COA: 225865, Wayne CC: 99-002073
On order of the Court, the delayed application for leave to appeal the October 15, 2002 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we VACATE the portion of the judgment of the Court of Appeals concerning defendant's peremptory challenge issue under Batson v. Kentucky, 476 U.S. 79; 106 S.Ct. 1712; 90 L.Ed.2d 69 (1986) and REMAND for reconsideration of that issue.
The trial transcript indicates that the trial judge was not satisfied with the prosecutor's race neutral reasons for peremptorily dismissing several jurors. Tr at 95. However, the Court of Appeals based its judgment on the premise that the trial court rejected the Batson challenge and, in doing so, the Court of Appeals also appears to have failed to follow Miller-El v. Cockrell, 537 U.S. 322; 123 S.Ct. 1029; 154 L.Ed.2d 931 (2003) (holding that evaluation of the prosecutor's state of mind based on demeanor and credibility lies peculiarly within the trial judge's province). For these reasons, we remand to the Court of Appeals for reconsideration of whether the trial judge erred in finding a Batson violation. If the Court finds that the trial court did not err, the Court shall address whether the trial court was correct in ruling that the racial composition of the final jury cured any Batson violation that was not cured due to the failure to reseat the peremptorily dismissed jurors.