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159346 - People v Jacques Jean Kabongo

The People of the State of Michigan,

 

Deborah Blair

 

Plaintiff-Appellee,

 

v

(Appeal from Ct of Appeals)

 

 

(Wayne – Heise, C.)

 

Jacques Jean Kabongo,

 

Sheldon Halpern

 

Defendant-Appellant.

 

Summary

The defendant was charged with carrying a concealed weapon (CCW) and was tried before a Wayne County jury.  During jury selection, the trial court overruled the defendant’s objection to the prosecution’s use of three peremptory challenges to remove African-American jurors from the jury panel.  The trial court also precluded, as racially motivated, the defense attempt to remove a Caucasian juror.  The jury convicted the defendant of CCW, and the trial court sentenced him to one year of nonreporting probation and 50 hours of community service.  The Court of Appeals affirmed in an unpublished per curiam opinion.  The Supreme Court has granted leave to appeal to address:  (1) whether the prosecution’s exercise of a peremptory challenge against prospective juror no. 2 violated Batson v Kentucky, 476 US 79 (1986); (2) whether the trial court erroneously precluded the defendant from exercising a peremptory challenge against prospective juror no. 5; (3) if so, whether such an error should be subject to automatic reversal or harmless error review, Rivera v Illinois, 556 US 148, 162 (2009) (holding that a trial court’s erroneous denial of a defendant’s peremptory challenge, standing alone, is not a structural error under the federal constitution requiring automatic reversal, but that “[s]tates are free to decide, as a matter of state law, that a trial court’s mistaken denial of a peremptory challenge is reversible error per se”) and compare, e.g., People v Bell, 473 Mich 275, 292-295 (2005) (stating in arguable dictum that harmless error review applies to such errors) with Hardison v State, 94 So 3d 1092, 1101 & n 37 (Miss, 2012) (plurality opinion) (citing “[a]t least five states” that have adopted an automatic reversal rule as a matter of state law and following those states); and (4) if so, whether reversal is warranted in this case.​