                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 19, 2018
              Plaintiff-Appellee,

v                                                                  No. 335583
                                                                   Macomb Circuit Court
LOYD SABASTIAN DEJOHN,                                             LC No. 2015-001414-FC

              Defendant-Appellant.


Before: MURPHY, P.J., and JANSEN and RONAYNE KRAUSE, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of first-degree murder, MCL
750.316, and disinterment or mutilation of a dead body, MCL 750.160.1 Defendant was
sentenced to life imprisonment for first-degree murder, and 6 to 10 years’ imprisonment for
disinterment or mutilation of a dead body. We affirm in part, but reverse in part, and vacate
defendant’s conviction under MCL 750.160. Further, we remand to the trial court to amend
defendant’s judgment of sentence to reflect that defendant’s conviction under MCL 750.160 is
vacated.

        This case arises from the disappearance of the victim, defendant’s wife. After a missing
person’s report was filed, the police began an investigation into her disappearance. The body of
the victim was ultimately found buried on abandoned property in northern Michigan.

                                 I. COMPETENCY HEARING

       First, defendant argues that he was denied due process when the trial court declined to
adjourn the competency hearing because defendant’s independent psychological evaluator failed
to appear to testify. We disagree.

        This Court reviews a trial court’s ruling on a request for an adjournment for an abuse of
discretion. People v Coy, 258 Mich App 1, 17; 669 NW2d 831 (2003). An abuse of discretion


1
 Defendant was also charged with aggravated domestic violence, MCL 750.81a(2), but the trial
court granted the prosecution’s request to dismiss this charge on the first day of trial.


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occurs when the trial court’s decision falls outside the range of reasonable and principled
outcomes. People v Yost, 278 Mich App 341, 379; 749 NW2d 753 (2008).

        Decisions whether to adjourn or continue proceedings are within the discretion of the trial
court. People v Snider, 239 Mich App 393, 421-422; 608 NW2d 502 (2000). This Court may
consider a trial court’s interest in the efficient administration of justice. People v Akins, 259
Mich App 545, 557; 675 NW2d 863 (2003). A request for an adjournment must be based on
good cause. Coy, 258 Mich App at 18. “ ‘Good cause’ factors include ‘whether defendant (1)
asserted a constitutional right, (2) had a legitimate reason for asserting the right, (3) had been
negligent, and (4) had requested previous adjournments.’ ” Coy, 258 Mich App at 18, quoting
People v Lawton, 196 Mich App 341, 348; 492 NW2d 810 (1992). When adjournment is sought
because of the unavailability of evidence or a witness, diligent efforts to produce the witness
must be shown. MCR 2.503(C); Coy, 258 Mich App at 18. However, even if good cause and
diligence are shown, the denial of adjournment by the trial court is not grounds for reversal
unless the defendant was prejudiced by the abuse of discretion. Coy, 258 Mich App at 18-19.

       We conclude that the trial court did not abuse its discretion in denying defendant’s
request for an adjournment of the competency hearing as defendant did not demonstrate good
cause or due diligence, and likewise failed to show he was prejudiced when denied an
adjournment. Id. Defendant asserted his constitutional right not to be tried or convicted while
incompetent to stand trial, as doing so would deprive him of his due process right to a fair trial.
People v Kammeraad, 307 Mich App 98, 137; 858 NW2d 490 (2014). This due process right is
protected by MCL 330.2020(1):

       A defendant to a criminal charge shall be presumed competent to stand trial. He
       shall be determined incompetent to stand trial only if he is incapable because of
       his mental condition of understanding the nature and object of the proceedings
       against him or of assisting in his defense in a rational manner. The court shall
       determine the capacity of a defendant to assist in his defense by his ability to
       perform the tasks reasonably necessary for him to perform in the preparation of
       his defense and during his trial.

Defendant had a legitimate reason for asserting this right as MCL 330.2022(1) provides that “[a]
defendant who is determined incompetent to stand trial shall not be proceeded against while he is
incompetent.” It was asserted through the course of obtaining defendant’s independent
psychiatric evaluation that defendant had a traumatic brain injury at a young age that may have
affected his ability to function. Therefore, defendant properly requested an independent
psychiatric evaluation aside from the competency evaluation performed by the Center for
Forensic Psychiatry. Thus, the first two good cause factors were met. Coy, 258 Mich App at 18,
quoting Lawton, 196 Mich App at 348.

       However, defendant’s first attorney, Timothy S. Barkovic, was defendant’s attorney
when he requested adjournment seven times over the course of eight months. Barkovic kept
seeking adjournments because Dr. Gerald Shiener, who would perform the independent
psychiatric evaluation, had not met with defendant, or Barkovic was not yet in receipt of Dr.
Shiener’s report. Barkovic put the trial court on notice of his impending withdrawal as
defendant’s counsel, and his wish to ensure that Dr. Shiener evaluated defendant and submitted a

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report before he withdrew. However, this does not excuse Barkovic’s failure to ensure that
defendant was evaluated or his multiple requests for adjournments over the course of so much
time. It was within the trial court’s discretion to deny the request to adjourn in the interest of the
efficient administration of justice after so many previous adjournments. Akins, 259 Mich App at
558.

         Additionally, defendant’s second attorney, Mark Douglas Nortley, failed to exercise due
diligence in ensuring Dr. Shiener’s attendance at the competency hearing. The prosecution
informed the court at the competency hearing that it sent Dr. Shiener a subpoena to appear at the
May 4, 2016 competency hearing the day after the last pretrial hearing on April 7, 2016. Nortley
asserted at the April 7, 2016 pretrial hearing that he would follow up with Dr. Shiener, but he
was not informed that Dr. Shiener could not attend until a few days before the hearing. Nortley’s
failure to follow up with Dr. Shiener to assure his presence at the competency hearing constitutes
a lack of due diligence. The trial court did not abuse its discretion in determining that the time
between the subpoena and the hearing was sufficient for Dr. Shiener to contact the court or make
himself available, and it was in the interest of the efficient administration of justice to proceed.
Akins, 259 Mich App at 557.

        Regardless, defendant cannot demonstrate that he was prejudiced by the trial court’s
failure to adjourn the competency hearing. Coy, 258 Mich App at 18-19. The trial court was in
receipt of Dr. Shiener’s report by the pretrial hearing on April 7, 2016. Dr. Shiener did not find
defendant competent to stand trial, but there were two prior evaluations authored by Dr. Jennifer
Whitmore from the Center for Forensic Psychiatry indicating that defendant was competent.
Therefore, the court scheduled the competency hearing.

         At the competency hearing, the prosecution stipulated to Dr. Shiener’s credentials and
that he was an expert, stipulated to Dr. Shiener’s report as a basis for his findings, and waived
Dr. Shiener’s presence and the prosecution’s right to cross-examination. The court found that
Dr. Shiener’s 10-page report was sufficient for the competency hearing to proceed without Dr.
Shiener present to testify. Although Dr. Whitmore testified and Dr. Shiener did not, defendant
was not prejudiced as the trial court had Dr. Shiener’s report. It was admitted into evidence.
Furthermore, the court did not render its decision from the bench immediately following Dr.
Whitmore’s testimony. Rather, the court took the matter under advisement, and later issued an
opinion and order. Therefore, the trial court had ample time to consider Dr. Shiener’s report.
The order summarizes the findings of each doctor before concluding that defendant was
competent to stand trial based on “[c]redible evidence and testimony [ ] that defendant is capable
of understanding the nature and object of the proceedings against him and assisting in his
defense in a rational manner.” Therefore, defendant was not prejudiced by the trial court’s
failure to adjourn the competency hearing, and defendant is not entitled to reversal.

        On appeal, defendant argues that the trial court abused its discretion when it denied the
adjournment because the trial court “ignored” several differences between Dr. Whitmore’s
evaluation of defendant and Dr. Shiener’s. For example, Dr. Whitmore relied on defendant’s
long-term employment, but did not inquire regarding how much daily assistance defendant
needed. Dr. Whitmore testified that defendant understood the trial process, but Dr. Shiener
reported that defendant conflated the roles of the judge and the jury. A defendant’s competency
is within the discretion of the trial court. People v Newton, 179 Mich App 484, 488; 446 NW2d

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487 (1989). Therefore, it was within the trial court’s discretion to determine which factors of
each doctor’s testimony or report to rely on when determining defendant’s competency. The
trial court did not abuse its discretion in this regard.

                                   II. ANONYMOUS JURY

        Second, defendant argues that he was denied due process when the trial court referred to
the jurors by number rather than by their names throughout trial. We disagree.

       Because defendant failed to object to the trial court referring to jurors by number rather
than name, this unpreserved issue is reviewed for plain error. People v Hanks, 276 Mich App
91, 92; 740 NW2d 530 (2007). “To establish plain error requiring reversal, a defendant must
demonstrate that ‘1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3)
and the plain error affected substantial rights.’ ” Id., quoting People v Carines, 460 Mich 750,
763; 597 NW2d 130 (1999). To meet the third requirement, “there must be a showing of
prejudice, i.e., that the error affected the outcome of the lower-court proceedings.” People v
Jones, 468 Mich 345, 356; 662 NW2d 376 (2003).

        An “anonymous jury” was defined by this Court as a jury “in which certain information
is withheld from the parties, presumably for the safety of the jurors or to prevent harassment by
the public.” People v Williams, 241 Mich App 519, 522; 616 NW2d 710 (2000). An anonymous
jury implicates the defendant’s interest in conducting a meaningful examination of the jury and
maintaining the presumption of innocence. Id. at 522-523. A defendant’s challenge to an
anonymous jury may only succeed when the record indicates that withheld information
precluded a meaningful voir dire, or compromised the presumption of innocence. Id. at 523.

        In Williams, the trial court referred to jurors by numbers rather than by name, but the
record did not indicate that personal information was withheld from the parties. Id. The jurors
were anonymous in a literal sense, but not in a strict sense. Id. The key to an anonymous jury is
that certain biographical information about the jurors is withheld from the parties. Id. The
Williams Court determined that “anonymous jury” should be defined strictly, meaning,
something more than the jurors’ names is withheld from the parties. Id. In Williams, the
defendant had access to the jurors’ biographical information included in the juror questionnaire.
Williams, 241 Mich App at 523-524. The record did not demonstrate that the use of numbers
was unusual, the parties conducted meaningful voir dire, and the presumption of innocence was
not compromised. Id. However, the Court cautioned trial courts of the potential for prejudice
that could arise from anonymous juries, and asserted that they should only be used when “jurors’
safety or freedom from undue harassment is, in fact, an issue, and, when used, appropriate
safeguards should be carefully followed to assure a fair trial.” Id. at 525.

        The Court in Hanks also “urge[d] trial courts to advise the venire that any use of numbers
in lieu of jurors’ names is simply for logistical purposes and they should not in any way consider
it a negative against the defendant.” Hanks, 276 Mich App at 94. In Hanks, the jurors were
identified by numbers, but the juror questionnaires containing biographical information were
provided to the parties. Id. The parties conducted voir dire, and the jurors did not believe that
there was significance to the use of numbers. Id. Therefore, the defendant did not demonstrate


                                               -4-
that he was prevented from conducting a meaningful voir dire or that the presumption of
innocence was hampered, so he did not establish a plain error affecting his substantial rights. Id.

        In this matter, the jurors were referred to by number rather than name throughout trial.
The trial court informed the jury that this was merely for logistical purposes. Hanks, 276 Mich
App at 94. Before voir dire, the court stated:

       I’m going to ask counsel to please only refer to the jurors by their numbers or seat
       numbers, but not by their names. It’s not very personal, but I think it runs better
       that way.

There is no indication that the jurors believed there was some significance to the usage of
numbers rather than names. In addition, the record indicates that the parties were provided the
jurors’ personal information in their juror questionnaires. During voir dire, the prosecutor made
the following comments indicating that he knew the names of the jurors that he was questioning:

              I won’t say your name publicly. But, you know that your name is in law
       enforcement.

                                             * * *

               Again, I can’t say your name. But, is the bakery the name of your name
       also?

There is no indication in the record that only the prosecutor, and not defense counsel, was in
possession of the jurors’ names. Defense counsel also conducted a thorough voir dire of the
potential jurors.

        Therefore, defendant cannot demonstrate that the two interests implicated by an
anonymous jury, conducting a meaningful voir dire and compromising the presumption of
innocence, were affected in this matter. Williams, 241 Mich App at 522. Therefore, defendant
cannot demonstrate that the trial court committed a plain error affecting his substantial rights by
referring to the jurors by number rather than by name. Hanks, 276 Mich App at 94.

        On appeal, defendant argues that empaneling an anonymous jury should be considered a
structural error, or that trial courts should be required to justify the use of an anonymous jury.
Defendant relies on multiple out-of-jurisdiction cases to make this argument. “Although judicial
decisions of foreign jurisdictions may be persuasive, they are not binding.” Hanks, 276 Mich
App at 95. Defendant relies on State v Tucker, 259 Wis 2d 484; 2003 WI 12; 657 NW2d 374
(2003), which held that referring to jurors by number rather than by name was an error even
though the jurors’ personal information was provided. The defendant in Hanks made the same
argument relying on Tucker, and this Court was “not persuaded that Williams was wrongly
decided.” Hanks, 276 Mich App at 95.




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                   III. DISINTERMENT OR MUTILATION CONVICTION

       Finally, defendant argues the prosecution did not present sufficient evidence from which
a reasonable trier of fact could conclude that defendant had disinterred or mutilated the victim’s
body, in violation of MCL 750.160. We agree.

        This Court will review a challenge to the sufficiency of the evidence de novo. People v
Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001). The evidence is reviewed “in a light
most favorable to the prosecutor to determine whether any trier of fact could find the essential
elements of the crime were proven beyond a reasonable doubt.” People v Robinson, 475 Mich 1,
5; 715 NW2d 44 (2006). It is the role of the trier of fact to weigh evidence and evaluate the
credibility of witnesses. People v Kanaan, 278 Mich App 594, 618-619; 751 NW2d 57 (2008).

       MCL 750.160 provides:

       A person, not being lawfully authorized to do so, who shall willfully dig up,
       disinter, remove, or convey away a human body, or the remains thereof, from the
       place where the body may be interred or deposited, or who shall knowingly aid in
       such disinterment, removal, or conveying away, or who shall mutilate, deface,
       remove, or carry away a portion of the dead body of a person . . . shall be guilty of
       a felony.

After a review of the record, we conclude that the evidence in this case does not establish that
defendant dug up, disinterred, removed, or conveyed the victim’s body “from the place where
the body may be interred or deposited.” MCL 750.160. Defendant did not inter or deposit the
victim’s bodies. Rather, the victim was still in the home where she died when defendant loaded
her into his pickup truck and drove her body up north. Defendant’s actions, i.e., moving the
body out of sight and into a closet until defendant could move the body up north, do not come
within the purview of the statute. Further, there is nothing to suggest defendant mutilated or
defaced the victim’s body in any way. Accordingly, we conclude that insufficient evidence
supports defendant’s conviction under MCL 750.160.

      Affirmed in part, reversed and vacated in part. We remand to the trial court for
amendment of the judgment of sentence to reflect that defendant’s conviction under MCL
750.160 is vacated. We do not retain jurisdiction.


                                                             /s/ William B. Murphy
                                                             /s/ Kathleen Jansen
                                                             /s/ Amy Ronayne Krause




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