PEOPLE OF MI V MICHAEL JOHN FLETCHER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
February 10, 2004
9:10 a.m.
Plaintiff-Appellee,
v
No. 229092
Oakland Circuit Court
LC No. 99-168523
MICHAEL JOHN FLETCHER,
Defendant-Appellant.
Updated Copy
April 23, 2004
Before: Zahra, P.J., and Fort Hood and Schuette, JJ.
ZAHRA, P.J.
Defendant appeals as of right his jury trial convictions of second-degree murder, MCL
750.317, and possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. The trial court sentenced defendant to life in prison for the second-degree murder
conviction, to be served consecutively to two years' imprisonment for the felony-firearm
conviction.
Defendant raises six issues on appeal, one of which requires us to consider whether
defendant's convictions should be set aside and a new trial granted or, in the alternative, whether
defendant is entitled to an evidentiary hearing to determine whether defendant should be granted
a new trial because of juror misconduct. Defendant relies on a nationally televised ABC
television broadcast entitled 20/20 Downtown to argue that the jury impermissibly conducted an
experiment during jury deliberations that tainted the jury verdict. Accepting as true ABC's
description of the jury's deliberations, we conclude the trial court properly denied defendant's
motion for a new trial and request for an evidentiary hearing. The experiment about which
defendant complains was nothing more than a reenactment by the jury of the events about which
the jury heard testimony. Such conduct does not undermine a verdict, even if the jury's
reenactment proves to be inconsistent with or contrary to the actual evidence presented at trial.
We conclude there is no merit to this or any other issue presented by defendant. We affirm.
I. Facts and Procedure
Defendant and the victim, Leann Fletcher, were married in 1993 and had a daughter in
1995. In 1997, defendant became involved in an extramarital affair with Susan Chrzanowski, a
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local district judge. Thereafter, defendant exhibited a pattern of vacillation between continuing
his marriage and ending his marriage to pursue his relationship with Chrzanowski. Defendant
separated from Leann twice after August 1998, but reconciled and returned to the marital home
both times. During this time, Chrzanowski informed defendant she was unwilling to continue
her involvement with him if he were sexually active with Leann. Defendant assured
Chrzanowski that he was not sexually active with Leann and that divorce was inevitable.
On the afternoon of August 16, 1999, defendant and Leann went to a shooting range.
Defendant, who had owned a .45 caliber Smith & Wesson pistol for almost a year, had never
before taken Leann to a shooting range. Defendant and Leann left the shooting range after
Leann had fired the gun once. Shortly after returning home, defendant called 911 and reported
that Leann had shot herself. Defendant informed the dispatcher that they had just returned from
the shooting range and that the gun discharged while Leann attempted to reload it. Leann was
dead before emergency medical services personnel and the police arrived.
The police immediately obtained a warrant that, in pertinent part, authorized the police to
search and seize "[e]vidence of a fatal shooting including but not limited to any and all weapons
and ammunition, spent casings, blood and/or any objects which may be on the premises which
appear to have blood stains upon them . . . ." While executing the search warrant, Police
Sergeant Thomas Cleyman found a complaint for divorce in defendant's desk and seized it,
concluding it constituted evidence of a motive to murder Leann. Sergeant Cleyman then
discovered photographs and correspondence between Chrzanowski and defendant and greeting
cards of a romantic nature, all of which were contained in a brown, expandable envelope found
in the closet of an upstairs bedroom that defendant used as a home office. Sergeant Cleyman
seized the envelope and its contents, concluding they were evidence of an extramarital
relationship, which also constituted evidence of a motive to murder Leann. Thereafter,
defendant was arrested for Leann's murder.
Defendant was charged with first-degree murder, MCL 750.316, assault of a pregnant
individual with the intent of causing a miscarriage or stillbirth, MCL 750.90a, and two counts of
felony-firearm, MCL 750.227b. The district court bound defendant over on all the charges. In
the circuit court, defendant moved to suppress the contents of the brown, expandable envelope
seized by Sergeant Cleyman from defendant's home office, arguing Sergeant Cleyman did not
have probable cause to believe the envelope contained any of the items enumerated in the search
warrant. The trial court denied defendant's motion to suppress the evidence, concluding the
contents of the envelope were properly seized under the plain view doctrine.
Defendant also moved to quash the charge of assault with intent to cause a miscarriage.
Defendant argued, among other things, that there was no evidence a miscarriage occurred,
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because the dissolution of an embryo at an early stage was not a stillbirth or miscarriage as
required under the statute. The trial court denied the motion1 and the case proceeded to trial.
After the prosecution rested its case, the trial court granted defendant's motion for a
directed verdict on the charge of assault with intent to cause a miscarriage, because the medical
examiner had testified that Leann did not undergo either a stillbirth or a miscarriage as those
terms are medically understood. The case was presented to the jury on the remaining charges of
first-degree murder and felony-firearm. The jury returned a verdict of guilty of the lesser
included offense of second-degree murder and felony-firearm.
In November 2000, more than four months after the jury rendered its verdict, ABC aired
the 20/20 Downtown broadcast. The episode was entitled "Final Verdict" and featured
defendant's trial. It appears only ten of the twelve jurors who rendered the verdict were
interviewed in conjunction with this television production.2 The broadcast represented that at
the early stages of deliberation, eight jurors believed defendant was guilty. The broadcast
reported that while the jurors were skeptical of the prosecution's evidence, most of the jurors
were convinced defendant sounded insincere in his 911 call. The broadcast further reported that
additional deliberations persuaded all but one juror that defendant was guilty.
The hold-out juror, according to the broadcast, became convinced of defendant's guilt
when the jury used the gun that inflicted the fatal wound to conduct several reenactments of the
events about which testimony was offered.3 The television broadcast suggested these
reenactments caused at least the hold-out juror and perhaps other jurors to conclude that the
location of the gun at the crime scene did not support the conclusion that Leann shot herself.
Therefore, the hold-out juror concluded defendant must have shot Leann.
Following the broadcast, defendant moved for a new trial on the ground of juror
misconduct during deliberations. Defendant argued that jurors' reenactments amounted to
extrinsic evidence of unreliable and improper experiments that strongly influenced the jury to
1
This Court denied defendant's application for leave to bring an interlocutory appeal of the trial
court's denial of the motion to quash.
2
We are highly suspect of assertions contained in a television broadcast, particularly where, as
here, the purpose of the broadcast is primarily to entertain rather than objectively find facts that
are legally germane to a criminal proceeding. Obviously, ABC did not air the complete
interviews of all the jurors who participated in the broadcast. The interviews were edited to
reveal only those portions of the interviews that ABC's programming editors concluded were
relevant to the broadcast's entertainment purpose. Likewise, we are not privy to the full context
and array of questions that led to the responses from jurors that ABC elected to air in its
broadcast. Nonetheless, for purposes of resolving this appeal, we accept as true defendant's
contention that ABC accurately described the jury deliberations.
3
This gun was admitted in evidence and properly provided to the jury during deliberations.
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convict him. Defendant argued, in the alternative, that an evidentiary hearing should be
conducted to investigate whether there was juror misconduct. The trial court denied the motion
for a new trial and for an evidentiary hearing, concluding that the only evidence defendant
presented in support of his claim of juror misconduct was the videotape of the 20/20 Downtown
broadcast, which was inadmissible hearsay evidence. The trial court further found that even if
the jury deliberated in the manner depicted in the television broadcast, the jurors' conduct was
not improper. This appeal followed.
II. Analysis
A. Juror Misconduct During Deliberations
Defendant argues that the trial court erred in denying his motion for a new trial or an
evidentiary hearing based on juror misconduct arising from the consideration of extrinsic
evidence produced outside the trial proceedings. Defendant alleges this behavior deprived him
of his Sixth Amendment rights of confrontation, to cross-examination, and to the assistance of
counsel.4 Moreover, defendant maintains that the jury, through its consideration of extrinsic
evidence, impermissibly shifted the burden of proof to defendant.
Initially, we conclude, as did the trial court, that defendant failed to present admissible
evidence in support of his motion for a new trial. The videotape of ABC's 20/20 Downtown
broadcast is inadmissible hearsay evidence that cannot support a claim of juror misconduct.
People v Budzyn, 456 Mich 77, 92 n 14; 566 NW2d 229 (1997). Defendant responds that, at a
minimum, he should be entitled to an evidentiary hearing to determine whether the
representations in the ABC broadcast are meritorious. However, remanding this case for an
evidentiary hearing on this point would be futile. As more fully explained in this opinion, even
if we accept as true defendant's account of the jurors' deliberations, defendant has nonetheless
failed to demonstrate that the verdict was affected by impermissible extrinsic evidence.
Traditionally, the "near-universal and firmly established common-law rule in the United
States flatly prohibited the admission of juror testimony to impeach a jury verdict." Tanner v
United States, 483 US 107, 117; 107 S Ct 2739; 97 L Ed 2d 90 (1987), citing 8 Wigmore,
Evidence (McNaughton rev ed, 1961), § 2352, pp 696-697. The only recognized exception to
this common-law rule related to situations in which the jury verdict was affected by extraneous
4
Preliminarily, we must address the prosecution's claim that defendant has waived this issue on
appeal because, during closing arguments, defendant urged the jury to attempt to reenact the
facts supporting the people's expert witnesses. We decline to conclude that this statement made
during closing argument amounts to a waiver of this issue by defendant. Defendant does not
maintain that the jury erred by attempting to recreate the facts that were the subject of the
testimony, as requested by his trial counsel. Rather, defendant maintains that the jury's
reenactment exceeded the bounds of acceptable deliberation and instead amounted to extrinsic
evidence that subjected the jury to extraneous influences outside the trial proceedings.
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influences. Tanner, supra at 117, citing Mattox v United States, 146 US 140, 149; 13 S Ct 50;
36 L Ed 917 (1892). Stated differently, where there is evidence to suggest the verdict was
affected by influences external to the trial proceedings, courts may consider juror testimony to
impeach a verdict. However, where the alleged misconduct relates to influences internal to the
trial proceedings, courts may not invade the sanctity of the deliberative process.
Our justice system has long recognized the significant policy considerations that weigh
against the admission of juror testimony to impeach a verdict:
[L]et it once be established that verdicts solemnly made and publicly
returned into court can be attacked and set aside on the testimony of those who
took part in their publication and all verdicts could be, and many would be,
followed by an inquiry in the hope of discovering something which might
invalidate the finding. Jurors would be harassed and beset by the defeated party
in an effort to secure from them evidence of facts which might establish
misconduct sufficient to set aside a verdict. If evidence thus secured could be
thus used, the result would be to make what was intended to be a private
deliberation, the constant subject of public investigation—to the destruction of all
frankness and freedom of discussion and conference. [McDonald v Pless, 238 US
264, 267-268; 35 S Ct 783; 59 L Ed 1300 (1915).]
These policy considerations also support the rule that invasions into the deliberative process
should be limited to situations where there is evidence that influences external to the trial
proceedings affected the verdict. Tanner, supra at 120.
The Michigan Supreme Court in Budzyn, supra at 88-90, set forth a procedure to
determine whether extrinsic or external influences affect a jury verdict:
In order to establish that the extrinsic influence was error requiring
reversal, the defendant must initially prove two points. First, the defendant must
prove that the jury was exposed to extraneous influences. Second, the defendant
must establish that these extraneous influences created a real and substantial
possibility that they could have affected the jury's verdict. . . . If the defendant
establishes this initial burden, the burden shifts to the people to demonstrate that
the error was harmless beyond a reasonable doubt. We examine the error to
determine if it is harmless beyond a reasonable doubt because the error is
constitutional in nature. The people may do so by proving that either the
extraneous influence was duplicative of evidence produced at trial or the evidence
of guilt was overwhelming. [Citations omitted.]
Juror affidavits "may only be received on extraneous or outside errors, such as undue influence
by outside parties." Id. at 91. Any conduct, even if misguided, that is inherent in the
deliberative process is not subject to challenge or review. A jury verdict may be challenged on
the basis of juror misconduct only when the verdict is influenced by matters unrelated to the trial
proceedings. In this regard, the Supreme Court explained:
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[T]he distinction between an external influence and inherent misconduct is
not based on the location of the wrong, e.g., distinguished on the basis whether
the "irregularity" occurred inside or outside the jury room. Rather, the nature of
the allegation determines whether the allegation is intrinsic to the jury's
deliberative process or whether it is an outside or extraneous influence. [Id.]
Applying this procedure here, we must first consider whether the jurors' reenactment with
the gun amounted to an external influence that affected the jury verdict. In Budzyn, supra at 8087, two Caucasian police officers were convicted of second-degree murder of an AfricanAmerican man that occurred while the police officers were engaged in their police duties. The
defendants claimed that the jurors in this highly publicized and racially charged trial were
improperly influenced by media reports of an expected riot if the defendants were acquitted, by
exposure during a jury recess to the film Malcolm X, which depicted a scene of Caucasian police
officers beating an African-American man and numerous scenes of civil unrest, and by partly
erroneous rumors that the police officer defendants had participated in the STRESS5 unit of the
Detroit Police Department. Id. at 90. Our Supreme Court concluded that these matters "were
extraneous to the trial proceedings and did not result exclusively from juror misconduct inherent
in the verdict." Id. at 92.
This case stands in sharp contrast to the misconduct that occurred in Budzyn. There, the
movie Malcolm X, the warnings of riots, and the information on STRESS were never presented
during trial. Budzyn, supra at 90. Thus, the Budzyn jurors clearly considered during their
deliberations matters extraneous to the trial testimony. Id. By contrast, the jurors here based
their deliberations exclusively on the testimony elicited during the trial. The jury considered
testimony that Leann was probably sitting on the bed when she was shot and testimony from one
witness about where the gun should have landed. The reenactment was closely intertwined with
the deliberative process and was not premised on anything other than the jurors' collective
account of the evidence presented in open court.
A jury was also found to have been influenced by an improper external influence in Doan
v Brigano, 237 F3d 722, 725-727 (CA 6, 2001). In Doan, supra at 725-726, a defendant in an
Ohio criminal proceeding was convicted of murdering his girlfriend's fifteen-month-old child.
The defendant claimed that he had given the child a bath the night she died, and that he did not
observe bruises on her body because the bathroom was too dark. Id. at 725. After the defendant
was convicted, one of the jurors told the defense counsel that she had tested this allegation in her
home by drawing bruises on herself with lipstick to see if they were visible in a dark room. Id. at
726-727. She later reported to the other jurors that the "bruises" were visible under these
conditions. Id. at 727. The trial court denied a motion for a new trial based on juror misconduct.
Id. The defendant exhausted his appeals in state court and petitioned the federal court for habeas
5
STRESS (Stop the Robberies Enjoy Safe Streets) was a special decoy unit widely accused of
police brutality toward young African-American males. Id. at 90 n 12.
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corpus relief. Id. The Sixth Circuit Court of Appeals concluded that the juror's experiment
constituted an improper extraneous influence on the jury. Id. at 733.
This case is distinguishable from Doan, where the juror conducted the experiment on her
own and, in effect, "testified" to the other jurors about her results. Indeed, the Sixth Circuit
Court of Appeals in Doan stated that the juror acted as an "expert witness." Id. at 733. In
contrast, here no juror conducted any type of reenactment outside the jury room or outside the
presence of the other jurors. Instead, the jurors worked together throughout their deliberations to
evaluate competing trial theories. The jurors were charged with the responsibility to talk the
matter through, by mentally hypothesizing the events of the shooting. The jurors were free to
consider and discuss any matter they believed important to the resolution of this case, including a
discussion on where the gun should have landed if Leann shot herself. That one juror apparently
simulated a fall off of a table in the jury room and dropped the gun during this simulation is
simply an outgrowth of such mental hypothesizing.
The essence of defendant's argument is that the reenactment was an improper extraneous
influence on the jury because it amounted to a faulty experiment that was unscientific and based
on a mischaracterization of the evidence presented at trial. It is true the jury lacked information
regarding the dimensions of the shooting scene and the exact placement of the furniture at the
scene, and may have erroneously based their experimentation on crime-scene photographs that
depicted Leann's body after it had been moved, rather than in the place where she landed after
being shot. However, defendant's argument is without legal merit. The alleged wrongdoing by
the jury is a risk of error that is inherent in the deliberative process. Such claims simply are not
subject to review. Tanner, supra at 121; Budzyn, supra at 91. Where, as here, the jury bases its
deliberation on the jurors' collective recall of the testimony presented at trial, the jury's verdict
will not be set aside for alleged misconduct simply because the jury's interpretation of the
evidence resulted in questionable or arguably faulty assumptions.
Likewise, defendant's claim that the jury impermissibly shifted the burden of proof away
from the prosecution is without legal merit. That the jurors expressed some doubts about the
prosecution's evidence is not reason to conclude that the jury shifted the burden to defendant.
The jurors must consider the case in its entirety and may find a defendant guilty beyond a
reasonable doubt despite finding that some of the prosecution's evidence lacks credibility. The
20/20 Downtown broadcast suggests the jurors did not find defendant credible. Thus, it appears
the jurors gave due consideration to all the evidence presented at trial and properly followed
their instructions relating to the application of the burden of proof.6 The trial court properly
denied defendant's motion for a new trial.
6
We acknowledge that one juror is quoted in the 20/20 Downtown broadcast as saying, "We
didn't have the evidence to show that [defendant] actually shot her, but we finally determined
that it was—beyond a reasonable doubt that [Leann] did not shoot herself. Therefore, he must
have." We find this statement to be ambiguous and legally immaterial to our analysis. The first
(continued…)
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B. Evidence Seized from Defendant's Home Office
Defendant next argues that Sergeant Cleyman unlawfully searched and seized the
contents of the brown, expandable envelope discovered in defendant's home office. Defendant
concedes that the police were lawfully in his home office and that Sergeant Cleyman lawfully
opened the brown, expandable envelope and looked inside. However, defendant maintains that
once Sergeant Cleyman looked inside the envelope, it should have been apparent to him that the
contents of the envelope did not fall within the array of items enumerated in the search warrant.
Defendant maintains that, at that point, Sergeant Cleyman should have closed the envelope and
ceased any further intrusion into defendant's privacy. Defendant contends a "search" took place
when Sergeant Cleyman removed and looked at the documents and saw they revealed
defendant's extramarital affair.7 Defendant argues that the contents of this envelope, which
produced evidence of his extramarital affair with Chrzanowski, should have been suppressed
because they were the fruits of an illegal search. The prosecutor argues that the search and the
seizure of the contents of the envelope were permissible under the plain view doctrine.
Both the federal and Michigan constitutions protect persons from unreasonable searches
and seizures. US Const, Am IV; Const 1963, art 1, § 11; People v Champion, 452 Mich 92, 97;
549 NW2d 849 (1996). In Champion, supra at 101, our Supreme Court summarized the plain
view doctrine:
The plain view doctrine allows police officers to seize, without a warrant,
items in plain view if the officers are lawfully in a position from which they view
the item, and if the item's incriminating character is immediately apparent.
Horton v California, 496 US 128; 110 S Ct 2301; 110 L Ed 2d 112 (1990);
People v Cooke, 194 Mich App 534; 487 NW2d 497 (1992). A fundamental
(…continued)
portion of the statement—"[w]e didn't have the evidence to show that [defendant] shot her"—
could reasonably be construed to mean there was no direct evidence defendant was the shooter
and the evidence against defendant was purely circumstantial. The second portion of the
statement—"it was—beyond a reasonable doubt that [Leann] did not shoot herself"—may
suggest the jury shifted the burden to defendant to show beyond a reasonable doubt that Leann
shot herself. However, the final portion of the statement—"Therefore, [defendant] must have
[shot Leann]"—establishes that the jury concluded Leann was shot by the only other person in
her home on the day of her murder—defendant. In any event, these issues are legally
immaterial. Viewing these issues in a light most favorable to defendant, these alleged errors
amount to nothing more than juror misconduct inherent in the deliberative process that cannot be
established by juror testimony. Budzyn, supra at 91.
7
Although not advanced by the prosecution, a valid argument may be made that Sergeant
Cleyman was authorized by the search warrant to remove the contents of the expandable
envelope and examine each item in detail, because the search warrant authorized the search and
seizure of "any objects which may be on the premises which appear to have blood stains upon
them . . . ." Thus, pursuant to the plain terms of the search warrant, Sergeant Cleyman had the
right to examine the contents of the envelope to determine whether any item was bloodstained.
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characteristic of the doctrine is that it is exclusively a seizure rationale. No
searching, no matter how minimal, may be done under the auspices of the plain
view doctrine.
We review a trial court's findings of fact in a suppression hearing for clear error. People v
Custer, 465 Mich 319, 324; 630 NW2d 870 (2001). However, whether there has been a
violation of the Fourth Amendment and application of the exclusionary rule resulting from a
constitutional violation are matters of law that we review de novo. Id. at 326.
In Arizona v Hicks, 480 US 321; 107 S Ct 1149; 94 L Ed 2d 347 (1987), the United
States Supreme Court considered whether an impermissible search took place when a police
officer, who was lawfully in the defendant's apartment under the exigent circumstance exception
to the warrant requirement, moved components of a stereo to view their serial numbers. The
United States Supreme Court rejected the prosecution's argument that there was no "search" or
"seizure" when the officer moved the equipment to read the serial numbers. Id. at 325. The
Supreme Court concluded that "taking action, unrelated to the objectives of the authorized
intrusion, which exposed to view concealed portions of the apartment or its contents, did produce
a new invasion of respondent's privacy unjustified by the exigent circumstance that validated the
entry." Id. The Supreme Court then considered the plain view doctrine. Id. at 325-326. The
Supreme Court stated that because the officer went beyond looking at items in plain view and
actually moved the item to see the serial number, the plain view doctrine did not apply. Id. The
Supreme Court stated that probable cause was required before the police could extend the search.
Id. at 326. The Supreme Court held that the plain view doctrine "'may not be used to extend a
general exploratory search from one object to another until something incriminating at last
emerges.'" Id. at 328, quoting Coolidge v New Hampshire, 403 US 443, 466; 91 S Ct 2022; 29 L
Ed 2d 564 (1971).
In Custer, supra at 336, the Michigan Supreme Court distinguished Hicks when it
considered whether a police officer who was conducting a lawful patdown search for drugs
committed an illegal search when he removed from the defendant's pocket and viewed three
photographs that depicted the defendant's companion posed with large quantities of marijuana in
the defendant's living room. When the officer removed the photographs from the defendant's
pocket, only the backs of the photographs were visible and it was apparent to the officer that
these photographs were not, as the officer had suspected, a piece of cardboard that contained an
illegal drug known as blotter acid. Id. at 335-336. The defendant maintained that, pursuant to
Hicks, the officer committed an illegal search when he turned the photographs over so he could
view them, fully knowing at that time that the photographs were not illegal drugs. Id. at 333334.
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Our Supreme Court disagreed,8 observing that the officer lawfully removed the
photographs pursuant to the "plain feel" doctrine, which is analogous to the plain view doctrine.
Id. at 331-332; see also Minnesota v Dickerson, 508 US 366; 113 S Ct 2130; 124 L Ed 2d 334
(1993); Champion, supra at 100-101. Because the officer had probable cause to suspect that the
items he felt in the defendant's pocket contained blotter acid, he could lawfully seize them.
Custer, supra at 332. Our Supreme Court then addressed whether the officer violated the Fourth
Amendment when he turned the photographs over:
In this case, when the officer turned the lawfully seized photographs over
to examine their fronts, this was not a constitutional "search" for purposes of the
Fourth Amendment. At this point, defendant's reasonable expectation of privacy
in the outer surfaces of the photographs had already been significantly
diminished, at least sufficiently to justify the officer's turning over and looking at
the photographs. The photographs were already lawfully seized by the officer.
Once an object is lawfully seized, a cursory examination of the exterior of that
object, like that which occurred here, is not, in our judgment, a constitutional
"search" for purposes of the Fourth Amendment. See [Hicks, supra at 325-326].
This is true because a cursory examination of the exterior of an object that has
already been lawfully seized by the police will produce no additional invasion of
the individual's privacy interest. [Custer, supra at 333-334 (emphasis in
original).]
Our Supreme Court further observed that its decision permitted the police to move a lawfully
seized object to look at its outer surface or exterior. Id. at 334 n 5. Our Supreme Court
distinguished the turning over of the photographs from the moving of the stereo equipment in
Hicks:
Again, we emphasize that the turning over of the photographs occurred
only after the police had already lawfully seized them from defendant. The
reason that the police, in this case, were allowed to turn the photographs over was
because they already had valid possession of them. In Hicks, supra at 326, the
United States Supreme Court held that the police could not move stereo
equipment to see the serial numbers on it because the police lacked probable
cause to believe it was contraband before they moved it. However, in this case,
the Court of Appeals correctly determined that the photographs had already been
8
Justice Markman's opinion appears to have been approved by a majority of the Court. Chief
Justice Corrigan and Justice Taylor joined Justice Markman's opinion and Justice Weaver wrote
a separate concurring opinion in which she cautioned against construing the plain view analysis
of Champion too broadly in the future. Custer, supra at 345. Justice Weaver's concurring
opinion does not criticize any aspect of the majority opinion and expressly concurs in the result
reached by the majority.
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lawfully seized by the police. Where Hicks involved a preseizure movement or
action by the police, the present case involves a postseizure movement or action.
The police cannot manipulate an object in order to determine whether it is
contraband; it must be immediately apparent from plain view or plain feel that the
object is contraband. Id. In the present case, the police did not move the object to
examine it more closely in order to determine whether it was, in fact, contraband;
rather, the police already had probable cause to believe that it was contraband
upon plain feel, and only after the object was validly seized did they move the
object to examine it more carefully. Because the officer had already lawfully
seized the photographs when he turned them over to examine their fronts, and
because defendant's reasonable expectation of privacy in the outer surfaces of
those photographs had, at the least, been significantly diminished, there was no
constitutional "search" for purposes of the Fourth Amendment.
* * *
. . . The law should not turn on the serendipity of which side of the
photographs were facing up when the officer removed them from defendant's
pocket. Rather, the law turns on whether the officer's actions violated any of
defendant's constitutional rights. We do not believe that they did. Regardless of
which side of the photographs came out facing up or down, the officer could look
at all the sides of the photographs without violating any of defendant's
constitutional rights. Therefore, we conclude that the turning over and examining
of the other side of the photographs by the police, under the circumstances of this
case, did not deprive defendant of his constitutional rights under the Fourth
Amendment of [the] United States Constitution or Const 1963, art 1, § 11.
[Custer, supra at 335-338.]
Applying the above-described legal principles to the facts presented here, we conclude
that the point when Sergeant Cleyman looked inside the envelope is analogous to when the
police officer in Custer removed the objects from the defendant's pocket and saw from their back
that they were photographs and not a blotter acid card. Just as the Custer defendant's privacy
interest in the photographs became sufficiently diminished to allow the officer to examine them
by turning the photographs over, defendant's privacy interest in the contents of the expandable
envelope became sufficiently diminished to allow Sergeant Cleyman to make a cursory review of
the items contained in the envelope. Sergeant Cleyman testified that he immediately recognized
the woman in the photograph as District Judge Chrzanowski and that the romantic letters
contained within the envelope were on Chrzanowski's office stationery. Thus, the incriminating
nature of the contents of the expandable envelope was readily apparent and in plain view once
the contents of the expandable envelope were exposed. The expandable envelope was lawfully
seized, it was lawfully opened, and its contents were lawfully exposed. Sergeant Cleyman could
therefore lawfully examine the contents of the envelope. The trial court did not err in denying
the motion to suppress.
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C. The Charge of Assault of a Pregnant Individual with Intent to
Cause a Miscarriage or Stillbirth
Defendant next argues that there was insufficient evidence to bind him over on the charge
of assaulting a pregnant person with intent to cause a miscarriage or stillbirth, and evidence
relating to this charge should not have been presented to the jury. Although acquitted of this
charge by a directed verdict, defendant maintains the error was unduly prejudicial because the
jurors repeatedly heard testimony that Leann was pregnant and that her child died with her.
This Court reviews for an abuse of discretion both a district court's decision to bind a
defendant over for trial and a trial court's decision on a motion to quash an information. People
v Hamblin, 224 Mich App 87, 91; 568 NW2d 339 (1997). Whether the error is of constitutional
proportion will turn on the specific facts of each case. Generally speaking, however, the
erroneous denial of a motion to quash one count in a case involving multiple counts will result in
a claim that unduly prejudicial and irrelevant evidence was presented to the jury. These claims
of error do not rise to constitutional proportion. That is the case here. Thus, to the extent that
the trial court erred in denying defendant's motion to quash the charge of assault of a pregnant
individual with the intent to cause a miscarriage or stillbirth, defendant carries the burden of
establishing that this preserved nonconstitutional error resulted in a miscarriage of justice under
a "'more probable than not' standard." People v Carines, 460 Mich 750, 774; 597 NW2d 130
(1999), quoting People v Lukity, 460 Mich 484, 497; 596 NW2d 607 (1999). More specifically,
defendant must demonstrate that it is "more probable than not that the outcome [of his trial]
would have been different without this error." Lukity, supra at 497.
For purposes of addressing this issue, we shall assume without deciding that the trial
court erred by failing to grant defendant's motion to quash this charge before the commencement
of trial. However, any error in this regard was harmless as a matter of law. Regardless of
whether this charge was dismissed, the prosecutor would have introduced evidence of Leann's
pregnancy, because it was highly relevant to the prosecution's motive theory. Relevant evidence
is evidence "having any tendency to make the existence of any 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; People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001).
Generally, all relevant evidence is admissible, unless otherwise provided by law, and evidence
that is not relevant is not admissible. MRE 402; Aldrich, supra at 113. Relevant evidence "may
be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence." MRE 403; Aldrich, supra at 113. Here,
the prosecutor sought to prove defendant was motivated to murder Leann because her pregnancy
jeopardized his relationship with Chrzanowski. Thus, because evidence of Leann's pregnancy
was relevant to the murder charge, defendant has failed to establish that any error resulting from
the trial court's failure to quash the charge of assault of a pregnant individual with the intent to
cause a miscarriage or stillbirth resulted in a miscarriage of justice or otherwise affected the
outcome of this case.
-12-
D. Jury Selection Process
Defendant next challenges the trial court's method of jury selection. Defendant argues
that the jury selection was not random because a computer-generated list of potential jurors had
pre-selected numerical designations from which the court seated the prospective jurors assigned
to replace jurors dismissed in the selection process. Defendant maintains that this Court
disapproved of this procedure in People v Green (On Remand), 241 Mich App 40; 613 NW2d
744 (2000). Defendant argues that his constitutional rights were violated by the procedure used
to select his jury and that this selection process constitutes structural error that requires reversal
without a showing of prejudice. We disagree.
We review de novo alleged violations of the jury selection process. People v Schmitz,
231 Mich App 521, 528; 586 NW2d 766 (1998). Likewise, the interpretation of court rules
presents a question of law that we review de novo. Marketos v American Employers Ins Co, 465
Mich 407, 412; 633 NW2d 371 (2001). MCR 2.511(A)(2) provides the following method for
selecting jurors: "In an action that is to be tried before a jury, the names or corresponding
numbers of the prospective jurors shall be deposited in a container, and the prospective jurors
must be selected for examination by a random blind draw from the container." MCR
2.511(A)(4) provides that "[p]rospective jurors may be selected by any other fair and impartial
method directed by the court or agreed to by the parties." MCR 6.412(A) incorporates this
procedure for criminal trials as well as civil trials.
Here, defendant contends that the trial court's jury selection procedure was improper
because the replacement jurors were not randomly selected in the presence of defendant, but
were instead randomly preselected and included in a printed list. Citing Green (On Remand),
defendant states that, although this Court declined to reverse a conviction on the basis of a trial
court's use of a similar procedure, this Court prospectively precluded its use.9
In Green (On Remand), supra at 42-43, the trial court seated fourteen prospective jurors
in accordance with a random computer-generated list. The computer-generated list was
available to both parties' attorneys. Id. at 47. After the defendant was convicted, he appealed his
conviction on the ground that the jury selection procedure was improper. Id. at 41-42. This
Court agreed and reversed, concluding that People v Colon, 233 Mich App 295; 591 NW2d 692
(1998), which followed People v Miller, 411 Mich 321; 307 NW2d 335 (1981), required
automatic reversal for deviations from proper jury selection methods. People v Green,
9
Green (On Remand) was decided on May 9, 2000, approximately one month before defendant's
trial began. When defendant objected to the jury selection procedure, the trial court indicated
that the method employed had been tacitly approved by the Michigan Supreme Court, and formal
approval was pending. We surmise that the trial court anticipated the Supreme Court would
again address Green. However, the prosecution has not presented us with any administrative
order or other authority relating to Supreme Court approval of the procedure and we are aware of
none.
-13-
unpublished opinion per curiam of the Court of Appeals, issued June 25, 1999 (Docket No.
202259). Our Supreme Court, in lieu of granting leave to appeal, remanded the case to this
Court "for consideration of whether the jury selection method utilized was fair and impartial
under MCR 2.511(A)(4)." People v Green, 461 Mich 975 (2000).
On remand, this Court concluded that it was no longer bound by Colon and, under MCR
2.511(A), which was not in existence when Miller was decided, a deviation from the standard
jury selection practice may constitute a "fair and impartial" means of selecting a jury. Green (On
Remand), supra at 45-48.
Thus, although the Miller Court's disapproval of the "struck jury method"
still remains viable, MCR 2.511(A)(4) obviously affects Miller's rule of automatic
reversal with respect to deviations from the standard jury selection procedure that
do not implicate a "struck jury method" or a defendant's right to exercise
peremptory challenges pursuant to MCR 2.511(F). [Green (On Remand), supra at
46.]
This Court determined that, although the jury selection procedure in Green was flawed because
it allowed some predictability in the selection process, the flaw was not fatal because the identity
of the next prospective juror was not a certainty. Id. at 47. Therefore, the jury selection process
did not violate MCR 2.511(A)(4) because it was a "fair and impartial" means of picking a jury
and did not deprive the defendant of a fair trial. Green (On Remand), supra at 48. However, this
Court ordered the Washtenaw Circuit Court not to employ this system in the future because the
element of predictability was present. Id.
Defendant contends that the system used by the Oakland Circuit Court in this case denied
his right to a fair trial because the court used this system even after Green expressly disavowed
the procedure. The jury selection procedure used in this case was similar to the procedure used
in Green (On Remand), supra at 47. However, in contrast to the procedure in Green, where the
attorneys could consult the list to see which prospective juror would be chosen next, the
attorneys in the present case did not have access to this information. Here, there was no risk the
attorneys could manipulate the selection process through the exercise of peremptory challenges.
Accordingly, the potential for unfairness and predictability present in Green was not present
here. The mere fact that the random selection took place before the parties were assembled in
the courtroom did not impinge on defendant's right to a fair trial and fair jury selection. The
selection process here did not constitute a "struck jury method" or impede defendant's right to
peremptory challenges. Instead, it provided defendant a fair and impartial means of picking a
jury, as directed by MCR 2.511(A)(4). Green (On Remand), supra at 47-48.
E. Jury Instructions for Second-Degree Murder
Defendant argues that the trial court erred by instructing the jury on second-degree
murder, because the evidence at trial did not support this instruction. We disagree. At the time
of defendant's trial, the trial court was bound by People v Jenkins, 395 Mich 440, 442; 236
NW2d 503 (1975), overruled by People v Cornell, 466 Mich 335, 358; 646 NW2d 127 (2002),
-14-
which required the trial court to always charge the jury with the necessarily lesser included
offense of second-degree murder whenever a defendant was charged with the greater offense of
first-degree murder. After defendant's trial and while his appeal was pending, the Supreme
Court decided Cornell, in which the Court overruled Jenkins and held that the trial court is no
longer automatically required to provide an instruction on the necessarily lesser included offense
of second-degree murder, but "such an instruction will be proper if the intent element
differentiating the two offenses is disputed and the evidence would support a conviction of
second-degree murder." Cornell, supra at 358 n 13. However, the Supreme Court gave the
Cornell decision "limited retroactive effect, applying to those cases pending on appeal in which
the issue has been raised and preserved." Id. at 367.
Although the present case was pending on appeal at the time the Cornell decision was
decided, defendant failed to preserve this issue by objection in the trial court. In order to
preserve an error in the giving or failure to give jury instructions, a party must make a specific
objection on the record. MCR 2.516(C); People v Sabin (On Second Remand), 242 Mich App
656, 657; 620 NW2d 19 (2000). Here, defendant requested the trial court to give an instruction
that the court was mandated by law to give the second-degree murder instruction. This requested
instruction was an accurate statement of the law under Jenkins and did not amount to an
objection to the second-degree murder instruction.10 Therefore, the propriety of charging the
jury with the second-degree murder instruction was not properly preserved, and Cornell is
inapplicable to this case. The trial court properly instructed the jury with regard to seconddegree murder under the then-controlling Jenkins opinion.11
10
Defendant's only other objection to the jury instructions was to an instruction regarding the
deliberation element of first-degree murder. Defendant argued that, because the prosecution's
theory was that defendant planned the murder in advance, it was inappropriate to instruct the jury
that the deliberation required for first-degree murder "may be merely seconds." This objection
was to the instruction regarding the deliberation element of first-degree murder and did not
include any objection to the second-degree murder instruction.
11
Defendant also argues that he had no notice he had to defend himself against the seconddegree murder charge. However, because under Jenkins, supra at 442, a charge of first-degree
murder required consideration of the lesser included offense of second-degree murder, the
information served to give defendant adequate notice he would have to defend against a seconddegree murder charge. People v Darden, 230 Mich App 597, 600; 585 NW2d 27 (1998).
Additionally, we note that even if Cornell applied to this case, the trial court properly
gave the second-degree murder jury instruction. First, the first-degree murder charge required
the jury to find a disputed factual element (premeditation) that was not part of second-degree
murder. Cornell, supra at 357, 358 n 13. Second, it is conceivable the jury could have found
that, rather than killing Leann according to a premeditated plan, defendant on a "spur of the
moment" seized an available opportunity to kill her so Chrzanowski would not learn of Leann's
pregnancy. Therefore, a rational view of the evidence supported the second-degree murder
instruction. Id.
-15-
F. Sufficiency of the Evidence of Second-Degree Murder
Finally, defendant argues there was insufficient evidence to support his conviction of
second-degree murder. "In reviewing a claim of insufficient evidence, this Court must view the
evidence in the light most favorable to the prosecution and determine whether a rational trier of
fact could find the defendant guilty beyond a reasonable doubt." People v Akins, 259 Mich App
545, 554; ___ NW2d ___ (2003). "The elements of second-degree murder are: (1) a death, (2)
caused by an act of the defendant, (3) with malice, and (4) without justification or excuse."
People v Goecke, 457 Mich 442, 463-464; 579 NW2d 868 (1998). "Malice is defined as the
intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and
willful disregard of the likelihood that the natural tendency of such behavior is to cause death or
great bodily harm." Id. at 464. Malice for second-degree murder can be inferred from evidence
that the defendant "'"intentionally set in motion a force likely to cause death or great bodily
harm."'" People v Bulmer, 256 Mich App 33, 36-37; 662 NW2d 117 (2003), quoting People v
Mayhew, 236 Mich App 112, 125; 600 NW2d 370 (1999), quoting People v Djordjevic, 230
Mich App 459, 462; 584 NW2d 610 (1998). Second-degree murder is a general intent crime.
People v Abraham, 256 Mich App 265, 269; 662 NW2d 836 (2003).
Viewed in a light most favorable to the prosecution, the evidence was sufficient to
establish that defendant killed Leann and intended to do so. Because there was no eyewitness
testimony with regard to Leann's death, all the evidence presented against defendant was
circumstantial. "'Circumstantial evidence and reasonable inferences drawn therefrom may be
sufficient to prove the elements of a crime.'" Bulmer, supra at 37, quoting People v Jolly, 442
Mich 458, 466; 502 NW2d 177 (1993). Defendant argues that the evidence presented at trial
relating to the location and existence of blood and gunshot residue, as well as the location of the
gun, the gunshot wound, and Leann's body, was inconsistent with defendant's guilt. However,
the fact that some of this evidence may have supported defendant's argument that he did not
commit the murder did not preclude the jury from concluding beyond a reasonable doubt that
defendant was guilty of second-degree murder. "Even in a case relying on circumstantial
evidence, the prosecution need not negate every reasonable theory consistent with the
defendant's innocence, but merely introduce evidence sufficient to convince a reasonable jury in
the face of whatever contradictory evidence the defendant may provide." People v Konrad, 449
Mich 263, 273 n 6; 536 NW2d 517 (1995).
Defendant contends that the evidence was inconclusive and inconsistent with his guilt. In
making this argument, defendant challenges the testimony of several witnesses and argues the
testimony does not conclusively show that he murdered Leann. For example, defendant
challenges the testimony of expert forensic scientist David Woodford. Specifically, defendant
questions Woodford's finding of microscopic blood mist on defendant's shirt, and contrasts this
blood mist on the shirt to blood mist found on a mirror, which was plainly visible. Defendant
also challenges Woodford's theory that Leann was shot while on her hands and knees beside the
bed, and that the force of the bullet pushed her body upwards and laterally on top of the bed.
Defendant also claims the presence of blood on Leann's leg and socks was inconsistent with
Woodford's theory.
-16-
Defendant's numerous challenges to Woodford's testimony do not establish the
insufficiency of the evidence. This Court will not interfere with the jury's role of determining
the weight of the evidence or deciding the credibility of the witnesses. People v Wolfe, 440
Mich 508, 514-515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). Despite the
alleged deficiencies defendant points out with Woodford's testimony, the jury was free to
conclude that Woodford was nonetheless a credible witness. Woodford testified it is not always
possible to explain every bloodstain at a crime scene. Accordingly, the jury may have concluded
that the alleged inconsistency between the blood mist found on the mirror and the blood mist on
defendant's shirt, and Woodford's inability to explain the bloodstains on Leann's leg and sock
simply were not material when considered against all the other forensic evidence presented at
trial.
Moreover, although several defense witnesses rejected Woodford's theory that the force
of the bullet moved Leann's body, the jury, as the judge of witness credibility, could have
determined that Woodford and the medical examiner were correct when they testified that this
movement was possible. Although different witnesses had varying theories about how Leann
was shot, and there was conflicting testimony regarding matters such as whether there was blood
mist on defendant's shirt, all conflicts in the evidence must be resolved in favor of the
prosecution. People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997). Furthermore,
although the witnesses conflicted over Leann's position at the time of the shooting, neither side's
account can be conclusively tied to defendant's guilt or innocence.
Defendant also argues that there is insufficient evidence to show he intended to kill
Leann, because malice is not implied merely because a deadly weapon was used, citing People v
Martin, 392 Mich 553, 561-562; 221 NW2d 336 (1974), overruled in part on other grounds by
People v Woods, 416 Mich 581, 621 n 12; 331 NW2d 707 (1982), and People v Lyles, 67 Mich
App 620, 621-622; 242 NW2d 452 (1976). However, the cases cited by defendant hold that
malice is a permissible inference that may be drawn by the jury. Martin, supra at 561-562;
Lyles, supra at 621-622; see also People v Carines, 460 Mich 750, 759; 597 NW2d 130 (1999).
In light of the evidence presented in this case, the jury was free to infer that, if defendant shot
Leann, he did so maliciously.
The evidence presented was sufficient to prove defendant shot Leann. Defendant was the
only person other than Leann who was present at the time of the shooting. Expert testimony
established that Leann was shot from a distance of twelve to eighteen inches. Prosecution
witnesses established that a woman with Leann's arm length could not point the gun at herself
from this distance with her finger on the trigger. Additionally, defendant stated he had been in
the bathroom when Leann was shot. However, high velocity blood mist was found on
defendant's shirt cuff, and the medical examiner testified that no such blood mist was found on
Leann's hand. Expert testimony established that defendant could not have gotten blood mist on
himself if, as he claimed, he was in the bathroom when Leann was shot. Thus, there was
physical evidence supporting the conclusion that Leann did not shoot herself.
-17-
Furthermore, the jury could have inferred from the evidence that defendant cleaned
himself up before calling 911. The evidence showed defendant touched Leann's body during the
911 call after asking if he should turn over Leann's body. Defendant continued to talk to the
dispatcher and had a small amount of blood on his hands when the police arrived. When the
police arrived, blood was found in the bathroom sink, indicating that defendant had washed his
hands and that he had had a "fair quantity" of blood on his hands when he washed them. There
was also a washcloth in the bathroom that was wet when the police arrived. From this evidence,
the jury could infer that defendant killed Leann and attempted to wash away evidence of the
murder before placing the 911 call.
Additionally, there was evidence defendant had a motive to murder Leann. Leann was
shot and killed days after she learned she was pregnant. Leann's pregnancy jeopardized
defendant's relationship with Chrzanowski, who had told defendant she would not continue to
see him if he was sexually active with Leann. Even if Chrzanowski would have continued her
relationship with defendant despite Leann's pregnancy, a second child would have complicated
defendant's departure from the marriage. This motive evidence bolstered the prosecution's case
that the shooting was not an accident.
Defendant's arguments attack the credibility of the witnesses' theories and assertions of
fact. Depending on which witnesses the jury believed, the physical evidence could support
either the prosecution or the defense. Although defendant demonstrates that the physical
evidence was susceptible to evaluation favoring either side, it was the jury's prerogative to
decide which side it did favor. Additionally, the motive evidence strengthened the prosecution's
case. Because credibility is for the jury to decide and we must view the evidence in a light most
favorable to the prosecution, we conclude that the evidence was sufficient to support defendant's
conviction of second-degree murder.
III. Conclusion
First, the trial court did not err in denying defendant's motion for a new trial or an
evidentiary hearing on the ground of juror misconduct. Defendant did not establish that the
jurors impermissibly considered extrinsic evidence when they engaged in a reenactment based
on their collective recall of the trial testimony. Second, the trial court did not err in denying
defendant's motion to suppress evidence seized from defendant's home office. Third, defendant
failed to establish that any error resulting from the failure to quash the charge of assault of a
pregnant individual with the intent to cause a miscarriage affected the outcome of the trial.
Fourth, the trial court did not use an unfair jury selection procedure. Prospective jurors and their
replacements were randomly chosen by a computer, and the attorneys did not have the
opportunity to manipulate the process to their advantage through peremptory challenges. Fifth,
the trial court did not err in instructing the jury on second-degree murder. At the time of
defendant's trial, Jenkins, supra at 442, required an instruction on the necessarily lesser included
offense of second-degree murder. Sixth, the evidence was sufficient to support defendant's
conviction of second-degree murder.
Affirmed.
-18-
/s/ Brian K. Zahra
/s/ Karen M. Fort Hood
/s/ Bill Schuette
-19-
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