People v. Johnson

• Citation: 427 Mich. 98,398 N.W.2d 219
• Decision Date: 01 October 1986
• Docket Number: Docket No. 75775,No. 4,4
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry JOHNSON, Defendant-Appellant. Calendar,
• Court: Supreme Court of Michigan

Page 219

398 N.W.2d 219

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry JOHNSON, Defendant-Appellant.

Docket No. 75775.

Calendar No. 4, Oct. Term, 1986.

427 Mich. 98, 398 N.W.2d 219

Supreme Court of Michigan.

Argued April 10, 1986.

Decided Dec. 26, 1986.

Rehearing Denied Feb. 10, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Gary M. Gabry, Pros. Atty., Leonard J. Malinowski, Asst. Atty. Gen., Dept. of Atty. Gen. Pros. Attys. Appellate Service, Lansing, for State.

Lawrence P. McKaig, Ionia, for defendant-appellant.

BOYLE, Justice.

Henry Johnson was bound over on an open charge of murder and later convicted by a jury of second-degree murder. On appeal before this Court, Mr. Johnson claims that the open murder charge violates constitutional guarantees of equal protection and due process. He also claims that evidence of premeditation and deliberation was both required and insufficient at the preliminary examination. Finally, Mr. Johnson argues that the trial court deprived him of the right to establish the defense of self-defense by disallowing his testimony concerning his fear and apprehension at the time of a fight.

We would hold that no constitutional violation occurred as a result of the open charge of murder used in this case. We would further hold that proof of premeditation and deliberation need not be shown at a preliminary examination where a defendant is bound over on a charge of open murder. Given the clear statutory framework which establishes the open charge of murder, it would be inappropriate for this Court to impose by judicial decision a contrary requirement solely based upon our inherent power. Neither the federal nor the state constitution nor the statutes enacted by the Legislature require proof of premeditation and deliberation before bindover on an open charge of murder. Finally, we concur in Justice Archer's disposition of defendant's claim that his right to a fair trial was violated by the trial court's failure to allow Mr. Johnson to freely describe his feelings and preceptions at the time of the fight. Therefore, we would affirm the decision of the Court of Appeals.

I Facts

Defendant was bound over on an open charge of murder and convicted by jury of second-degree murder. The events leading up to this case are set forth in the unpublished opinion of the Court of Appeals:

"In the early hours of July 9, 1983, defendant, and his friend Michael Crater, drove to the apartment of Barbara Reed in Ionia, Michigan. Upon arrival, they found a party going with some 12 people in attendance and in various stages of intoxication.... Not long after arrival, defendant and Barbara left the living room and went through the kitchen to the bathroom where they found the eventual victim, Roy Tower, standing talking to Rick Urbina, one of the guests. Tower, 21 years of age, was manager of the apartment house.

"Conflicting versions of just what went on in the bathroom upon defendant's entry were given but all parties agreed a fight ensued. Defendant testified that Tower drew a hunting knife from his side and while holding it at shoulder height advanced toward defendant. Barbara Reed corroborated defendant's version that Tower had a knife in his hands. Rick Urbana testified that upon entering the bathroom defendant pulled and opened his knife, told Tower, 'come on, mother fucker' and stabbed Tower and that Tower had stepped away from defendant prior to the first stabbing. Urbana further testified that defendant advanced on Tower a second time stabbing him in the chest as decedent backed up toward the bathroom. Both witnesses agreed it all occurred within five or ten seconds or within 'seconds, seconds fast.' Dr. Simson, a pathologist, testified that decedent died as a result of a stab wound to the heart."

The jury found Mr. Johnson guilty of second-degree murder, and the Court of Appeals affirmed the conviction.

II The Statutory Framework

There is no federal constitutional right ¹ to a preliminary examination or hearing--the procedure is one left to the Legislature to provide or not. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). In Michigan, the preliminary examination is solely a creation of the Legislature--it is a statutory right. See generally M.C.L. Secs. 766.1-766.22; M.S.A. Secs. 28.919-28.940.

M.C.L. Sec. 766.1; M.S.A. Sec. 28.919 ² provides that the state and the accused are entitled to a prompt preliminary examination. M.C.L. Sec. 766.4; M.S.A. Sec. 28.922 ³ provides that the preliminary examination must be set within twelve days of the arraignment on the warrant. The preliminary examination's primary function is "to determine if a crime has been committed and, if so, if there is probable cause to believe the defendant committed it." People v. Duncan, 388 Mich. 489, 499, 201 N.W.2d 629 (1972); M.C.L. Sec. 766.5; M.S.A. Sec. 28.923. ⁴ While the preliminary examination may contribute to satisfying the Const.1963, art. 1, Sec. 20, requirement that the defendant "be informed of the nature of the accusation," it primarily serves the public policy of ceasing judicial proceedings where there is a lack of evidence that a crime was committed or that the defendant committed it. At the preliminary examination, the prosecution has the burden of proving that a crime occurred and that there is probable cause that defendant committed it. ⁵ Absent such a showing, there cannot be a proper bindover by the magistrate. People v. Walker, 385 Mich. 565, 573, 189 N.W.2d 234 (1971); M.C.L. Sec. 766.13; M.S.A. Sec. 28.931. ⁶ A proper bindover, or waiver, is necessary to provide authority for the prosecutor to file an information against the defendant in circuit court. M.C.L. Sec. 767.42; M.S.A. Sec. 28.982 provides that a preliminary examination, unless waived, is a "condition precedent" to the filing of an information by the prosecutor. M.C.L. Sec. 767.42(1); M.S.A. Sec. 28.982(1) provides:

"An information shall not be filed against any person for a felony until such person has had a preliminary examination therefor, as provided by law, before an examining magistrate, unless that person waives his statutory right to an examination. If any person waives his statutory right to a preliminary examination without having had the benefit of counsel at the time and place of the waiver, upon proper and timely application by the person or his counsel, before trial or plea of guilty, the court having jurisdiction of the cause, in its discretion, may remand the case to a magistrate for a preliminary examination."

This statute is a limitation on the prosecution, not on the general jurisdiction of the circuit court. ⁷ In People v. Dochstader, 274 Mich. 238, 244, 264 N.W. 356 (1936), we said:

"The finding by the examining magistrate that a crime had been committed and there was probable cause to believe defendant guilty thereof was a necessary prerequisite to the filing of an information. This binding conclusion and finding of the examining magistrate is a judicial determination, and constitutes the basis of the right of the prosecuting attorney to proceed in the circuit court by filing an information against defendant. Without such finding and determination by the examining magistrate, the prosecuting attorney is without jurisdiction to proceed in the circuit court by filing an information against defendant. People v. Evans, 72 Mich 367 [40 NW 473 (1888) ]."

Neither statute nor case law requires specification of the degree of murder at a preliminary examination where open murder is charged in the information. Indeed, at common law, there was no specification of degree of murder because all unexcused and unjustified homicides committed with malice were murder punished by death. Perkins, Criminal Law (2d ed), p. 88. Specification of degree is a legislative innovation used to distinguish between those murders meriting the harshest punishment and those murders meriting a less severe punishment. Id., pp. 88-89. M.C.L Sec. 767.44; M.S.A. Sec. 28.984 ⁸ simply validates simplified short-form informations for the charging of various crimes. ⁹ The "open murder" statute, M.C.L. Sec. 767.71; M.S.A. Sec. 28.1011, ¹⁰ recognizes that murder is a single offense and that, at the informational stage, no specification of degree is required. The information occurs after and depends upon the bindover for the possible charges. M.C.L. Sec. 767.45; M.S.A. Sec. 28.985 requires that an information contain merely "[t]he nature of the offense stated in language which will fairly apprise the accused and the court of the offense charged...." M.C.L. Sec. 767.71; M.S.A. Sec. 28.1011 provides that an indictment or information charging murder need only set forth the "charge that the defendant did murder the deceased...."

The meaning of the "open murder" charge in Michigan statutory criminal procedure is that no evidence of premeditation and deliberation need be adduced at the preliminary examination. The preliminary examination provides the parameters of the information which may be filed by the prosecution. Since M.C.L. Sec. 767.71; M.S.A. Sec. 28.1011 does not require specification of first- or second-degree murder in the information, it is a reasonable assumption that the Legislature had no intention of requiring proof of premeditation and deliberation at the earlier stage of the preliminary examination. No statute makes such a requirement. The nature of the process is from general to specific, not from specific to general. A requirement of specification of degree at the preliminary examination stage would make the provisions of M.C.L. Sec. 767.71; M.S.A. Sec. 28.1011 for an open murder charge at the information stage totally meaningless.

M.C.L. Sec. 750.318; M.S.A. Sec. 28.550 supports this conclusion. The statute provides that where a person is indicted (or informed against) with murder of an unspecified degree, the jury, upon finding defendant guilty of murder, must also...