People v. Glover

Decision Date29 December 1986
Docket NumberNo. 82055,82055
Citation154 Mich.App. 22,397 N.W.2d 199
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alfred GLOVER, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy H. Baughman, Deputy Chief, Civil and Appeals, and Jan J. Raven, Asst. Pros. Atty., for people.

James R. Neuhard, State Appellate Defender by Peter Jon Van Hoek, Detroit, for defendant-appellant.

Before CYNAR, P.J., and WAHLS and BORRADAILE *, JJ.

BORRADAILE, Judge.

Defendant was charged with first-degree murder and felony-firearm. Following a jury trial during September of 1984 in Detroit Recorder's Court, defendant was convicted of voluntary manslaughter and was found not guilty of the felony-firearm count. He was sentenced to a term of ten to fifteen years and appeals as of right.

Defendant raises a number of questions: whether the preliminary examination testimony was insufficient to bind the defendant over for trial on the charge of first-degree murder; whether the trial court should have instructed the jury on the law pertaining to accidental killing in the absence of a request; whether there was inadequate representation by counsel at trial; whether a struck jury method of selecting the jury was used; and whether the sentencing judge ignored the jury verdict of acquittal of first-degree murder. We reverse and remand for new trial on the issue of the instruction.

I

Defendant claims that there was no evidence at the preliminary examination which would allow a rational trier of fact to find premeditation and deliberation, elements essential to a conviction of first-degree murder. Only two cases cited by appellate counsel in support of the issue are preliminary examination cases, those being People v. Doss, 406 Mich. 90, 276 N.W.2d 9 (1979), and People v. Oster, 67 Mich.App. 490, 241 N.W.2d 260 (1976). All other cases cited are trial issue cases and not applicable to the question raised in this particular case.

At the preliminary examination, Evelyn Waiters, sister of the decedent, John Taylor, testified that she was in her back yard watering her garden when she saw her brother and defendant standing at the side of the house, arguing loudly. Taylor's girlfriend, Brenda Thomas, was outside the gate. Waiters went to talk to Thomas and found out that defendant was her ex-boyfriend. Defendant had a gun in his hand, but Waiters did not know where it came from. At one point defendant threatened to shoot her if she did not go in the house.

Waiters further testified that, as she walked into the house, she heard what she thought was defendant slapping Taylor in the head with the gun. She turned around and saw Taylor on the ground, holding his head. Waiters called the police; but, before she got off the phone, she heard what sounded like a gunshot and then heard a car as it sped off. She saw her brother come in the side door and fall. On cross-examination, she testified that her brother did not have a gun in the house and she did not know whether he had advanced upon or threatened defendant prior to the shooting. She said that there had been various garden tools on the side of the house. On redirect examination, she testified that she never saw a weapon in her brother's hand and that there were no tools in the area where her brother had been standing.

The next witness, Melissa Woods, a neighbor of Waiters, testified that she heard an argument outside and went to her porch to see what was happening. Two men were arguing across the street at Waiters's residence, one outside the fence and one inside the fence. She had seen the man inside the fence, but did not know his name. She identified defendant as the man standing outside the fence. She saw defendant reach over and hit the man inside the fence, who fell. Defendant turned as if to walk away, reached into his shorts, pulled out a gun, and fired at the other man from a distance of about four or five feet. She did not recall seeing anything in the decedent's hands. On cross-examination, she testified that she had never seen the defendant before the night of the incident, that the incident took place about thirty to fifty feet from where she had been standing, and that she saw defendant's face only briefly during the argument, which lasted approximately twenty minutes. She saw no tools in the yard and could not hear what defendant was saying because he was speaking very softly and Taylor was talking louder.

The prosecutor moved to bind the defendant over on first-degree murder and felony-firearm. Defense counsel objected to the bindover on the murder charge, arguing that the testimony had shown that there was a loud, angry argument between defendant and Taylor, which demonstrated "hot blood" on the part of defendant which would mitigate first-degree murder to manslaughter.

The examining magistrate stated:

"The Court finds, from the testimony offered today, that there was time for him to reflect. The one witness testified that he threatened her with a gun and told her to go in the house and that she saw her brother on the ground after hearing a noise. And the other witness testified that she also saw the victim being knocked to the ground. And that was enough time to reflect and to walk away, but instead he used the gun.

"And the Court finds from the testimony offered today, that the People have sustained their burden on both counts. And the Court finds that the People have proven each and every element of both the counts. And the Court finds that the crime, murder I, feloniously deliberately with malice of forethought and with premeditation to kill one, John Taylor, contrary to Section 750.316 M.C.L.A., and Count II, did then and there carry or have possession of a firearm in the commission or attempt to commit a felony to wit: Murder First Degree contrary to M.C.L.A. 750.277(d).

"The Court finds that both of these Counts were committed in the City of Detroit. And from the testimony offered today, the Court finds there is probable cause to believe the Defendant committed both counts. The Defendant, therefore, shall be bound over for trial on the Counts contained in the complaint and warrant to Recorder's Court."

The standard for review of a magistrate's judgment in binding a case over for trial is set forth in People v. Grihm, 148 Mich.App. 285, 289-290, 383 N.W.2d 631 (1986):

"It is well established that a reviewing court may not properly substitute its judgement for that of the magistrate, but may reverse only if it appears on the record that there has been an abuse of discretion. People v. Talley, 410 Mich 378, 385; 301 NW2d 809 (1981). People v. Shipp, 141 Mich App 610, 612; 367 NW2d 430 (1985). However, the 'judgment' of the magistrate in this context is directed to findings of fact. Talley, supra, [410 Mich. at] p. 386 . It is the duty of the magistrate to bind the defendant over for trial if it appears at the conclusion of the preliminary examination that a crime has been committed and there is probable cause to believe that the defendant committed it. MCL 766.13; MSA 28.931. See also People v Doss, 406 Mich 90, 100; 276 NW2d 9 (1979). If evidence conflicts or raises a reasonable doubt of a defendant's guilt, such questions should be left for the jury upon trial. Doss, supra, p 103 ; Shipp, supra, [141 Mich.App. at] p 613 ."

Premeditation and deliberation require that there be a thought process undisturbed by hot blood and, although the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable person time to subject the nature of the response to a second look. People v. Morrin, 31 Mich.App. 301, 329-330, 187 N.W.2d 434 (1971), lv. den. 385 Mich. 775 (1971). In People v. Tilley, 405 Mich. 38, 44-45, 273 N.W.2d 471 (1979), the Supreme Court noted that there was a sufficient interval of time to reflect where a codefendant's resistance led to an argument and scuffle during which defendant obtained possession of a police officer's gun. In that case, sufficient time for premeditation and deliberation was found, based on evidence revealing that the defendants were in control of the situation, that there was a delay of one second to one minute between securing possession of the gun and firing, and that Tilley fired a second volley of gunshots at a retreating officer.

The magistrate's finding is supported by testimony at the preliminary examination. There was testimony that the defendant started to walk away and then turned around and shot Taylor, sufficient evidence to show the element of premeditation and deliberation to support the magistrate's bindover. While the time involved was only a few seconds, that is still sufficient time for the "second look" required by Morrin, supra. While the testimony may raise a strong possibility that there was provocation, which would negate the premeditation and deliberation requirement, the fact that evidence conflicts or raises a reasonable doubt as to a defendant's guilt is an issue left for the jury. Doss, supra.

The trial judge properly denied defendant's pretrial motion to quash.

II

The second question raised by defendant is that the trial court committed reversible error by failing sua sponte to instruct the jury with respect to the law applicable to defendant's theory that the killing was accidental. A review of the jury instructions shows that the trial court instructed the jury on first-degree and second-degree murder, voluntary and involuntary manslaughter, and careless and negligent use of a firearm which results in death, but gave no instructions on the theories of the parties or defenses. In closing argument, defense counsel argued that the jury should not convict defendant as charged, but rather of either...

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