PEOPLE OF MI V JEAN PIERRE ORLEWICZ
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee/Cross-Appellant,
v
FOR PUBLICATION
June 14, 2011
9:05 a.m.
No. 285672
Wayne Circuit Court
LC No. 07-023973-FC
JEAN PIERRE ORLEWICZ,
Defendant-Appellant/CrossAppellee.
Before: FORT HOOD, P.J., and DONOFRIO and RONAYNE KRAUSE, JJ.
RONAYNE KRAUSE, J.
Defendant was convicted by a jury of first-degree premeditated murder, MCL
750.316(1)(a), first-degree felony murder, MCL 750.316(1)(b), and 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 claim of appeal was pending, the trial court granted his
motion for a new trial. The prosecutor filed a cross-appeal from that grant. We reverse the trial
court’s order granting defendant a new trial and affirm defendant’s convictions and sentences.
There is no dispute that defendant killed the victim, dismembered the victim’s body, and
attempted to dispose of it by burning it. The gravamen of the dispute in this matter is why
defendant did so. At the time, defendant was 17 years old, 5’ 7” tall, and weighed approximately
150 pounds. The victim was 26 years old, six-feet tall, weighed approximately 250 pounds, and
was intimidating; additionally, the victim had a reputation for physical and verbal violence,
association with guns, aggression, a quick temper, and for being confrontational. In essence, the
prosecution’s theory was that defendant did not like the victim and was upset that the victim
refused to repay a debt, and he devised a plan to commit the “perfect crime” of killing the victim
and leaving no evidence. Defendant contended that he was coerced into involvement in a
robbery scheme devised by the victim and that when the plan failed; the victim threatened
defendant’s life, whereupon defendant killed the victim in self-defense and attempted to conceal
the body out of panic. The jury found the prosecution’s case more credible.
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
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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 grant 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, 456 Mich 625, 641; 576 NW2d 129 (1998). A trial court’s
decision concerning the conduct and scope of voir dire is also reviewed for an abuse of
discretion. People v Sawyer, 215 Mich App 183, 186-187; 545 NW2d 6 (1996). Further,
evidentiary rulings are also reviewed for an abuse of discretion. People v Smith, 456 Mich 543,
550; 581 NW2d 654 (1998). An appellate court should generally defer to the trial court’s
judgment, and if the trial court’s decision results in an outcome within the range of principled
outcomes, it has not abused its discretion. People v Carnicom, 272 Mich App 614, 616-617; 727
NW2d 399 (2006).
We review constitutional and statutory questions de novo. People v McPherson, 263
Mich App 124, 131; 687 NW2d 370 (2004). Further, preliminary questions of law such as
whether a rule of evidence or a statute precludes the admission of evidence, are reviewed de
novo. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
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 ineffective assistance of counsel principles
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.” Holmes v South Carolina,
547 US 319, 324; 126 S Ct 1727; 164 L Ed 2d 503 (2006). We find that defendant is entitled to
have the merits of his claims addressed, irrespective of the label given to them. Therefore, we
will address the merits of those claims.
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. Holmes, 547 US 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, 224
Mich App 403, 407-408; 569 NW2d 828 (1997). “To the contrary, it requires a showing that the
witness’ testimony would be both material and favorable to the defense.” Id. The underlying
question is whether the proffered evidence or testimony is relevant and material, or unfairly
prejudicial.
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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, 486 Mich 693, 707-708; 788
NW2d 399 (2010). The self-defense act (SDA), MCL 780.971 et seq., which became effective
before the killing in this case, continues to require an honest and reasonable belief of imminent
death or harm. MCL780.972. A defendant’s history and psychology may be relevant to explain
the reasonableness of a defendant’s belief that he or she was in inescapable danger. People v
Wilson, 194 Mich App 599, 604; 487 NW2d 822 (1992) (discussing “battered spouse
syndrome”). And reasonableness depends on what an ordinarily prudent and intelligent person
would do based on the perceptions of the actor. People v Doss, 406 Mich 90, 102; 276 NW2d 9
(1979) (discussing what constitutes “reasonable force” for a police officer to effectuate an
arrest). A defendant’s psychological idiosyncrasies may, at least in theory, be relevant to the
reasonableness of a defendant’s belief that he was in danger. But that is not the situation in the
case before us.
Evidence is relevant if it tends to make a “fact that is of consequence to the determination
of the action more 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 one and explicitly threatening to “blow [defendant’s] fricking brains out.”
Defendant’s self-defense claim here turns 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 case, the
proposed psychiatric testimony would have assisted the jury in determining which version of
events was more credible or whether, under defendant’s scenario, he would have honestly and
reasonably believed he was in imminent and grave danger. The trial court did not abuse its
discretion in excluding the psychiatric testimony, and the successor judge erred in granting
defendant’s motion for a new trial on that basis. We reverse the order granting defendant’s
motion for a new trial.
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.1 Defendant contends that this
1
MySpace is a social networking website. Users can post various semi-static 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
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evidence would have been relevant to show that the victim was the initial aggressor. We agree in
part, although we find the error harmless.
The aggressive character of a homicide victim, even if the defendant was unaware of it at
the time, is admissible pursuant to a self-defense claim to prove that the victim was the probable
aggressor. MRE 404(a)(2); People v Harris, 458 Mich 310, 315-316; 583 NW2d 680 (1998).
However, this form of character evidence may only be admitted in the form of reputation
testimony, not by specific instances of conduct unless those instances are independently
admissible for some reason or where character is an essential element of a claim or defense.
MRE 405; Harris, 458 Mich at 318-319. The victim’s character is not an essential element of
defendant’s self-defense claim. The PPOs are clearly specific instances of conduct and were
properly excluded on that basis.2
However, we find that the MySpace page is not 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 regarded as itself, a social networking or personal website is more in the nature of a
semi-permanent 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 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 was
able to testify about the page and the contents thereof. We are unpersuaded that the specific page
in this particular case was so visceral that its essence could not be captured by a spoken
testimonial description. Furthermore, and of particular consequence, the victim’s violent and
aggressive character was not seriously in doubt. Presenting the page itself to the jury would have
been sufficiently cumulative that we find its exclusion harmless.
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 additions 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 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 biasing manner. Defendant has a right to a fair and impartial jury, but he
the victim consistently with his reputation for violence, including aggressive language, and
references to guns, bullets, gang activities, drugs, and vengeance.
2
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 as to reputation only and not to specific instances of conduct.
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does not have a right to individual sequestered voir dire. People v Tyburski, 445 Mich 606, 618619; 518 NW2d 441 (1994). We find no abuse of discretion.
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, 240 Mich App 713, 720; 613 NW2d
370 (2000).3 Therefore, defendant must show a plain error affecting his substantial rights. Id.;
see also People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Claims of
prosecutorial misconduct are reviewed on a case-by-case basis, and any challenged remarks are
reviewed in context. People v Noble, 238 Mich App 647, 660; 608 NW2d 123 (1999). The test
for prosecutorial misconduct is whether the defendant was deprived of a fair trial. People v
Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995).
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, 238 Mich App at 660. However, we
find this misconduct harmless under the circumstances. There was no objection to this evidence
at trial, presumably because, under the unique circumstances of this case, the search for an
attorney could have supported either version of events. It was, after all, undisputed that
defendant was fearful of the consequences of the victim’s death being discovered, irrespective of
whether he acted out of calculated malice or out of a panicked response to an imminent and
credible threat. While we do not condone the admission of this evidence, we find it harmless
under the circumstances.
Defendant also argues that the prosecutor improperly referred to defendant’s failure to
produce evidence of the victim’s violent character. Viewed in context, the prosecutor did not
comment on defendant’s failure to produce evidence, but rather on the evidence that was
presented and what that evidence did not show. The prosecutor accurately stated that none of the
witnesses claimed to have seen the victim engage in an actual act of violence. Therefore, the
remark was not improper. People v Marji, 180 Mich App 525, 538; 447 NW2d 835 (1989).
Further, the comment was a legitimate response to defense counsel’s personal attacks on the
victim. People v Watson, 245 Mich App 572, 593; 629 NW2d 411 (2001).
Defendant lastly argues that he was prejudiced by a pre-arraignment remark in which
Wayne County Prosecutor Kym Worthy referred to this case as a “thrill kill” during a press
conference. The remark was made long before trial. As plaintiff 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
3
Abrogated on other grounds in Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed
2d 177 (2004).
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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 he was not performing as the attorney
guaranteed by the Constitution. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797
(1994). Defendant must also show that he was prejudiced thereby. Id. at 312. To establish
prejudice, defendant must show that there is a reasonable probability that the alleged error made
a difference in the outcome of the trial. People v LaVearn, 448 Mich 207, 216; 528 NW2d 721
(1995); Pickens, 446 Mich at 312.
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, 448 Mich at 216. Defense counsel was similarly not
ineffective for failing to make a futile objection to the prosecutor’s comment that a codefendant
failed to corroborate defendant’s claim that the victim threatened to kill them; this was an
accurate and therefore proper comment on the evidence. Marji, 180 Mich App at 538. Defense
counsel was not ineffective for failing to raise additional arguments in favor of admitting the
PPOs; as discussed, they were properly excluded.
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 to the hearsay evidence rule. Furthermore, the trial court took great and
commendable care to ensure that the jury truly understood that evidence of defendant’s character
was not evidence that he committed any of the crimes for which he was charged. Counsel was
not ineffective for failing to raise further objections to the recordings, and even if counsel
committed an error, we find that defendant would not have been prejudiced thereby.
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 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, 203 Mich App 235, 237; 512 NW2d 65 (1994), see also People
v Young, 472 Mich 130, 144; 693 NW2d 801 (2005) (explaining that the trial court has discretion
whether to give the cautionary accomplice instruction and the failure to do so is reviewable only
for plain error). The trial court did give the general witness credibility instruction, which
includes an instruction to consider whether a witness has any prejudice or personal interest in the
outcome of a case and whether the witness had been subject to any influences that might affect
his or her testimony. In light of defense counsel’s extensive attacks on the accomplices’
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credibility, including their agreements with the prosecutor and strong motivation to blame
defendant, we find that defendant’s rights were not prejudiced by counsel’s failure to request
CJI2d 5.6.
Defendant also argues that defense counsel was ineffective for failing to object to certain
errors in the trial judge’s jury instruction on defense of others, CJI2d 7.21. The trial court
properly instructed the jury that 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 judge 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 lesser included offense of felony murder. Given that
defendant was convicted of the alternative theory of first-degree premeditated murder, for which
the jury received a lesser offense instruction on second-degree murder, defendant cannot
establish that he was prejudiced by counsel’s failure to request a second-degree murder
instruction.
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,
424 Mich 221, 268-270; 380 NW2d 11 (1985).
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, 194 Mich App 121, 125; 486 NW2d 83
(1992). However, “a murder committed during the unbroken chain of events surrounding the
predicate felony is committed ‘in the perpetration of’ that felony.” People v Gillis, 474 Mich
105, 121; 712 NW2d 419 (2006). The murder and the felony need not be contemporaneous;
rather, the defendant need only have intended to commit the underlying felony when the
homicide occurred. Brannon, 194 Mich App at 121. Viewed in a light most favorable to the
prosecution, the evidence was sufficient for the jury to find that defendant killed the victim while
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harboring an intent to steal his gun. Defendant’s reason for doing so was a question of fact for
the jury. The evidence was sufficient to support defendant’s felony-murder conviction.
Therefore, in addition, any error in defendant’s bind over was harmless. People v Moorer, 246
Mich App 680, 682; 635 NW2d 47 (2001).
However, that convicting a defendant of both first-degree premeditated murder and firstdegree felony murder arising out of the death of a single victim is a violation of double jeopardy
protection. People v Williams, 265 Mich App 68, 72; 692 NW2d 722 (2005). We will uphold a
single conviction for murder based on two alternative theories. Id. Accordingly, the proper
remedy when convicting a defendant of both first-degree premeditated murder and first-degree
felony murder arising out of the death of a single victim is to modify the conviction to specify
that it is a single count of first-degree murder supported by two theories.
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 stated: “[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, ___ US ___; 130 S Ct 721; 175 L Ed 2d 675 (2010), the Court held
that “the Sixth Amendment right to a public trial extends to the voir dire of prospective jurors,”
subject to certain exceptions:
“[T]he party seeking to close the hearing must advance an overriding interest that
is likely to be prejudiced, the closure must 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
724, quoting Waller v Georgia, 467 US 39, 48; 104 S Ct 2210; 81 L Ed 2d 31
(1984).]
The Court 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, 130 S Ct at 725.
Significantly, in Presley, there was a specific objection to the exclusion of the public from the
courtroom, id. at 722, whereas in the present case, there was no specific objection.
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.
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Like the defendant here, the defendant in People v Vaughn, __ Mich App __; __ NW2d
__ (2010), failed to object to closure of the courtroom. This Court upheld the conviction, stating:
[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; 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 Commissioner 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).
We conclude that defendant waived his right to a public trial during the jury voir dire.
In conclusion, the successor judge erred in granting defendant’s new trial, and we reverse
that grant. Defendant has not presented to us any errors or infringements of his rights that
warrant reversal, and he waived his public trial issue. We therefore affirm defendant’s
convictions and sentences. However, 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 by two theories. We do not retain jurisdiction.
/s/ Amy Ronayne Krause
/s/ Karen Fort Hood
/s/ Pat M. Donofrio
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