STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    February 18, 2016
               Plaintiff-Appellee,

v                                                                   No. 324019
                                                                    Wayne Circuit Court
MURRAY ARTHUR MULLINS,                                              LC No. 07-009116-FC

               Defendant-Appellant.


Before: GLEICHER, P.J., and JANSEN and SHAPIRO, JJ.

PER CURIAM.

       In Batson v Kentucky, 476 U.S. 79; 106 S. Ct. 1712; 90 L. Ed. 2d 69 (1986), the United
States Supreme Court held that the Equal Protection Clause forbids the use of peremptory
challenges to exclude members of a jury venire because of their race. An objection to the
exercise of a peremptory challenge must be made before the jury is sworn. People v Knight, 473
Mich. 324, 348; 701 NW2d 715 (2005). In this case, defense counsel warned that she might raise
a Batson challenge, but she never carried out the threat. And even had she formally objected, her
complaint would have come too late; counsel’s concern first surfaced only after the jury had
taken its oath. Because defendant waived any Batson claim and has offered no evidence to
suggest that the trial court should have considered the issue on its own, we affirm his convictions
and sentences.

                                                 I

        Defendant stood trial for armed robbery, MCL 750.529, assault with intent to do great
bodily harm, MCL 750.84, and possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. On the first trial day, the court and counsel questioned
approximately two dozen potential jurors. The prosecutor exercised seven peremptory
challenges and defense counsel used six. Defense counsel raised no objection to any of the
prosecutor’s strikes. Each peremptorily excused juror was released from the courtroom
immediately following the challenge. At the conclusion of the voir dire, defense counsel
demurred when asked for additional challenges and the prosecutor expressed satisfaction with
the jury. The trial court announced, “We have a jury,” thanked the remaining members of the
venire, and sent them “back to the first floor.”




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        The court then directed the clerk to swear the jury, and the clerk complied. After the
jury was sworn and had retired to the jury room, the following colloquy occurred:

              [Defense Counsel]: Your Honor, I do have an issue before the jury comes
       back out.

                The Court: Okay.

                [Defense Counsel]: Real brief.

                The Court: Okay. Yes, what is it?

                [Defense Counsel]: Your Honor, in picking the jury it struck me that all
       the black jurors were being systematically eliminated, so I just wanted the -- that
       it’s for a possible [Batson] challenge that could be had at a later date.

                The Court: Okay.

                [Defense Counsel]: Thank you.

              [Prosecutor]: Your Honor, the Court would like a response from the
       People on that?

                The Court: Go ahead, I’m not making a ruling.

                [Defense Counsel]: No.

                The Court: She’s preserving the. [sic]

              [Prosecutor]: I want to state for the record that there’s no systematic
       elimination of those jurors. Those jurors were removed for reasons such as
       having a criminal record, having --

                The Court: That was a misdemeanor, though.

              [Prosecutor]: Well, I couldn’t ascertain what it was exactly, just he was
       involved in the court --

                The Court: I don’t have any felonies coming out of Rochester, but go
       ahead.

              [Prosecutor]: Additionally, there was a young student had [sic] tickets
       with the Detroit Police Department. There was also --

                The Court: A record producer.

              [Prosecutor]: Hip hop music, had been a shooting victim himself when he
       was 18. Those were the reasons that those individuals were struck. Now there
       was plenty of other people that I struck as well for the same reasons. There was

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       juror number two. Mr. Roberts was struck for use of marijuana when he was
       younger, run-ins with the police department and there was a variety of other
       people that were struck. Ms. Mandujano, her son was accused of murder three
       years ago. She was struck by me and the People [sic] were removed from the jury
       using my peremptory challenges for issues in their background, not because of
       any race in any way.

Neither defense counsel nor the court made any further comment regarding the challenged jurors.

       The jury convicted defendant as charged. On appeal, his counsel raises a single
argument: that the trial court abused its discretion by “refusing” to rule on defense counsel’s
Batson claim.

                                                II

        “The requirement that any Batson claim be raised . . . in the period between the selection
of the jurors and the administration of their oaths[] is a sensible rule.” Ford v Georgia, 498 U.S.
411, 422; 111 S. Ct. 850; 112 L. Ed. 2d 935 (1991). It is also the rule in Michigan. Knight, 473
Mich. at 348. A timely objection permits the trial court to determine whether the challenger has
established a prima facie case of discrimination, to evaluate the proffered reasons for the strikes
and the jurors’ demeanor, and to assess the credibility of purportedly race-neutral reasons for
excusing a juror. It also allows for the creation of a record that an appellate court can
meaningfully review.

        Here, defense counsel never actually made even a tardy Batson objection. Rather,
counsel informed the court that “all the black jurors were being systematically eliminated” as a
prelude to “a possible [Batson] challenge that could be had at a later date.” Counsel evidently
decided against making such a challenge. Thus, the trial court had no reason to render a Batson
ruling, and wisely refrained from doing so despite the prosecutor’s utterly unnecessary offer of
race-neutral reasons for the strikes.

        Accordingly we must reject defendant’s argument that the trial court improperly
“refused” to rule. No motion was made. No Batson objection was articulated. Absent any
actual protest about the jury composition in the trial court, the factual predicate for defendant’s
appellate argument evaporates. The record suggests that defense counsel intentionally
relinquished her right to bring even a belated Batson motion, extinguishing any error. People v
Kowalski, 489 Mich. 488, 503; 803 NW2d 200 (2011).

         Were we to liberally construe defense counsel’s mulling as a motion, we would review
the trial court’s non-ruling for plain error. But the record includes no evidence that would assist
us in this regard, as it is devoid of information relevant to determining whether racial
discrimination occurred. And although “a trial court may sua sponte raise a Batson issue,”




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 People v Bell, 473 Mich. 275, 287; 702 NW2d 128, amended 474 Mich. 1201; 704 NW2d 69
(2005), defendant has offered us no reason to think that it should have done so here.

      We affirm.



                                                    /s/ Elizabeth L. Gleicher
                                                    /s/ Kathleen Jansen
                                                    /s/ Douglas B. Shapiro




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