               If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                    revision until final publication in the Michigan Appeals Reports.




                             STATE OF MICHIGAN

                              COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                        UNPUBLISHED
                                                                        May 30, 2019
                 Plaintiff-Appellee,

v                                                                       No. 341245
                                                                        Genesee Circuit Court
JACOBIE ELIZA HALL,                                                     LC No. 17-041439-FC

                 Defendant-Appellant.


Before: TUKEL, P.J., and SHAPIRO and GADOLA, JJ.

SHAPIRO, J. (concurring in part and dissenting in part).

        I respectfully dissent. On appeal, defendant primarily argues that the prosecution
improperly used peremptory challenges to exclude three prospective jurors based on race and
that the trial court failed to follow the procedure set forth in Batson v Kentucky, 476 US 79; 106
S Ct 1712; 90 L Ed 2d 69 (1986), for analyzing such a claim. I agree with defendant that the
trial court did not complete the Batson analysis, and would therefore remand for an evidentiary
hearing so that the trial court could make the required findings.1

                                       I. BATSON CHALLENGE

                                                   A.

       Defendant’s Batson claim pertains to the prosecutor striking three African-Americans
from the jury: TM, SC, and DA. The prosecutor used her first peremptory challenge to excuse
TM without subjecting him to voir dire examination. SC was voir dired and later excused by the
prosecution. The prosecutor also used a peremptory challenge on DA, who was not voir dired.
After jury selection, defendant raised a Batson challenge and requested that the prosecutor
provide race-neutral reasons for dismissing TM, SC, and DA as jurors. Defense counsel noted



1
    I agree with the majority as to the other issues defendant raises on appeal.



                                                   -1-
that TM and DA “never said a word” and that SC “was very brief in her responses” during voir
dire examination.

       The prosecutor gave the following reason for excusing TM:

               Yes, um, when I was questioning all the rest of the jurors, he had the
       sunglasses on and he was glaring over the top of his sunglasses, you could see his
       forehead wrinkled, he was glaring, and kinda looking at me funny, and I didn’t
       like the way his facial expressions were. Um, uh, the sunglasses threw me and he
       was glaring when I asked questions. I didn’t, uh, get a good feeling from that.

As for DA, the prosecutor stated:

               Uh, your Honor, when we were asking questions, she was kind of staring
       off into space and not really paying attention and, uh, if they’re not paying
       attention during voir dire, they’re not gonna pay attention during trial.

With respect to SC, the prosecutor explained:

              Uh, yes, your Honor, she, I know this frankly sounds silly, but she had, uh,
       bright blue hair and had misspellings on her sheet and I—when they have
       misspellings on their sheet, it’s an education level thing, I, when they have
       misspellings, I generally don’t, uh, keep them as jurors, it’s something I’ve
       always looked at.

The trial court then stated:

       Well, those are the reasons so I don’t think any of them are race motivated so we
       still, I’m gonna have the record show, we still have I believe three or four . . .
       [b]lack jurors now.

Defense counsel then stated for the record that she did not notice TM glaring over his sunglasses
or DA “staring off into space . . . .” The trial court responded, “Okay. The record’s preserved
and I’m not, uh, persuaded that there’s anything that’s racially motivated here . . . I think [the
prosecutor] had legitimate reason . . . .”

                                                B.

        In Batson, the United States Supreme Court held that the Equal Protection Clause
prohibits a prosecutor from striking a prospective juror solely on the basis of race. Batson, 476
US at 89. The Court outlined a three-step process for analyzing a claim that the prosecution
exercised a discriminatory preemptory challenge. Id. at 96-98. First, the defendant must make a
prima facie showing of discrimination by demonstrating 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 was based on race.” People v Bell, 473 Mich 275, 282-283; 702 NW2d 128 (2005),
mod 474 Mich 1201 (2005). On appeal, the prosecutor argues that the trial court erred in not
determining whether defendant established a prima face case and that defendant did not, in fact,

                                                -2-
satisfy that burden. However, because the prosecutor proceeded to the second step of the Batson
analysis, she effectively waived defendant’s burden on the first step. See People v Tennille, 315
Mich App 51, 63; 888 NW2d 278 (2016).

        The second step requires the prosecution to offer a race-neutral reason for the preemptory
challenge. Batson, 476 US at 98. In this case, the prosecutor offered race-neutral explanations
for excluding the three prospective jurors. However, the trial court was then required to
ascertain whether those explanations were pretext for discrimination:

               In conducting a Batson analysis, a court may not simply “accept” a
       prosecutor’s race-neutral explanation and terminate the inquiry there. Rather, the
       trial court is tasked with engaging in a more penetrating analysis focused on
       ascertaining whether the prosecutor’s proffered race-neutral reason is pretext
       intended to mask discrimination. [Tennille, 315 Mich App at 68.]

Argument from defense counsel is crucial to the court’s determination, as it is a defendant’s
burden to show discrimination. Id. The trial court must then decide whether the prosecutor’s
proffered justification is credible:

       After affording the opponent of the challenge an opportunity to argue that the
       prosecutor’s stated reason lacks credibility in light of all surrounding
       circumstances, the court must render findings focused on the prosecutor’s
       demeanor when making the argument, whether the prosecutor’s explanation is
       reasonable and probable, and whether the proffered rationale has some basis in
       accepted trial strategy. [Id. at 68-69 (quotation marks and citations omitted).]

If the race-neutral justification is predicated on a juror’s demeanor, the trial court must
specifically evaluate “whether the juror’s demeanor can credibly be said to have exhibited the
basis for the strike attributed to the juror by the prosecutor.” Snyder v Louisiana, 552 US 472,
477; 128 S Ct 1203; 170 L Ed 2d 175 (2008).

       When demeanor serves as the sole ground for dismissal, some indication of
       whether the court observed the alleged expressions is required. If the court did
       not see the expressions, it must nonetheless find facts that either support or refute
       that racial discrimination motivated the challenge. This fact-finding hinges
       largely on credibility. [Tennille, 315 Mich App at 69.]

A demeanor-based explanation for a preemptory challenge is subjected to heightened scrutiny
because such justifications “are particularly susceptible to serving as pretexts for discrimination.”
Id. at 65. Ultimately, “Batson’s third step requires the trial court to make a final determination of
whether the challenger of the strike has established purposeful discrimination.” Id.

        In this case, the trial court made no findings except for stating the obvious: that the
reasons articulated by the prosecutor were race neutral. This is precisely what a trial court may
not do in analyzing a Batson claim. United States v Jackson, 347 F3d 598, 605 (CA 6, 2003) (“It
is inappropriate for a district court to perfunctorily accept a race-neutral explanation without
engaging in further investigation.”). I disagree with the majority that the trial court’s statement
that the prosecutor’s reasons were “legitimate” and not racially motivated was sufficient to
                                                -3-
satisfy the court’s duty to determine whether the prosecutor’s proffered reasons were pretext for
discrimination. In my view, this was merely a different way of saying that the prosecutor offered
race-neutral explanations.

         The lack of factual findings in this case is particularly concerning considering that the
prosecutor offered demeanor-based justifications, two of which were disputed by defense
counsel. 2 Specifically, defense counsel stated that she did not observe TM glaring over his
sunglasses and DA being inattentive, as claimed by the prosecutor. The court may not have
observed the demeanor or behavior that the prosecutor purportedly witnessed, but that does not
absolve the court of its responsibility to make factual findings. The court was at least required to
make a credibility determination regarding the prosecutor’s assertions and to give reasons for
that finding. Based on the record before us, I cannot presume that the trial court made a finding
that the prosecutor’s assertions were credible. See Tennille, 315 Mich App at 71. Rather, “[t]he
absence of factual findings in this regard is compelling evidence that the trial court short-
circuited the Batson process by failing to subject the prosecutor’s demeanor claim to a
dispassionate evaluation.” Id. at 69. While a juror’s demeanor or behavior can be a legitimate
reason for a preemptory challenge, such justifications require a trial court to carefully examine
the prosecutor’s assertions and make findings on the record. Otherwise a defendant is denied
meaningful appellate review, as we are unable to review the prosecutor’s observation-based
justifications for accuracy.

        It bears repeating that TM and DA were not voir dired. And a prosecutor’s “failure to
engage in any meaningful voir dire examination on a subject the State alleges it is concerned
about is evidence suggesting that the explanation is a sham and a pretext for discrimination.”
Miller-El v Dretke, 545 US 231, 246; 125 S Ct 2317; 162 L Ed 2d 196 (2005) (quotation marks
and citation omitted). Contrary to the majority’s position, there are obvious questions that the
prosecutor could have asked regarding her concerns. For instance, the prosecutor could have
asked TM whether he wore sunglasses to ameliorate a vision condition. Further, while SC was
voir dired, there was nothing in her examination to indicate that she was not able to serve as a
capable juror, and the prosecutor chose not to inquire into her “education level” or the reasons
why she wore blue hair. That the majority goes to great lengths to ignore that the prosecutor
could have easily asked such questions demonstrates that there is evidence suggesting pretext in
this case.

       In sum, the trial court made no factual findings regarding the prosecutor’s race-neutral
explanations. The court did not attempt to evaluate the credibility of the prosecutor’s
observations, despite argument to the contrary from defense counsel. Nor did the court make
any effort to discern whether the prosecutor’s justifications—even if accurate—were mere
pretext for discrimination. For those reasons, I conclude that the trial court failed to make
findings in accordance with Batson.




2
 To its credit, the trial court confirmed that SC misspelled a word on the juror questionnaire, and
defense counsel did not dispute that SC had blue hair.


                                                -4-
                                                  C.

        When a trial court substantially fails to apply the Batson framework, the question
becomes whether the defendant is entitled to a new trial or an evidentiary hearing where the trial
court may make the necessary findings. See Tennille, 315 Mich App at 73. The prudent
approach is to remand for a hearing on the condition that, if passage of time has made it
impractical for the trial court to apply Batson, the defendant be granted a new trial. Id. at 74-75.
The passage of time may make it difficult for the trial participants to recall the jurors’ and
prosecutor’s demeanor. But the trial court may consider additional factors, such as “the number
of minority jurors in the jury box at the time of the strikes, the number of minority jurors on the
final jury,[3] the prosecutor’s demeanor and credibility at the time he made the strikes . . . .’ ” Id.
at 74. Accordingly, I would remand this case for an evidentiary hearing so that the trial court
could make the required factual findings regarding defendant’s claim.



                                                               /s/ Douglas B. Shapiro




3
 I acknowledge that the trial court noted that there were “three or four” African-American jurors
on the final jury. But the court’s consideration of this one factor does not excuse the court’s
substantial noncompliance with the Batson three-step process as outlined above.


                                                 -5-
