People v. Partee

• Citation: 130 Mich.App. 119,342 N.W.2d 903
• Decision Date: 20 January 1984
• Docket Number: Docket No. 55345
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert PARTEE, Defendant-Appellant. 130 Mich.App. 119, 342 N.W.2d 903
• Court: Court of Appeal of Michigan (US)

Page 903

342 N.W.2d 903

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert PARTEE, Defendant-Appellant.

Docket No. 55345.

130 Mich.App. 119, 342 N.W.2d 903

Court of Appeals of Michigan.

Submitted Jan. 18, 1983.

Decided April 7, 1983.

Released for Publication Jan. 20, 1984.

[130 MICHAPP 122] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Andrea L. Solak, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by P.E. Bennett, Asst. State Appellate Defender, for defendant-appellant on appeal.

Before V.J. BRENNAN, P.J., and GRIBBS and HOEHN, ^* JJ.

PER CURIAM.

Following a jury trial, defendant Robert Edward Partee, was found guilty as charged of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was sentenced to the mandatory consecutive prison terms of two years for felony-firearm and life for first-degree murder. He appeals as of right.

Defendant's convictions arose out of events on [130 MICHAPP 123] July 18, 1979, at the Democratic Club, a private club in Detroit. The events culminated in the murder of three people and their subsequent decapitations. On appeal, defendant first claims that the trial judge abused his discretion in denying his motions for a severance from his codefendants.

A defendant does not have an automatic right to a trial separate from his codefendants. The decision to grant a motion for separate trials is left to the trial court's discretion. People v. Kramer, 103 Mich.App. 747, 303 N.W.2d 880 (1981); People v. Wright (On Remand), 99 Mich.App. 801, 298 N.W.2d 857 (1980), lv. den. 410 Mich. 854 (1980); M.C.L. Sec. 768.5; M.S.A. Sec. 28.1028. In People v. Hurst, 396 Mich. 1, 238 N.W.2d 6 (1976), the Supreme Court held that a defendant is entitled to a separate trial when it appears that the codefendant may testify to exculpate himself and incriminate the defendant. In People v. Carroll, 396 Mich. 408, 240 N.W.2d 722 (1976), the Supreme Court held that the defendant must make an affirmative showing of prejudice to overcome the strong policy in favor of joint trials. The defendant must show by affidavit that the defenses of the defendants are inconsistent and antagonistic. A conclusory statement by way of affidavit is insufficient. People v. Smith, supra, People v. Carroll, supra.

In the present case, defendant's motion for severance stated that defendant "may assert defenses which are inconsistent with the defenses of other individual co-defendants", that defendant "may take the stand in his own defense", and that defendant "may * * * call certain or all his co-defendants in order that they may be able to testify in his behalf". We find that these statements do not constitute an "affirmative showing" of antagonistic and inconsistent defenses. See People v. [130 MICHAPP 124] American Medical Centers of Michigan, Ltd., 118 Mich.App. 135, 145-146, 324 N.W.2d 782 (1982). Even if tried separately, codefendants cannot be compelled to testify against their will. People v. Merritt, 396 Mich. 67, 84, fn. 18, 238 N.W.2d 31 (1976). Defendant's motion was insufficient to require a severance.

Notwithstanding the insufficiency of the motion, defendant's claim must still be discussed. This Court will review a joint trial for a miscarriage of justice even when no motion for separate trials is made below. People v. Cochran, 84 Mich.App. 710, 270 N.W.2d 502 (1978), sentence vacated, 407 Mich. 934, 285 N.W.2d 659 (1979); People v. Dunlap, 87 Mich.App. 528, 274 N.W.2d 62 (1978).

It is clear that defendant and his codefendants did not present to the jury contradictory or antagonistic defenses. Defendant did not present any evidence whatsoever. The codefendants' defenses did not implicate defendant in any way. The only antagonism arose when the trial court read to the jury the defendants' theories of the case. The codefendants' theory was that defendant committed the murders while the codefendants were merely present. Defendant's theory was that the prosecution had failed to prove its case beyond a reasonable doubt.

We find that the codefendants' antagonistic theory of the case did not deny defendant a fair trial. Defendant was not forced to defend himself from evidence on two fronts. Only the prosecutor submitted evidence that defendant committed the crime. We cannot say that the codefendants' theory of the case necessitates a new trial. See People v. McGilmer, 96 Mich.App. 433, 292 N.W.2d 700 (1980).

Defendant next argues that a severance should [130 MICHAPP 125] have been granted, and his right to cross-examine witnesses against him was violated, because the trial court refused to allow him to cross-examine a criminal prosecution witness about the murders of John "Dad" Mays and Washington Wilson by Mickey Welton at the direction of a codefendant. Defendant argues that, because the witness was present when her boyfriend, Welton, killed people at the direction of a codefendant she had a reason to be biased against defendant.

The scope of cross-examination is left to the trial court's discretion. People v. Bouchee, 400 Mich. 253, 253 N.W.2d 626 (1977). That discretion, however, is limited by constitutional considerations. In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court held that under certain circumstances a defendant's right to cross-examine witnesses overrides the evidentiary policies of a state.

In Davis, the defendant sought to cross-examine a crucial prosecution witness by showing that the witness was on juvenile probationary status. That line of questioning was intended to reveal a possible bias. An Alaska statute barred the introduction of such evidence to preserve the confidentiality of juvenile adjudications. The Court held that the prior conviction of a witness was a general attack on credibility and could, on the facts of the case, reveal the bias or ulterior motives of the witness. Noting that the partiality of a witness is "always relevant", the Court concluded that the state's interest in protecting juvenile violators had to fall in the face of the defendant's Sixth Amendment challenge.

In the present case, the trial court allowed defendant to establish that the witness was present when Welton killed Mays. Also, the witness [130 MICHAPP 126] was allowed to testify that Welton received an automobile and drugs for the murder.

The holding in Davis does not alter the rules of logical relevancy. People v. Arenda, 416 Mich. 1, 330 N.W.2d 814 (1982). The prosecution's theory of the case was that defendant murdered at the direction of a codefendant. That a codefendant ordered killings in the past is simply irrelevant to defendant's guilt or innocence in the present case. The only evidence produced was to the effect that the witness did not participate in the killings; her possible bias due to a potential prosecution could not be an issue. The trial court properly limited the scope of cross-examination.

Defendant next asserts that the trial court erred in denying his motion for a change of venue or for a continuance. Defendant also argues that the amount of pretrial publicity denied him a fair trial.

The denial of a motion for a change of venue is within the trial court's discretion. People v. Swift, 172 Mich. 473, 138 N.W. 662 (1912); People v. Clay, 95 Mich.App. 152, 289 N.W.2d 888 (1980), lv. den. 409 Mich. 857 (1980). In Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), the Supreme Court held that motions for continuance, and for changes of venue should be granted when there is a "reasonable likelihood" that prejudicial pretrial publicity will prevent a fair trial.

"The existence of pretrial publicity does not by itself require a change of venue. Murphy v. Florida, 421 US 794; 95 S Ct 2031; 44 L Ed 2d 589 (1975). If jurors can lay aside their impressions or opinions and render a verdict based on the evidence presented in court, a change of venue is not necessary. Irvin v. Dowd, 366 US 717, 722-723; 81 S Ct 1639 [6 L Ed 2d 751 (1961), Swift, supra [172 Mich.], 481-482 , People v. Dixon, 84 Mich App 675, 679; [130 MICHAPP 127] 270 NW2d 488 (1978). For a change of venue to be granted the defendant must demonstrate that there is a pattern of strong community feeling or bitter prejudice against him, and the publicity must be so extensive and inflammatory that jurors could not remain impartial when exposed to it. Clay, supra [95 Mich.App.] 160 , Collins, supra [43 Mich.App.] 263 ." People v. Nixon, 114 Mich.App. 233, 318 N.W.2d 655 (1982).

In People v. Jenkins, 10 Mich.App. 257, 261, 159 N.W.2d 225 (1968), lv. den. 381 Mich. 757 (1968), this Court made the following comments:

" '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; People v. Schneider (1944), 309 Mich 158; People v. Dailey, [6 Mich App 99 (1967) ] 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, Sec. 768.10 (Stat Ann 1958 Rev Sec. 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.' "

In People v. Prast, 105 Mich.App. 744, 749, 307 N.W.2d 719 (1981), vacated 114 Mich.App. 469, 319 N.W.2d 627 (1981), this Court considered the following factors from People v. Collins, 43 Mich.App. 259, 204 N.W.2d 290 (1972), lv. den. 391 Mich. 798 (1974), cert. den., 419 U.S. 866, 95 S.Ct. 121, 42 L.Ed.2d 103 (1974), in determining whether an impartial jury had been selected in the face of extensive pretrial publicity:

"1. Jury selection occurred several...