People v. Tyburski

• Decision Date: 02 November 1992
• Docket Number: Docket No. 122380
• Citation: 494 N.W.2d 20,196 Mich.App. 576
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leonard TYBURSKI, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 20

494 N.W.2d 20

196 Mich.App. 576

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leonard TYBURSKI, Defendant-Appellant.

Docket No. 122380.

Court of Appeals of Michigan.

Submitted June 2, 1992, at Detroit.

Decided Nov. 2, 1992, at 9:30 a.m.

Released for Publication Jan. 19, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Janice M. Joyce Bartee, Asst. Pros. Atty., for the People.

F. Randall Karfonta, Detroit, for defendant.

Before SAWYER, P.J., and MURPHY and BORRELLO, ^* JJ.

MURPHY, Judge.

Following a jury trial, defendant was convicted as charged of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. He was sentenced to serve twenty to forty years in prison. He now appeals as of right.

This case arises from defendant's killing of his wife on September 28, 1985. This fact is not in dispute. The case has received a great deal of publicity because of the unusual manner in which defendant disposed of the body: he stored it in a chest freezer in his basement for over three years. The body was discovered by his elder daughter on January 2, 1989.

Defendant admits killing his wife, Dorothy Tyburski, but claims that it was not murder but a killing in the heat of passion, thus manslaughter, or that he killed in self-defense. ¹ Defendant admitted the killing in his own testimony. He stated that his wife told him that she wanted him to leave for a couple of weeks and that she no longer loved him. Defendant replied that he still loved her and refused to leave. He then asked the victim whether she was having an affair with the eighteen-year-old boyfriend of their elder daughter. The victim refused to answer. She grabbed a knife and fork and went downstairs to get something out of the freezer. Defendant followed her to continue the conversation.

In the basement, the victim took some plastic containers out of the freezer. Defendant again asked her if she was having an affair with their daughter's boyfriend. The victim responded with words to the effect of, "Yes, I am. I love Craig. He's a man. You're not a man. You're a wimp, a punk, a bastard. You're leaving. Get out of here." The victim threw the frozen food containers, along with the knife and fork, at defendant as she said the words.

The victim came at defendant with her hands. Defendant pushed her away. The victim retrieved the knife and lunged at him with it. Defendant stated that he was in shock at this point over learning of the affair and afraid because of the physical attack. After he stopped the victim from stabbing him, he slammed her head into a beam many times. He then flung her into the freezer. He went upstairs, cleaned up, and returned to the basement a half-hour later. He noticed that the victim was motionless and was not breathing. At this point, he closed the freezer and never opened it again.

The evidence presented by the prosecutor established that the victim, in fact, had sexual relations with her daughter's boyfriend. Specifically, there was an incident during which the victim performed fellatio on her daughter's boyfriend in an automobile, as well as a subsequent incident in which they engaged in sexual intercourse. The victim also made additional sexual overtures to the boyfriend in the weeks preceding her death, which the boyfriend resisted.

Furthermore, the boyfriend and both of defendant's daughters testified that the victim spent increasing amounts of time with the boyfriend and the elder daughter, as well as time with the boyfriend alone. The younger daughter described the relationship between her sister, the boyfriend, and the victim as "like three teenagers." The boyfriend described the victim as acting more like his friend than like his girl friend's mother.

Additionally, the prosecutor presented evidence that there had been marital problems between the victim and the defendant, particularly after the death of the victim's sister approximately 1 1/2 years before the victim's death. Apparently it was not unusual for the victim to throw objects at defendant and to leave home for days at a time.

The prosecutor also presented evidence that defendant had developed an elaborate story to explain the victim's disappearance. The defendant told family members and the police that the victim left him and had moved out of the house. He described supposed contacts with her over the course of several months after her disappearance. Additionally, defendant had apparently commenced divorce proceedings as the logical culmination of his cover-up.

As for the cause of death, the medical examiner testified that the victim died of blunt-force trauma to the head. He testified that the injuries were inflicted by hitting the victim's head into a blunt object, rather than vice versa. The medical examiner described a minimum of eleven blows to the head. Finally, the medical examiner ruled out suffocation as a cause of death. Thus, the victim was dead before defendant closed the freezer.

Defendant first argues that he was denied his rights under the federal and state constitutions to an impartial jury and due process because the trial court erred in the manner in which it handled voir dire of the jury. ² The request of defendant's attorney to personally conduct the voir dire was denied by the trial court. Defendant had also requested that voir dire be sequestered (i.e., each venireman to be examined outside the presence of the rest of the venire) and that there be extensive inquiry into the exposure of the potential jurors to the extensive media coverage of the case. ³ Defendant had suggested that the inquiry take the form of a written questionnaire to each potential juror, which defendant had submitted, so as not to taint the rest of the panel.

There are no hard and fast rules governing what the trial court is obligated to do during voir dire. This Court recently stated the following regarding voir dire:

The scope of voir dire is left to the discretion of the trial court. People v. Harrell, 398 Mich 384, 388; 247 NW2d 829 (1976). However, a trial court may not restrict voir dire in a manner that prevents the development of a factual basis for the exercise of peremptory challenges. People v. Mumford, 183 MichApp 149, 155; 455 NW2d 51 (1990). [People v. Taylor, 195 MichApp 57, 59; 489 NW2d 99 (1992).]

Turning first to the issue of the sequestered voir dire, we have carefully reviewed the voir dire transcript. We do not believe that anything said during voir dire served to taint the venire. However, we do not dismiss the propriety of a sequestered voir dire in certain cases. The concerns raised by defendant were very real, and defendant's request was certainly not frivolous. There was a real danger in this highly publicized case that statements made during the voir dire could have tainted the rest of the panel, necessitating a mistrial. To this extent, the trial court took a risk in refusing to engage in a sequestered voir dire. We are, however, afforded the luxury of being able to review the issue with the benefit of hindsight and determine whether the venire was actually tainted. We are satisfied that nothing was said that actually served to taint the venire, although we do express concern that in highly publicized cases the mere fact that the jury panel is exposed to the dismissal of a number of potential jurors who are dismissed for cause by the court on its own motion could adversely influence remaining jurors by conveying to them the community's perception of the case, including the guilt of the defendant. Thus, we believe that in highly publicized cases, the jury selection method must be more sensitive to the fact that veniremen with personal knowledge from adverse media exposure may taint the rest of the jury panel. In such cases, the trial court may find it appropriate to first determine which veniremen have been exposed to the adverse publicity. If one or all of the veniremen have been exposed, then the trial court must make a discretionary decision whether to conduct sequestered voir dire so as to prevent answers or perceptions from tainting the remainder of the venire. After the veniremen have been subjected to voir dire individually regarding their media exposure, then sequestration may no longer be necessary. While we have the benefit of hindsight in this case, it represents a good example of where sequestered voir dire may have been appropriate.

The other issue with respect to the voir dire, whether there was sufficient inquiry of the veniremen by the court, is not so easily disposed of. The trial court chose to conduct the voir dire itself rather than have the attorneys conduct it. Although such a decision is within the court's discretion, it should be made cautiously, as this case demonstrates. Defendant's attorney, because she could not participate in the voir dire questioning, submitted an extensive list of questions to be posed to the venire. The questions were largely ignored by the court. While the court was scrupulous in excusing sua sponte any venireman who acknowledged having formed opinions on the basis of the media reports of the case, ⁴ it failed to ask those who had not probing questions regarding the extent and nature of their media exposure and largely accepted at face value their word that they had not formed opinions. For those who had formed opinions, the court did not inquire regarding what opinions had been formed, but again scrupulously dismissed any juror who voluntarily admitted an inability to be fair to defendant. Defendant now asserts that by failing to provide a sufficient inquiry of the veniremen, the trial court interfered with his ability to exercise his challenges for cause and his peremptory challenges. ⁵

With respect to defendant's challenge that the process violated the United States Constitution, our review is controlled by the recent decision in Mu'min...