People v. PassenoPeople v. Passeno
- Reporters:
- ,
- Before:
- Hood
Defendants Joseph Passeno and Bruce Michaels appeal as of right from their convictions of multiple offenses arising from the slayings of Glen and Wanda Tarr on the evening of November 9, 1989. The appeals were consolidated by the Court of Appeals. We affirm in part, reverse in part, and remand.
Passeno was originally charged with two counts of first-degree murder,
Michaels was originally charged with two counts
We will first consider defendants’ assertion that the constitutional prohibitions against double jeopardy have been violated by their convictions of more than one count of murder for each of the slayings. We conclude that appellate review of this issue is appropriate, despite defendants’ failure to raise it before the trial court, because a significant constitutional question is presented. People v New comb, 190 Mich App 424, 431; 476 NW2d 749 (1991).
Both the federal and state constitutions prohibit placing a person in jeopardy of criminal conviction or incarceration twice for the same offense. US Const, Am V; Const 1963, art 1, § 15. Because Michigan’s Double Jeopardy Clause is “substantially identical” to that found within the Fifth Amendment of the United States Constitution, People v Bush, 187 Mich App at 316, 322; 466 NW2d 736 (1991), we will consider whether defendants’ convictions violate their provisions simultaneously.
Multiple convictions and sentences for counts of both first-degree murder and felony murder arising from the death of a single individual violate the constitutional guarantees against double jeopardy.
People v Zeitler,
183 Mich App 68, 71; 454 NW2d 192 (1990);
People v Goree,
132 Mich App 693, 712; 349 NW2d 220 (1984). Where a defendant is convicted of both first-degree and felony murder for the slaying of a single individual, the majority of reported cases hold that the conviction of first-degree murder must be affirmed, and the conviction of felony murder vacated. See, e.g.,
People v Carl Johnson,
99 Mich App 547, 559-560; 297
Similarly, because felony murder requires proof of an element not required for a conviction of second-degree murder, we conclude that convictions of both felony murder and second-degree murder for the killing of the same individual should result in the affirmance of the felony-murder conviction and vacation of the second-degree murder conviction. See People v Hall, 83 Mich App 632, 638; 269 NW2d 476 (1978) (affirming a conviction of first-degree murder and vacating a conviction of second-degree murder arising out of the killing of the same individual). Accordingly, we affirm one of Passeno’s convictions of felony murder and vacate the other conviction of felony murder and his conviction of second-degree murder for the killing of Wanda Tarr.
Our disposition of the issue regarding defendants’ convictions of more than one count of murder for the killing of a single individual requires that we also consider their remaining convictions. Conviction of both felony murder and the underlying, or predicate, felony also violates a defendant’s right against double jeopardy under the state constitution.
People v Wilder,
411 Mich 328, 352; 308 NW2d 112 (1981);
Bush, supra
at 325-326;
People v Lumsden,
168 Mich App 286, 300-301; 423 NW2d 645 (1988). See also
People v Robideau,
419 Mich 458, 489, n 8; 355 NW2d 592 (1984). When a
Finally, we consider defendants’ felony-firearm convictions. Conviction of felony-firearm requires that the prosecutor prove, beyond a reasonable doubt, that the defendant possessed or carried a firearm during the commission of any felony or attempted felony. Wayne Co Prosecutor v Recorder’s Court Judge, 406 Mich 374, 397-398; 280 NW2d 793 (1979), app dis 444 US 948 (1979). Accordingly, defendants properly can be convicted of only as many counts of felony-firearm as they have underlying felony convictions. We affirm four of Michaels’ convictions of felony-firearm (two for his two first-degree murder convictions and two for his two armed robbery convictions) and five of Passeno’s convictions of felony-firearm (one for his first-degree murder conviction, one for his felony-murder conviction, and three for whichever three underlying felony convictions are upheld), and vacate the remaining convictions of felony-firearm.
We now turn to the remaining issues presented by defendants on appeal.
Passeno argues that the trial court erred in denying his motion for a change of venue, given the tremendous amount of publicity that accompanied this matter. Passeno maintains that he could
We begin by noting that the trial court’s denial of Passeno’s motion before jury selection was not only proper, but is considered to be the preferable practice. Harvey, supra at 741; People v Collins, 43 Mich App 259, 262; 204 NW2d 290 (1972).
The existence of pretrial publicity, standing alone, does not necessitate a change of venue. People v Furman, 158 Mich App 302, 321; 404 NW2d 246 (1987); People v Haggart, 142 Mich App 330, 334; 370 NW2d 345 (1985). Rather, to be entitled to a change of venue, the defendant must show that there is either a pattern of strong community feeling against him and that the publicity is so extensive and inflammatory that jurors could not remain impartial when exposed to it, People v Wytcherly, 172 Mich. App 213, 220; 431 NW2d 463 (1988); People v Prast (On Rehearing), 114 Mich App 469, 477; 319 NW2d 627 (1982), or that the jury was actually prejudiced or the atmosphere surrounding the trial was such as would create a probability of prejudice. Wytcherly, supra at 220; People v Bloom, 15 Mich App 463, 468-469; 166 NW2d 691 (1969).
When a juror, although having formed an opinion from media coverage, swears that he is without
Our review of the record in this matter leads us to conclude, for a number of reasons, that the trial court did not abuse its discretion in denying defendant Passeno’s motion for a change of venue. Although defendant Passeno alleged the existence of wide pretrial publicity, he provided no summary or examples of the media reports. He also failed to show that there was a pattern of strong community feeling against him, sufficiently strong to render all potential jurors partial, or that the jury was actually prejudiced. The trial court, by its careful individual examination of each potential juror, determined what exposure to the media reports each had and questioned each regarding impartiality. Those who expressed a problem in setting aside their feelings because of the media coverage were promptly excused for cause. We also note that Passeno did not renew his motion after the jury panel had been selected.
Because we conclude that the jury that was ultimately impaneled was competent to hear the evidence, and that Passeno did not make either of the showings necessary to entitle him to a change of venue, we affirm the .trial court’s denial of Passeno’s motion.
We also reject Passeno’s assertion that the trial court erred in denying his motion for a directed verdict at the conclusion of the prosecutor’s case in chief. Essentially, Passeno argues that insufficient evidence of premeditation and deliberation was presented to enable the original charges of first-degree murder and felony murder to go to the jury.
We first note that premeditation and delibera
To prove first-degree murder, the prosecutor must establish that the defendant’s intentional killing of another was deliberate and premeditated. People v Coddington, 188 Mich App 584, 599; 470 NW2d 478 (1991). Although the length of time needed to weigh a choice before it is made is incapable of a precise determination, there must be an interval during which a “second look” may be contemplated. Furman, supra at 308. A partial list of factors that may be considered by the trier of fact to determine if premeditation and deliberation are present includes: (1) the previous relationship between the victims and the defendant, (2) the defendant’s actions before and after the crime, and (3) the circumstances surrounding the killing itself, including the weapon used and the location of the wounds inflicted. Coddington, supra at 600.
The evidence presented during the prosecutor’s case in chief showed that the killings of both Wanda and Glenn Tarr were accomplished after they were taken from the comparative safety of their car and home, respectively, driven to an isolated park, walked down a path into the woods, and shot numerous times in the head from a distance of
IV2
to 2 feet by two weapons. Taking this evidence in a light most favorable to the prosecution, as we are required to do,
People v Petrella,
424 Mich 221, 268-270; 380 NW2d 11 (1985);
People v Lino,
190 Mich App 715, 720-721;
We also reject Passeno’s assertion that the admission in his trial of evidence of Michaels’ incriminating statements to another witness, absent a limiting instruction, requires reversal. Although it is true that evidence of incriminating statements of a codefendant, which interlock with the defendant’s confession, is admissible only when an appropriate limiting instruction is given, Parker v Randolph, 442 US 62; 99 S Ct 2132; 60 L Ed 2d 713 (1979); People v Jackson, 158 Mich App 544, 552-553; 405 NW2d 192 (1987), failure to give such an instruction does not always require reversal. “Where the evidence supplied through the confession is merely cumulative and other evidence of defendant’s guilt is overwhelming, the admission of a confession by a nontestifying codefendant is harmless beyond a reasonable doubt.” People v Hartford, 117 Mich App 413, 420; 324 NW2d 31 (1982). The record in this matter provides overwhelming evidence of Passeno’s guilt. We find that, although the trial court erred in admitting evidence of Michaels’ incriminating statements to another witness without a limiting instruction, any error that occurred was harmless. Reversal is not required.
Finally, both defendants challenge the sentences imposed by the trial court.
Passeno argues that the sentences imposed for his convictions of armed robbery and kidnapping constitute an abuse of discretion that should shock the conscience of the Court. Although we note that the appropriate standard is now whether the sen
Michaels challenges the trial court’s decision to sentence him as an adult in accordance with
MCR 6.931 is the court rule governing the hearings mandated by
We believe that the appropriate standard of appellate review of the trial court’s decision to sentence a minor as a juvenile or as an adult is a bifurcated one. First, the trial court’s findings of fact supporting its determination regarding each of the factors enumerated in
Simply put, Michaels’ characterization of the experts’ testimony is not supported by the record. Each of the experts recommended that Michaels be sentenced as an adult, noting the violent and serious nature of the crimes, that there was a substantial danger of recurring dangerous behavior, that Michaels would not be responsive to treatment, and that Michaels would be disruptive within the juvenile system.
The trial court, in a well-reasoned opinion, found that Michaels’ behavior was indicative of an increased violent state and part of a repetitive pattern; that the crimes committed were premeditated and deliberated, occurring over a period of time sufficient to enable Michaels to take a second look, which he did not do; that Michaels was a leader, not a follower, and had undertook to commit crimes of a “violent and reprehensible nature”; that rehabilitation, if possible, was more likely to occur in the adult system; and that the interests of the public welfare required sentencing as an adult. Given that our review of the record in this matter does not leave us with a definite and firm conviction that a mistake has been made, we affirm the findings of the trial court.
Similarly, we affirm the trial court’s decision to sentence Michaels as an adult. Given Michaels’
Affirmed in part, reversed in part, and remanded to the trial court for further proceedings in accordance with this opinion. We do not retain jurisdiction.