People v. Harvey

• Decision Date: 31 May 1988
• Docket Number: Docket No. 85696
• Citation: 167 Mich.App. 734,423 N.W.2d 335
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wayne Lamarr HARVEY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 335

423 N.W.2d 335

167 Mich.App. 734

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wayne Lamarr HARVEY, Defendant-Appellant.

Docket No. 85696.

Court of Appeals of Michigan.

Submitted Feb. 11, 1988.

Decided April 18, 1988.

Released for Publication May 31, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Donald E. Martin, Pros. Atty., and Robert E. Ebersole, Chief Appellate Atty., for the People.

Matthew Posner, Traverse City, for defendant-appellant.

Before CYNAR, P.J., and WEAVER and PAJTAS, ^* JJ.

CYNAR, Presiding Judge.

Following a jury trial in Ingham Circuit Court, on April 26, 1985, defendant was convicted of first-degree felony murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. Defendant was sentenced to life imprisonment on both convictions. He appeals as of right raising eight issues. We affirm.

Defendant's convictions arose out of the October 25, 1984, shooting deaths of East Lansing Police Officer James S. Johnson and homemaker Connie J. Sonnenberg. Defendant and his codefendant, Patricia Louise Ware, were arrested for the shootings.

Ware had been employed as a housekeeper for William Lewis, a resident at a senior citizens apartment building located at 1801 North Hagadorn Road, Apartment 203 in East Lansing. Lewis' car had been stolen earlier and was located by East Lansing Police Officer Dennis Aven in the parking lot of a shopping center near the apartment building. Officer Johnson went to Lewis' apartment and was let in by the building manager, Lawrence Helmer. Ware was in the apartment and Johnson ordered her to sit down. While Johnson was attempting to use the telephone, Ware tried to leave three or four times. As she tried leaving, Johnson grabbed her arm. At that point, Helmer closed the apartment door to prevent her from leaving. Helmer then heard struggling inside the apartment. At that moment, Helmer left and went into apartment 207. As he was entering apartment 207, he heard a gunshot, as did another resident. He then looked out of the peephole of apartment 207 and saw Ware and another person running down the hall.

East Lansing Police dispatcher Greg Van Peenan answered Johnson's call. Johnson told him that Ware was at the apartment and requested assistance. Van Peenan heard people struggling and then the telephone went dead.

Several people testified to seeing a woman matching Ware's description and a man resembling defendant running down the hall of the apartment building, then outside, and down nearby Hart Street.

Johnson's body was later discovered lying on the floor by Helmer and the police officers who had responded to Johnson's earlier request for assistance.

A short time after the pair left the apartment building, they were seen running down Hart Street. Sonnenberg lived at 6071 Hart Street in Meridian Township. Sonnenberg was apparently talking on the telephone to a friend when she asked the friend to hold on while she checked a noise at the front door. The friend heard male and female voices and then the phone went dead.

Hart Street residents saw a black man come out of Sonnenberg's home and get into her car. A black man and a white woman were also seen driving Sonnenberg's car near the corner of Hagadorn Road and Birch Row where defendant and Ware were later arrested.

Sonnenberg's children, Michael and Kristen, testified over defense counsel's objection that they had seen their mother's car at the end of their street. Upon arriving home, they discovered their mother just inside the front door of their home. Kristen testified that she, Kristen, ran outside screaming. A neighbor, Alicia Caceras, telephoned the police.

Brian McDaniel, an expert in canine tracking, testified that his dog followed a scent from the apartment building on Hagadorn to Sonnenberg's home and then to her car where defendant and Ware were subsequently arrested.

Upon being arrested, defendant, while basically cooperative, shouted, "I didn't hurt anybody, I didn't kill anybody." Ware was uncooperative and fought with the police. Ware was carrying Sonnenberg's purse, which contained a handgun. The gun did not belong to Sonnenberg.

When defendant was booked, he gave his name as Rick Davis. Ware had introduced defendant to Lewis as Rick Davis.

Evidence was collected both from Lewis' apartment and Sonnenberg's house. A jacket with defendant's hair on it was found in the apartment bathroom. In the jacket pocket, there were .22 caliber bullets, the type used in the shootings. Defendant's fingerprints were found on a five-dollar bill and a package of cigarette papers that were also in the jacket pocket. Partial prints of defendant's shoes were found in the bathroom of the apartment. Fingerprints were found on Lewis' car matching those of Ware and defendant.

Ware had a powder burn below her waist. A bullet hole was discovered in the pocket of Ware's pants. Defendant had lead residue on the waistband of his pants and on his underwear.

An autopsy was performed on both victims. A bullet was removed from each of their heads. Firearms expert David Townshend compared test shots with the bullets taken from the victims and concluded that they probably came from the same gun.

Before trial, on November 30, 1984, defendant moved for a change of venue based on the publicity that the case had received. A supplemental affidavit was filed on February 25, 1985, containing numerous newspaper articles. The court denied the motion in an order filed March 22, 1985. In its bench opinion, the court stated that it was obligated under the law to first try to impanel an impartial jury. On March 28 1985, defendant moved again for a change of venue. The motion was denied once more. The jury voir dire process was long and the trial judge conducted in chambers individual voir dire of each prospective juror who had heard of the case. Defense counsel made a standing objection to seating any juror who had heard of the case.

After defendant was convicted for both shootings, he moved for a new trial claiming that his convictions were against the great weight of the evidence. The motion was denied in an order filed May 20, 1985. The instant appeal followed.

The first issue raised by defendant centers on whether the trial court erred in denying defendant's motion for a change of venue. Defendant argues that he did not have an impartial jury because there was a pattern of strong community feeling against him due to the extensive and inflammatory publicity preceding his trial. We disagree.

Venue of a criminal case may be changed upon good cause shown by either party. M.C.L. Sec. 762.7; M.S.A. Sec. 28.850. A trial court's determination on a motion for a change of venue is reviewed for an abuse of discretion. People v. Lewis, 162 Mich.App. 558, 564, 413 N.W.2d 48 (1987); People v. Prast (On Rehearing), 114 Mich.App. 469, 476, 319 N.W.2d 627 (1982). It is not an abuse of discretion to defer determination of a request for a change of venue until jury selection has been attempted in the original county; on the contrary, it is considered to be a preferable practice. Lewis, supra, 162 Mich.App. pp. 564-565, 413 N.W.2d 48.

The existence of pretrial publicity does not by itself require a change of venue. 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). The burden rests on the defendant to demonstrate 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 set aside their preconceived notions of guilt, notwithstanding their statements to the contrary. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). The totality of the circumstances, including the content of news accounts and the voir dire examination transcript, should be evaluated on appeal in deciding whether a defendant was deprived of a fair and impartial trial due to local prejudice. People v. Duby, 120 Mich.App. 241, 246-247, 327 N.W.2d 455 (1982).

In this case, our careful review of the voir dire proceedings and the newspaper articles convinces us that defendant did not demonstrate a pattern of strong community feeling or bitter prejudice against him which would have warranted a change of venue. Several of the articles made no reference to defendant or to the murders, but referred solely to the nature of the criminal justice system in general. The others were more concerned about Ware's pretrial proceedings and trial, with mere reference of defendant as her codefendant. Arguably, the most prejudicial headline appeared to be, "Accused Cop Killer Wants Trial Moved From County." However, the article made no conclusions as to defendant's guilt. In fact, none of the articles made any such conclusions and mentioned only that defendant was accused or charged in the killings. In addition, the trial judge questioned in chambers each of the prospective jurors who had possibly heard of the case. We do not believe that the publicity was so extensive and inflammatory that the prospective jurors could not remain impartial. Therefore, defendant has not established error.

Next, defendant alleges error occurred when the trial judge failed to excuse two jurors for cause since they had previous knowledge of the case through pretrial publicity. Defendant argues that jurors Jackson and Sklapsky should have been excused for cause because of their exposure to pretrial publicity. Defendant used all of his preemptory challenges in excusing the two jurors since the court refused to excuse them for cause.

Knowledge of publicity concerning a criminal case does not automatically render a...