People v. Furman

404 N.W.2d 246

Mich. Ct. App.

1987

Check Treatment

PEOPLE v FURMAN

Docket No. 84528

Court of Appeals of Michigan

Submitted May 20, 1986. Decided March 3, 1987.

158 Mich. App. 302

Leave to appeal applied for.

John P. Furman was found guilty but mentally ill of murder in the first degree, following a jury trial in Lenawee Circuit Court, John C. Timms, J. Defendant appealed by leave granted.

The Court of Appeals held:

The evidence of defendant‘s sexual interest in the victim, coupled with the evidence that the defendant may have held the victim for a period of time before strangling the victim to death, provided a sufficient basis upon which the jury could find the premeditation and deliberation necessary to sustain the finding of murder in the first degree.
Assuming that the question of the admission of certain hearsay testimony relative to statements made by the victim was properly preserved, and to the extent that certain of that hearsay testimony should not have been admitted, it is clear that the error in admitting that testimony was harmless.
It was not an abuse of discretion for the trial court to deny defendant‘s motion to bifurcate the trial so as to have separate juries determine the questions of guilt and insanity.
The trial court did not abuse its discretion in denying

REFERENCES

Am Jur 2d, Appeal and Error §§ 797 et seq.; 880 et seq.

Am Jur 2d, Criminal Law § 688.

Am Jur 2d, Evidence §§ 497, 650, 801.5 (Supp), 1104, 1147.

Am Jur 2d, Homicide §§ 425 et seq.; 439, 509.

Am Jur 2d, Jury §§ 195 et seq.

Exception to hearsay rule, under Rule 803(3) of Federal Rules of Evidence, with respect to statement of declarant‘s mental, emotional, or physical condition. 75 ALR Fed 170.

Admissibiliy of videotape film in evidence in criminal trial. 60 ALR3d 333.

Pretrial publicity in criminal case as ground for change of venue. 33 ALR3d 17.

Homicide: presumption of deliberation or premeditation from the fact of killing. 86 ALR2d 656.

See also the annotations in the Index to Annotations under Appeal and Error; Blood Tests; Joint and Separate Trial; Voir Dire.

defendant‘s motion for a change of venue, since those members of the jury who had heard of the case indicated that they could set aside the prior knowledge and render an impartial verdict.

The record provides an adequate evidentiary basis to support the jury‘s finding that defendant was guilty of first-degree murder but was mentally ill at the time.
The trial court did not abuse its discretion in refusing to admit a videotaped interview of the defendant by the defense psychiatric expert, which was offered for the purpose of showing the basis for the defense expert‘s opinion, on the basis that it would allow the defendant the opportunity to testify without being under oath or subject to cross-examination.
The size of the class with which a defendant shares a common blood-type characteristic goes to the weight the jury may give to the evidence, not to the admissibility of the blood-type evidence.
Defendant failed to preserve with a proper objection below the question of the admissibility of the testimony concerning the results of the electrophoresis testing.
The trial court properly admitted expert testimony concerning fibers found on or near the victim‘s body even though the expert could not conclusively state that the fibers came from defendant‘s coat.
The wire coat hanger found in defendant‘s apartment which was similar to the wire used to strangle the victim was properly admitted into evidence.

Affirmed.

SHEPHERD, J., dissented from the majority on the issue of the trial court‘s refusal to admit the videotaped interview of the defendant by the defense psychiatric witness. He would hold that, if the trial court did not view the tape before making its ruling, that failure to view the tape constitutes a clear abuse of discretion on the part of the trial court. He would remand to the trial court for an evidentiary hearing to establish on the record whether the trial court viewed the tape before making its ruling and, if not, whether the failure to view the tape before making the ruling was harmless error.

1. CRIMINAL LAW — EVIDENCE — SUFFICIENCY OF EVIDENCE — APPEAL.

A court reviewing a claim that there was insufficient evidence to support a conviction will review the record to determine whether sufficient evidence was introduced to justify a trier of fact in reasonably concluding that the defendant is guilty beyond a reasonable doubt.

2. HOMICIDE — EVIDENCE — PREMEDITATION — DELIBERATION.

Premeditation and deliberation need not be established by direct evidence, but may be inferred from all the facts and circumstances established on the record; the brutal nature of a killing does not alone justify an inference of premeditation and deliberation, however, manual strangulation coupled with evidence that the defendant secretly held the victim against her will for a period of time before killing her is sufficient to permit a jury to infer premeditation and deliberation.

3. EVIDENCE — HEARSAY — STATE-OF-MIND EXCEPTION — RULES OF EVIDENCE.

Evidence of a declarant‘s state of mind is admissible under the state of mind exception to the hearsay rule only when the declarant‘s state of mind is an issue in the case (MRE 803[3]).

4. HOMICIDE — EVIDENCE — INTENT OF VICTIM — RULES OF EVIDENCE.

A homicide victim‘s declaration as to where he or she intended to go and with whom he or she was going is admissible to show subsequent conduct (MRE 803[3]).

5. EVIDENCE — HEARSAY — STATE-OF-MIND EXCEPTION — RULES OF EVIDENCE.

The state-of-mind exception to the hearsay rule is limited to the declarant‘s then-existing mental, emotional or physical condition and expressly precludes a statement of memory (MRE 803[3]).

6. CRIMINAL LAW — EVIDENCE — HARMLESS ERROR RULE — APPEAL.

A two-tiered analysis is used to determine whether an error concerning the admission of evidence is harmless: whether the error was so offensive to the maintenance of a sound judicial process that it never can be regarded as harmless and whether the court can declare a belief that the error was harmless beyond a reasonable doubt; error is not harmless under the first test if it was deliberately injected into the proceedings by the prosecutor, if it deprived the defendant of a fundamental element of the adversary process, or if it was particularly inflammatory or persuasive; error is not harmless under the second test where it is reasonably possible that, in the absence of the error, a juror would have voted to acquit.

7. TRIAL — BIFURCATION — DISCRETION.

The decision whether to bifurcate a trial for the purpose of letting a separate jury consider an insanity defense rests within the sound discretion of the trial court and will not be overturned on appeal absent a showing of an abuse of discretion.

8. CRIMINAL LAW — VENUE — PRETRIAL PUBLICITY — CHANGE OF VENUE.

The existence of pretrial publicity does not in itself require a change of venue; if jurors are able to set aside their impressions or opinions and render a verdict based upon the evidence adduced at trial, a change of venue is not necessary.

9. CRIMINAL LAW — VENUE — CHANGE OF VENUE.

A change of venue because of pretrial publicity is proper only where there is a finding of a strong community feeling or a bitter prejudice toward the defendant.

10. JURY — VOIR DIRE — TRIAL.

The purpose of voir dire of prospective jurors is to afford counsel the opportunity to develop a rational basis for exercising both challenges for cause and peremptory challenges, and the scope of voir dire is entrusted to the discretion of the trial judge.

11. CRIMINAL LAW — EVIDENCE — VIDEOTAPES — INSANITY.

It is not an abuse of discretion for a trial court to refuse to admit a videotaped interview of a criminal defendant by the defense psychiatric expert in support of the expert‘s testimony as to defendant‘s insanity defense on the basis that the tape would be highly prejudicial in that it would allow the defendant to testify without being under oath or subject to cross-examination.

12. EVIDENCE — BLOOD-TYPE EVIDENCE — PROBATIVE VALUE.

The size of the class of persons sharing the same blood type as the defendant goes to the weight that the trier of fact may give the evidence, not to the admissibility of the blood-type evidence.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Nathan T. Fairchild, Prosecuting Attorney, and Thomas C. Johnson, Assistant Attorney General, for the people.

State Appellate Defender (by Peter Jon Van Hoek), for defendant on appeal.

Before: SHEPHERD, P.J., and ALLEN and G. R. COOK,* JJ.

* Circuit judge, sitting on the Court of Appeals by assignment.

G. R. COOK, J. After a jury trial in Lenawee Circuit Court, defendant was found guilty but mentally ill of first-degree murder, MCL 750.316; MSA 28.548, for the killing of a college honors coed. Defendant was sentenced to imprisonment for his natural life without parole. He appeals from his conviction by leave granted to file a delayed appeal.

The prosecution‘s case against defendant was based upon circumstantial evidence presented through the testimony of more than forty witnesses, not including expert testimony from a rebuttal witness. Defendant testified and raised two defenses: a reasonable doubt existed that defendant was the perpetrator of the homicide; and, in the alternative, legal insanity. On appeal defendant raises eight issues. We affirm.

The victim‘s body was discovered in a field off of a country road outside of Tecumseh, Michigan, on Tuesday, January 31, 1984, at 7:30 A.M. She was last seen alive in Tecumseh at approximately 5:30 P.M., Monday, January 30, 1984. Just two weeks before her death, the victim assumed employment as an Avon lady and was assigned a route which covered the Russell Square Apartments in Tecumseh where defendant lived.

A description of the victim‘s actions on January 30 is warranted to more fully appreciate defendant‘s arguments on appeal and the factual setting of this case.

Ruth McCarley, a Tecumseh resident, testified that her daughters had ordered Avon products from the victim and that the victim had stopped at her house between 12:30 P.M. and 1:30 P.M. to make a delivery but then agreed to return about 5:00 P.M. when Ruth‘s daughters would be home. Ruth testified that the victim never returned. Several residents of Russell Square Apartments testified that the victim had delivered their Avon orders to them at home between 1:30 P.M. and 3:00 P.M. on Monday, January 30. Lillian Gardner, a family friend, testified that she saw and waved to the victim at a gas station around 4:20 P.M. or 4:25 P.M. Delores Letson, a friend of the victim from high school, testified that she talked to the victim at the Tecumseh Plaza at about 4:45 P.M. The victim invited the Letsons over for a visit and explained that she had to run into the store and had three Avon orders to drop off but would be home in one hour. Judy Aranda, another Avon customer who lived in Tecumseh, testified that the victim delivered her order and left at 5:15 P.M. Waltrud Sterling testified that the victim was alone in her car, signaling a turn, when she blew her horn and waved at Sterling at approximately 5:30 P.M.

Defendant argues that the prosecution presented insufficient evidence on the element of premeditation. According to defendant, the evidence was sufficient to sustain a second-degree murder conviction but was lacking in several key areas to establish a cold-blooded, deliberate and planned killing rather than one committed in the heat of passion or frenzy. These areas include: a prehomicide motive, defendant‘s actions preceding the offense to show a plan for the homicide, and a prior relationship between the victim and defendant other than that established by the sale of Avon products to defendant by the victim. He contends that the brutality of the method of killing alone is not evidence of a deliberate plan. Finally, he argues that the evidence of sexual relations tending to show that the homicide was committed in the course of a criminal sexual assault is consistent with a finding that the killing was the result of the heat of passion and not cool-headed reflection.

When reviewing a claim of insufficient evidence, we review the record to determine whether sufficient evidence was introduced to justify a trier of fact in reasonably concluding that the defendant is guilty beyond a reasonable doubt.

People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), cert den sub nom . To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. , quoting . Premeditation and deliberation characterize a thought process undisturbed by hot blood. . While the minimum length of time needed to exercise this process is incapable of exact determination, a sufficient interval between the initial thought and the ultimate action should be long enough to afford a reasonable man an opportunity to take a “second look” at his contemplated actions. . See, also, .

Premeditation and deliberation need not be established by direct evidence, but may be inferred from all the facts and circumstances established on the record.

People v Hoffmeister, 394 Mich 155, 158-159; 229 NW2d 305 (1975), reh den ; . Evidence of the following nonexclusive factors may establish premeditation: (1) the previous relationship of the parties; (2) the defendant‘s actions prior to the actual killing; (3) the circumstances of the killing itself; and (4) the defendant‘s conduct after the homicide. . For other nonexclusive factors, see .

The brutal nature of a killing does not alone justify an inference of premeditation and deliberation.

Hoffmeister, supra, p 159. It has been held that evidence of manual strangulation and a defendant‘s posthomicide conduct support a prima facie case of first-degree premeditated murder. , lv den . See, also, , lv den (evidence of strangulation by the use of an electrical cord and evidence of a struggle at the scene of the crime constitute sufficient evidence of premeditation and deliberation for the jury).

After reviewing the entire record, we conclude that sufficient evidence was presented from which the jury could infer premeditation. Evidence was presented from which the jury could infer motive and a deliberate plan by defendant‘s prehomicide actions. Compare,

People v Gilbert, 101 Mich App 459, 469; 300 NW2d 604 (1980).

Evidence of motive, a sexual interest in the victim, was presented through the testimony of Todd Davis Sparks. On August 15, 1984, Sparks, an escapee from Jackson Prison, was lodged in the Lenawee County Jail in a cell adjacent to that of defendant. According to Sparks, he and defendant conversed after defendant learned that Sparks had escaped from prison. Defendant wanted to know what prison conditions were like. Defendant explained that he was incarcerated for killing the Avon lady. Defendant described her as so “good-looking, that he wanted some.” Defendant told Sparks that he had made a pass at the Avon lady when she delivered a gift which defendant had purchased for his ex-wife on their divorce. Defen-dant told Sparks that the Avon lady became “radical.” Defendant told Sparks that he had a seizure and remembered taking her out to the van. Sparks testified that defendant remembered he dumped her on some “line” road. Sparks testified that defendant revealed no details of the killing or the length of the seizure.

As an explanation for why he was caught, defendant told Sparks that he was on the client list. He further told Sparks that police had found one of her earrings and stated: “I fucked up. She lost an earring.” Sparks testified that he had no plea agreement for the escape charge when he reported this conversation to police. He further testified that he knew nothing about the case until his conversation with defendant.

Evidence of defendant‘s prehomicide actions was presented which could support an inference of premeditation or an opportunity to give his actions a second look.

Katherine Richter, formerly defendant‘s second wife, testified that she visited defendant in his apartment twice on January 30, the date their divorce became final. She first visited him in the afternoon, arriving at 3:23 P.M. and leaving by 3:55 P.M. She delivered the final divorce papers and had defendant sign off of their joint bank account. According to her testimony, defendant told her that he had a gift to give her as a memento of the marriage but that he had not yet received it. She further testified that they had sexual relations at his request. She testified that defendant threw the gift, an Avon necklace, at her when she visited him the second time, shortly after midnight.

Janet Ann Poley, an acquaintance from the Seventh Day Adventist Church, testified that defendant‘s apartment was dark between 6:15 P.M. and 6:20 P.M. when she stopped to pick him up for the weekly Monday evening revelation seminar at church. She and her husband had befriended defendant during his divorce and regularly picked him up for the seminars three nights each week and for the Sabbath service. As had been the habit for the previous two months, Poley checked for defendant‘s appearance in the window of his second-floor apartment where he usually would wave before coming out to the car. When she saw that the apartment was dark, she went inside and twice knocked loudly on his apartment door. She testified that she did not feel comfortable knocking on the door because she felt that defendant was inside the apartment in the dark. She promptly left.

Joey Lee Underwood, a neighbor living directly below defendant‘s apartment, testified that he had considered visiting defendant after dinner on January 30. He decided not to go when he heard a woman‘s voice coming from the apartment at approximately 7:00 P.M. or 7:30 P.M. He was unable to distinguish any words but testified that the woman‘s voice was spoken in a conversational tone. Underwood testified that he did not hear screams or yelling and heard no voices after 11:00 P.M.

Evidence of the circumstances of the killing provided additional evidence to support an inference of a deliberate killing. A bronze wire ligature, resembling a coat hanger, was found twisted around the victim‘s neck. The victim‘s hands were bound behind her back and she was blindfolded. Although the victim was clothed, her sweater had been cut open and her underclothes were in disarray.

Dr. Laurence Simson performed an autopsy on the victim and testified that the cause of death was strangulation. There were no other major injuries to the body. Dr. Simson noted that the victim‘s wrists had been tightly bound by adhesive tape and fibercord over the tape, obstructing the blood flow to the victim‘s hands. The medical examiner was unable to determine the time of death. He testified that the wire ligature was twisted many times. He could not determine how long it had taken to twist the ligature to cause death.

From the evidence of defendant‘s prehomicide actions and the victim‘s whereabouts, the jury could infer that the victim arrived at defendant‘s apartment after 5:30 P.M. to deliver the necklace, that defendant intentionally darkened the apartment and refused to respond to Poley‘s knocks, and that defendant continued to hold the victim against her will as late as 7:00 P.M. or 7:30 P.M. This evidence, together with the other evidence of the killing, provides enough evidence from which the jury could infer premeditation.

Defendant contends that the trial court erred by admitting, over defense objections, several statements attributed to the victim. Defendant claims that reversal is required under

People v White, 401 Mich 482; 257 NW2d 912 (1977).

Richard Barker, the victim‘s fiancé, testified that the victim had talked to him about one male customer. Defense counsel objected on grounds of hearsay and the Dead Man‘s Statute. The prosecution argued that MRE 803 allowed the admission of evidence of “state of mind of the decedent or of a declarant.” The trial court allowed the prosecutor to continue this line of questioning. Defense counsel raised no other objection thereafter, but asserts on appeal that it was assumed further objection would fail. Defendant challenges the following testimony of Barker elicited on direct examination. Barker testified that the victim had discussed only one male customer, that she thought he was strange because all he would do is talk, and that he wanted her to pick out a gift for his ex-wife. Barker testified that she and the customer had picked out a necklace. According to Barker, the victim stated that the customer lived at Russell Square Apartments.

We note that defendant does not challenge the testimony of Barker elicited by defense counsel on cross-examination which delved further into the conversation between the victim and Barker. According to Barker, the conversation occurred during the first week that the victim had her Avon route. The victim identified the male customer by name in their conversation, but Barker was unable to remember it at trial. According to Barker, the victim stated that she got a strange, uneasy feeling about being there. In another conversation on Saturday, January 28, the victim told Barker that she was concerned about delivering the order to this customer on Monday, because all the things he had ordered had not arrived.

Defendant challenges the testimony of the victim‘s mother and the girlfriend of the victim‘s brother concerning similar conversations in which the victim had expressed nervousness about a male customer at the Russell Square Apartments. According to the girlfriend, the victim related an incident that occurred on a second visit to the customer at the Russell Square Apartments. The victim was knocking on the door across the hall when the customer opened his door and invited her in. When she asked the customer and his two male friends if they wished to order any Avon products, they laughed and asked: “Do you deliver?” The victim said she was frightened and did not know how to take this until she was told the friends were from Toledo. The victim said she was promised a big order.

Defendant also challenges the testimony of Kimberly Ann Will, a resident of Russell Square Apartments. Her testimony related a conversation she had with the victim between 1:30 P.M. and 2:00 P.M. on January 30, when the victim delivered an Avon order. The conversation concerned a divorced man who lived in the apartment buildings. The man was not identified by name. The victim stated that he was weird and that she dreaded going back to his apartment because he had kept her there for over an hour on each of her previous two visits. According to Will, the victim stated that the man would just go on talking even though she announced her intentions to leave, and that he would flip through the book and continue talking.

Assuming that defendant raised a sufficiently specific and timely objection to this evidence, we believe that this case is distinguishable from

People v White, supra, on several grounds. In that case, error mandating reversal was found on three grounds, including the erroneous admission of rebuttal evidence. The rebuttal evidence constituted statements made by the decedent two weeks before his death. According to the rebuttal witness, the decedent stated that he and the defendant had had an argument and that he was frightened of the defendant. The trial court had earlier sustained an objection to this evidence, precluding its use in the prosecution‘s case in chief. No limiting instruction was given or requested. The defendant was charged and convicted by jury of first-degree murder.

White, supra, pp 502-507, admission of the conversation was deemed prejudicial error because the decedent‘s state of mind was not an important issue (i.e., it was not related to an element of the charged offense or of any asserted defense). Further, the likelihood of unfair prejudice from this testimony outweighed its probative value.

In contrast, in this case defendant‘s name was never given in any of the conversations except the first one between the victim and Barker. More importantly, defendant‘s name was not identified in the testimony at trial. Further, no specific argument, conflict or assaultive behavior by defendant was shown through this testimony. The likelihood of unfair prejudice to this defendant is not as great as that which accrued to the defendant in

White, supra, where the defendant was expressly identified by name. Although the evidence of the victim‘s conversations may not have helped defendant, it did not specifically single him out as the unidentified male customer. In short, the prejudice to defendant does not rise to the level of error mandating reversal as it did in .

Interestingly enough, defendant has chosen not to challenge the evidence elicited from Barker on cross-examination of the victim‘s intent to deliver an incomplete order to the male customer on January 30.

A common use of a victim‘s declarations of state of mind or emotion is to prove state of mind when state of mind is an issue in the case. See

White, supra, pp 502-504. The hearsay exception provided by MRE 803(3) allows the admission of such declarations when state of mind itself is an issue. , lv den .

Although the victim‘s state of mind was not directly at issue (as in a case where self-defense is asserted), her declarations, specifically, her intent to deliver an incomplete order to a male customer, could be admitted under MRE 803(3) to show subsequent conduct. It has long been held in Michigan that a homicide victim‘s declarations of where she intended to go and with whom are admissible.

People v Atwood, 188 Mich 36, 51; 154 NW 112 (1915) (the decedent‘s statements that she intended to go for a walk with the defendant was admissible as a “verbal act,” but it was for the jury to decide whether the statements truthfully explained her conduct and purpose). .

The leading case on this point is

Mutual Life Ins Co of New York v Hillmon, 145 US 285; 12 S Ct 909; 36 L Ed 706 (1892), in which the exclusion of evidence of the victim‘s present intent which could show subsequent conduct was held to be error requiring reversal. The rule was expressly left undisturbed by the hearsay exception established by FRE 803(3). Federal Advisory Committee Note, FRE 803(3). See, McCormick On Evidence, § 295, pp 847-848. For further discussion, see 6 Wigmore On Evidence, §§ 1725-1726, pp 129-142. MRE 803(3) is identical with Rule 803(3) of the Federal Rules of Evidence. See staff note to MRE 803.

In the case sub judice, evidence of the victim‘s intent was probative to show her conduct on January 30 because defendant asserted a defense that the proofs did not establish beyond a resonable doubt that he was the perpetrator. Even if defendant had raised a timely and specific objection, the trial court could have allowed the evidence to show the victim‘s conduct on January 30.

Having determined that reversal is not mandated by

White, supra, we consider whether admission of the challenged evidence was otherwise erroneous. The testimony challenged on appeal may be categorized this way: (1) evidence of the number, frequency, length and nature of the victim‘s past visits to the male customer; and (2) evidence of the victim‘s feelings toward her customer (i.e., nervousness, dread, fear).

The victim‘s declarations of the number, frequency, length and nature of her past visits to the male customer were not admissible under MRE 803(3). These statements did not express her state of mind at the time the conversations were held, but instead constituted statements of memory based upon past events. Compare

People v DeRushia, 109 Mich App 419, 424-425; 311 NW2d 374 (1981).

Likewise, the victim‘s statements of emotion (i.e., fear, dread, nervousness) were not admissible under MRE 803(3). They either constituted a statement of memory (i.e., how the victim felt on past occasions) or they constituted statements of her then-existing state of mind, which was not at issue. Thus, assuming that defendant raised an adequate objection and preserved the issue for review, we find that the trial court erred by allowing the testimony.

Our next inquiry is whether the error was harmless or mandated reversal.

People v Stubl, 149 Mich App 42, 46; 385 NW2d 719 (1986), lv den . The harmless error test considers: (1) whether the error is so offensive to the maintenance of a sound judicial system that it never can be regarded as harmless; and (2) whether the error was harmless beyond a reasonable doubt so that not even one juror would have voted to acquit the defendant but for the error. ; . The purpose of the first criterion is to deter prosecutorial and police misconduct, whereas the purpose of the second criterion is to safeguard the decisional process. .

An error may be intolerably offensive to the maintenance of a sound judicial system if it was deliberately injected into the proceedings by the prosecution, if it deprived the defendant of a fundamental element of the adversary process or if it is of a particularly inflammatory or persuasive kind.

People v Gallon, 121 Mich App 183, 188-189; 328 NW2d 615 (1982).

Defendant does not claim that the error was deliberately injected by the prosecution or that it amounts to prosecutorial misconduct. Defendant was not deprived of a fundamental element of the adversary process concerning the evidence of the victim‘s previous visits, because this evidence was shown by competent testimony.

Stubl, supra, p 46. See, also, . On cross-examination defendant admitted that he saw the victim three times and described each of her visits.

Defendant denied that the victim had ever acted afraid of him. Thus the evidence of the victim‘s feelings toward an unnamed male customer was not shown by other competent evidence. However, under the circumstances presented in this case, we conclude that admission of this hearsay evidence was not such an affront to the integrity of the trial process that reversal is warranted.

People v Swan, 56 Mich App 22; 223 NW2d 346 (1974), lv den .

Our next consideration is whether the error in admitting the hearsay evidence was harmless beyond a reasonable doubt. As the Court stated in

People v Swan, supra, p 33:

The purpose of this requirement is to safeguard the defendant‘s right to be convicted only by a jury and only upon their finding of his guilt beyond a reasonable doubt. In applying this standard, therefore, we may not substitute our independent judgment of the defendant‘s guilt or innocence for the judgment of the jury. Instead, we must assess only “what effect the error had or reasonably may be taken to have had upon the jury‘s decision.” We must determine “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction,” that is, whether it might have aided in convincing an otherwise undecided juror of the defendant‘s guilt beyond a reasonable doubt. If it is reasonably possible that, in a trial free of the error complained of, even one such jury member might have voted to acquit the defendant, then the error was not harmless, and the defendant must be retried. If, on the other hand, “the proof was so overwhelming, aside from the taint of the error, that all reasonable jurors would find guilt beyond a reasonable doubt,” then the conviction must stand.

Although this inquiry presents a closer issue, after reviewing the evidence presented to the jury, we find no reasonable possibility that the hearsay evidence contributed to defendant‘s conviction. Compare,

People v Soles, 143 Mich App 433, 440; 372 NW2d 588 (1985), lv den . The evidence of defendant‘s guilt, although circumstantial, was ample. The absence of the hearsay evidence would not possibly have led a juror to vote for defendant‘s acquittal. Indeed, we believe that the proofs against defendant were so convincing, aside from the taint of error, that all reasonable jurors would have found guilt beyond a reasonable doubt. The error in admitting the hearsay evidence does not require reversal of defendant‘s conviction.

III

Defendant argues that the trial court abused its discretion when it denied his pretrial motion to bifurcate the trial on the issues of guilt and legal sanity. According to defendant, the demands of due process and a fair trial should have resulted in a favorable ruling since both of the defense theories, namely, a reasonable doubt and legal insanity, were substantial. He argues that the prejudicial impact of requiring defendant to proceed on both defense theories before one jury requires reversal.

The decision to grant or to deny a bifurcated trial rests within the sound discretion of the trial court.

People v Donaldson, 65 Mich App 588, 590; 237 NW2d 570 (1975). We review the decision of the trial court under an abuse of discretion standard. . An abuse of discretion involves a result which is so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias. , quoting , but observing a stricter standard.

The trial court denied the motion for the reason that defendant would not suffer undue prejudice by presenting the defense of insanity before the same jury which would determine his guilt or innocence. The trial court made its ruling without regard to whether or not it actually had authority to grant the motion. We find no abuse of discretion.

The argument alleging prejudice was aptly re-futed by this Court in

Meatte, supra, p 79. The Court noted that the prejudice which arises in the presentation of inconsistent defenses before one jury does not stem from the single jury procedure. Instead, it stems from the defendant‘s choice to present a second version of the facts which is less credible. It noted that, if more than one defense is credible, neither defense is likely to be hurt by the assertion of the other.

The trial court did not abuse its discretion by its ruling, and defendant was not deprived of his right to a fair trial.

Defendant argues that error mandating reversal occurred when the trial court denied his pretrial motions for a change of venue and for individualized voir dire or, in the alternative, voir dire conducted on the basis of a list of ninety questions proposed by defendant. Pretrial publicity of this case consisted of newspaper articles and radio news reports which described the murder investigation and the pretrial proceedings. According to defendant, the pretrial publicity was so extensive that it was impossible for him to receive a fair and impartial trial in Lenawee County and, further, that the extensive publicity required the trial court to probe the extent of each juror‘s knowledge of the case.

The existence of pretrial publicity alone does not necessitate a change of venue.

People v Prast (On Rehearing), 114 Mich App 469, 477; 319 NW2d 627 (1982). A change of venue is not necessary if jurors can set aside their impressions or opinions and render a verdict based upon the evidence presented in court. . A change of venue may be granted if the defendant demonstrates that

there is a pattern of strong community feeling or bitter prejudice against him and the publicity is so extensive and inflammatory that jurors could not remain impartial when exposed to it.

Prast, supra.

MCR 2.511(C), formerly GCR 1963, 511.3, provides that the trial court may conduct the voir dire examination of prospective jurors. The purpose of voir dire is to give counsel the opportunity to develop a rational basis for exercising both challenges for cause and peremptory challenges.

People v Vesnaugh, 128 Mich App 440, 444; 340 NW2d 651 (1983), lv den . The scope of voir dire is entrusted to the discretion of the trial judge and will not be set aside absent an abuse of discretion. .

We reject both of defendant’s arguments in light of the record presented in this case. Although there had been pretrial publicity surrounding this case, the jurors who felt they could not render an impartial decision were excluded for cause. Seven of the twelve jurors who decided this case indicated that they had prior knowledge of the case, yet each one stated that he or she could set aside his or her prior knowledge and impartially decide the case upon the evidence presented. No pattern of strong community feeling or bitter prejudice against defendant was shown.

The trial court did not abuse its discretion by its denial of the change of venue motion.

People v Jancar, 140 Mich App 222, 229; 363 NW2d 455 (1985). No error arose in the voir dire of the jury.

V

Defendant argues that he was denied his constitutional right to due process of law when the jury found him guilty but mentally ill of first-degree murder in light of the facts of this case which allegedly show that the verdict was an unfair and invalid compromise.

Defendant acknowledges that the Michigan Supreme Court has held that the special verdict of guilty but mentally ill, MCL 768.36; MSA 28.1059, is constitutional and does not deny due process of law under US Const, Am XIV; Const 1963, art 1, § 17.

People v Ramsey, 422 Mich 500; 375 NW2d 297 (1985), reh den 424 Mich 1201 (1985). Defendant asserts that the dissenting opinion in , represents the correct view.

MCL 768.36(1); MSA 28.1059(1) allows a trier of fact to return a guilty but mentally ill verdict under the following circumstances:

If the defendant asserts a defense of insanity in compliance with section 20a [MCL 768.20a; MSA 28.1059(1)], the defendant may be found “guilty but mentally ill” if, after trial, the trier of fact finds all of the following beyond a reasonable doubt:

(a) That the defendant is guilty of an offense.

(b) That the defendant was mentally ill at the time of the commission of that offense.

(c) That the defendant was not legally insane at the time of the commission of that offense.

Legal insanity is defined by MCL 768.21a; MSA 28.1044(1):

A person is legally insane if, as a result of mental illness as defined in section 400a of Act No. 258 of the Public Acts of 1974, being section 330.1400a of the Michigan Compiled Laws, or as a result of mental retardation as defined in section 500(g) of Act No. 258 of the Public Acts of 1974, being section 330.1500 of the Michigan Compiled Laws, that person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.

Mental illness is defined in MCL 330.1400a; MSA 14.800(400a):

As used in this chapter, “mental illness” means a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.

Defendant offered the expert testimony of a forensic psychiatrist in support of his legal insanity defense. The expert diagnosed defendant as a chronically mentally ill person, suffering from one or more psychiatric conditions. They are paranoid schizophrenia, organic brain impairment which manifests itself in psychomotor seizures, and post-traumatic stress disorder. The expert testified that, if defendant committed the homicide, he did it as the result of mental illness and was legally insane (i.e., without an ability to conform his behavior to the requirements of law). The expert testified that several factors aggravated his mental illness, including the impending divorce and his anger because the victim did not deliver all that he had ordered. The expert opined that the evidence surrounding the killing was so contrary to defendant’s background, history and personality that, if defendant did commit the homicide, he must have been in a dissociative state.

In rebuttal, the prosecution offered the testimony of an expert witness who was qualified as a forensic examiner and board eligible in forensic psychiatry. The expert distinguished mental illness (a legal term defined by statute and not a psychiatric term) from mental disorder (a term used by the American Psychiatric Association diagnosis manual) when he explained his diagnosis of defendant. The expert explained that a person could have a personality disorder without being mentally ill. He further explained that an individual could be mentally ill and still not be legally insane. When formulating his diagnosis of defendant, the expert considered police reports and statements by witnesses, defendant’s previous hospital, medical and psychiatric records, and his own observations and test results obtained during two interviews with defendant.

The prosecution expert opined that defendant suffered a posttraumatic stress disorder and a mixed personality disorder. In his view, defendant was not mentally ill on January 30, 1984, because no objective evidence was presented to indicate mental illness. He attributed the lack of objective evidence to defendant’s lack of memory of the events on that day. He opined that defendant was not mentally ill during the two interviews, and that previous discharge summaries indicated that defendant was not mentally ill. He concluded that defendant was not legally insane because he was not mentally ill on January 30, 1984. On cross-examination, the expert acknowledged that there are times when a borderline personality disorder is extremely disorganized such that it impairs one’s ability to cope with the ordinary demands of life.

In light of the record evidence presented, the jury could have concluded that defendant was mentally ill but not legally insane on January 30, 1984. The jury could accept the testimony of defendant’s expert that the posttraumatic stress syndrome impaired defendant’s ability to cope with the ordinary demands of life. The jury could also have accepted the testimony of the prosecution expert witness that defendant did not lack a capacity to appreciate the wrongfulness of his conduct. Such a finding would be consistent with the prosecution expert’s testimony that an individual may be mentally ill but not necessarily legally insane.

In any event, the record shows that the trial court polled the jury when the verdict was delivered and there was no indication of a compromise verdict. MCR 2.512(B)(2), formerly GCR 1963, 512.2. We find no violation of defendant’s right to due process of law.

VI

During trial defendant moved to admit a videotaped interview of defendant by the defense psychiatric expert. Defendant argued that the videotape provided the best evidence of the foundation on which the expert based his opinion. The trial court denied the motion, ruling that the tape would be highly prejudicial since it would allow the defendant to testify without being under oath and subject to cross-examination, notwithstanding defense counsel’s promise that defendant would testify and would be subject to cross-examination. The trial court recognized that the jury could be instructed to disregard defendant’s statements for their truth and to use them only as the basis of the expert’s opinion; however, the trial court concluded that such a cautionary instruction would be ineffective.

The admission of evidence rests within the sound discretion of the trial court, and the decision to admit or to exclude evidence will not be overturned absent a clear abuse of discretion.

People v Strickland, 78 Mich App 40, 54; 259 NW2d 232 (1977), lv den . Since the defense expert was able to testify about the factual and professional bases of his opinion, the probative value of the videotape was significantly diminished. We further note that the record does not clearly show whether or not the trial court viewed the videotape before ruling, but that would not affect the ability of the defense expert to testify about the bases of his expert opinion. We find no abuse of discretion.

VII

Defendant raises several evidentiary challenges to the admission of expert testimony with respect to blood typing and fiber analyses performed during the investigation of this case. On appeal two challenges are made to the admission of testimony concerning blood typing, and one challenge is addressed to the fiber analyses.

During trial defendant moved to exclude any expert testimony related to the fact that defendant’s blood type was the same as the blood type determined from an analysis of semen found in the victim’s body. Defendant argued that the results of the test placed defendant in a group that was too large in size to be probative of the question of whether he had been the source of the semen. Defendant further argued that the testimony would be more prejudicial than probative. After hearing argument on the motion, the trial court denied the motion, finding that the evidence would be relevant and that the class was small enough to allow the jury the opportunity to consider the evidence.

Carolyn Bazzett, a State Police Crime Lab serologist, described the blood type of defendant, the victim and her fiancé. She testified that the victim’s fiancé was a nonsecretor which meant that she would not be able to detect his blood type from any of his body fluids. She testified that the victim was a Group O secretor and that defendant was a Group A secretor. Electrophoresis testing of semen deposited in the victim revealed that the donor was a Group A secretor. Additional electrophoresis testing yielded results which showed that the victim’s fiancé could not have been the donor of the semen. She testified that the donor could have come from approximately twelve percent of the population, which group included defendant. She testified that these testing methods were generally accepted.

On appeal defendant reiterates his argument that the expert testimony on blood typing could only place defendant within a large class of individuals who could have been the source of semen and thus error mandating reversal arose when his motion was denied. We are not persuaded that the trial court abused its discretion by admitting this evidence. The size of the class with which a defendant shares a common characteristic goes to the weight that the trier of fact may give the evidence, and does not go to its admissibility.

People v Goree, 132 Mich App 693, 700-704; 349 NW2d 220 (1984). We find no error.

Defendant’s second challenge to the results of the electrophoresis testing is one which was not raised below in defendant’s motion or by way of objection. Defendant argues that the foundation for this evidence did not clearly establish that electrophoresis testing has met the standards of general scientific acceptance.

According to defendant, resolution of this issue depends upon the ultimate decision of our Supreme Court in

People v Young, 418 Mich 1; 340 NW2d 805 (1983). In post-Young cases, panels of this Court have held that evidence of the results of electrophoresis blood testing may be admitted where the prosecution has met its burden of establishing general scientific acceptance of the testing by disinterested expert witnesses. (the issue of the admissibility of electrophoresis evidence has not been temporarily frozen pending the final outcome of , and may be decided when a proper foundation has been established); , lv den (the absence of a per se rule in , requiring reversal with respect to a violation of the foundation requirements required by the Davis-Frye¹ standard allows the panel to affirm the admission of the electrophoresis evidence presented on the record).

People v Young (After Remand), 425 Mich 470; 391 NW2d 270 (1986), the majority determined that the prosecution failed to sustain its burden of proving general scientific acceptance of the reliability of serological electrophoresis of evidentiary dried bloodstains among impartial and disinterested experts in the scientific community. The majority concluded that the admission of the results of the blood analyses was not harmless error. The majority used language which appears to limit the holding to the facts of that case. 425 Mich 475, 480-490. Also, see the dissenting opinion filed by Justice BOYLE, 425 Mich 505, n 1. In contrast, the electrophoresis testing challenged here was performed on semen found in the victim’s body. This method of electrophoresis testing was not considered by the Court in . See the dissenting opinion of BOYLE, J., 425 Mich 505.

Error may not be predicated upon a ruling which admits evidence unless a substantial right of the party is affected and a timely objection, stating the specific ground of objection, has been made. MRE 103(a). Where an objection is not raised below, it is waived on appeal.

People v Browning, 106 Mich App 516, 525; 308 NW2d 264 (1981), lv den . Since no challenge to the foundation of the electrophoresis evidence was raised below, we consider it waived.

Finally, defendant challenges the trial court’s decision to admit expert testimony concerning fibers found on and near the victim’s body which could have come from defendant’s coat. According to defendant, the evidence was more prejudicial than probative since the expert witness could not conclusively state that the fibers were from defendant’s coat and could not estimate how many other coats or materials could have been the source of the fibers. Although we find no case directly on point to guide us, we conclude that the trial court did not abuse its discretion by admitting the evidence. The expert’s inability to conclusively associate the fibers with defendant’s coat goes to the weight, and not the admissibility, of this evidence.

VIII

Defendant challenges the trial court’s decision to admit a broken coat hanger found by police in their second search of defendant’s apartment. According to defendant, the trial court erred because no foundation was made to tie the coat hanger to the offense. The bronze-colored wire coat hanger with the hook broken off was admitted into evidence as plaintiff’s Exhibit 81.

At the beginning of trial, two witnesses described the ligature found on the victim as a coat hanger. The ligature, plaintiff’s Exhibit 33, was identified and presented to the jury through the testimony of the forensic examiner. The prosecution argued that it offered plaintiff’s Exhibit 81 to show its similarity to the ligature found on the victim’s body.

The rule governing the admission of physical evidence requires that a proper foundation be laid and that the articles be identified as that which they purport to be and that the articles are shown to be connected with the crime or with the accused.

People v Hence, 110 Mich App 154, 161; 312 NW2d 191 (1981). In this case the prosecution presented evidence connecting the coat hanger with defendant. The fact that defendant possessed a coat hanger similar to the ligature found with the victim was relevant on the issue of the assailant’s identity. Thus, its probative value outweighed its prejudicial effect. MRE 403. The trial court did not abuse its discretion by admitting the coat hanger into evidence. .

Affirmed.

ALLEN, J., concurred.

SHEPHERD, J. (dissenting). I agree with the opinion of the majority in its entirety with the exception of one issue which, in my view, requires a remand to the trial court for an evidentiary hearing.

During trial, defendant moved to admit a videotape interview of defendant with the defense psychiatric expert. The expert’s opinion was substantially based upon this psychiatric interview. Defendant argued that the videotape provided the best evidence of the foundation upon which the expert based his opinion. The trial court ruled that the videotape was inadmissible. The court stated that the videotape would be highly prejudicial since admission would permit defendant to testify without being under oath and subject to cross-examination. The court recognized that it could instruct the jury to consider defendant’s statements during the interview not for their truth, but only as evidence of the basis of the expert’s opinion. The court concluded, however, that such a cautionary instruction would be ineffective. Moreover, since the expert would be able to testify as to the basis of his opinion, the court concluded that the probative value of the videotape was greatly diminished.

The admissibility of evidence is a matter which rests within the sound discretion of the trial court, and this Court will not overturn the trial court’s decision to admit or exclude evidence absent a clear abuse of discretion.

People v Strickland, 78 Mich App 40, 54; 259 NW2d 232 (1977), lv den . The record, however, is unclear as to whether the trial court viewed the videotape prior to ruling it inadmissible. If the court did not view the videotape first, it failed to exercise any discretion. Failure to exercise discretion constitutes error. .

People v McDaniel, 99 Mich App 582; 297 NW2d 724 (1980), the defendant argued that the trial court abused its discretion in permitting the jury to view a videotape of the defendant selling an automobile to undercover agents. In the videotape, defendant mentioned other criminal transactions in which he might have been involved. The trial court admitted the tape without viewing it. The defendant argued that the trial court could not properly determine whether the videotape’s contents were more probative than prejudicial. This Court affirmed without addressing that issue. Judge T. M. BURNS dissented, however, stating in part: “I fail to see how a judge can properly exercise his discretion in this matter without viewing the evidence sought to be admitted.” Judge BURNS noted that the Court did not view the videotape in making its ruling. 99 Mich App 586. The same is true in the instant case.

Other jurisdictions have faced this issue with differing results. In

Eaton v State, 394 A2d 217, 219 (Del, 1978), the trial court refused to permit the defendant to play for the jury a tape recording of his psychiatric interview, which took place while he was under the influence of sodium amytal. The defendant sought introduction of the tape to help explain why the psychiatrist had formed a different opinion after the examination. Without listening to the tape, the trial court excluded it because of possible prejudice and confusion. The appellate court found no abuse of discretion, as the trial court was adequately informed of the nature of the proffered evidence and the gist of its contents, including “unrestricted testimony” by the psychiatrist “about the tape and the significance of an aural exposure to it.” The appellate court also noted the defendant had not identified what more understanding about the offer of evidence the trial court would have had after listening to the entire tape.¹

On the other hand, in

Pratt v State, 39 Md App 442, 451; 387 A2d 779 (1978), aff‘d , the defendant sought to admit a videotape of an interview with one of the defense psychiatrists. The videotape was made without the defendant’s knowledge, so that the psychiatrist could verify his impressions concerning defendant’s veracity and to confirm certain of his own observations. The trial judge did not view the tape, but merely stated he felt it would not be necessary or helpful. The videotape was not included as part of the record on appeal. The appellate court stated, 39 Md App 451:

While the absence of the tape from the record precludes us from specifically passing on its admissibility, we do not see how the trial judge could have properly exercised his discretion in deciding the evidence would not be necessary or helpful without viewing the tape.¹⁰

This states the better view.²

The evidence on the insanity issue was not overwhelming in the instant case, unlike the evidence showing that defendant actually killed the decedent. Evidence was presented by defendant’s expert concerning several traumatic experiences defendant had in Viet Nam, including one where a Vietnamese prostitute attacked defendant and he strangled her. Defendant was also ordered to administer medication to Viet Cong prisoners to keep them coherent while being tortured. Against this backdrop, the basis for the expert’s testimony as disclosed by the videotape interview could have been very useful to the jury in deciding the insanity question.

At the present state of these proceedings, the remedy is not a new trial. Without more information, it is impossible to determine if the trial court’s exclusion of the videotape was in error. It is entirely possible that the videotape should have been excluded. At this stage, it is only clear that the manner in which the trial court made its determination was wrong.

Accordingly, this case ought to be remanded for a hearing. The trial court and counsel should view the videotape, together or separately, and counsel should prepare arguments on whether the videotape should have been admitted. The trial court should make findings and balance the advantages and disadvantages of admitting the videotape on the record. The transcript of this hearing would then be filed with this Court and the parties would file supplemental briefs. Jurisdiction should be retained. We would then know whether failure to admit the tape was error and, if so, whether it was harmless. In my view this is the only way to determine whether the jury had a fair opportunity to evaluate the insanity defense—the only real issue in the case and an issue which by any view of the facts was extremely close.

Notes

; . Other courts have found no abuse of discretion in cases where the trial court failed to listen to the objected-to tape before playing it to the jury, similar to the situation in . See (while correct procedure would have been for judge to listen to tape to rule on objections before jury heard it, failure to follow this procedure does not require reversal); , cert den sub nom (defendant had ample time to acquaint himself with contents of the tape and object thereto); (trial judge need not listen to a 911 tape recording of the actual rape in progress where there was sufficient adequate testimony that the recording was accurate); (while better course would have been prescreening of videotape by judge with editing to delete duplicative material, failure to do so did not require reversal given significant quantity of physical evidence linked to defendant as well as his confession; (the court was reluctant to require a judge in every case to listen to tape outside jury’s presence; a trial court need not listen if counsel have had opportunity to hear tape or read a transcript and object).

As a general proposition the court in , cert den , noted that a trial judge should customarily hear a recording out of the jury’s presence to rule on objections to admissibility. Accord, , cert den . In , it was held error to play a tape of a confession to the jury without the trial court first reviewing the tape and taking steps to delete inappropriate material, despite later instructions for the jury to disregard certain statements on the tape. In , the court approved the trial court’s listening to a tape, made by the victim while the defendant was forcing her to have sexual intercourse with him, before ruling on its admissibility.

We do not mean to say that the trial judge must review all such evidence before ruling on its admissibility. However, where a proper foundation has been laid and the evidence would otherwise be relevant, a viewing of the tape would be necessary to a proper exercise of discretion unless the evidence is being rejected on the grounds that it is cumulative or it is apparent that the tape is objectionable for some other reason.