People v. Prast

• Decision Date: 28 May 1982
• Docket Number: Docket No. 78-4715
• Citation: 114 Mich.App. 469,319 N.W.2d 627
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Joe PRAST, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 627

319 N.W.2d 627

114 Mich.App. 469

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Joe PRAST, Defendant-Appellant.

Docket No. 78-4715.

Court of Appeals of Michigan.

Submitted Aug. 19, 1981.

Decided April 5, 1982.

Released for Publication May 28, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., Appellate Div., and Edwin R. Brown, Asst. Pros. Atty., for the People.

Habeeb Ghattas, Flint, for defendant on appeal.

Before DANHOF, C. J., and KELLY and CORSIGLIA, ^* JJ.

ON REHEARING

KELLY, Judge.

On March 20, 1978, three persons were shot and killed during an armed robbery of a Sunshine Dairy Store in Flushing, Michigan. The defendant and Rickey Newell were arrested and charged with three counts of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. Prior to trial, counsel for the defendant moved for a change of venue claiming that pretrial publicity prevented a fair trial and for disqualification of all Genesee County Circuit Court judges. The trial court denied the defendant's motion to disqualify the circuit court judges but deferred its ruling on defendant's motion for a change of venue until an attempt to select a jury was made. Additionally, defense motions to suppress the identifications of defendant, a confession made by defendant, and the alleged murder weapon were denied.

Defendant's trial began on August 15, 1978, and jury selection took three days to complete. When a tentative jury was selected, defendant moved to have the jury dismissed, claiming that he had been forced to use peremptory challenges to excuse jurors who should have been released for cause. According to the defendant, this limited his ability to select a jury. The court denied his motion and defendant was convicted on all three counts of murder in the first degree.

Defendant appealed his conviction claiming that pretrial publicity prevented a fair trial. On April 23, 1981, this Court reversed defendant's conviction on a finding that the trial court abused its discretion when it refused defendant's request for a change of venue. People v. Prast, 105 Mich.App. 744, 307 N.W.2d 719 (1981). The prosecution applied for a rehearing, which this Court granted on May 11, 1981.

I

The denial of a motion for a change of venue is within the trial court's discretion, and its decision will not be reversed unless there has been an abuse of discretion. People v. Swift, 172 Mich. 473, 479-480, 138 N.W. 662 (1912), People v. Clay, 95 Mich.App. 152, 160, 289 N.W.2d 888 (1980). An abuse of discretion has been defined in different ways. Whether it is tested by Spalding v. Spalding, 355 Mich. 382, 384-385, 94 N.W.2d 810 (1959), ¹ or by the often alluded to stricter standard of People v. Williams, 386 Mich. 565, 573, 194 N.W.2d 337 (1972), in criminal cases, it is nevertheless clear that an abuse of discretion is not implicated where a trial court elects to defer determination on a request for change of venue until jury selection has been attempted in the original county. Swift, supra, 172 Mich. 481-482, 138 N.W. 662, People v. Collins, 43 Mich.App. 259, 262, 204 N.W.2d 290 (1972), lv. den. 391 Mich. 798 (1974).

The existence of pretrial publicity does not by itself require a change of venue. Murphy v. Florida, 421 U.S. 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 U.S. 717, 722-723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961), Swift, supra, 172 Mich. 481-482, 138 N.W. 662, People v. Dixon, 84 Mich.App. 675, 679, 270 N.W.2d 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, 289 N.W.2d 888, Collins, supra, 43 Mich.App. 263, 204 N.W.2d 290.

In Irvin, supra, the defendant, who was convicted of murder, sought a writ of habeas corpus claiming that the trial court erred when it refused to grant a change of venue because of pretrial publicity. Prior to trial, newspaper, radio, and television news stories revealed previous crimes committed by the defendant, his identification in a police lineup, his taking of a lie detector test, and his confession to six other murders. Many of the stories described defendant as the "confessed slayer of six", a parole violator, and fraudulent check artist. The jury panel consisted of 430 persons. The court itself excused 268 of those on challenges for cause as having fixed opinions as to the guilt of petitioner; 103 were excused because they objected to the death penalty; 20 were peremptorily challenged by the defendant and 10 by the state. Ninety percent of all jurors questioned entertained some opinion as to defendant's guilt. The Supreme Court, recognizing that jurors need not be totally ignorant of the facts and issues involved, stated that the jurors must be able to lay aside their impressions and render a verdict based upon the evidence introduced in court. Id., 366 U.S. 722-723, 81 S.Ct. 1642. Granting the writ of habeas corpus, the Court wrote:

"Here the 'pattern of deep and bitter prejudice' shown to be present throughout the community, cf. Stroble v. California, 343 U.S. 181, 96 L.Ed. 872, 72 S.Ct. 599, was clearly reflected in the sum total of the voir dire examination of a majority of the jurors finally placed in the jury box. Eight out of the 12 thought petitioner was guilty. With such an opinion permeating their minds, it would be difficult to say that each could exclude this preconception of guilt from his deliberations. The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man. See Delaney v. United States (CA 1 Mass.) 199 F.2d 107, 39 A.L.R.2d 1300. Where one's life is at stake--and accounting for the frailties of human nature--we can only say that in the light of the circumstances here the finding of impartiality does not meet constitutional standards. Two-thirds of the jurors had an opinion that petitioner was guilty and were familiar with the material facts and circumstances involved, including the fact that other murders were attributed to him, some going so far as to say that it would take evidence to overcome their belief." Id. at 727-728, 81 S.Ct. at 1645.

In the case at bar, numerous news stories about Prast's involvement in the three murders were carried by local newspapers, radio and television. Prior to trial, 20 stories appeared in the local newspaper. While most of the stories were unbiased accounts of the murder or the pretrial proceedings, several of the articles informed the public of the defendant's confession and his identification by witnesses. A March 31, 1978, story related that defendant had been convicted of unarmed robbery and was considered a high risk for parole. Another story, entitled, "The Prast Tape: 'He kept saying we had to kill' ", contained excerpts from Prast's taped confession. This story was followed the next day by another story also containing excerpts from the confession. Similar stories were carried on radio and television. In all, there was considerable pretrial publicity, but this quantum alone does not establish an indelible high water mark compelling the grant of a motion for a change of venue. Rather, we must examine the jury voir dire to determine if an impartial jury was impaneled.

The selection of the jury commenced on August 15, 1978, and took three days to complete. Prior to beginning the jury voir dire, the trial judge instructed the entire jury panel not to read or listen to news accounts of the trial. He also instructed them not to talk about the case among themselves or with others. After giving these instructions, he asked that any venireman, who could not render an impartial verdict based upon the evidence presented at trial, step forward and be excused. Thirty-six potential jurors from the entire panel were excluded by this method. No objection to this method was made by defense counsel. Next, the trial court conducted voir dire of each potential juror individually out of the presence of the others. In all, 47 jurors were examined in this manner. Only 5 of the potential jurors had heard nothing about the three murders and 11 were aware of a community feeling that the 3 murders were considered "bad crimes". During the individual voir dire, 10 prospective jurors were dismissed for cause, 2 of them because they had formed an opinion as to defendant's guilt. In addition to those released for cause, 20 were dismissed by defendant's use of peremptory challenges while the prosecutor exercised 4 peremptory challenges. The final jury consisted of 13 jurors of which only 1 had heard nothing of the crime. All 13 stated that they had no opinion as to defendant's guilt and stated that they would follow the trial court's instructions. Only 1 of the 13 jurors chosen had been challenged for cause.

Upon reconsideration, we find that the trial court did not abuse its discretion when it refused to change venue. Unlike Irvin, supra, no members of the jury panel expressed an opinion as to the defendant's guilt. In stark contrast to Irvin, the trial court excluded all potential jurors who expressed opinions as to defendant's guilt or innocence. Furthermore, only one of the actual jurors was challenged for cause. While a number of potential jurors stated that they were aware of community feeling, 11 of the jurors selected were unaware of any community feeling. Furthermore, the two jurors who were aware of a community feeling stated that the community felt that the three murders were bad crimes. This does not demonstrate a...