People v. Roupe
| Decision Date | 08 July 1986 |
| Docket Number | Docket No. 78874 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Wayne ROUPE, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., Martha G. Mettee, Asst. Pros. Atty., for the People.
Allsopp, Fitzgerald & Kolka by William W. Allsopp, Bay City, for defendant-appellant.
Before HOOD, P.J., and HOLBROOK and KERWIN *, JJ.
Defendant was convicted by a jury of escaping from prison without lawful discharge, M.C.L. Sec. 750.193; M.S.A. Sec. 28.390. Thereafter he pled guilty to being a sixth-felony offender, M.C.L. Sec. 769.13; M.S.A. Sec. 28.1085, and was sentenced to from 15 to 50 years in prison. He appeals as of right. We reverse and remand for a new trial.
Defendant entered the Bay City Corrections Center to serve the remainder of a 5- to 20-year sentence on a prior conviction. He was given a weekend furlough on June 10, 1983. There were two conditions to defendant's furlough: (1) defendant was required to return to the corrections center by 5:30 p.m. on June 12, 1983, and (2) he was not to leave his placement at his mother's home between 9:00 p.m. and 7:30 a.m. on June 10 and 11, 1983. On June 11, 1983, a corrections center employee made a spot check to determine whether defendant was complying with his weekend furlough and found that defendant was not at his mother's home where he was supposed to be. Defendant failed to return on June 12, 1983, to the corrections center as required. Later, in October 1983, defendant was apprehended and returned to jail.
Defendant has raised ten claims of error on appeal. We will first discuss the claim which requires reversal, then briefly dispose of the remaining issues.
Defendant claims that the trial judge abused his discretion in refusing to dismiss a juror for cause after the juror expressed a general bias against black people. During voir dire, the trial judge asked Juror Terry Powers if there was anything else he had to say and Powers replied, "Not really, just that I don't care for colored people." Then, the following exchange took place:
As two of defendant's witnesses were black, his girlfriend and her mother, defense counsel asked to excuse the juror for cause. The trial judge did not believe that it had been established that Powers's opinions might influence his verdict, and refused to excuse him. This, defendant asserts, was an abuse of discretion requiring reversal. We agree.
We will reverse the trial court's finding that a juror has the ability to render an impartial verdict or that a juror is biased or prejudiced where we find a clear abuse of discretion. People v. Johnson, 103 Mich.App. 825, 830, 303 N.W.2d 908 (1981), lv. den. 417 Mich. 962 (1983). A juror who expresses an opinion referring to some circumstance of the case which is not positive in character, but swears he can render an impartial verdict, may not be challenged for cause. People v. Jenkins, 10 Mich.App. 257, 261, 159 N.W.2d 225 (1968), lv. den. 381 Mich. 757 (1968), M.C.L. Sec. 768.10; M.S.A. Sec. 28.1033. The challenging party bears the burden of showing bias or prejudice. Rice v. Winkleman Bros. Apparel, Inc., 13 Mich.App. 281, 287, 164 N.W.2d 417 (1968) lv. den. 381 Mich. 798 (1969). We are of the opinion that the burden has been met here, notwithstanding the trial judge's superior ability to evaluate the demeanor and credibility of a juror who asserts he can render a fair and impartial verdict. Johnson, supra, 103 Mich.App. p. 830, 303 N.W.2d 908.
The juror's bias against black people was aptly demonstrated. Twice he stated he did not care for black people. We recognize that he answered in the affirmative to the court's inquiries about whether he could serve fairly and impartially to both sides. However, he equivocated and gave qualified answers to other questions put to him by both the court and defense counsel about whether he would have problems believing the testimony of a black woman. It was only upon answering the trial court's carefully framed questions that the juror conceded he would try to take each witness at face value. We cannot say with certainty that his plainly stated bias was not diluted by the court's interrogation. As the indicia of the juror's impartiality did not outweigh his stated bias, we find that the trial judge abused his discretion in declining to excuse the juror for cause. On this basis, we reverse and remand for a new trial.
Defendant also argues that the trial court erred by not allowing him 20 peremptory challenges at the time of jury selection on the principal offense of prison escape, which is punishable by a term of not more than five years, because defendant had also been charged as an habitual offender, which carries a possible sentence of life in prison. Based upon our review of the record, we do not perceive any such error. Prior to trial on the principal offense, the trial judge informed defendant that he could choose to be tried by a different jury on the habitual offender charge. After defendant was found guilty on the principal offense, but before the jury was dismissed, defendant was presented with the option of having a jury trial on the habitual offender charge, either with the same jury or a new one. Defendant instead pled guilty and waived his right to a jury trial. Had he exercised his option to be tried by a jury on the habitual offender charge, defendant would have been entitled to 20 peremptory challenges at that time. People v. Van Auker, 111 Mich.App. 478, 487, 314 N.W.2d 657 (1981), rev'd on other grounds 419 Mich. 918, 354 N.W.2d 258 (1984). As the trial judge complied with his duty to allow defendant, if he chose, to be tried by a new jury and given 20 peremptory challenges at that time, People v. Helzer, 404 Mich. 410, 427, 273 N.W.2d 44 (1978), we find no error.
We also find no merit to defendant's challenge of the sufficiency of the information, which he asserts did not adequately inform him that the people intended to claim that his violation of furlough was part of the charge against him. The information stated:
"[Defendant,] being a person imprisoned in a prison of the State of Michigan at the above location, [did] escape or leave the prison without being discharged by due process of law; contrary to MCLA 750.193;"
The language in the information tracked that contained in the prison escape statute, which is sufficient. People v. Mast, 126 Mich.App. 658, 661-662, 337 N.W.2d 619 (1983), (On reh.) 128 Mich.App. 613, 341 N.W.2d 117 (1983). The information put defendant on notice that he was being charged with escape from prison without lawful discharge. It is not required that evidentiary facts in support of the charge be stated in the information. 42 CJS, Indictments and Informations, Sec. 90, pp. 957-960. Therefore, we affirm the trial judge's finding that the information was sufficient to inform defendant of the offense charged.
Defendant also claims that the trial judge erronerously allowed him to be prosecuted under the prison escape statute, when M.C.L. Sec. 791.265a; M.S.A. Sec. 28.2325(1) provides that the Department of Corrections can implement rules to deal with a prisoner's failure to return to a facility. We think that a plain reading of M.C.L. Sec. 791.265a(3); M.S.A. Sec. 28.2325(1)(3) indicates that the Legislature intended to allow the Department of Corrections to promulgate rules to address prison escape situations and intended that the state prosecute individuals who fail to remain within the extended limits of their confinement under the prison escape statute. Cf., People v. Bookmeyer, 127 Mich.App. 69, 338 N.W.2d 557 (1983), lv. den. 419 Mich. 854 (1984). As we conclude that both the state and the Department of Corrections have joint authority to implement the prison escape statute, M.C.L. Sec. 750.193; M.S.A. Sec. 28.390, the trial court did not err in allowing the jury to hear testimony about defendant's furlough violation.
Next, we turn to defendant's claim of error based on the trial court's refusal to admit into evidence the testimony of Loretta Lowe that defendant told her on June 11, 1983, that he was "trying to find money". We find no abuse of discretion in the trial judge's ruling that...
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