People v. Bloom

• Decision Date: 09 January 1969
• Docket Number: No. 2,Docket No. 4322,2
• Citation: 166 N.W.2d 691,15 Mich.App. 463
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harvey BLOOM et al., Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 691

166 N.W.2d 691

15 Mich.App. 463

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harvey BLOOM et al., Defendants-Appellants.

Docket No. 4322.

Court of Appeals of Michigan, Division No. 2.

Jan. 9, 1969.

Rehearing Denied March 7, 1969.

Released for Publication April 18, 1969.

Leave to Appeal Denied July 22, 1969.

Carlton S. Roeser, Pontiac, for appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Thomas C. Plunkett, Pros. Atty., Oakland County, Pontiac, for appellee.

Before McGREGOR, P.J., QUINN and LETTS, ^* JJ.

McGREGOR, Presiding Judge.

Defendants appeal their conviction for conspiracy to violate and for violation of the state gaming laws. ¹ The jury's verdict of guilty was the culmination of a controversy whose first episode was a gambling raid of a suspect establishment in October, 1963, in which the twenty-one defendants were arrested. Extensive coverage of the raid by the communications media continued after the arrest, and after defendants' motion, the venue was changed from Oakland to Manistee County in May, 1965. On July 22, 1965, the jury selection began before the circuit judge, who excluded approximately 65 prospective jurors, basically because of settled opinions derived from news reports.

Defendants requested five peremptory challenges for each charge; however, the court granted five challenges per defendant, and all were exercised. Virtually every prospective juror gained some knowledge of the case through the news media, but after the jury was empanelled, defendants' challenge of the array on grounds of prejudicial pretrial publicity was unsuccessful. During the Voir dire and the trial, the court repeatedly cautioned the jurors not to read of, listen to, or discuss aspects of the case, and to make their decision solely from the testimony and evidence submitted. The panel chosen voiced the traditional oath of freedom from prejudice plus the ability to reach a just verdict solely on the evidence, and the jury was not sequestered. News coverage continued through the trial and defendants were found guilty on August 10, 1965.

The issues raised on appeal are: (1) whether defendants were entitled to five peremptory challenges per individual, or per count charged; (2) whether the widespread publicity of the proceedings, from arrest through trial, effectively denied the defendants an impartial jury and a fair trial, as guaranteed by the 14th amendment; and (3) whether the trial proceedings were fair, impartial and orderly, thus affording defendants due process of law.

I.

The trial judge correctly resolved the first issue by granting five peremptory challenges for each defendant. The contention that each defendant was entitled to five challenges for each count charged is unsupported by relevant authority. The language cited by defendants from People v. Sweeney (1885), 55 Mich. 586, 589, 22 N.W. 50, placed in context, states that where an accused was charged with counts of unequal severity, and the greater charge entitled him to more than the customary five peremptory challenges, he was entitled to the larger number of challenges, even though convicted for the lesser charge. The applicable statute states that:

'Any person who is put on trial for an offense which is not punishable by death or life imprisonment, shall be allowed to challenge peremptorily 5 of the persons drawn to serve as jurors and no more; * * * In cases involving 2 or more defendants who are being jointly tried for such an offense, each of said defendants shall be allowed to challenge peremptorily 5 persons returned as jurors and no more;' C.L.1948, § 768.12 (Stat.Ann.1954 Rev. § 28.1035).

The offenses charged do not carry penalties entitling defendants to more than five peremptory challenges, and therefore, we affirm the lower court on this issue.

II.

The second issue raised is whether the extensive publicity effected prejudice and thereby denied defendants an impartial jury and a fair trial. The effect of extensive publicity on a trial's fairness has been a studied subject in recent years, as indicated by the proposed standards of the American Bar Association in the Reardon Report. The metropolitan Detroit branch of the American Civil Liberties Union expressed its interest in the evolving Michigan law on this issue by submitting an Amicus curiae brief in the present appeal.

Without question, the media gave extensive news coverage to the present controversy, and characteristically indulged in some degree of sensationalism. Testimony before a Senate investigation subcommittee, in which several names were listed as members of the Detroit Mafia organization, was heard the day preceding the arrest; three of the 48 persons arrested in the gambling raid were on the list. Michigan news media saturated the state with accounts of the hearing, the list, and the gambling raid the next day. The press freely and imaginatively characterized the suspect establishment as, for example, a 'huge gambling operation frequented by hoodlums.' Accepting the thoroughness of the news services, we assume that each juror at the empanelling stage had some previous knowledge of the case.

The ACLU argues that since the present challenge system does not eliminate jurors who have read or seen prejudicial publicity who nevertheless swear to impartiality, it does not insure an objective jury. They propose that the scope of the traditional challenge for cause be expanded to permit the challenge of any juror who has gained a substantial degree of knowledge about a case from pretrial publicity. However, we are not prepared to add substance to the phrase 'substantial degree of knowledge about a case from pretrial publicity,' as applied to the present matter. Although we assume that each juror had foreknowledge, we do not assume that his knowledge was 'substantial.' Therefore, we reject the ACLU proposal.

The essence of defendants' arguments is that they were denied due process through the deprivation of a fair trial and an impartial jury, resulting from the 'massive', 'pervasive', 'notorious', 'sensational', 'tendentious', and 'prejudicial' publicity attending the various stages of the controversy, citing numerous cases. They claim that the news media engendered prejudice and passion, which fostered a partial verdict and denied defendants a fair trial, as guaranteed by the due process clause of the 14th amendment.

Plaintiff contends that, although defendants are constitutionally entitled to an impartial jury, they have the burden of proving prejudice from pretrial publicity. Stroble v. California (1952), 343 U.S. 181 72 S.Ct. 599, 96 L.Ed. 872. Also, the convictions overturned in recent cases are factually distinguishable from the present appeal. The decisional basis in Irvin v. Dowd (1961), 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, was prejudicial publicity, which denied a fair and impartial jury, but actual prejudice was shown by the admission by eight jurors of pretrial belief in defendant's guilt. In Marshall v. United States (1959), 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250, prejudice was occasioned by newspaper accounts of inadmissible evidence which reached the jurors. In Rideau v. Louisiana (1963), 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663, three jurors admitted viewing a televised confession. Plaintiff states that in the present controversy, defendants do not allege that any juror contravened his sworn oath and admitted a predetermined opinion of defendants' guilt, or that inadmissible evidence or confessions reached the jurors during the proceedings via the communications media. Plaintiff claims, therefore, that no actual prejudice was shown, particularly if the facts are viewed according to the tenor of the following:

'It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.' Irvin v. Dowd, Supra, p. 722, 81 S.Ct. p. 1642.

Plaintiff concedes, however, that proof of identifiable prejudice need not be shown where the atmosphere of the proceedings creates a high probability of prejudice and thus is inherently lacking in due process, as indicated by the celebrated cases of Estes v. Texas (1965), 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 and Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. But plaintiff explains that there was neither the courtroom intrusion of Estes, nor the carnival atmosphere of Sheppard in the present matter. However, the record depicts an earnest attempt by the trial judge to establish and maintain an impartial tribunal through juror dismissal and admonition, a fact that defendants' counsel acknowledged and applauded during the trial. Also, the venue was changed on defendants' motion. Consequently, plaintiff reduces defendants' contentions to a claim that the considerable publicity involved in their arrest and trial was sufficient to deprive them of a constitutionally guaranteed fair trial. In conclusion, plaintiff submits that extensive publicity does not constitute, Per se, reversible error.

We note that defendants did not allege or prove actual jury prejudice, and the court liberally excused jurors who expressed opinions as to whether the publicity would influence the verdict. Therefore, the scope of our inquiry is narrowed to whether the extensive news coverage substantially affected the proceedings and thus, a fair and impartial trial was precluded. We find that defendants were not prejudiced by publicity and received a fair trial. Our decision is based on the fact that defendants did not demonstrate sufficient community prejudice or hostility, as established by media publicity, from which a...