Preview:

STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v MICHAEL JAMES BOWMAN, Defendant-Appellant.

UNPUBLISHED November 15, 2007

No. 270443 St. Clair Circuit Court LC No. 05-001856-FC

Before: Wilder, P.J., and Cavanagh and Hood, JJ. PER CURIAM. A jury convicted defendant of first-degree premeditated murder, MCL 750.316(1)(a), kidnapping, MCL 750.349, and conspiracy to commit kidnapping, MCL 750.157a. The trial court sentenced defendant as a fourth-felony habitual offender, MCL 769.12, to life imprisonment for the murder conviction, and concurrent terms of 30 to 50 years' imprisonment for the kidnapping and conspiracy convictions. He appeals as of right, and we affirm. Defendant's convictions arise from the kidnapping and beating death of Ryan Rich at the hands of defendant and five codefendants, Michael Hills, Robert Hills, Stewart Ginnetti, Nicholas Dobson, and James Cunningham. I Defendant first argues that the trial court erred in denying his motion for a change of venue. We disagree. In areas with relatively small jury pools, a defendant is entitled to a change of venue if there is such "unrelenting prejudicial pretrial publicity [that] the entire community will be presumed both exposed to the publicity and prejudiced by it." People v Jendrzejewski, 455 Mich 495, 501; 566 NW2d 530 (1997), quoting Mu'Min v Virginia, 500 US 415, 442 n 3; 111 S Ct 1899; 114 L Ed 2d 493 (1991). In this case, defendant did not submit any exhibits in support of his motion for change of venue, and the trial court observed that media coverage had not been unusually intense. On this record, the trial court did not abuse its discretion in determining that a change of venue was not justified. Jendrzejewski, supra at 500.

-1-


Moreover, the trial court denied defendant's motion without prejudice, stating that defendant could renew the motion at trial if jury voir dire revealed that a fair and impartial jury could not be seated. As our Supreme Court observed in Jendrzejewski, id. at 511, "[a]s an alternative method of determining whether community prejudice resulting from publicity may have unconsciously infected jurors who were seated, the Court has sometimes noted how many non-seated members of the venire admitted to disqualifying prejudice." (Internal quotations and citations omitted). Because defendant did not renew his motion for a change of venue at trial, however, any claim that a change of venue was warranted based on the outcome of jury voir dire is unpreserved. This Court reviews unpreserved issues for plain error affecting substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). During voir dire, only 11 of the 25 prospective jurors admitted to having heard media coverage about the case, and only four of those jurors admitted to a disqualifying prejudice. this is far less than the percentage of jurors in Jendrzejewski, in which the Court found that the defendant failed to show a community sentiment so poisoned against the defendant that a change of venue was required. Jendrzejewski, supra at 511. Further, defense counsel in this case exercised only five of his twelve peremptory challenges, and expressed that he was "very satisfied" with the jury chosen. On this record, there is no basis for concluding that a change of venue was required. II Defendant next argues that defense counsel was ineffective for failing to object to the prosecutor's improper vouching for the credibility of a witness. We disagree. We begin, naturally, with the text of the constitutional provisions in question. The United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defence." US Const, Am VI. Similarly, the Michigan Constitution provides: "In every criminal prosecution, the accused shall have the right . . . to have the assistance of counsel for his or her defense . . . ." Const 1963, art 1,

Download PEOPLE OF MI V MICHAEL JAMES BOWMAN.pdf

Michigan Law