People v. Bell 259 Mich. App. 583

on reconsideration

Before: Wilder, P.J., and Fitzgerald and Zahra, JJ.

Fitzgerald, J.

Following a jury trial, defendant was convicted on two counts of first-degree felony murder, MCL 750.316; two counts of armed robbery, MCL 750.529; and one count of conspiracy to commit armed robbery, MCL 750.529 and MCL 750.157a, arising from the July 29, 1999, robbery and shooting deaths of Chanel Roberts and Amanda Hodges. Defendant was sentenced to concurrent terms of mandatory life imprisonment without parole for each of the felony-murder convictions and life imprisonment for the convictions of armed robbery and conspiracy to commit armed robbery. Defendant appeals as of right.

The most contested issue presented on appeal is whether the trial court’s erroneous denial of defendant’s statutory right to peremptorily remove two prospective jurors from the jury pool was error per se, not subject to harmless error analysis. We conclude the above described error is error per se that is not subject to harmless error analysis. We reverse and remand for a new trial.

*586I. FACTS AND PROCEDURE

During jury selection, defendant’s trial counsel attempted to exercise a peremptory challenge to strike potential juror number 10, who was Caucasian, Juror 10 stated during voir dire that three of his friends were high-ranking police officers, but that he “wouldn’t think” that this fact would make a difference to him in reaching a verdict of not guilty. When defense counsel attempted to peremptorily excuse this juror, the trial court concluded that defendant’s peremptory challenge was based on race and disallowed the challenge.1

Later, during voir dire conducted by the trial court, defense counsel sought to strike juror number 5, another Caucasian juror, despite juror 5’s statement that he promised to be fair to both sides. This prompted the prosecutor to object, claiming that defendant was attempting to strike juror 5 on the basis of his race, contrary to Kentucky v Batson, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986). The trial court “disallow[ed] the challenge, for the same reasons as asserted before.” Consequently, juror 5 and juror 10 sat on the jury that convicted defendant, notwithstanding defense counsel’s attempts to remove these jurors peremptorily. Defendant was convicted on two counts of first-degree felony murder, two counts of armed robbery, and one count of conspiracy to commit armed robbery.2

*587n. ANALYSIS

Defendant argues that the trial court committed error requiring reversal by sua sponte raising Batson to question defendant’s motives for exercising his peremptory challenge to juror 10. Defendant also argues the trial court committed error requiring reversal when it denied defendant his statutory right to peremptorily remove juror 5 and juror 10. Each of these issues is addressed separately.

A. A TRIAL COURT CAN SUA SPONTE IMPLEMENT THE BATSON PROCESS

Although Batson does not explicitly address whether a trial court may sua sponte question whether a litigant is removing jurors for an improper purpose, it is clear from the reasoning of Batson and its progeny that the United States Supreme Court recognizes a trial court’s authority to unilaterally raise such an issue to ensure the integrity of the judicial process. Specifically, Batson, supra at 87-88, recognized that the Equal Protection Clause protects not only the rights of the criminally accused, but also the rights of individual jurors not to be excluded from the jury pool on account of their race, and the right of society as a whole to rely upon the integrity of the judicial system. In subsequent decisions, the Supreme Court has forcefully reiterated these points. See Edmonson v Leesville Concrete Co, Inc, 500 US 614, 624; 111 S Ct 2077; 114 L Ed 2d 660 (1991), on remand 943 F2d 551 (CA 5, 1991) (“By enforcing a discriminatory peremptory challenge, the court has not only made itself a party to the biased act, but has elected to place its power, property and prestige behind the *588alleged discrimination.” [internal quotation marks and brackets omitted]); Georgia v McCollum, 505 US 42, 49-50; 112 S Ct 2348; 120 L Ed 2d 33 (1992), on remand 262 Ga 554; 422 SE2d 866 (1992) (“Be it at the hands of the State or the defense, if a court allows jurors to be excluded because of group bias, it is a willing participant in a scheme that could only undermine the very foundation of our system of justice— our citizens’ confidence in it.” [internal quotation marks and brackets omitted].).

Virtually all state courts addressing whether a trial court may sua sponte raise a Batson issue have concluded that, subject to the Equal Protection Clause, it is within the discretion of the trial court to conduct a Batson hearing, even absent an objection. See State v Evans, 100 Wash App 757, 767; 998 P2d 373 (2000) (a trial judge has the discretion to raise a Batson issue sua sponte to protect the rights secured by the Equal Protection Clause); Commonwealth v Carson, 559 Pa 460, 477; 741 A2d 686 (1999) (to allow the trial court to sua sponte raise the issue of a discriminatory peremptory challenge would be consistent with Batson, because “dictum appearing in Batson and its progeny suggests the existence of an affirmative trial court duty to prevent the discriminatory use of peremptory challenges”);3 Brogden v State, 102 Md App 423, 649 A2d 1196 (1994) (a trial court may exercise its discretion in raising Batson sua sponte, since “[a] trial judge need not sit idly by when he or she observes *589what he [or she] perceives to be racial discrimination in the exercise of peremptory challenges”); Lemley v State, 599 So 2d 64, 69 (Ala Crim App, 1992) (the trial judge, as the presiding officer of the court, was authorized to conduct a Batson hearing absent an objection to ensure that discrimination did not mar the proceedings in his courtroom). The weight of authority and the persuasiveness of the reasoning clearly support the position that a trial court may sua sponte raise a Batson issue.

Defendant argues that Clarke v Kmart Corp, 220 Mich App 381, 382-384; 559 NW2d 377 (1996), holds that it is error for a trial court to raise a Batson issue “on its own initiative.” A review of the Court’s analysis, however, does not support defendant’s contention. Clarke merely references that the trial court raised the issue on its own initiative. Clarke does not definitively hold that the trial court’s raising of the issue sua sponte was improper. Rather, Clarke is premised upon the conclusion that the plaintiff did not establish a prima facie showing of discrimination.

B. THE TRIAL COURT COMMITTED ERROR REQUIRING REVERSAL WHEN IT DENIED DEFENDANT HIS STATUTORY RIGHT TO PEREMPTORILY REMOVE JURORS

Defendant also argues that the court committed error requiring reversal by denying him his right to peremptorily remove juror 5 and juror 10. Defendant acknowledges that the right to remove jurors peremptorily is restricted by Batson. However, defendant maintains that the trial court failed to follow the three-step process mandated by Batson.

In Batson, supra at 89, 96-98, the Supreme Court made clear that a prosecutor may not exercise per*590emptory challenges to strike jurors solely on the basis of their race and set forth a three-step process for determining whether there has been an improper exercise of peremptory challenges in criminal or civil proceedings.4 The United States Supreme Court has reaffirmed Batson’s three-step process for determining whether there has been an improper exercise of peremptory challenges in criminal or civil proceedings. See, e.g., Miller-El v Cockrell, 537 US 322; 123 S Ct 1029; 154 L Ed 2d 931 (2003), on remand 330 F3d 690 (CA 5, 2003); McCollum, supra. Under Batson, supra at 96-98, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination (step three). Id.; Hernandez v New York, 500 US 352, 358-359; 111 S Ct 1859; 114 L Ed 2d 395 (1991).

Defendant maintains that the first step of Batson was not satisfied because there was not a prima facie showing of discrimination based on race. We agree. To establish a prima facie case of discrimination based on race, the opponent of the challenge must (1) show that members of a cognizable racial group are *591being peremptorily removed from the jury pool and (2) articulate facts to establish an inference that the right to remove jurors peremptorily is being used to exclude one or more potential jurors from the jury on the basis of race. Batson, supra at 96. It is not apparent from the trial record in this case whether there was a pattern of discrimination evinced by defense counsel’s exercise of peremptory challenges that would give rise to an inference that prospective Caucasian jurors were being excluded on account of race. The trial court record simply does not reveal the racial identities of the prospective jurors.5 Thus, we are unable to determine whether a prima facie case of discrimination was established.

Even assuming that a prima facie case of discrimination was established, the trial court also failed to comply with steps two and three of the Batson process. The court did not give defense counsel an opportunity to state race-neutral reasons for his peremptory challenge before disallowing the peremptory challenge.6 Rather, the court collapsed all three steps into one, ruling without a hearing that the juror had to be seated because “racism is being used in jury selection.” This was error. See Purkett v Elem, 514 US 765, 768; 115 S Ct 1769; 131 L Ed 2d 834 (1995), on remand 64 F3d 1195 (CA 8, 1995) (deciding that the *592court erred by combining Batson’s second and third steps into one step). The trial court further erred by placing the burden of persuasion on defendant, the proponent of the strike. While “the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation,” United States v McFerron, 163 F3d 952, 954 (CA 6, 1998), the burden of persuasion never shifts to the party exercising the challenge. Id. at 955. Accordingly, we conclude that the trial court erred when it disallowed defendant’s peremptory challenge of juror 10 without proper implementation of the three-step Batson process.

The trial court also failed to follow the Batson process when denying defense counsel’s peremptory challenge to juror 5. The prosecutor objected to defendant’s proposed strike of juror 5. The trial court denied the challenge “for the same reasons as asserted before.” The trial court failed to inquire whether there was a prima facie showing of discrimination and whether defense counsel had a race-neutral explanation for striking this prospective juror.7 In short, the trial court simply failed to apply Batson as mandated by the United States Supreme Court. Because the trial court failed to follow the Batson process, it also erred in disallowing defendant’s peremptory challenge to juror 5.

*593Having concluded that the trial court erred in failing to adhere strictly to the three-step Batson process, we must next consider whether this error supports reversal of defendant’s convictions. Preliminarily we note that there are two types of errors affecting the statutory right to remove jurors peremptorily. One type of error may be referred to as a dilution of the peremptory challenge right. This type of error typically occurs when the trial court erroneously modifies the jury selection process such that a litigant is denied the full array of peremptory challenges afforded by statute or court rule. The other type of error may be referred to as a denial of the right to remove a particular juror peremptorily. Under this scenario, the aggrieved litigant is afforded the full array of peremptory challenges provided by law. However, the litigant attempting to exercise a peremptory challenge is not permitted to remove the challenged juror. Thus, the challenged juror will sit in judgment of the challenging litigant’s claims.8 This case involves the wrongful denial of the right to remove a particular juror peremptorily.9

*594In People v Miller, 411 Mich 321; 307 NW2d 335 (1981), our Supreme Court addressed a challenge to the “struck jury method” of jury selection. Under this method of jury selection, the court would sit as many as eighty prospective jurors in the jury pool and require the litigants to review the entire jury pool for cause and for peremptory challenges. Id. at 323. Thereafter, the jury is selected in order of seating. Id. In Miller, supra at 324-325, this Court observed that this method of jury selection was inconsistent with the requirements of the then existing court rule on jury selection and amounted to a dilution of the right to exercise peremptory challenges. Nonetheless, this Court affirmed defendant’s conviction in light of the overwhelming evidence of defendant’s guilt. Id. The Supreme Court reversed this Court and granted the defendant a new trial. Id. at 326. The Supreme Court acknowledged that there was nothing in the trial court record that would support the conclusion the defendant was prejudiced by the jury selection method under review. Id. Nonetheless, the Supreme Court rejected the harmless error approach embraced by this Court, concluding: “given the fundamental nature of the right to trial by an impartial jury, and the inherent difficulty of evaluating such claims, a requirement that a defendant demonstrate prejudice would impose an often impossible burden.” Id.

*595More than twenty-five years later, in People v Schmitz, 231 Mich App 521, 531-532; 586 NW2d 766 (1998), this Court addressed whether the erroneous denial of the right to remove a juror peremptorily amounted to error per se, not subject to harmless error analysis.10 Relying on Miller, this Court reluctantly set aside the defendant’s conviction. Schmitz, supra at 531-532. The Schmitz panel concluded that, pursuant to Miller, the wrongful denial of the right to remove a particular juror peremptorily amounts to error per se, not subject to harmless error analysis. Schmitz, supra at 531-532.

While this Court has subsequently questioned the Miller Court’s conclusion that the dilution of the right of peremptory challenge is error per se, see People v Green (On Remand), 241 Mich App 40, 46; 613 NW2d 744 (2000) (Griffin J., noting that in the years following Miller our Supreme Court has “distanced itself from the principle of error per se and embraced the notion that ‘rules of automatic reversal are disfavored.’ ” [citation omitted].), we are unaware of any Michigan Supreme Court case that has overruled or otherwise expressly modified the conclusion in Miller.11 In fact, as observed by Judge Griffin in Green, supra at 46, Miller “still remains viable [law.]”

*596Moreover, the United States Supreme Court long ago observed that “[t]he denial or impairment of the right [of peremptory challenge] is reversible error without a showing of prejudice.” Swain v Alabama, 380 US 202, 219; 85 S Ct 824; 13 L Ed 2d 759 (1965), overruled on other grounds by Batson, 476 US at 92-93.12 Additionally, the great weight of federal authority addressing this issue suggests that errors relating to the right to remove jurors peremptorily are not subject to harmless error analysis. See, e.g., United States v Gibbs, 182 F3d 408, 435 (CA 6, 1999) (denial of right to peremptoiy challenge “amounts to reversible error, there is no requirement of a showing of prejudice” [citation omitted]); United States v Hall, 152 F3d 381, 408 (CA 5, 1998), abrogated on other grounds by United States v Martinez-Salazar, 528 US 304; 120 S Ct 774; 145 L Ed 2d 792 (2000)13 (noting circuits that hold that harmless error does not apply to denial or impairment of right to exercise peremptoiy challenges); Tankleff v Senkowski, 135 F3d 235, 248 (CA 2, 1998) (holding that harmless error analysis is *597inappropriate for Batson errors); United States v Annigoni, 96 F3d 1132, 1141 (CA 9, 1996) (declining to adopt a harmless error standard for the erroneous deprivation of the right to peremptory challenge); Ford v Norris, 67 F3d 162, 170 (CA 8, 1995) (holding that Batson error is not amenable to harmless error review); cf. Kirk v Raymark Industries, Inc, 61 F3d 147, 159 (CA 3, 1995) (holding that remedy for impairment or denial of right to peremptory challenges is reversal).

We therefore conclude that the trial court’s wrongful disallowance of the exercise of peremptory challenges to remove juror 5 and juror 10 was error requiring reversal, even in the absence of a showing of prejudice. Defendant’s convictions are vacated.14

Reversed and remanded for a new trial. We do not retain jurisdiction.

Wilder, P.J., and Zahra, J., concurred.

Zahra, J.

('concurring). I concur in the reversal of defendant’s convictions because we are required to do so pursuant to People v Miller, 411 Mich 321, 326; 307 NW2d 335 (1981), and People v Schmitz, 231 Mich App 521, 531-532; 586 NW2d 766 (1998).1 1 write separately because I have serious concerns regarding the continued viability of Miller, supra. Since Miller was decided in 1981, our Supreme Court has set forth very *598specific criteria that must be established before error may be deemed reversible per se. People v Cornell, 466 Mich 335, 363; 646 NW2d 127 (2002); People v Lukity, 460 Mich 484; 596 NW2d 607 (1999); People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999). When error occurs in the trial court, a reviewing court must determine whether the error was constitutional or nonconstitutional. Cornell, supra at 363. If the error is constitutional, the reviewing court must determine whether the error is structural or nonstructural. Id. If the error is nonconstitutional or, if constitutional, it is nonstructural, then the error is subject to harmless error analysis. Carines, supra at 774. Applying the above-described error review process, I conclude that the error in this case is nonconstitutional and, therefore, must be subjected to harmless error analysis. I therefore urge the Supreme Court to address whether Miller should be expressly overruled and whether the wrongful denial of the right to remove a particular juror peremptorily amounts to structural error that is not subject to harmless error analysis.2

*599I. DEFENDANT WAS NOT DENIED A CONSTITUTIONAL RIGHT

The United States Supreme Court has repeatedly held that the right to a peremptory challenge may be withheld altogether without impairing the constitutional guarantee of an impartial jury and a fair trial. See Frazier v United States, 335 US 497, 505 n 11; 69 S Ct 201; 93 L Ed 187 (1948); United States v Wood, 299 US 123, 145; 57 S Ct 177; 81 L Ed 78 (1936); Stilson v United States, 250 US 583, 586; 40 S Ct 28; 63 L Ed 1154 (1919); see also Swain v Alabama, 380 US 202, 219; 85 S Ct 824; 13 L Ed 2d 759 (1965). The United States Supreme Court further held in Ross v Oklahoma, 487 US 81, 88; 108 S Ct 2273; 101 L Ed 2d 80 (1988), that the loss of a peremptory challenge does not constitute “a violation of the constitutional right to an impartial jury,” because peremptory challenges are only “a means to achieve the end of an impartial jury.”

Defendant was not denied his Sixth Amendment right to an impartial jury; an impartial jury is guaranteed through the removal of jurors for cause. So long as the trial court conducts an extensive and thorough voir dire and provides trial counsel a full and fair opportunity to explore and disclose whether any member of the proposed jury panel harbors bias that would disqualify that person from sitting on the jury, a defendant’s Sixth Amendment right to a fair and impartial jury is protected. Where the impartiality of a juror is not established, the juror must be removed. Here, however, defendant did not challenge for cause either of the jurors in question. Thus, there is nothing in the trial court record that supports the conclusion *600that defendant’s Sixth Amendment right to a fair and impartial jury was denied.

Likewise, defendant was not denied due process of law as guaranteed under the Fifth Amendment and the Fourteenth Amendment. Due process is afforded when a litigant receives that which state law provides. Ross, supra at 89. State law provides for the free exercise of peremptory challenges. However, the statutory right to remove jurors peremptorily is subject to the equal protection concerns defined in Kentucky v Batson, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986), and its progeny.3 Significantly, state law also provides a standard for reviewing procedural errors in criminal cases. The Michigan Legislature, which granted defendant the right to peremptory challenges, has also stated that a criminal conviction ought not be set aside for a procedural error except where, “after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.” MCL *601769.26.4 The statutory provision granting peremptory challenges must be read in context with the statutory directive on procedural error in a criminal case. It is apparent that, to the extent that the statutory right to peremptory challenges is impaired, state law guarantees that a criminal conviction will only be set aside where the error results in a miscarriage of justice.5 Thus, because state law dictates that a harmless error analysis must apply to procedural errors, such as errors involving peremptory challenges, the erroneous denial of the statutory right to remove a particular juror peremptorily, without more, cannot be a violation of the constitutional guarantee of due process of law.6

n. nonconstitutional error is subject to HARMLESS ERROR ANALYSIS

The error in this case is, in my opinion, nonconstitutional error that is subject to harmless error analy*602sis.7 My conclusion is not altered by the United States Supreme Court’s archaic dicta in Swain v Alabama, 380 US 202, 219; 85 S Ct 824; 13 L Ed 2d 759 (1965), overruled in part by Batson, supra, that the denial or impairment of the statutory right to peremptorily strike jurors constitutes error not subject to harmless error analysis. Significantly, the United State Supreme Court has recently retreated from Swain. In United States v Martinez-Salazar, 528 US 304, 317 n 4; 120 S Ct 774; 145 L Ed 2d 792 (2000), on remand 278 F3d 1357 (CA 9, 2002), the Supreme Court noted that “the oft-quoted language in Swain was not only unnecessary to the decision in that case . . . but was founded on a series of our earlier cases decided long before the adoption of harmless-error review.”8

The Supreme Court’s observations in Martinez-Salazar caused the United States Court of Appeals for the Seventh Circuit to reject the automatic reversal rule involving claims of error arising from the dilution of the right to peremptorily challenge jurors. United States v Patterson, 215 F3d 776, 781 (CA 7, 2000), vacated in part on other grounds 531 US 1033; 121 S Ct 621; 148 L Ed 2d 531 (2000), on remand 241 F3d 912 (CA 7, 2001) (stating “Martinez-Salazar . . . pulls the plug on the Swain dictum and requires us to address the harmless-error question as an original *603matter”). Unrestrained by the dicta of Swain, the United States Court of Appeals for the Seventh Circuit rejected the traditional view that errors concerning peremptory challenges always affect a substantial right, and instead applied a harmless error analysis:

A right is “substantial” when it is one of the pillars of a fair trial. Trial before an orangutan, or the grant of summary judgment against the accused in a criminal case, would deprive the defendant of a “substantial” right even if it were certain that a jury would convict. For the same reason, a biased tribunal always deprives the accused of a substantial right. Deprivation of counsel likewise so undermines the ability to distinguish the guilty from the innocent that it always leads to reversal. But “if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.” Rose v Clark, 478 US 570, 579; 92 L Ed 2d 460; 106 S Ct 3101 (1986). It is impossible to group an error concerning peremptory challenges with the denial of counsel or trial before a bribed judge. When the jury that actually sits is impartial, as this one was, the defendant has enjoyed the substantial right. Peremptory challenges enable the defendants to feel more comfortable with the jury that is to determine their fate, but increasing a litigants’ comfort level is only one goal among many, and reduced peace of mind is a bad reason to retry complex cases decided by impartial juries. [Patterson, supra at 781-782 (citations omitted; emphasis in original).][9]

*604Before Martinez-Salazar, the District of Columbia Court of Appeals initially followed the Swain dicta and assumed that a defendant’s right to peremptory challenge was so fundamental that any infringement of that right resulted in reversal as a matter of law without the need to show actual bias. E.g., Wells v United States, 515 A2d 1108, 1111 (DC App, 1986), overruled by Lyons v United States, 683 A2d 1066 (DC App, 1996) (en banc). But in Lyons v United States, 683 A2d 1066 (DC App, 1996) (en banc), the court reconsidered this issue after the Supreme Court’s decision in Arizona v Fulminante, 499 US 279, 310; 111 S Ct 1246; 113 L Ed 2d 302 (1991), which distinguished trial errors from structural errors and concluded that only structural errors may never be deemed harmless. In Lyons, supra at 1071, the District of Columbia Court of Appeals rejected the automatic reversal rule and instead adopted a harmless error standard of review for errors alleging a dilution of the right to peremptorily challenge jurors. In concluding that a harmless error analysis applies, the court reasoned:

Critical to the [Supreme] Court’s distinction between these two types of errors is that the category of “structural defect” discussed in Fulminante is limited to fundamental constitutional errors. The Court repeatedly referred to those defects it deemed “structural” as “constitutional *605errors,” “constitutional deprivations,” or “constitutional violations.” Subsequent decisions have made clear that Fulminante’s discussion of “structural defects” applied only to certain constitutional errors that were too fundamental to be harmless. . . .

Since it has been settled for decades that the right of peremptory challenge is not a constitutional right at all, let alone a “basic” or “fundamental” constitutional right, it follows from Fulminante that any error relating to the use of peremptory challenges cannot be regarded as a “structural defect.” [Lyons, supra at 1071 (citations omitted).]

In sum, recent directives from the United States Supreme Court support the conclusion that any error infringing upon the statutory right to peremptory challenge is subject to harmless error review.10 Having *606determined that this case presents a preserved non-constitutional error subject to harmless error analysis, reversal is warranted only if defendant establishes under a “more probable than not” standard that a miscarriage of justice occurred. Lukity, supra at 495. Defendant carries the burden of demonstrating that it is “more probable than not that the outcome would have been different without this error.” Lukity, supra at 497. However, defendant produces no evidence that the two jurors who were not peremptorily removed from the jury at defendant’s request were in any way biased or precluded him from receiving a fair trial. Defendant never attempted to challenge these jurors for cause, which he could have done had he thought that these jurors exhibited bias or a state of mind that would prevent the jurors from rendering a just verdict. MCR 2.511(D). Defendant has made no claim that the jury that sat was biased in any way, or that answers given in voir dire by these two jurors prohibited him from having a fair trial or impartial jury. Rather, the crux of defendant’s argument is that he was denied peace of mind that the jurors selected would not only be impartial, but also favorably disposed to his defense. However, as observed by the Seventh Circuit Court of Appeals, “reduced peace of mind is a bad reason to retry complex cases decided by impartial juries.” Patterson, supra at 782. Consequently, because there is no evidence to establish that the denial of defendant’s right to remove the jurors in question affected the verdict, I would conclude that the trial court’s erroneous denial of defendant’s right to peremptorily remove the jurors in question was harmless as a matter of law. However, I am duty-bound to follow the Michigan Supreme Court opinion *607in Miller and this Court’s opinion in Schmitz, which reluctantly relied on Miller. I urge the Supreme Court to grant any application for leave filed in this case, and address this very significant question of law.

Wilder, J., concurred.