
    PEOPLE v TENNILLE PEOPLE v RUTLEDGE
    Docket Nos. 323059 and 323314.
    Submitted November 9, 2015, at Detroit.
    Decided April 14, 2016, at 9:00 a.m.
    Timothy F. Tennille and Sean D. Rutledge were both convicted following a joint jury trial in the Wayne Circuit Court of first-degree murder, MCL 750.316(a), felony murder, MCL 750.316(b), and possession of a firearm during the commission of a felony, MCL 750.227b, in connection with the shooting death of Charles Whitfield. During voir dire, defense counsel for both defendants objected to the prosecutor’s use of peremptory challenges to strike two African-American prospective jurors, DC and WB, from the jury pool, after the prosecutor had previously excused three other African-American prospective jurors. Defense counsel argued that the challenges violated the rule of Batson v Kentucky, 476 US 79 (1986), which prohibits the exercise of peremptory challenges on the basis of race. The prosecutor asserted that he exercised the challenges on the basis of the prospective jurors’ demeanor and reaction when another prospective juror had stated he would automatically believe a witness because he or she was a police officer. The trial court, Margaret M. Van Houten, J., denied defendants’ challenge, concluding that the prosecutor’s explanation was a valid race-neutral reason for striking the two prospective jurors from the pool. Defendants appealed, and the Court of Appeals consolidated the appeals.
    The Court of Appeals held:
    
    1. Under Batson, a three-step process is used to determine whether a peremptory challenge has been unconstitutionally exercised solely on the basis of race. Under the first Batson step, the defendant must make a prima facie showing of discrimination by showing that he or she is a member of a particular racial group, the prosecutor used a peremptory challenge to exclude from the jury a member of that racial group, and the circumstances raised an inference that the challenge was race based. In this case, defendants established a prima facie case of discrimination because defendants and the two challenged prospective jurors were African-American, as were the three other African-American prospective jurors who had earlier been excused by the prosecutor through his use of peremptory challenges.
    2. Under the second Batson step, the prosecutor must articulate a clear and reasonably specific explanation of his or her legitimate reasons for exercising the peremptory challenge. The stated reason does not have to be persuasive or plausible; if the articulated reason is not inherently discriminatory, it is sufficient for purposes of the step-two inquiry. In this case, the trial court did not err by concluding that the prosecutor’s stated reason for dismissing DC and WB—their nonverbal response to another prospective juror’s bias in favor of believing police officer testimony—was race neutral.
    3. Under the third Batson step, the trial court must determine whether the challenger of the strike ¡established purposeful discrimination even though the articulated reason was race neutral. The challenger must be allowed an opportunity to argue that the race-neutral reason given by the prosecutor was purposefully discriminatory. The issue is one of credibility for the trial court, and to make that factual determination, the court must review the prosecutor’s demeanor when defending his or her peremptory challenge, how reasonable or how improbable his or her stated reasons were, and whether the proffered rationale had some basis in accepted trial strategy; in other words, the trial court must assess the plausibility of the race-neutral explanation in light of all relevant direct and circumstantial evidence of intent to discriminate. Atrial court must closely scrutinize a peremptory challenge that is based solely on a juror’s demeanor or nonverbal conduct because there is a high risk that it is a pretext for racial discrimination. The trial court must indicate on the record whether it observed the alleged expressions, and even if it did not, it must still find facts that either support or refute that the challenge was racially motivated.
    4. The trial court failed to follow the third Batson step when it denied defendant’s challenge. First, it erred by failing to allow defense counsel an opportunity to argue that the prosecutor’s stated race-neutral explanation lacked credibility in light of all surrounding circumstances. The trial court also erred by failing to make factual findings related to whether the peremptory challenges were purposefully discriminatory before accepting the prosecutor’s race-neutral explanation and denying defendants’ Batson challenge. Specifically, the trial court failed to make factual findings regarding the prosecutor’s credibility when asserting his race-neutral explanation for the peremptory challenges; the trial court made no findings about whether the prosecutor’s explanation was reasonable, probable, and had some basis in accepted trial strategy as required by Batson. The prosecutor’s stated reason was also implausible—regardless of DC and WB’s strong disapproval of the other prospective juror’s answers— because that response was warranted as evidenced by the trial court’s decision to remove that prospective juror for cause. Further, the record does not permit a conclusion that the prosecutor’s stated reason for the strikes was not race based because the behaviors relied on by the prosecutor did not call into question the jurors’ abilities to be fair and impartial in light of the fact that the answers they provided during questioning revealed no bias. The trial court was directed on remand to allow defense counsel an opportunity to argue that the prosecutor’s race-neutral explanation was not credible and to find facts in accordance with step three of the Batson inquiry.
    Remanded.
    O’Connell, J., concurring, agreed with the majority that remand for a hearing was necessary because the trial court failed to complete the three-step Batson analysis by making factual findings regarding the prosecutor’s credibility in relation to his asserted race-neutral reasons for the challenges. However, he disagreed with the majority’s implied assertion that a prospective juror’s nonverbal responses cannot provide sufficient reason to peremptorily excuse that juror because a potential juror’s facial expressions, body language, and manner of answering questions are some of the most important criteria in selecting a jury. Judge O’Connell would have directed the trial court on remand to make factual findings—holding an evidentiary hearing if necessary— regarding DC and WB’s nonverbal responses, the prosecutor’s credibility, and whether the prosecutor’s challenge was a pretext for purposeful discrimination.
    1. Juey — Peremptory Challenges — Race — Three-Step Batson Process.
    Under Batson v Kentucky, 476 US 79 (1986), a three-step process is used to determine whether a peremptory challenge was unconstitutionally exercised solely on the basis of race: first, the defendant must make a prima facie showing of discrimination by showing that he or she is a member of a particular racial group, the prosecutor used a peremptory challenge to exclude from the jury a member of that racial group, and the circumstances raised an inference that the challenge was race based; second, the prosecutor must articulate a clear and reasonably specific explanation of his or her legitimate reasons for exercising the peremptory challenge; third, the trial court must determine whether the challenger of the strike established purposeful discrimination even though the articulated reason was race neutral.
    2. Juey — Peremptory Challenges — Race — Third Step of the Batson Process — Argument by Challenger.
    Under Batson v Kentucky, 476 US 79 (1986), a three-step process is used to determine whether a peremptory challenge was unconstitutionally exercised solely on the basis of race; in the third step, during which the trial court must determine whether the challenger of the strike established purposeful discrimination even though the prosecutor’s articulated reason was race neutral, a trial court may not simply accept the prosecutor’s race-neutral explanation for the peremptory challenge but must allow the challenger an opportunity to argue that the race-neutral reason given by the prosecutor was pretextual.
    3. Jury — Peremptory Challenges — Race — Third Step of the Batson Process — Factual Findings.
    Under Batson v Kentucky, 476 US 79 (1986), a three-step process is used to determine whether a prosecutor’s peremptory challenge was unconstitutionally exercised solely on the basis of race; in the third step, whether the prosecutor’s articulated reason is a pretext for purposeful discrimination is a credibility issue for the trial court; the court must make factual findings regarding the prosecutor’s demeanor when he or she defended the peremptory challenge, how reasonable or how improbable his or her stated reasons were, and whether the proffered rationale had some basis in accepted trial strategy in light of all relevant direct and circumstantial evidence of intent to discriminate.
    4. Jury — Peremptory Challenges — Race — Third Step of the Batson Process — Factual Findings.
    Under the three-step process outlined in Batson v Kentucky, 476 US 79 (1986), when deciding in the third step whether a peremptory challenge is unconstitutionally race based, a trial court must closely scrutinize a strike that is based solely on a juror’s demeanor or nonverbal conduct because there is a high risk that it is a pretext for racial discrimination; the trial court must indicate on the record whether it observed the juror’s alleged expressions, and even if it did not, it must still find facts that either support or refute that the challenge was racially motivated.
    
      Bill Schuette, Attorney General, Aaron D. Lind-strom, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Ana I. Quiroz, Assistant Prosecuting Attorney, for the people in Docket No. 323059.
    
      Jonathon B. D. Simon for Timothy F. Tennille.
    
      Bill Schuette, Attorney General, Aaron D. Lind-strom, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Margaret Gillis Ayalp, Assistant Prosecuting Attorney, for the people in Docket No. 323314.
    
      Lee A. Somerville for Sean D. Rutledge.
    Before: SHAPIRO, P.J., and O’CONNELL and GLEICHER, JJ.
   GLEICHER, J.

Defendants jointly stood trial for the murder of Charles Whitfield. A jury convicted both of first-degree murder, MCL 750.316(a), felony murder, MCL 750.316(b), and possession of a firearm during the commission of a felony, MCL 750.227b. Defendants contend that their convictions are tainted by the prosecutor’s use of peremptory challenges to strike five African-American jurors in contravention of Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986). Each also raises evidentiary challenges. We find defendants’ Batson argument potentially disposi-tive and remand for proceedings consistent with this opinion.

i

When an attorney raises a Batson objection, the trial court must determine whether purposeful discrimination motivated the strike. A well-known three-step process guides this inquiry. If the defendant establishes a prima facie case of racial discrimination, the burden shifts to the prosecutor to offer race-neutral explanations for his or her exercise of peremptory challenges. Id. at 97. Once the prosecutor has made that proffer, the defendant may argue that the stated reasons are pretextual. The trial court then resolves the challenge by determining whether the defendant has established purposeful discrimination. Id. at 98.

Sometimes, the prosecutor’s race-neutral reason for striking a minority juror is rooted in the juror’s demeanor during voir dire interrogation. The trial court must then evaluate “whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.” Snyder v Louisiana, 552 US 472, 477; 128 S Ct 1203; 170 L Ed 2d 175 (2008). This question is inherently factual.

Here, defense counsel raised a Batson challenge when the prosecutor peremptorily excused two prospective African-American jurors. When defense counsel objected, the prosecutor asserted that he exercised the strikes based solely on the jurors’ demeanors rather than their responses to questioning. The trial court accepted the prosecutor’s explanation as “a valid race neutral reason,” but the court made no factual findings regarding the jurors’ appearances, the prosecutor’s credibility, or whether defendants established purposeful discrimination. Because the trial court failed to articulate the basis for its decision, we must remand for an evidentiary hearing conducted pursuant to the strict guidelines we set forth in this opinion. If the necessary facts cannot be determined with confidence, the trial court must vacate defendants’ convictions and retry them.

ii

The voir dire of defendants’ jury began on June 30, 2014, with the trial judge’s announcement: “I do all the voir dire.” The initial 14 venire members seated in the jury box included Juror 7, WB. In response to the court’s request for basic background information, WB offered that she lived in Detroit and attended “school for paralegal and. . . intern [ed] at Michigan Legal Services. No children.”

During a follow-up round of questioning, the court focused on relationships with attorneys and law-enforcement personnel. Juror 5, JG, volunteered that he was “[c]lose friends” with a Michigan state trooper. He conceded that this friendship might prevent him from “being fair and impartial to both sides” and apologized for feeling “biased toward the police in this case.” When asked whether he would “automatically believe someone just because their [sic] police officers,” JG answered, “99.9 percent, probably.” After a few more court-crafted questions aimed at mitigating this patent partiality, JG admitted that he would “probably” ‘tie leaning towards the police.” He vowed to “try” to follow an instruction to judge the credibility of a police officer in the same manner as he would judge the credibility of other witnesses. He then added:

My natural bias is I’ve had extremely good experience with law enforcement. Extremely good. I live in Dearborn. My experience there is top notch. Where I come from, originally, up north my experience has been very, very good. I was raised to have tremendous respect for them. It was a field I considered going into at one point myself.

The trial court turned to Juror 6, who indicated that his son was a police officer but affirmed that he could nonetheless be “fair and impartial to both sides.” The court then addressed prospective juror WB:

The Court: Anyone else? Juror seven?
Prospective Juror: My cousin’s a lawyer.
The Court: Your cousin? And you’re studying to be a paralegal right now? Do they practice criminal law, civil law?
Prospective Juror: Real estate.
The Court: So, they don’t have anything to do with criminal law then?
Prospective Juror: No.
The Court: You promise not to call them up and ask them their opinion about the case?
Prospective Juror: I promise.
The Court: Have you taken any criminal justice or criminal law courses in your paralegal studies?
Prospective Juror: Yes.
The Court: Do you understand I’m giving the instructions in this case?
Prospective Juror: Yes.
The Court: You have to follow the instructions as I give them to you; do you understand that? You might have heard something different in one of your classes. You’re going to follow what I say right?
Prospective Juror: Yes.
The Court: And would anything you heard in your classes .. . impact your ability to be fair and impartial to both sides in this case?
Prospective Juror: No.

That concluded WB’s voir dire.

Before the close of the first day, the court excused JG for cause. The voir dire continued the next morning with the seating of replacement jurors in several empty positions. Prospective juror DC filled seat number five. The court requested that the new jurors “tell us about yourself, what you do for a living, your spouse does for a living, if you have children or grandchildren, what city you live in.” DC responded that she was “divorced/single,” lived in Detroit, had two grown children, and had retired from her city of Detroit position as an “[administrative assistant.” When asked whether the new jurors had served on a jury before, DC responded that she had been on a criminal jury that reached a verdict twenty years ago. She spoke no further.

At the next opportunity for challenges (ten transcript pages after DC’s response), the prosecutor exercised peremptory strikes to dismiss WB and DC. Defense counsel for Rutledge immediately asked to approach the bench. According to the transcript, a “[b]rief sidebar” ensued. The court then stated, “Jurors 5 and 7, you’re excused from this jury.” Voir dire continued for several more hours.

After the jury was selected, the court returned to the Batson challenge “that was raised” but “never got placed on the record.” Here is the colloquy:

The Court: ... So, during jury selection, jury voir dire, I believe it was Mr. [Wyatt] Harris [counsel for Rutledge] [who] raised a Batson challenge with regard to the challenge of Jurors 5 and 7, [who] were, I believe [DC] and [WB], both of whom were African American females.
Mr. Harris: Yes. I know that this Court, your Honor, is familiar with Batson. People versus Batson.
Your Honor, I made my objection based on the fact that the Prosecutor had, previous to that, excluded three other African Americans off of the jury pool. Or off of the - - used [his] Peremptory [challenges] to excuse three other jurors, three other African American jurors.
And then decided that they were going to use their Peremptories to exclude two other African American female jurors. And so I objected based on Batson.
I know that this Court knows the rule. I know the Prosecutor knows that you can’t use race as a basis for eliminating a particular juror.
And it was apparent to me, given those exclusions, that that’s what the Prosecutor was trying to do.
The Court: And the Prosecutor gave reasons for excusing Jurors 5 and 7 when the challenge was raise[d].
And Mr. Prosecutor?
[The Prosecutor]: Yes, Judge. The reason, and of course People know of People v Batson. We understand that jurors cannot be excluded on the basis of race, even though the Defense excused many non-African Americans.
I believe the Prosecutor excused African Americans, as well as non-African Americans. There was no pattern.
The reason that those two jurors were excluded was because during the voir dire period there was [sic] questions about whether or not jurors would accept police testimony.
And ... one potential juror ... indicated that he would believe a [sic] police testimony, almost to a fault. And that he would take what they said - - he would give their testimony much more credence than he would a normal witness.
Judge, that’s something that we all wish would not be a jurors’ [sic] perspective. But those two - - those potential jurors, the ones who were excluded, their reaction[s] to his statements were just over the top, in showing disgust for his answers.
Judge, based on that, I don’t know if they had anything against police and prosecutors, in general.
Most people reacted in some way. But those two jurors’ reactions were excessive. To the point where my officer in charge pointed it out to me. And just further solidified what I had in my own mind.
And it was my choice to excuse them based on that. It had nothing to do with race, Judge.
The Court: And I accepted that as a valid race neutral reason. And therefore, I denied the Batson challenge.

Ill

Under the first step of a Batson challenge, a defendant must make a prima facie showing that (1) he or she is a member of a particular racial group, (2) the prosecution used a peremptory challenge to exclude from the jury a member of that racial group, and (3) the circumstances raise an inference that the challenge was race based. Batson, 476 US at 96. Defendants met this burden. Defendants are African-American, as are WB and DC. And defendants contended that the prosecution’s use of five total peremptory challenges to eliminate potential African-American jurors raised an inference of racial motivation. Indeed, the prosecution does not dispute that defendants established a prima facie case of discrimination.

Our focus therefore falls on the second and third steps of the Batson analysis. An appellate court reviews de novo Batson’s second step, which centers on whether the prosecutor set forth a race-neutral explanation for the strikes. People v Knight, 473 Mich 324, 343; 701 NW2d 715 (2005). The third step in the Batson analysis requires the trial court to determine whether the challenger has sustained his or her burden of demonstrating a racial motivation for the challenged peremptory strikes. This constitutes a question of fact reviewed for clear error. Id. at 344. This standard of review derives from Hernandez v New York, 500 US 352, 364; 111 S Ct 1859; 114 L Ed 2d 395 (1991) (plurality opinion), in which the United States Supreme Court explained that Batson treated “intent to discriminate as a pure issue of fact, subject to review under a deferential standard [.] ”

IV

Based on our review of the record, we discern that the trial court committed two serious Batson errors. First, the court failed to afford defense counsel an opportunity to rebut the prosecutor’s stated reason for dismissing jurors DC and WB. Second, the trial court’s abbreviated ruling (“And I accepted [the prosecutor’s explanation] as a valid race neutral reason. And therefore, I denied the Batson challenge”) evinces that the trial court misapprehended its role. Merely stating that a prosecutor has articulated a valid, race-neutral reason for his or her strikes does not suffice under Batson. Rather, a court must make some findings of fact regarding whether the prosecutor’s justification for the strikes seems credible under all of the relevant circumstances, including whether the jurors actually exhibited the expressions claimed and whether the averred reactions were the real reasons for the strikes. The record in this case contains no factual findings whatsoever. Rather, the trial court improperly conflated steps two and three of the Batson framework, thereby failing to reach step three at all.

A

Batson’s first step examines whether the facts and circumstances of the voir dire suggest that racial discrimination motivated a strike. Evidence raising merely an inference of discrimination surmounts the first Batson step, creating a prima facie case. “Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” Hernandez, 500 US at 359; see also People v Bell, 473 Mich 275, 296; 702 NW2d 128 (2005), mod 474 Mich 1201 (2005). As noted, the prosecutor volunteered an explanation for the strikes, and therefore step one of the analysis falls away. We move to steps two and three, which are intended to resolve whether discriminatory purpose actually animated the peremptory challenges.

In step two of the Batson framework, “[t]he prosecutor . . . must articulate a neutral explanation related to the particular case to be tried.” Batson, 476 US at 98. Step two obliges the prosecutor to “give a clear and reasonably specific explanation of his legitimate reasons for exercising the challenges.” Id. at 98 n 20 (quotation marks and citation omitted). Our Supreme Court has elucidated that the inquiry at the second step is narrow:

[A]t Batson’s second step, a court is only concerned with whether the proffered reason violates the Equal Protection Clause as a matter of law. See, e.g., United States v Uwaezhoke, 995 F2d 388, 392 (CA 3, 1993) (“Thus, if the government’s explanation does not, on its face, discriminate on the basis of race, then we must find that the explanation passes Batson muster as a matter of law, and we pass to the third step of Batson analysis to determine whether the race-neutral and facially valid reason was, as a matter of fact, a mere pretext for actual discriminatory intent.”). [Knight, 473 Mich at 344.]

Batson’s second step does not demand articulation of a persuasive reason, or even a plausible one; “so long as the reason is not inherently discriminatory, it suffices.” Rice v Collins, 546 US 333, 338; 126 S Ct 969; 163 L Ed 2d 824 (2006), citing Purkett v Elem, 514 US 765, 767-768; 115 S Ct 1769; 131 L Ed 2d 834 (1995).

Here, the prosecutor provided a single race-neutral explanation for challenging both WB and DC: that they reacted “in showing disgust” for JG’s insistence “that he would believe a [sic] police testimony, almost to a fault. And that he would take what they said - - he would give their testimony much more credence than he would a normal witness.” The prosecutor’s stated reason for dismissing the two jurors—their response to another juror’s answers regarding police credibility— qualifies as race neutral.

Batson’s third step requires the trial court to make a final determination of whether the challenger of the strike has established purposeful discrimination. Batson, 476 US at 98. In Miller-El v Cockrell, 537 US 322, 338-339; 123 S Ct 1029; 154 L Ed 2d 931 (2003), the United States Supreme Court emphasized that “the critical question in determining whether a prisoner has proved purposeful discrimination at step three is the persuasiveness of the prosecutor’s justification for his peremptory strike. . . . [T]he issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible.” The Court provided several measures of credibility: “the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.” Id. at 339. In making a finding at step three, the trial court is required to assess the plausibility of the race-neutral explanation “in light of all evidence with a bearing on it.” Miller-El v Dretke, 545 US 231, 251-252; 125 S Ct 2317; 162 L Ed 2d 196 (2005) (emphasis added).

Step three is critical to the Batson analytical process. When a court finds that a prosecutor has articulated a race-neutral ground for a peremptory challenge, the court must then determine whether the strike is nonetheless discriminatory. “It is inappropriate for a district court to perfunctorily accept a race-neutral explanation without engaging in further investigation.” United States v Jackson, 347 F3d 598, 605 (CA 6, 2003). “[A]sking whether something is race-neutral is analytically distinct from determining whether the asserted reason is believable or pretex-tual.” United States v Rutledge, 648 F3d 555, 560 (CA 7, 2011). Rather, at step three the trial court must undertake to find facts. Our standard of review for this stage reflects the necessity of this fact-finding. In Knight, 473 Mich at 344, our Supreme Court specifically held that Batson’s third step presents questions of fact “reviewed for clear error.”

B

When a prosecutor’s sole explanation for a strike resides in a juror’s appearance or behavior, the third step bears heightened significance. Explanations for peremptory challenges based solely on a juror’s demeanor “are particularly susceptible to serving as pretexts for discrimination.” Harris v Hardy, 680 F3d 942, 965 (CA 7, 2012). “Nonverbal conduct or demeanor, often elusive and always subject to interpretation, may well mask a race-based strike. For that reason, trial courts must carefully examine such rationales.” Davis v Fisk Electric Co, 268 SW3d 508, 518 (Tex, 2008). “[BJecause such after-the-fact rationalizations are susceptible to abuse, a prosecutor’s reason for discharge bottomed on demeanor evidence deserves particularly careful scrutiny.” Brown v Kelly, 973 F2d 116, 121 (CA 2, 1992).

In. Snyder, 552 US at 477, the United States Supreme Court expounded on the trial court’s central role in discerning whether discriminatory animus motivated a strike premised in part on a juror’s expressions, attitude, or comportment. As in this case, Snyder involved a peremptory challenge based on a prospective juror’s demeanor. The juror in question, Mr. Brooks, was a college student and otherwise fully qualified to sit. The prosecutor explained that he challenged Brooks because “he looked very nervous to me throughout the questioning.” The prosecutor then added a second reason for the strike: that jury service might cause Mr. Brooks to miss essential student-teaching time, thereby encouraging him to render a swift not-guilty verdict. Id. at 478. Defense counsel disputed both reasons, and the trial court ruled, “ ‘All right. I’m going [to] allow the challenge [.] ” Id. at 479 (first alteration in original).

The Supreme Court carefully examined the record and determined that the prosecutor’s second reason, flowing from the juror’s college commitments, was “suspicious” and “implausible].” Id. at 483. As to Brooks’s “nervousness,” the Court observed that while “ ‘nervousness cannot be shown from a cold transcript,’ ” the trial court record “[did] not show that the trial judge actually made a determination concerning Mr. Brooks’[s] demeanor.” Id. at 479. The Court acknowledged that “race-neutral reasons for peremptory challenges often invoke a juror’s demeanor (e.g., nervousness, inattention), making the trial court’s firsthand observations of even greater importance.” Id. at 477. The Court continued, “In this situation, the trial court must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.” Id.

In applying these precepts to the facts of the case before it, the Supreme Court observed that “the trial judge simply allowed the challenge without explanation,” elaborating:

It is possible that the judge did not have any impression one way or the other concerning Mr. Brooks’[s] demeanor. Mr. Brooks was not challenged until the day after he was questioned, and by that time dozens of other jurors had been questioned. Thus, the trial judge may not have recalled Mr. Brooks’[s] demeanor. Or, the trial judge may have found it unnecessary to consider Mr. Brooks’[s] demeanor, instead basing his ruling completely on the second proffered justification for the strike. For these reasons, we cannot presume that the trial judge credited the prosecutor’s assertion that Mr. Brooks was nervous. [Id. at 479.]

Because the prosecutor’s first reason for striking Mr. Brooks was pretextual, the Court refused to presume based on an empty record that the prosecutor’s fallback position—Mr. Brooks’s “nervousness”—merited automatic acceptance. As nearly a decade had passed since the defendant’s conviction, the Court reversed his conviction rather than remanding for fact-finding. Id. at 485-486.

The Batson issue in this case also hinges on step three. The Supreme Court highlighted in Snyder that at Batson’s third step, “The trial court has a pivotal role in evaluating Batson claims. Step three of the Batson inquiry involves an evaluation of the prosecutor’s credibility, and the best evidence of discriminatory intent often will be the demeanor of the attorney who exercises the challenge.” Id. at 477 (quotation marks and citation omitted). Here, the record is devoid of factual findings. Immediately after the prosecutor stated his reason for the strikes, the court deemed the reason race neutral. This ruling addressed only step two: whether the prosecutor’s explanation for the peremptory challenges was race neutral. The court made no effort to entertain argument from defense counsel regarding whether the strike was racially motivated despite the prosecutor’s articulation of a race-neutral ground. Nor did the court reference any argument on that score that had been made during the unrecorded “side-bar conference,” and the court did not otherwise indicate that it had considered the question. Instead, the court decisively stated that it “accepted” the prosecutor’s explanation as “a valid race neutral reason” and denied the challenge. This premature conclusion of the Batson inquiry reflects that the trial court misapprehended defense counsel’s role in the Batson process and overlooked the inalterable need for factual findings.

In conducting a Batson analysis, a court may not simply “accept” a prosecutor’s race-neutral explanation and terminate the inquiry there. Rather, the trial court is tasked with engaging in a more penetrating analysis focused on ascertaining whether the prosecutor’s proffered race-neutral reason is pretext intended to mask discrimination. Evaluation of this central question requires the court to permit argument by defense counsel, who bears the burden of persuading the court that the prosecutor purposefully discriminated when exercising the strike. Purkett, 514 US at 768. After affording the opponent of the challenge an opportunity to argue that the prosecutor’s stated reason lacks credibility in light of all surrounding circumstances, the court must render findings focused on the prosecutor’s demeanor when making the argument, whether the prosecutor’s explanation is reasonable and probable, and “whether the proffered rationale has some basis in accepted trial strategy.” Cockrell, 537 US at 339. When demeanor serves as the sole ground for dismissal, some indication of whether the court observed the alleged expressions is required. If the court did not see the expressions, it must nonetheless find facts that either support or refute that racial discrimination motivated the challenge. This fact-finding hinges largely on credibility.

This record lacks any objective indicia of the prosecutor’s credibility regarding the extent of the jurors’ reactions or the manner in which they compared to the reactions of other jurors. The absence of factual findings in this regard is compelling evidence that the trial court short-circuited the Batson process by failing to subject the prosecutor’s demeanor claim to a dispassionate evaluation.

In Thaler v Haynes, 559 US 43, 48; 130 S Ct 1171; 175 L Ed 2d 1003 (2010), a habeas corpus proceeding, the Supreme Court issued a brief per curiam opinion, holding that the trial court’s inability to personally observe a juror’s demeanor does not necessarily require rejection of a prosecutor’s demeanor-based explanation. The central question in that case was whether the United States Court of Appeals for the Fifth Circuit had correctly applied the deference to state court judgments required under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 USC 2254. The Supreme Court rejected the Fifth Circuit’s ruling that it could not afford AEDPA deference to state appellate court rulings “ ‘because the state courts engaged in pure appellate fact-finding for an issue that turns entirely on demeanor.’ ” Id. at 46, quoting Haynes v Quarterman, 561 F3d 535, 541 (CA 5, 2009), rev’d by Thaler, 559 US 43. The Supreme Court disagreed, explaining that “no decision of this Court clearly establishes the categorical rule” that a trial judge’s inability to verify a juror’s reaction or behavior requires rejection of the challenge. Haynes, 559 US at 49. Indeed, Snyder was decided six years before Haynes was convicted. Nonetheless, the trial judge’s “ ‘firsthand observations’ ” remain “of great importance.” Id. (citation omitted). Similarly, “the best evidence of the intent of the attorney exercising a strike is often that attorney’s demeanor.” Id. (emphasis added).

This case is governed by Snyder, not Haynes. Nothing in the record suggests that the trial court made any factual findings at Batson step three. Even if the trial court did not personally observe the jurors’ reactions, the court “has a pivotal role” in evaluating whether the prosecutor’s demeanor, and any pertinent surrounding circumstances, belie that a strike was race neutral. Fact-finding was particularly important in this case as the demeanor explanation for the prosecutor’s challenges, standing alone and uninformed by additional facts, required careful scrutiny.

Assuming that jurors DC and WB did react in noticeable ways to JG’s inappropriate answers, their reactions do not necessarily support a logical inference that they harbored an anti-prosecution bias. Their disdain for JG’s statements was reasonable given that the trial court dismissed JG for cause. Indeed, the prosecutor admitted, “I don’t know if they had anything against police and prosecutors, in general. Most people reacted in some way.” This is a telling admission. The challenged jurors’ negative reaction to JG’s unwillingness to shed his bias in favor of police officers might have been viewed by the trial court as appropriate to the situation. Without the benefit of more information and factual findings, we cannot simply accept that the alleged extent of the two jurors’ reactions legitimately disqualified them from service. Even if they displayed more pronounced feelings than those revealed by others who shared them, it does not necessarily follow that they would be less disposed than other reacting jurors to accept the prosecutor’s proofs. The prosecutor offered no explanation for this logical leap, and we perceive none, especially given the factual vacuum.

Alternatively stated, this record does not permit a conclusion that the prosecutor’s stated reason for the strikes was nondiscriminatory, as the behaviors the prosecutor relied on do not call into question the jurors’ abilities to be fair and impartial. Their answers to the limited questioning revealed no bias. It appears from the record that these women were not sleeping, nervous, preoccupied, hostile, angry, bored, disrespectful, or agitated. Similarly, it appears that they did not fail to make eye contact. Rather, their reactions were reasonable and shared by other jurors.

Without the benefit of any pertinent facts of record, this case cannot be meaningfully distinguished from Snyder. There, as here, the trial judge made no factual determination of the jurors’ demeanors, and “we cannot presume that the trial judge credited the prosecutor’s assertion” that the jurors reacted in a certain fashion. Snyder, 552 US at 479. There, as here, the prosecutor’s explanation for peremptorily excusing the two jurors was implausible even if the jurors demonstrated strong disapproval of Juror 5’s views as strong disapproval was warranted, as demonstrated by the trial court’s decision to remove JG from the jury.

Moreover, because one of the two challenged jurors (DC) was seated in the public area of the courtroom during JG’s colloquy with the court and not the jury box, it is questionable whether the trial court witnessed her alleged reaction. Indeed, it is unlikely that defense counsel saw it either. The prosecutor indicated that he missed it, too; he explained that his demeanor-based strike of DC rested on information supplied by “my officer in charge,” rather than first-hand observation. Given this hazy factual background regarding DC and the extent of her actual reaction to JG’s statements, the prosecutor’s credibility in making the strikes was highly significant. Potentially, so was the credibility of the “officer in charge.”

The record provides no reassurance that the trial court even thought about whether the prosecutor’s stated reason for the strikes was his real reason. As the prosecutor had already challenged three African-American prospective jurors, it was incumbent on the judge to determine through record fact-finding that the challenges of WB and DC were not the products of impermissible discrimination. The trial court made no effort to demonstrate that it understood or applied Batson’s third step, or that it made any reasoned determination whether the strikes of WB and DC were motivated by impermissible discrimination. The court’s perfunctory ruling on step two is not equivalent to the thoughtful analysis Batson demands on step three. The Supreme Court’s admonition in Snyder bears repeating:

[R] ace-neutral reasons for peremptory challenges often invoke a juror’s demeanor {e.g., nervousness, inattention), making the trial court’s firsthand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. [Snyder, 552 US at 477.]

V

This case was tried in June 2014. Almost two years have elapsed since the voir dire. We note that the United States Supreme Court has yet to definitively decide whether in circumstances such as these, remand rather than reversal is required. In the interest of judicial economy, we will remand to the trial court for an evidentiary hearing during which the trial court must conduct the third-step analysis it omitted at defendant’s trial.

At Batson’s third step, the trial judge must evaluate the plausibility of the prosecutor’s race-neutral explanation for a strike “in light of all evidence with a bearing on it.” Dretke, 545 US at 251-252. This inquiry necessarily includes careful consideration of relevant direct and circumstantial evidence of intent to discriminate. Batson, 476 US at 93-94. Furthermore, Batson requires that defense counsel be afforded an opportunity to argue on the record that the prosecutor’s reasons for the strikes were pretextual. We acknowledge that “if Batson is to be given its full effect, trial courts must make precise and difficult inquiries to determine if the proffered reasons for a peremptory strike are the race-neutral reasons they purport to be, or if they are merely a pretext for that which Batson forbids.” Coombs v Diguglielmo, 616 F3d 255, 264 (CA 3, 2010).

Given the passage of time, we are not confident that any of the trial participants will be able to summon actual memories of the facial expressions of the challenged jurors and those of the jurors in the venire and those seated in the jury box and the prosecutor’s credibility at the time he argued against the Batson challenge. Additional relevant facts include: the number of minority jurors in the jury box at the time of the strikes, the number of minority jurors on the final jury, the prosecutor’s demeanor and credibility at the time he made the strikes, and the credibility of the “officer in charge.” This case presents a formidable evidentiary gap. It remains to be seen whether that gap can be confidently and reliably filled on remand. Nevertheless, “our concern for judicial economy persuades us that allowing the [trial] judge the opportunity for such findings is the correct course.” United States v McMath, 559 F3d 657, 666 (CA 7, 2009).

However, “if the passage of time has made such a determination impossible or unsatisfactory,” Dolphy v Mantello, 552 F3d 236, 240 (CA 2, 2009), the court must grant defendants a new trial. We highlight that our remand order is not an invitation to prevarication or post hoc rationalizations. Nor may the prosecutor offer new reasons for striking the two challenged jurors. We will not affirm based on an incomplete hearing or findings that suggest uncertainty, contrivance, or dissembling. Furthermore, we order the trial court to commence remand proceedings forthwith and under no circumstances more than 30 days from the date of the issuance of this opinion.

If the trial court concludes that defendants proved purposeful discrimination or if the court is unable to reach a conclusion because of the passage of time, defendants’ convictions must be vacated and a new trial ordered.

We remand for an evidentiary hearing in conformity with this opinion. We retain jurisdiction.

SHAPIRO, P.J., concurred with Gleicher, J.

O’CONNELL, J.

(concurring). At issue in this case is whether a prospective juror’s nonverbal response to a question is a sufficient race-neutral reason to withstand a Batson challenge. I write separately to emphasize the special importance of nonverbal communication in the jury-selection process and to disagree with the majority opinion’s implied assertion that nonverbal communication is not a sufficient reason to peremptorily excuse a prospective juror.

I concur with the majority opinion that the trial court failed to complete the three-step Batson analysis, and therefore this case must be remanded for an evidentiary hearing. On remand, I would direct the trial court to make factual findings regarding the jurors’ nonverbal responses, the prosecutor’s credibility, and whether the prosecutor’s challenge was a pretext for purposeful discrimination. On remand, I would direct the trial court to conduct an evidentiary hearing if necessary.

I. INTRODUCTION

At issue in this case are the nonverbal responses of two African-American prospective jurors. After the prosecutor excused those two jurors solely on the basis of their nonverbal responses to an answer by another prospective juror, defense counsel raised a Batson challenge. The majority opinion impliedly asserts in part that the nonverbal responses of these two jurors do not reach the level of significance to survive a Batson challenge and that the trial court’s factual findings are incomplete. In part, I disagree. I note that one of the most important criteria in selecting a jury includes a potential juror’s facial expressions, body language (nonverbal communication), and manner of answering questions. People v Robinson, 154 Mich App 92, 94-95; 397 NW2d 229 (1986). I would further emphasize that as a reviewing court we “cannot see the jurors or listen to their answers to voir dire questions.” Id. at 94. For this reason, most appellate courts are disinclined to rule on the effect of nonverbal responses until the trial court first makes its factual findings; unfortunately, this lower court record is devoid of factual findings by the trial court regarding these issues. Therefore, I believe a remand to the trial court for factual findings is the proper remedy in this case.

II. BACKGROUND FACTS

Charles Whitfield died after being shot twice in his back outside a gas station. According to Crystal Williams, Whitfield stopped at the gas station while giving her and Carmen Ulmer a ride home from work. Ulmer testified that she and Whitfield went into the gas station, and Williams testified that she saw two people enter the gas station after Whitfield and Ulmer.

According to Ulmer, two men came into the gas station and stood behind Whitfield at the cashier’s booth. When Ulmer left, the two men were still behind Whitfield. Ulmer went back to Whitfield’s truck, but eventually she returned to the gas station because Whitfield had not yet come out. Whitfield was reading a newspaper by the front door, and Ulmer told him that Williams wanted him to “[c]ome on.” At that point, Ulmer ran back to the car and told Williams that they should leave because she noticed that the two men had not purchased anything, it was late, they were wearing all black, and “common sense was telling [her] that. . . something . . . was about to happen.”

Williams testified that she saw Whitfield and some other people come out of the gas station. According to Ulmer, the two men left the gas station as soon as Whitfield left. They were close behind Whitfield when he approached the truck. Ulmer heard someone say “[a]ye,” she saw guns, and she ran. Ulmer ran in one direction and Williams ran in another. Ulmer heard Whitfield say “[n]o, no, no,” and then she heard two or three gunshots. When Ulmer looked back, Whitfield was on the ground behind his truck.

Ulmer could not identify the men involved in the shooting because she did not look at them closely. Williams testified that she could not identify the men because she was distracted.

Sergeant Ron Gibson, an expert in forensic videotape analysis, testified that he obtained videotape evidence from the gas station’s cameras. According to Gibson, the quality of the videotapes was poor, but he could see that one of the perpetrators had arm tattoos. As part of Gibson’s analysis, he created photographs from the videotapes and then photographed Timothy Tennille’s arm tattoos for comparison. He compared photographs, looking for “patterns, density, and basically consistency of tattooing or marking on the skins, in the same positions, [on the] same arms.” Gibson found “matching placements of tattooing” between Tennille and one of the perpetrators. Specifically, the right arm tattoos had similar densities and proportions, including script lettering in the style of the letter “1,” the shape of clasped hands, and a line of lettering and design. Gibson testified that “[a] sufficient number of similarities [were] present” to “prevent [him] from excluding [Tennille] from consideration.”

Tennille’s mother testified that she could not recall making statements to the police. However, she acknowledged that a signature on the back of some photographs looked like hers and testified that she had told the prosecutor under oath during an investigative subpoena that she was 100% certain the person in one of the photographs “lookfed] like [her] child.”

Turquoise Irvin testified that she did not know Sean Rutledge “personally” but had “seen him around” and knew him as “Merf.” According to Irvin, the police showed her photographs. Irvin identified one of the individuals as Tennille and the other as Merf. In the videotape of Irvin’s interview with the police, she identified “Tim” and “Merf’ in the photographs in response to the officer’s question, “Who is this?” Irvin testified that she was being held in police custody and felt threatened by the police. Specifically, she was concerned that the police would charge her as an accessory to the crime if she did not cooperate.

During deliberations, the jury twice reviewed the videotape evidence. Ultimately, the jury found Tennille and Rutledge guilty of first-degree murder, felony murder, and possession of a firearm during the commission of a felony. Tennille and Rutledge now appeal.

III. EXCLUSION OF AFRICAN-AMERICAN JURORS

A. LEGAL STANDARDS

The Equal Protection Clause of the Fourteenth Amendment prohibits a party from using a peremptory challenge to remove a prospective juror solely on the basis of the person’s race. People v Knight, 473 Mich 324, 335; 701 NW2d 715 (2005). When a defendant alleges that the prosecution has improperly excluded a prospective juror on the basis of race, courts engage in a three-step analysis to determine whether the defendant has shown a case of unlawful discrimination. Batson v Kentucky, 476 US 79, 96-98; 106 S Ct 1712; 90 L Ed 2d 69 (1986). First, the defendant must make a prima facie showing that (1) he or she is a member of a racial group, (2) the prosecution has used a peremptory challenge to exclude a member of that group from the jury pool, and (3) the circumstances raise an inference that the exclusion was based on the prospective juror’s race. Id. at 96. Second, if the trial court determines that the defendant made a prima facie showing, the prosecution must “articulate a race-neutral explanation for the strike.” Id. at 97. Third, the trial court must determine whether the race-neutral explanation is a pretext and the defendant has proved purposeful discrimination. Id. at 98.

When reviewing the trial court’s decisions, we review for clear error its factual findings and review de novo its legal determinations. Knight, 473 Mich at 338. We review de novo whether the prosecution has articulated a race-neutral explanation for striking a prospective juror. Id. at 343. We review for clear error the trial court’s findings regarding whether the prosecution’s explanation was a pretext and whether the defendant has proved purposeful discrimination. Id. at 344-345. We accord the trial court’s ultimate finding “great deference.” Id. at 344.

B. EXCLUSION OF AFRICAN-AMERICANS FROM THE JURY

Both Tennille and Rutledge contend that the prosecution denied them equal protection by excusing two African-American prospective jurors during the voir dire process. Tennille and Rutledge contend that the trial court clearly erred when it determined that the prosecutor’s stated reasons for dismissing the jurors were not a pretext.

In this case, the prosecutor stated that he was seeking to exclude the two jurors because, when another prospective juror stated that he would believe police officers “almost to a fault” and give their testimony more credibility than that of a normal witness, the two jurors “show[ed] disgust,” and “their reaction to his statements were just over the top[.]” While most people reacted to the statements in some way, the prosecutor believed that those two specific jurors’ reactions were “excessive.” As a result, the prosecutor decided that the jurors might be biased against police officers.

It is undisputed that Tennille and Rutledge have made a prima facie showing under Batson. Further, the trial court properly determined that, as a matter of law, the prosecutor’s stated reason was race-neutral. A neutral explanation is “an explanation based on something other than the race of the juror.” Hernandez v New York, 500 US 352, 360; 111 S Ct 1859; 114 L Ed 2d 395 (1991) (plurality opinion). The second-step inquiry is focused only on the face of the explanation, and the persuasiveness of the explanation is an issue for the third step of the inquiry. Knight, 473 Mich at 343. In this case, the prosecutor’s stated reason concerned juror bias, an explanation that had nothing to do with the race of the prospective jurors. The trial court properly determined that the explanation was race neutral, and the question is therefore whether the reason was merely a pretext for racial discrimination.

Rutledge asserts that it is incredible that the prosecutor could have surveyed the faces of the entire jury venire to gauge their responses to one prospective juror’s answer to a question. I am not definitely and firmly convinced that the trial court made a mistake when it found the prosecutor’s stated reason valid. This Court gives deference to the trial court’s findings, particularly regarding things that cannot be determined through a transcript, such as attorney credibility and the demeanor of prospective jurors. Snyder v Louisiana, 552 US 472, 479; 128 S Ct 1203; 170 L Ed 2d 175 (2008).

In this case, the prosecutor’s stated reason involved the prospective jurors’ nonverbal communication. The prosecutor stated that he observed the reactions of prospective jurors in response to another prospective juror’s answer. I note that the record does not reflect the facial expressions of the jurors, and I have no basis from which to determine whether the prosecutor’s statement was true or false. Generally, the trial court is in a position to observe not only the prosecutor, but also the prospective jurors in the venire. The trial court may very well have found the prosecutor credible. Appellate courts are not in a position to second-guess the trial court’s findings on these matters, but unfortunately the trial court’s findings in this case are almost nonexistent. While the trial court ruled in favor of the prosecution, it did not make sufficient findings of fact for this Court to engage in any meaningful review.

I note that the prosecutor exercised several other peremptory challenges, and there is no indication in the record that these challenges were based on race. Further, there is no indication of the ultimate jury composition and whether it disproportionately or entirely excluded African-Americans. There is simply a lack of record evidence and factual findings by the trial court to support a conclusion that the prosecutor’s reason was or was not a pretext for purposeful discrimination. In this instance, the proper remedy is a remand for further factual findings.

On remand, I would direct the trial court to make factual findings regarding the jurors’ nonverbal responses, the prosecutor’s credibility, and whether the defendants established purposeful discrimination. I would direct the trial court to conduct an evidentiary hearing if necessary. 
      
       Defense counsel for Tennille joined in the challenge.
     
      
       These are the prosecutor’s words. The trial court had excused JG for cause on the first day of voir dire, explaining that “as I continued to question him he seemed to be more and more hesitant he would be able to be fair and impartial with regard to police testimony.”
     
      
       In Haynes, two different judges presided over the voir dire. The Supreme Court noted that in Snyder, “the judge who presided over the voir dire also ruled on the Batson objections, and thus we had no occasion to consider how Batson applies when different judges preside over these two stages of the jury selection process.” Haynes, 559 US at 48.
     
      
       The United States Supreme Court has observed that a prosecutor’s “ ‘failure to engage in any meaningful voir dire examination on a subject the State alleges it is concerned about is evidence suggesting that the explanation is a sham and a pretext for discrimination.’ ” Dretke, 545 US at 246, quoting Ex parte Travis, 776 So 2d 874, 881 (Ala, 2000). Here, the trial court permitted no voir dire. Whether or not the two challenged jurors harbored biases justifying their challenge was not fleshed out during the voir dire conducted by the trial court. And the failure of the trial court to make any factual findings regarding these jurors compounded the problem the court created by conducting the voir dire on its own.
     
      
       If any nonminority jurors reacted in an equivalent manner and wound up seated on defendants’ jury, the prosecutor’s stated reason for his strikes of DC and WB could be regarded as pretextual.
     
      
      
        Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986).
     