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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 24, 2015

v No. 315196 Wayne Circuit Court CHRISTIAN BELL, LC No. 12-006721-FJ

Defendant-Appellant.

Before: B ECKERING , P.J., and H OEKSTRA and G LEICHER , JJ.

P ER C URIAM

.

AFTER REMAND

This case returns to us after remand for a hearing to determin e whether the prosecutor exercised two peremptory challenges in a racially di scriminatory manner. In accord with our instructions, the trial court conducted a heari ng pursuant to Batson v Kentucky , 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986). After taking testimony from the prosecutor, the trial court concluded that the two perempto ry challenges at issue had not been motivated by purposeful racial discrimination. We aff irm the trial court’s ruling that the prosecutor stated “valid ,” race-neutral justifications for the strikes.

As detailed in this Court’s original opinion, a jury convicted Christian Bell of second-degree murder , MCL 750.317, and posse ssion of a firearm during the commission of a felony, MCL 750.227b. On direct appeal, Bell raised sever al challenges to his convictions and sentences. We fo und all of them unpersuasive b ut for Bell’s argument that the trial court failed to consider his counsel’s timely Batson objection in the threestep manner Batson prescribes. Our opinion outlined Batson ’s analytical methodology, which is set in motion when an objection is made to a peremptor y challenge. The trial court must first consider whether the challenger has establishe d a prima facie case of purposeful racial discrimination. Batson , 476 US at 93-94. If this showing is made, the burden shifts to the prosecutor to articulate a race-neutral re ason for the strike. Id . at 97. The prosecutor’s justification need not be persuasive; at this second step in the process, even “a frivolous or utterly nons ensical justification” will do , as long as the explanation is race-neutral. Johnson v California , 545 US 162, 171; 125 S Ct 2410; 162 L Ed 2d 129 (2005).-2- The third step commences if and when the challenger contends th at a racially discriminatory motive actually i nspired the pros ecutor’s peremp tory challenge. The trial court must then review the evidence elicited during voir dire, and determine whether the proffered reason is credible. “There will seldom be much evide nce bearing on that issue, and the best evidence often will be the demeanor of the attorne y who exercises the challenge.” Hernandez v New York , 500 US 352, 365; 111 S Ct 1859; 114 L Ed 2d 395 (1991). “While the reason offered by the prosecutor for a pere mptory strike need not rise to the level of a challenge for cause, the fact that it corresp onds to a valid for-cause challenge will demonstrate it s race-neutral character.” Id . at 362-363 (citation omitted).

Because the third-step findings hinge on credibility, it follo ws that our review is deferential. “[A] trial court’s determination concerning wheth er the opponent of the peremptory challenge has satisfied the ultimate burden of provi ng purposeful discrimination is a question of fact that is reviewed for clear error.” People v Knight , 473 Mich 324, 344; 701 NW2d 715 (2005) (citation omitted). “Moreov er, the trial court’s ultimate factual finding is accorded great deference.” Id. “[A] reviewing court, which analyzes only the transcripts from voir dire, is not as well positioned as the trial court is to make credibility determinations.” Miller-El v Cockrell , 537 US 322, 339; 123 S Ct 1029; 154 L Ed 2d 931 (2003).

At the Batson hearing, the parties devoted most of their efforts to reconstr ucting the racial composition of the jury at the time of the two conte sted strikes. Our original opinion had directed this exer cise, although we also posited th at the parties could instead omit this step and proceed direct ly to testimony eliciting the prosecutor’s justifications for the strikes. After reaching an agreement as to the race of the jurors in t he venire at the time of the strikes, the trial court ruled that Bell had failed to establish a prima facie case of racial discrimination. We h ave our doubts about the correct ness of that ruling, but our concerns are of no consequence. Despite having rejected that d efendant established an inference of discrimination, th e trial court explored through s worn testimony the prosecutor’s justifications for the strikes, and rendered a det ermination that they were not infected with racial bias. Havin g engaged the prosecutor and d efense counsel on the merits of Batson steps two and three, whether defendant made a sufficient prima facie showing of discrimination no longer mattered. “Once a prosecut or has offered a raceneutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminar y issue of whether the defendant had made a prima facie showing becomes moot.” Hernandez , 500 US at 359.

The prosecutor offered the following reasons for the contested strikes of jurors Ethel Thomas and Gary Fizer:

As it relates to Ms. Thomas, she indicated that her brother ha d been murdered in the City of Detroit. I think it was two years prior to her coming into court.

That she had met with Homicide Detectives from the Detroit Police Department’s Homicide Division. And that even after an investigation, there was [sic] no suspects that had been develo ped.-3- Because of that, I excused her.

As it relates to Mr. Fizer, Mr. Fizer had indicated that - - h e indicated a lot of things.

First he indicated that he was friends with a judge in Inkster . That led me to believe that at the time there was an ongoing situati on with the current sitting Inkster judge.

But he - - the thing that was most troubling to me, he also in dicated that he had some children that had been investigated in the Cit y of Detroit for criminal activity.

But the reason why I kicked him was because he had indicated t hat he couldn’t even look at the defe ndant, because he reminded him of his grandson.

And so that’s why I excused him.

Defense counsel challenged these reasons. As to Ms. Thomas, c ounsel argued that a Caucasian juror, Jenny Yates, revealed that “her father had been shot in the line of duty,” and Ms. Yates’s grandmothe r “had been killed with a gun during domestic violence.” No one was prosecuted for Ms. Yates’s father’s murd er. Employing a comparative juror analysis, counsel asserted that the reasons g iven for the strikes were unconvincing. Counsel disputed that Mr. Fizer had actually exp ressed that “he would not even look at the defendant,” and emphasized that Mr. Fizer had reassured the court that “he could convict with a clear c onscience” if he felt that the prosecution had proved its

case.
The trial court found that juror Yates’s father’s shooting occ urred 17 years previously, “when she was a sma ll child,” and that Ms. Yates ha d “indicated that it would not impact her.” In contrast, t he court recollected, Ms. Thoma s’s brother was killed only two years earlier, the case re mained unsolved, and Ms. Thomas h ad personal contact with the Homicide Unit. The trial court deemed the prosecutor’s exp lanation for excusing Ms. Thomas “valid” because the Homicide Department’s failure to fin d Ms. Thomas’s brother’s killer “was fresh i n her mind,” which distinguished h er from Ms. Yates.

Quoting directly from the transcript of the prior trial, the c ourt confirmed that Mr. Fizer had indeed attested that “defendant reminded him of his g randson,” and that he had expressed “I really don’t want to l ook at him” for that reason. These statements, the court ruled, also constituted “valid” reasons for a peremptory challe nge.
We presume that by using the term “valid,” the trial court mea nt that the prosecutor’s explanations for the challenges were credible, and that the prosecutor had exercised the challenges in a nondi scriminatory manner. Given the “great deference”-4- owed to trial courts’ Batson findings and that the court followed our directive by engaging in the constitutionally required analysis, we affirm t he denial of Bell’s Batson claim.

We affirm.

/s/ Jane M. Beckering /s/ Joel P. Hoekstra /s/ Elizabeth L. Gleicher