People v. Jendrzejewski

• Court: Michigan Supreme Court
• Writing for the Court: BOYLE; MALLETT, C.J., and RILEY and MARILYN J. KELLY, JJ., concurred with BOYLE; WEAVER; BRICKLEY; Gotham; MICHAEL F. CAVANAGH, J., concurred with BRICKLEY
• Citation: People v. Jendrzejewski, 455 Mich. 495, 566 N.W.2d 530 (Mich. 1997)
• Decision Date: 29 July 1997
• Docket Number: Docket No. 103374,No. 13,13
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Mark Louis JENDRZEJEWSKI, Defendant-Appellee. Calendar

Page 530

566 N.W.2d 530

455 Mich. 495

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Mark Louis JENDRZEJEWSKI, Defendant-Appellee.

Docket No. 103374.

Calendar No. 13.

Supreme Court of Michigan.

Argued Jan. 14, 1997.

Decided July 29, 1997.

[455 Mich. 496] Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Wayne M. Groat, Prosecuting Attorney, and J. Ronald Kaplansky, Assistant Attorney General, Lansing, for the People.

State Appellate Defender by Corinne Beckwith Yates, Detroit, for Defendant-Appellee.

Paul J. Denenfeld Detroit, amici curiae, for the American Civil Liberties Union Fund of Michigan.

Michael D. Thomas, President, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Janice M. Joyce Bartee, Assistant Prosecuting Attorney, Detroit, for the Prosecuting Attorneys Association of Michigan.

OPINION

BOYLE, Justice.

The Court of Appeals reversed the defendant's conviction of first-degree murder, finding that, under the totality of the circumstances, as a result of pretrial publicity reflected in the number of jurors successfully challenged for cause, the defendant was denied a fair trial before impartial jurors. We granted leave to appeal to decide if the Court of Appeals erred in finding that the trial court abused its discretion in denying defendant's motion for change of venue.

The degree of pretrial publicity was not excessive, and its contents were not of a prejudicial nature. Nor did the percentage of array members excused for cause create a presumption of community bias. There is nothing in the record to indicate that the jury panel as constituted was unable to set aside any preconceived notions of guilt and render a verdict solely on the basis of the evidence presented. After an initial group voir dire, a thorough and probing sequestered voir dire to uncover potential juror bias was conducted with each prospective juror by the court and by trial counsel, and challenges for cause were liberally granted.

I would vacate the decision of the Court of Appeals and remand this case for determination of the defendant's remaining issues.

I. Facts and Procedure

The jury found defendant Mark Jendrzejewski guilty of two counts of first-degree murder for the shooting deaths of Bette Vernetti and Jeff Chlebowski. He was sentenced to mandatory terms of life in prison. Defendant was the only suspect in the shootings, and there was substantial circumstantial evidence linking him to the crime. The case was tried in Gogebic County, in which the small town of Bessemer, the vicinage community and site of the deaths, is located. The victims, the defendant, and their respective families were known to many of the prospective jurors, and there was newspaper, radio, and television coverage of the crime.

The case was assigned to Gogebic Circuit Court Judge Roy Gotham, who granted the defendant's motion for disqualification on the basis of the defendant's allegation that in sentencing the defendant in a prior proceeding involving an assault on Bette Vernetti, he stated that the defendant was a "dangerous human being." ¹ Judge Garfield Hood was assigned to preside over the trial. A defense motion for change of venue was denied. Judge Hood acknowledged his concern regarding the media influence on potential jurors, but indicated that it was his duty to attempt to seat a jury in Gogebic County. ² With the input and assistance of both prosecution and defense counsel, the judge conducted a general group voir dire of each of the three panels. The initial inquiries were directed to whether any prospective juror was related to or had a close acquaintance with the victims or their families, the defendant or his family, the witnesses, or the attorneys, and whether a prospective juror had an opinion regarding credibility of the witnesses for either side, was unable to be impartial, was unwilling to follow the judge's instructions of law, or had personal reasons requiring excuse from the panel. Following this inquiry and excusal of members of the array, the remaining venire persons were sequestered and defense counsel and the prosecutor conducted individual voir dire to determine the influence of pretrial publicity and any leaning the potential juror might harbor either for or against the defendant that had not been evident from the general group questioning.

From a pool of 119 potential jurors, ³fourteen were selected. The jury deliberated for three days before finding the defendant guilty.

II. Abuse of Discretion

It is the general rule that defendants must be tried in the county where the crime is committed. ⁴ An exception to the rule provides that the court may, in special circumstances where justice demands or statute provides, change venue to another county. ⁵ A motion for change of venue is addressed to the discretion of the trial judge. "[T]he court's action in ordering such a change or refusing it is discretionary, and not to be disturbed on review, unless there clearly appears a palpable abuse of discretion." People v. Swift, 172 Mich. 473, 480, 138 N.W. 662 (1912).

Federal precedent has used two approaches to determine whether the failure to grant a change of venue is an abuse of discretion. Community prejudice amounting to actual bias has been found where there was extensive highly inflammatory pretrial publicity that saturated the community to such an extent that the entire jury pool was tainted, and, much more infrequently, community bias has been implied from a high percentage of the venire who admit to a disqualifying prejudice. United States v. Angiulo, 897 F.2d 1169, 1181-1182 (C.A.1, 1990). In the instant case, neither pretrial publicity, nor a statistical analysis supports the claim that defendant was deprived of a fair trial.

III. Pretrial Publicity

The Court of Appeals appears to have based its conclusion that defendant was deprived of a fair jury on the ground that extensive pretrial publicity had an adverse effect on this sparsely populated rural community. "The right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). ⁶ Thus, the initial question is whether the effect of pretrial publicity on a relatively small jury pool, all of Gogebic County, like all of Gibson County in Irvin, was such "unrelenting prejudicial pretrial publicity [that] the entire community will be presumed both exposed to the publicity and prejudiced by it, entitling the defendant to a change of venue." Mu'Min v. Virginia, 500 U.S. 415, 442, n. 3, 111 S.Ct. 1899, 1914, n. 3, 114 L.Ed.2d 493 (1991), citing Irvin, supra at 727-728, 81 S.Ct. at 1645-1646.

Juror exposure to information about a defendant's previous convictions or newspaper accounts of the crime for which he has been charged does not in itself establish a presumption that a defendant has been deprived of a fair trial by virtue of pretrial publicity. "To resolve [such a] case," a reviewing court "must turn ... to any indications in the totality of circumstances that petitioner's trial was not fundamentally fair." Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975). The Supreme Court has recognized the difficulty highly publicized cases present and the primary role of trial judges in these cases. In Mu'Min v. Virginia, supra at 427, 111 S.Ct. at 1906, the Court acknowledged:

[O]ur own cases have stressed the wide discretion granted to the trial court in conducting voir dire in the area of pretrial publicity and in other areas of inquiry that might tend to show juror bias. Particularly with respect to pretrial publicity, we think this primary reliance on the judgment of the trial court makes good sense. The judge of that court sits in the locale where the publicity is said to have had its effect and brings to his evaluation of any such claim his own perception of the depth and extent of news stories that might influence a juror. The trial court, of course, does not impute his own perceptions to the jurors who are being examined, but these perceptions should be of assistance to it in deciding how detailed an inquiry to make of the members of the jury venire.

The Court of Appeals asserted that "[i]t is undisputed that there was an enormous amount of pretrial publicity concerning this case...." Unpublished opinion per curiam, issued April 6, 1995 (Docket No. 168041), slip op at 1. We disagree. Our independent review of the pretrial publicity does not lead to the conclusion that it was either extensive or prejudicial. The definition of extensive publicity is necessarily relative. However, we cannot conclude as a matter of law that a community has been saturated with publicity by twenty newspaper articles published in The Ironwood Daily Globe on seventeen separate days over a period of seven months. Further, the record does not substantiate the dissent's posture that radio and television reports were pervasive to the extent that these broadcasts influenced the jury pool. Slip op at 7 The record reveals that while there was some limited television and radio coverage identifying the crime, the victims, and the defendant, the jury voir dire established that very few jurors had any discernable recall of what they had seen or heard on these broadcasts.

The actual amount, geographic scope, and the tenor of the publicity is neither extensive, intensive, nor potentially inflammatory ⁷ when compared to federal ⁸ and state cases in which the right to a fair trial has been of concern. For example, in People v. DeLisle, 202 Mich.App. 658, 668, 509 N.W.2d 885 (1993), there were in excess of one hundred newspaper articles published over a period of ten months. In People v. Tyburski, 445 Mich. 606, 646, 518 N.W.2d 441 (1994), the scope of publicity was extensive, encompassing not only local, but national and international newspapers...