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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v STEPHEN C. GRANT, Defendant-Appellant.

UNPUBLISHED October 6, 2009

No. 284100 Macomb Circuit Court LC No. 2007-002480-FC

Before: Owens, P.J., and Servitto and Gleicher, JJ. PER CURIAM. 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.

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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 disagree. 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." -2-

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 -3-

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 deliberations. 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 -4-

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 defendant's guilt. 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 affirmatively stated: 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 murder. 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.

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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 voluntary manslaughter.

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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,

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