*1 v PRAST PEOPLE 2, 1980, Lansing. June Docket No. 78-4715. Submitted —Decided 23, April 1981. Court, Prast, by Circuit convicted in Genesee Michael J. Elliott, J., murder, first-degree Philip C. three counts conviction, contending by appeals that the trial court erred his grant change upon refusing his motion for a of venue based pretrial publicity by denying his motion to extensive pretrial lineup. suppress by at a identifications made witnesses Held: by denying 1. trial court its discretion defen- abused change community prejudice dant’s motion for of venue. The surrounding investigation and trial created great recognized ignore. too The trial court should have preconceived opinions held local substantial residents. suggestive pretrial improperly 2. An identification will not subsequent in-court identifica- constitute reversible error if the independent eight tion has an basis. Thre are factors to be determining considered in whether a in-court iden- retrial, tification has an basis. On if the trial court suggestive, pretrial lineup impermissibly finds the identification [1] [3,11] 21 Am Jur [5, [7] [8] [9,10] 29 Am Jur [4] [2] 47 Am Jur Admissibility 77 Am Jur 77 Am Jur Construction and effect of 77 Am Jur 6] 21 Am Jur 21 Am Jur 47 Am Jur 47 Am Jur 21 Am Jur justice. 74 ALR2d 16. tion of accused. 71 ALR2d 449. for the 21 Am Jur promotion 2d, 2d, 2d, Jury 2d, 2d, Jury 2d, 2d, 2d, 2d, References 2d, Venue 84.§ Venue 60.§ Venue 79.§ Jury 2d, Criminal Law 399. 2d, Criminal Law 422. Criminal Law 427. evidence as to Criminal Law Criminal Law § Evidence § §§ of the convenience of witnesses and the ends of § §§ 213 et 47-49. for Points in Headnotes statutory provision 269. seq. § § § 371. extrajudicial § 221 426. for identifica- of venue Prast those factors to whether an inde- it should consider determine supports pendent the in-court identification. basis changing entry of an order venue Reversed and remanded appropriate jurisdiction *2 trial. to a more for C.J., separately to Danhof, his concurred but wrote state unfortunate, decision, recognized by panel view that this as right necessary is because defendant’s constitutional trial impartial jury a fair due to an abuse before denied right of of the media of the First Amendment freedom the press.
Opinion of the Court Appeal Change — — — of Law. 1. Venue Venue Criminal change for a
The decision on a motion of venue is one that is the discretion of the trial court and such a decision within will absent a clear abuse of discretion. be reversed Change — — — of 2. Motions and Orders Venue Venue Burden of Proof. change making party a of
A a motion for venue bears the burden proving potential jury; of bias or adverse influence on the this showing pretrial publicity is not satisfied a mere of burden impartial jury unless it is also shown that an could not be obtained. Jury Newspaper Reports. — —
3. Criminal Law and Radio case,
Jurors who have heard or have read of a criminal without more, case, disqualified are not in the and their inclusion does not a defendant a fair trial. Jury Challenge — 4. for Cause. juror opinion may challenged
A who has formed an not be providing opinion positive cause is not character and juror impartial is able to render an verdict. Jury Impartial Jury. — — 5. Criminal Law jury guarantees person to a trial accused of a by panel impartial jurors crime a fair trial will render who presented a verdict on evidence the trial. Jury — — 6. Due Process Criminal Law. impression opinion
Jurors need not be without in a criminal law, process they case to accord the defendant must due but lay impressions be able to aside their base their verdict on the evidence. Impartial — Jury — — 7. Evidence Burden of Proof Juror. jury strong trial held where the is under the A influence of community feeling pattern deep and there is a and bitter law, prejudice process showing denies dúe but the burden of upon challenger. the existence of these conditions is Change — — 8. Criminal Law Venue of Venue. may properly request
A trial court defer determination on a for a attempt of venue in a criminal case until an has been county made to select a where the crime occurred. — — 9. Criminal Law Pretrial Identification In-Court Identifi- cation. improperly suggestive pretrial An identification does not result in reversible error if the in-court identification had an independent basis. — — — 10. Criminal Law Witnesses Evidence Identification. determining The factors to be considered in whether there exists basis for an in-court identification where there (1) improper pretrial has been an identification are: the identi- fying prior relationship knowledge witness’s with or *3 (2) defendant, offense, opportunity the witness’s to observe the length observation, this includes such factors as of time of the lighting, affecting sensory perception noise or other factor and (3) proximity alleged act, length criminad of the time (4) identification, disputed accuracy between the offense and the discrepancies prelineup showup description or or and the (5) description, any previous proper defendant’s actual identifi- (6) defendant, identify any cation or failure to identification lineup (7) showup person defendant, to or of another alleged physical psycho- the nature of the offense and the and victim, (8) logical any idiosyncratic special state of the features the defendant. by Danhof, Concurrence C.J. Change — — —
11. Criminal Law Venue Motions of Venue. is an abuse of discretion for a trial court to a defendant’s change motion pretrial for a of venue in a criminal trial where publicity impossible makes it for the defendant to obtain a trial impartial jury. before a fair and Kelley, Attorney Frank J. General, A. Robert Derengoski, General, Weiss, Solicitor Robert E. Prosecuting Attorney, Kuebler, Chief, Donald A. People v Prast
Appellate Division, Brown, and Edwin R. Assistant Prosecuting people. Attorney, for the appeal. Ghattas, defendant on
Habeeb Kelly C.J., M. J. and G. Before: R. Danhof, JJ. Corsiglia,* appeals Defendant his conviction Per Curiam. first-degree murder, three a on counts eight issues, 750.316; 28.548.
MCL
MSA
He raises
requires
one of
reversal for a new trial.
which
p.m.,
20, 1978,
March
at about 7:50
two men
On
Grocery
Flushing,
Store in
entered the Sunshine
Michigan, where two of the victims worked.
Shortly
patron
victim,
thereafter
the third
premises.
persons
store,
Several
also entered
adjoining parking
in
then
lot
heard three shots
get
run from the
and saw two men
a
store and
into
nearby
they escaped.
car,
in which
The case
received substantial attention
the local news
killings
media from the date of the
defendant’s trial. Prior
tions for
to the time of
trial,
to
defense mo-
change
pretrial venue due
disqualification
County
and for
circuit
of all Genesee
judges
Additionally,
were denied.
defense
suppress
motions to
dant,
defen-
identifications of
defendant,
a confession made
and intro-
alleged
weapon
duction of the
murder
denied.
alleges
The defendant
as error the trial court’s
grant
venue,
refusal
his motion for
upon
publicity.
based
MCL
extensive
*4
762.7; MSA 28.850. The decision on such a motion
court,
is one within the discretion of the trial
which decision
not
a clear
will
be reversed absent
People
Hughes,
abuse
85
of discretion.
v Gerald
*
judge, sitting
Appeals by assignment.
Circuit
on the Court of
App
105
744
748
Mich
(1978),
8,
moving
14;
[*] [*] [*] problem information "We deal with right feeling affecting to a a defendant’s fair trial. are referred to and examine detail We controlling. In American and decision of Irvin v Dowd Anglo-Saxon jurisprudence there is the invaluable jury. panel impartial jurors. There must be a verdict on must be a fair which renders a tribunal presented proceeding at trial to meet evidence for a necessary process. minimum standards of due It is not must, impression opinion. They they be without however, impressions and base lay be able to aside their strong is their verdict on the evidence. Where there deep bitter community feeling pattern and a *5 People 749 Prast v opin- influence of that community, prejudice strong impression, nearly impossible ion makes a average processes man. from the mental detach process. due such influence denies Trial under burden of these conditions is showing the existence of challenger.” on the People Garland, v 243; 44 205 App Mich
See also
People Freeman,
v
(1972),
App
16 Mich
195
NW2d
People
Bloom, 15
v
(1969),
and
63;
4. No against perceived. defendant was against
5. disclosed no bias The record of trial Hughes, su- v Gerald defendant. See also pra. side opposite
We count all of these factors on the of inves- ledger Throughout period here. arrest, trial, tigation and again prior extensive local radio and television newspaper, coverage Photographs recurred. of the defendant codefendant, Newell, published on Ricky occasions, directed to their several with attention published A local also prison newspaper records. taped from the defendant’s confession. excerpts coverage comprehensive effect this The demonstrated during jury the 47 selection. Of panel, questioned only for the four veniremen Among nothing slayings. knew eventually about panel, to serve on the had selected radio, heard of the sion, slayings. on the nine from televi- case newspaper accounts of the also knew of the they and nine from *6 jurors of these One Only that confession. two of the stated nothing knew of the crime.
Additionally, unlike the circumstances in Collins acqui- Hughes, defense counsel herein did when he had esce in the selection at a time peremptory challenges Stockard, hand. supra. only Rather, was selected after challenges peremptory defense counsel’s were ex- Finally, hausted. our of the record indicates review "strong feeling” against that a apparent. defendant was See the comments of petitioner application for Justice Levin Collins’ (1974). During leave, dire, 806-807 voir preconceived opinions numerous instances following repre- colloquy is uncovered. perspective potential many sentative of the jurors: you you "Mr. Jones Do recall that [defense counsel]: Mr. allegedly
did read or hear about a confession which Prast made? it, yes.
"Juror No. 10:1 read about Now, time, you "Mr. that form an Jones: did opinion guilty? to whether or not Mr. Prast was as No, opinion
"Juror No. 10: I could not form the then. you saying you
"Mr. Jones: What are then that is you read make heard about the confession but did not any judgment guilty? yes, or decision that he was confession, Well, concerning you "Juror 10: No. know, it, if he said well then— People v Prast Then he it? "Mr. Jones: did 10: Yes. "Juror No. you any
"Mr. Did opinion Jones: form as to what with thing? should be done a man who would do such forming 10:1 opinion "Juror No. do not remember with what should be done him. [as to] "Mr. Jones: you; not matter to is that it? did Well, matter, No. 10: it cannot yes, "Juror did I but opinion. I remember whether formed an "Mr. recall you Jones: do that Mr. Prast Then involved, people identified as one of the is that correct?
"Juror No. 10: Yes. Now, knowing "Mr. Jones: the law enforcement agencies County in Genesee did in fact take Mr. Prast custody into trial, and that he is now set for or must stand think you
do there is a probability or a possibility that he is guilty? 10:
"Juror No. Yes. "Mr. probably Jones: That he is is guilty, that cor- indicating shaking rect? You are your you head that probably think guilty, he is is that correct? Well,
"Juror No. 10: far as the evidence now is concerned— *7 "Mr. I juror prospective Jones: will ask to have the —
juror excused from the so I up can take a matter room Judge. with the "The you Court: What do want to ask him? "Mr. I Jones: want ask question fifty-six, to that you I think which have ruled— going "The Court: am you to I allow ask question fifty-six. Any challenge "The Court: for by prose- cause the cutor? No, your
"Mr. McGraw: Honor. Jones, "The Court: Mr. challenge for cause? Yes, "Mr. your Jones: Honor. challenge "I would him for cause. He has stated that would, therefore,
he probably guilty. feels he is I ask that he be excused for cause. App 752 105 744 I that.” will "The Court: prejudice by created think the We investigation surrounding the ignore. Although great it was trial was too proper mo- a decision on the defendant’s to defer attempt made, tion until an to draw a was (1912), People Swift, 473; 172 Mich 138 NW v recognized substan- should have trial court preconceived opinions by held local residents. tial court, circumstances, we these the trial Under think, by denying defendant’s abused its discretion most unfortu- motion of venue. is a because the evidence on nate and difficult decision compels the verdict the record the conclusion that was correct. . disposition this issue renders further
Our remaining unnecessary. as to the issues decisions question again may However, because the arise during retrial, a second issue raised we address defendant. alleges re-
Defendant error the trial court’s suppress evidence of the defendant’s iden- fusal to argues pretrial lineup. He tification at a lineup publicity tainted the because his picture published and viewed witnesses improperly However, to the identification. an suggestive pretrial not consti- identification will reversible error if the in-court tute People v identification has an basis. (1979), App Reynolds, 516; 93 Mich NW2d Stanton, v 97 Mich 296 NW2d (1980). People Kachar, 78, 95-96; 252 In (1977), Supreme Court itemized presence eight *8 factors which indicate the of independent basis: v Prast by Danhof, C.J. Concurrence relationship knowledge
"1. Prior with or the defen- dant. opportunity "2. This in- to observe the offense. observation, length
cludes such factors as lighting, of time of the percep- affecting sensory noise or other factor proximity alleged tion and criminal act. Length "3. of time the between offense and the dis- Anderson, [People puted identification. See 155; (1973)], for analysis the curve of forgetting. Accuracy discrepancies "4. pre-lineup or description showup description. and defendant’s actual previous proper "5. or Any identification failure to identify defendant. "6. Any lineup showup identification or person
another as defendant. consideration, "7. Still another not mentioned in Wade, States 218; US Ct 87 S 18 L [United v] [388 (1967)], Ed 2d 1149 but essential to a determination of judging reliability perceptions of the witness’s is the alleged nature of the physical offense and the * * psychological state of the victim *. Any idiosyncratic special "8. features of defen- dant.” retrial, if
On court trial finds the lineup suggestive, impermissibly identification it should consider the above factors to determine supports whether an basis the in- cóurt identification
The defendant’s conviction is reversed and the entry changing case is remanded for of an order appropriate jurisdiction venue to a more for trial. (concurring). C.J. I concur with the Danhof, majority analysis. result reached and their therein, As stated it is unfortunate that defendant should obtain a retrial because the evidence against overwhelming guilt him was his can- not be However, doubted. this case illustrates what *9 by Danhof, C.J. Concurrence effect of combined from the result sometimes can press right of the of freedom the constitutional a fair trial before a defendant’s and impartial jury. newsworthy certainly event at a The crime was the occurrence, was its the time of apprehension suspects. However, the various of the not content were news media elements simply report engaged they Instead, the incident. competition who could to see in put frenzied an almost publicity story. most sensational forth the apprehension, but then defendant’s subsided after pitch again the time at to rise to fever began. it seemed very time the Indeed, the trial being prospective jurors interviewed at were subjected they examination, voir dire glare lights which were and cameras of télevision judge’s hallway cham- outside the stationed being was conducted.1 examination bers where the recognized by This additional judge the trial of the transferred when he trial jurisdiciton.2 to another codefendant example what this case is an I believe enjoy transpire benefit of when those who can responsi- accept fail to the First Amendment go with bilities it._ transcript, p 136. Voir dire three counts Ricky Newell was convicted Codefendant first-degree the conviction this Court affirmed murder and (Docket 78-4640, November decided No. v Newell [unreported]).