People v. Garland

• Decision Date: 07 December 1972
• Docket Number: No. 1,Docket No. 13105--8,1
• Citation: 44 Mich.App. 243,205 N.W.2d 195
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arville Douglas GARLAND, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 195

205 N.W.2d 195

44 Mich.App. 243

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arville Douglas GARLAND, Defendant-Appellant.

Docket No. 13105--8.

Court of Appeals of Michigan, Division No. 1.

Dec. 7, 1972.

Released for Publication March 20, 1973.

Rehearing Denied Jan. 30, 1973.

Jack J. Kraizman and Sidney Kraizman, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Michael R. Mueller, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and QUINN and O'HARA, ^* JJ.

V. J. BRENNAN, Presiding Judge.

Defendant Arville Douglas Garland was charged in the Recorder's Court for the City of Detroit with the killing of four young people, including his daughter. He was specifically charged with murder in the first degree (M.C.L.A. § 750.316; M.S.A. § 28.548) in the deaths of Sandra Garland (his seventeen-year-old daughter), Scott Kabran, and Gregory Walls. He was charged with second-degree murder (M.C.L.A. § 750.317; M.S.A. § 28.549) in the death of Anthony Brown. The four homicides occurred at about 2 a.m. on the morning of May 8, 1970, in an apartment located at 4330 Lincoln Street in the City of Detroit.

These cases were consolidated and tried together before a jury from November 9, 1970, through December 12, 1970. Evidence introduced at trial indicated that the deceased, Sandra Garland, left home on the Sunday preceding the homicides; she left a note stating her intentions to her parents. Defendant virtually went without sleep during the week, working double shifts, and spending the remainder of his time looking for his daughter. He went to the apartment building twice during that week looking for his daughter and became acquainted with the place. He found out through a paid informer that his daughter was living in apartment number 9. At approximately 2 a.m. on May 8, 1970, he went to the apartment house after arming himself with two guns, because, as he testified, he expected resistance.

When he arrived at the apartment house, accompanied by his wife, he immediately went up to apartment 9 on the second floor of the building, burst open the door and went into the apartment. He flashed a flashlight and saw his daughter, Sandra, with Scott Kabran in one bed in the unde; Gregory Walls was also lying in the nude on a cot near them, and Anthony Brown, also in the nude, was sleeping in the next room. Defendant testified further that he pulled out one of his pistols from his waist and delivered a blow to Scott Kabran's head, accidentally discharging the pistol into his daughter. His wife Martha screamed, 'You killed my baby.' Defendant then claims he lost control of himself and proceeded to shoot his daughter several more times and also killed the three young men in the apartment. He then descended to the first floor apartment of Donna Potts where he shot once through the door and forced his way into the apartment; he could not find Donna Potts. Donna Potts was Sandra Garland's girlfriend who Mr. & Mrs. Garland believed to be responsible for what they considered their daughter's waywardness. The defendant then left the building, got into his automobile, and drove to the Vernor police station in the City of Detroit. He told his wife to drive home; he walked into the station and surrendered himself, informing the police officers that he had just killed his daughter and three 'hippie friends.'

On December 12, 1970, the jury brought in a verdict of second-degree murder (M.C.L.A. § 750.317; M.S.A. § 28.549) in the three cases involving the deaths of Scott Kabran, Gregory Walls, and Anthony Brown; the jury returned a verdict of manslaughter (M.C.L.A. § 750.321; M.S.A. § 28.553) in the case involving the death of Sandra Garland. On December 18, 1970, the court sentenced defendant to prison terms of from 10 to 40 years on the charges of second-degree murder and 10 to 15 years on the charge of manslaughter. Defendant appeals his conviction.

Defendant's first argument is that the trial court erred by failing to allow a sufficient number of peremptory challenges. The right to challenge members of the jury peremptorily is statutory in origin; the relevant Michigan statute provides:

'Any person who is put on trial for an offense punishable by death or imprisonment for life, shall be allowed to challenge peremptorily 20 of the persons drawn to serve as jurors, and no more; and the prosecuting officers on behalf of the people shall be allowed to challenge peremptorily 15 of such persons, 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 20 persons returned as jurors, and no more; and the prosecuting officers on behalf of the people shall be allowed to challenge peremptorily as many times 15 of the persons returned as jurors as there may be defendants being so jointly tried.' M.C.L.A. § 768.13; M.S.A. § 28.1036.

The trial court granted the defendant twenty peremptory challenges. The defendant argues that in this case, since he was charged under four separate informations, he should be entitled to twenty peremptory challenges for each information, a total of eighty challenges.

The defendant correctly observes that the only two Michigan cases which even remotely deal with this subject are not on point. Neither People v. Sweeney, 55 Mich. 586, 22 N.W. 50 (1885), nor People v. Bloom, 15 Mich.App. 463, 166 N.W.2d 691 (1969), deal with cases involving charges under several informations, but rather they deal with different counts within one information.

The purpose of statutes such as the one under consideration is to assure the defendant an impartial jury by permitting him to dismiss jurors with no explanation or justification. The Legislature has determined that in certain classes of cases, a certain number of such challenges will suffice to insure the defendant an impartial jury. Merely because the defendant is charged under four separate informations, it does not follow that it will be four times as difficult to empanel an impartial jury. We therefore conclude that the trial court granted the defendant the full number of peremptory challenges to which he was entitled by statute.

Defendant's second argument is that the trial court erred by denying defendant's motion for a change in venue, which motion was made two weeks prior to the trial. The defendant argues that all jurors eventually seated had heard of the case. Defendant contends that the extensive newspaper coverage accorded the case displayed the defendant as a man possessed of an outdated moral code and argues that the community in general is hostile to individuals with such a moral code.

After examining copies of the newspaper reports and the transcript of the Voir dire examination, we conclude that defendant's argument is not well taken. The trial court did not rule on the defendant's motion before attempting to empanel a jury. An examination of the Voir dire transcript indicates that while almost everyone had heard of the case, most individuals possessed only a fleeting recollection of the circumstances. Furthermore the newspaper coverage accorded the incident involved was not highly inflammatory or prejudicial, but direct and straightforward reporting of incidents with little prejudicial editorialization.

This Court's analysis of the venue issue in People v. Jenkins, 10 Mich.App. 257, 261--262, 159 N.W.2d 225 (1968), is both concise and thorough. We regard it as dispositive of this issue and set it forth in full:

'The grant of a change of venue is in the discretion of the trial court. This discretion is limited and capable of review where there is an abuse of discretion manifestly subversive of justice. People v. Swift (1912), 172 Mich. 473, 138 N.W. 662. Discretion in the trial court is not a private, arbitrary or personal discretion, but must be exercised according to the established principles of law. People v. Gage (1915), 188 Mich. 635, 155 N.W. 464. The better rule as to the course of action to be taken where there is a motion for change of venue is reservation of a decision by the trial court on the motion until an attempt has been made to obtain a fair and impartial jury. People v. Dailey (1967), 6 Mich.App. 99, 148 N.W.2d 209.

'Jurors who have heard of or have read of the case, without more, are not disqualified as jurors, and their inclusion does not deny defendant a fair trial. See People v. Quimby (1903), 134 Mich. 625, 96 N.W. 1061; People v. Schneider (1944), 309 Mich. 158, 14 N.W.2d 819; People v. Dailey, supra. A juror who has formed an opinion may not be challenged for cause, providing the opinion is not positive in character, and he may render an impartial verdict. CL 1948, § 768.10 (Stat.Ann.1958, Rev. § 28.1033). In this case, all jurors who sat stated that they had no fixed opinion as to the guilt or innocence of the accused and that they could render a fair and impartial verdict.

'Counsel refers us to a decision on due process of law as provided by the 14th Amendment, regarding a fair trial, as binding on our determinations in this matter. It is true that a trial judge may not allow the press to interfere with the course of trial or allow the decision to be based on extraneous publicity. Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. This situation, however, is not alleged to be present in this case. We deal with the problem of prior information and community feeling as affecting a defendant's right to a fair trial. We are referred to and examine in detail the decision of Irvin v. Dowd (1961), 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, and regard it as controlling. In American and Anglo-Saxon jurisprudence there is the invaluable right to jury. It must be a panel of impartial jurors. There must be a fair tribunal which renders a...