Ex-cop Ken Bluew's murder conviction upheld; court says evidence he strangled pregnant Jennifer Webb 'overwhelming'MLive
August 13, 2014
http://www.mlive.com/news/saginaw/index.ssf/2014/08/ken_bluews_murder_conviction_u.html
LANSING, MI — The Michigan Court of Appeals has upheld the first-degree murder conviction of Kenneth T. Bluew, a former Buena Vista police officer who strangled a woman eight months pregnant with his son.
One week after hearing oral arguments in Lansing on Bluew's appeal, appellate judges Henry William Saad, Donald S. Owens, and Kirsten Frank Kelly on Tuesday, Aug. 12, unanimously upheld Bluew's conviction for the Aug. 30, 2011, first-degree premeditated murder of Jennifer Webb, for which Bluew is serving a sentence of life in prison without the possibility of parole.
Bluew's case still is headed back to Saginaw County Circuit Court, though, because the appellate judges want Circuit Judge Darnell Jackson to articulate further his justification for greatly exceeding Bluew's state sentencing guidelines for his conviction for assaulting a pregnant individual intentionally causing miscarriage or stillbirth of a fetus or embryo. On that charge, Jackson added nearly 50 years to Bluew's sentence.
Bluew's appeal of his murder conviction hinged on his claim that his trial attorney, Rod O'Farrell, was ineffective because O'Farrell did not call expert witnesses to dispute the testimony of Saginaw County Forensic Pathologist Dr. Kanu Virani, then the county's medical examiner, who ruled Webb's death a homicide by carotid neck compression through the use of a choke hold and not a suicide by strangulation.
The appellate judges, while noting the high standard required to prove ineffective counsel, ruled the cause of Webb's death was immaterial based on the "overwhelming" evidence against Bluew.
"Although the affidavits of (the experts proposed by Bluew on appeal) may raise a question as to whether the victim died from hanging as opposed to a chokehold, they do not raise any reasonable question as to whether (Bluew) killed the victim in light of the overwhelming evidence of guilt presented at trial," the judges wrote.
Some of the evidence included Bluew's DNA matching blood stains both on her person and in and around Webb's Pontiac Aztek found at North Outer and Hack in Buena Vista Township. That evidence "would not have been found if (Bluew) was simply present at the scene to investigate the crime as part of his duties as a police officer," the judges wrote.
Prosecutors at trial said Bluew, who was married but not to Webb, met in a secluded area, where Bluew strangled her. Bluew then made it appear as if she committed suicide and was at the scene when other officers arrived to investigate, prosecutors said.
"In the end, the means by which the victim died is immaterial where there is overwhelming evidence that (Bluew) killed the victim by means of a violent assault," the appellate judges wrote.
Bluew can appeal the judges' ruling to the Michigan Supreme Court, which has the option of hearing Bluew's case. If the state Supreme Court were to deny Bluew's request, he then could proceed with a federal appeal.
Among the "overwhelming" evidence against Bluew also was his denying that he had sex with Webb until Michigan State Police Detective Sgt. Allan Ogg, now retired, and Jason Teddy, now a lieutenant, asked to swab his inner cheek to obtain a DNA sample; his and only his fingerprints being on a typed suicide note found in Webb's purse; his blood and Webb's saliva being on the inside and outside, respectively, of a piece of latex glove found at the scene; and his right index fingerprint being on the suicide note prior to Bluew receiving an injury to the finger that caused him to leave a bloody fingerprint on Webb's vehicle's door.
In handing down the sentence for the fetus charge, and also denying Bluew a new trial, Jackson cited the "overwhelming" evidence when he exceeded Bluew's sentencing guidelines by nearly 50 years and sentenced him to 65 to 100 years in prison.
When judges exceed the guidelines, they must state one or more "substantial and compelling" reasons for doing so, and Jackson said Bluew "committed what accounts to first-degree premeditated murder of the baby."
"I understand you weren't charged with first-degree premeditated murder ... because of statutory interpretation," Jackson said. "But I still believe that's what you're guilty of."
In their ruling, the appellate judges stated Jackson's reference to Bluew's actions being "plotted and planned" is a factor that is not taken into account in the variables that make up the guidelines for the fetus charge. The judges added, however, that Jackson "did not justify" such a great departure from the guidelines.
"Although we could speculate that the trial court's sentence of 65 to 100 years' imprisonment was meant to reflect a life sentence for the first-degree premeditated murder of the unborn child, where it is not clear why the trial court made a particular departure, we cannot substitute our judgment about why the departure was justified," the judges wrote.
Such a sentence as the one Bluew received "would fall only within the appropriate guideline range of someone who committed a similar crime" but had a much more extensive criminal history that Bluew lacked, the judges wrote. The Michigan Supreme Court has suggested that when a defendant has no criminal history, a 15-year departure "may be disproportionate," the judges added.
"Because we cannot clearly determine why the trial court selected a minimum sentence that greatly exceeded the appropriate guidelines range," the judges concluded, "we must vacate (Bluew's) sentence ... and remand the case to the trial court to explain why the sentence ... is more proportionate to the offense and the offender ... or to resentence the defendant."
The resentencing does not affect Bluew's sentence of life in prison without parole for Webb's murder.
Circuit Court officials had yet to set a resentencing date for Bluew, who was fired from the Buena Vista Police Department after his conviction and remains lodged at the Alger Correctional Facility in Munising in Michigan's Upper Peninsula.
