Opinion
352694
09-16-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ROBERT LEO MARZEJKA, Defendant-Appellant.
UNPUBLISHED
Macomb Circuit Court LC No. 2019-000832-FC
Before: Cameron, P.J., and Jansen and Gleicher, JJ.PER CURIAM
A jury convicted defendant of two counts of first-degree premeditated murder, MCL 750.316(1)(a). The trial court sentenced defendant to life imprisonment without the possibility of parole for both counts. We affirm.
I. FACTUAL BACKGROUND
On August 23, 2018, defendant killed his sister, Danielle Marzejka, and her boyfriend, Seren Bryan, in the home the three shared with Robert Joseph Marzejka, Danielle's and defendant's father, in Clinton Township. Defendant has never disputed killing Danielle and Bryan. Indeed, one of the first things defendant's trial counsel told the jury was that the defense was "not disputing the fact that Danielle and [Bryan] died at the hands of [defendant]." Nevertheless, trial counsel attempted to persuade the jury to find defendant not guilty of premeditated murder and instead convict defendant of voluntary manslaughter or second-degree murder, arguing that defendant's mental illness precluded a finding of premeditation.
A. PRETRIAL PROCEEDINGS
The prosecution filed a felony complaint in the district court on August 28, 2018, alleging two counts of premeditated murder. On September 17, 2018, the district court ordered defendant to be evaluated by the Center for Forensic Psychiatry (CFP) for competency to stand trial and criminal responsibility. The CFP prepared a report as to each issue, concluding defendant was competent and failed to meet the statutory criteria for legal insanity. The district court found defendant competent to stand trial. On March 13, 2019, the district court conducted a preliminary examination and bound defendant over on both counts.
The circuit court ordered another evaluation of defendant for competency and criminal responsibility on March 27, 2019. The CFP again opined that defendant was competent to stand trial. It appears from the record provided to this Court that the CFP did not perform another criminal responsibility evaluation, notwithstanding the circuit court's order. However, on April 2, 2019, defense counsel moved the circuit court for funds to have an independent evaluation conducted for competency and criminal responsibility, and the court granted the motion. The independent evaluator hired by defense counsel completed his report on July 25, 2019, and he, too, concluded defendant was both competent to stand trial and failed to meet the definition of legal insanity at the time of the offenses.
B. FAMILY BACKGROUND AND LEAD-UP TO DEATHS
On August 23, 2018, Danielle and Bryan lived with Danielle's family in a mobile home rented by defendant. Danielle and Bryan shared a bedroom, and defendant had his own bedroom. Robert slept in the living room because, until the Sunday before the murders, Kevin Marzejka (Danielle and defendant's brother) and Erin Funk (Kevin's girlfriend) lived in the only other bedroom. The family had resided in the home for about a month and had a history of frequent moves due to evictions for failing to rent. Robert did paint work for a general contractor. Defendant worked with Robert most of the time, and Kevin would work when he needed the money. The contractor let the three have a white work van for jobs, but defendant also used it for personal purposes.
Several weeks before their deaths, Danielle and Bryan began working the night shift at National Coney Island with a friend of Danielle's, Khriscinda Whaley. Because Danielle and Bryan did not have a vehicle, Whaley drove them to and from work. On August 22, 2018, the three went to work around 9:00 p.m., and Whaley dropped Danielle and Bryan off at home around 8:00 a.m. on August 23, 2018. When she dropped them off, Whaley noticed the white work van outside. Robert left for work around 8:15 a.m., saying goodbye to Danielle. This was the last time Danielle and Bryan were seen alive.
Whaley, Danielle, and Bryan were scheduled to work the evening of August 23, 2018, and Whaley was to give the other two a ride to work. Around 1:00 p.m. that day, Whaley attempted to contact Danielle by Facebook Messenger to inform Danielle that she was having vehicle problems and would be unable to drive the three to work that evening. Around 5:00 p.m., Whaley sent a message to Danielle again, informing Danielle that she thought she found them a ride to work. And then at 7:00 p.m., Whaley sent a third message to Danielle informing Danielle the ride had fallen through. None of the messages were successfully delivered to Danielle's phone, however, because it was turned off. This concerned Whaley because Danielle was always on her phone and carried a phone charger everywhere she went. Moreover, Danielle was a responsible employee, and it was unusual for her to miss work without contacting her employer. Danielle and Bryan did not show for work that night.
Accordingly, around 5:00 p.m. on August 24, 2018, Whaley went to Danielle's home to check on her. Robert and defendant were both home, and Robert, who was intoxicated, initially refused to let Whaley enter the home. After several minutes, however, Robert let Whaley enter, and the two talked in the living room for some time. Defendant was present and looked relaxed, but did not participate in the conversation. Whaley then went to Danielle and Bryan's room to look around. Whaley did not notice any blood, but the room seemed more disorganized than Danielle usually kept it. In addition, the blanket and top sheet on the bed were not what Danielle usually used, Danielle's phone charger was on her bed, and pillows were missing from the bed. After checking the room, Whaley remained in the home until 8:00 p.m., calling several of Danielle's friends to see if anyone else had heard from her. At some point while she was there, defendant left in the work van.
Whaley went to work shortly thereafter, but left early and returned to Danielle's home around 5:00 a.m. on August 25, 2018. She awoke Robert, who was still drunk, and argued with him about reporting Danielle and Bryan missing to the police. Eventually, to get Robert in her vehicle, Whaley told him they were going for more liquor, but she instead took him to the police station, where they reported Danielle missing. Because defendant had warrants out for his arrest and the police were likely to investigate wherever Danielle lived, Robert insisted that they tell the police that Danielle and Bryan lived with Whaley.
The police would not let them report Bryan missing because they were not related to him.
Later that day or early the following day, Allison Moceri, a friend of Danielle's, and several other friends went to Danielle's home to look around. Like Whaley, Moceri had been attempting to contact Danielle without success and was becoming concerned. Robert let Moceri and the others in, and Moceri did not see anyone else in the home. In the bedroom, Moceri found Danielle's duffel bag, laptop, purse, and blood-glucose meter. Moceri also found Bryan's wallet, which contained his state identification card. While one of the friends noticed blood on the mattress, nobody thought anything of it due to Danielle having a miscarriage a few months before. Moceri placed all of the items she found on the bed, took a photograph, then left them there for Whaley to pick up and take to the police.
Danielle had diabetes and was dependent on insulin to maintain her condition.
On the evening of August 26, 2018, Kevin and Erin went to the home and discussed Danielle and Bryan's disappearance with Robert. Defendant and the work van were not there. Around 6:00 p.m., Whaley and Erin took the items Moceri found to the police station and returned to the home. When Kevin looked through Danielle and Bryan's bedroom, he did not notice any blood or signs of a struggle, nor did the room seem messier than usual, but something seemed off to Kevin. Kevin checked the window and then went outside to check the grass outside the window. He then walked around the house and noticed an inordinate number of flies on the back of the shed. When Kevin went inside to get the key to the shed from the kitchen, the key was gone, but the lock on the shed had come from a storage unit Kevin and Erin shared, and Erin still had the spare key. Using that key, Kevin unlocked the shed. Robert and Whaley were with Kevin when he opened the shed. Immediately inside the shed was a box spring and lawnmower, which Kevin removed. In the back of the shed were two large plastic bags. Robert used a box cutter to cut an opening in one of the bags, and a leg became exposed. Everyone then left the shed and called the police.
C. POLICE INVESTIGATION
Both bags were transported to the morgue as they were found. Dr. Mary Pietrangelo performed the autopsies for both victims. Both bodies had begun to decompose. Bryan was wrapped in five plastic bags. Three bags were around just his head and neck, one bag was around his lower body, and one bag was around his upper body. There was duct tape over his "lower mouth, and sides of his face, and the back of his neck." Dr. Pietrangelo believed the tape had been over Bryan's nose at one point but had slipped down due to the decomposition. Bryan had three scalp lacerations on the back of his head from blunt force trauma. According to Dr. Pietrangelo, these strikes occurred while Bryan was alive and would have rendered Bryan unconscious. But the head injuries did not cause Bryan's death. Instead, Dr. Pietrangelo determined Bryan's cause of death to be asphyxia due to suffocation. Bryan's knees were at his chest and his arms were over his knees in the bags. Bryan's wrists and ankles were bound separately and then together with duct tape, holding him in position.
Danielle was wrapped in three plastic bags; one bag was around her whole body and two were around her head and neck. There was duct tape "around her head, which was also over her nostrils and her mouth, and she had duct tape around her neck." Danielle had seven lacerations from blunt force trauma scattered across her scalp and several skull fractures. While the skull fractures would not have been instantly fatal, Dr. Pietrangelo could not determine whether she died from the fractures or asphyxia by suffocation. Danielle was positioned similarly to Bryan. Her knees were up to her chest, and her ankles were bound by duct tape. Her wrists were not bound, but there was a loop of duct tape near her ankles suggesting that Danielle's wrists were bound there at one point.
Danielle and Bryan were wearing only shirts and underwear. Dr. Pietrangelo found no signs of strangulation or defensive wounds on either Danielle or Bryan. She also found no signs of attempts to revive either through cardiopulmonary resuscitation (CPR).
Police searched the shed in which Danielle's and Bryan's bodies were discovered and the inside of the home. In the shed, Officer Steven Vasilides found a plastic bag that contained several items, most of which had blood on them. Specifically, Officer Vasilides discovered pillows, a makeup kit, needles for checking blood-glucose levels, a 27-ounce rubber "Husky dead blow hammer," an empty duct tape roll, some black duct tape, and a fitted sheet. The fitted sheet matched the sheet on Danielle and Bryan's bed. Police found blood spatter under a doily on the television stand in their room and on the underside of a makeup station. There was a blood stain in the carpet under a hamper in the room and, with the assistance of Bluestar, which is similar to luminol, there appeared to have been blood on the wall and floor that was cleaned up. Behind a panel in a walk-in closet near Danielle and Bryan's bedroom, where the hot water heater was located, Officer Vasilides found a roll of black duct tape with a bloody fingerprint on the inside of the roll and a number of other items with blood spatter on them, including a pair of pants with paint on them, a shirt, various towels, and an Xfinity box.
Officer Vasilides identified these items from a photograph labeled as People's Exhibit 25. Looking at the same exhibit, Kevin identified a pair of shorts and a shirt as belonging to defendant.
Ashley Motter, a forensic biologist with the Michigan State Police, performed a number of DNA analyses. Motter found three individuals contributed to the DNA on the handle of the Husky hammer-including Danielle and defendant. Danielle and Bryan's DNA was found on the head of the hammer. Blood stains from the clothing presented matched DNA from defendant, Danielle, and Kevin. Danielle, Bryan, and defendant contributed to DNA found on the rolls of duct tape. Danielle's blood was also found on the hamper and mirror from the bedroom.
Detective Sergeant Cynthia Edwards, a latent print examiner for the Michigan State Police, performed an independent verification of two fingerprints for which another examiner had already performed comparisons. One print was from the inside of a duct tape roll and the other was from duct tape. Both prints matched defendant's.
D. DEFENDANT'S WHEREABOUTS
Soon after Danielle's and Bryan's bodies were discovered, the police turned their attention to defendant as only those who resided (or had resided) in the home had access to the shed and he was the only resident unaccounted for. Defendant's phone received a call in the area of the home around 10:13 a.m. on August 23, 2018. At 1:22 p.m. that same day, defendant ordered a cab with his phone from Shamrock Cab Company. The cab picked up defendant from his home and took him to a Wendy's restaurant at the corner of 15 Mile Road and Groesbeck Highway, about two miles from defendant's home, arriving at 1:42 p.m. Defendant called Williams Carpet care at 1:35 p.m. Defendant then took a bus down 15 Mile Road. When he exited the bus, he entered a Tim Horton's, then left and crossed the street where Robert picked him up in the work van. The two returned home around 5:30 p.m.
At least until August 26, 2018, the day the bodies were found, defendant remained in Clinton Township. As noted, Whaley saw defendant at the home on August 24, 2018, and on August 26, 2018, defendant paid cash for a room at the Riverfront Inn. At 10:25 p.m. that same day, defendant made a call from his cell phone near the inn. When he vacated the inn, defendant left behind a computer, a cell phone, "and other miscellaneous items." Around 2:00 a.m. on August 27, 2018, the work van was spotted in Toledo and reported to the police. The van was eventually found and seized from a market in Toledo. On August 28, 2018, defendant took a Greyhound bus from Toledo to Cincinnati, arriving around 3:45 a.m. on August 29, 2018. Unbeknownst to him, Toledo police had already provided a photo of defendant to the Greyhound attendants, who reported defendant purchasing a ticket to the police. After spending some time at the Greyhound station in Cincinnati, defendant asked Greyhound employees for access to a computer, and they directed him to a library. When police arrived at the Greyhound station, the employees informed police of this fact, and the police successfully captured defendant at the library that day without incident. While in Ohio defendant was wearing a blonde wig, hat, and sunglasses, and went by the name Josh Bianca or Bianco. He also utilized a reloadable charge card or cash to make his purchases.
E. MENTAL HEALTH AND VERDICTS
Kevin testified that in November 2011, defendant was diagnosed with bipolar disorder, schizophrenia, and paranoia. Defendant had been hospitalized several times due to erratic behavior, for a total of three or four weeks over the course of nine years. Defendant once mentioned hearing voices. According to Kevin, defendant did not believe his diagnoses and, therefore, would not take the medications prescribed to him, which included Seroquel and Lithium. The last time defendant was evaluated for psychiatric issues was in January 2018.
The jury found defendant guilty of both counts of premeditated murder on November 22, 2019, and the trial court sentenced defendant to the mandatory sentence of life imprisonment without the possibility of parole for both counts on January 14, 2020.
On July 31, 2020, after filing his claim of appeal with this Court, defendant moved the trial court to either hold a Ginther hearing or grant him a new trial. Defendant's motion was premised on a claim of ineffective assistance of counsel. Although defendant acknowledged that whether to call an expert witness is a matter of trial strategy, defendant noted that such a presumption was inapplicable when counsel fails to engage in a reasonable investigation or when failing to call an expert deprives a defendant of a substantial defense. In this case, defendant argued, trial counsel conceded that defendant killed Danielle and Bryan, choosing to emphasize defendant's mental illness in an effort to convince the jury that defendant could not have premeditated the killings. Counsel ineffectively failed to call an expert who could have explained defendant's mental illness and the effect of his failure to take his prescribed medications, defendant contended. Instead, counsel relied entirely on the testimony of a lay witness who could not explain the symptoms of defendant's mental conditions or his need for medications. Specifically, defendant argued that an expert could have explained that Seroquel is prescribed to treat sudden episodes of mania and to decrease hallucinations, and Lithium is similarly prescribed to reduce the frequency and severity of manic episodes. Defendant argued such testimony was critical to his defense in light of trial counsel's chosen strategy, and had it been presented to the jury, defendant may have been found guilty of a lesser offense.
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
In response, the prosecution contended that defendant's argument was meritless because he was essentially asserting a diminished-capacity defense, which was abrogated by our Supreme Court in People v Carpenter, 464 Mich. 223; 627 N.W.2d 276 (2001). Specifically, the prosecution argued that defendant claimed that his mental illness negated the specific-intent element of premeditation, which is identical to the diminished-capacity defense addressed in Carpenter. The prosecution also argued that defendant failed to establish the factual predicate for his claim because "defense counsel reasonably determined, after adequate preparation and investigation, that an insanity defense would not be viable," defendant failed to show an insanity defense would have been viable, defendant failed to present any evidence that a psychiatrist other than the two who already examined him would have reached a different conclusion regarding insanity, and defendant failed to provide an affidavit from an expert who would have testified favorably for him.
The trial court held a motion hearing on October 13, 2020, at which the parties argued consistently with their briefs. Defendant also responded to the prosecution's Carpenter argument, averring that using mental illness to dispute premeditation was not a diminished-capacity defense because premeditation was not "the intent element." On November 17, 2020, the trial court entered an opinion and order denying defendant's motion. The court recognized that a defendant may present evidence of mental illness if relevant to some purpose other than to negate the specific intent element of the charged offense, but concluded premeditation is a specific intent element of premeditated murder. Accordingly, the trial court held that evidence of mental illness introduced to negate premeditation would have run afoul of Carpenter, and trial counsel could not be ineffective for failing to call an expert witness for this purpose.
Defendant now appeals.
II. STANDARD OF REVIEW
A claim of ineffective assistance of counsel generally presents a mixed question of fact and law. People v Hoang, 328 Mich.App. 45, 63; 935 N.W.2d 396 (2019). We review the trial court's findings of fact, if any, for clear error and constitutional questions de novo. Id. However, when there has been no evidentiary hearing, our review is limited to mistakes apparent on the record. People v Payne, 285 Mich.App. 181, 188; 774 N.W.2d 714 (2009). We review a trial court's decision whether to hold an evidentiary hearing for an abuse of discretion, which "occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." People v Unger, 278 Mich.App. 210, 217-218; 749 N.W.2d 272 (2008).
III. DISCUSSION
Defendant makes the same argument he did in his motion below: his trial counsel was ineffective for failing to call an expert witness to testify about defendant's mental illness and the effects of his failure to take his prescribed medications. To this he adds that the trial court erred by denying him a Ginther hearing to support his ineffective-assistance claim. Both arguments lack merit.
Criminal defendants have the right to the effective assistance of counsel. People v Heft, 299 Mich.App. 69, 81; 829 N.W.2d 266 (2012). See U.S. Const, Am VI; Const 1963, art 1, § 20. Trial counsel is presumed to provide effective assistance, and a defendant bears a heavy burden to overcome that presumption. People v Jackson, 313 Mich.App. 409, 431; 884 N.W.2d 297 (2015). To prevail on a claim of ineffective assistance,
a defendant must show that his counsel's performance was deficient, and that there is a reasonable probability that but for that deficient performance, the result of the trial would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A defendant must establish a factual basis for an ineffective-assistance-of-counsel claim. [Hoang, 328 Mich.App. at 64 (quotation marks and citations omitted).]
In addition, whether to call a witness is presumed to be a matter of trial strategy, Jackson, 313 Mich.App. at 431-432, and this Court will not substitute its judgment for that of counsel on matters of trial strategy, Payne, 285 Mich.App. at 190.
The affirmative defense of legal insanity is provided by MCL 768.21a(1). That provision states:
An individual is legally insane if, as a result of mental illness as defined in . . . 1974 PA 258, MCL 330.1400, or as a result of having an intellectual disability as defined in . . . MCL 330.1100b, that person lacks substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law. Mental illness or having an intellectual disability does not otherwise constitute a defense of legal insanity. [Emphasis added.]
Despite MCL 768.21a(1), this Court once permitted defendants to raise the diminished-capacity defense, which "allows a defendant, even though legally sane, to offer evidence of some mental abnormality to negate the specific intent required to commit a particular crime." Carpenter, 464 Mich. at 232. The Carpenter Court put an end to the diminished-capacity defense, holding that "the Legislature has demonstrated its policy choice that evidence of mental incapacity short of insanity cannot be used to avoid or reduce criminal responsibility by negating specific intent." Id. at 237.
The Legislature amended MCL 768.21a(1) after Carpenter, but did not substantively alter its provisions. Where the act now refers to "an intellectual disability," it once referred to "being mentally retarded." Compare 1994 PA 56 with 2014 PA 76. The amendment also adjusted the references to other acts and statutory provisions, presumably to accommodate changes made by other bills that relocated the relevant provisions. 2014 PA 76.
Thus, the question at issue is a simple one: is the element of premeditation for the offense of premeditated murder one of specific intent, such that a defendant may not attack a finding of premeditation on the basis of mental incapacity short of legal insanity? If so, defendant's ineffective-assistance claim necessary fails, because trial counsel cannot be ineffective for failing to call an expert witness to support a legally unavailable defense. For the following reasons, we conclude premeditation is a specific-intent element that, under Carpenter, may not be attacked by evidence of mental incapacity short of legal insanity.
First, while this Court has never explicitly addressed whether the use of mental incapacity to negate premeditation falls within the prohibition in Carpenter, in at least one published decision, this Court has implicitly accepted such to be true. In People v Tierney, 266 Mich.App. 687, 711-712; 703 N.W.2d 204 (2005), the defendant argued the trial court prevented him from presenting a defense by excluding "certain expert testimonial evidence of intent, premeditation, and malice aforethought" under Carpenter. This Court disagreed, noting "the trial court barred defendant only from presenting evidence of his mental state to negate intent," and that "the trial court's ruling did not deny defendant his constitutional right to present a defense; rather, it merely denied defendant the right to present evidence of diminished capacity." Id. at 713-714. Thus, the Tierney Court saw no distinction between evidence of the defendant's mental state to negate premeditation and "evidence of his mental state to negate intent" that is prohibited under Carpenter.
Second, going back to legal basics, it is clear that the element of premeditation renders first-degree murder a specific-intent crime. "Specific intent is defined as a particular criminal intent beyond the act done, whereas general intent is merely the intent to perform the physical act itself." People v Abramski, 257 Mich. 71, 72; 665 N.W.2d 501 (2003) (quotation marks and citation omitted). See also Black's Law Dictionary (11th ed) ("The intent to accomplish the precise criminal act that one is later charged with."). Thus, if an offense is one of specific intent, a defendant must not only have intended to do the prohibited act, he or she must also have intended the prohibited result of that act. Premeditation means "to think about beforehand." People v Oros, 502 Mich. 229, 239; 917 N.W.2d 559 (2018) (quotation marks and citation omitted). With respect to premeditated murder, it is "the act of killing," i.e., causing death, that must be thought about beforehand. People v Abraham, 234 Mich.App. 640, 656; 599 N.W.2d 736 (1999) (emphasis added). As such, premeditation is "a particular criminal intent beyond the act done." Abramski, 257 Mich. at 72. Therefore, under Carpenter, it is a specific-intent element that cannot be attacked with evidence of mental incapacity short of legal insanity.
Accordingly, evidence of mental illness is not admissible for the purpose of negating premeditation. Because this is the only purpose for which defendant contends his trial counsel should have called an expert witness, trial counsel was not ineffective for failing to do so. See People v Ericksen, 288 Mich.App. 192, 201; 793 N.W.2d 120 (2010) ("Failing to advance a meritless argument . . . does not constitute ineffective assistance of counsel.") Moreover, no factual development could have furthered this meritless claim, so the trial court did not abuse its discretion by refusing to grant defendant a Ginther hearing. See Ginther, 390 Mich. at 443.
The same likely cannot be said about trial counsel's decision to concede that defendant killed Danielle and Bryan and attempt to emphasize defendant's mental illness to negate premeditation since Carpenter prohibits such an argument. But defendant does not raise this argument.
We affirm.