People v. O'Brien

• Decision Date: 01 May 1979
• Docket Number: Docket No. 77-3389
• Citation: 282 N.W.2d 190,89 Mich.App. 704
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Larry O'BRIEN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 190

282 N.W.2d 190

89 Mich.App. 704

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Larry O'BRIEN, Defendant-Appellant.

Docket No. 77-3389.

Court of Appeals of Michigan.

May 1, 1979.

Released for Publication Aug. 22, 1979.

Polasky & Ladue by Carlton R. Roeser, Bloomfield Hills, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Counsel, Pontiac, Thomas S. Richards, Asst. Pros. Atty., for plaintiff-appellee.

Before WALSH, P. J., and T. M. BURNS and HOLBROOK, JJ.

T. M. BURNS, Judge.

Defendant was convicted by a jury of first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, on July 26, 1977, and given the mandatory sentence of life imprisonment. Appellate counsel was routinely appointed and a brief raising a number of issues was filed with this Court. Defendant filed a brief on his own behalf raising additional issues. We affirm the first-degree murder conviction.

I

Just before the process of picking a jury began, defendant announced that he wished to have a particular attorney appointed to replace the attorney then serving him. Defendant listed six objections to continuing with his then present attorney. The opportunity for defense counsel to act on several of the points raised by defendant, such as questioning witnesses or objecting to prospective jurors, had not yet occurred. Defendant made no factual record supporting the other allegations, either at that time or before this appeal. See, People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973). After an extended discussion with defendant and his attorney, the trial court denied defendant's request.

The rules governing this question are well settled. As stated in People v. Bradley, 54 Mich.App. 89, 95, 220 N.W.2d 305, 309 (1974):

"An indigent defendant is entitled to counsel. He is not entitled to counsel of his choice nor is he entitled to different counsel whenever and for whatever reason dissatisfaction arises with counsel provided for him. People v. Henley, 26 Mich.App. 15, 26, 182 N.W.2d 19 (1970); People v. Grenier, 34 Mich.App. 93, 190 N.W.2d 742 (1971); People v. Williams, 2 Cal.3d 894, 88 Cal.Rptr. 208, 471 P.2d 1008 (1970); People v. Bentley, 47 Mich.App. 150, 209 N.W.2d 333 (1973). A defendant is only entitled to a substitution of appointed counsel when discharge of the first attorney is for 'good cause' and does not disrupt the judicial process. People v. Wilson, 43 Mich.App. 459, 204 N.W.2d 269 (1972); People v. Holcomb, 47 Mich.App. 573, 209 N.W.2d 701 (1973)."

What circumstances will show "good cause" for substituting appointed counsel depends on the facts and circumstances of each case and we reverse a trial court's determination only for an abuse of discretion. People v. Hernandez, 84 Mich.App. 1, 269 N.W.2d 322 (1978). A complete breakdown of the attorney-client relationship or disagreement over whether a particular line of defense should be pursued may justify appointing new counsel. People v. Hooper, 82 Mich.App. 713, 267 N.W.2d 162 (1978) (disagreement over alibi defense), People v. Wilson, 43 Mich.App. 459, 204 N.W.2d 269 (1972), Lv. den., 393 Mich. 813 (1975) (communication between attorney and client had ceased). The problems in this case never reached that magnitude. The points raised by defendant, which are factually supported, can best be characterized as raising questions of professional judgment or trial strategy. These are matters entrusted to the attorney and do not justify substitution of counsel. People v. Thompson, 41 Mich.App. 272, 199 N.W.2d 859 (1972), Lv. den., 388 Mich. 777 (1972), People v. Bentley, 47 Mich.App. 150, 209 N.W.2d 333 (1973). The trial court did not abuse its discretion in refusing to appoint substituted counsel.

II

Defendant next contends that the trial court erred in refusing a defense request to change venue from Oakland County. Defendant had been labeled a murderer in a brochure prepared by the prosecutor of Oakland County criticizing the release of convicts prior to the expiration of their stated minimum term. ¹ Distribution of the brochure with defendant's picture and a description of this offense was enjoined on defense counsel's motion. There is no indication in this record of how widely the brochure was distributed before the trial court acted.

The trial court took the motion to change venue under advisement until an attempt was made to select an impartial jury. The trial court excused all prospective jurors who were familiar with the brochure. A jury acceptable to defense counsel was selected before all peremptory challenges were exercised. The record shows that defendant actively participated in selecting the jury. The selection process took less than one day with relatively few jurors having been excused because of familiarity with the case or the prosecutor's brochure.

Under established precedent, a trial court commits no error in waiting until an attempt has been made to select a jury before ruling on a motion for a change of venue. People v. Swift, 172 Mich. 473, 138 N.W. 662 (1912). The reason for the rule is well illustrated by this case. A jury was selected rather quickly and as selected, was free from apparent bias or prejudice. The widespread prejudice relied upon in seeking the motion to change venue seems not to have existed at all. On this record we hold that the trial court did not abuse its discretion in denying the motion to change venue. People v. Nard, 78 Mich.App. 365, 260 N.W.2d 98 (1977); People v. Hughes, 85 Mich.App. 8, 270 N.W.2d 692 (1978).

III

Relying principally on People v. Hoffmeister, 394 Mich. 155, 229 N.W.2d 305 (1975), and People v. Morrin, 31 Mich.App. 301, 187 N.W.2d 434 (1971), Lv. den., 385 Mich. 775 (1971), defendant contends that the trial court erred in submitting the charge of first-degree murder to the jury. Under defendant's view of the evidence there was no evidence of premeditation and deliberation. The prosecution counters that, although the evidence is entirely circumstantial, it was sufficient to allow the jury to infer premeditation and deliberation.

Premeditation and deliberation need not be established by direct evidence. That defendant had the appropriate state of mind may be inferred from all the facts and circumstances. The inferences must have support in the record, however, and not be arrived at by mere speculation. People v. Hoffmeister, supra. If, upon consideration of the prosecution's case, a jury could reasonably infer that the murder was done willfully and with premeditation and deliberation, we must affirm their verdict. People v. Moss,70 Mich.App. 18, 41, 245 N.W.2d 389 (1976) (opinion of M. J. Kelly, J.), Lv. gtd, 399 Mich. 889 (1977). See, People v. Palmer, 392 Mich. 370, 220 N.W.2d 393 (1974).

The evidence in this case shows that the victim disappeared on the morning of November 5, 1976. She had been slow in preparing herself for school and had missed the bus. On such occasions she had been known to hitchhike to school. She was not in school that day, nor did she appear for work that afternoon. Her body was discovered the next morning by hunters, partially covered by trees and bark, in an undeveloped area of Oakland County. The killer had gone to considerable trouble to conceal the body.

Examination of the body showed that two weapons had been used to effectuate death. The victim had been struck in the head at least twice with a blunt, heavy object. ² The skull was shattered in many pieces and crushed. Medical testimony also established that the victim's throat had been slashed after the blows to the head. ³ The wound was sufficiently deep to sever the carotid artery, the jugular vein and the voice box. The second cut on the neck was superficial. The victim had had sexual intercourse within 24 hours of her death, but it was not shown that she had been raped. ⁴

It was not shown that the victim and defendant knew each other, although it was shown defendant's girlfriend and she had worked in the same factory in the past. The prosecutor's theory was that defendant had picked up the victim as she hitchhiked to school. The circumstantial evidence, discussed in the search and seizure issues below, tended to show that the victim had been in defendant's car. It would also support the conclusion that there had been a struggle in the car, but that the victim was taken from the car, tied up and then killed in the field.

Unlike the conclusion in the cases relied upon by defendant, we conclude that the above-described evidence is sufficient to support the first-degree murder conviction. Although it does not compel the conclusion that the acts were done with premeditation and deliberation, ⁵ the evidence is sufficient to avoid saying that the jury's verdict was based on mere speculation. The area where the acts occurred and the evidence of sexual contact, compare People v. Hoffmeister, supra, the fact that two weapons were used, the nature of the wounds, and that the victim had possibly been bound, People v. Vertin, 56 Mich.App. 669, 224 N.W.2d 705 (1974); People v. Treadwell, 63 Mich.App. 299, 234 N.W.2d 494 (1975), all tend to indicate a plan and reflection. There was no error in submitting the first-degree murder charge to the jury.

IV

The defense contends that the initial seizure and impounding of defendant's car was improper, rendering the evidence discovered in the subsequent search, ⁶ pursuant to a warrant, inadmissible. The people advance several theories in support of the validity of the police action. As in all Fourth Amendment questions, our resolution of the dispute depends on the facts.

On the morning the body was discovered, the Michigan State Police Sergeant who was apparently in charge of the investigation talked to a private investigator, Mr. Joseph Booth, near the site where the body was discovered. ⁷ Booth told the sergeant that on the morning of the previous day he...