Opinion
Docket No. 6,543.
Decided July 2, 1970.
Appeal from Recorder's Court of Detroit, Thomas Poindexter, J. Submitted Division 1 May 11, 1970, at Detroit. (Docket No. 6,543.) Decided July 2, 1970.
Ephrian Thomas was convicted of assault with intent to rob while being armed. Defendant appeals. Reversed and remanded.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.
Gregory M. Pillon, for defendant.
The defendant appeals his conviction of assault with intent to rob while being armed. He claims that the trial judge erred in refusing to alternate peremptory jury challenges. We agree and remand for a new trial.
MCLA § 750.89 (Stat Ann 1962 Rev § 28.284).
This is a capital case and the defendant, therefore, had 20 peremptory challenges and the people 15.
MCLA § 768.13 (Stat Ann 1962 Rev § 28.1036).
The judge insisted that the defendant exercise all his peremptory challenges or announce that he was satisfied with the jury before the people would be required to exercise any of their peremptory challenges. After noting and preserving defendant's objection, his attorney exercised 19 of his peremptory challenges. The judge then offered to permit the defendant to reserve his last challenge, which offer the defendant declined saying that it was necessary to exhaust all his peremptory challenges to preserve his contention that each side should be required to exercise its peremptory challenges alternately.
Cf. People v. Rose (1934), 268 Mich. 529, 531.
GCR 1963, 511.5, in part, provides:
"First the plaintiff and then the defendant may exercise 1 or more peremptory challenges alternately until each party successively waives further peremptory challenges or all such challenges have been exercised." The general court rules "apply to criminal cases, except as otherwise provided by rule or statute, and except when it clearly appears that they apply to civil actions only, or where statutes or special court rules provide a different procedure." GCR 1963, 785.1(1). Various general court rules have been held to be applicable in criminal cases.
"After all challenges for cause are completed, the parties shall make or waive their peremptory challenges. First the plaintiff and then the defendant may exercise 1 or more peremptory challenges alternately until each party successively waives further peremptory challenges or all such challenges have been exercised. A juror peremptorily challenged is excused without cause. Each party may challenge peremptorily 5 jurors. Two or more parties on the same side are considered a single party for purposes of peremptory challenge, but where multiple parties having adverse interests are aligned on the same side, 5 peremptory challenges shall be allowed to each such party represented by a different attorney." GCR 1963, 511.5.
GCR 1963, 503.1. Grounds for continuance: People v. Wilkinson (1969), 17 Mich. App. 661, 663;
GCR 1963, 507.5. Failure to make a party's position known to the court before it ruled: People v. O'Leary (1967), 6 Mich. App. 115, 123;
GCR 1963, 516.3. Examination of jurors: People v. Lambo (1967), 8 Mich. App. 320, 324-326;
GCR 1963, 516. Requests for and objections to jury instructions: People v. Green (1967), 7 Mich. App. 346, 358; People v. Fred W. Thomas (1967), 7 Mich. App. 519, 540;
GCR 1963, 517. Findings of facts in non-jury trials: People v. Beaudoin (1967), 7 Mich. App. 461, 464; People v. George Scott (1970), 21 Mich. App. 217, 218; People v. Martinovich (1969), 18 Mich. App. 253, 259;
GCR 1963, 517. Reviewing standard ("clear error") in non-jury cases: People v. Walker (1967), 6 Mich. App. 600, 602; People v. Hummel (1969), 19 Mich. App. 266;
GCR 1963, 528. Correction of judgment: People v. Norman (1968), 9 Mich. App. 647, 651;
GCR 1963, 529.1. Harmless error: People v. Calhoun (1969), 17 Mich. App. 401, 402;
GCR 1963, 604. Offer of Proof. People v. O'Leary (1967), 6 Mich. App. 115, 123.
While rule 511.5 (see footnote 4) provides that each party shall have only 5 peremptory challenges in a civil case, and the pertinent statutory rule of criminal procedure allows the defendant 20 and the people 15 such challenges in a capital case, the criminal procedure rule does not establish a "different procedure" than that set forth in the general court rule concerning the manner or order of exercise of peremptory challenges (nor does it "otherwise provide"). It provides only for a different number of challenges. It does not "clearly appear" that the alternating of peremptory challenges should apply to civil actions only.
There is no need, however, to rely on the general court rule. On principle, we would reach the same conclusion. It would be most unfair to the defendant — who under the statute is clearly to have the advantage, 20 challenges to 15 — to require him to exhaust all his challenges, or even all but one, and thereby leave the people free to choose an entirely new jury through exercise of their 15 peremptory challenges.
We are satisfied that jury selection standards, at least in this regard, should be as high in criminal as in civil cases; that fundamental fairness requires alternating peremptory challenges in criminal as well as in civil cases.
The defendant need not demonstrate that the judge's ruling in fact resulted in prejudice. By definition, peremptory challenges may be exercised without assigning reason or demonstration of cause. It would be virtually impossible in almost any case to demonstrate that prejudice resulted from an infringement of the right peremptorily to challenge jurors. If that is the defendant's burden, then there need be little concern in any case that the defendant could demonstrate reversible error.
See People v. Roxborough (1934), 307 Mich. 575, 593.
Reversed and remanded for a new trial.
All concurred.