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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED September 27, 2016

v No. 327491 Wayne Circuit Court DARRELL WILDER, also known as DARRELL JOHN WILDER, also known as DARRELL J. WILDER, LC No. 14-004600-FH

Defendant-Appellant.

Before: B ORRELLO , P.J., and M ARKEY and R IORDAN , JJ.

P ER C URIAM

. Defendant appeals as of right h is jury trial convictions of fe lon in possession of a firearm (felon in possession), MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), third offense, MCL 750.227b. The jury acquitted defendant of carrying a concealed weapon, MCL 750.227. The trial court sentenced def endant to five y ears’ probation for the felon in possession conviction and 10 years’ imprisonme nt for the felony-firearm conviction. For the reasons set forth in this opinion, we affi rm.

I. FACTS

This case arises from an investigation of suspicious conduct a t a vacant lot adjacent to 2175 Eastlawn in Detroit by Detro it Police Officers Steven Fult z and David Shaw on May 16, 2014. At about 4:20 p.m. that day, Fultz and Shaw were on rout ine patrol in their fully marked police vehicle. As they traveled down Eastlawn in a residentia l area, the officers noticed a group of individuals in a vacant lot, standing around the front of a late model, silver Monte Carlo. After closer examination, both o fficers observed that one of th e men, later identified as defendant, appeared to have the handle of a handgun sticking ou t from his right front pants pocket.

Shaw, who was driving the police vehicle, turned in the direct ion of the vacant lot without activating the vehicle’s warning lights. As the police vehicle approached the group of people, both officers watched as defendant took a key from the hand of a woman in the group and walked “casually” from his position near the driver’s side door of the silver Monte Carlo to its rear. Defendant used the key to open the Monte Carlo’s trunk, “pulled a handgun up from his right pants pocket,” put the gun in the trunk, and closed the t runk. The officers did not observe-2- any other individual approach the rear of the Monte Carlo or op en the trunk, and none of the individuals walked or ran away as the police vehicle approached . The officers ultimately opened the trunk and discovered a Glock semi-automatic handgun with a drum attachment and arrested defendant.

At trial, the parties stipulated that defendant had a prior fe lony conviction and had not been eligible to possess a firearm at the time of his arrest. After taking testimony from Fultz and Shaw, the prosecution called Charmell Richardson, who was in th e parking lot near the car. Richardson testified that she owne d the Monte Carl o and was sel ling it to Carlos Wilder that day. Richardson stated that she did not give defendant the key to he r car. Further, she said she had been standing next to defendant before the officers approached and had not seen defendant or anyone else carrying a gun or openi ng the Monte Ca rlo’s trunk.

Defense counsel called Carlos, defendant’s brother and Richard son’s cousin, who expanded on but largely confirmed Richardson’s version of the M ay 16, 2014 events. Defense counsel also called defendant’s wife, Tameachi Wilder, who had known defendant for 16 years and had lived with him for nine years. Tameachi recalled that she had been braiding defendant’s hair on the afternoon of May 16, 2014, when defendant received a call from Carlos. She had not finished defendant’s hair when he left with his brother, and Ta meachi did not know where they were going. Tameachi had not seen defendant with a gun that day. In response to defense counsel’s line of questioning, Tameachi stated that she did not know defendant to own or carry any guns. Thereafter, on cross-examination, Tameachi admitted that she knew defendant had previously been convicted at le ast twice of felony-firearm.

Defendant was convicted and sen tenced as set forth above. Thi s appeal ensued.

II. ANALYSIS

On appeal, defendant first argue s that the trial court erred u nder MRE 404(b) and MRE 609 when it allowed the prosecutor to question Tameachi about two of defendant’s prior felonyfirearm convictions, and when it denied defendant’s subsequent motion for a mistrial on the same ground.

We review a trial court’s decision to grant or deny a mistrial for an abuse of discretion. People v Ortiz-Kehoe , 237 Mich App 508, 512; 603 NW2d 802 (1999). We also review a trial court’s decision regarding the admissibility of evidence for anabuse of discretion. People v Dobek , 274 Mich App 58, 84-85; 732 NW2d 546 (2007). However, “[p]re liminary questions of law, including whether a rule of evidence precludes the admissi on of evidence, are reviewed de novo.” People v Burns , 494 Mich 104, 110; 832 NW2d 738 (2013). A trial court abuses its discretion when it admits evidence that is inadmissible as a ma tter of law. People v Bynum , 496 Mich 610, 623; 852 NW2d 570 (2014).

At trial, defense counsel called Tameachi to testify that she had been with defendant at home just before the incident, and that she had not seen him wi th a weapon as he left the house that afternoon. Tameachi also testified that, to her knowledge , defendant did not own a gun or keep any weapons in their home. On cross-examination, the pros ecutor challenged this testimony as follows:-3- [ The Prosecutor ]: Now you were asked whether or not [defendant] had a weapon with him on that day?

[ Tameachi ]: Yes.

The Prosecutor : Okay. You don’t know where he went? You didn’t see where he went after he left your apartment on the eastside of D etroit, did you?

Tameachi : No.

The Prosecutor : Do you know of [defendant ] to carry weapons?

Tameachi : No.

The Prosecutor : Do you know of him to carry guns?

Tameachi : No.

The Prosecutor : You’ve been with him for nine years and you don’t know of him to carry guns?

At this point in the cross-exam ination, the prosecutor asked f or a hearing outside the presence of the jury, and the trial court agreed. Once the jur y was out of the courtroom, the prosecutor requested permission to question Tameachi about two prior felony-firearm convictions, one from 2007 and on e from 2010, on defendant’s re cord. Defense counsel objected, arguing that the crimes were not relevant and suggest ing that the prosecutor was “simply trying to back-door and get in convictions that she kno ws she can’t get in.” The trial court considered the objection bu t granted the prosecutor’s req uest.

The jury was recalled and the prosecutor continued her cross-e xamination of Tameachi, questioning Tameachi about the two prior felony-firearm convict ions. Tameachi admitted that she was aware of defendant’s two prior convictions, but maintai ned that she did not know defendant to carry weapons.

After Tameachi’s testimony, defense counsel moved for a mistri al on grounds that “those questions that were asked were inadmissible [and] unfairly prej udicial.” Defense counsel argued that she had not opened the door for character evidence because her questions had been limited to whether defendant possessed a weapon on the day of the incid ent, and it had been the prosecutor who questioned Tameachi about whether she knew defen dant to own a gun or regularly carry one. The trial c ourt denied the motion for a m istrial.

On appeal, defendant argues that the trial court erred when it allowed the prosecutor to question Tameachi about her knowledge of defendant’s prior fire arms convictions because it allowed the presentation as inadmissible “character evidence” u nder both MRE 404(b) and MRE 609. However, defendant misapplies both court rules.

First, MRE 404(b) did not operate to limit the presentation of testimony regarding defendant’s prior convictions be cause, despite the trial court’ s characterization of the testimony,-4- such testimony did not constitute character evidence. Evidence of defendant’s prior convictions, admitted for the purpose of testing the veracity of defendant’s own witness, was admissible under MRE 404(b). MRE 404(b) prohibits evidence of other crime s, wrongs, or acts of defendant only when offered “to prove the character of a person in order to show action in conformity therewith.” In this case, while defendant correctlynotes that evidence of his past crimes may have encouraged an inference of character or propens ity, such an inference did not render the evidence inadmissible. Even evidence reflective of a defendant’s character is not rendered inadmissible by MRE 404(b) when it is relevant to a no ncharacter purpose. People v Crawford , 458 Mich 376, 385; 582 NW2d 785 (1998).

MRE 611(c) provides that “[a] witness may be cross-examined on any matter relevant to any issue in the case, includi ng credibility.” Evidence is rel evant when it has “any tendency to make the existence of any fact tha t is of consequence to the de termination of the action more probable or less probable than it would be without the evidence ,” MRE 401, and the interest, bias, and credibility of a witness is “almost always relevant,” because “the jury, as finder of fact and weigher of credibility, has historically been entitled to a ssess all evidence that might bear on accuracy and truth of a witness’ testimony,” People v Layher , 464 Mich 756, 764-765; 631 NW2d 281 (2001).

Here, the prosecutor introduced evidence of defendant’s prior felonies for impeachment purposes to rebut Tameachi’s testimony that defendant did not c arry guns. When Tameachi testified that she did not know defendant to own a gun or to ca rry one, she opened herself up to questioning related to her veracity on this issue. By introduc ing evidence of def endant’s prior convictions, the assistant pros ecutor was not attempting to est ablish that defendant had a propensity for carrying guns or committing gun-related crimes, or that defendant’s previous crimes made it more likely for him to have committed the crime for which he was on trial. Rather, the prosecutor sought to introduce the evidence to chal lenge the credibility of the witness relative to the assertion that defendant did not own or carry g uns. Consequently, although the trial court’s characterization of the evidence as “character ev idence” was mistaken, its decision to allow the evidence was not error. In this case, because the evidence was relevant to witness credibility and not offered to prove defendant’s bad character or his propensity to act in conformity therewith, the trial court did not err in admitting the evidence, albeit it did so for different reasons. See In re People v Jory , 443 Mich 403, 425 ; 505 NW2d 403 (1993) (“Where a trial court reaches the correct result for the wrong reason, it s decision need not be reversed on appeal.”)

Defendant also argues that the prosecutor improperly raised a collateral issu e, presumably defendant’s ownership or habit of carrying firearms, in order t o admit evidence of defendant’s prior felonies through the “back door” of impeachment. Defenda nt is correct that, in general, “a witness may not be contradicted regarding collateral, irrelevan t, or immaterial matters.” MRE 608(b); People v Vasher , 449 Mich 494, 504; 537 NW2d 168 (1995). However, the issues of defendant’s prior felony-firear m convictions and Tameachi’s cre dibility were not collateral matters. A collateral matter is defined as “[a]ny matter on wh ich evidence could not have been introduced for a relevant purpose.” People v Steele , 283 Mich App 472, 488; 769 NW2d 256 (2009), quoting Black’s Law Dictionary (8th ed). Impeachment evidence is not collateral if it relates to the substantive issues in the case, “matters closelybearing on a defendant’s guilt or innocence,” or matters related to a witness’ bias or interest. People v LeBlanc , 465 Mich 575,-5- 590; 640 NW2d 246 (2002). Here, Tameachi’s knowledge of her hu sband’s history regarding gun ownership and possession was clearly relevant and closely b ore on defendant’s guilt or innocence.

Similarly, MRE 609’s prohibition on impeachment through prior convictions is inapplicable given the factual scenario presented here. MRE 60 9 provides in relevant part:

For the purpose of attacking the credibility of a witness, evid ence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record durin g crossexamination, and

(1) the crime contained an ele ment of dishonesty or false sta tement, or

(2) the crime contained an element of theft, and

(A) the crime was punishable by imprisonment in excess of one year or death under the law unde r which the witness was convicted, and

(B) the court determines that the evidence has significant pr obative value on the issue of credibil ity and, if the witness is the defendant in a criminal trial, the court f urther determines that the pr obative value of the evidence outweighs its prejudicial effect. [MRE 609(a) (emphasis added).]

In this case, the prosecution did not offer evidence of the wi tness Tameachi’s prior convictions, but rather offered evidence of defendant’s prior c onvictions to illustrate contradictions between Tameachi’s testimony and her history with defendant. The prosecutor’s intent was not to prove that Tameachi’s prior convictions indic ated that she was inherently untrustworthy. Rather, it was to show that Tameachi’s trial te stimony lacked credibility because Tameachi knew about defendant’s convictions before she testifie d that she had never known defendant to carry a firearm. M RE 609 thus did not apply, and the fact that defendant’s prior convictions did not contain an e lement of theft or dishonesty i s irrelevant.

In sum, the trial court did not err in admitting evidence of d efendant’s prior convictions. Accordingly, the trial court did not abuse its discretion in de nying defendant’s motion for a mistrial and defendant is not e ntitled to relie f on this issue. Ortiz-Kehoe , 237 Mich App 512.

Next, defendant argues that the trial judge’s conduct in quest ioning the prosecution’s witnesses 1 pierced the veil of judicial impartiality and deprived defendant of a fair trial. We

1 Defendant argues that the trial judge questioned all of the wi tnesses, but a review of the record indicates that the trial ju dge only questioned the prosecution’ s witnesses.-6- review an unpreserved claim of j udicial bias for plain error. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999).

Generally, a trial court “may interrogate witnesses, whether c alled by itself or a party.” MRE 614(b). Recently, in People v Stevens , 498 Mich 162, 164; 869 NW2d 233 (2015), our Supreme Court clarified the pr oper scope of judicial questionin g of witnesses as follows:

This Court has stated the central object of judicial questionin g should be to clarify. Therefore, it is appropriate for a judge to question witnesses to produce fuller and more exact testimony or to elicit additional relevan t information. Judicial questioning, neve rtheless, has boundaries . . . .

* * *

It is inappropriate for a judge t o exhibit disbelief of a witne ss, intentionally or unintentionally. It is essentia l that the judge not permit his own views on disputed issues of fact to become apparent to the jury. [ Id .]

The Stevens Court explained that “[a] judge’s conduct pierces this veil an d violates the constitutional guarantee of a fa ir trial when, considering the totality of the circumstances, it is reasonably likely that the judge ’s conduct improperly influence d the jury by creating the appearance of advocacy or partiality against a party.” Id . When considering the totality of the circumstances, a reviewing court should consider,

the nature of the trial judge’s conduct, the tone and demeanor of the judge, the scope of the judicial conduct in the context of the length and complexity of the trial and issues therein, the extent to which the judge’s condu ct was directed at one side more than the other, and the presence of any curative instructions, either at the time of an inappropriate occurrence or a t the end of tri al. [ Id .]

Having reviewed the record, considering the totality of the ci rcumstances, while the trial judge asked needlessly excessive and irrelevant questions of th e witnesses, the questioning as a whole did not evidence improprie ty or pierce the judicial veil of impartiality. The trial judge’s questions were not “intimidating, argumentative, or skeptical,” id. , and there is nothing to suggest that the judge’s conduct wa s otherwise inappropriate. The trial judge did not interrupt during direct or cross-examination, and waited each time for th e respective parties to conclude their own questioning. The trial judge also allowed members of the jury to pose their own questions to each witness, and offered both attorneys the chanc e to re-examine the witnesses after she and the jury posed their questions. While the judge directed questions toward the prosecutor’s witnesses, the quest ions themselves did not elicit answers favoring one side more than the other. Finally, the trial judge instructed the jury t hat “[i]f you believe that I have an opinion about how you should decide the facts you must pay no a ttention to that opinion.” Jurors are presumed to follow their instructions, and such a curative instruction ensures a fair trial even when there is minor or brief inappropriate conduct. Stevens , 498 Mich at 177. Despite defendant’s argument to the contrary, this is not a case where, even with a curative instruction, the trial court “so oversteppe d its bounds that no instruction can erase the appearance of-7- partiality.” Id . at 178. Indeed, the trial judge ’s questions revealed no bias to correct. The veil of judicial impartiality was not pierced, and no plain error occur red. Id

. Next, defendant argues that he was deprived of the effective a ssistance of counsel when defense counsel (1) chose to call Tameachi to the stand, openin g the door to the admission of damaging character evidence, and (2) failed to object to the tr ial court’s “improper” questioning of witnesses.

Defendant failed to preserve this issue by bringing a motion f or a new trial or a Ginther 2 hearing in the lower court. People v Petri , 279 Mich App 407, 410; 760 NW2d 882 (2008). Our review is therefore limited to mistakes apparent on the record. People v Davis , 250 Mich App 357, 368; 649 NW2d 94 (2002). Whether a person has been deniedthe effective assistance of counsel is a mixed question of law and fact. People v Matuszak , 263 Mich App 42, 48; 687 NW2d 342 (2004). “A trial court’s findings of fact, if any, ar e reviewed for clear error, and this Court reviews the ultimate consti tutional issue arising from anineffective assistance of counsel claim de novo.” Id

. To establish ineffective assistance, the defendant must show that “(1) defense counsel’s performance was so deficient that it fell below an objective st andard of reasonableness and (2) there is a reasonable probability that defense counsel’s defici ent performance prejudiced the defendant.” People v Heft , 299 Mich App 69, 80-81; 829 NW2d 266 (2012). In order to sho w deficient performance, “a defendant must show that counsel’s pe rformance was outside the wide range of professionally competent assistance.” Strickland v Washington , 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). A defendant is prejudiced if there is a reasonable probability that, “but for defense counsel’s errors, the result of the proc eeding would have been different.” Heft , 299 Mich App at 81.

Defense counsel’s performance at trial did not fall below an o bjective standard of reasonableness. First, defense counsel’s decision to call Tame achi, while resulting in the jury’s exposure to information regardin g defendant’s prior felony-fire arm convictions, also enabled defense counsel to elicit testim ony confirming that defendant h ad not possessed a firearm when he left his home on the day of t he incident. Considering the s ignificant evidence against defendant, defense counsel’s decision to call defendant’s wife was not only objectively reasonable, but perhaps necessary to support defendant’s only p ossible defense—that he had not been the one to put the handgun i n the Monte Carlo’s trunk. We note that: “[d]ecisions regarding what evidence to present and whether to call or question witnes ses are presumed to be matters of trial strategy,” People v Rockey , 237 Mich App 74, 76; 601 NW2d 887 (1999), and this Court does not second guess defense coun sel’s strategic decisions reg arding what evidence to present or how to question witnesses, People v Dixon , 263 Mich App 393, 398; 688 NW2d 308 (2004) (internal citations and quotations omitted). Additionally, although defense counsel made the decision to call Tameachi to testify, she properly objected to the prosecutor’s introduction of defendant’s prior convictions. H er actions did not fall below an objective standard of reasonableness. Strickland , 466 US at 687.

2 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-8- With respect to the trial court’s questioning of the witnesses , as previously discussed, the questioning did not amount to bias or unfair prejudice. Accord ingly, defendant cannot show that counsel’s failure to raise an objection amounted to the ineffec tive assistance of counsel. See e.g. People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010) (“Failing to advan ce a meritless argument or raise a futile objection does not constit ute ineffective assistance of counsel.”) Accordingly, defenda nt is not entitled to relief on this issue.

Finally, defendant argues that h e was deprived of a fair trial when the trial court failed to properly scrutinize the prosecutor’s improper, racially discrim inatory, peremptory challenges pursuant to Batson v Kentucky , 476 US 79, 89; 106 S Ct 1712; 90 L Ed 2d 69 (1986), before denying defendant’s objection to the prosecutor’s use of peremp tory challenges to excuse four African American jurors.

Under Batson , a prosecutor is prohibited from using peremptory challenges t o strike a juror from a defendant’s jury on the basis of race. People v Bell , 473 Mich 275, 278; 702 NW2d 128, amended 474 Mich 1201 (2005). The determination of whethe r a prosecutor’s challenge was discriminatory involves a three step process. People v Armstrong , 305 Mich App 230, 237- 238; 851 NW2d 856 (2014). First, a defendant must establish a prima facie case of purposeful discrimination based on race. Id . The burden is on the defe ndant to “offer facts that at least give rise to an inference that the prosecutor had a discriminatory p urpose for excluding the prospective juror.” Id . It is only after the defendant has established a prima facie case that the prosecutor must provide a race-neutral explanation for the chal lenge at issue. Id . Finally, the trial court decides whether th e defendant has proved purposeful discrimination. Id

. The appropriate standard of review for a Batson 3 challenge depends upon which part of the three-part challenge proce dure is before the court on appea l:

If the first step is at issue (whether the opponent of the chal lenge has satisfied his burden of demonstrating a prima facie case of discrimination), we review the trial court’s underlying factual findi ngs for clear error, and we rev iew questions of law de novo. If Batson ’s second step is implicated (whether the proponent of the peremptory challenge articulates a race-neutral explanation as a matter of law), we review the proffered explanation de novo. Finally, if the t hird step is at issue (the trial court’s determinations whether the race-neutral expl anation is a pretext and whether the opponent of the challenge has proved purposeful discrimination), we review the trial court’s ruling for clear error. [ People v Knight , 473 Mich 324, 345; 701 NW2d 715 (2005).]

Here, the first step of the Batson analysis is not at issue. When defense counsel objected to the prosecutor’s use of three peremptory challenges to remov e African American prospective jurors, the prosecutor noted that he had actually removed four black jurors and offered raceneutral explanations for each removal. The trial judge then pr oceeded to rule on the ultimate question of discrimination, presumably finding that defendant h ad established at least a prima

3 Batson v Kentucky , 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986).-9- facie case. As is the case here , “if the proponent of the [per emptory] challenge [that removed the potential jurors at issue] offers a race-neutral explanation an d the trial court rules on the ultimate question of purposeful discrimination, the first Batson step (whether the opponent of the [peremptory] challenge made a prima facie showing) becomes moot .” Knight , 473 Mich at 338. Accordingly, we look to the second and third Batson factors: (1) whether the proponent of the peremptory challenge articulates a race-neutral explanation as a matter of law, and (2) whether the race-neutral explanation is a pretext and if the opponent o f the challenge has proved purposeful discrimination. Id . at 345.

Jury selection took place on the first day of defendant’s tria l. A total of 23 jurors were selected from the jury pool. One juror was excused by the tria l court for cause, defendant exercised four peremptory challenges and the prosecutor exercis ed five peremptory challenges. Of the prosecutor’s five peremptory challenges, four were used to remove African American individuals from the pool—Juror s Anderson, Taylor, Jackson, and Lewis. After the fourth such challenge, defense counsel objected on Batson grounds. The trial judge requested a response from the prosecutor, who explained:

[ The Prosecutor ]: Your Honor . . . The reasons for which I struck those individuals, number one, was because her [Juror Anderson’s] son currently has a case that is being prosecuted by our office. [Juror] Taylor ha d a brother who had been convicted of carjacking and would not look up at me or loo k at the [c]ourt when answering questions. [Juror] Jackson did not inform the [ c]ourt about the contact that she had with the [o]fficer-in-charge, didn’t infor m the [c]ourt that she was a victim to a crime and didn’t inform the [c]ourt that she had contact with someone that had been arrested of a crime and [Juror] Lewis jus t had a lot going

on.

The Court : [Juror] Lewis just had a lot going on?

The Prosecutor : [Juror] Lewis was the one that caught cancer in jail and had the lead case. He was a party to a lead case and he had a drug case that disappeared.

The trial judge then asked defe nse counsel if she had a respon se. Defense counsel did not raise any objection to the prose cutor’s race-neutral reasons fo r her exercise of peremptory challenges. Instead, defense c ounsel shifted gears, arguing th at “this jury is not representative of a jury of my client’s peers,” and raising a challenge to “the j ury pool and the composition in this case.” Defense counsel and the prosecutor then made arguments related to the propriety of using voter registration lists to bu ild jury pools and whether it is the racial population of the city or county that must be represented by a jury pool. Neither of the se issues are raised by defendant on appeal, and although the trial judge never explicitly revisi ted or ruled on defense counsel’s Batson challenge, the trial judge conc luded that the racial makeup of the jury was fair and defendant raised no further objections.

Here, the prosecutor properly articulated race-neutral reasons for removal in compliance with Batson ’s second step as a matter of law. Batson ’s second step “does not demand an explanation that is persuasive, or even plausible.” Id. at 324. “A neutral explanation in the-10- context of [this Court’s] analysis here means an explanation ba sed on something other than the race of the juror . . . [and] [u]nless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Id . The prosecutor adequately explained each peremptory challenge, citing reasons including the potential for bias or a conflict of interest based on dealings with the prosecutor’s office, body language, failure to disclose information, and unpredictability. Each of the prosecutor’s ar ticulated race-neutral reasons for exercising peremptory challenges was a “clear and reasonably sp ecific explanation of [a] legitimate reason[] for exercising the challenges.” Batson , 476 US at 98 n 20. There is no discriminatory intent inherent i n any of the prosecutor’s artic ulated reasons. Indeed, the prosecutor provided a plausible, a nd even persuasive, race-neut ral argument to support each of its peremptory challenges of African American prospective juror s. Batson ’s second step was therefore satisfied a s a matter of law.

Further, each of the prosecutor’ s articulated reasons was clea rly supported by the record. Juror Anderson, the first juror called from the jury pool, info rmed the trial court that she had a son that was in the Wayne County jail after a domestic violence charge brought only two weeks before defendant’s trial. Juror Taylor admitted that her broth er had been arrested for carjacking and gun possession eight years before defendant’s trial, and th at she followed along closely with that case. Juror Jackson initiall y stated that she had never b een arrested for any offense, never been the victim of a crime, and did not have any friends or fam ily members who had been arrested or charged with a crime. Later, the prosecutor approa ched the bench and the trial court asked Juror Jackson if she had ever seen the man sitting at the prosecutor’s table. At that point, Juror Jackson admitted that she knew the officer-in-charge of d efendant’s investigation because she had recently been the victim of a crime and met him while s he was reporting it. When asked why she had failed to mention the crime when specifically asked , she said she “wasn’t thinking.” Finally, Juror Lewis provided so mewhat concerning statements du ring the trial court’s initial voir dire. Even the trial judge exhibited some confusion over Juror Lewis’ statements regarding his history with the justice system.

After obtaining a race-neutral explanation from the prosecutor , the trial court was required to “determine whether th e race-neutral explanation is a pretext and whether the opponent of the challenge has proved purposeful discrimination. ” Knight , 473 Mich at 337-338. This inquiry is a factual determination to be made by the trial judge. Id . at 344-345. The trial court is required to assess the plausibility of the race-neutra l explanation in light of all the evidence with a bearing on it. Miller-El v Dretke , 545 US 231, 251-252; 125 S Ct 2317; 162 L Ed 2d 196 (2005). Here, the trial court necessarily accepted t he prosecutor’s proffered raceneutral reasons for striking th e prospective jurors although it did not clearly articulate its rationale. A fair reading of the record shows that the trial c ourt did not err when it accepted the prosecutor’s race-neutral explanations for each peremptory chal lenge and denied defendant’s Batson challenge.

Defendant has not cited anything in the record that would indi cate that the prosecution’s race-neutral reasons were a pret ext for discrimination, and the re is no basis in the record to question the credibility of the prosecutor’s explanations or th e trial court’s ruling. Defendant argues only that the prosecutor’s removal of Juror Taylor on th e ground that her brother had a carjacking conviction evidenced purposeful discrimination becau se the prosecutor did not challenge Juror Stewart, a nonblack juror, who had a nephew “inand out” of the criminal justice-11- system. Defendant is correct tha t “[i]f a prosecutor’s proffer ed reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination . . . .” Miller-El , 545 US at 241. However, significant differences between Juror Taylor and Juror Stewart render defendant’s argument unconvincing. Juror Stewart stated that he thought he had a ne phew, whom he hardly knew, that could be in and out of the criminal justice system. In contras t, Juror Taylor explained that her brother had been specifically c onvicted of carjacking and gun p ossession, a crime similar to the charge defendant faced, and that she had watched her brother’s case very closely during its pendency. These jurors were not s o similarly situated that the removal of one without the other tended to prove purposeful discrimination. Further, the prosec utor’s decision to retain Juror Stewart may have been strategic. Juror Stewart stated that he had a gun and that his brother had been the victim of a gun crime. Both of these qualities might be considered indicative of a tendency to support the prosecu tion during the t rial on an alle ged gun crime.

In sum, defendant has failed to present evidence to show that the prosecutor’s raceneutral reasons for excusing Afri can American prospective juror s were pretextual. The trial court therefore did not err in denying defendant’s Batson challenges. Accordingly, defendant is not entitled to relie f on this issue.

Affirmed.

/s/ Stephen L. Borrello /s/ Jane E. Markey /s/ Michael J. Riordan