Defendant was convicted by a jury of first-degree premeditated murder, MCL 750.316(l)(a), first-degree felony murder, MCL 750.316(l)(b), arid mutilation of a dead body, MCL 750.160. He was sentenced to life imprisonment for each murder conviction and 50 to 120 months’ imprisonment for the mutilation conviction, all sentences to be served concurrently. Defendant appealed, and while that appeal was pending, a successor trial court judge granted his motion for a new trial. The prosecutor then filed a cross-appeal from that order. We reverse the trial court’s order granting defendant a new trial and affirm defendant’s convictions and sentences as modified in this opinion.
There is no dispute that defendant killed the victim, dismembered the victim’s body, and attempted to dispose of it by burning
After defendant was convicted and sentenced, he filed a motion for a new trial. He also filed a motion to disqualify the trial judge because of her comments at sentencing. The trial judge denied the motion for disqualification, but the chief judge granted it to avoid an appearance of impropriety. The case was reassigned to a new judge who conducted an evidentiary hearing on defendant’s motion for a new trial. The successor judge later issued an opinion in which he concluded that the trial court’s exclusion of certain psychiatric testimony at defendant’s trial denied defendant the effective assistance of counsel, thereby depriving defendant of a fair trial. Accordingly, the court granted defendant’s motion for a new trial. We address the prosecutor’s cross-appeal of that order first, because most of defendant’s issues on appeal could be moot if we were to uphold it.
A court may grant a new trial “on any ground that would support appellate reversal of the conviction or because it believes that the verdict has resulted in a miscarriage of justice.” MCR 6.431(B). A trial court’s decision on a motion for a new trial is reviewed for an abuse of discretion. People v Lemmon,
We review constitutional and statutory questions de novo. People v McPherson,
Defendant’s motion for a new trial was based, in relevant part, on the trial court’s exclusion of psychiatric testimony that defendant argued was relevant to his self-defense claim. We are puzzled by the successor judge’s reliance on principles regarding ineffective assistance of counsel to conclude that defendant was entitled to a new trial, given that the trial court found no deficiencies in counsel’s performance, nor do we. However, the Sixth Amendment guarantees defendants “ ‘a meaningful opportunity to present a complete defense
The right to present a defense is not absolute or unfettered. A trial court may exclude evidence if its probative value is outweighed by factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. Id. at 326. Therefore, a court may exclude evidence that is repetitive, only marginally relevant, or poses an undue risk of harassment, prejudice, or confusion of the issues. Id. at 326-327. Similarly, defendants are entitled to present witnesses in their defense, but again that right is not absolute. People v McFall,
A claim of self-defense at common law required an honest and reasonable belief of an imminent danger of death or great bodily harm. People v Dupree,
Evidence is relevant if it tends to make a “fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401. This case featured two starkly contrasting, and largely incompatible, narratives of what factually transpired just before the killing. Under the prosecution’s version of events, there is no possible way defendant could have been legitimately defending himself. Under defendant’s version of events, there is absolutely no leap of logic or faith required to conclude that it is objectively reasonable to fear for one’s life when a large, intimidating person with an undisputed reputation for violence is pointing a gun at him and explicitly threatening to “blow [his] fricking brains out.” Defendant’s self-defense claim here depends purely on which of the two factual scenarios actually happened. Therefore, the psychiatric testimony would only have been relevant if it had some bearing on which scenario occurred.
Simply put, the psychiatric testimony would have cast no light whatsoever on which of the two versions of events was the more likely. Either defendant carefully planned the victim’s demise and disposition, or the victim lost his temper and presented a highly convincing threat of immediate death. We are unable to perceive how, under the circumstances of this
In defendant’s appeal, he argues that he was additionally deprived of his right to present a case because the trial court excluded evidence of personal protection orders (PPOs) issued against the victim and evidence of the victim’s MySpace page.
Evidence concerning the aggressive character of a homicide victim, even if the defendant was unaware of it at the time, is admissible in furtherance of a self-defense claim to prove that the victim was the probable aggressor. MRE 404(a)(2); People v Harris,
However, we find that the MySpace page is not evidence concerning a specific instance of conduct. While a social-networking or other kind of personal website might well contain depictions of specific instances of conduct, such a website must be deemed a gestalt and not simply a conglomerate of parts. When considered by itself, a social-networking or personal website is more in the nature of a semipermanent yet fluid autobiography presented to the world. In effect, it is self-directed and self-controlled general-character evidence. Clearly, because people change over time, its relevance might be limited only to recent additions or changes; furthermore, it is obviously possible for people to misrepresent themselves, which could present a fact issue. But in the abstract, social-networking and personal websites constitute general reputational evidence rather than evidence concerning specific instances of conduct, and so the victim’s MySpace page should have been admissible.
Nonetheless, the exclusion of the MySpace page itself was harmless here.
Defendant next argues that the trial court’s jury voir dire was deficient because the court failed to ask probing questions designed to expose juror bias arising from pretrial publicity. We disagree. Defendant fails to articulate what the trial court should have asked in addition to the questions it did ask, and the trial court appears from the record to have given the attorneys the opportunity to request questions to be asked. The trial court inquired into the jurors’ prior knowledge and opinions of the matter and their ability to decide the case fairly and impartially, and it did not do so in a manner that created bias. Defendant has a right to a fair and impartial jury, but he does not have a right to individual, sequestered voir dire. People v Tyburski,
Defendant next argues that misconduct by the prosecutor deprived him of a fair trial. We disagree. Because defendant did not object to the prosecutor’s conduct in the trial court, his claims of misconduct are not preserved. People v Schutte,
Defendant argues that it was improper for the prosecutor to introduce evidence that a computer search for criminal-defense attorneys was conducted on the computer in defendant’s home shortly after the offense. We agree. Evidence that defendant, or someone who used the computer, searched for an attorney infringes on defendant’s right to an attorney and should not have been introduced into evidence. Moreover, we find that it cannot possibly have been a good-faith effort on the part of the prosecutor. Noble,
Defendant lastly argues that he was prejudiced by a prearraignment remark in which Wayne County Prosecutor Kym Worthy referred to this offense as a “thrill kill” during a press conference. The remark was made long before trial. As the prosecution argues on appeal, the only way it could have deprived defendant of a fair trial would be if it tainted the jury pool. However, there is no basis for concluding that it did. Defendant never moved for a change of venue before trial. Further, jury voir dire presented defendant with the opportunity to explore the issue of juror bias at trial. Defendant has not demonstrated that the remark prejudiced his right to a fair trial.
Defendant next argues that he received ineffective assistance of counsel, arguing that trial counsel should have made a number of additional objections and requests for jury instructions. We disagree. To establish ineffective assistance of counsel, a defendant must show that counsel’s performance was so objectively deficient that counsel was not performing as the attorney guaranteed by the constitution. People v Pickens,
Defendant argues that counsel should have objected to the previously discussed evidence of the computer search for defense attorneys and the prosecutor’s commentary thereon. However, as discussed, although that evidence was improper, it was harmless under the circumstances and could even have supported the defense theory, so defense counsel was not ineffective for failing to object. LaVearn,
Counsel was not ineffective for failing to raise additional objections to the introduction of recorded telephone conversations between defendant and his father from jail. Defendant placed his character at issue by attempting to introduce evidence of his peacefulness, so the prosecutor properly introduced the recordings to rebut that evidence. The recordings or the contents thereof were variously admissible as reputation or opinion evidence under MRE 405 and under several exceptions
Defendant next argues that counsel was ineffective for failing to request a cautionary instruction regarding accomplice testimony. The trial court did give the jury the undisputed-accomplice testimony instruction, CJI2d 5.4, but did not give the cautionary instruction that should have followed, CJI2d 5.6. Nevertheless, we review the instructions as a whole to determine whether the trial court fairly protected defendant’s rights and informed the jury of the issues to be determined. People v Gaydosh,
Defendant also argues that defense counsel was ineffective for failing to object to certain errors in the trial court’s jury instruction on defense of others, CJI2d 7.21. The trial court properly instructed the jury that the lawful defense of others may excuse a criminal act and that defendant must have “honestly and reasonably believed” that his codefendant was in imminent danger of death or serious injury, even if it later turned out that defendant was mistaken. Further, when instructing the jury on self-defense, the trial court stated that defendant’s conduct was to be judged according to how the circumstances appeared to him at the time, and the court indicated that “this instruction also includes defense of others.” Although the trial court technically omitted part of CJI2d 7.21(2) and slightly misread part of CJI2d 7.21(4), the trial court’s instructions as a whole properly and completely instructed the jury and protected defendant’s rights. Counsel was not ineffective for failing to object.
Defendant next argues that defense counsel was ineffective for failing to move to strike a portion of defendant’s statement in which he explained that the Drano found in his truck was for making bombs. Although defendant argues that the comment was not probative of any issue, the comment was elicited in the context of a conversation in which defendant referred to himself as a “pyro,” a statement that was relevant in light of the evidence that the victim’s body was burned. Because any objection would have been futile, counsel was not ineffective for failing to object.
Defendant lastly argues that defense counsel was ineffective for failing to request an instruction on second-degree murder as a necessarily included lesser offense of felony murder. Given that defendant was convicted of the alternative
Defendant argues that his felony-murder conviction must be vacated because there was insufficient evidence that the victim was killed during the commission or attempted commission of a larceny. We disagree. The sufficiency of the evidence is evaluated by reviewing the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could find every element of the crime proven beyond a reasonable doubt. People v Petrella,
The predicate felony in this case was larceny of the victim’s gun, which defendant contends he did not take until after the killing, and then he only did so for the purpose of hiding it. The felony-murder doctrine does not apply if the intent to steal the victim’s property was not formed until after the homicide. People v Brannon,
However, convicting a defendant of both first-degree premeditated murder and first-degree felony murder arising out of the death of a single victim is a violation of double-jeopardy protection. People v Williams,
Defendant finally argues that he was denied the right to a public trial. Had defendant properly raised this as a constitutional issue, we would agree. At the very beginning of the trial, the trial court cleared the courtroom for voir dire because of the large number of potential jurors. Defendant did not object. However defense counsel subsequently asked: “[I]s it possible to have the family stay[?]” The judge said that there was not enough room. Again, defendant did not object, let alone assert that he had a constitutional right to the presence of his family or others in the courtroom during jury selection.
In Presley v Georgia,
“[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closuremust be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” [Id. at_; 130 S Ct at 724 , quoting Waller v Georgia,467 US 39 , 48;104 S Ct 2210 ;81 L Ed 2d 31 (1984).]
The Court in Presley indicated that the number of prospective jurors would not be an overriding concern, that reasonable alternatives had to be considered even if not advanced by the parties, and that possible alternatives when the venire was large could “include reserving one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members.” Presley, 558 US at_;
The record does not show that there was a basis for excluding defendant’s family or others from the courtroom during the jury voir dire. However, the request for the presence of family was not a legal objection to their exclusion. In context, it appears that defendant was requesting an exception for his family to the judge’s announcement regarding closure of the courtroom, not that defendant was challenging the ruling on any constitutional or legal basis.
Like the defendant here, the defendant in People v Vaughn,
[T]his right [to a public trial] is not self-executing: the defendant must timely assert the right. Levine v United States,362 US 610 , 619-620;80 S Ct 1038 ;4 L Ed 2d 989 (1960) (“Due regard generally for the public nature of the judicial process does not require disregard of the solid demands of the fair administration of justice in favor of a party who, at the appropriate time and acting under advice of counsel, saw no disregard of a right, but raises an abstract claim only as an afterthought on appeal.”). Thus, the failure to timely assert the right to a public trial forecloses the later grant of relief. See United States v Hitt,473 F3d 146 , 155 (CA 5, 2006) (“Where a defendant, with knowledge of the closure of the courtroom, fails to object, that defendant waives his right to a public trial.”); Freytag v Comm’r of Internal Revenue,501 US 868 , 896;111 S Ct 2631 ;115 L Ed 2d 764 (1991) (Scalia, J., concurring) (noting that review of a claim of error with regard to certain rights, such as the Sixth Amendment right to a public trial, may be foreclosed by the failure to timely assert the right); see also Peretz v United States,501 US 923 , 936-937;111 S Ct 2661 ;115 L Ed 2d 808 (1991) (noting that the failure to timely assert the right to have an Article III judge preside over jury voir dire forecloses the grant of relief). [Id. at 196.]
We conclude that defendant waived his right to a public trial during the jury voir dire.
In conclusion, the successor judge erred by granting defendant’s motion for a new trial, and we reverse that order. Defendant has not presented to us any errors or infringements of his rights that warrant reversal, and he waived his public-trial issue. We remand for the administrative task of correcting defendant’s judgment of sentence to show that he is convicted of a single count of first-degree murder supported
Notes
MySpace is a social-networking website. Users can post various semistatic descriptions of themselves, as well as photographs and other media, public discussions, links to friends or other websites, and various forms of personal-status updates. The victim’s MySpace page presented the victim consistently with his reputation for violence, including aggressive language, and references to guns, bullets, gang activities, drugs, and vengeance.
We refer to the PPO documents themselves, which constitute allegations of specific conduct. However, defendant would have been free to call the plaintiffs in the PPO actions as witnesses to testify with regard to reputation only and not with regard to the specific instances of conduct.
Abrogated on other grounds in Crawford v Washington,