People v. Kvam

• Citation: 408 N.W.2d 71,160 Mich.App. 189
• Decision Date: 08 July 1987
• Docket Number: Docket No. 82627
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Albert KVAM, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 71

408 N.W.2d 71

160 Mich.App. 189

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Albert KVAM, Defendant-Appellant.

Docket No. 82627.

Court of Appeals of Michigan.

Submitted May 12, 1986.

Decided March 20, 1987.

Released for Publication July 8, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Causo, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Robert F. Davisson, Asst. Pros. Atty., for the People.

John D. Lazar, Royal Oak, for defendant on appeal.

Before WALSH, P.J., and SULLIVAN and BAGULEY, ^* JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of three counts of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. Defendant was tried simultaneously with his co-felon, William Fischer, but before separate juries. Defendant was sentenced to three consecutive terms of life imprisonment. Defendant appeals as of right, raising numerous claims of error. We affirm defendant's convictions, but remand for correction of sentence.

In the early morning hours of July 7, 1984, Orbin Bray, Jr. returned to his home where he discovered the bodies of his wife, JoAnn Bray, his niece, fifteen-year-old Wendy Lovell, and his daughter, nine-year-old Chastity Bray. Each of victims had been repeatedly stabbed. Bray identified defendants Kvam and Fischer as suspects, and the defendants were arrested later that day. Defendant subsequently made multiple statements concerning the homicides. Although the statements varied in detail, all of the statements indicated that Kvam and Fischer were responsible for the three homicides.

On appeal, defendant first claims that there was insufficient evidence of premeditation aliunde his statements to bind him over on charges of first-degree murder. Defendant argues that the corpus delicti of each element of the crime must be established by evidence aliunde the confession of the accused. Defendant claims that the only evidence of premeditation presented at the preliminary examination was his statements; thus, the district court judge improperly bound him over on charges of first-degree murder and the circuit court erred in denying his motion to quash the information.

In People v. Williams, 422 Mich. 381, 391-392, 373 N.W.2d 567 (1985), our Supreme Court rejected this Court's position that the corpus delicti rule requires that each element of a crime must be established by evidence other than the accused's own statements. The Court specifically held "that the corpus delicti of first-degree premeditated murder consists of two elements: the death of the victim and some criminal agency as the cause." 422 Mich. 392, 373 N.W.2d 567.

Defendant does not dispute that independent evidence established the deaths of the victims or that their deaths were due to homicide. We find that the prosecutor complied with the corpus delicti rule in this instance. Defendant was properly bound over for trial on charges of first-degree murder.

Defendant next argues that the circuit court erred by submitting the question of premeditation to the jury because there was insufficient evidence of premeditation as a matter of law. We disagree. Premeditation and deliberation may be inferred from the weapons used, the location of the wounds inflicted, the circumstances surrounding the killing, the previous relationship between the killer and the victim, and the actions of the killer before and after the crime. People v. Bauman, 332 Mich. 198, 205, 50 N.W.2d 757 (1952); People v. Brown, 137 Mich.App. 396, 407, 358 N.W.2d 592 (1984). The evidence presented here indicated that the defendant knew the victims and had reason to seek revenge on the Bray family. Defendant's statements and actions before the homicides indicated that Kvam and Fischer intended to do harm. There was evidence that defendants went to Fischer's house in order to obtain Kvam's knife before going to the Bray home. The weapons used were inherently dangerous instruments, and the wounds inflicted upon the victims were primarily directed toward vital organs. Further Kvam and Fischer's actions after the homicides indicated a deliberate and organized gathering and disposal of evidence which would connect them to the crime. We find that there was ample evidence from which the jury could reasonably infer that the element of premeditation had been proven beyond a reasonable doubt. See People v. Irby, 129 Mich.App. 306, 322-323, 342 N.W.2d 303 (1983). Further, these circumstances were not negated, as a matter of law, by the evidence presented by defendant concerning diminished capacity. The diminished capacity defense is merely one aspect of whether a defendant has the requisite intent. People v. Jones, 151 Mich.App. 1, 5-6, 390 N.W.2d 189 (1986). The trial court did not err in submitting the question of premeditation to the jury.

Defendant also argues that the trial court erred by admitting defendant's July 10, 1984, statement into evidence. Defendant requested court appointed counsel at his arraignment on July 9, 1984, and thus invoked his Sixth Amendment right to counsel. On July 10, 1984, defendants Kvam and Fischer made a joint statement concerning the homicides. Defendant Kvam argues that his July 10, 1984, statement was admitted in violation of his Sixth Amendment right to counsel. Defendant asserts that, while he may have effectively waived his Fifth Amendment rights pursuant to the Miranda ¹ warnings, he had not waived his broader Sixth Amendment rights. We disagree.

Shortly after defendant's trial concluded, our Supreme Court decided People v. Bladel (After Remand), 421 Mich. 39, 365 N.W.2d 56 (1984), aff'd sub nom. Michigan v. Jackson, 475 U.S. ----, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). In Bladel our Supreme Court sought to delineate and distinguish the scope of an individual's Fifth and Sixth Amendment rights to counsel. The Bladel Court concluded that a defendant's Sixth Amendment right to counsel is subject to broader protections than defendant's Fifth Amendment right to counsel; thus, following a defendant's request for counsel at arraignment, a valid waiver of a defendant's Sixth Amendment rights cannot be based solely upon a waiver of Miranda rights. Bladel, supra, 421 Mich. p. 65, 365 N.W.2d 56. The Court then concluded that once an accused requests counsel at arraignment no further interrogation can be conducted until counsel has been made available to the accused, unless the accused initiates further communications. If an accused chooses to initiate communications, the accused must be sufficiently aware of both his Fifth and Sixth Amendment rights to effectuate a voluntary, knowing, and intelligent waiver of such rights. Bladel, supra, p. 66, 365 N.W.2d 56.

Although Bladel had not been decided at the time of defendant's trial, the trial court properly determined that defendant had initiated the July 10, 1984, statement; thus, the first prong of the Bladel test was satisfied. Although the trial court did not rule regarding the second prong of the Bladel test, we have thoroughly reviewed the record on appeal and conclude that the second prong of the Bladel test was satisfied in this instance. The defendant's July 10, 1984, statement was properly admitted at trial.

Defendant also challenges the trial court's finding that his July 7, 1984, and July 10, 1984, statements were voluntary and admissible. When reviewing a trial court's findings in a Walker ² hearing, this Court must examine the entire record and make an independent determination on the issue of voluntariness. People v. Robinson, 386 Mich. 551, 557, 194 N.W.2d 709 (1972). However, the trial court's findings will not be reversed unless they are clearly erroneous. People v. Fuqua, 146 Mich.App. 250, 257, 379 N.W.2d 442 (1985). A finding is considered to be clearly erroneous if this Court is left with a definite and firm conviction that a mistake has been made. People v. McGillen # 1, 392 Mich. 251, 257, 220 N.W.2d 677 (1974). The voluntariness of a confession must be determined from all of the facts and circumstances, including the duration of detention, the manifest attitude of the police toward the prisoner, the physical and mental state of the prisoner, and the pressures which affect the prisoner's powers of resistance and self-control. People v. Belknap, 146 Mich.App. 239, 241, 379 N.W.2d 437 (1985). We have examined the circumstances surrounding both defendant's July 7 and July 10 statements and conclude that the trial court's finding that the statements were voluntary was not clearly erroneous. The record clearly supports the trial court's finding of voluntariness. The trial court did not err in ruling that the statements were admissible.

Defendant asserts that he was denied a fair trial because his jury was selected from the same panel as the Fischer jury. Defendant argues that he was denied due process because neither he nor defense counsel was present during voir dire of the jury panel for selection of the Fischer jury. Following the Walker hearing, selection of defendant Fischer's jury began. Defendant Kvam and his counsel were absent from the courtroom during the selection of the Fischer jury. Defendant Kvam's jury was subsequently selected from the same panel. Contrary to defendant Kvam's argument on appeal, no objection was lodged to this procedure, defense counsel simply refused to stipulate that no prejudice resulted from the use of the single panel to select both juries. The selection of Kvam's jury was routine, and the defendant expressed his satisfaction with the jury before it was sworn.

Basic to procedural due process is the right of the defendant to be present at trial. This right extends to voir dire and selection of the jury. People v. Mallory, 421 Mich. 229, 247, 365 N.W.2d 673 (1984). However, in the instant case, defendant Kvam does not claim that he was excluded from selection of his own jury, but that he should have been present during the selection of the...