People v. Bailey

• Decision Date: 11 August 1988
• Docket Number: Docket Nos. 99723,99724
• Citation: 426 N.W.2d 755,169 Mich.App. 492
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Lloyd BAILEY, Defendant-Appellant. 169 Mich.App. 492, 426 N.W.2d 755
• Court: Court of Appeal of Michigan — District of US

Page 755

426 N.W.2d 755

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Lloyd BAILEY, Defendant-Appellant.

Docket Nos. 99723, 99724.

169 Mich.App. 492, 426 N.W.2d 755

Court of Appeals of Michigan.

Submitted April 13, 1988.

Decided June 21, 1988.

Released for Publication Aug. 11, 1988.

[169 MICHAPP 493] Frank J. Kelley, Atty. Gen., Louis J. [169 MICHAPP 494] Caruso, Sol. Gen., Thomas A. Hallin, Pros. Atty., and David Batdorf-Barnes, Asst. Pros. Atty., for the People.

Ronald E. Kaplovitz, Pontiac, for defendant-appellant on appeal.

Before BEASLEY, P.J., and HOOD and TAHVONEN, ^* JJ.

PER CURIAM.

Defendant was convicted, following a jury trial, of kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581, and first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. Defendant was sentenced to sixty-five to one hundred years imprisonment on the kidnapping charge and mandatory life imprisonment on the murder charge. Defendant appeals as of right. We affirm.

The charges in this case arise from the kidnapping and murder of thirteen-year-old Shawn Moore in the late summer of 1985. At trial, defendant admitted killing the boy, but claimed he was insane at the time.

On appeal, defendant first claims that the trial court erred in denying his pretrial request for a change in venue from Livingston County. At the hearing on the motion, defense counsel played a videotape for the court which exemplified the type of coverage the local television stations were giving the case on their newscasts. Posters and newspaper articles from the local papers were also entered as exhibits. The community had offered a $50,000 reward for the safe return of Shawn Moore. The community had also distributed a leaflet which was captioned: "Shawn Moore's accused murderer has twice been convicted of crimes involving young boys and twice given probation--and now--Shawn is dead. It could be your child!" [169 MICHAPP 495] Defense counsel argued that Livingston County was a small community that had become actively involved in defendant's prosecution. Therefore it would be impossible for defendant to get a fair trial in the venue.

The prosecution countered that, while there had been extensive pretrial publicity, it had not prejudiced the community against defendant. He urged the court to defer its decision on change of venue until after jury selection. The court took judicial notice of the fact that there had been extensive media coverage of the instant case. However, the court stated its confidence that it would be possible to empanel an impartial jury. The court therefore denied defendant's motion for an immediate change of venue and invited defense counsel to renew the motion if its attempts to empanel a fair jury were unsuccessful.

In People v. Jancar, 140 Mich.App. 222, 229-230, 363 N.W.2d 455 (1985), this Court set forth the law on change of venue:

"Venue of a criminal case may be changed 'upon good cause shown by either party.' MCL 762.7; MSA 28.850. A motion for change of venue in a criminal case is addressed to the trial court's discretion, and the exercise of that discretion will be overturned on appeal only on a finding of abuse. People v Clay, 95 Mich App 152, 160; 289 NW2d 888 (1980), lv den 409 Mich 857 (1980). An abuse of discretion will not be found where a trial court, as here, elects to defer determination of a request for change of venue until jury selection has been attempted in the original county. People v Nixon, 114 Mich App 233, 240; 318 NW2d 655 (1982).

"Moreover, the existence of pretrial publicity does not itself require a change of venue. Murphy v Florida, 421 US 794; 95 SCt 2031; 44 L Ed 2d 589 (1975). If jurors are able to set aside their impressions[169 MICHAPP 496] or opinions and render a verdict based upon the evidence adduced at trial, a change of venue is not necessary. People v Prast (On Reh), 114 Mich App 469, 477; 319 NW2d 627 (1982). A change of venue is proper only where there is a finding of a strong community feeling or a bitter prejudice towards the defendant. Id."

Although a defendant's failure to utilize all of his peremptory challenges will not per se preclude him from assigning error on appeal, it is a factor to be considered in showing that the jury was satisfactory when finally empaneled. People v. Haggart, 142 Mich.App. 330, 336, 370 N.W.2d 345 (1985), lv. den. 426 Mich. 876 (1986).

In the instant case, while there was widespread publicity, it appears that through careful and considered effort an impartial jury was selected. The jury selection process took five days, and the trial court and counsel took a considerable amount of time and energy to seat the jury. Each prospective juror was asked if he or she had been exposed to the media coverage of the case. The jurors were also asked if they had formed an opinion as to the guilt or innocence of defendant. The court inquired of each juror whether he or she could remain fair and impartial. Each prospective juror was asked if he or she would agree not to discuss the case with anyone. In addition, the jurors were told not to watch television, listen to the radio, or to read any newspaper article about the case, and to base his or her verdict only on the evidence admitted in the courtroom. Defense counsel expressed satisfaction with the jury without using all of his peremptory challenges.

On the basis of the record, it does not appear that the court abused its discretion by denying defendant's motion for change of venue. As is permissible, the court delayed ruling on defendant's[169 MICHAPP 497] motion until after the jury selection process. Having personally questioned the prospective jurors, the court was able to determine whether there was a feeling of prejudice in the community directed toward defendant. The court stated that it found "an ability and willingness to afford the defendant ... all the protections of the law." Thus, we feel the court did not err. See People v. Hart, 161 Mich.App. 630, 411 N.W.2d 803 (1987).

Next, defendant claims the trial court erred in failing to declare Dr. Jose Tombo a material witness and to fully assist in securing his testimony for trial. Before trial, defendant filed a motion in district court to have Dr. Tombo declared to be a material witness and to require a bond to secure his presence at trial. Counsel argued that Dr. Tombo was a material witness because he had treated defendant for three years and alleged irregularities in the treatment had a profound impact on defendant's state of mind. Defense counsel argued that there was a suspicion Dr. Tombo might flee because he was a former resident of the Philippines and still had a valid passport, had been suspended from his job, and had been the focus of widespread media attention. In response, counsel for Dr. Tombo stated that Dr. Tombo had lived in the same apartment for twelve years, was fighting for reinstatement of his job, had a substantial property interest in his state retirement fund, and had previously met voluntarily with defense counsel in defense counsel's office.

The court stated it was not convinced that Dr. Tombo was a material witness, but that he would consider Dr. Tombo to be a material witness for purposes of defendant's motion. Nevertheless, the court did not believe that there was a danger of loss of Dr. Tombo's testimony unless he furnished bail. The court invited defense counsel to raise this [169 MICHAPP 498] motion again should facts in the future indicate that Dr. Tombo would not show up at trial.

When trial commenced, Dr. Tombo did not appear. Therefore, defense counsel brought a motion for a stay of proceedings due to his inability to locate Dr. Tombo. Defense counsel argued that Dr. Tombo was a crucial witness because he had told defendant's father, in a phone call prior to the trial, that he could help defendant's insanity defense.

The prosecution outlined its extensive efforts to locate Dr. Tombo prior to trial. The prosecution argued that the defense had not shown the materiality of Dr. Tombo's proposed testimony and also that all possible efforts to locate him had been made.

The court denied defendant's motion, ruling that Dr. Tombo was not a material witness, that a stay of proceedings would not be helpful in producing Dr. Tombo for trial, and that the loss of Dr. Tombo's testimony was, in part, defense counsel's fault because defense counsel had not deposed Dr. Tombo when they had a chance. The court ruled that defendant had not exercised due diligence to secure Dr. Tombo's testimony.

M.C.L. Sec. 767.35; M.S.A. Sec. 28.975 states:

"When it appears to a court of record that a person is a material witness in a criminal case pending in a court in the county and that there is a danger of the loss of testimony of the witness unless the witness furnishes bail or is committed if he or she fails to furnish bail, the court shall require the witness to be brought before the court. After...