People v. Duby

• Decision Date: 06 January 1983
• Docket Number: Docket No. 54713
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vance DUBY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 455

327 N.W.2d 455

120 Mich.App. 241

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vance DUBY, Defendant-Appellant.

Docket No. 54713.

Court of Appeals of Michigan.

Submitted July 13, 1982.

Decided Oct. 6, 1982.

Rehearing Denied Nov. 30, 1982.

Released for Publication Jan. 6, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Kay F. Pearson, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender (by Terence R. Flanagan), Asst. Appellate Defender, for defendant-appellant.

Before ALLEN, P.J., and CYNAR and MARTIN ^*, JJ.

PER CURIAM.

Defendant was jointly tried and convicted with Richard Musselman of two counts of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, two counts of assault with intent to murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). He was sentenced to concurrent life terms of imprisonment on the first four counts and a consecutive two-year term on the felony-firearm conviction.

The charges against defendant Duby, codefendant Musselman, and Harry Varney, who was tried separately, stem from a shooting spree in the Saginaw area during the early morning hours of January 3, 1980. As a result of the spree, Alvin Swiney and Ralph Minerd were dead and Steve Miller and Meredith Davis had been assaulted. The shootings had racial overtones since three of the four victims were black and all three defendants were white.

Defendant took the stand and testified that on January 2, 1980, he, Musselman and Varney were at Musselman's house smoking marijuana and drinking whiskey and beer. Around midnight, defendant took a 12-gauge shotgun and three shells, belonging to his brother, from his house. In his green Nova, defendant, Musselman, Varney and another youth drove to Shiawassee Flats to "shine" deer. After shining deer, defendant took the fourth youth home. Defendant, Musselman, and Varney returned to Musselman's house where Musselman got more shotgun shells and, with defendant driving, they set out to shine deer again. However, as they were driving, Musselman and Varney talked about scaring a car, which defendant understood to mean shooting at its windows. As defendant drove past cars, Musselman shot at the cars, and the three laughed as they drove away, thinking they had scared the drivers. Defendant said he was unaware that anyone had been injured by any of the shootings. Musselman did not testify.

Defendant appeals as of right, raising the following four issues.

I

DID THE TRIAL COURT ABUSE ITS DISCRETION BY DENYING

DEFENDANT'S MOTION FOR A CHANGE OF VENUE BECAUSE

OF EXTENSIVE PRE-TRIAL PUBLICITY?

Prior to trial, defense counsel moved for a change of venue, claiming that pretrial publicity prevented a fair trial. The court denied the motion, stating that an attempt would be made to impanel a jury in Saginaw County and, if it appeared that a jury could not be obtained, the motion could be renewed at that time.

A trial court's determination on a motion for change of venue is reviewed for an abuse of discretion. People v. Prast (On Rehearing), 114 Mich.App. 469, 319 N.W.2d 627 (1982), People v. Swift, 172 Mich. 473, 138 N.W. 662 (1912). It is appropriate for the trial court to reserve a decision on a request for change of venue until jury selection has been attempted in the original county. People v. Prast, supra; People v. Collins, 43 Mich.App. 259, 262, 204 N.W.2d 290 (1972), cert. den. 419 U.S. 866, 95 S.Ct. 121, 42 L.Ed.2d 103 (1974).

The existence of pre-trial publicity does not by itself require a change of venue. People v. Prast, supra; People v. Marsh, 108 Mich.App. 659, 669, 311 N.W.2d 130 (1981). A change of venue is not necessary even though jurors have been exposed to adverse publicity and hold preconceived notions of guilt or innocence, if they can lay aside their impressions or opinions and render a verdict based on the evidence presented in court. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); People v. Marsh, supra, 108 Mich.App. at 667-668, 311 N.W.2d 130.

The burden rests on the defendant to show the existence of actual prejudice or the presence of strong community feeling or a pattern of deep and bitter prejudice so as to render it probable that the jurors could not exclude preconceived notions of guilt, notwithstanding their statements of impartiality. Irvin v. Dowd, supra; Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); People v. Bloom, 15 Mich.App. 463, 166 N.W.2d 691 (1969). The totality of the circumstances, including the content of the news reports and the voir dire examination transcript, must be evaluated on appeal in determining whether a defendant was deprived of a fair and impartial trial because of local prejudice. Irvin v. Dowd, supra, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751; Sheppard v. Maxwell, supra, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600.

On appeal, defendant makes no claim of identifiable prejudice, and our review of the voir dire examination transcript shows no such prejudice. The jury was selected over a period of four days, and the voir dire examination transcript was 536 pages long. After general questioning of the entire venire panel, each prospective juror was examined individually by the trial court, the prosecutor, and both defense attorneys concerning his exposure to adverse publicity and its effect on his ability to render an impartial verdict. Of the 12 jurors who deliberated the case, 2 had never heard of the case, and 7 of the remaining 10 jurors read about the killings at the time of their occurrence in January, 1980, and remembered little about the case. Upon questioning, each of the jurors said that he had not formed a preconceived or fixed opinion or impression of the defendant's guilt or innocence and could render a fair and impartial verdict based on the evidence offered at trial.

Defendant argues that even though every juror who had been exposed to publicity stated that he or she could render a verdict based on the evidence offered at trial, pre-trial media coverage was so extensive and inflammatory as to give rise to a strong community prejudice which was too great to ignore.

Numerous reports about the shootings were carried by local newspapers, radio, and television stations. ¹ The killings were characterized as "wanton", "homicidal craziness", and a "drunken 'spur-of-the moment whim' ". Statements by Varney and Musselman to others were published, which indicated defendant's participation in the crime, including a statement made by Musselman to a detainee in the youth center that the trio had been sitting in Musselman's home getting high and planned to go shooting at black motorists. There were also numerous psychological profiles of Musselman, who was labeled as a triggerman, trouble-maker, alcoholic, drug user, illegitimate and sociopath with long-standing emotional problems who once told his teacher that he did not need to learn to read because he was going to murder a man and be sent to prison. While the focus of the publicity was on Musselman, defendant emphasizes that his fate was intertwined with Musselman's, especially in light of the court's refusal to grant defendant a separate trial. The Saginaw News also ran the results of a poll which asked, "Do you believe the person charged in the recent shotgun slayings could get a fair trial in Saginaw?". While 70 percent of the 344 readers said yes, the yes comments included: "It doesn't really make any difference. The way our judicial system works, their lawyers will find some way to get them off the hook * * * No matter what the verdict the jury gave, the judge would lighten the sentence and the parole would let them back on the streets * * * Thanks to the News articles, it will have to go to another county and cost the taxpayers a lot of extra money."

Although there was considerable adverse publicity and sensationalism, we do not find the presence of such a strong community feeling or bitter prejudice as to render it probable that the jury could not exclude preconceived notions of guilt. Much of the pre-trial publicity occurred in January, 1980, when the crimes were committed, and then again during the trial. There was no media harassment of the jurors at the trial, and the court repeatedly cautioned the jurors during the voir dire and trial not to read media accounts or discuss the case with others. Any deep-seated community feeling against defendant was not shared by the jury. Of 70 prospective jurors examined, only seven percent indicated that they could not render a fair and impartial verdict. By the time of trial, which was held six months after the occurrence of the crime, the impanelled jurors only vaguely remembered the news account, and each juror denied any preconceived impression of the defendant's guilt or innocence. We find no abuse of discretion.

II

DID THE TRIAL COURT ABUSE ITS DISCRETION BY DENYING

DEFENDANT'S MOTION FOR A SEPARATE TRIAL?

Both Duby's and Musselman's attorneys moved several times for a trial separate from Varney's and from each other's. While the prosecutor initially wanted all three defendants tried together, on the first day of trial the prosecutor requested severance for Varney's trial, since references from Varney's pre-trial statement which implicated the other codefendants could not be deleted without destroying the meaning of the statement, and Varney's trial was severed.

A trial judge's decision on a motion for separate trials is reviewed for an abuse of discretion. M.C.L. Sec. 768.5; M.S.A. Sec. 28.1028; People v. Harris, 110 Mich.App. 636, 649, 313 N.W.2d 354 (1981). Since a strong policy favors joint trials, generally a defendant does not have a right to a separate trial. People v. Harris, supra, 648-649, 313 N.W.2d 354; People v. Carroll, 396 Mich. 408, 414, 240 N.W.2d 722 (1976). There must be an affirmative showing of...