People v. Gonzalez, Docket No. 101803

• Decision Date: 30 August 1989
• Docket Number: Docket No. 101803
• Citation: 178 Mich.App. 526,444 N.W.2d 228
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jesus GONZALEZ, Defendant-Appellant. 178 Mich.App. 526, 444 N.W.2d 228
• Court: Court of Appeal of Michigan — District of US

Page 228

444 N.W.2d 228

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jesus GONZALEZ, Defendant-Appellant.

Docket No. 101803.

178 Mich.App. 526, 444 N.W.2d 228

Court of Appeals of Michigan.

Submitted March 15, 1989.

Decided July 18, 1989.

Released for Publication Aug. 30, 1989.

[178 MICHAPP 528] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William A. Forsyth, Pros. Atty., and Timothy K. McMorrow, Chief Appellate Atty., for the People.

Howard & Quinn, P.C. by Michael B. Quinn, Grand Rapids, for defendant-appellant on appeal.

Before WEAVER, P.J., and MURPHY and GRIFFIN, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was sentenced to life imprisonment without parole and two years imprisonment on the felony-firearm conviction. Defendant now appeals as of right and we affirm.

On July 6, 1986, at approximately 2 a.m., police officers were dispatched to My Place bar on South Division in Grand Rapids. There, in the parking lot, they found the body of Nathan Jaramillo. About fifty people were milling around the parking lot.

On the night of the shooting, defendant, Chris Guy, Patrick Jones and Joe Cedillo had been driving[178 MICHAPP 529] around town drinking beer, smoking marijuana and talking. They ended up at My Place where defendant saw his girl friend, Melinda Rodriquez.

Melinda testified that she came out of the bar into the back parking lot to talk with defendant. She hugged him and did not feel a gun. As far as she knew, he did not own one. Jaramillo had told her that he was going to "get" defendant. Melinda passed this information on to defendant. She had seen Jaramillo with a gun in his car and she also saw him carry a gun in his coat pocket.

Security guard Pablo Angiano testified that he saw defendant and Jaramillo arguing in the parking lot. Eventually, they began fighting, with Jaramillo apparently in control of the fight. Another person ran up and hit Jaramillo in the head with a gun, knocking him off defendant. The gun handle broke off, and the third person aimed the gun at Jaramillo, who ducked. Angiano saw defendant get up off the ground with a gun in his hand. Angiano heard gunshots and then saw Jaramillo fall down. Angiano said that defendant fired two shots, took a couple of steps forward, fired another shot and then took off running.

Douglas VanTuinen, a customer at the bar, testified that he watched defendant and Jaramillo argue and then fight. Jaramillo was winning when another man ran past VanTuinen and hit Jaramillo with a gun, knocking him off defendant. The other man fired a shot a Jaramillo. VanTuinen saw defendant holding a gun, take a few steps and shoot Jaramillo. He assumed that defendant had pulled the gun from his waistband.

Defendant testified in his own behalf. He stated that on July 5, 1986, he drank beer and socialized at his father's birthday party. He then rode around town with his friends. He went to the My [178 MICHAPP 530] Place bar to see his girl friend, Melinda, and spoke with her. Jaramillo drove up after he finished talking to Melinda and he and Jaramillo began to argue. They began to fight, with defendant ending up on the ground. Defendant claimed that Jaramillo reached inside his belt for a gun and defendant tried to grab it. Jaramillo suddenly got off defendant. Defendant then heard someone say "he's got a gun" and heard a shot. Defendant then shot twice at Jaramillo because he thought Jaramillo was trying to kill him. He denied any plan to fight with or to kill Jaramillo.

The jury found defendant guilty of first-degree murder and felony-firearm. Defendant was acquitted of a charge of carrying a concealed weapon. Defendant then filed a motion for a new trial or judgment notwithstanding the verdict. Defendant claimed that the verdict was against the great weight of the evidence because the evidence did not show premeditation and deliberation. After conducting a hearing, the lower court denied defendant's motion. Defendant now appeals as of right raising numerous issues.

Defendant first contends that the prosecutor did not present sufficient evidence of premeditation and deliberation to support his bindover from district court to circuit court on a charge of open murder. We disagree.

M.C.L. Sec. 766.13; M.S.A. Sec. 28.931 requires the magistrate to bind over a defendant if it appears, after a preliminary examination, that a crime has been committed and there is probable cause to believe that the defendant committed it. People v. Martin, 150 Mich.App. 630, 634, 389 N.W.2d 713 (1986). Proof beyond a reasonable doubt of each element is not required. People v. McManus, 121 Mich.App. 380, 385, 328 N.W.2d 636 (1982), lv. den. 417 Mich. 1100.4 (1983). This Court will not substitute its [178 MICHAPP 531] judgment for that of the magistrate but may reverse only if it appears that the magistrate abused his discretion. People v. Talley, 410 Mich. 378, 385, 301 N.W.2d 809 (1981).

We note that there is some dispute whether it is necessary for the prosecutor to present evidence of premeditation and deliberation at the preliminary examination where the defendant is charged with open murder. In People v. Johnson, 427 Mich. 98, 108, 398 N.W.2d 219 (1986), Justice Boyle opined that those elements need not be proven. In analyzing the open murder statute, M.C.L. Sec. 767.71; M.S.A. Sec. 28.1011, she concluded that the Legislature had no intention of requiring proof of premeditation and deliberation at the preliminary examination. Justice Boyle's opinion was joined by Justices Brickley and Riley. Justice Williams' concurring opinion is not clear as to whether he agreed with Justice Boyle on this matter. However, we need not resolve this issue in this case because we are satisfied that even if deliberation and premeditation were required to be shown by the prosecutor at this stage, the burden was met.

The security guard testified at the preliminary examination that defendant and the victim were fighting when defendant produced a gun. He further testified that the victim began to "duck walk," apparently in an attempt to flee into the bar, and that defendant took a few steps and shot the victim two times.

Premeditation and deliberation require sufficient time to allow the defendant to take a second look at his actions. People v. Tilley, 405 Mich. 38, 44-45, 273 N.W.2d 471 (1979). This time interval may be minimal. Id. Based upon our review of the record, we are satisfied that defendant was properly bound over on a charge of open murder. There was no abuse of discretion.

[178 MICHAPP 532] Defendant next contends that his conviction is against the great weight of the evidence. An objection going to the weight of the evidence can be raised only by a motion for a new trial. On appeal, this Court reviews a denial of such a motion for abuse of discretion. People v. Bradshaw, 165 Mich.App. 562, 565, 419 N.W.2d 33 (1988). An abuse will be found only where the trial court's denial of the motion was manifestly against the clear weight of the evidence. Id.

After thoroughly reviewing the evidence produced at trial, we find no abuse of discretion in the lower court's denial of defendant's motion.

Defendant next argues that the evidence produced at trial was insufficient to establish beyond a reasonable doubt the necessary elements of premeditation and deliberation. We disagree.

This Court in People v. Furman, 158 Mich.App. 302, 308, 404 N.W.2d 246 (1987), lv. den. 429 Mich. 851 (1987), reiterated the standard for reviewing a sufficiency of the evidence claim as it relates to a first-degree murder charge by stating:

When reviewing a claim of insufficient evidence, we review the record to determine whether sufficient evidence was introduced to justify a trier of fact in reasonably concluding that the defendant is guilty beyond a reasonable doubt. People v. Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), cert den sub nom Michigan v. Hampton, 449 US 885 [101 S.Ct. 239, 66 L.Ed.2d 110] (1980). To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. People v. Vail, 393 Mich 460, 468; 227 NW2d 535 (1975), quoting People v. Morrin, 31 Mich App 301; 187 NW2d 434 (1971). Premeditation and deliberation characterize a thought process undisturbed by hot blood. Vail, supra. While the minimum length of time needed to exercise this process is incapable of exact determination, a sufficient interval between [178 MICHAPP 533] the initial thought and the ultimate action should be long enough to afford a reasonable man an opportunity to take a "second look" at his contemplated actions. Vail, supra, [393 Mich. at] p 469 . See, also, People v. Tilley, 405 Mich 38, 45; 273 NW2d 471 (1979).

Premeditation and deliberation need not be established by direct evidence, but may be inferred from all the facts and circumstances established on the record. People v. Hoffmeister, 394 Mich 155, 158-159; 229 NW2d 305 (1975), reh den 394 Mich 944 (1975); People v. Conklin, 118 Mich App 90, 93; 324 NW2d 537 (1982). Evidence of the following nonexclusive factors may establish premeditation: (1) the previous relationship of the parties; (2) the defendant's actions prior to the actual killing; (3) the circumstances of the killing itself; and (4) the defendant's conduct after the homicide. People v. Johnson, 93 Mich App 667; 287 NW2d 311 (1979).

The facts of this case are surprisingly similar to those in Tilley, supra. In Tilley, there was a fight between the victim and the defendant that broke out and ended quickly. Here, the fight lasted only a few minutes. In Tilley...