People v. Passeno

• Decision Date: 20 July 1992
• Docket Number: Docket Nos. 128293,128639
• Citation: 489 N.W.2d 152,195 Mich.App. 91
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Andrew PASSENO, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bruce Christopher MICHAELS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 152

489 N.W.2d 152

195 Mich.App. 91

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Andrew PASSENO, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bruce Christopher MICHAELS, Defendant-Appellant.

Docket Nos. 128293, 128639.

Court of Appeals of Michigan.

Submitted June 9, 1992, at Lansing.

Decided July 20, 1992, at 9:15 a.m.

Released for Publication Oct. 5, 1992.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., Michael J. Modelski, Chief, Appellate Div., and Thomas S. Richards, Asst. Pros. Atty., for the People.

Michael J. McCarthy, P.C. by Michael J. McCarthy, Redford, for Joseph Passeno.

Faintuck, Shwedel & Wolfram by William G. Wolfram, Franklin, for Bruce Michaels.

Before GRIBBS, P.J., and HOOD and SIMON, ^* JJ.

HOOD, Judge.

Defendants Joseph Passeno and Bruce Michaels appeal as of right from their convictions of multiple offenses arising from the slayings of Glen and Wanda Tarr on the evening of November 9, 1989. The appeals were consolidated by the Court of Appeals. We affirm in part, reverse in part, and remand.

Passeno was originally charged with two counts of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, two counts of felony murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, two counts of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, two counts of kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581, ten counts of possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), and one count of breaking and entering, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. Immediately before trial, Passeno pleaded guilty with regard to each of the nonmurder offenses. Following trial, he was convicted of one count of second-degree murder and two counts of felony murder for the killing of Wanda Tarr and one count of first-degree murder and two counts of felony murder for the killing of Glen Tarr.

Michaels was originally charged with two counts of first-degree murder, four counts of felony murder, two counts of armed robbery, and eight counts of felony-firearm. Following trial, Michaels was convicted of all counts, as charged.

We will first consider defendants' assertion that the constitutional prohibitions against double jeopardy have been violated by their convictions of more than one count of murder for each of the slayings. We conclude that appellate review of this issue is appropriate, despite defendants' failure to raise it before the trial court, because a significant constitutional question is presented. People v. Newcomb, 190 Mich.App. 424, 431, 476 N.W.2d 749 (1991).

Both the federal and state constitutions prohibit placing a person in jeopardy of criminal conviction or incarceration twice for the same offense. U.S. Const., Am. V; Const. 1963, art. 1, Sec. 15. Because Michigan's Double Jeopardy Clause is "substantially identical" to that found within the Fifth Amendment of the United States Constitution, People v. Bush, 187 Mich.App. 316, 322, 466 N.W.2d 736 (1991), we will consider whether defendants' convictions violate their provisions simultaneously.

Multiple convictions and sentences for counts of both first-degree murder and felony murder arising from the death of a single individual violate the constitutional guarantees against double jeopardy. People v. Zeitler, 183 Mich.App. 68, 71, 454 N.W.2d 192 (1990); People v. Goree, 132 Mich.App. 693, 712, 349 N.W.2d 220 (1984). Where a defendant is convicted of both first-degree and felony murder for the slaying of a single individual, the majority of reported cases hold that the conviction of first-degree murder must be affirmed, and the conviction of felony murder vacated. See, e.g., People v. Carl Johnson, 99 Mich.App. 547, 559-560, 297 N.W.2d 713 (1980). We believe that this is an appropriate remedy, given that first-degree murder requires proof of an element not required for felony murder. Accordingly, we affirm Passeno's conviction of first-degree murder and vacate his convictions of felony murder for the killing of Glen Tarr and affirm Michaels' convictions of first-degree murder and vacate his convictions of felony murder. The mandatory life sentences for those affirmed convictions are affirmed.

Similarly, because felony murder requires proof of an element not required for a conviction of second-degree murder, we conclude that convictions of both felony murder and second-degree murder for the killing of the same individual should result in the affirmance of the felony-murder conviction and vacation of the second-degree murder conviction. See People v. Hall, 83 Mich.App. 632, 638, 269 N.W.2d 476 (1978) (affirming a conviction of first-degree murder and vacating a conviction of second-degree murder arising out of the killing of the same individual). Accordingly, we affirm one of Passeno's convictions of felony murder and vacate the other conviction of felony murder and his conviction of second-degree murder for the killing of Wanda Tarr.

Our disposition of the issue regarding defendants' convictions of more than one count of murder for the killing of a single individual requires that we also consider their remaining convictions. Conviction of both felony murder and the underlying, or predicate, felony also violates a defendant's right against double jeopardy under the state constitution. People v. Wilder, 411 Mich. 328, 352, 308 N.W.2d 112 (1981); Bush, supra 187 Mich.App. at 325-326, 466 N.W.2d 736; People v. Lumsden, 168 Mich.App. 286, 300-301, 423 N.W.2d 645 (1988). See also People v. Robideau, 419 Mich. 458, 489, n. 8, 355 N.W.2d 592 (1984). When a defendant erroneously is convicted of both felony murder and the underlying, or predicate, felony, the remedy is a vacation of the conviction and sentence for the underlying, or predicate, felony. Lumsden, supra 168 Mich.App. at 301, 423 N.W.2d 645. Accordingly, we conclude that one of Passeno's convictions of an underlying, or predicate, felony must be vacated. Of course, which conviction must be vacated is dependent upon which felony-murder conviction is affirmed. We remand this matter to the trial court for a determination regarding which conviction should be affirmed. The mandatory life sentence for that conviction will also be affirmed.

Finally, we consider defendants' felony-firearm convictions. Conviction of felony-firearm requires that the prosecutor prove, beyond a reasonable doubt, that the defendant possessed or carried a firearm during the commission of any felony or attempted felony. Wayne Co. Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 397-398, 280 N.W.2d 793 (1979), app. dis. 444 U.S. 948, 100 S.Ct. 418, 62 L.Ed.2d 317 (1979). Accordingly, defendants properly can be convicted of only as many counts of felony-firearm as they have underlying felony convictions. We affirm four of Michaels' convictions of felony-firearm (two for his two first-degree murder convictions and two for his two armed robbery convictions) and five of Passeno's convictions of felony-firearm (one for his first-degree murder conviction, one for his felony-murder conviction, and three for whichever three underlying felony convictions are upheld), and vacate the remaining convictions of felony-firearm.

We now turn to the remaining issues presented by defendants on appeal.

Passeno argues that the trial court erred in denying his motion for a change of venue, given the tremendous amount of publicity that accompanied this matter. Passeno maintains that he could not receive a fair trial in Oakland County because of the "intense" news coverage given to the murders of the victims; the negative community response to the murders, which he characterizes as an "uproar"; and the trial court's failure to allow the passage of time before the trial commenced. This Court reviews a trial court's grant or denial of a motion for change of venue to determine if there has been an abuse of discretion, People v. Harvey, 167 Mich.App. 734, 741, 423 N.W.2d 335 (1988), using the somewhat stricter standard observed in criminal cases. People v. Charles O. Williams, 386 Mich. 565, 573, 194 N.W.2d 337 (1972).

We begin by noting that the trial court's denial of Passeno's motion before jury selection was not only proper, but is considered to be the preferable practice. Harvey, supra 167 Mich.App. at 741, 423 N.W.2d 335; People v. Collins, 43 Mich.App. 259, 262, 204 N.W.2d 290 (1972).

The existence of pretrial publicity, standing alone, does not necessitate a change of venue. People v. Furman, 158 Mich.App. 302, 321, 404 N.W.2d 246 (1987); People v. Haggart, 142 Mich.App. 330, 334, 370 N.W.2d 345 (1985). Rather, to be entitled to a change of venue, the defendant must show that there is either a pattern of strong community feeling against him and that the publicity is so extensive and inflammatory that jurors could not remain impartial when exposed to it, People v. Wytcherly, 172 Mich.App. 213, 220, 431 N.W.2d 463 (1988); People v. Prast (On Rehearing), 114 Mich.App. 469, 477, 319 N.W.2d 627 (1982), or that the jury was actually prejudiced or the atmosphere surrounding the trial was such as would create a probability of prejudice. Wytcherly, supra 172 Mich.App. at 220, 431 N.W.2d 463; People v. Bloom, 15 Mich.App. 463, 468-469, 166 N.W.2d 691 (1969).

When a juror, although having formed an opinion from media coverage, swears that he is without prejudice and can try the case impartially according to the evidence, and the trial court is satisfied that the juror will do so, the juror is competent to try the case. Furman, supra 158 Mich.App. at 321, 404 N.W.2d 246.

Our review of the record in this matter leads us to conclude, for a number of reasons, that the trial court did not abuse its discretion in denying defendant Passeno's motion for a change of venue. Although defendant Passeno alleged the existence of wide pretrial publicity, he provided no summary or examples...