People v. Cline

• Decision Date: 18 September 2007
• Docket Number: Docket No. 268604.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stephen Harold CLINE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

741 N.W.2d 563

276 Mich. App. 634

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stephen Harold CLINE, Defendant-Appellant.

Docket No. 268604.

Court of Appeals of Michigan.

Submitted August 8, 2007, at Detroit.

Decided September 18, 2007, at 9:00 a.m.

Released for Publication November 27, 2007.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Mark Gaertner, Prosecuting Attorney, and Nancy Mullett, Special Assistant Attorney General, for the people.

State Appellate Defender (by Randy E. Davidson), Detroit, for the defendant.

Before: DAVIS, P.J., and SCHUETTE and BORRELLO, JJ.

SCHUETTE, J.

Defendant appeals as of right his December 22, 2005, jury conviction of one count of kidnapping, MCL 750.349, and 17 counts of first-degree vulnerable-adult abuse, MCL 750.145n(1). Defendant was sentenced to concurrent prison terms of 25 to 40 years for kidnapping and 10 to 15 years on each count of first-degree vulnerable-adult abuse. Defendant received 241 days' credit for time served in jail. We affirm.

I. FACTS

This case arises out of defendant's abuse of his wife, Linda Cline, who is completely blind and is a brittle, type I diabetic.¹ Linda and defendant first met in January 2001 at the Commission for the Blind training school in Kalamazoo, Michigan.² They started a romantic relationship at the end of January 2001, and they married on September 21, 2002.

After being hospitalized in April 2005, Linda had trouble speaking. She wondered if she had been deprived of oxygen or had suffered a stroke. Shortly thereafter, while cleaning her and defendant's apartment, Linda discovered ropes and a digital camera, which, after asking a friend to examine it, she learned contained photos of her hogtied, nude, and lying face down.³ Linda also discovered three videotapes, one of which depicted several incidences of her being tied up or bound, either naked or scantily clad, with a bag over her head, struggling to breathe. Defendant appeared in some of the scenes. Linda did not recall making the videotape, and she did not consent to it. During a police interview, defendant stated that, except for one occasion, these activities were consensual and that he was sexually aroused by them.

II. EFFECTIVE ASSISTANCE OF COUNSEL

Defendant first argues that he was deprived of his right to the effective assistance of counsel when defense counsel failed to move for a change of venue in this case. We disagree.

A. Standard of Review

The determination whether a defendant has been deprived of the effective assistance of counsel presents a mixed question of fact and constitutional law. People v. LeBlanc, 465 Mich. 575, 579, 640 N.W.2d 246 (2002). The court must first determine the facts and then decide whether those facts constitute a violation of the constitutional right to the effective assistance of counsel. Id. The trial court's factual findings are reviewed for clear error, while its constitutional determinations are reviewed de novo. Id.

B. Analysis

An accused's right to counsel encompasses the right to the "effective" assistance of counsel. U.S. Const. Am. VI; Const. 1963, art. 1 § 20; Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Reversal of a conviction is required where counsel's performance falls below an objective standard of reasonableness, and the representation so prejudices the defendant as to deprive him of a fair trial. Strickland, supra at 687-688, 104 S.Ct. 2052. The defendant must overcome the presumption that counsel's actions were based on reasonable trial strategy. Id. at 689, 104 S.Ct. 2052. "[T]his Court will not substitute its judgment for that of counsel regarding matters of trial strategy." People v. Davis, 250 Mich.App. 357, 368, 649 N.W.2d 94 (2002). However, counsel will still be found ineffective on the basis of a strategic decision if the strategy employed was not a sound or reasonable one. People v. Dalessandro, 165 Mich.App. 569, 577-578, 419 N.W.2d 609 (1988).

In this case, the trial court drew 56 prospective jurors. Twenty (36 percent) were excused for cause after they admitted to being exposed to pretrial publicity and having already formed an opinion of defendant's guilt. Defendant asserts that eight of the 12 deliberating jurors⁴ (67 percent) admitted that they had heard about the case before trial. Although the record does not indicate which 12 members of the selected jury panel of 14 ultimately decided the case, the record does confirm that nine of the 14 jurors admitted they had heard about the case before trial.

"Whether a defendant's conviction will be reversed depends on whether, under the `totality of circumstances,' the defendant's trial `was not fundamentally fair' and held before `a panel of impartial, "indifferent" jurors.'" People v. DeLisle, 202 Mich.App. 658, 665, 509 N.W.2d 885 (1993), quoting Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). "[I]t remains open to the defendant to demonstrate `the actual existence of [a preconceived notion regarding guilt or innocence] in the mind of the juror as will raise the presumption of partiality.'" Murphy, supra at 800, 95 S.Ct. 2031 quoting Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). "[T]he general rule [is] that where potential jurors can swear that they will put aside preexisting knowledge and opinions about the case, neither will be a ground for reversing a denial of a motion for a change of venue." DeLisle, supra at 662, 509 N.W.2d 885. "[W]hen citizens have been sworn to tell the truth, and testify under oath that they can be impartial, the initial presumption is that they are honoring their oath and are being truthful." Id. at 663, 509 N.W.2d 885.

"Indicia of impartiality—such as a professed lack of knowledge about the case or claims that an opinion could be set aside—might be disregarded where the general atmosphere in the community or the courtroom is sufficiently inflammatory," as indicated by a prevalence of persons with preconceptions of the case, which is demonstrated by prospective jurors with such preconceptions and inflammatory media coverage. DeLisle, supra at 666-669, 509 N.W.2d 885. However, "[t]he existence of pretrial publicity, standing alone, does not necessitate a change of venue." People v. Passeno, 195 Mich.App. 91, 98, 489 N.W.2d 152 (1992), overruled on other grounds by People v. Bigelow, 229 Mich.App. 218, 581 N.W.2d 744 (1998).

Rather, ... [a] defendant must show that there is either a pattern of strong community feeling against him and that the publicity is so extensive and inflammatory that jurors could not remain impartial when exposed to it, or that the jury was actually prejudiced or the atmosphere surrounding the trial was such as would create a probability of prejudice.

When a juror, although having formed an opinion from media coverage, swears that he is without prejudice and can try the case impartially according to the evidence, and the trial court is satisfied that the juror will do so, the juror is competent to try the case. [Id. at 98-99, 489 N.W.2d 152 (internal citations omitted).]

The defendant in DeLisle was convicted of four counts of first-degree premeditated murder, MCL 750.316, and one count of attempted first-degree murder, MCL 750.91, stemming from having driven a station wagon occupied by his wife and four children into the Detroit River. DeLisle, supra at 659, 509 N.W.2d 885. Nearly 100 news articles were published about the killings in the months leading up to the June 1990 trial. Id. at 668, 509 N.W.2d 885. Defendant in the case at hand has submitted as evidence of prejudice 11 articles about his case published in local newspapers. Six of the articles discuss the facts of the case, including the prosecutors' perceptions of the facts and evidence, and track the procedural status of the case. The other five address the proposal and passage of anti-torture legislation, noting that the legislation was prompted by defendant's case.

The mere existence of these 11 articles is insufficient to show that "the atmosphere surrounding the trial was such as would create a probability of prejudice." Passeno, supra at 98, 489 N.W.2d 152. While the six articles dealing with the case itself discuss more than just its status, they do not "reveal the kind of inflammatory community atmosphere that might sometimes justify disregarding the jurors' claims of impartiality." DeLisle, supra at 669, 509 N.W.2d 885. Only one article is an opinion piece, and that article is specifically focused on the introduction and passage of the anti-torture legislation.

Moreover, in People v. Jendrzejewski, 455 Mich. 495, 517, 566 N.W.2d 530 (1997) (citations and internal quotation marks omitted), the Supreme Court explained as follows:

Consideration of the quality and quantum of pretrial publicity, standing alone, is not sufficient to require a change of venue. The reviewing court must also closely examine the entire voir dire to determine if an impartial jury was impaneled. In Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), the Supreme Court suggested that a proper review includes independent examination of the nature of the publicity surrounding the trial, voir dire testimony of the venire as a whole, and the individual voir dire testimony of the jurors eventually seated. In this state, as in the United States Supreme Court, the general rule holds that if a potential juror, under oath, can lay aside preexisting knowledge and opinions about the case, neither will be a ground for reversal of a denial of a motion for a change of venue.

To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the...