If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

December 21, 2023

v No. 360600

Saginaw Circuit Court

CURTIS LEE RICHARDSON III, LC No. 17-043882-FC

Defendant-Appellant.

Before: GLEICHER, C.J., and JANSEN and RICK, JJ.

JANSEN, J. (dissenting).

For the following reasons, I respectfully dissent. Defendant appeals as of right his jurytrial convictions of domestic violence, third offense, MCL 750.81(2); being a felon in possession 

of a firearm (felon-in-possession), MCL 750.224f; and two counts of possessing a firearm during 

the commission of a felony (felony-firearm), second offense, MCL 750.227b. Defendant 

challenges his convictions, arguing, in part, that he was deprived of a fair trial because the 

prosecutor peremptorily excused all prospective Black jurors and provided no nonpretextual raceneutral reason for doing so. I disagree, and would therefore affirm defendant’s convictions and 

sentences. 

During jury voir dire, the prosecution exercised 10 peremptory challenges, and defendant 

exercised 12. Three of the prosecutor’s peremptory challenges were to Black jurors. Defendant 

timely raised a Batson1challenge. The prosecutor explained that the first juror, DC, appeared to 

be dozing off and not paying attention. The trial court confirmed that the juror seemed startled 

when addressed to tell her that she was excused, and defendant admitted that it was possible that 

the juror was not paying attention. The prosecutor explained that the second juror, LC, seemed 

concerned by the number of witnesses either party would present, and the prosecutor also excused 

another juror who had expressed similar concerns and was not a minority. The trial court reviewed 

the transcript and agreed with the prosecutor’s assessment of those jurors’ concerns. Finally, the 

prosecutor explained that he was concerned by the third juror, SP’s, “demeanor” for a variety of 

 

1 Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986).
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reasons, including her inability to recall details about her prior service on a jury 10 years ago. The 

trial court accepted that the third juror might plausibly have memory problems. The trial court 

therefore denied defendant’s Batson challenge.

Analyzing a claim that a party peremptorily challenged a juror on the basis of the juror’s 

race entails a mandatory three-step process under Batson v Kentucky, 476 US 79, 96-98; 106 S Ct 

1712; 90 L Ed 2d 69 (1986). See People v Knight, 473 Mich 324, 335-338; 701 NW2d 715 (2005). 

The first two steps involve a prima facie showing of discrimination followed by a superficially 

race-neutral explanation for the challenge. Knight, 473 Mich at 336-337. “[I]f the proponent 

provides a race-neutral explanation as a matter of law, the trial court must then determine whether 

the race-neutral explanation is a pretext and whether the opponent of the challenge has proved 

purposeful discrimination.” Id. at 337-338. Defendant challenges only this third step—whether 

the race-neutral explanation is pretext. The third step therefore entails a factual determination by 

the trial court that is reviewed for clear error and is “accorded great deference” due to the extent 

to which it will inevitably turn on an assessment of credibility. Id. at 344-345. Defendant has “the 

ultimate burden of proving purposeful discrimination.” Id. at 344. “[A] defendant is not entitled 

to a jury of a particular racial composition as long as no racial group is systematically and 

intentionally excluded.” Id. at 351. Rather, the “goal of Batson and its progeny is to promote 

racial neutrality in the selection of a jury and to avoid the systematic and intentional exclusion of 

any racial group.” Id. at 349.

“Clear error exists if the reviewing court is left with a definite and firm conviction that a 

mistake has been made.” People v Johnson, 466 Mich 491, 497-498; 647 NW2d 480 (2002). A 

trial court’s findings premised on a credibility assessment are not insulated from review to the 

extent objective evidence conflicts with those findings. Beason v Beason, 435 Mich 791, 803-804; 

460 NW2d 207 (1990). However, this Court will otherwise defer to the trial court’s credibility 

assessments to the extent such assessments are relevant. People v Ziegler, ___ Mich App ___, 

___; ___ NW2d ___ (2022) (Docket No. 355697); slip op at 3.

Defendant argues that the prosecutor’s explanation for peremptorily excusing the first 

juror, DC, was pretextual because the prosecutor did not ask that juror any questions. I would 

disagree.

Defendant cites United States v Odeneal, 517 F3d 406, 420-421 (CA 6, 2008),2in which a 

prosecutor’s failure to ask questions of a Black juror before peremptorily excusing that juror 

supported a finding of discrimination. However, in Odeneal, the purported reason for excusing 

the Black juror was that she had served on a prior jury that returned a verdict of not guilty, and the 

prosecutor retained a white juror who had served on that same prior jury and had also favored the 

acquittal. Id. at 420. The prosecutor also claimed to have excused the Black juror because she 

had indicated on a questionnaire that she was going through a divorce, but the questionnaire was 

a year out of date and the juror did not mention the divorce when the trial court asked the 

prospective jurors to provide any reasons why they could not serve on the jury. Id. at 418. In 

Miller-El v Dretke, 545 US 231, 241-245; 125 S Ct 2317; 162 L Ed 2d 196 (2005), the United 

 

2

“Although lower federal court decisions may be persuasive, they are not binding on state courts.” 

Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004).
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States Supreme Court opined that the prosecutor should have resolved concerns about a Black 

juror’s beliefs by further questioning the juror before peremptorily excusing the juror, but, in 

context, the Court drew a parallel between how the prosecutor treated the Black juror and how the 

prosecutor treated several white jurors who had expressed similar beliefs.

In short, defendant inappropriately seeks to craft a rule by taking holdings out of context. 

In neither Miller-El nor Odeneal did either court purport to establish any such rule. Rather, each 

court concluded that, in the context of the other circumstances, the prosecutors’ proffered raceneutral reasons for their peremptory strikes were not credible because questioning could have 

resolved the prosecutors’ concerns. Here, the prosecutor was not concerned about DC’s beliefs, 

but about whether she was actually paying attention. Defendant does not suggest what line of 

questioning the prosecutor should have pursued to resolve that concern. Defendant admitted that 

it was possible that DC was not, in fact, paying attention, and the trial court found the prosecutor’s 

race-neutral explanation plausible after observing that DC appeared startled when addressed. 

Thus, I would conclude that defendant did not demonstrate that the trial court’s finding was clearly 

erroneous.

Next, although not addressed by the majority opinion, defendant argues that the record 

does not support the prosecutor’s proffered race-neutral reason for excusing the second juror, LC. 

Defendant essentially argues over nuance, missing the point that, as the record plainly shows, LC

(and an also-dismissed nonminority juror) was concerned and seemingly confused by the prospect 

of a party presenting only a single witness, despite the prosecutor’s efforts to explain why it was 

not possible to present more than a single eyewitness. In my opinion, defendant has not 

demonstrated that the trial court’s finding was clearly erroneous.

Lastly, defendant’s argument that the prosecutor’s race-neutral explanation for 

peremptorily excusing SP was insufficient is unpersuasive. First, defendant argues that the trial 

court initially rejected the prosecutor’s concern about SP’s “demeanor.” The record shows that 

the trial court did not reject the prosecutor’s concern, but rather, found it insufficient without 

further explanation. Defendant points out that the transcript shows the prosecutor to have stated 

that “[t]here were a number of things that went into the calculation. Race was definitely one of 

them.” However, in context, the transcript is likely inaccurate. Defense counsel did not seize upon 

this apparent concession at the time. Moreover, almost immediately thereafter, the prosecutor 

stated that “race did not come into it,” and that “having done this for 36 years, I do not 

systematically exclude anybody from jury service based on their race or their gender or whatever 

preferences they may or may not have.” When asked by the trial court to expound further, the 

prosecutor stated, in part, that “[i]t had nothing to do with the color of her skin whatsoever and to 

the extent that I almost resent the accusation.” Furthermore, the trial court reviewed the transcript 

and ultimately agreed with the prosecutor that the SP might plausibly have concerning problems 

with her memory. Defendant expressly declined the trial court’s offered opportunity to rebut its 

assessment of the facts, thereby waiving any challenge to the trial court’s factual findings. See 

People v Kowalski, 489 Mich 488, 504; 803 NW2d 200 (2011). I would therefore conclude that 

defendant has not demonstrated that the trial court’s finding was clearly erroneous.
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Having concluded that the trial court did not err by accepting the prosecutor’s race-neutral 

explanations for peremptorily striking the three Black jurors as nonpretextual, I would affirm 

defendant’s convictions and sentences. 

/s/ Kathleen Jansen