*1 PEOPLE v JOHNSON 4). (Calendar Argued April Docket No. 75775. No. Decided 26, 1986. Rehearing December denied Mich 1206. Henry jury Johnson was convicted a in the Ionia Circuit Court, Simon, Jr., J., second-degree Charles W. of murder. The complaint charging and information the defendant had stated murder, open charge first-degree an of but cited the statute, specifi- and the defendant had been bound over without degree following trial, preliminary cation of examination. At murder, jury first-degree premeditated was instructed as to second-degree murder, voluntary manslaughter, assault with great murder, bodily
intent to do
harm less than
and felonious
Burns, P.J.,
Appeals,
assault. The Court of
and Allen
R. B.
Brown, JJ.,
unpublished opinion per
and
(Docket
affirmed
an
curiam
76167).
appeals.
No.
The defendant
Brickley
opinions by
joined by
In
Boyle,
Justice
Justices
and
Supreme
Riley,
and
Williams,
Chief Justice
Court held:
presented
preliminary
Sufficient evidence was
at the
exami-
magistrate
premedi-
nation from which the
could have inferred
tation and deliberation.
Brickley
joined by
Boyle,
Justice
Riley,
Justices
stated
specification
degree
proof
that no
of murder or
premeditation
required
preliminary
and deliberation is
at a
examination in order to bind over a defendant on a
open murder.
right
1.
preliminary
There is no federal constitutional
to a
hearing
prosecution.
proce-
examination or
in a criminal
The
Michigan,
right
statutory.
dure is left to the states. In
is
primary
preliminary
function of the
examination is to
and,
so,
determine whether a crime has been committed
if
probable
whether there is
cause to believe that the defendant
it,
committed
so as to enable a
to bind over the
waived,
examination,
defendant for trial. A
unless
precedent
filing
is a condition
to the
of an information
prosecutor, providing
parameters
of the information.
open
recognizes
2. The
murder statute
that murder is a
single
stage
proceed-
offense and that at the informational
ings only
that the defendant
murdered
deceased
v Johnson
open
nor case
murder statute
set
Neither the
need be
forth.
prelimi-
degree
at a
requires specification
of murder
law
charged
in the infor-
nary
murder is
where
unspeci-
person
of an
is indicted with murder
mation. Where
murder,
jury
ultimately
guilty
found
fied
*2
prelimi-
degree.
the
that at
the
It follows
also determine
must
examination,
stage,
specifi-
no
earlier
nary
which occurs at an
finding
premeditation and
degree
a
of
of murder or
of
cation
meaning
open
Procedurally,
of
required.
the
the
is
deliberation
premeditation
of
and delib-
is that no evidence
murder
preliminary
Fol-
the
examination.
adduced at
eration need be
upon
filing
lowing
an indictment based
the
of an information or
concerning
pleading, specific
the
general
information
factual
upon
request by the
a
the offense
be obtained
basis of
particulars,
prosecutor to furnish a bill of
the
defendant
to
assuring
adequate
of
of
notice in advance
trial
the defendant
alleged
underlying
offense.
the
the factual basis
separate first-degree from second-
3. Even if factors which
crime, disparate
degree
of
treatment
are elements
the
murder
preliminary
persons suspected
examinations
of murder at
of
only
showing
justified
by
a
basis for the
the
of
rational
need be
treatment,
Generally,
compelling
disparate
a
state interest.
heightened
subjected
any disparate
to
will
treatment
be
before
burdening
judicial scrutiny,
constitutional
the
of a fundamental
classification,
race,
i.e.,
suspect
or
utilization of a
interest
the
gender
origin, alienage,
illegitimacy, or
must be
national
classification,
burdening
law
the
will
such
shown. Absent
to
upheld
relation of the classification
if there
some rational
suspects
governmental
have not been
end. Murder
a valid
classification,” requiring heightened
"suspect
recognized
aas
protection purposes.
judicial scrutiny
equal
Nor is there a
for
being charged
a
with
fundamental constitutional
interest
degree
plausible
specific
the
rational bases for
of murder. Since
imagined,
any disparate
open
treatment
murder
can be
open
persons charged
the
murder
does not
under
statute
of
Equal
Clause.
the federal or state
Protection
violate either
charges
unspecified degree
murder
of
has been
4. Use of
recognized
judiciary Michigan
century.
by
a
It is
the
of
over
invalidating
legislative
by
inappropriate to alter the
scheme
the
inherent
the
murder statute on
basis
the Court’s
procedure merely
power
to
rules
criminal
because
create
with
absence of a standard to determine
dissatisfaction
degree
prosecutor’s
specify
discretion to
whether
scope
reasonably
has
exercised. Whatever
been
power
power,
legislative
properly
Court’s inherent
exercised
that while an information murder is not defec- se, per separate question person tive it is a whether a who has preliminary demanded a examination and is bound over on a charge open of murder can be tried and convicted of first- degree murder unless sufficient evidence was offered at the preliminary justify finding probable examination to a of cause first-degree that the offense of murder was committed and the person finding. bound the over on such a At a examination, preliminary evidence must be established of each charged element of the crime or evidence from which those may elements be inferred. Premeditation and deliberation are clearly first-degree Thus, prelimi- elements of murder. where nary demanded, person examination has been a bound over on charge open may a of murder be tried and convicted of first- degree only produced murder where sufficient evidence is Johnson Boyle, J. offense of first- probable that cause to believe establish magistrate so and the committed murder has been determined. magistrate clearly examining stated that Justice Archer binding trial to over for the defendant his discretion abused charge open on the basis a murder on a the circuit court a defendant finding premeditation While and deliberation. murder, open charged complaint with and warrant in a be proofs charged after are specific degree of murder must be a preliminary ex- presented examination. Where request by waived, upon timely prosecutor, a a amination defendant, the defendant and advise must determine charged. specific degree of murder to Attorney Kelley, General, J. Louis Frank J. Gabry, Gary Prose- General, M. Caruso, Solicitor Malinowski, cuting Attorney, As- J. and Leonard people. Attorney General, for the sistant McKaig the defendant. P. Lawrence Henry over on an was bound Johnson Boyle, charge open convicted and later of murder appeal second-degree jury before murder. On open Court, Mr. claims this Johnson guarantees constitutional murder violates process. equal protection claims He also and due of that evidence of premeditation and deliberation prelimi- required at the and insufficient was both argues Finally, nary Mr. Johnson examination. right deprived him of the the trial court disallowing establish the defense of self-defense apprehen- concerning testimony his his fear fight. sion at time of violation We would hold that no constitutional occurred as a result of the hold that would further used this case. We *4 proof premeditation need not of and deliberation where a be shown open of over on a defendant is bound statutory framework murder. Given the clear 427 by Boyle, murder, it establishes the of which inappropriate impose by would be for this Court to judicial contrary requirement solely decision a upon power. based our inherent Neither the fed- eral nor the statutes nor the state constitution Legislature require proof pre- enacted of an meditation and deliberation before bindover on open charge Finally, of murder. we concur in disposition Justice Archer’s of defendant’s claim right that his to a fair trial was violated freely Mr. trial court’s failure to allow Johnson to feelings perceptions of describe his at the time fight. Therefore, we would affirm the decision Appeals. of the Court of
i PACTS open charge Defendant was bound over on an jury second-degree murder and convicted leading up are murder. events to this case set unpublished opinion forth in the Court of Appeals: 9, 1983, defendant,
In the early July hours of Crater, apart- and his friend Michael drove to the Ionia, Michigan. Upon ment of Barbara Reed in arrival, they party going found with some people stages attendance various arrival, long intoxication. . . . Not after living and Barbara through left room and went they the kitchen to the bathroom where victim, Tower, standing found the Roy eventual Urbina, Tower, talking guests. Rick one of the years age, manager apartment was house.
Conflicting just versions of what on in the went *5 103 Johnson Opinion Boyle, J. given entry were but upon defendant’s bathroom testi- fight Defendant agreed a ensued. parties all hunting knife from his side drew a fied that Tower height holding advanced it at shoulder and while de- Reed corroborated Barbara toward defendant. in his had a knife that Tower fendant’s version entering upon that Urbana testified hands. Rick opened his pulled and defendant the bathroom Tower, on, knife, mother fucker” "come told away stepped had that Tower Tower and stabbed stabbing. first Urbana prior to the from defendant on advanced further testified as stabbing him in the chest time Tower a second Both up toward bathroom. decedent backed ten five or agreed it all occurred within witnesses "seconds, Dr. Sim- seconds fast.” or within seconds son, died as testified that decedent pathologist, wound to the heart. result of a stab of second-de- guilty Mr. Johnson The found jury affirmed murder, Appeals the Court of gree the conviction.
n FRAMEWORK THE STATUTORY to a right1 no federal constitutional There is hearing proce- examination or preliminary —the Legislature provide left to the dure is one Pugh, not. Gerstein v 854; 43 103; 420 US 95 S Ct (1975). Michigan, preliminary L 54 In Ed 2d Legislature of the a creation solely See, MCL 766.1- right. generally, —it is a statutory 766.22; MSA 28.919-28.940._ 1 right does not neces Even a violation of a federal constitutional California, 18; sarily require Chapman 87 S Ct 386 US reversal. See Arsdall, (1967); 106 S 475 US 17 L Ed 705 Delaware v Van 2d Whitfield, (1986); 1431, 1438; Mich L Ed 2d 674 Ct 116; 388 NW2d Boyle, provides that the state 766.1;
MCL
MSA 28.9192
prompt prelimi
and the accused are entitled to a
pro
nary
766.4;
28.9223
examination. MCL
MSA
preliminary
examination must be
vides
arraignment
days
on the
twelve
set within
primary
examination’s
warrant.
if
is "to determine
a crime has been
function
committed
probable
and,
so,
if
if there is
cause to
*6
People
committed it.5
believe the defendant
(1972);
Duncan,
489,
629
201 NW2d
preliminary
766.5; MSA 28.923.4 While the
MCL
examination
Const
satisfying
may
the
contribute
to
requirement
1963,
1, § 20,
the de
art
informed of the nature of the accusa
fendant "be
tion,”
ing judicial proceedings
public policy
primarily
of ceas
it
serves the
there is a lack of
where
MCL
766.1;
MSA 28.919
provides:
prompt
to a
examina-
The state and accused shall be entitled
examining magistrate
by the
in all
tion and determination
hereby
duty
and it is
made the
of all courts
criminal causes
and
having
perform
public
duties to
in connection with
officers
examination,
bring
to
final determination
such
without
them
except
necessary
delay
to the
as it
to secure
impartial
fair and
examination.
accused a
766.4;
provides:
MCL
MSA 28.922
magistrate
person
brought
any
is
on a
before whom
committed a
having
felony
day for a
shall set a
thereafter,
exceeding
days
preliminary examination not
magistrate
complainant and
which time a
the witnesses in
shall examine the
support
prosecution,
the
of the
on oath in
accused,
presence
regard
regard
charged
to the offense
any
other matters connected with the
which
magistrate
pertinent.
considers
MCL
766.5;
MSA 28.923
provides:
appears
felony
it
that there
If
that a
has been committed and
thereof,
probable
guilty
is
and if the offense is bailable
offers sufficient
cause to believe that
the accused is
by
and the accused
bail,
prisoner
it shall be taken and the
dis-
charged until trial.
v Johnson
Boyle,
that a crime was committed or that
evidence
At
exami
defendant committed it.
nation,
proving
has the burden of
prosecution
probable
crime occurred and that
there is
that a
it.6
such a
cause that defendant
committed
Absent
proper
there cannot be a
bindover
showing,
Walker,
D
v Charles
magistrate.
(1971);
766.13; MSA
573;
28.931.6 bindover, waiver, necessary
A proper to file an prosecutor provide authority in circuit court. against information 767.42; prelimi- that a provides MCL MSA 28.982 examination, waived, unless is a "condition nary information filing to the of an precedent” 28.982(1) 767.42(1); provides: MSA prosecutor. MCL against any not be filed An information shall person until has had a person felony for a such therefor, provided by preliminary examination as law, magistrate, examining unless before an right to an examina- person statutory waives his *7 right any person statutory If his to a tion. waives 5 concerning question the standard of cause There is some whether is the same as the standard of cause to believe a crime was committed Note, to believe that proposed it was the defendant who committed it. See 6.107(E) 6.107(E), Proposed MCR 422A Mich 32-33. MCR question probable by requiring the the same cause standard resolves for the offense as for the defendant’s connection with 422A the offense. 27-28. Mich 6 766.13; provides: MCL MSA 28.931 appear magistrate If it shall to the at the conclusion of the
preliminary examination either that an offense has not been
probable
charging
committed or that there is not
defendant
shall
nary
cause for
therewith,
discharge
If it
he shall
such defendant.
appear
magistrate
prelimi-
to the
at the conclusion of the
felony
there
examination that a
has been committed and
therewith,
probable
charging
is
cause for
the defendant
magistrate
appear
before
shall forthwith bind the defendant
having jurisdic-
county,
the circuit court of such
or other court
cause,
tion of the
for trial.
crime
cause to believe defendant
guilty thereof was a
filing
informa-
of an
necessary prerequisite to the
finding of the
binding
conclusion
tion. This
7
600.151;
general jurisdiction,” MCL
a "court of
The circuit court is
prohib
27A.151,
"original jurisdiction
having
in all matters not
MSA
ited
27A.601.
600.601;
1963,
6,
MCL
MSA
art
13. See
law . . . .” Const
§
”
"
Hwy
power
to act.’
State
'the
a court]
'Jurisdiction’
is
[of
(1966);
309, 312;
Oil,
140
500
Kent
377 Mich
NW2d
Comm’r v Gulf
404, 407;
Judges,
App
313 NW2d
110 Mich
Prosecutor v Kent Circuit
"
(1981).
right
jurisdiction
court
Subject
'is the
of [a]
matter
135
cases;
particular
judicial power
case
over a class of
exercise
it,
power
try
kind
a case of the
the abstract
before
but rather
(Emphasis supplied.) Joy
pending
v Two-
of the one
....’”
character
Adams,
244,
(1938);
253;
100
Corp,
Adams v
are but other forms authorized this or may other law of this state also be used: Murder —A.B. murdered C.D. 767.44; provides obtaining MCL MSA 28.984 also a means for
specific
concerning
information
the factual
basis of
offense: "[T]he
prosecuting attorney,
requested
respondent,
reasonably
if
shall
particulars
setting up specifically
furnish a bill of
the nature of the
added.)
charged.” (Emphasis
statutory
offense
When a
short-form
used,
right
statutory
information is
the defendant has a
to a bill of
while,
particulars,
long-form
when the common-law
information is
used,
particulars.
the trial court
in its discretion order a bill of
(1934).
Tenerowicz,
287-288;
"open murder” single of- 28.1011,10 murder is a recognizes that no the informational that, stage, at fense and The information required. is degree specification upon the bindover depends after and occurs 767.45; 28.985 re- MCL MSA charges. possible merely information contain that an quires "[t]he will language in which the offense stated nature of court of the accused and the apprise the fairly 28.1011 767.71; MSA charged . . . .” MCL offense charg- indictment or information that an provides that "charge set forth ing only murder need . . . .” the deceased did murder the defendant charge "open murder” meaning of The no is that procedure criminal Michigan statutory need be and deliberation premeditation evidence of pre- The examination. preliminary at the adduced parameters provides examination liminary prosecu- be filed the information which 767.71; 28.1011 does MCL MSA tion. Since mur- second-degree of first- require specification information, assump- it is a reasonable in the der of re- had no intention Legislature tion that at and deliberation proof premeditation quiring examination. stage preliminary of the the earlier nature requirement. such a The No statute makes not from general specific, is from to process requirement specification A specific general. stage 767.71; MSA of MCL provisions would make the MCL 767.71; MSA 28.1011 provides: manslaughter it shall not In all indictments for murder and necessary the means to set forth the manner in which nor caused; but it shall be which the death of the deceased was charge any sufficient indictment for murder deceased; sufficient in did murder the and it shall be defendant manslaughter kill the de- the defendant did ceased. People v Johnson Boyle, J. 28.1011 for an at the informa- stage meaningless. tion totally 750.318; MCL MSA 28.550 supports this conclu- sion. provides person The statute that where a (or indicted against) informed with murder of an unspecified degree, upon the jury, finding defen- murder, dant guilty of must also determine degree: jury any person before whom indicted for shall, they
murder shall be tried person if find such *10 thereof, verdict, guilty ascertain in their degree; whether it but, be murder of the first second person if by such shall be convicted confes- sion, proceed by the court shall examination of crime, degree witnesses to determine the and shall judgment accordingly. render A requirement specified the at the examination would render this stat- ute, along 767.71; 28.1011, with MCL nuga- MSA Doe, (1850). 451, See tory. Mich 457-458 legislative The contemplates scheme the cir- cuit court has power the to adjudicate both first- and second-degree charges on a bindover on open murder.
The statutory question scheme in addresses con- cerns of unfair surprise, inadequate notice, and defend, insufficient opportunity to all relevant to a defendant’s to right a fair opportunity meet the charges against Thus, him. while allowing infor- mation or indictment upon general based pleading, MCL 767.44; MSA 28.984 provides also a means for obtaining specific information concerning the factual basis of the offense: prosecuting "[T]he if attorney, seasonably requested the by respon- dent, shall furnish a particulars bill of setting up specifically the nature of the offense charged.” added.) (Emphasis When a statutory short-form 427 Mich by Boyle, statutory used, a the defendant has information is right particulars, the while when to a of bill long-form used, of information is common law discretion order a bill trial particulars. People its court Tenerowicz, 266 Mich (1934). particu- a bill 287-288; NW 296 Once right supplied, "to have has lars up particulars set the trial confined People Ept, 324, 326; 300 NW therein.” implementation procedural Thus, the defen- 767.44; MSA 28.984 assures that MCL dant will have factual basis trial of notice advance of alleged underlying the offense.11 subject jurisdiction to matter trial court had second-degree adjudicate murder cases first- and power constitution conferred virtue of the personal jurisdiction Mr. over It had and statutes. upon filing the the return Johnson Following provided by magistrate filing as statute. prosecutor authority return, had an information. file hi PROTECTION EQUAL Equal Clauses are and state Protection Federal *11 alleged disparate the treatment not violated suspects examinations. murder sepa- pp Post, 134-138. if those factors which Even second-degree, first-degree mur- murder from rate disparate crime, treat- der are "elements” of suspected only ment of murder need of those justified by rational basis: reject Equal
[The
Clause] does not
Protection
11
Proposed
"open discovery”
Rules of
rules set out
pretrial
provide
with
a defendant
Criminal
information
proposed
would also
Procedure
concerning
underlying
charge. See
factual basis
6.201-6.204,
MCR
422A
68-79.
Ill
v Johnson
Boyle, J.
government’s ability
persons
to classify
or "draw
laws,
application
lines” in the creation and
but
guarantee
it does
that those classifications will not
upon impermissible
be based
arbitrarily
criteria or
group
used to burden a
If
individuals.
government
proper gov-
classification relates to a
purpose,
ernmental
then the classification will be
upheld. [Nowak,
Law
Young,
Rotunda &
Constitutional
(3d ed), 14.2, p
§
525.]
constitution,
Under
the federal
process
due
does
require
an
specifies
indictment which
the de-
Backer,
of murder. Bergemann v
gree
157 US
(1895).
657;
727;
15 S Ct
While the in the instant case was indeed suspected murder, suspects have not yet been treated as a "suspect classification” requiring heightened judicial scrutiny equal
112
iv
INHERENT POWER
the use
recognized
of this state has
judiciary
The
degree for over
charges
unspecified
of murder
of
(1878)
People,
549
century. Cargen
39 Mich
(information
specifica-
murder without
charging
McArron,
sufficient);
121
degree
tion of
(1899) (information
charging
1;
Neither People v 388 Mich 210 (1972), 629 nor Yaner v NW2d People, Mich 286 (1876), provides precedent for reversal in the in- Duncan, stant case. In the Court did not overrule an express statutory provision on the sole basis of inherent judicial power as we would to have do in the instant case. Whatever the proper scope of this power, Court’s inherent properly legisla- exercised power tive such as that in the instant case is degree entitled to a of deference. Yaner dealt with a situation in which failed to find evidence to support of murder as opposed charge Id., to manslaughter. p 286. Yaner thus did not deal with the question presented by the instant case. opinion
The for reversal expresses concern for given discretion prosecutors to 767.71; MCL MSA 28.1011. This analysis overlooks the fact that this discretion given has been prosecution to the Legislature. It is inappropriate to alter legislative scheme by exercise of our inherent powers merely because of dissatisfaction with the absence of a standard to determine whether prosecutor’s discretion has been "reasonably exer- cised.”
The only discretion provided to the prosecutor by the open murder statute is the choice of specify- ing degree is, of murder —that first- or second- merely specifying murder. Either —or choice requires evidence of aforethought, malice the factor which distinguishes from man- slaughter. We have previously recognized that decision whether or prosecute, not and what bring, generally rests in the prosecutor’s See, e.g., Ford, discretion. 417 Mich 427 Boyle, (1982) (opinion Williams, 91-93; 331 NW2d J.) (no prosecutorial where discretion abuse of building charging larceny in a is a choice there larceny general felony] misdemeanor] [a [a act); v Genesee Cir- Genesee Prosecutor the same (1974) Judge, 115; 215 391 Mich NW2d cuit greater, (prosecutor discretion to has offense); lesser-included, Genesee rather than a Judge, Circuit Prosecutor v Genesee (choice (1972) of statute under 194 NW2d prop- prosecute function an executive which prosecutor, general by erly court). exercised gen- prosecutorial discretion exercise equal protection erally unless the not violate does *14 upon deliberately an invidious is based choice standard impinges suspect or of a classification compelling upon interest without a a fundamental supra, generally, People Ford, See, v state interest. pp 101-105. currently or not there are outmoded
Whether underlying policy the statutes is a concerns viable proper legislative process, not for the consideration Legislature judicial has Where arena. constitutionally statutory scheme valid enacted legislative authority, Court should this within its not overrule preference. politic simply
it as a matter our own appears fact im- "The mere a statute judicial sufficient for con- or unwise legislature.” struction but is a matter for the Lansing Lansing Twp, 641, 648; v (1959). NW2d 804
v
OF
AT
SUFFICIENCY
BINDOVER
EVIDENCE
premeditation
Even if
and delibera-
evidence
required
bindover,
there
tion were
was
in the
case. In
sufficient evidence
instant
v Johnson
Opinion by Boyle, (1979),
Doss,
90, 101;
406 Mich
we stated in (1933): 491; 251 NW findings agree with the This court right it no to substitute magistrate but has such a except for in case of clear abuse judgment his its of discretion. jury disputed that verdict It is not here supported by second-degree the evi- murder was jury rejected claim of defendant’s dence. The thus enough was evidence Since there self-defense. trial to take premeditation and delib- issue any jury, error at the to the eration examination harmless in view must be considered prejudice15 any the defen- to of the lack of actual right a dant’s to fair trial.16_ case, alleged in this the convic- error as that nonconstitutional such preju- only has shown be where the defendant tion should reversed alleged error. dice as a result of jury’s that this to assume verdict There is no basis on record simply product compromise. no There more reason was a assuming compromised jurors there is an on a verdict when have simply charge they a have reached than there is to believe erroneous middle was error given. ground correctly If there instructions are when several allowing first-degree go jury, to by acquitting jury of that corrected that error second-degree returning proper murder. Most courts and agree instructing a verdict of second-degree proper an that a verdict of murder cures error first-degree. jury on See Anno: Modern status of law a error, offense,
regarding cure of in instruction as to one conviction 21(a). offense, 118, 164-166, higher of Michigan 15 ALR4th While § lesser id., agreed, 21(b), any conclusion is cases have not other § judicial speculation jurors acquitted have based on who would compromised despite express their an defendant have views contrary. direction from the trial court to the concerning jury judge as The trial instructed the deliberations follows: room, Now, you go jury your when to the deliberations You shall first should be conducted in select goes businesslike manner. or he see it that the discussion foreman. She should orderly in a and that each forward sensible and fashion fairly. juror opportunity fully has the discuss issues Remember, in a must unanimous. a verdict criminal case verdict, necessary you In order to return a it is that each *16 v Johnson Opinion by Boyle, VI
CONCLUSION Open murder includes both first- and second- degree murder. The circuit acquired court jurisdic- tion of the defendant as to both. 766.13; MCL MSA 28.931. having Jurisdiction been conferred by the Legislature on the circuit court by 766.13; MCL MSA 28.931 and 767.71; 28.1011, MCL MSA it would inappropriate to wrest jurisdiction such from the circuit because, court solely court, aas we may think it is a good idea. jurisdiction agree upon jury you In verdict. the room will discuss among yourselves, ultimately case make individual, you but each of will have to up your Any represent own mind. verdict must judgment you. considered of each one of your duty your It is jurors to consult with fellow and to reaching agreement, deliberate you with a view to an if can do violating your judgment. so without own deciding case, give impartial Before consideration to the your jurors. views of you fellow give This means that should respectful consideration to one another’s views and talk over opinion spirit differences of in a of fairness and frankness. It type is natural in a case of this that differences arise. they do, you When opinion only express each of your should not upon but also you the facts and reasons which base it.
By reasoning out, possible you matter it is often for all of agree. your deliberations, In the course of do not hesitate to reexam- your change ine your own views opinion you’re if con- wrong. vinced that it is However, you none of your should surrender honest convic- weight tion as to the and effect of the evidence or lack of solely opinion evidence your because of jurors fellow purpose returning the mere [Emphasis a verdict. added.] The above instructions are in 3:1:18, substantial accord with CJI Deliberations and Verdict. proposed 6.107(G), See MCR provides 422A Mich which errors at preliminary actually prejudice examination must appellate defendant before an court can reverse an otherwise valid commentary conviction. proposed notes, As the MCR 6.107 "[w]hen trial, examination error does not affect the reversal of a conviction creates a windfall for the defendant.” 422A Mich 34. Opinion Williams, C.J. legislative act, court, a valid trial conferred by judicial fiat. not be invalidated
should *17 the decision Therefore, would affirm we Appeals. Court
Brickley Riley, JJ., concurred with Boyle, (concurring I with Justice Boyle). C.J. Williams, Boyle’s opinion part of Justice concur with regarding pre- sufficiency of the evidence preliminary at and deliberation meditation disagree may with While this Court examination. magistrate preliminary findings exami- at of a judgment for that nation, its it not substitute except a clear in the case of Doss, abuse of discretion. opinion, my a clear In 101; 276 NW2d did not occur this case. of discretion abuse ap- the defendant There evidence that was proached in the with his hand the bathroom pocket knife. When con- in which he carried his opened Tower, victim, his fronted knife with both challenging verbally the the hands, receiving wound, When, first after victim. bathtub, into the the defendant retreated victim Although again. pursued him him and stabbed quickly, unfolded it was not shown these events they were instantaneous. Witnesses put elapsed preliminary examination total couple Al- time at of minutes.1 two seconds to tran There are three references in the script lapse regarding the to the of time incident in the bathroom. testimony first Rick Urbina: The occurs of witness Urbina, long, Roy Mr. from the time that Towers [sic] HowQ. ” or, goin’ you Henry asked what on are doin’ or was "What are, say you it
whatever his exact words would was between that time and the time he stabbed? was Maybe A. about two seconds. People v Johnson Opinion by Williams, C.J. though close, the issue is I believe the evidence question was sufficient to create a factual whether subject the defendant had time to his actions to a "second look.” Q. long you say been, How you would it would have if can estimate, Henry you can’t, say you can’t, and if from the time that on,” says, Roy gets "Come stabbed? Well, say A. I’d it would be about two seconds at the most. It long, happened wasn’t quick. too it 'cause Q. long you say How thing happened, would you this total know, thing it took for this whole to occur in the bathroom you
before left out of there? long, okay, A. everything How happened it took for before it started? Q. Well, Henry got from the you time in the door until were get there, long able to there? you say you out of how would were in Well, really
A. I can’t answer that. I don’t know. testimony Flip second reference is in the Lake: *18 Q. my question. long Just answer How between the time he went into the bathroom and the time that he came out? A. I don’t know. Q. A short time? Yep. A. Q. couple Just a of seconds? A. Uh-huh. The third reference is Barbara Reed: Q. Okay. Henry say And what did then? A. I don’t know. Q. saying You don’t recall him . . . A. No. Q. anything? . . . A. I remember —all I saying, remember him when he walked bathroom, Tower, in the "Hey, not, he told Mr. you this is know, your concern, you know.” I mean . . . this Q. Okay, said, he your "It’s none of concern.” Who was he to, talking then? talking A. He was . . . Q. Urbina, you Mr. to or Towers [sic]? A. To Mr. Tower. Q. long And how you after that Henry was it that saw with his knife in his hand? Oh, couple minutes, A. you moments. A know. Mich Opinion by Dissenting Levin, J. dissenting opinion that the defendant states Although Reed Barbara the victim. did not know acquainted, men not the two were testified that logic a third a statement from that such dictates regarded party possible It is not as conclusive. cannot be person two other to know that a people if the men know other. Even don’t each previously acquainted, other there were were not including possible suggested motives, factors which relationships Reed, and the with Barbara their indignation regarding apparent the defen- victim’s rough any event, In an of her. dant’s apparent treatment preclude not consid-
lack of motive does charge. first-degree a murder Motive is eration of a relevant but proof murder. fact essential People Kuhn, 310, 312; 205 NW
Although supporting a verdict the evidence first-degree sketchy, and that murder was my ultimately rejected by jury, was, it was magistrate’s opinion, to discretion allow within charge. proceed to trial on that the case generally remainder of Justice I concur with the Boyle’s opinion, regard particularly with arguments. defendant’s constitutional (dissenting). Johnson was bound over Levin, on convicted second-degree murder.
At the conclusion of the examina- tion, the declined to find there whether was sufficient evidence charge bind Johnson over on *19 first-degree it that stated killing was sufficient that the was committed with aforethought malice and that Johnson would be charge over bound on murder. testimony The concern- reviewed the pre- ing there evidence of whether was sufficient v Johnson Levin, quoted meditation and deliberation. He from Peo- ple Spalla, App 661, 665; NW2d (1978), "magistrate where the Court said that degree required specify was not to of murder charged, though request particu- even for such larization was made the defendant. When charge encompasses first-degree murder the ulti- finding degree jury.” mate magistrate is for as Spalla
observed that
had been reversed
grounds,
Spalla,
on other
(1980),
Johnson’s motion to the information was Appeals denied. The Court of affirmed Johnson’s aspect and, matter, conviction on on this relied Spalla.
i opinion 'open The lead "[t]he states that murder’ recognizes statute, 767.71; 28.1011, MCL MSA that single that, murder is a offense and at the infor- stage, specification mational no is re- The statute re- quired.” (Emphasis original.) in provides: ferred to In all manslaughter indictments for murder and it shall not necessary to set forth the in manner
which nor the means which the death of the caused; deceased was but it shall be sufficient any indictment for murder deceased; did murder it shall be manslaughter sufficient the de deceased.[1] fendant did kill agree charging open I that an information mur- 767.71; MCL MSA 28.1011. *20 by Levin, J. separate question per It is a se.
der is defective prelimi- person who has demanded a a whether nary mur- over on examination is bound first-degree mur- can be tried and convicted der at the evidence was offered unless sufficient der preliminary finding justify examination probable that he committed the offense cause first-degree him bound murder and the finding. on over such a opinion in the of the Court The statute described " 'open murder’ statute” was enacted
as the language indi Then, 1855.2 as the statute prosecutions cates, Four all indictment. were pros Legislature provided years for later, first grand jury indict in lieu of ecution ment. information provided: legislation The 1859 further against any person No shall filed information offense, person shall any until such have had therefor, provided by as preliminary law, peace, or other examin justice before a officer, ing magistrate person unless such shall examination.[3] right waive his to such Legislature prescribe did The not otherwise part 1927, however, as form of the examination. In Legislature Procedure, Criminal of expanded Code of provision upon at some terse length regarding preliminary examination.4 scope
The and effect of the examina- largely develop. tion was left the courts rule is there be evi- well-established that must charged on dence evidence each element of the offense or which be in- from those elements 6047; 767.71; 2 1855 PA CL MSA MCL 28.1011. provision 3 1859 PA 1871 CL This been carried 7944. has 767.42; forward and MCL 28.982. is now MSA 175, VI; 766.1-766.22; 17193-17214; PA 4 1927 ch 1929 CL MCL MSA 28.919-28.940. v Johnson Dissenting Levin, clearly ferred.5 Premeditation and deliberation are first-degree elements of murder.
ii
*21
opinion
The lead
refers to earlier decisions of
controlling
question
Court,
this
presented.
but none is
on the
Cargen People,
(1878),
In
v
said in
could bear on the
now presented.6_
5
People
Irby,
306, 321;
App
(1983);
(1982);
(1980);
See
v
129 Mich
People Waters,
People
176,
App
183;
v
118 Mich
going bad, too far to hold a commitment for terms which would good [Emphasis Id., be supplied. an indictment. 734.] question The Court person did not might address the whether a be first-degree tried and convicted of murder absent sufficient evidence Mich Levin, Dissenting People McArron, 1; 79 NW In (1899), could be that the Court held manslaughter an information on convicted of charging an infor- murder and said because manslaughter have been suffi- would mation for kill that the defendant did cient if it had averred charging slay decedent, an information dece- kill and murder the the defendant did dent was not deficient. 303, 307; Treichel, 229 Mich 200 NW
In (1924), question was the defen- whether offense of of the lesser dant could be convicted manslaughter only acquitted or con- or could be holding felony In that he could victed murder. offense, the did Court be convicted the lesser charged person with indeed indicate that a degree of of either murder could convicted first-degree tending probable that he had committed to establish cause higher finding probable cause of commission of the murder and a degree that since an indictment The Court said rather the offense. *22 charging sufficient, open information could be filed of open murder was an holding, "the observed that statutes are murder. In so the Court shape” certainly very satisfactory question that on the of not in a and charge in some "the and the must bail real character of the second-degree way appear” (emphasis supplied) because a murder was bailable. Turner, rape. 18 of The statutes In the defendant was convicted to, 7859, 7860, §§ referred Revised 1871 CL were 17 and ch 163 1846, preliminary enacted before examinations Statutes 1859, provided for and the on the were first in concern examination complaint before issuance of an arrest warrant. examined, Yaner, defendant, arrested, for In the who was and held murder, complaint charging trial on guilty manslaughter. the found and information was quash ground the He had moved to on magistrate proven on had refused to determine whether the facts manslaughter magis- the examination amounted to or murder. The acknowledged he the trate that he had so ruled because believed question that the greater jury magistrate. held for the not for the This Court was put on trial for an offense different or accused be for trial than that which he had been examined held and, magistrate from the because of the refusal of the to determine upon the was evidence adduced murder or that there was of such the examination whether offense probable guilty cause to the accused believe offense, quashed, the the should have been information judgment aside, discharged. and the of conviction set v Johnson Levin, J. manslaughter, again murder or but did not ad- question person dress the whether a could be tried higher for a offense than had been established preliminary the evidence at the examination and magistrate. found the People Simon,
In 36 NW2d (1949), charged the information murder with- degree. specifying out the The Court held that the "guilty charged” verdict as was defective because jury degree. had not ascertained the
m opinion None of the decisions cited the lead question person consider the whether a bound over on a murder can tried and first-degree convicted of murder absent evidence at preliminary establishing examination the ele- higher first-degree ments of the offense of finding by and a there is probable higher cause to believe that offense being nothing has been committed. There in the any decisions cited or in other case that on further addressing research we have been able to find question, question I conclude that not con- by any trolled decision of this Court. anything concerning
Nor is there in the statutes preliminary examination enacted in 1859 or justify 1927 that would the conclusion that providing preceding for a filing grand jury the indictment, of an information in lieu of Legislature did not intend to re- quire probably that all the elements of what is most serious offense known to the law of this state be established before an information could be filed. *23 Acknowledging may that an information take the surely Legisla- same indictment, form as an the " enacting 'open not, ture did in 1855 the mur- Dissenting Levin, J. concerning preliminary legislate statute,” the der’ provided years for four later. first examination therefore, would, hold—consistent with the We stating person may holding that a decisions yet con- murder and on a of tried first-degree an ex- murder —that where victed demanded he be tried has been amination only first-degree where murder and convicted of produce people evidence to establish sufficient the probable of first- cause the offense to believe magis- degree committed and has been trate so determined.
iv requested is to determine Where degree of of murder and neverthe- the offense so, fails to do his return defective.7 less magistrate erroneously case, In the instant Spalla, authority concluded, on required to that he was not determine by the evi- the offense murder established produced preliminary examination. dence at the concurring, dissenting opinions lead, The and question address whether there was sufficient produced evidence at the premeditation to establish and deliberation. question well-established, however, rule is that the probable of, cause is for consideration examining magistrate by, determination appraisal this Court does not substitute its People, supra. See Yaner n 6 *24 127 v Johnson by Dissenting Opinion Archer, J. unless it concludes that there has an abuse of been discretion.8 suggested insufficiency of
It has also been preliminary can evidence at the examination be at cured trial. additional evidence introduced Again the rule is well-established where quash thereby pre- the defendant moves to serves the issue and it is determined that remedy, sufficient, evidence was not even after regard sufficiency conviction and without trial, the evidence at is to set aside conviction discharge entry and to the defendant.9 The of such preclude prosecutor an order does not again charging from bringing the defendant and him to trial. J.,
Cavanagh,
Levin,
concurred with
J. I respectfully dissent._
Archer,
115,
Judge,
See Genesee Prosecutor v Genesee
Circuit
Mich
121;
(1974);
Dellabonda,
486,
491;
but it would be more unfortunate to established and well- [Emphasis supplied.] understood rules of law. Similarly People Kennedy, App see 155 NW2d Any deprive other any remedy rule would the accused of for a preliminary defect in the Manifestly, conduct of a examination. accused cannot be convicted unless sufficient evidence is adduced at trial; sufficiency the insufficiency remedy of adverse quently granted if the of the evidence at the trial cured an examination, preliminary there would be no judge quashed unless the circuit the information or the Court Appeals granted interlocutory appeal this Court an from an judge. Interlocutory appeals decision the circuit are infre- cases, and, thus, defendants in criminal if there tois any judge’s decision, only, review of the circuit it can occur in the case, ordinary after trial and conviction. 427 Archer, J.
PACTS presented the evidence relation of An extended required be- at cause of its appeal. bearing raised this on the issues July morning early 9, 1983, hours of In the party at a friends arrived and two male defendant at the girl- apartment Reed, a former of Barbara drinking guests Her had been friend of defendant. *25 According Reed’s to Barbara and were intoxicated. testimony, talk with Rick wanted to defendant talking Roy Urbina, in the bathroom who was building. manager apartment Tower, the into the bathroom. and the defendant went Reed testimony conflicting toas versions of There were started, ensued; it altercation at issue how the apparently, got upset Tower, victim, when bathroom, either in the Reed landed because Ms. stumbling having in. Witness- been shoved from landing, stepped ing inquired according forward and Tower Reed’s going on, and, what was of the defendant profanity witness, Tower used to one making inquiry. that his Defendant testified when hunting knife, hold- a and while the victim drew height, ing defen- it advanced toward at shoulder entered the dant. testified that defendant Urbina opened pulled Tower, bathroom, knife, his told mother-fucker,” him, on, backed "Come stabbed up against tub, him the wall inside again him Urbina stabbed also testified that the victim had around the chest area. knife, but that pants. took it out of the inside his he never case Reed, however, corroborated defendant’s version that had knife in his hands. the victim
According party guest testimony by one who standing by the bath- observed the incident while room pocket, right door, in his defendant had his hand located, from the time where knife was v Johnson Dissenting Opinion by Archer, apartment opened he entered the until he testimony knife and went after the victim. The lapse varied as to the time between witnesses defendant’s to and exit from the entrance bath- agreed happened room. All that the entire incident except seconds, that within Reed who admitted she good estimating was not time.1 undisputed It that defendant stabbed vic- during tim the altercation the bathroom and the victim died from a stab wound to the Although testimony heart. there was point, standing bathtub, victim was at some it is unclear as to whether he retreated there or attempt was shoved there in an to allow the according were, time to retreat. There pathologist, to the three stab wounds to the vic- right chest, tim’s a wound on the back of the plus very tiny buttock, several cut wounds on the upper pathologist extremities. The could not deter- during if mine these minor wounds occurred Only course of the bathroom incident. the chest fatal; wound to the heart was the other wounds relatively "were of a trivial nature.” There were *26 no wounds found on the defendant. None of the pa- victim’s wounds were defensive wounds. The thologist upon that, further testified of basis body, his examination of the he could reach no conclusion as to whether defendant or Tower had aggressor. appears testimony been It from the that tall, the victim was a slender male. Defendant larger-built is a man.
Although defendant Urbina, had known Rick testimony there was uncontroverted that he was a stranger total to the victim before the occurrence in the bathroom. Defendant was not intoxicated. 1Reed testified that the events in the bathroom took a "little bit of time,” "momentarily.” and that the defendant and Tower tussled 427 Mich 98
130 Archer, intoxicated, alcohol a blood with was The victim 0.14. level of
i
Appeals
of
that
the Court
claims
Defendant
murder
charge
open
holding
erred
due
procedural
equal protection
not violate
does
class,
that, as a
He contends
principles.
process
Michigan
under
homicide
with
charged
those
statute,
767.44; MSA
MCL
murder
open
prosecutor
28.984,
differently.
treated
are
at a
an offense
elements of
all the
need
show
to secure a bind-
in order
Yet,
murder.
open
on a
over order
defendant,
to be no
appears
there
according to
afforded
treatment
disparate
for the
basis
rational
murder.
charged with
those
pro-
long recognized
courts have
Michigan
Brownell v
of murder.
open charge
priety
39
(1878); Cargen
People,
People,
perpetration that offense into which felonies of the two which was divided the constitutional statute, fulfill sufficient to was informing the requirement the accusa- and cause of the nature defendant of tion The effect against him. nor any add case to . neither . . was statute which, at crimes the class of any case from take murder, every for law, was denominated common law was still murder at common that was act murder statute Jersey. What in New into two the offense . to distribute . . was effected classes punishment. adjusting for the sake Backer, Graves 657, citing [Bergemann v Potter, People v State, Accord 45 NJL Scott, (1859).] (1858); in provides statute "open murder” Michigan’s part: pertinent in the cases following may be used forms forms any other applicable are but they
which state other law of this any this or authorized may also used: C.D.
Murder —A.B. murdered Manslaughter C.D. killed —A.B. information complaint nor
Neither under "open murder” charged the defendant with Rather, both documents 767.44; MSA 28.984. MCL pursuant murder charged the defendant with statute, MCL Michigan’s first-degree 28.548, provides, pertinent 750.316; MSA which part: means perpetrated is Murder which wilful, deliberate, premeditated . . .
of
killing,
degree, murder of the first
...
life.
punished by imprisonment
shall be
*28
While
is clear that
in order to
chosen to bear a substantial burden
protect
risk it must
process
innocent,
equally
it is
clear that
. .
is not without
limits.
.
Due
bear
require
every
conceivable
does not
cost,
taken,
step at whatever
to eliminate the
convicting
possibility
person.
an innocent
Pun-
guilty
found
jury,
ishment
ple,
remote
those
for exam-
merely
is not
there is a
forbidden
because
in
possibility
some instances that an inno-
v New
person might go
jail.
cent
[Patterson
York,
197, 208;
432 US
97 S Ct
53 L Ed 2d
(1977).]
Although I conclude that
open
murder
procedural
pro-
does
violate
due
any
principles,
questions
equal
cess
it raises serious
protection,3
in
ably
as defense counsel
this case
Const,
provides
pertinent
part,
US
Am XIV
State
"No
deny
any person
jurisdiction
equal protec
.
shall
tion of the laws.”
. .
its
within
v Johnson
Archer, J.
charged
"open
argues,
under
in that a defendant
differently
persons
treated
than
murder”
charged
felony
766.4;
offenses. MCL
with other
28.922,
which sets forth the basic
MSA
right
the statute
preliminary examination, makes no
to a
other
felonies.
between murder and
distinction
Yet,
Michigan
class,
those bound over
as a
statute,
767.44; MSA
MCL
under
differently.
28.984, are treated
prosecut-
charging any
felonies, the
When
other
ing
attorney
at the
exami-
must show
*29
in
of the offense
on each element
nation evidence
If he fails to do
to
the defendant over.
order
bind
only
so,
over on such
the
can
be bound
pro-
supported by
may
the evidence
offense as
be
App
People
Smith,
49 Mich
212
duced. See
v
(1973)
dissenting).
J.,
Proofs
768
NW2d
upon
(Levin,
findings required by
the
the
which
base
preliminary
a
exam-
must be introduced at
statute
binding
justify
to circuit court for
ination to
over
People
590,
Asta,
611; 60
337 Mich
NW2d
trial.
v
(1953). Although
preliminary examination
472
at
guilt
required,
positive proof
there must
of
is not
of the crime
be some evidence on each element
charged,
from which those ele-
or some evidence
People
may
Goode, 106 Mich
ments
be inferred.
v
(1981),
App
413 Mich
129;
murder
charged
murder,
if
those
with
Of
first-degree
prosecution
murder,
must show
premeditation and
at the
deliberation
evidence
stage,
may not
or
matter
first-degree
murder.
over on
bound
App
People Oster,
490;
guaran- equal protection is at stake. agree opinion lead that
While we
with the
require
preliminary
not
federal constitution does
precedent
prosecu-
as
examination
a condition
Pugh,
filing
information,
v
tion
of an
Gerstein
People
135
v Johnson
Archer, J.
(1975),
103;
854;
95 Ct
test
is
and the statute will
upheld
justified
unless
classification is
compelling
state interest. Absent a fundamen
classification,
suspect
tal
tive test
interest or
the alterna
places
party challeng
the burden on the
ing the statute to
show
the classification
arbitrary
reasonably
rationally
related
object
legislation.
H B
McAvoy
Co,
419, 452-454;
Sherman
401 Mich
258 NW2d
(1977),
Schmidt,
App
578;
136
Dissenting Opinion
Archer, J.
purposes,
States, 414 US
Marshall v United
see
(1974),
700;
Since there is a basis for there is a rational charged discrepancy afforded those treatment open first-degree and the murder statute under the open statute, murder statute should right of defendant’s fail a result of the violation as protection equal See v Director of law. Walls App 355; Services, 84 Mich Institutional (1978), Johnson, 488 F2d Mitchell v NW2d 1973). (CA 6, defending approving the constitution- of and In complaints, ality but murder warrants People v Johnson Archer, *32 open informations, murder it would be this give duty only narrowing Court’s the statute a totally construction so as to it render constitu- supra: O’Donnell, tional. As noted It legislative is well established that enactments presumption are cloaked with a ity. of constitutional- statutory provision Where a would otherwise unconstitutional, give it is the Court’s duty to narrowing the statute a construction so as to render possible it if constitutional such a construction is doing Legislature’s
without
violence to the
in enacting
intent
392
George
McQuillan,
statute.
511, 536;
(1974);
221
Mich
569
NW2d
Nunn v
Co, Inc,
486,
A Kantrick
App
113 Mich
(1982).
491; 317
App
NW2d 331
Mich
[127
757.]
Notwithstanding
unconstitutionality
open
informations,
murder
we believe the better course
power
is to exercise the inherent
of this Court to
deal with the situation as a matter of criminal
procedure,
supra,
Duncan,
as was done in
People Bellanca,
708;
194 NW2d
(1972).
grapple
863
The courts should not
with
finding
question,
a constitutional
when the case
grounds.
can be decided on other
See Ashwander v
Valley Authority,
Tennessee
288,
297
341-356;
US
(1936) (Brandeis, J.);
466;
56 S Ct
80 L Ed Lovett,
United
303,
States v
US
66 S Ct
(1946) (Frankfurter,
1073; 90 L
J.,
Ed 1252
concur
ring);
Young,
Nowak, Rotunda &
Constitutional
(3d ed),
pp
Taylor
§ 2.12,
Law
General,
86-87;
v Auditor
(1960).
Mich
103 NW2d 769
long
constitutionality
This Court has
held that the
passed upon
of statutes will not be
where the case
doing
can be determined without
so. Powell v
Eldred,
When bound over a particularly evi- case in there is no a which premeditation, defen- a dence deliberation prepare must to defend first-de- dant nonetheless gree well offenses. murder as as lesser-included greatest signifi- penalty, it Because cant amount of time must be allotted to carries
the de- charge, leaving first-degree fense lesser cluded offenses. Because offense and the charged amount of time to devote the lesser-in- severity penalty carries, it a defendant *33 provided be with with murder should safeguards charged procedural greater than those probabilities of minor The with a more offense. surprise, inadequate notice, unfair and insufficient opportunity defend, all to a defendant’s to relevant charges right opportunity meet to a fair the point against him, affected, if not are even of a constitutional violation.
Currently, on the defendant can be bound over charge, open first-de- murder which includes though gree murder, at the even the facts adduced preliminary may only a man- examination show slaughter second-degree egre- or murder. The most gious aspect procedure a of this is that when open defendant murder deliberation, is bound over on a showing premeditation or without magistrate has carte blanche factfinding concerning engage elements proof. have no "open mur-
As a less to the onerous alternative charged information, in a der” complaint a defendant be "open murder,” ac- warrant with People Spells, App 42 243; 201 NW2d cord v Mich People 139 v Johnson Archer, J. (1972), 676 but the defendant tois be bound over on specific degree proofs of murder after are presented at the preliminary examination.5 Sev- Appeals eral Court of decisions have been har- People Juniel, with this mony approach. Mich 529, App 533-538; (1975); NW2d supra Oster, Johnson, 494-498; at 498, 502; App NW2d These required proof premeditation cases and delibera- tion at examination preliminary before first-degree defendant could stand trial for murder though even the prosecution elected to pursuant to the short form. statutory requirement This is also in the lan- accord with itself, guage "open of the murder” for statute speaks charging statute to the form of only document,6 not to the prosecutor’s pre- burden at liminary opinion examination. The lead concedes depends upon information the bindover ante, possible charges, p which is consistent with our view. requirement charged that a defendant specific
with a degree presentation of murder after proofs at a gives preliminary both the prosecution ample and the (twelve time days) extra to investigate the matter.7 5Using approach, only parts Spalla, this we would overrule the Melvin, require judge and Strutenski which do not the district examination to determine the murder. *34 767.44; provides: following may 6 MCL MSA 28.984 "The forms they applicable any used in the cases in which are but other forms any may authorized used . . . .” this or other law of this state also be 7 Michigan’s statute, 768.1; 28.1024, speedy Neither trial MCL MSA rule, 6.109, period nor its court trial defense MCR addresses the time allotted for However, 1974, preparation. Speedy the Trial Act of as seq., only thirty-day amended in 18 USC 3161 et allows a trial preparation period following defense the return of information. an Rojas-Contreras, 555; See United States v 106 88 L Ed US S Ct (1985). inconsistent, procedurally, 2d 537 It would be to hold that Archer, J. may parties with suffi- then come forward
Both proofs make a to enable the cient there is as to whether more informed decision probable premeditation or deliber- to believe cause ation is evident. gives Specification the defen- also at bindover energies concentrating his and the of
dant resources on the sue at trial as reflected benefit against preparation of the defense pur- prosecutor degree will particulars.8 in the bill requirement specific-degree assist will The district court to circuit the tion is limited to of the Mich function, over is to bind in its which requirement will also assist court. The jurisdic- court, court’s the circuit circuit since specified in the return the offense magistrate. People examining Curtis, 389 209 NW2d requiring implies opinion The lead specified degree parts de- at bindover of murder to be recognition judicial century from degree unspecified charges and murder use of unhinges today process. judicial decision Our charg- complaints and warrants does not disallow degree. specification ing While without murder "open constitutionality mur- of an we defend require complaint warrant, we now der” prosecutor if with the do no more than served magis- particulars, to do it before bill of but gavel has trate’s landed._ degree, days to determine is an insufficient time within which twelve degree when, first-degree second-degree complaint, the in a examination, particularly specified when before charged, knowledge he without of what the defendant murder, only conceivably is entitled to on under have defend prepare thirty days to for his entire trial defense. attorney, seasonably requested prosecuting if [T]he setting up specifi particulars respondent, shall furnish a bill of 767.44; charged. cally MSA offense the nature of the [MCL 28.984.] *35 v Johnson Archer, J. proce- opinion further asserts that the The lead implementation having prosecutor dural the "open supply particulars after the mur- a bill used, der” information is assures that the defen- adequate notice in advance of trial dant will have charge, underly- of both the ing and the factual basis alleged specification However, the offense. oppor- at bindover allows the defendant the leveling tunity prior to the be heard charge, before it is too late for the defendant to do anything Technically, about the as laid. the required prosecutor currently supply would particulars days examination, the bill of after the seasonably requested by if opinion, lead the defendant. The ap-
therefore, criticizes a common-sense proach change substantially which does not prosecutor. burden prelimi-
In cases where the defendant waives nary examination, re- defendant would be quired request particulars a bill of within a period. Upon request reasonable time defendant’s particulars, prosecution for a bill of must specific determine and advise the defendant of the degree of on which he is to be tried: prosecuting if attorney, seasonably re- [T]he
quested by shall furnish a bill of respondent, particulars setting up specifically the nature of the charged. 767.44; offense MSA 28.984. Em- [MCL phasis added.] (even ago, century More than a laws before our progressed point requiring degree-speci- to the murder) recognized importance fied this Court magistrate’s responsibility of the degree to determine the offense, when, case,
of an as this charged offense degree. includes one or more of lesser People,
In Yaner v 34 Mich Dissenting Archer, J. upon ruled (1876), discussed this Court for the providing statute of the current forerunner discharg- is to use when procedure *36 doing In for trial.9 over binding a defendant ing or so, Court stated: this was, that this statute intent of clear evident The judgment his best magistrate should exercise the in determine whether testimony the matter; he should from that the charged in the war- the crime where, committed, in this as or had been
rant or more case, charged includes one the offense determine magistrate should degree, the lesser committed, that offense, so any, if had been which the accused in upon trial the placed might not be greater or charge different to a circuit to answer examined, had been upon which he the one than If for trial. had been held which he and to answer magistrate the would have not so we this were offense, prosecuting and the binding one over for or dif- for another fling information attorney ferent swer to an ing attorney an binding to an- one, over magistrate or the degree, prosecut- the offense of one information like offense offense fling for a an In case the higher degree. either of a not au- be one charged information would the [Emphasis .... examination thorized added.] Strutenski, Melvin, and Spalla, decisions in 766.13; provides: currently MCL MSA 28.931 magistrate appear at the conclusion of to the If it shall
preliminary has not been that an offense examination either charging probable is not cause committed or that defendant there therewith, discharge If it such defendant. he shall prelimi- magistrate appear at the conclusion to the shall felony and there nary has been committed examination that a therewith, charging probable the defendant cause for is magistrate appear before shall forthwith bind the having jurisdic- county, other court court such the circuit tion of the cause, for trial. v Johnson Archer, J. holding supra, required that "open specify of murder in an mur- Yaner, der” is in direct contradiction with position subjected the defendant to the unfair being greater placed on trial to answer to a murder) charge (first-degree than the one which only examined, he had been wherein the element of malice was shown.10
n finding by that Defendant also claims examining magistrate there was sufficient premeditation and deliberation to bind evidence of open charge deprived him of over on an requiring trial, a fair reversal of his conviction. argues prosecutor failed to Defendant prove that defen- at the *37 premeditation dant killed and deliber- Tower with Consequently, ation. defendant contends he was a compromised jury verdict, victim of which re- a higher sulted in level of than the one conviction jury if would have entered the case had been properly bound over. prosecution preliminary
At the examination the every must show evidence on each and the element of charged in offense order for the to 10 respectfully The bench and bar are this advised Court is publishing requiring examining magis for comment a court rule degree specify being trate to of murder for which the defendant bound over for trial: examining magistrate’s binding An order a defendant over to degree specify
stand trial on a
of murder must
examining magistrate
finding
murder. The
must make
preliminary
whether
the evidence adduced at the
examination
degree
established the commission of
the first
degree
probable
murder
for
in the second
and that
there is
cause
charging
the defendant with murder in the
found
magistrate.
[Proposed
MCR 6.203.]
In there was evidence whether from which sented at and deliberation premeditation an inference drawn, killing phrased we have can be as follows: inquiry think about beforehand
[t]o
major
of a
measure and evaluate the
facets
[t]o
problem
choice or
thought process
undisturbed
hot blood
[a]
thought
ulti-
interval between initial
[t]he
long enough
mate action should be
to afford a
subject
reasonable man time to
response
the nature of his
Vail,
[People
a "second look.”
(1975),
468-469;
quoted
Mich
in
the defendant must have intentionally design according preconceived killed to a particular way.
to take
his victim’s life
App
Scotts,
examination, was as follows: I period submit of seconds of time during occurred, thing which by every this wit- account, instantaneous, ness’s it was not a one- deal, you pointing shot if It will. was not like gun, pulling trigger gun havin’ a even —or pointing held at just one side at someone and then accidentally or instantaneously pulling trigger. have, show, Here I a con- proofs we submit pulling knife, opening scious out of a up, the blade passage there is of time testimony there. There is here, although differs, it testimony there is exchanged. their words were It was either "Come something or, on” or to that effect "You want words, this, again too?” Those and then some of passage appreciable period there is a of an of time —which could be a second or or stuck it or two seconds whatever —before the Defendant stabbed victim the ñrst time. And you if then Reed, victim, add that with ultimately Barb retreated, apparently and then received at least a cetera, second wound and the third and et et cetera. *39 427 Dissenting Opinion Archer, J. decide, But, got first, has I think the Court independent obviously of ulti- that would be
and McKaig says, say I or Mr. mately what what pre-meditation there was time whether or not facts, or not there presented and whether a look. time to take second for the Defendant was out, get a knife the time for one I submit someone, ultimately stabbing or up, it before it, lunging you want characterize however him, time going there is for a second across to stab there, look just it’s an instantaneous and not act; unreflected, was de- not-deliberate there reflect, it time to and and there was liberation was, indeed, request, we pre-meditated. So would all, Degree, if the on First and first of a bind-over opinion at least to what in its Court differs facts minimum, are, the bind-over then at basically Degree, which should be on Second exception of the absence same elements with [Emphasis pre-mediation of the or deliberation. added.] discretion, abuse of showing a clear
Absent finding magistrate’s Court not reverse a this will Doss, People supra v at probable cause. Dellabonda, v 491; 251 NW 265 Mich #2, 621; 178 Paille (1933); 383 Mich (1970). NW2d at
Weighing
presented
the evidence
against
the consid-
in the instant
case
Oster,
Berthiaume,
Vail,
erations
outlined
his
the magistrate
we conclude that
abused
clearly
"open
binding
discretion
defendant
over on
finding
of premeditation
murder”
on the basis
plan-
There
no
and deliberation.
was
evidence
ning or
and Tower did
motive.
knife was
even know each other.11 The facts that a
questions
credibility
of Barbara
Chief Justice Wiiaiams
relationship
regarding
any prior
testimony
between
Reed’s
the defendant
the lack of
However,
at
stated
the deceased.
People v
Johnson
Archer, J.
heart,
used and that wounds were inflicted to the
part
body,
vital
do not raise an inference of
premeditation.
People Hoffmeister,
Oster
(1975).
155, 159;
394 Mich
App 609;
Evidence that
the
between the defen-
ended,
dant and the victim had
that the defendant
situation,
in control of the
or that
the victim
was
pulled
inwas
retreat before defendant
out
the
supportive
finding
premeditation
knife is
of a
People Tilley,
38;
405 Mich
and deliberation. See
v
(1979).
Finally, in defendant’s conduct leaving disposing the scene and of his shoe could premeditation consistent with and deliberation. be Leaving disposing the scene of a crime and of one’s just shoe, however, are as consistent with an un- premeditated subsequent murder. Defendant’s ac- panic, espe- tions could have been the result of light cially of his contention that he steadfast wielding "Al- was fear of the victim’s knife. though may these actions be indicative of defen- post-murder suggest they mind, dant’s little or state of
nothing
thoughts
about his
before or
during
People Williams, 422
the murder.”
Mich
(1985)
381,
J.,
405;
373 NW2d 567
(Cavanagh,
testimony
examination that he found Reed’s
to be
Indeed,
prosecutor presented
prior
credible.
no evidence of a
relationship between the defendant and the deceased which would
indicate motive.
Mich 98
148
427
Archer, Levin, J.); Hoffmeister at
161,
dissenting,
joined by
People
Morrin,
301, 332; App
Mich
7;n
(1971).
(1971),
NW2d 434
lv den
argument
premeditation
prosecution’s
that, while
inferred
the evidence
could
from
be
out,
opening
up,
ultimately
knife
it
getting the
victim,
to stab
lunging across
decision to murder
had made a conscious
victim,
instantaneously
cannot
improbable. One
Smith, v Jesse
a murder.
premeditate
(1978);
190,
Mich
The time establish ini- must between the tion and deliberation occur Peo- the tial intent and ultimate action. homicidal ple supra. Hoffmeister, v perversion It a would be act apply any of terms to the term "deliberate” to example on for impulse, which is done a sudden during affray. when homicide a a occurs sudden People, Tilley, supra Nye 44-45; at Virtually of the evidence all the suggests adduced killing response occurred as a to circumstances his presented upon which defendant was with in this into the There is no basis entry bathroom. Johnson Archer, J. defendant, for record an inference that cool a subjected mind, measured, state evaluated and responses a his to "second look” in between the Hoffmeister, at stab wounds. 159.
Notwithstanding supporting the reasons and opinion above, case law cited the lead that asserts lapse attacks, of time between of a use alleged pursuit retreating knife, and premeditation victim, infers The deliberation. magistrate opinion recognized lead states that the pursuit fleeing pre- a that victim can indicate magistrate meditation and deliberation. Had the premeditation articulated that he found and delib- upon testimony, eration the basis of such an such might proper. However, inference well be at bind- over the stated: I do find there that was murder committed knife, Mr. Johnson in his with hand and that weapon being of—the because the used was malice, murder was committed with and the mat- ter charge will sent Circuit Court trial on Murder, Open upon testimony based received at this Examination. Preliminary [Em- phasis added.] magistrate’s comments do not indicate that he premeditation, only found but that he found mal- compelled rely ice and was on Strutenski and progeny "Magistrate its when he held that [is] required specify of murder” on charge. an recognizes
The harmless-error doctrine purpose promote central of a criminal trial is to "public respect process by for the criminal focus- ing underlying on the fairness of the trial rather *42 virtually presence than on the inevitable of imma- terial Arsdall, 673, error.” Delaware v Van 475 US 427 Ahchek, by 674, 685 89 L Ed 2d 1436-1437; 106 Ct
—; S attempting apply appellate to harm- An court Michigan’s analysis current under less-error It with a formidable burden. rule is faced murder having defend on a defendant must conclude first-degree benefit without the of a showing premeditation at and deliberation aof prejudicial. not examination was appellate conclude court also have to The beyond to failure show reasonable doubt that the a prejudice the defen- did not those elements same a such trial. think court can make dant at We only circumstances, rarest determination justified. per is therefore a rule of reversal se (Marshall, supra J., Arsdall, Van See Delaware v dissenting). proposed if we use the standard Even opinion probability that the error lead —reasonable trial —defendant’s con- the outcome of the affected compromise A verdict viction should be reversed. clearly trial was indicates that outcome affected. higher charge,
Moreover, warranted when jury, proofs, to "there is is submitted always prejudice acquittal because a defendant’s chances substantially any [are]
on valid compromise possibility of a ver- decreased ago recognized long dict.” Vail 464. This Court tendency compromise jury’s under such circumstances: practitioners experience to most is evident [I]t acquittal
that it
an
would be much easier
secure
only charged
if
the lesser
the defendant were
with
charged
he
offense than it would be were
with all
compro-
jurors
tendency
three offenses.
only one
mise their differences. Where there is
*43
151
Johnson
v
Dissenting Opinion
Archer, J.
charge they
obliged
question
to
the
are
meet
no,
squarely by yes
charges
disagree,
or
the
but where
three,
juror
are
the
who thinks
there
conviction,
juror
should
no
and the
who thinks
greater
a
be had
the
that
offense are
conviction should
agree
quite
upon
liable to
a conviction
[People Gessinger,
v
of
625, 628;
lesser offense.
238 Mich
(1927),
approval
See (1972); Mich NW2d People Hansen,
see also
368 Mich
(1962); People
Stahl,
We, therefore, that conclude binding istrate abused his discretion the defen- dant over to the circuit court on murder on premeditation basis and deliberation and prejudiced by harmfully that the defendant was compromised Accordingly, verdict. we would re- verse.
hi Lastly, defendant claims that the trial court deprived right interpose him of the to the defense by disallowing conclusory testimony of self-defense as to his fear and
apprehension at the time of the alleged perti- examination, incident. On direct colloquy nent aswas follows: Now, Q. you just knife, trying said to take the you what did mean by that? mean, grab A. What I I his is hand. The man going to stab me with the knife. Objection, Mr. Gabry: Your It Honor. calls conclusion. Honor, McKaig: Mr. Your I believe that other witnesses been testify they have to allowed thought Mr. trying get away, Tower was I Archer, proper is a conclusion absolutely think this
given defense of self-defense. exam. And on direct Court: you’re But [The] testify as rules he cannot of evidence under a conclusion on direct examination. Honor, like rec- McKaig: I would Mr. Your ruling exception to the court’s I take ord to note that we feel the notion based on testify as to what he was ought to be allowed thoughts time were thinking and what his happening. this was *44 Court: There’s a rule of evidence [The] asking on direct examination prohibits you from So stick with rules drawing conclusions. evidence, McKaig. Mr. objection
The is sustained. ruling, the Court trial court’s regard With opinion, in said: unpublished its Appeals, ruling stood alone without the trial court’s Had regarding defendant’s state any of mind or belief when testimony further allegedly he was attacked bathroom, would have by occurred. MRE 701 allows lay in the error the deceased opinion of a testimony rationally on the if it based witness’ witness fact helpful and if to determination perception in ion opin- that an Similarly, MRE states issue. objectionable. issue is not on an ultimate that he was of Defendant’s belief reasonableness in self-defense was about to be stabbed and acted the Indeed, key element in defendant’s defense. only he and defendant could describe what felt perceived happen. about what he was "opin- An agree Appeals. We with the Court of or conclusion by ion” drawn is an inference Popp, from the facts. Dudek v Mich witness (1964). testimony 129 NW2d of the defendant is admissible regarding fears People, supra; Brownell v as a theory. self-defense Lilly, .1986] Johnson by Archer, opinion pursuant Since an includes a conclusion ruling disallowing to MRE the trial court’s conclusory defendant’s statement as to his fear apprehension, However, was in error. such light error mony presented by was harmless the additional testi- regarding defendant his state allegedly of mind and belief when he was attacked reviewing in ord, In the bathroom Tower. the rec- testimony already found, we to the addition presented testimony noted, further concerning per- they the circumstances as were supporting him, ceived defense, his of self- claim
including following: me, A. he When made advances towards which very we a small were close—it’s bedroom—he made towards me. advances
Q. Excuse me. Is this a bedroom or bathroom? A. Bathroom.
Q. how you jury Can tell the he held the knife? position A. It Yeah. was in this about shoulder height.
Q. Now, Henry, happened what then? Well, get A. when he his I made advances had to *45 ahold to him. Q. him, you And say you when wrestled with if can,
you talking what you’re describe about? speaking trying knife, A. I’m himof to take the trying And hold him until you got to stab with the knife. I his hand. loose, scuffling get scuffling he’s and I’m to
I find to run. room Well, chance, got A. when I we had after there, falling wrestled against around the walls whatever, my and any longer. arm didn’t want with to last me Q. you doWhat mean? My give
A. injured arm. It out had on me. Archer, Dissenting
Q. happened then? What Well, him the bath tub. I toward A. shoved Q. OK. tub. him in bath
A. I to shove tried Q. happened then? What Well, went into the shower I He A. succeeded. with doors, him, over in went the shower doors crashing making noise. a loud happened then? Q. What out of the bathroom. A. I tried run get bathroom? you out Q. Did was A. The door blocked. No. (Mr. you up McKaig) I want to back Q. Henry, Tower point you saw Mr.
again where first to' knife in his hand. with the A. OK. you it? think saw
Q. you did when What fixing I think only thing I could was was A. The get cut. pushed into tub? Q. him the bath you And A. Yes. tub, what Henry, bath
Q. he went When happened? I get
A. tried to out. Now, you Q. you you do when found what did get couldn’t out of bathroom? Well, A. I And I turned back and was scared. with to Mr. Tower my faced—I didn’t want that knife. back Q. Why not? get I cut. I couldn’t A. didn’t want to stabbed or Maybe I him.
get out had to face there’s so again. grab of him chance to ahold Q. jury if he still had the knife. Tell Yes, A. he had knife.
Q. happened What then? *46 Johnson Archer, him, got I get A. I couldn’t out. So through ahold of process all again. And we went the same slamming again, scuffling in there and over around I tried to make against him lose the the walls and whatever. knife, I at that. but was unsuccessful Now, Q. your was state of mind at Henry, what going the time all this was on? explain my exactly A. I couldn’t the state up. really I shook I anybody mind to because was nervous, fright- I nearly my out of mind. was
was ened, bad. bathroom, frightened in Q. pretty You were you were not?
A. Yes. Q. person you This never knew for some this, to, pig pulled reason sticker out? what’s been referred
A. Yes. man,
Q. right? You didn’t even know the A. I didn’t. Q. think you You have no motive can get
why knife? just you he would want with that
A. I don’t know. Q. you struggled you escaped, So and finally examination, not, your testimony it’s that started to on direct is it
you you your you realized lost shoe and go up? back A. Correct. self-defense,
To prove pre- defendant must (1) sent sufficient evidence to show that the defen- (2) dant honestly believed that he in danger, was danger which must be feared is (3) death, serious bodily harm or the action taken the defendant appeared must have at the time to be Dea- immediately necessary. People v son, App 27; NW2d 72 *47 427 Mich Dissenting Archer, upon Appeals which had sufficient basis
Court of put enough evidence before to believe there was concerning impressions, jury his ability escape, he and the which his as to felt threatened to make a conclusion himself whether defendant acted self-defense.
We, therefore, defendant’s last conclude that is without merit. claim of error