States v Underwood, 122 F3d 389, 392 (CA 7,
1997),      and Ford v Norris, 67 F3d 162, 170-171 (CA 8, 1995).



                                             12

error occurs during the presentation of the case to the

jury.       It can be quantitatively assessed in the context of

other evidence for the purpose of determining whether it

was harmless beyond a reasonable doubt.                    Id. at 307-308.

        A structural error, on the other hand, affects the

framework of the trial proceeding.                  It is more than a mere

error    in    presenting    the     proofs    of    guilt.         Id.   at   310.

When a structural error occurs, a criminal trial cannot

serve as a reliable vehicle for the determination of guilt.

No criminal punishment could be fair if structural error

existed in the framework of the trial.                    Id.

        Although    no     constitutional           guarantee       exists     with

regard to them, Batson errors resulting in a denial of the

use   of     peremptory    challenges        must    be    structural.         They

attack the fundamental framework of the trial proceeding.

They change the very makeup of the jury.                         And they do not

occur during the presentation of evidence.                       Given that they

do    not     involve    evidence,    they     cannot       be    quantitatively

assessed in the context of other evidence.                        This fact is a

further indicator that they are not in the nature of trial

errors.       Id.

        Structural errors require automatic reversal.                        Id. at

309-310; People v Cornell, 466 Mich 335, 363 ns 16-17; 646

NW2d 127 (2002).         Therefore, once we conclude that a Batson


                                       13

error existed, we must automatically reverse a conviction.

Because this is exactly what the Court of Appeals did, I

would affirm its decision.

        Automatic reversal leaves no room for error on the

part of trial courts.             But, as the United States Court of

Appeals for the Ninth Circuit stated, referring to Batson:

             It is true that trial courts bear a heavy
        burden in enforcing Batson's anti-discrimination
        principle, given that the erroneous denial of a
        party's peremptory challenge has traditionally
        warranted   automatic  reversal.   However,   this
        concern was alleviated by a recent Supreme Court
        decision offering guidance to trial courts faced
        with deciding whether a particular peremptory
        challenge has a discriminatory motive.     [United
        States v Annigoni, 96 F3d 1132, 1142 (CA 9,
        1996), citing Purkett, supra at 767-768.]

The   Supreme     Court     has    carefully        laid   out    the      procedure

required to satisfy Batson.                   We must insist that trial

courts adhere to it.

              III. PEREMPTORY CHALLENGES      AND   AUTOMATIC   REVERSAL

        Had no Batson errors occurred here and were the errors

under       scrutiny   no   more    than      the    wrongful      denial      of   a

peremptory       challenge,6       we   should       nonetheless           issue    an



        6
          Of course, I disagree with this assumption because I
believe that Batson errors occurred.      But I also question
the assumption for the reason that the judge was
considering Batson when deciding to deny the challenges.
This means that, in denying defendant’s challenges, the
judge specifically left certain individuals on the jury
Footnotes continued on following page.

                                        14

automatic reversal.           The lead opinion’s attempt to apply

harmless error review is contrary to the decisions of most

other       courts   that   have    reviewed     the    issue.     Moreover,

harmless       error   review      is   simply   unworkable      and   cannot

logically apply to rulings on peremptory challenges.

        The lead opinion departs from the trend set by most

other       courts   that   have   considered     the    application    of   a

harmless error analysis to peremptory challenges.                   It cites

United States v Martinez-Salazar,7 to demonstrate that a

harmless error analysis is appropriate here.                     Use of this

authority illustrates the dangers in relying on dictum.8

        It is undeniable that the cited language is dictum

given that the Supreme Court concedes that it need not have

reached the issue of an appropriate remedy for the claimed

error.       “Because we find no impairment, we do not decide in

this case what the appropriate remedy for a substantial


because of their race.   If the judge erred in denying the
peremptory challenges, he erroneously empanelled jurors
because of their race under the belief that defendant was
targeting members of the jurors’ race. The issue before us
does not involve the typical denial of a peremptory
challenge. The lead opinion has not made this distinction.
        7
            528 US 304; 120 S Ct 774; 145 L Ed 2d 792 (2000).
        8
       There is unavoidable irony in the lead opinion’s
reliance on this footnote.    The footnote’s purpose is to
criticize the existence of dicta in Swain v Alabama, 380 US
202; 85 S Ct 824; 13 L Ed 2d 759 (1965). Martinez-Salazar,
supra at 317 n 4.



                                        15

impairment would be.”            Id. at 317 n 4.            I disagree with the

lead opinion’s assertion that the dictum of this footnote

can constitute “a significant shift” in the law.

       The    lead    opinion’s      reliance        on     Martinez-Salazar      is

further misplaced given that the case dealt with an issue

distinct      from     the     denial     of        the     use    of     peremptory

challenges.            In      Martinez-Salazar,             the     trial     court

erroneously         refused    to   remove      a    juror     for    cause.     The

defendant then used a peremptory challenge to remove the

juror.       Id. at 307.        The defendant was not denied the use

of his peremptory challenges.                  In fact, he exercised one so

that the objectionable juror did not sit in judgment of

him.      Therefore, Martinez-Salazar did not deal with the

denial of a peremptory challenge, and its dictum should not

be read as a comment on the issue before us.

       The distinction between peremptory denial cases and

Martinez-Salazar makes a real difference when we consider

whether      harmless       error    review         applies.         In   Martinez-

Salazar,      the    only     existing    error       was    the     trial   court’s

error in denying a challenge for cause.                       It was cured when

the defendant used a peremptory challenge to remove the

juror.       Consequently, the juror took no part in the trial

proceedings.          The error arose and was cured before the

trial began.


                                         16

       On    the    other    hand,       when          a    peremptory      challenge       is

denied, the challenged juror stays on the jury and sits in

judgment of the defendant.                    His or her presence permeates

the trial, and the error infects the entire case.9

       The all-encompassing penetration of the error explains

why a harmless error analysis is out of place in the review

of   the     wrongful      denial       of    a        peremptory       challenge.          To

accurately make a harmless error analysis, the court would

have to determine the effect that the challenged juror had

on the verdict.            In a case directly on point, the United

States Court of Appeals for the Ninth Circuit expressed the

problem      in    these    words:           “To           subject    the    denial    of   a

peremptory         challenge       to        harmless-error             analysis      would

require       appellate         courts       to        do     the     impossible:           to

reconstruct        what     went    on       in    jury        deliberations        through

nothing        more       than      post-trial                hearings        and      sheer

speculation.”         Annigoni, supra at 1145.

       Appellate courts have no record of what is said in

jury       rooms   and     no     record          of       what      potentially      subtle

influences one juror had on the others.                                     Therefore, no




       9
       See State v Vreen, 143 Wash 2d 923; 26 P3d 236
(2001), People v Lefebre, 5 P3d 295 (Colo, 2000).



                                             17

device exists with which to plumb the magnitude of the

error.

        Unlike    the    typical    error     subject   to    harmless     error

review     discussed           in   Fulminante,     errors        in      leaving

individuals on a jury cannot be quantitatively assessed in

the context of the evidence presented.                    Fulminante, supra

at 308.          Without a means of comparison or measurement,

meaningful harmless error analysis is impossible.                       For this

reason, it is illogical to rule as the majority does.                          It

ignores the plight of courts in future cases that attempt

to follow its ruling.

        Chief     Justice      Taylor   demonstrates         in   his     opinion

dissenting in part and concurring in part the difficulty

faced    in     trying    to    apply   the    harmless      error      standard.

Although he finds the error harmless, he offers no analysis

for his conclusion.             Likely, this is because there is no

legitimate analysis, beyond mere speculation, that can be

applied.        In fact, the Chief Justice has demonstrated that

the rule now created by the majority is a rule of automatic

affirmance.       It defies fair appellate scrutiny.




                                        18

        The     lead     opinion      implies    that     a    rule       requiring

automatic reversal would contradict MCL 769.26.10                           This is

inaccurate.           Allowing a peremptory challenge error to stand

would        always    amount    to    a    miscarriage       of    justice.        A

miscarriage of justice exists if it affirmatively appears

that the error undermines the reliability of the verdict.

People v Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999).

        Given that an error in denying a peremptory challenge

changes the makeup of the jury, it potentially changes the

verdict.        It alters the jury deliberation and interaction

process.        The point of a peremptory challenge is to remove

someone who appears biased but who might not be removed for

cause.         Rejecting       the    peremptory   challenge            leaves   this

potentially           biased    or    prejudiced    juror          on    the     jury,

undermining the validity of the verdict.




        10
             MCL 769.26 provides:

             No judgment or verdict shall be set aside or
        reversed or a new trial be granted by any court
        of this state in any criminal case, on the ground
        of misdirection of the jury, or the improper
        admission or rejection of evidence, or for error
        as to any matter of pleading or procedure, unless
        in the opinion of the court, after an examination
        of the entire cause, it shall affirmatively
        appear that the error complained of has resulted
        in a miscarriage of justice.




                                           19

       Requiring automatic reversal for peremptory challenge

errors    is    consistent       with     the     plain     error     standard      of

review articulated by this Court in People v Carines, 460

Mich     750;    597     NW2d    130    (1999).            Carines     gave      three

requirements for plain error:                     the error (1) must have

occurred, (2) must be clear or obvious, and (3) must affect

substantial      rights.         Id.    at      763.     Peremptory        challenge

errors would always meet this standard.

       A peremptory challenge error becomes obvious after the

trial court rules on an objection to it.                     The error is that

either a juror who should not be on a jury remains or one

who should remain does not.

       These errors affect substantial rights because they

shape    the    jury.      Peremptory           challenges    are     a    means   of

eliminating      extreme        beliefs      or   partiality        from    a   jury.

Batson, supra at 91.             The right to a peremptory challenge

enables    the    parties       to   strike       jurors    who,     although      not

necessarily excusable for cause, appear biased or hostile

in some way.           Therefore, the right implicates defendant’s

right to a fair and impartial trial.

       Those     plain     errors      require         reversal      because      they

“‘“seriously      [affect]       the    fairness,        integrity        or    public

reputation of judicial proceedings” . . . .’”                               Carines,

supra at 763, quoting United States v Olano, 507 US 725,


                                          20

736; 113 S Ct 1770; 123 L Ed 2d 508 (1993), quoting United

States v Atkinson, 297 US 157, 160; 56 S Ct 391; 80 L Ed

555    (1936).     Given       the   fundamental        nature      of   the   jury

process,      having    an   unfairly        chosen    jury     raises    serious

questions regarding the integrity and public reputation of

the judicial proceedings.11             Therefore, the errors require

automatic reversal.          Id.

       Because we have no tools to gauge the effect of errors

in denying peremptory challenges, a harmless error analysis

of them is simply unworkable.                Therefore, such errors must

result in automatic reversal.

                  IV.    PRIMA FACIE CASE     OF   DISCRIMINATION

       The trial court erred in failing to follow Batson’s

three-step process, and the error is subject to automatic

reversal.       Hence, the issue whether a prima facie case of

discrimination actually existed is technically irrelevant

to    my    dissent.     But    I    feel    that     it   is   appropriate      to

respond to the majority’s conclusion that a prima facie

case existed.



       11
        The lead opinion itself concedes that the exclusion
of even one juror undermines public confidence in the
fairness of the system.     Ante at 21-22, citing J E B v
Alabama ex rel T B, 511 US 127, 142 n 13; 114 S Ct 1419;
128 L Ed 2d 89 (1994).      Therefore, it has conceded the
necessity of automatic reversal.



                                       21

       To reach the majority’s conclusion requires not only a

strained reading of the existing law regarding Batson, but

also a strained reading of the factual record in this case.

The    members        of    the    majority        attempt   to   save    the   trial

judge’s ruling by using twenty-twenty hindsight to fit his

actions       into         the    Batson     procedure.           Initially,      they

conclude that, despite the fact that the judge never ruled

that prima facie discrimination had occurred, his comments

equated to such a ruling.

       The      trial        judge       stated     that     he   disallowed      the

peremptory challenges because defense counsel was using his

challenges for the purpose of excluding white males.                              The

record does not support his conclusion.                           First, at least

two    of     the   jurors        that    defense     counsel     challenged     were

female.        Second, the race of each challenged juror is not

in the record.              Therefore, we do not know how many of the

challenged male jurors were Caucasian.12                           Third, we know

from        defense        counsel’s       comments     regarding        the    jurors


       12
        The lead opinion bases its contention that the race
of the excused jurors is determinable on the judge’s
statement that defense counsel had repeatedly excused
Caucasian male jurors.      Obviously, this statement is
unclear.   It is well established that at least two of the
challenged jurors were female.     Hence, the statement is
simply too inexact to determine the race of the challenged
jurors, and it is inappropriate for the lead opinion to
rely heavily on it.



                                             22

challenged      between     Jurors         No.   10    and    No.     5    that   valid

reasons existed to challenge some of the Caucasian male

jurors.      Finally, we can tell from the record that the

number of Caucasian males left on the jury was either equal

to or exceeded the number of minorities on the jury.

     Considering all these facts, a prima facie case of

discrimination did not exist.                    Batson requires a court to

carefully       examine    all        relevant    factors       as    well    as     the

totality    of     the    circumstances           in       making    its    decision.

Batson, supra at 93-94, 96-97.                    The record indicates that

the judge here failed to exercise that careful scrutiny.

Instead,     he    rushed        to    a    conclusion        before       hearing     a

thorough     discussion          and       without         making     an     adequate

investigation.

     It    is     true    that    a     pattern       of    strikes       against    one

racial group in jury selection might support an inference

of discrimination.           Id. at 97.               But defendant countered

this alleged pattern when finally allowed to respond.13                              He

indicated that his intervening peremptory challenges fit no



     13
        The lead opinion contends that the trial judge
“almost immediately” allowed defense counsel to respond.
Ante at 17-18. The record does not support this. Defense
counsel and the prosecution had to demand that the judge
allow them to make a record. The judge only belatedly and
reluctantly allowed defense counsel to speak.



                                           23

pattern.      The fact that a large number of Caucasian males

remained on the jury, he argued, demonstrates that he was

not targeting such jurors.                Our courts have held that a

showing that the challenged racial group continued to have

a strong representation on the jury is significant evidence

that no discriminatory intent existed. People v Eccles, 260

Mich    App   379,       387-388;   677      NW2d    76   (2004);       People    v

Williams, 174 Mich App 132, 137; 435 NW2d 469 (1989).14

       Given the weak evidence of a pattern and the fact that

Caucasian males constituted a significant portion of the

jury, the prosecution failed to make a prima facie case of

discrimination.          Therefore, defense counsel did not need to

offer race-neutral reasons for his peremptory challenges.

The burden never shifted to him.                    The trial judge never

concluded     the    first    Batson      step.       Hence,      he    erred    in

allowing Jurors No. 10 and No. 5 to remain on the jury.

              V. THE LEAD OPINION’S DICTUM REGARDING MILLER

       Part   IV    of    Justice   Corrigan’s       opinion      concerns      our

decision      in    Miller,    supra,        and    the   Court    of    Appeals


       14
        See also United States v Sangineto-Miranda, 859 F2d
1501, 1521-1522 (CA 6, 1988), United States v Grandison,
885 F2d 143, 147 (CA 4, 1989), Commonwealth v Clark, 551 Pa
258, 280; 710 A2d 31 (1998), and Valdez v People, 966 P2d
587, 594 (Colo, 1998).




                                       24

decision in People v Schmitz, 231 Mich App 521; 586 NW2d

766   (1998).        As    Justice      Weaver      points    out,       the     entire

section is dictum.

      In    Miller,       the   trial   court       diluted       the    defendant’s

peremptory      challenge        rights        by   using     the       struck     jury

method.15     Miller, supra at 323.                 The case before us does

not   deal    with    the       dilution       of   a   defendant’s        right    to

peremptory challenges.              It deals with the denial of his

peremptory challenges.             For this reason, Miller is clearly

distinguishable from this case.

      The    lead     opinion      concedes         that    its     discussion       of

Miller is dictum by stating that “we have concluded that

the trial court did not err in denying defense counsel’s

peremptory challenges.”             Ante at 30.            Because it concludes

that Miller does not apply to its decision, any discussion

of Miller must be obiter dictum.                    Part IV lacks the force

of an adjudication and is not binding under the principles

of stare decisis.           People v Borchard-Ruhland, 460 Mich 278,

286 n 4; 597 NW2d 1 (1999).                Therefore, it is of no value.


      15
        Under the struck jury method, all members of the
jury array are called into the courtroom at once. They are
questioned collectively, not individually.       After the
parties exhaust their preemptory challenges, the judge
assembles the jury using the remaining members of the
array, starting with the lowest numbers. Miller, supra at
323-324.



                                         25

The issue raised in Miller is not before us, and the lead

opinion   has   offered     no   legal    basis   to   overrule      this

precedent or to support a conclusion that some former case

overruled this precedent.

     Oddly enough, the lead opinion claims that I “labor[]”

to avoid reference to Miller and Schmitz.           Ante at 30 n 22.

Nothing can be further from the truth.                 Even a cursory

reading of this section of my dissent indicates that I find

Miller irrelevant.       Miller deals with a struck-jury method,

which is inapplicable to this case.               Nor do I labor to

avoid referencing Schmitz.          I simply found other and more

persuasive authority.

     Those on the lead opinion state that they may reach

Miller because I reference it.            As stated above, I would

not reference either Miller or Schmitz if the lead opinion

had not attempted to overrule them.

     Contrary to the lead opinion’s statement, nothing in

my opinion would prohibit the Court from revisiting Miller

in the future.         If a case actually raising a struck-jury

method should come before the Court, the issue in Miller

could be relevant and the Court could address it.              There is

nothing   novel    in      my    legal    conclusion    that    it     is

inappropriate     to     overrule    precedent    in    a   case     that

addresses issues irrelevant to the precedent.               But it is


                                    26

inappropriate, as a plurality of the Court does here, to

attempt to signal the future demise of the precedent in

dictum.

       No case has ever explicitly overruled Miller.          And the

lead opinion’s attempt today amounts to nothing more than

dictum.    Therefore, Miller should remain valid law.

                           VI. CONCLUSION

       The trial judge erred by failing to follow the Batson

steps and by shifting the burden to defendant to disprove a

presumption of discrimination.        He also erred by concluding

that a prima facie case of discrimination existed.                He did

not cure these errors.      Batson errors and erroneous denials

of peremptory challenges are subject to automatic reversal.

Therefore, I would affirm the decision of the Court of

Appeals,   reverse   defendant’s      conviction,   and   remand     the

case for retrial.

       Also, no legal basis exists to overrule this Court’s

decision in the Miller case.       Any comment here on Miller is

mere   dictum   without   precedential    value.     I    would    leave

Miller unmolested.

                                   Marilyn Kelly




                                27

                   S T A T E       O F    M I C H I G A N 


                               SUPREME COURT 



PEOPLE OF THE STATE OF MICHIGAN,

        Plaintiff-Appellant,

v                                                                         No. 125375

MARLON BELL,

     Defendant-Appellee.
_______________________________

CAVANAGH, J. (dissenting).

        I dissent from the majority’s decision and I agree

with the result reached in Justice Kelly’s dissent.                                 I

would    likewise       conclude    that       the   trial        court    erred    by

collapsing the three steps of Batson v Kentucky, 476 US 79;

106 S Ct 1712; 90 L Ed 2d 69 (1986), into one.                            See, e.g.,

Purkett v Elem, 514 US 765, 768; 115 S Ct 1769; 131 L Ed 2d

834 (1995).       Further, the trial court erred when it failed

to   allow      defendant    an    opportunity         to    articulate        race-

neutral    explanations      for     the       challenges.          When     defense

counsel    was    finally    allowed       an    opportunity         to    speak,   I

agree    with    Justice    Kelly    and       Chief    Justice      Taylor     that

defense counsel’s comments were directed at Batson’s first

step.      Thus,    I    would     conclude      that       the    trial     court’s

failure    to    follow     Batson       was    error       and    defendant       was
improperly       denied      the   use    of   his    peremptory      challenges

because the trial court misapplied that decision.

       Because     the       trial     court      erroneously       denied    the

peremptory challenges on Batson grounds, and Batson error

is    subject     to   automatic         reversal     and    not   amenable     to

harmless error review, I would conclude that defendant is

entitled    to    a    new    trial.       See,      e.g.,   United    States    v

McFerron, 163 F3d 952, 956 (CA 6, 1998) (“[W]e find that

harmless error analysis is not applicable to the district

court’s erroneous application of the three-step Batson test

and   the   improper      denial     of    [the      defendant’s]     peremptory

challenges.”).

       Further, I agree with Justices Weaver and Kelly that

the majority’s dicta regarding People v Miller, 411 Mich

321; 307 NW2d 335 (1981), and People v Schmitz, 231 Mich

App 521; 586 NW2d 766 (1998), is inappropriate given the

majority’s conclusion that the trial court ultimately did

not err.

       For these reasons, I must respectfully dissent from

the majority’s decision.               Accordingly, I would affirm the

decision of the Court of Appeals.

                                           Michael F. Cavanagh




                                          2

