People v. Prast

• Decision Date: 23 April 1981
• Docket Number: Docket No. 78-4715
• Citation: 307 N.W.2d 719,105 Mich.App. 744
• 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 719

307 N.W.2d 719

105 Mich.App. 744

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

Docket No. 78-4715.

Court of Appeals of Michigan.

April 23, 1981.

Rehearing Granted July 7, 1981.

Released for Publication July 13, 1981.

Habeeb Ghattas, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., Robert E. Weiss, Pros.Atty., Donald A. Kuebler, Chief Appellate Asst. Pros.Atty., for plaintiff-appellee.

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

PER CURIAM.

Defendant appeals his conviction by a jury on three counts of first-degree murder, M.C.L. § 750.316;M.S.A. § 28.548.He raises eight issues, one of which requires reversal for a new trial.

On March 20, 1978, at about 7:50 p.m., two men entered the Sunshine Grocery Store in Flushing, Michigan, where two of the victims worked.Shortly thereafter the third victim, a patron of the store, also entered the premises.Several persons in the adjoining parking lot then heard three shots and saw two men run from the store and get into a nearby car, in which they escaped.The case received substantial attention in the local news media from the date of the killings to the time of defendant's trial.Prior to the trial, defense motions for change of venue due to pretrial publicity and for disqualification of all Genesee County Circuit judges were denied.Additionally, defense motions to suppress the identifications of defendant, a confession made by defendant, and introduction of the alleged murder weapon were denied.

The defendant alleges as error the trial court's refusal to grant his motion for change of venue, based upon extensive pretrial publicity.M.C.L. § 762.7;M.S.A. § 28.850.The decision on such a motion is one within the discretion of the trial court, which decision will not be reversed absent a clear abuse of discretion.People v. Gerald Hughes, 85 Mich.App. 8, 14, 270 N.W.2d 692(1978).The moving party bears the burden of proving potential bias or adverse influence on the jury.This burden is not fulfilled by a mere showing of pretrial publicity unless it is also shown that an impartial jury could not be obtained.People v. Stockard, 48 Mich.App. 680, 211 N.W.2d 62(1973), aff'd391 Mich. 481, 219 N.W.2d 68(1974).

In People v. Jenkins, 10 Mich.App. 257, 261-262, 159 N.W.2d 225(1968), this Court suggested an oft-quoted analysis of the effect of pretrial publicity on a defendant's right to a fair trial:

"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.SeePeople v. Quimby(1903), 134 Mich. 625(96 N.W. 1061);People v. Schneider(1944), 309 Mich. 158(14 N.W.2d 819);People v. Dailey(6 Mich.App. 99, 148 N.W.2d 209(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, § 768.10(Stat.Ann.1958 Rev. § 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.

"We deal with the problem of prior information and community feeling as affecting a defendant's right to a fair trial.We are referred to and examine in detail the decision of Irvin v. Dowd(1961), 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, and regard it as controlling.In American and Anglo-Saxon jurisprudence there is the invaluable right to jury.It must be a panel of impartial jurors.There must be a fair tribunal which renders a verdict on evidence presented at trial for a proceeding to meet the minimum standards of due process.It is not necessary that they be without impression or opinion.They must, however, be able to lay aside their impressions and base their verdict on the evidence.Where there is strong community feeling and a pattern of deep and bitter prejudice in the community, the influence of that opinion makes a strong impression, nearly impossible to detach from the mental processes of the average man.Trial under such influence denies due process.The burden of showing the existence of these conditions is on the challenger."

See alsoPeople v. Garland, 44 Mich.App. 243, 205 N.W.2d 195(1972);People v. Freeman, 16 Mich.App. 63, 167 N.W.2d 810(1969), andPeople v. Bloom, 15 Mich.App. 463, 166 N.W.2d 691(1969).In the subsequent case of 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), this Court noted five factors which made valid the trial court's exercise of discretion:

1.Jury selection occurred several months after the majority of media coverage.

2.The trial judge permitted meticulous voir dire questioning, after which defense counsel chose not to exercise remaining peremptory challenges and stated "We have a jury".

3.The trial itself was not accompanied by extensive media coverage.

4.No "strong community feeling" or prejudice against defendant was perceived.

5.The record of trial disclosed no bias against defendant.See alsoPeople v. Gerald Hughes, supra.

We count all of these factors on the opposite side of the ledger here.Throughout the period of investigation and arrest, and again prior to the trial, extensive local newspaper, radio and television coverage recurred.Photographs of the defendant and codefendant, Ricky Newell, were published on several occasions, with attention directed to their prison records.A local newspaper also published excerpts from the defendant's taped confession.The effect of this comprehensive coverage was demonstrated during jury selection.Of the 47 veniremen questioned for the jury panel, only four knew nothing about the slayings.Among 13 jurors eventually selected to serve on the panel, 10 had heard of the case on the radio, nine from television, and nine from newspaper accounts of the slayings.One of these jurors also knew of the confession.Only two of the jurors stated that they knew nothing of the crime.

Additionally, unlike the circumstances in Collins and Hughes, defense counsel herein did not acquiesce in the selection at a time when he had peremptory challenges in hand.People v. Stockard, supra.Rather, the jury was selected only after defense counsel's peremptory challenges were exhausted.Finally, our review of the record indicates that a "strong community feeling" against the defendant was apparent.See the comments of Justice Levin to petitioner Collins' application for leave, 391 Mich. 798, 806-807(1974).During voir dire, numerous instances of preconceived opinions were uncovered.The following colloquy is representative of the perspective of many potential jurors:

"MR. JONES : (defense counsel) Do you recall that you did read or hear about a confession which allegedly Mr. Prast made?

"JURORNO. 10 : I read about it, yes.

"MR. JONES : Now, at that time, did you form an opinion as to whether or not Mr. Prast was guilty?

"JURORNO. 10 : No, I could not form the opinion right then.

"MR. JONES : What you are saying is then that you read or heard about the confession but you did not make any judgment or decision that yes, he was guilty?

"JURORNO. 10 : Well, concerning the confession, you know, if he said it, well then

"MR. JONES : Then he did it?

"JURORNO. 10 : Yes.

"MR. JONES : Did you form any opinion as to what should be done with a man who would do such a thing?

"JURORNO. 10 : I do not remember forming an opinion (as to) what should be done with him.

"MR. JONES : It did not matter to you; is that it?

"JURORNO. 10 : Well, yes, it did matter, but I cannot remember whether I formed an opinion.

"MR. JONES : Then you do recall that Mr. Prast was identified as one of the people involved, is that correct?

"JURORNO. 10 : Yes.

"MR. JONES : Now, knowing that the law enforcement agencies in Genesee County did in fact take Mr. Prast into custody and that he is now set for or must stand trial, do you think that there is a probability or a possibility that he is guilty?

"JURORNO. 10: Yes.

"MR. JONES : That he is probably guilty, is that correct?You are indicating by shaking your head that you think he is probably guilty, is that correct?

"JURORNO. 10 : Well, as far as the evidence now is concerned

"MR. JONES : I will ask to have the juror prospective juror excused from the room so I can take a matter up with the Judge.

"THE COURT : What do you want to ask him?

"MR. JONES : I want to ask that question fifty-six, which I think you have ruled

"THE COURT : I am not going to allow you to ask question fifty-six.

"THE COURT : Any challenge for cause by the prosecutor?

"MR. MCGRAW : No, your Honor.

"THE COURT : Mr. Jones, challenge for cause?

"MR. JONES : Yes, your Honor.

"I would challenge him for cause.He has stated that he feels that he is probably guilty.I would, therefore, ask that he be excused for cause.

"THE COURT : I will deny that."

We think the community prejudice created by the publicity surrounding the investigation and trial was too great to ignore.Although it was proper to defer a decision on the defendant's motion until an attempt to draw a jury was made, People v. Swift, 172 Mich. 473, 138 N.W. 662(1912), the trial court should have recognized the substantial preconceived opinions held by local residents.Under these circumstances, the trial court, we think, abused its discretion by denying defendant's motion for change of venue.It is a most unfortunate and difficult decision because the evidence on the record compels the conclusion that the verdict was correct.

Our disposition of this issue renders further decisions as to the remaining issues unnecessary.However, because the question may arise again during retrial, we address a second issue raised by defendant.

Defendant alleges error in the...