People v. McBride

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KENNY WAYNE MCBRIDE, Defendant-Appellant.

No. 360446

Court of Appeals of Michigan

April 20, 2023

UNPUBLISHED

Monroe Circuit Court LC No. 2020-245852-FC.

Before: Kristina Robinson Garrett, P.J., and Kirsten Frank Kelly and Noah P. Hood, JJ.

PER CURIAM.

Defendant appeals by delayed leave granted^[1] his jury-trial convictions of first-degree premeditated murder and disinterment mutilation, defacement, removal, or carrying away of a human body, for which he was sentenced as a fourth-offense habitual offender to life imprisonment without the possibility of parole and 114 to 480 months' imprisonment, respectively. Finding no errors warranting reversal, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

Defendant Kenny Wayne McBride, lived with his father, Kenneth Reece, and the victim, who was Kenneth's mother-in-law, Cecelia Gibson. There was some testimony the victim thought of defendant as a bad roommate, but no one believed there were serious issues between them. On the day of the murder, the victim's son, Billy Jo Gibson, was at the defendant's home with the victim and defendant. A verbal altercation occurred between the victim and defendant over bottled water, which caused Billy to become concerned about the victim's safety. Despite Billy's concern, the victim insisted she was safe to stay home with defendant.

While defendant and the victim were home alone from 2:00 p.m. on February 16, 2020, until 3:00 a.m. on February 17, 2020, the victim was beaten to death with the perpetrator's fists, a piggy bank, and a protective gate for children. Once dead, the victim's head was removed with the serrated blades of two bread knives. When Kenneth arrived home from work and found the victim's body, defendant was in his room on the second floor with the door closed but not latched. When Kenneth called for defendant, he quickly came downstairs. Kenneth testified defendant acted strangely because he did not appear shocked to find a dead body in the living room but instead was concerned about how Kenneth would react. Kenneth called 911 and reported the body.

Police arrived shortly thereafter and restrained defendant. Police found the victim's severed head in the driveway. Defendant had injuries on his hands, arms, and head, which were consistent with someone who struggled to kill and behead someone. A pair of blue jeans, in which defendant's DNA was found in the waistband, were also found in the bathroom, covered in what appeared to be the blood and flesh of the victim. On the edge of the bathtub, police found defendant's palm print in the victim's blood. Under the victim's body, police found shredded photographs of defendant's family. Defendant was charged with open murder and mutilation of a dead body.

After the crime was discovered, local news media covered the case. Before trial commenced, defendant moved the trial court to change venue, claiming he could not receive a fair trial because of the pretrial publicity. The trial court disagreed, noting defendant had not presented proof of such pervasive coverage allowing for a presumption all potential jurors were irredeemably prejudiced. The trial court stated any potential exposure to the media coverage could be dealt with at jury selection. After four days of trial, defendant was convicted and sentenced as noted. This appeal followed.

II. JURY SELECTION

Defendant first argues he is entitled to reversal of his convictions because a biased juror was not excused by the trial court for cause.^[2] We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

The decision to grant or deny a challenge for cause is reviewed for abuse of discretion. People v Eccles, 260 Mich.App. 379, 382-383; 677 N.W.2d 76 (2004). "An abuse of discretion occurs when the trial court's decision falls outside the range of principled outcomes." People v Korkigian, 334 Mich.App. 481, 489; 965 N.W.2d 222 (2020) (quotation marks and citation omitted). However, "once a party shows that a prospective juror falls within the parameters of one of the grounds enumerated in MCR 2.511(D), the trial court is without discretion to retain that juror, who must be excused for cause." Eccles, 260 Mich.App. at 383. Generally, "[w]hether defendant was denied his [constitutional] right to an impartial jury . . . is a constitutional question that we review de novo." People v Bryant, 491 Mich. 575, 595; 822 N.W.2d 124 (2012).

"The general rule is that the defendant must exhaust his peremptory challenges to preserve a jury selection question." People v Jendrzejewski, 455 Mich. 495, 514 n 19; 566 N.W.2d 530 (1997). Alternatively, "when a party refuses to express satisfaction with the jury empaneled, the issue is preserved for appeal." Id. (quotation marks and citation omitted). More generally, though, "[a] defendant must raise an issue in the trial court to preserve it for our review." People v Heft, 299 Mich.App. 69, 78; 829 N.W.2d 266 (2012). Here, although defendant was out of peremptory challenges, he never challenged the juror for cause in any manner. As a result, the issue of the juror's potential bias was never raised in the trial court and is not preserved for this Court's review. Id.

Because this issue is unpreserved, we review the "unpreserved claim for plain error affecting defendant's substantial rights." People v Roscoe, 303 Mich.App. 633, 648; 846 N.W.2d 402 (2014). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." People v Bailey, 330 Mich.App. 41, 53-54; 944 N.W.2d 370 (2019) (quotation marks and citation omitted). To show that a defendant's substantial rights were affected, there must be "a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id. (quotation marks and citation omitted). "Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." People v Randolph, 502 Mich. 1, 10; 917 N.W.2d 249 (2018) (quotation marks and citation omitted).

B. ANALYSIS

Defendant contends his constitutional right to a fair and impartial jury was violated by a biased juror being among those individuals who decided defendant's guilt. Specifically, defendant argues that the selection of a juror who had been a court deputy in a different county deprived him of his constitutional right to an unbiased jury.

" 'The right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial "indifferent" jurors.'" Jendrzejewski, 455 Mich. at 501, quoting Irvin v Dowd, 366 U.S. 717, 722; 81 S.Ct. 1639; 6 L.Ed.2d 751 (1961). "[J]urors are presumed to be . . . impartial, until the contrary is shown." People v Miller, 482 Mich. 540, 546; 759 N.W.2d 850 (2008) (quotation marks and citation omitted; alteration in original). Even so, "[a] trial court ensures that a jury is impartial by conducting voir dire and removing biased jurors before impaneling the jury . . . ." People v Haynes, 338 Mich.App. 392, 411; 980 N.W.2d 66 (2021). "The burden is on the defendant to establish that the juror was not impartial or at least that the juror's impartiality is in reasonable doubt." Miller, 482 Mich. at 550. "MCR 6.412(D)(2) provides that if 'the court finds that a ground for challenging a juror for cause is present, the court on its own initiative should, or on motion of either party must, excuse the juror from the panel.'" Miller, 482 Mich. at 546. One such ground, under MCR 2.511(D)(2) is when the person "is biased for or against a party or attorney[.]"

Here, defendant contends the challenged juror was biased in favor of the prosecution and police because the juror stated he worked for a court in a different county. The trial court asked the juror if this would cause him to have a bias in favor of the prosecution and the police. The juror initially stated he did not "think" so. The trial court then asked: "You don't think so?" The juror's response to the question was nonverbal-the transcript simply states "(No verbal response)." Defendant uses this ambiguity in the record in his favor, claiming the transcript is unclear regarding whether the juror clarified his ability to decide the case without a bias in favor of the prosecution and police. However, from simple context clues in the record, it is clear the juror's answer indicated that he would not have bias. Immediately after the nonverbal answer, the trial court asked: "So, you'd be able to hear all of the testimony and decide-and the exhibits- and decide whether or not the prosecutor has proved her case?" The juror responded, "Yes, Judge." This question from the trial court and the juror's response clearly indicates the juror's nonverbal response to the previous question permitted an inference that the juror would not operate with a bias.

Moreover even given the apparent ambiguity in the juror's nonverbal response, the juror later clearly and expressly stated he understood the prosecution had the burden to prove its case and defendant did not have to prove anything. If the juror had a bias in favor of the prosecution, his answers to questions about the prosecutor's burden and defendant's responsibility to prove something would presumably have been different. Additionally, upon further questioning by defense counsel, the juror said he had not heard anything about the case in the media and did not have any friends or family who worked in law enforcement. In short, after the brief misstatement by the juror-that...