People v. Kelly
| Decision Date | 04 April 1986 |
| Docket Number | Docket No. 64363 |
| Citation | 147 Mich.App. 806,384 N.W.2d 49 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leo E. KELLY, Jr., Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William F. Delhey, Pros. Atty., and Marilyn A. Eisenbraun, Asst. Pros. Atty., for the people.
Edison, Davis & Lumumba by Chokwe Lumumba, and Greenspon, Scheff & Washington by Eileen Scheff, of counsel, Detroit, for defendant-appellant.
Before CYNAR, P.J., WAHLS and FINCH, * JJ.
On June 21, 1982, defendant was convicted by a jury of two counts of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. Sentenced to concurrent life prison terms, he appeals as of right.
This case involves an early morning fire bombing and shooting in the sixth-floor hallway of the Douglas wing of Bursley Hall, a predominantly freshman dormitory at the University of Michigan in Ann Arbor. Michael Neumann testified at trial as to how the incident began. He had stayed up Thursday night to type a paper so that he could go home for the Easter weekend. About 3 a.m. Friday, April 17, 1981, Neumann heard defendant enter the hallway and saw him pass by the study-room door. About 6 a.m., Neumann went down the hall to his room to get something with which to kill a bee in the study room. As he passed defendant's room, he met defendant standing in the doorway and asked if defendant was allergic to bees. Defendant replied no and slammed the door. Neumann returned to the study room and stopped at the doorway to look for the bee. Defendant then came running out of his room with a flaming bottle which he threw at Neumann. The bottle bounced, careened off Neumann and broke against the end wall. Neumann yelled and fled down the stairway exit at the end of the hall. A series of fires sprang up in the hallway where the bottle had spilled burning gasoline.
Peter Doerr, a student in one of the rooms near the end of the hallway, heard the glass break and someone yell. He got out of bed and went into the hallway where he saw several fires burning and defendant standing with a sawed-off shotgun held across his body. The gun discharged and Doerr fled back into his room.
Other students in the end rooms were awakened by the commotion and, upon going into the hallway, immediately gave their attention to the fires. Defendant fired two more shots, scattering these students but not wounding any. Other students who were awakened or entering the hallway apparently were unaware that a gun was being fired, but assumed the bangs were explosions. Someone pulled a fire alarm. While some left the hall, others ran about in confusion and still others went from door to door to warn those still oblivious to what was happening. Neumann's roommate awoke Edward Siwick, who in turn began helping to awake others. In the meantime, Douglas McGreaham, a resident advisor, arrived on the floor in response to the fire alarm with another advisor and the supervisor.
Defendant fired two more shots and Siwick and McGreaham fell dead. Defendant then returned to his room where he was arrested. A search warrant was issued and numerous items seized, including a shotgun, ammunition, a gas mask and materials that could be used in the preparation of "Molotov cocktails".
Defendant gave notice of an insanity defense. He was examined regarding criminal responsibility at the Center for Forensic Psychiatry and he claimed that he was suffering amnesia as to the 18 hours immediately preceding his arrest. Defendant did not cooperate with the Forensic Center doctors' wishes to interview him under the influence of sodium brevitol or hypnosis. For that and other failures to cooperate, the prosecutor filed a motion to strike the insanity defense. The proceedings eventually resulted in defendant's agreeing to take a polygraph examination as an initial screening device to test his veracity with respect to the claim of amnesia.
The lie detector test was administered and defendant was questioned only about his claim of amnesia, not about his guilt or sanity. The two Forensic Center doctors assigned to evaluate defendant observed the test and concluded that no further tests were required.
Defendant moved to exclude the results of the polygraph examination and to disallow the testimony of the two doctors, Lynn Blunt and Harley Stock. The court ruled that the doctors could testify as to their opinions formulated prior to the test, but could not "render any opinions based to any extent on the polygraph". The test results were accordingly excluded.
Defendant now contends that the court erred by compelling defendant to submit to the polygraph test and by allowing the doctors to give "tainted" testimony. Defendant argues that the polygraph results effectively reached the jury through the doctors' testimony, and in the worst possible way because the jury was unaware of the doubts which the doctors sought to dispel through the polygraph test.
Defendant was not affirmatively ordered to submit to the polygraph examination. However, if he had refused to take the test, he would have been barred from presenting testimony on insanity at trial. M.C.L. Sec. 768.20a(4), M.S.A. Sec. 28.1043(1)(4). See People v. Hayes, 421 Mich. 271, 364 N.W.2d 635 (1984). We are presented with no sufficient reason, though, why the center may not include a polygraph test in its battery of exams.
Defendant claims the test violated his Fifth Amendment right against self-incrimination. The privilege against self-incrimination turns "upon the nature of the statement or admission or the exposure it invites". Estelle v. Smith, 451 U.S. 454, 462, 101 S.Ct. 1866, 1873, 68 L.Ed.2d 359 (1981). "A plea of not guilty by reason of insanity is not a plea that incriminates." People v. Martin, 386 Mich. 407, 427, 192 N.W.2d 215 (1971), cert. den. sub. nom. Lewis v. Michigan, 408 U.S. 929, 92 S.Ct. 2505, 33 L.Ed.2d 342 (1972). The psychiatric evaluation at the Forensic Center following such a plea is not for the purpose of determining guilt but criminal responsibility. Accordingly, the psychiatric evaluation as mandated by the statute does not itself violate defendant's Fifth Amendment rights. 386 Mich. p. 426-427, 192 N.W.2d 215. Defendant injected the issue of insanity into the case, and his full cooperation at the evaluation is necessary if the prosecutor is to have effective means of meeting defendant's proofs. Estelle, supra, 451 U.S. p. 466, 101 S.Ct. p. 1874.
Defendant claims that the polygraph test was an unreasonable search and seizure violating his Fourth Amendment rights. We remain unconvinced. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 208, 96 L.Ed.2d 183 (1952), and People v. Scott, 21 Cal.3d 284, 145 Cal.Rptr. 876, 578 P.2d 123 (1978), which defendant cites, are readily distinguishable as involving substantial intrusions of the defendants' privacy and dignity, in one case the forcible extraction of stomach contents and in the other the prolonged massage of the prostate gland through the rectum.
On the record before us, we do not perceive that the administration of the polygraph examination was unlawful. Nor do we perceive that it tainted the trial. People v. Towns, 69 Mich.App. 475, 245 N.W.2d 97 (1976), People v. Dockery, 65 Mich.App. 600, 237 N.W.2d 575 (1975), and People v. Liddell, 63 Mich.App. 491, 234 N.W.2d 669 (1975), are not on point. In each of those cases, evidence of polygraph results was injected into the proceedings and it was reasonably likely that the court relied on the evidence in sentencing, determining competency or reaching a plea. In this case, there is no likelihood that the jury relied on the polygraph testing or results because that evidence was suppressed. On the one occasion the court might have relied on the evidence, it chose not to grant the prosecution's motion to strike.
We are persuaded on our review of the record that the testimony of the two Forensic Center doctors was independent of the polygraph testing. The mere fact that they knew of suppressed evidence did not render them incompetent to testify.
Defendant asserts that the trial court erred in denying his motions for change of venue. He argues that he was denied his rights to due process of law and an impartial jury where massive prejudicial pretrial publicity was known to the jury array.
We review for abuse of discretion. People v. Duby, 120 Mich.App. 241, 246, 327 N.W.2d 455 (1982), lv. den. 418 Mich. 967 (1984). The existence of pretrial publicity alone does not necessitate a change of venue. People v. Prast (On Rehearing), 114 Mich.App. 469, 477, 319 N.W.2d 627 (1982). A juror, although having formed an opinion from reading newspaper reports, is competent upon swearing that he or she is without prejudice and can try the case impartially according to the evidence and the court is satisfied that the juror will do so. People v. Gibbs, 120 Mich.App. 485, 491, 328 N.W.2d 65 (1982).
In this case, the court took extraordinary care in the jury voir dire. First, general questions were asked of the jurors together and their answers noted. Individual voir dire followed. The jury selection consumed four days during which about 80 jurors were individually questioned, 30 were dismissed for cause and the 20 defense and 15 prosecution peremptories were all exercised. Upon defense counsel's final motion for change of venue following the completed selection of the jury, the court concluded that the jury was "not contaminated in any way by pre-trial publicity or the existence of the Hinckley trial". The court further concluded that the jury met every test that the law provided and could decide the issues based on the evidence produced in open court and the law as the court instructs it. See People v. Gerald Hughes, 85 Mich.App. 8, 16, 270 N.W.2d 692 (1978).
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...before the jury is sworn, the decision announcing this rule was subsequently vacated by our Supreme Court. People v. Kelly, 147 Mich.App. 806, 814, 384 N.W.2d 49 (1985), vacated 428 Mich. 867, 400 N.W.2d 605 (1987). Moreover, our review of the two cases relied upon by this Court in Kelly re......
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