PEOPLE OF MI V STEPHEN C GRANTAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
October 6, 2009
Macomb Circuit Court
LC No. 2007-002480-FC
STEPHEN C. GRANT,
Before: Owens, P.J., and Servitto and Gleicher, JJ.
Defendant appeals as of right his jury trial conviction of second-degree murder, MCL
750.317.1 He was sentenced to 50 to 80 years’ imprisonment. Because the trial court did not err
in denying defendant’s motions for change of venue and to suppress his custodial statements to
police, or in requiring defendant to repay court-appointed counsel costs without conducting an
ability-to-pay analysis, and because the trial court articulated substantial and compelling reasons
for the extent of the upward departure of defendant’s minimum sentence from the sentencing
guidelines’ range, we affirm.
Defendant was charged with and convicted of the murder of his wife, Tara Grant.
Defendant and Tara were involved in an argument in early February 2007 at their Macomb
County home. Apparently, the couple’s argument escalated to the point where it became
physical and defendant strangled Tara causing her death. Defendant then took her body to his
place of employment and dismembered her. Defendant scattered Tara’s body parts throughout a
public park near the couple’s home, and hid her torso in a large plastic container in the family’s
garage. Defendant reported Tara missing several days later.
Several weeks later, police executed search warrants at defendant’s home and business,
and discovered a portion of Tara’s body in the couple’s garage. By then, defendant had fled the
area in a borrowed vehicle. A search conducted by various law enforcement agencies resulted in
the apprehension of defendant at a remote park in northern Michigan. At the time of his arrest,
Prior to trial, defendant pled guilty to one count of disinterment or mutilation of a dead body
contrary to MCL 750.160. He was sentenced to six to ten years’ imprisonment on this
conviction. Defendant raises no issues on appeal concerning this conviction or sentence.
defendant had been wandering through the park for several hours and suffered from mild
frostbite and hypothermia. Defendant was immediately transported to a local hospital where he
fully recovered within two days. During his stay in the hospital, defendant confessed the details
of the crime to police. Defendant was charged with first-degree murder.
On appeal, defendant first contends that, given the vast amount of pretrial publicity his
case generated, particularly in Macomb County, the trial court’s denial of his motion for change
of venue deprived him of his right to an impartial jury, due process of law, and a fair trial. We
We review the denial of a motion for a change of venue for an abuse of discretion.
People v Jendrzejewski, 455 Mich 495, 500; 566 NW2d 530 (1997). An abuse of discretion
occurs when the outcome chosen by the trial court is not within the range of reasonable and
principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
Generally, a defendant must be tried in the county where the crime was committed. MCL
600.8312. The trial court may change venue to another county in special circumstances, where
justice demands or where our statute so provides. MCL 762.7.
“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of
impartial, ‘indifferent’ jurors.” People v Unger, 278 Mich App 210, 254; 749 NW2d 272 (2008),
quoting Irvin v Dowd, 366 US 717, 722, 81 S Ct 1639, 6 L Ed 2d 751 (1961). To that end, it
may be appropriate, for example, to change the venue of a criminal trial when “widespread
media coverage and community interest have led to actual prejudice against the defendant.”
People v Unger, supra, at 254.
“Community prejudice amounting to actual bias has been found where there was
extensive highly inflammatory pretrial publicity that saturated the community to such an extent
that the entire jury pool was tainted, and, much more infrequently, community bias has been
implied from a high percentage of the venire who admit to a disqualifying prejudice.”
Jendrzejewski, supra at 500-501. In determining whether a defendant has been deprived of a fair
trial by virtue of pretrial publicity, the reviewing court must consider the totality of the
circumstances and determine whether the pretrial publicity was so unrelenting and prejudicial
that “the entire community [is] presumed both exposed to the publicity and prejudiced by it.” Id.
at 501-502. The court must also distinguish between largely factual publicity and that which was
invidious or inflammatory. Id. at 504.
Before delving into defendant’s argument, we first address the prosecution’s assertion
that defendant waived any claim of error with respect to the jury because he expressed
satisfaction with the jury impaneled. Defense counsel did, in fact, express satisfaction with the
jury as impaneled. Generally, an expression of satisfaction with a jury made at the close of voir
dire examination waives a party's ability to challenge the composition of the jury thereafter
impaneled and sworn. People v Hubbard, 217 Mich App 459, 466; 552 NW2d 493 (1996).
However, in Leslie v Allen-Bradley Co, Inc, 203 Mich App 490, 493; 513 NW2d 179 (1994), this
Court concluded that an expression of satisfaction with the jury on the record, in the jury’s
presence, did not constitute a waiver where the complete record demonstrated that the party was
not satisfied with the jury and where the party's expression of satisfaction was “a necessary part
of trial strategy, designed to avoid alienating prospective jurors.”
In the present matter, defense counsel on several occasions indicated dissatisfaction with
having to select a jury from Macomb County residents, given the unprecedented amount of
publicity the case had received. He moved for a change of venue prior to the start of trial and
again during jury selection. As in Leslie, supra, there is nothing in the trial court record to
support a conclusion that defendant's expression of satisfaction with the jury “was intended as a
relinquishment of his belief that the venire was selected in an unconstitutional manner or that
such expression was anything more than an exercise in practicality, given the trial court's earlier
adverse ruling and the potential for jury alienation.” We are satisfied that defendant did not
waive his challenge by expressing satisfaction with the jury as impaneled.
Addressing defendant’s claim of error, we note that this case, as claimed by defendant,
received an unprecedented amount of pretrial publicity. There were in excess of fifty written
news articles concerning the crime published between February 2007 and the December 2007
trial, with a large number of the articles appearing on the front page of local newspapers.
Specific details of the case were regularly broadcast on television, including video testimony
from defendant’s preliminary examination. Both the Macomb County Sheriff and the Macomb
County Prosecutor regularly appeared on television and news radio programs, providing a
significant amount of very specific information to the public concerning the case and the
impending trial. There was, indisputably, no information spared from public exposure
throughout the entire course of this case. While the numerous press-conferences held and the
release to the media of police reports and other documents containing details of the case by the
prosecution and the Sheriff’s Department appear unprecedented, we cannot find that either
pretrial publicity or statistical analysis supports defendant’s claim that he was denied a fair trial
under People v Jendrzejewski, supra.
In determining whether a change of venue was required due to pretrial publicity, the
reviewing court should consider the “quality and quantum of pretrial publicity,” and then it must
“closely examine the entire voir dire to determine if an impartial jury was impaneled.”
Jendrzejewski, supra at 517. When we consider the quality and quantum of the pretrial publicity
in the instant matter, while the media coverage of this case was extensive, the coverage provided
was primarily factual, detailing the status of the case, testimony elicited during preliminary
examination, and other facts that were later admitted as evidence at the trial. The tone and
content of the reports could certainly have been perceived as inflammatory--but that was
essentially due to the nature of the crime. There may have been no neutral way to report on this
case. Moreover, “[c]onsideration of the quality and quantum of pretrial publicity, standing
alone, is not sufficient to require a change of venue.” We must also consider the entire voir dire.
Jendrzejewski, supra at 517.
Our Supreme Court has suggested three possible approaches to voir dire to avoid the
danger of prejudice from pretrial publicity: “1) questionnaires prepared by the parties and
approved by the court, 2) participation of attorneys in the voir dire, and 3) sequestered
questioning of each potential juror.” Jendrzejewski, supra at 509. The trial court in the instant
matter employed all three methods.
The initial jury pool numbered over 350. The potential jurors were all required to
complete a probing 25-page questionnaire employed to determine their knowledge of the case
and whether they had formed any opinions concerning defendant’s guilt or innocence.
Approximately 50 potential jurors were excused for cause (by stipulation of the parties) based
solely upon their questionnaire answers. The prosecution and defendant (and occasionally, the
court) then questioned the remaining potential jurors, outside the presence of other potential
jurors, over a seven-day period. Over 100 individuals were then excused due to their expressions
of potential bias, while others were excused for various reasons unrelated to their knowledge
and/or opinions concerning the case. The remaining pool of potential jurors was then subjected
to group questioning, on the record. During this second round of questioning, several additional
potential jurors were excused for cause and both sides utilized peremptory challenges. The pool
continued to narrow until both the prosecution and the defense expressed satisfaction with the
jury. Sixteen jurors were administered an oath and heard the evidence.
There was no impediment to discovery of actual or potential biases, and the voir dire was
sufficiently probing to uncover any biases. While essentially all of the jurors indicated being
aware of the case, the vast majority of those impaneled had only a passing knowledge of the case
and had little exposure to the details. In addition, all those impaneled swore, under oath, that
they could be impartial, notwithstanding any exposure to media reports about the case. “Where
potential jurors can swear that they will put aside preexisting knowledge and opinions about the
case, neither will be a ground for reversing a denial of a motion for a change of venue.” People v
DeLisle, 202 Mich App 658, 662; 509 NW2d 885 (1993). Indeed, “[t]he value protected by the
Fourteenth Amendment is lack of partiality, not an empty mind.” Jendrzejewski, supra at 519.
Given that the impaneled jurors knew little about the case and swore they would be impartial,
despite the pervasive media coverage, defendant has not demonstrated that the pretrial publicity
was so unrelenting and prejudicial that “the entire community [is] presumed both exposed to the
publicity and prejudiced by it.” Jendrzejewski, supra at 501.
This conclusion does not change, even with the relatively high percentage of the potential
jurors in this matter acknowledging personal biases against defendant, based upon the
information they had concerning the case. As previously indicated, community bias has been
implied, albeit rarely, from a high percentage of the venire who admit to a disqualifying
prejudice. Jendrzejewski, supra at 500-501. In Irvin v Dowd, 366 US 717, 727; 81 S Ct 1639,
1645 (1961), for example, 90% of the potential jurors examined entertained some opinion as to
the defendant’s guilt. The Supreme Court found that:
the ‘pattern of deep and bitter prejudice’ shown to be present throughout the
community was clearly reflected in the sum total of the voir dire examination of a
majority of the jurors finally placed in the jury box. Eight out of the 12 thought
petitioner was guilty. With such an opinion permeating their minds, it would be
difficult to say that each could exclude this preconception of guilt from his
Here, in contrast, slightly less than 50% of potential jurors were excused due to
preexisting notions as to defendant’s guilt. More importantly, of the actual jurors seated, the vast
majority had only a passing knowledge of the case and only one juror initially expressed a
preconceived notion regarding defendant’s guilt.
While there is no specific rule detailing what percentage of potential jurors must be
excused for cause before the scale tips toward a demonstrated pattern of deep and bitter prejudice
present throughout the community, this case appears to be similar to People v DeLisle, 202 Mich
App 658; 509 NW2d 885 (1993). In DeLisle, 31% of the jury venire (21 out of 68) was excused
because of bias, and all of the 14 seated jurors admitted having heard the general facts of the
case, with five having heard of the defendant's confession, and one having heard of a purported
prior attempt by the defendant to murder his family. Id. at 667-668. The DeLisle Court
concluded that “the number of jurors excused for bias during voir dire was not sufficiently high
to presume that the jurors chosen were part of a community deeply hostile to defendant.” This
was true even though the case (where a father deliberately drove the family vehicle into a lake,
killing his four children and attempting to kill his wife) received substantial media attention and
where the media attention was found to be inflammatory.
While almost 50% of the potential jurors in this case were excused due to preconceived
notions regarding defendant’s guilt, the fact remains that these jurors were excused and jury
selection continued with a careful and studied questioning of the remaining jurors. Again, of the
actual jurors seated, the vast majority had only a passing knowledge of the case and only one
juror initially expressed (and then swore she could set aside) a preconceived notion regarding
As was the case in DeLisle, supra, we find no showing of the kind of improper
proceedings that may sometimes lead to automatic reversal. The careful and exhaustive voir dire
procedures employed by the trial court demonstrated that the jurors chosen, although familiar
with the case, were not biased against defendant.
A consideration in our analysis and ultimate conclusion that defendant’s due process
rights were not violated by the trial court's denial of his motion for a change of venue is the
nature of the defense. Defendant never claimed to be innocent. He pled guilty to the mutilation
of a corpse just after the jury was impaneled and, in opening statements, defense counsel
First of all, simply said, Mr. Grant killed his wife. He did. That killing occurred
on February 9, 2007. Your job is to determine what happened. What degree or
lesser charge of a homicide occurred that day. What happened? Was it
premeditated? We think the evidence will show that it is not a premeditated
We question where the harm in allowing the trial to proceed in Macomb County can be
found. The defense claim was that the killing was not premeditated—there was no claim that
defendant did not kill his wife. Arguably, a fair trial would end in the result defendant sought
and ultimately obtained--a homicide conviction that did not involve premeditation.2
Under the totality of the circumstances, defendant's trial was fundamentally fair and
decided by a panel of impartial jurors.
Defendant argues that the result actually sought was a voluntary manslaughter conviction, MCL
750.321. The trial court instructed the jury on the charged offense, second- degree murder and
Defendant next contends that the trial court erred in denying his motion to suppress his
custodial statements made to police, given that the police violated an agreement with his defense
counsel to contact counsel as soon as defendant was arrested, and to not speak to defendant
without counsel present. According to defendant, because the agreement was violated, the
purported waiver of his right to counsel at the custodial interrogation was invalid. We disagree.
A trial court's ultimate decision on a motion to suppress evidence is reviewed by this
Court de novo. People v Dunbar (After Remand), 264 Mich App 240, 243; 690 NW2d 476
(2004). The trial court's findings of fact in a suppression hearing are reviewed for clear error.
Id. “A finding of fact is clearly erroneous if, after review of the entire record, an appellate court
is left with a definite and firm conviction that a mistake had been made.” People v Wilkens, 267
Mich App 728, 732; 705 NW2d 728 (2005), quoting People v Frohriep, 247 Mich App 692, 702;
637 NW2d 562 (2001).
The United States and Michigan Constitutions guarantee a criminal defendant the right to
the assistance of counsel. US Const, Ams VI and XIV; Const 1963, art 1, § 20. Defendant
concedes that he had no Sixth Amendment right to counsel on March 4, 2007, the date he
confessed to police, as he had not yet appeared in court for any judicial proceeding. He instead
asserts a Fifth Amendment right, and a right to counsel under the Michigan Constitution, during
his custodial interrogation.
“Statements of an accused made during custodial interrogation are inadmissible unless
the accused voluntarily, knowingly, and intelligently waives his Fifth Amendment rights.”
People v Howard, 226 Mich App 528, 538; 575 NW2d 16 (1997), citing Miranda v Arizona, 384
US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Custodial interrogation involves
“questioning initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.” Miranda v Arizona, supra,
at 444. There is no dispute that defendant was in custody at the time he made the nowchallenged statements to police.
Whether a waiver of Miranda rights is voluntary depends on the absence of police
coercion. People v Daoud, 462 Mich 621, 635; 614 NW2d 152, 158-159 (2000). Determining
whether a suspect's waiver was knowing and intelligent requires an inquiry into the suspect's
level of understanding, irrespective of police behavior. Id. However, a suspect need not
understand the ramifications and consequences of choosing to waive or exercise the rights that
the police have properly explained to him. Id.
The evidence at the Walker3 hearing established that when defendant was apprehended he
was transported to the hospital where he was placed in custody. After receiving medical
attention, when defendant was asked if he wanted to speak to the police, defendant stated that he
first wished to speak to his attorney, Mr. Griem. Defendant had retained Mr. Griem shortly after
his wife’s disappearance. Mr. Griem had many contacts with the Macomb County Sheriff’s
Department during the investigation into Tara Grant’s reported disappearance. During several of
People v Walker, 374 Mich 331; 132 NW2d 87 (1965).
these contacts, representatives of the department agreed that all contact with defendant would be
directed through his counsel, to advise counsel if defendant was apprehended, and to not
question defendant. Several officers affirmatively acknowledged at the Walker hearing that this
agreement was in place. Despite the agreement, it is undisputed that Mr. Griem was not
immediately notified when defendant was apprehended at approximately 6:30 a.m. on March 4,
2007. Mr. Griem, unaware that defendant had been located and was in custody, terminated his
representation of defendant via a live news broadcast several hours later.
When he asked to speak to Mr. Griem, the Macomb County Sheriff’s Department advised
defendant that Mr. Griem had terminated their attorney-client relationship on television that
morning. Defendant was then asked if he wanted to look for a local attorney. He declined the
offer. Defendant indicated that he wanted to speak with the officer in charge of the case.
Defendant then advised the officer in charge, by telephone, that he wished to speak to him about
the matter. When the officer arrived at the hospital several hours later, defendant waived his
Miranda rights and made a verbal and written confession.
Defendant admittedly can provide no authority to suggest that where an agreement not to
speak to a suspect is in place between police and defense counsel, the agreement survives
counsel’s resignation or that a purported violation of the agreement requires the suppression of
any statement made in contravention of the agreement. Defendant nevertheless claims that the
department’s failure to advise Mr. Griem of defendant’s apprehension interfered with the
attorney-client relationship in the same manner as the refusal to notify a defendant of the
availability of his counsel as in People v Bender, 452 Mich 594; 551 NW2d 71 (1996). In
Bender, two defendants were arrested for several counts of breaking and entering. Apparently,
simultaneous with the first defendant’s arrest, defendant’s mother retained the services of a
lawyer to represent him, but was not permitted access to her son to pass along retained counsel’s
message that defendant was not to talk to anyone until he first spoke with counsel. Similarly,
following the second defendant’s arrest, his family retained counsel. The retained counsel called
the police station to speak with her client and was denied contact. Without informing either
defendant that they had retained counsel or of counsel’s attempted contact, officers questioned
both defendants. Each defendant affirmatively waived his Miranda rights and thereafter gave
full confessions. Our Supreme Court, recognizing that the police failed to inform defendants that
they had retained counsel and that each counsel wished to speak with their clients before a
statement was made, held that, on the basis of Const. 1963, art. 1, § 17, defendants did not make
knowing and intelligent waivers of their right to remain silent and their right to counsel. Id. at
The instant matter differs in that defendant did not have retained or appointed counsel at
the time of his confession. His retained counsel had publicly and unequivocally terminated their
attorney-client relationship. Defendant was afforded the opportunity to secure new counsel,
before making a statement, and declined. Furthermore, there is no indication that the Sheriff’s
Department’s failure to immediately advise Mr. Griem of defendant’s capture was a deliberate
attempt to interfere with the attorney-client relationship.
There was a relatively short period of time between defendant’s capture (6:30 a.m.) and
Mr. Griem’s public announcement of his resignation (approximately 9:00 a.m.). Moreover, there
is no indication that the police anticipated or had knowledge of the impending resignation at the
time defendant was apprehended, or that they were deliberately withholding information
regarding defendant’s capture in hopes that counsel would resign. Notably, at the time of Mr.
Griem’s resignation, no one from the Sheriff’s Department had spoken to defendant or attempted
to question him. It was not until that afternoon, following the resignation, that defendant
indicated he wished to speak to Mr. Griem, and many hours later that officers actually
questioned defendant. There is also no indication that defendant was precluded from attempting
to contact Mr. Griem on his own.
Given Mr. Griem’s public, unequivocal statements, it was reasonable to conclude that the
police no longer had to advise or consult with him before speaking with defendant. When they
were able to speak to defendant, several hours after his apprehension, the police accurately
advised defendant that his retained counsel had resigned. Again, the officers offered defendant
the option of retaining substitute counsel, which he declined. Defendant, having previously
retained counsel, clearly understood the importance of obtaining legal advice. The fact that he
declined to obtain substitute counsel, and then spoke to police, suggests that he did so with full
knowledge of the right he was waiving.
Finally, when advised that Mr. Griem had resigned, defendant himself initiated contact
with the officer in charge. The undisputed testimony at the Walker hearing indicates that
defendant attempted to speak to two different Macomb County Sheriff’s Deputies and a nurse
about his circumstances. All terminated any discussion. The deputies advised defendant that if
he wanted to speak to anyone about the case he should speak to the officer in charge. Defendant
was given a telephone and spoke to the officer in charge. Defendant asked the officer to come to
the hospital so he could make a statement. The officer drove four hours to reach the hospital.
Only after Mirandizing defendant did the questioning begin. As stated in Edwards v
Arizona, 451 US 477, 484-485 101 S Ct 1880, 1885 (US Ariz, 1981), “an accused . . . having
expressed his desire to deal with the police only through counsel, is not subject to further
interrogation by the authorities until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or conversations with the police” (emphasis
added). There was no clear error in the trial court’s determination that defendant’s confession
was freely and voluntarily given, and that the statements were not subject to suppression.
Defendant contends that had Mr. Griem been immediately advised of defendant’s
apprehension, it is likely that Mr. Griem would have spoken to defendant, and defendant would
not have waived his right to counsel. This contention is pure speculation. Mr. Griem testified at
the Walker hearing that although he had advised defendant not speak to the media or to law
enforcement, defendant did, nevertheless, speak to the media and to law enforcement officials
while Mr. Griem actively served as defendant’s retained counsel. Mr. Griem also testified that
he had made his decision to withdraw as defendant’s counsel on Friday, March 2, 2007, but had
been unable to discuss the decision with defendant. Mr. Griem stated that his intention in
making the public announcement was to let defendant know he was no longer representing him.
He testified that he knew at the time he made his public statement that the police were looking
for defendant and that defendant would be taken into custody if found. Mr. Griem did not testify
that he would have continued on as defendant’s retained counsel if he had been advised of
defendant’s apprehension prior to his media statement.
Defendant also contends that his statement should have been suppressed because of
alleged ethical violations by the prosecution in advising the police that they could speak with
defendant without notice to Mr. Griem, and due to Mr. Griem’s alleged improper action of
withdrawing from representation through the media. Acknowledging that the remedy for the
commission of ethical violations is generally disciplinary actions against the attorneys rather than
suppression of a statement, defendant encourages this Court to follow at least one other
jurisdiction’s holding that where the ethical violation is egregious, suppression in a possible
remedy. We decline to do so.
As was observed in People v Green, 405 Mich 273, 293-294; 274 NW2d 448 (1979):
The provisions of the code [of professional responsibility] are not constitutional
or statutory rights guaranteed to individual persons. They are instead self-imposed
internal regulations prescribing the standards of conduct for members of the bar.
Although it is true that the principal purpose of many provisions is the protection
of the public, the remedy for a violation has traditionally been internal bar
disciplinary action against the offending attorney.
The admissibility of evidence in a court of law, on the other hand, is normally
determined by reference to relevant constitutional and statutory provisions,
applicable court rules and pertinent common-law doctrines. Codes of professional
conduct play no part in such decisions.
Even if we were to accept defendant’s contention that a prosecutor’s and/or Mr. Griem’s
conduct constituted an ethical violation, the remedy would be an attorney disciplinary action —
not suppression of defendant’s confession.
Defendant next argues that the trial court failed to articulate a substantial and compelling
rationale for the extent of the upward departure of his minimum sentence from the sentencing
guidelines’ range, and that resentencing is required. We disagree.
A trial court must impose a minimum sentence within the sentencing guidelines’ range
unless a departure from the guidelines is permitted. MCL 769.34(2). The sentencing court may
only depart from the sentencing guidelines if it has a substantial and compelling reason to do so,
and it states the reason on the record. MCL 769.34(3); People v Abramski, 257 Mich App 71, 74;
665 NW2d 501 (2003). The court may depart from the guidelines for nondiscriminatory reasons
where there are legitimate factors not considered by the guidelines, or where factors considered
by the guidelines have been given inadequate or disproportionate weight. MCL 769.34(3)(a) and
(b). Additionally, the trial court's reasons for departing from the guidelines must be objective
and verifiable. People v Abramski, supra. “They must be of considerable worth in determining
the length of the sentence and should keenly or irresistibly grab the court's attention.” People v
Smith, 482 Mich 292, 299; 754 NW2d 284 (2008).
A trial court's decision to depart from the sentencing guidelines is reviewed for an abuse
of discretion. People v Babcock, 469 Mich 247, 268-269; 666 NW2d 231 (2003). An abuse of
discretion occurs when a trial court chooses a minimum sentence that is outside the range of
reasonable and principled outcomes. Id. The existence of a particular factor supporting a trial
court's decision to depart from the sentencing guidelines is reviewed for clear error, Id. at 264,
and the conclusion of whether a reason is objective and verifiable is reviewed de novo. Id.
It is agreed that the appropriately scored guidelines for defendant’s second-degree murder
conviction resulted in a recommended minimum sentence range of 225 to 375 months or life.
The trial court significantly departed upward from this guideline range, sentencing defendant to a
term of 600 to 900 months imprisonment on the conviction. In departing from the guidelines, the
trial court engaged in an extraordinarily detailed and thorough analysis, making it abundantly
clear that it based the specific upward departure on the failure of the sentencing guidelines to
fully consider the severity and permanence of the victim’s children’s and other family members’
psychological injuries, and the intense, proactive actions undertaken by defendant to avoid
detection and arrest. Both of the above considerations were based upon readily verifiable facts,
were clearly supported, and represented substantial and compelling reasons for departure.
Defendant does not really assert otherwise, but instead relies almost exclusively on People v
Smith, 482 Mich 292; 754 NW2d 284 (2008) to support his position that the trial court failed to
articulate why his particular sentence was proportionate to this specific offense and offender.
Smith involved the digital penetration of a nine year-old female by a man she looked to as
a quasi-father figure. The adult male was charged with three counts of criminal sexual conduct.
The defendant’s recommended minimum sentence range under the sentencing guidelines was 9
to 15 years' imprisonment. The trial court, however, sentenced the defendant to three concurrent
terms of 30 to 50 years' imprisonment. The Supreme Court found that the trial court adequately
articulated substantial and compelling reasons for an upward departure, but noting that the
statutory guidelines require more than an articulation of reasons for a departure; they require
justification for the particular departure made, addressed whether the “off the charts” minimum
was adequately explained:
. . . if it is unclear why the trial court made a particular departure, an
appellate court cannot substitute its own judgment about why the departure was
justified. A sentence cannot be upheld when the connection between the reasons
given for departure and the extent of the departure is unclear. When departing, the
trial court must explain why the sentence imposed is more proportionate than a
sentence within the guidelines recommendation would have been. . . Hence, to
complete our analysis of whether the trial judge in this case articulated substantial
and compelling reasons for the departure, we must, of necessity, engage in a
proportionality review. . .
The Smith court noted that one potential means of offering such a justification is to place
the specific facts of a defendant's crimes in the appropriate sentencing grid. While defendant
states that his guidelines score of 110 OV points does not reflect that this was the most
outrageous or heinous example of second degree murder that can be imagined, we are hard
pressed to think of more disturbing circumstances. Defendant scored in the highest level for
purposes of OV scoring. Moreover, while the Smith court did suggest that a proportionality
analysis might be undertaken by looking to the sentencing grid, it also affirmatively stated that a
trial court that is contemplating a departure is not required to consider where a defendant's
sentence falls in the sentencing range grid. Id. at 309.
As acknowledged in Smith, supra at 310, there are no precise words necessary for a trial
court to justify a particular departure. In the instant matter, the trial court specifically
acknowledged that an upward departure must be proportionate to the defendant and his offenses.
The trial court also specifically stated at the end of her departure analysis, “For all of the
foregoing reasons the Court is satisfied that the upward departure in this case is more
proportionate to the Defendant’s demonic, manipulative, barbaric, and dishonest actions in this
case, and the seriousness of his offense than the sentencing guideline range would otherwise
require.” The “foregoing reasons” were the trial court’s analysis concerning the severity and
permanence of the victim’s children’s and other family members’ psychological injuries and the
intense, proactive actions undertaken by defendant to avoid detection and arrest.
In terms of the psychological injury to the children, the court considered a letter
submitted by the children’s therapist indicating that the children suffered significant emotional
harm as a result of the crime. Letters and statements from Tara Grant’s sister and brother-in-law,
who took care of the children after her disappearance, made it clear that the children may have
witnessed part of the crime, were now afraid of their father, and were immensely traumatized by
the murder. Not only were the children forced to move out of state to start a new life surrounded
by strangers, the pervasive and unrelenting media attention this case garnered created a detailed,
permanent record of the crime, ensuring that the children may at some point know every graphic
and lurid detail of their mother’s murder and dismemberment. It is also a simple matter of
common sense that children whose mother was brutally murdered and mutilated by their father,
having effectively lost both parents, would be psychologically damaged in a way and to such an
extent that is almost incomprehensible. We find no error in the trial court’s determination that
the available offense variable points inadequately measured the psychological injury to the Grant
With respect to defendant’s efforts to conceal the murder, the evidence established that
defendant methodically and precisely dismembered Tara Grant’s body and distributed the parts
in a public park. Defendant then attempted to mislead police by filing a missing person’s report,
making calls to the victim’s cell phone after her death, and appearing in the media tearfully
begging for his wife’s return. Finally, the defendant’s actions immediately before his capture
resulted in the search efforts of multi-jurisdictional law enforcement departments, his
hospitalization and his medical treatment.
Unlike the Smith case, the connection between the reasons given for departure and the
extent of the departure in this matter is clear. The trial court’s meticulous analysis of the facts
and the circumstances that she found to justify an upward departure clearly justify the specific
departure. Given the totality of the facts and circumstances, we find the sentence proportionate
to the offense and the offender.
Defendant lastly argues that where the trial judge failed to take into account his ability to
repay the costs of his appointed trial counsel, the matter should be remanded to the trial court for
consideration of his present and future ability to pay that cost. We disagree.
Defendant relies upon People v Dunbar, 264 Mich App 240; 690 NW2d 476 (2004) in
asserting his argument. In that case, a panel of this Court held that a court must consider a
defendant’s ability to pay before ordering the reimbursement of court-appointed attorney fees
and provide some indication of such consideration. Id. at 254-255. However, subsequent to the
briefing in the instant matter, our Supreme Court, in People v Jackson, 483 Mich 271; 769
NW2d 630 (2009) overruled Dunbar, supra.
In Jackson, the Supreme Court determined that the presentence determination of a
defendant’s ability to pay court-appointed attorney fees is not required and that Dunbar wrongly
held otherwise. Noting that Michigan’s recoupment procedure for court-appointed attorney fees
is governed by MCL 769.1k, and that the statute allows for the imposition of a fee for a courtappointed attorney irrespective of a defendant's ability to pay, the Jackson court held that
Dunbar's presentence ability-to-pay rule must yield to the Legislature's contrary intent that no
such analysis is required at sentencing. That is not to say that an ability-to-pay analysis is never
required. Indeed, the Jackson court, recognizing that there is a substantive difference between
the imposition of a fee and the enforcement of that fee, affirmatively held that an ability-to-pay
analysis is required when the imposition of the fee is enforced and the defendant contests his
ability to pay.
Thus, trial courts should not entertain defendants' ability-to-pay-based challenges
to the imposition of fees until enforcement of that imposition has begun. Even
Dunbar recognized that these pre-enforcement challenges would be premature.
Nonetheless, once enforcement of the fee imposition has begun, and a defendant
has made a timely objection based on his claimed inability to pay, the trial courts
should evaluate the defendant's ability to pay. The operative question for any
such evaluation will be whether a defendant is indigent and unable to pay at that
time or whether forced payment would work a manifest hardship on the defendant
at that time. Id. at 292.
Given the holding in Jackson, the trial court did not err in ordering defendant to repay courtappointed counsel’s costs without conducting an ability-to-pay analysis at sentencing.
/s/ Donald S. Owens
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher