                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 5, 2016
              Plaintiff-Appellee,

v                                                                  No. 324993
                                                                   Wayne Circuit Court
CURTIS DICKERSON,                                                  LC No. 14-006051-FC

              Defendant-Appellant.


Before: O’CONNELL, P.J., and MARKEY and O’BRIEN, JJ.

O’CONNELL, P.J. (concurring in part and dissenting in part).

        Defendant appeals as of right his convictions, following a jury trial, of kidnapping, MCL
750.349(1)(c), felonious assault, MCL 750.82, felon in possession of a firearm, MCL 750.224f,
and possession of a firearm during the commission of a felony (felony firearm), MCL 750.227b.
He was acquitted of three counts of first-degree criminal sexual conduct (CSC I), MCL
750.520b(1)(c) and (e). The trial court sentenced defendant as a third-offense habitual offender,
MCL 769.11, to serve concurrent prison terms of 12 years to 337 months for his kidnapping
conviction, two to four years’ imprisonment for his felonious assault conviction, two to five
years’ imprisonment for his felon in possession conviction, and consecutive term of two years’
imprisonment for his felony firearm conviction. While I agree with much of the majority’s well-
reasoned opinion, I would remand for the trial court to resolve defendant’s challenge under
Batson v Kentucky, 476 US 79, 86-89; 106 S Ct 1712; 90 L Ed 2d 69 (1986).

                                I. FACTUAL BACKGROUND

       Defendant’s convictions arise out of an incident that took place in defendant’s home in
July 2014. Two women visited defendant’s home, an upper-level unit in a duplex. The evening
was seemingly uneventful until the women decided to leave defendant’s home. After calling a
friend for a ride, the two women found the door on the home locked. When they asked
defendant to unlock the door, defendant began “flipping out,” grabbed a gun, and fired several
gunshots off the “top porch” of the home. Defendant then slapped one of the women, took her
into a separate, locked room, and allegedly sexually assaulted her. Afterward, defendant
unlocked the door and agreed to let the women leave. Defendant was charged, convicted, and
sentenced as described above. This appeal followed.

                                    II. BATSON ANALYSIS


                                               -1-
        On appeal, defendant argues that the trial court erred by denying his objection to the
prosecution’s use of peremptory challenges to strike African American prospective jurors during
jury selection. In part, I agree that the trial court used the wrong analysis to determine if a
Batson error occurred. The remedy for this process error is to remand the present case to the trial
court. On remand I would direct the trial court to use the process set forth below.

        The Equal Protection Clause of the Fourteenth Amendment prohibits a party from using a
peremptory challenge to remove a prospective juror solely on the basis of race. People v Knight,
473 Mich 324, 335; 701 NW2d 715 (2005). When a defendant alleges that the prosecution has
improperly excluded a prospective juror on the basis of race, the trial court must engage in a
three-step analysis to determine whether the defendant has shown a case of unlawful
discrimination. Batson, 476 US at 96-98. First, the defendant must make a prima facie showing
that (1) he or she is a member of a racial group, (2) the prosecution has used a peremptory
challenge to exclude a member of that group from the jury pool, and (3) the circumstances raise
an inference that the exclusion was based on the prospective juror’s race. Id. at 96. Second, if
the trial court determines that the defendant made a prima facie showing, the prosecution must
“articulate a race-neutral explanation for the strike.” Id. at 97. Third, the trial court must
determine whether the race-neutral explanation is a pretext and the defendant has proved
purposeful discrimination. Id. at 98.

        When reviewing the trial court’s decisions, we review for clear error its factual findings
and review de novo its legal determinations. Knight, 473 Mich at 338. Whether the defendant
has articulated a prima facie case is a mixed question of law and fact. Id. at 342. “A trial judge
must first find the facts and then must decide whether those facts constitute a prima facie case of
discrimination under Batson and its progeny.” Id.

       In this case, defense counsel raised a Batson challenge as follows:

       Ms. Michon: Your Honor, for the record, the Defense is making a Batson
       objection of the, I count six, peremptory challenges by the People, five of them
       African American individuals, all city dwellers, which means . . . [i]n my opinion,
       they’re kicking people off who are going to look like, sound like and live where
       the complaining witness lives. And I appreciate the Court’s position that there
       are still African American people on the panel and in the veneer [sic: venire] that
       does not fix a Batson challenge. They need to express a race-neutral reason why
       they keep kicking younger, African American city people.

       The Court: Yeah, but you have to have a facially valid challenge, and . . . when
       you first came up, you said it was young African Americans. I don’t . . . know
       what we’re using for young, but . . . . [Emphasis added.]

After the prosecution articulated reasons for dismissing the jurors, the trial court focused on the
ages of the jurors and found that defendant did not set forth a prima facie showing:

       The Court: . . . . I don’t think it rises to the point where you guys have to justify
       giving a reason, because I don’t think there is a facially valid Batson challenge
       here.

                                                -2-
        I conclude that the trial court erred by finding that defendant had not articulated a prima
facie case. Regardless of the ages of the jurors, defendant contended that the prosecution was
deliberately striking African American jurors: the defendant specifically referenced the fact that
six of seven of the prosecution’s peremptory challenges excused African American jurors and
asked the prosecution to provide a race-neutral reason. The first two components of such a
showing are not at issue—defendant is African American, and the prosecution used peremptory
challenges to exclude African American jurors from the jury pool. The defendant may show a
prima facie case by showing “a ‘pattern’ of strikes against” members of a particular race in the
venire. Batson, 476 US at 97. The trial court made no factual findings regarding the
composition of the struck jurors against the composition of the venire.1 It simply failed to
address whether the prosecution’s pattern led to an inference of discrimination. It instead
determined that the jurors were not of a particular age group, which was not the basis of defense
counsel’s challenge. It was a legal error to fail to address defendant’s race-based argument.

        I concur with the balance of the majority opinion’s analysis. However, I would not
affirm defendant’s convictions. I would remand for further proceedings on defendant’s Batson
challenge for the trial court to complete steps two and three of that analysis—i.e., for the trial
court to determine whether the circumstances led to an inference of discrimination on the basis
of the prosecution’s strikes of minority jurors and, if so, for prosecution to articulate its racially
neutral reasons and the trial court to make findings on the sufficiency of those reasons.


                                                              /s/ Peter D. O’Connell




1
  Whether the fact that the six of the prosecutor’s seven strikes were against African American
jurors leads to an inference of discrimination depends on the percentage of African Americans in
the venire, a question to which we have no answer because the trial court failed to make
necessary factual findings. For instance, if 18 of the 19 seated jurors were African American,
using 83% of the prosecution’s challenges to exclude African American jurors may not be
discriminatory; but if there are only three African American jurors in the venire, striking all of
them may be so regardless of what percentage of the prosecutor’s strikes are used. See Johnson
v California, 545 US 162, 169; 125 S Ct 2410; 162 L Ed 2d 129 (2005) (considering the
percentage of minority jurors struck against the percentage of minority jurors in the venire).


                                                 -3-
