Following a nonjury trial held on February 5 through 9, 1981, defendant was convicted of first-degree murder, MCL 750.316; MSA 28.548, assault with intent to murder, MCL 750.83; MSA 28.278, and two counts of felony-firearm, MCL 750.227b; MSA 28.424(2). On March 5, 1981, defendant was sentenced to a term of life imprisonment for murder, life for assault with intent to murder, and two years for each felony-firearm count. He appeals as of right.
Defendant was charged with the following offen
In this appeal, defendant raises two issues, each dealing with the correctness of the lower courts’ findings of premeditation and deliberation. The first issue raises the question of whether the magistrate abused his discretion in failing to bind over defendant to the circuit court on the charge of first-degree murder. The second issue concerns the question of whether the trial court erred when it determined that sufficient evidence of premeditation and deliberation was introduced at trial.
At the preliminary examination, it was stipulated that Deborah Porcelli died on May 3, 1980, as a result of a gunshot wound to her head. The prosecution presented six witnesses. No testimony was presented in behalf of the defense.
Joseph Porcelli, the victim’s husband, stated that he parked their green and white 1973 Monte Carlo five or six rows behind the concession stand at the Miracle Mile Drive-In on May 2, 1980. Near the end of the first show, he noticed five young black males walk past his car toward the restrooms in the rear of the concession stand. After standing near the restrooms for some time, smoking until the movie ended, the youths walked toward the back of the drive-in. As they passed the Porcelli car, three walked on the passenger’s side and two went to the driver’s side. One of the individuals, standing approximately 12 to 15 feet from the driver’s side, looked at Porcelli and said: "Hey, man, you got a light?” Porcelli, who smokes, was not smoking at that time. The other person on
Defendant’s companions on May 3, 1980, Jessie Lee King, Michael Holmes, Richard Alston, and Roderick Howard, each testified at the preliminary examination. King testified that he kept a .22 caliber pistol, which he called "Marv”, in his desk drawer for the pistol’s owner, Holmes. On May 2, 1980, Holmes gave "Marv” to defendant to "style” for the evening. Defendant, King, Holmes, and Howard went to a Jefferson Junior High School dance, visited a McDonald’s restaurant, and picked up Alston before arriving at the drive-in. There, they entered through a hole in the rear fence, proceeding to the concession stand. At the concession stand, the boys "messed around” for approximately one-half hour. While leaving the premises, they passed a green and white vehicle. Alston asked a man inside the automobile for a match. When the occupant responded that he could be of no help, the entire group walked away, except defendant, who was standing approximately eight feet from the car. Defendant said, "Can’t have no match”. Suddenly, King heard a shot, turned, heard another shot, and saw defendant with "Marv” drawn. According to King, defendant was eight feet from the car, holding the pistol with both hands. He stated that a "couple seconds” passed between the first and second shots. Holmes saw defendant draw the pistol and fire two shots in rapid succession into the vehicle’s passenger
State Police Sergeant Michael C. Arrowood stated that it took between 10 and 11 pounds of pressure to pull the murder weapon’s trigger (at trial, it was testified that by first cocking the trigger, the weapon could be fired with two to three pounds of pressure).
At the conclusion of the testimony at the preliminary examination, defendant contended that there had been no showing of premeditation and deliberation. The magistrate agreed, binding over defendant on a second-degree murder charge, MCL 750.317; MSA 28.549, assault with intent to murder, and two felony-firearm counts. On the appeal of the people to the circuit court the circuit judge overturned the magistrate’s decision, reinstating the open murder count. Defendant contends the circuit court judge’s decision constitutes reversible error. We disagree.
An examining magistrate is to bind a defendant over for trial if it appears that a crime has been committed and that there is probable. cause to believe defendant committed it. MCL 766.13; MSA
In
People v Morrin,
"To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts have pointed out, premeditation and deliberation characterize a thought process undisturbed by hot blood, While the minimum time necessary to exercise this process isincapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a 'second look’.” (Footnotes omitted.)
Accord,
People v Mullaney,
We have carefully considered and distinguished the Supreme Court’s recent decision in People v King, supra, from the case at bar. There, the defendant was charged with first-degree murder. At the preliminary examination, both prosecution and defense presented evidence. The magistrate bound over defendant on the charge of manslaughter. After the circuit court found no abuse of discretion, the prosecutor appealed to this Court. In an unpublished opinion a Court of Appeals panel reversed, finding that the prosecutor had presented evidence on each element of first-degree murder. In reversing and remanding to the circuit court for further proceedings on the manslaughter charge, the Supreme Court determined that this Court’s inquiry was too narrow and stated on page 154:
"Without regard to the defense’s evidence of intoxication and provocation, the Court of Appeals found the prosecution had presented evidence on each element of first-degree murder and therefore found an abuse of discretion in the magistrate’s failure to bind over on that charge. In so doing, the Court of Appeals too narrowly conceived the scope of the inquiry. The inquiry is not limited to whether the prosecution has presented evidence on each element of the offense. The magistrate is required to make his determination 'after an examination of the whole matter’. Although the prosecution has presented some evidence on each element, if upon an examination of the whole matter the evidence is insufiicient to satisfy the magistrate thatthe offense charged has been committed and that there is probable cause to believe that the defendant committed it, then he should not bind the defendant over on the offense charged but may bind him over on a lesser offense as to which he is so satisfied.” (Footnote omitted.)
The magistrate in the case before us determined that no evidence of premeditation and deliberation existed.
Testimony at the preliminary examination indicated that defendant was about 20 feet from the victim’s automobile when the request for a match was denied. When the shooting occurred, defendant was standing approximately eight feet from the vehicle holding the gun in both hands with arms outstretched pointing toward the car. Holding a weapon with two hands when pointing it at the victim is indicative of premeditation and deliberation. See
People v Tilley,
A review of the whole matter indicates evidence of premeditation and deliberation was presented, as well as evidence from which the other elements could be inferred. Rather than determine whether probable cause for a finding of premeditation and deliberation existed, the magistrate seems to have considered a reasonable doubt standard and determined the ultimate factual issue. Such analysis is beyond the magistrate’s discretionary powers. Accordingly, the magistrate’s decision was properly determined by the circuit court to be an abuse of discretion.
At trial, the testimony was substantially similar to that at the preliminary examination, and even more compelling in support of defendant’s guilt.
Defendant argues that insufficient evidence of premeditation and deliberation was introduced at trial to support his conviction. We disagree. Our review of the record shows that there was sufficient evidence introduced to justify a trier of fact in reasonably concluding that defendant is guilty beyond a reasonable doubt,
People v Hampton,
The totality of the circumstances needs to be examined in order to determine whether there is evidence to support the findings of the trier of fact; in particular, whether the findings of premeditation and deliberation are supported.
People v Tilley, supra,
44. Premeditation and deliberation need not be established by direct evidence. The requisite state of mind may be inferred from the defendant’s conduct. Such an inference, however, must have an adequate basis in the record.
People v Hoffmeister,
Testimony at trial showed that defendant acquired the pistol several hours before the killing. After leaving the gun under an armrest in King’s vehicle for most of the evening, defendant carried the pistol into the drive-in. Possession of a deadly weapon in advance of a slaying is a fact from which premeditation and deliberation can be inferred.
People v Livingston,
The circumstances of the killing itself, however, provide the strongest argument for a finding of premeditation and deliberation. The record shows that after Alston was denied a light, defendant stated, "Can’t have no match”. From this point, witness King’s testimony is most illustrative, as he turned upon hearing the first shot. He saw defendant holding the pistol with two hands, the driver’s side window collapsing, and the man inside the vehicle fall. After a two-to-three-second pause, another shot was fired, and King observed the woman occupant slump. It is well-settled that some time span between the initial homicidal intent and the ultimate action is necessary to establish premeditation and deliberation. People v Hoffmeister, supra, 161. Here, it can be inferred that formation of a homicidal intent occurred between the time that defendant drew the weapon from his waistband and the instant he first pulled the trigger. Testimony indicates that it was the second shot that killed Deborah Porcelli. Thus, it appears that several seconds passed between the formation of a homicidal intent and the firing of the fatal gunshot. During this interval, defendant saw the window burst and the male figure fall. Before defendant squeezed the trigger again, discharging the second bullet, sufficient time passed for defendant to take a second look at the nature of his act.
In
People v Tilley, supra,
the defendant held the murder weapon, a pistol, with two hands. Without
Here, the trial court concluded that malice was the moving cause of the shooting, and that the shooting was not accidental or merely intended to frighten the Porcellis. The trial judge noted that at the time the defendant and his companions arrived at the drive-in, the gun was not left behind in the car as it had been on earlier occasions. The defendant carried the gun in his waistband upon entering the drive-in. Further, the court noted the remark attributed by some of the witnesses to the defendant when one of the party was refused a light was, "Oh, can’t have a match, huh?” This suggested to the court an existing state of mind, a hostile feeling of the speaker, to punish or criticize in some fashion the individual who refused to give a light.
Regarding premeditation, the trial court noted that witness King, who was at the rear corner of the car, saw the man in the car drop after the first shot, then a second shot was discharged and the woman in the car fell. Defendant was closer to the car than King, and so had an even clearer view of the consequences of his actions. After the man dropped and the window fell, there could not have been a better opportunity to recognize what might happen if a second shot were fired, and the defendant chose to shoot again. The court found premeditation beyond a reasonable doubt.
We conclude that the testimony regarding the circumstances of the killing itself was sufficient to allow a trier of fact to find premeditation and
Affirmed.