People v. Fletcher, Docket No. 229092.

• Decision Date: 04 May 2004
• Docket Number: Docket No. 229092.
• Citation: 679 N.W.2d 127,260 Mich. App. 531
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael John FLETCHER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

679 N.W.2d 127

260 Mich. App. 531

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael John FLETCHER, Defendant-Appellant.

Docket No. 229092.

Court of Appeals of Michigan.

Submitted February 5, 2003, at Detroit.

Decided February 10, 2004, at 9:10 a.m.

Released for Publication May 4, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Anica Letica, Assistant Prosecuting Attorney, for the people.

Brian M. Legghio, Mt. Clemens, for the defendant.

Before: ZAHRA, P.J., and FORT HOOD and SCHUETTE, JJ.

ZAHRA, P.J.

Defendant appeals as of right his jury trial convictions of second-degree murder, MCL 750.317, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to life in prison for the second-degree murder conviction, to be served consecutively to two years' imprisonment for the felony-firearm conviction.

Defendant raises six issues on appeal, one of which requires us to consider whether defendant's convictions should be set aside and a new trial granted or, in the alternative, whether defendant is entitled to an evidentiary hearing to determine whether defendant should be granted a new trial because of juror misconduct. Defendant relies on a nationally televised ABC television broadcast entitled 20/20 Downtown to argue that the jury impermissibly conducted an experiment during jury deliberations that tainted the jury verdict. Accepting as true ABC's description of the jury's deliberations, we conclude the trial court properly denied defendant's motion for a new trial and request for an evidentiary hearing. The experiment about which defendant complains was nothing more than a reenactment by the jury of the events about which the jury heard testimony. Such conduct does not undermine a verdict, even if the jury's reenactment proves to be inconsistent with or contrary to the actual evidence presented at trial. We conclude there is no merit to this or any other issue presented by defendant. We affirm.

I. Facts and Procedure

Defendant and the victim, Leann Fletcher, were married in 1993 and had a daughter in 1995. In 1997, defendant became involved in an extramarital affair with Susan Chrzanowski, a local district judge. Thereafter, defendant exhibited a pattern of vacillation between continuing his marriage and ending his marriage to pursue his relationship with Chrzanowski. Defendant separated from Leann twice after August 1998, but reconciled and returned to the marital home both times. During this time, Chrzanowski informed defendant she was unwilling to continue her involvement with him if he were sexually active with Leann. Defendant assured Chrzanowski that he was not sexually active with Leann and that divorce was inevitable.

On the afternoon of August 16, 1999, defendant and Leann went to a shooting range. Defendant, who had owned a .45 caliber Smith & Wesson pistol for almost a year, had never before taken Leann to a shooting range. Defendant and Leann left the shooting range after Leann had fired the gun once. Shortly after returning home, defendant called 911 and reported that Leann had shot herself. Defendant informed the dispatcher that they had just returned from the shooting range and that the gun discharged while Leann attempted to reload it. Leann was dead before emergency medical services personnel and the police arrived.

The police immediately obtained a warrant that, in pertinent part, authorized the police to search and seize "[e]vidence of a fatal shooting including but not limited to any and all weapons and ammunition, spent casings, blood and/or any objects which may be on the premises which appear to have blood stains upon them...." While executing the search warrant, Police Sergeant Thomas Cleyman found a complaint for divorce in defendant's desk and seized it, concluding it constituted evidence of a motive to murder Leann. Sergeant Cleyman then discovered photographs and correspondence between Chrzanowski and defendant and greeting cards of a romantic nature, all of which were contained in a brown, expandable envelope found in the closet of an upstairs bedroom that defendant used as a home office. Sergeant Cleyman seized the envelope and its contents, concluding they were evidence of an extramarital relationship, which also constituted evidence of a motive to murder Leann. Thereafter, defendant was arrested for Leann's murder.

Defendant was charged with first-degree murder, MCL 750.316, assault of a pregnant individual with the intent of causing a miscarriage or stillbirth, MCL 750.90a, and two counts of felony-firearm, MCL 750.227b. The district court bound defendant over on all the charges. In the circuit court, defendant moved to suppress the contents of the brown, expandable envelope seized by Sergeant Cleyman from defendant's home office, arguing Sergeant Cleyman did not have probable cause to believe the envelope contained any of the items enumerated in the search warrant. The trial court denied defendant's motion to suppress the evidence, concluding the contents of the envelope were properly seized under the plain view doctrine.

Defendant also moved to quash the charge of assault with intent to cause a miscarriage. Defendant argued, among other things, that there was no evidence a miscarriage occurred, because the dissolution of an embryo at an early stage was not a stillbirth or miscarriage as required under the statute. The trial court denied the motion¹ and the case proceeded to trial.

After the prosecution rested its case, the trial court granted defendant's motion for a directed verdict on the charge of assault with intent to cause a miscarriage, because the medical examiner had testified that Leann did not undergo either a stillbirth or a miscarriage as those terms are medically understood. The case was presented to the jury on the remaining charges of first-degree murder and felony-firearm. The jury returned a verdict of guilty of the lesser included offense of second-degree murder and felony-firearm.

In November 2000, more than four months after the jury rendered its verdict, ABC aired the 20/20 Downtown broadcast. The episode was entitled "Final Verdict" and featured defendant's trial. It appears only ten of the twelve jurors who rendered the verdict were interviewed in conjunction with this television production.² The broadcast represented that at the early stages of deliberation, eight jurors believed defendant was guilty. The broadcast reported that while the jurors were skeptical of the prosecution's evidence, most of the jurors were convinced defendant sounded insincere in his 911 call. The broadcast further reported that additional deliberations persuaded all but one juror that defendant was guilty.

The hold-out juror, according to the broadcast, became convinced of defendant's guilt when the jury used the gun that inflicted the fatal wound to conduct several reenactments of the events about which testimony was offered.³ The television broadcast suggested these reenactments caused at least the hold-out juror and perhaps other jurors to conclude that the location of the gun at the crime scene did not support the conclusion that Leann shot herself. Therefore, the hold-out juror concluded defendant must have shot Leann.

Following the broadcast, defendant moved for a new trial on the ground of juror misconduct during deliberations. Defendant argued that jurors' reenactments amounted to extrinsic evidence of unreliable and improper experiments that strongly influenced the jury to convict him. Defendant argued, in the alternative, that an evidentiary hearing should be conducted to investigate whether there was juror misconduct. The trial court denied the motion for a new trial and for an evidentiary hearing, concluding that the only evidence defendant presented in support of his claim of juror misconduct was the videotape of the 20/20 Downtown broadcast, which was inadmissible hearsay evidence. The trial court further found that even if the jury deliberated in the manner depicted in the television broadcast, the jurors' conduct was not improper. This appeal followed.

II. Analysis

A. Juror Misconduct During Deliberations

Defendant argues that the trial court erred in denying his motion for a new trial or an evidentiary hearing based on juror misconduct arising from the consideration of extrinsic evidence produced outside the trial proceedings. Defendant alleges this behavior deprived him of his Sixth Amendment rights of confrontation, to cross-examination, and to the assistance of counsel.⁴ Moreover, defendant maintains that the jury, through its consideration of extrinsic evidence, impermissibly shifted the burden of proof to defendant. Initially, we conclude, as did the trial court, that defendant failed to present admissible evidence in support of his motion for a new trial. The videotape of ABC's 20/20 Downtown broadcast is inadmissible hearsay evidence that cannot support a claim of juror misconduct. People v. Budzyn, 456 Mich. 77, 92 n. 14, 566 N.W.2d 229 (1997). Defendant responds that, at a minimum, he should be entitled to an evidentiary hearing to determine whether the representations in the ABC broadcast are meritorious. However, remanding this case for an evidentiary hearing on this point would be futile. As more fully explained in this opinion, even if we accept as true defendant's account of the jurors' deliberations, defendant has nonetheless failed to demonstrate that the verdict was affected by impermissible extrinsic evidence.

Traditionally, the "near-universal and firmly established common-law rule in the United States flatly prohibited the admission of juror testimony to impeach a jury verdict." Tanner v. United States, 483 U.S. 107, 117, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), citing 8 Wigmore, Evidence (McNaughton rev ed, 1961), § 2352,...