Description: Detroit, Michigan criminal defense lawyer represented Defendant charged with kidnapping, felonious assault, assault with intent to do great bodily harm and three counts of first-degree sexual assault.
Robert Yarbrough, Jr., was convicted following a jury trial in the Wayne Circuit Court of kidnapping, MCL 750.349; assault with intent to do great bodily harm, MCL 750.89; felonious assault, MCL 750.82; and three counts of first-degree criminal sexual conduct, MCL 750.520b. During voir dire, the trial court, Dalton A. Roberson, J., informed counsel for both parties that neither party would be allowed to exercise peremptory challenges to excuse any prospective jurors other than newly seated prospective jurors who had replaced those prospective jurors who had been previously dismissed; that is, the parties were not permitted to peremptorily challenge any seated juror on whom the party had already passed. Defense counsel objected to the court's policy and requested a new venire, but the court overruled counsel's objection and a jury was empaneled. Defendant appealed his convictions in the Court of Appeals (Murray, C.J., and Ronayne Krause and Tukel, JJ.), which affirmed in an unpublished per curiam opinion. Defendant sought leave to appeal in the Michigan Supreme Court, which initially held defendant's application for leave to appeal in abeyance pending its decision in People v Kabongo, 507 Mich. 78 (2021). Following its decision in Kabongo, the Court granted defendant's application. 508 Mich. 985
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MCL 768.12 and MCL 768.13 mandate that a defendant be permitted to peremptorily challenge prospective jurors, and MCR 2.511 governs the exercise of peremptory challenges. In this case, the trial court's decision to restrict the parties' peremptory challenges to newly seated prospective jurors ran afoul of the statutes and MCR 2.511. Ordinarily, in cases of preserved, nonconstitutional error, reversal is warranted only if, after an examination of the entire cause, it affirmatively appears that it is more probable than not that the error was outcome-determinative. However, because the right to exercise peremptory challenges would be virtually eliminated by the application of that standard, automatic reversal is the appropriate remedy for the erroneous denial of a defendant's peremptory challenge when the error was preserved and no curative action was take.
Outcome: Reversed and remanded
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