People v. Flowers

• Decision Date: 03 September 1991
• Docket Number: Docket No. 133312
• Citation: 191 Mich.App. 169,477 N.W.2d 473
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jack L. FLOWERS, Defendant-Appellant. 191 Mich.App. 169, 477 N.W.2d 473
• Court: Court of Appeal of Michigan — District of US

Page 473

477 N.W.2d 473

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jack L. FLOWERS, Defendant-Appellant.

Docket No. 133312.

191 Mich.App. 169, 477 N.W.2d 473

Court of Appeals of Michigan.

Submitted Aug. 6, 1991, at Lansing.

Decided Sept. 3, 1991, 9:35 a.m.

Released for Publication Dec. 16, 1991.

[191 MICHAPP 170] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Robert E. Weiss, Pros. Atty., and Donald A. Kuebler, Chief, Appellate Div., for the People.

Miner, Spuhler & Miner, P.C. by Earl R. Spuhler, Fenton, for the defendant-appellant on appeal.

Before MacKENZIE, P.J., and REILLY and CONNOR, JJ.

REILLY, Judge.

Defendant appeals by leave granted the order of the circuit court remanding this case to the district court for reinstatement of the felony-murder charge. M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. We affirm.

At the preliminary examination, codefendant Roger Wilson testified that he had met with the defendant on at least two occasions during which [191 MICHAPP 171] defendant offered to pay him between $100 and $200 to beat up Donald May, and an additional $50 for each bone broken. Defendant gave Wilson a photograph of May, May's address, and the names of two local bars May frequented. Wilson was to produce May's wallet to prove that the beating had been accomplished. Wilson further testified that on January 27, 1990, he drove two other codefendants, Tony Bigelow and Ricky Goss, to May's home where, according to their plan, they were to break in, and beat and rob May. Wilson met with the two codefendants later and was given a videocassette recorder, May's wallet, and a bloody sock to offer as proof that the plan had been carried out. Wilson turned the items over to defendant and was paid $110 and promised an "eight ball" of drugs (3 1/2 grams). Wilson subsequently learned that May had been shot in the back of the head. The medical examiner confirmed that death was caused by a single shot and that there was no evidence of any beating.

The district court bound defendant over on the reduced charges of conspiracy to assault with intent to do great bodily harm less than murder, M.C.L. Secs. 750.84, 750.157a; M.S.A. Secs. 28.279, 28.354(1), and solicitation to assault with intent to do great bodily harm less than murder, M.C.L. Secs. 750.84, 750.157b(3); M.S.A. Secs. 28.279, 28.354(2)(3). The prosecutor filed an appeal ¹ to the circuit court, asking for reinstatement of the charges of felony-murder, conspiracy to commit murder, and solicitation to [191 MICHAPP 172] commit murder. The circuit court partially granted the prosecutor's request by ordering a remand for reinstatement of the felony-murder charge. The prosecutor has not filed a cross appeal.

I

Defendant first contends that the circuit court erred in ignoring MCR 7.103 and in treating the prosecutor's application for leave to appeal as a motion. We agree that the circuit court had no jurisdiction to hear a motion relating to a charge previously dismissed at the district court level. A circuit court does not acquire jurisdiction until a return is filed by the district court, and jurisdiction is limited to the offense specified in the return. People v. Curtis, 389 Mich. 698, 711, 209 N.W.2d 243 (1973).

A prosecutor is entitled to a review of a dismissal order only through an appeal as of right or by leave granted. M.C.L. Sec. 600.8342; M.S.A. Sec. 27A.8342, as amended effective January 1, 1982; MCR 7.103. See People v. McCoy, 75 Mich.App. 164, 170-171, 254 N.W.2d 829 (1977). If twenty-one days have passed since the entry of the order being appealed, an affidavit must be submitted explaining the delay in seeking leave to appeal. MCR 7.103(B)(6). The court rule no longer requires that the explanation show nonculpable negligence. See GCR 1963, 703.2(f). The decision of a circuit court to grant or deny leave is reviewed under an abuse of discretion standard. Compare Blue Cross & Blue Shield of Michigan v. Comm'r of Ins., 155 Mich.App. 723, 730, 400 N.W.2d 638 (1986).

The prosecutor's application for leave to appeal was filed in the circuit court on August 2, 1990. Because the application was not filed within [191 MICHAPP 173] twenty-one days from the entry of the order, ² an affidavit explaining the delay should have been presented. However, we believe the circuit court's failure to require the affidavit was harmless error. MCR 2.613. The court rules are to be construed to secure the just, speedy, and economical determination of every action and to avoid the consequences of error that does not affect the substantial rights of the parties. MCR 1.105.

The application was late by only nine days at most, and the circuit court found that defendant was not prejudiced by the delay. A remand at this time for the purpose of requiring the prosecutor to offer an explanation in affidavit form would not serve justice. See People v. McKendrick, 188 Mich.App. 128, 146, 468 N.W.2d 903 (1991). We find, therefore, that the circuit court's consideration of the prosecutor's application for leave to appeal was not an abuse of discretion.

II

Defendant's second claim on appeal is that the circuit court erred in remanding the case to the district court to bind the defendant over on the charge of felony murder. We disagree.

The district court recognized that the defendant was charged with four counts: (I) premeditated murder, (II) felony-murder, (III) conspiracy to commit murder, and (IV) solicitation to commit murder. After evaluating the evidence presented at the preliminary examination, the district court dismissed all the counts because there was insufficient[191 MICHAPP 174] evidence to support the prosecutor's claims that defendant had the intent to solicit murder and that he made an agreement to have the victim killed. The district court bound defendant over for trial on the lesser charges of solicitation and conspiracy to commit assault with intent to do great bodily harm less than murder.

The circuit court, on review, ruled that the decision of the district court regarding the felony-murder charge was an abuse of discretion. The circuit court determined that the issues regarding defendant's intent and the foreseeability of the victim's death were issues of fact that could not be resolved by the examining judge, but must be reserved for the factfinder at trial.

In reviewing a district court's decision to bind over an accused, a circuit court may not substitute its judgment for that of the district court. The circuit court may only reverse the lower court's decision if it appears on the record that there was an abuse of discretion. People v. Whittaker, 187 Mich.App. 122, 127-128, 466 N.W.2d 364 (1991), citing People v. Talley, 410 Mich. 378, 385-387, 301 N.W.2d 809 (1981). This Court's review is de novo, because we must determine whether the district court abused its discretion in finding a lack of probable cause to believe that the defendant committed the offense charged. Resolution of this issue essentially involves the determination whether the evidence presented to the district court was sufficient to establish, as a matter of law, that the offense charged probably had been committed by the defendant.

M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, often referred to as the first-degree felony-murder statute, provides:

Murder which is perpetrated by means of poison, lying in wait, or other wilful, deliberate, and [191 MICHAPP 175] premeditated killing, or which is committed in the perpetration, or attempt to perpetrate arson, criminal sexual conduct in the first or third degree, robbery, breaking and entering of a dwelling, larceny of any kind, extortion, or kidnapping, is murder of the first degree, and shall be punishable by imprisonment for life.

M.C.L. Sec. 767.39; M.S.A. Sec. 28.979, which abolishes the distinction between an accessory and the principal perpetrator, provides:

Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.

In 1980, our Supreme Court abrogated the common-law concept of felony-murder when it determined that the intent to commit the underlying felony could no longer be equated with the intent to murder. People v. Aaron, 409 Mich. 672, 727, 299 N.W.2d 304 (1980). The Court further ruled that in order to raise a homicide to the level of first-degree murder for purposes of ascertaining the punishment to be imposed, it is first necessary to establish a murder. The term "murder" as used in the first-degree murder statute includes all types of murder at common law. People v. Scott, 6 Mich. 287, 292-293 (1859).

In Michigan, the term "murder" is judicially, rather than statutorily, defined.

"Murder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, in the peace of the state, with malice prepense or aforethought, either express or [191 MICHAPP 176] implied." [Aaron, supra, 409 Mich. at 713, 299 N.W.2d 304, quoting People v. Potter, 5 Mich. 1, 6 (1858).]

Malice aforethought elevates a homicide, which may be innocent or criminal, to murder. Aaron, supra, 409 Mich. at 714, 299 N.W.2d 304. Murder at common law is now known under our statutory scheme as the crime of second-degree murder. M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. Second-degree murder is committed only if the actor entertains one of three possible intents: the intent to kill, the intent to inflict great bodily harm, or the intent to create a very high risk of death or great bodily harm with the knowledge that death or great bodily harm will probably result. People v. Dykhouse, 418 Mich. 488, 495, 345 N.W.2d 150 (1984). In contrast, the statutory crime of first-degree premeditated murder is committed only if the defendant entertains the intent to kill, which must be...