People v. Miller

We granted leave to appeal to consider whether defendant is entitled to a new trial on the basis that a convicted felon served as a juror in his original trial. The trial court held that defendant is not entitled to a new trial because he failed to establish actual prejudice. The Court of Appeals, on the other hand, held that defendant is entitled to a new trial because the presence of the convicted felon on his jury did prejudice him. We do not believe that the trial court abused its discretion in denying defendant’s motion for a new trial under these circumstances because the trial court did not clearly err in concluding that defendant failed to establish that he was actually prejudiced. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the Court of Appeals for it to address defendant’s remaining issues.

I. FACTS AND PROCEDURAL HISTORY

Following a jury trial, defendant was convicted of first-degree criminal sexual conduct for forcing his then-girlfriend’s seven-year-old daughter to perform fellatio on him. Before sentencing, defendant learned that one of the jurors had concealed the fact that he had been convicted of assault with intent to commit criminal sexual conduct in 1991 and 1999 for having assaulted his sister and another person to whom he referred as an “adopted child” who was “more like a niece.” An evidentiary hearing was held. The juror in question stated that he did not reveal his prior convictions on his juror questionnaire because they were old and he did not believe that they were even on his record anymore.1 He further stated that because he had pleaded guilty in both of his criminal cases, he had *543never before been through a jury selection process. When asked whether he had been intentionally untruthful so that he could sit as a juror, he answered, “no,” and he indicated that he “didn’t really want to sit on the panel in the first place . . . .” The juror further testified that he had tried to be fair during the trial and that he never tried to improperly persuade the jury. Following this testimony, the trial court denied defendant’s motion for a new trial, ruling that there was no evidence that defendant had suffered actual prejudice.2 The trial court explained that if the parties had known about the juror’s past convictions, the prosecutor, not the defendant, would have most likely been the one seeking to excuse this juror. On appeal, the Court of Appeals reversed defendant’s conviction and remanded for a new trial on the basis of juror misconduct.3 *544Unpublished opinion per curiam, issued January 17, 2008 (Docket No. 273488). We granted the prosecutor’s application for leave to appeal and limited the issues to:

(1) whether the Court of Appeals erred in reversing the defendant’s conviction and remanding this case to the circuit court for a new trial pursuant to People v DeHaven, 321 Mich 327 (1948); (2) whether DeHaven was wrongly decided or has been superseded by MCL 600.1354(1); (3) whether a criminal defendant must establish actual prejudice pursuant to MCL 600.1354(1) where the challenged juror was excusable for cause; (4) how the “actual prejudice” standard for purposes of MCL 600.1354(1) should be defined; and (5) whether the juror’s failure to disclose his status as a felon, which disqualified him from serving on the jury, constituted structural error pursuant to Neder v United States, 527 US 1 (1999). [481 Mich 851, 851-852 (2008).]

II. STANDARD OF REVIEW

A trial court’s factual findings are reviewed for clear error. People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). “Clear error exists if the reviewing court is left with a definite and firm conviction that a mistake has been made.” People v Johnson, 466 Mich 491, 497-498; 647 NW2d 480 (2002). A trial court’s decision to deny a motion for a new trial is reviewed for an abuse of discretion. Cress, 468 Mich at 691. An abuse of discretion occurs only “when the trial court chooses an outcome falling outside [the] principled range of outcomes.” People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).

III. ANALYSIS

There are several statutory qualifications that a person must satisfy in order to be eligible to serve as a juror. MCL 600.1307a(l) provides:

To qualify as a juror a person shall:

*545(a) Be a citizen of the United States, 18 years of age or older, and a resident in the county for which the person is selected, and in the case of a district court in districts of the second and third class, be a resident of the district.

(b) Be able to communicate in the English language.

(c) Be physically and mentally able to carry out the functions of a juror. Temporary inability shall not be considered a disqualification.

(d) Not have served as a petit or grand juror in a court of record during the preceding 12 months.

(e) Not have been convicted of a felony. [Emphasis added.]

If a potential juror does not satisfy one of these statutory qualifications, a party may challenge the potential juror for cause. MCR 2.511(D)(1). There are also several other grounds that would justify a challenge for cause. MCR 2.511(D) provides, in pertinent part:

It is grounds for a challenge for cause that the person:

(1) is not qualified to be a juror,

(2) is biased for or against a party or attorney;

(3) shows a state of mind that will prevent the person from rendering a just verdict, or has formed a positive opinion on the facts of the case or on what the outcome should be;

(4) has opinions or conscientious scruples that would improperly influence the person’s verdict;

(5) has been subpoenaed as a witness in the action;

(6) has already sat on a trial of the same issue;

(7) has served as a grand or petit juror in a criminal case based on the same transaction;

(8) is related within the ninth degree (civil law) of consanguinity or affinity to one of the parties or attorneys;

(9) is the guardian, conservator, ward, landlord, tenant, employer, employee, partner, or client of a party or attorney;

*546(10) is or has been a party adverse to the challenging party or attorney in a civil action, or has complained of or has been accused by that party in a criminal prosecution;

(11) has a financial interest other than that of a taxpayer in the outcome of the action;

(12) is interested in a question like the issue to be tried. [Emphasis added.]

MCR 6.412(D)(2) provides that if “the court finds that a ground for challenging a juror for cause is present, the court on its own initiative should, or on motion of either party must, excuse the juror from the panel.” Similarly, MCL 600.1337 states that “[wjhen the court finds that a person in attendance at court as a juror is not qualified to serve as a juror, or is exempt and claims an exemption, the court shall discharge him or her from further attendance and service as a juror.” Finally, MCL 600.1354(1) states, in pertinent part:

Failure to comply with the provisions of this chapter shall not... affect the validity of a jury verdict unless the party ... claiming invalidity has made timely objection and unless the party demonstrates actual prejudice to his cause and unless the noncomplianee is substantial. [Emphasis added.]

In the instant case, because the juror in question was a convicted felon, he was not statutorily qualified to serve as a juror under MCL 600.1307a(l)(e). However, as a result of the juror’s false answers on his juror questionnaire, neither of the parties nor the tried court had any knowledge of the juror’s felony convictions, and, thus, the parties did not challenge the juror pursuant to MCR 2.511(D)(1) and the trial court did not discharge the juror pursuant to MCL 600.1337 and MCR 6.412(D)(2). Accordingly, the issue here is whether defendant is entitled to a new trial as a result of this convicted felon having served on his jury.

*547Although a criminal defendant has a constitutional right to be tried by an impartial jury, US Const, Am VI;4 Const 1963, art 1, § 20,5 a criminal defendant does not have a constitutional right to be tried by a jury free of convicted felons.6 Instead, the right to a jury free of *548convicted felons is granted by statute. And by statute, a violation of this “right” only requires a new trial if the defendant demonstrates that such a violation “actually] prejudice[d]” him. MCL 600.1354(1).7

A juror’s failure to disclose information that the juror should have disclosed is only prejudicial if it denied the defendant an impartial jury.8 “[Defendants] are not *549entitled to a new trial unless the juror’s failure to disclose denied [the defendants] their right to an impartial jury.” McDonough Power Equip, Inc v Greenwood, 464 US 548, 549; 104 S Ct 845; 78 L Ed 2d 663 (1984). “ ‘The misconduct must be such as to reasonably indicate that a fair and impartial trial was not had . . . .’ ” People v Nick, 360 Mich 219, 230; 103 NW2d 435 (1960), quoting 39 Am Jur, New Trial, § 70, p 85.9

In Froede v Holland Ladder & Mfg Co, 207 Mich App 127, 135; 523 NW2d 849 (1994), the Court of Appeals held that actual prejudice was established because the juror at issue had deliberately misrepresented her criminal history on the juror questionnaire and had previously hired an assassin to kill a drug informant who had agreed to testify against the juror’s ex-husband (a notorious drug kingpin). However, the Court of Appeals “caution[ed] that our opinion is not to stand for the proposition that prejudice will always be found when a convicted felon makes a misrepresentation on a juror questionnaire or at voir dire.” Id. The Court of Appeals clearly indicated that its bases for finding actual prejudice were the juror’s deliberate misrepresentation and the nature of the juror’s criminal history, i.e., she hired an assassin to kill a potential witness. Id.10

*550In People v Carey, 110 Mich App 187, 193; 312 NW2d 205 (1981), the Court of Appeals held that the trial court did not err in failing to declare a mistrial when it was discovered shortly after deliberations had begun that one of the jurors was a convicted felon, in part because defendant did not demonstrate that he had been actually prejudiced. In reaching this conclusion, the Court of Appeals relied on the fact that the “juror testified that his convictions would not affect his ability to render an impartial verdict.” Id.11

As we explained earlier, defendants have a constitutional right to an impartial jury. However, as Justice COOLEY, writing for this Court, explained, jurors are “presumed to be. . . impartial, until the contrary is shown.” Holt v People, 13 Mich 224, 228 (1865). The burden is on the defendant to establish that the juror was not impartial or at least that the juror’s impartiality is in reasonable doubt. Id.12

*551In Nick, the defendant argued that he was entitled to a new trial because one of the jurors had failed to disclose the fact that her father was an attorney practicing in the area and defense counsel had made some reference to her father during the trial. This Court held that the defendant was not entitled to a new trial because he had not established that the juror was not impartial. Nick, 360 Mich at 234. As this Court explained:

“[I]t is well established that not every instance of misconduct in a juror will require a new trial. The general principle underlying the cases is that the misconduct must be such as to affect the impartiality of the jury .... A new trial will not be granted for misconduct of the jury if no substantial harm was done thereby to the party seeking a new trial.... The misconduct must be such as to reasonably indicate that a fair and impartial trial was not had ....” [Id. at 230, quoting 39 Am Jur, New Trial, § 70, p 85.][13]

*552In the instant case, defendant’s only complaint about the juror at issue in this case is that he is a convicted felon.14 However, defendant has offered no evidence that the juror was not impartial. In Holt, 13 Mich at 229, the Court concluded that the juror’s own admission that he had formed a partial opinion regarding the defendant’s guilt before the trial even began was not *553sufficient to rebut that juror’s impartiality.15 If even such an admission is not sufficient to rebut the presumption of impartiality, we fail to see how a juror’s mere status as a convicted felon can be considered sufficient to rebut that presumption.

Defendant has not offered any evidence to demonstrate that he was prejudiced by the convicted felon’s presence on his jury.16 That is, defendant has offered no *554evidence to establish that the juror was partial. The juror testified that his status as a felon did not affect his deliberations and that he did not share this information with the other jurors or try to improperly persuade the rest of the jurors in any way.17 There is simply no evidence that this juror improperly affected any other jurors. Furthermore, as the trial court explained, this juror would likely have been more harmful to the prosecutor than to defendant.18 Having been previously convicted of similar offenses, the juror, if anything, likely would have been sympathetic towards defendant.19 For these reasons, we do not believe that the *555trial court clearly erred in ruling that defendant had not demonstrated that he was actually prejudiced by the convicted felon’s presence on his jury.20

*556In addition, the presence of a convicted felon on defendant’s jury did not constitute structural error. A structural error is a “fundamental constitutional error[] that ‘def[ies] analysis by “harmless error” standards.’ ” Neder v United States, 527 US 1, 7; 119 S Ct 1827; 144 L Ed 2d 35 (1999) (emphasis added; citations omitted). Here, there was no constitutional error. As discussed above, there is no constitutional right to have a jury free of convicted felons. Therefore, that a convicted felon sat as a juror on defendant’s jury did not constitute a structural error.

The Court of Appeals in the instant case relied heavily on People v DeHaven, 321 Mich 327; 32 NW2d 468 (1948), People v Daoust, 228 Mich App 1; 577 NW2d 179 (1998), People v Manser, 250 Mich App 21; 645 NW2d 65 (2002), and People v Crear, 242 Mich App 158; 618 NW2d 91 (2000), to conclude that defendant is entitled to a new trial. However, none of those cases involved the question that is at issue here: whether the presence of a convicted felon on a defendant’s jury requires a new trial. Furthermore, none of those cases involved the application of MCL 600.1354(1) because none involved “failure[s] to comply with the provisions of [chapter 13 of the Revised Judicature Act, MCL 600.1300 et seq.],”21 and because DeHaven was decided before MCL 600.1354(1) was even enacted.

In DeHaven, a case in which the defendant was charged with and ultimately convicted of raping his 13-year-old stepdaughter, two related jurors failed to disclose that one of their family members had been convicted of raping his 13-year-old daughter. The trial court found that the jurors had not been dishonest during voir dire, that they had indicated that they could *557fairly and impartially sit as jurors, and that any prejudices the jurors did have would likely have benefitted the defendant anyway. For these reasons, the trial court denied the defendant’s motion for a new trial. This Court reversed.

After indicating that the “right to be tried by an impartial jury is a constitutional guaranty,” DeHaven concluded:

The normal person revolts at the thought of a father or stepfather raping a 13-year-old girl. We are of the opinion that the relationship of these two jurors to one who had committed a similar crime was such that it deprived them of the capacity to act impartially. Defendant has the right to a trial by an impartial jury. We cannot say that he had such a trial. [DeHaven, 321 Mich at 334.]

As discussed earlier, DeHaven is distinguishable from the instant case because the former did not involve a juror who was a convicted felon and it did not involve MCL 600.1354(1).22 In addition, it appears that DeHaven reviewed de novo the question whether the two jurors were biased, rather than for clear error. As discussed above, an appellate court must review a trial court’s factual findings for clear error, Cress, 468 Mich at 691, and the appellate court should only reverse such *558findings if it is “left with a definite and firm conviction that a mistake has been made.” Johnson, 466 Mich at 497-498. In DeHaven, the trial court determined that the jurors were not biased, but, even if they were, such bias would have benefitted the defendant. DeHaven, 321 Mich at 331. DeHaven, however, did not even mention the trial court’s factual findings in its analysis, and clearly reviewed the issue de novo. That is, DeHaven concluded that the jurors were biased and that they were biased against the defendant, without giving any significance to the fact that the trial court, which was obviously in the better position to determine whether the jurors were biased and against which party, had already concluded that the jurors were not biased, but, if they were, they were biased in favor of the defendant.

DeHaven also reviewed de novo, rather than for an abuse of discretion, the issue whether defendant was entitled to a new trial. As discussed earlier, a trial court’s decision to deny a motion for a new trial must be reviewed for an abuse of discretion. Cress, 468 Mich at 691. An abuse of discretion occurs only “when the trial court chooses an outcome falling outside [the] principled range of outcomes.” Babcock, 469 Mich at 269. In DeHaven, the trial court held that the defendant was not entitled to a new trial. However, DeHaven, without giving any significance at all to the trial court’s decision, held that the defendant was entitled to a new trial. That is, DeHaven clearly engaged in de novo review, rather than the abuse of discretion review that it should have.23

*559Moreover, our “harmless error” jurisprudence has evolved significantly since DeHaven was decided in 1948. As explained in People v Bell, 473 Mich 275, 294; 702 NW2d 128 (2005) (opinion by CORRIGAN, J.), “our harmless error jurisprudence has evolved a great deal. . . .” Errors generally no longer require automatic reversal. Id., citing People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999). Instead, a preserved, nonconstitutional error is not a ground for reversal unless the defendant proves that it is “more probable than not that the error was outcome determinative.” People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999). Even a preserved, constitutional error is generally not a ground for reversal if the prosecutor proves that the error was harmless beyond a reasonable doubt. People v Anderson (After Remand), 446 Mich 392, 406; 521 NW2d 538 (1994).24 An unpreserved error is not a ground for reversal unless the defendant can demonstrate that the error was plain, that it affected the outcome, and that it resulted in the conviction of an actually innocent person or “ ‘ “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings” ....’” Carines, 460 Mich at 763-764 (citations omitted).

With regard to the specific issue here, i.e., juror misconduct, this Court has held that “a verdict in a criminal case should not be upset because of alleged misconduct on the part of members of the jury unless ‘substantial harm’ has resulted . . . .” Nick, 360 Mich at 230. “ ‘ “[A litigant] is entitled to a fair trial hut not a perfect one” for there are no perfect trials.’ ” McDon*560ough, 464 US at 553 (citations omitted). “We have ... come a long way from the time when all trial error was presumed prejudicial and reviewing courts were considered ‘ “citadels of technicality.” ’ ” Id. (citations omitted). “The harmless-error rules . .. embody the principle that courts should exercise judgment in preference to the automatic reversal for ‘error’ and ignore errors that do not affect the essential fairness of the trial.” Id. DeHaven, however, made absolutely no mention of any “harmless error” standard.

Finally, the crux of DeHaven's holding was that a defendant has a constitutional right to an impartial jury and, because the jurors at issue in DeHaven lacked the capacity to act impartially, the defendant was entitled to a new trial. DeHaven, 321 Mich at 334. There is no question that a criminal defendant has a constitutional right to be tried by an impartial jury. US Const, Am VI; Const 1963, art 1, § 20. However, the instant question is whether the presence of a convicted felon on defendant’s jury denied defendant his right to an impartial jury. For all the reasons noted earlier, DeHaven is neither binding nor persuasive precedent with regard to this question.25

In Daoust, the defendant was charged with two counts of first-degree child abuse on the basis of injuries that he inflicted on his girlfriend’s daughter. On the morning of the second day of defendant’s trial, during a break in the girlfriend’s testimony, one of the jurors indicated that he may have attended junior high school with the girlfriend. The trial court denied defendant’s request to remove the juror, and the Court of Appeals held that defendant was not entitled to a new trial. The Court of Appeals held that

*561when information potentially affecting a juror’s ability to act impartially is discovered after the jury is sworn, the defendant is entitled to relief only if he can establish (1) that he was actually prejudiced by the presence of the juror in question or (2) that the juror was properly excusable for cause. [Daoust, 228 Mich App at 9 (emphasis added); see also Crear, 242 Mich App at 167, which cited this two-part test with approval.]

To the extent that in Daoust the Court of Appeals broadly states in dicta that a new trial is always required whenever a juror would have been excusable for cause, Daoust is wrong and is overruled.26 As discussed earlier, the proper inquiry is whether the defendant was denied his right to an impartial jury. If he was not, there is no need for a new trial.

IV CONCLUSION

The trial court did not clearly err in finding that defendant failed to establish that he was actually prejudiced by the presence of a convicted felon on his jury, and, thus, the trial court did not abuse its discretion when it denied defendant’s motion for a new trial. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the Court of Appeals for it to address defendant’s remaining issues.