People v. Johnson, Docket No. 45945

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: WALSH
• Citation: 105 Mich.App. 498,307 N.W.2d 357
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael JOHNSON, Defendant-Appellant.
• Docket Number: Docket No. 45945
• Decision Date: 21 April 1981

Page 357

307 N.W.2d 357 105 Mich.App. 498 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Michael JOHNSON, Defendant-Appellant. Docket No. 45945. Court of Appeals of Michigan. April 21, 1981.
Released for Publication July 2, 1981.

Page 358

[105 Mich.App. 500] George S. Buth, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David Sawyer, Pros. Atty., Carl S. Irons, Asst. Pros. Atty., for plaintiff-appellee.

Before MacKENZIE, P. J., and ALLEN and WALSH, JJ.

WALSH, Judge.

Defendant appeals from a jury conviction of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549.

Defendant was charged with the murder of Reverend Robert Lowe in Grand Rapids, Michigan. At trial, the prosecution established that the victim was killed either late Sunday night, May 7, 1978, or the following Monday morning. The deceased's body was found hidden under a rug in a small storage room in the basement of his residence. The room had been bolted shut and a large cardboard box was placed in front of the door. The pathologist stated that the victim was shot twice with a .22-caliber handgun. Reverend Lowe sustained bullet wounds in his arm and his head, the latter causing his death.

Defendant, who had known Reverend Lowe for some time, was apprehended in Tennessee on May 12, 1978. He had in his possession the victim's car and clothing. A radio and a tape recorder were found inside the vehicle. Defendant gave three statements

Page 359

[105 Mich.App. 501] to police officers who questioned him at various times. Defendant first stated that while he was at Reverend Lowe's residence on Sunday night, May 7, 1978, a third individual arrived at the house. Defendant said that as the two men argued about a debt the Reverend owed the other man, he left the house in the Reverend's car which had been lent to him.

Defendant's second statement presented a completely different version of events. Defendant stated that he was in Reverend Lowe's bedroom, where the Reverend made a lewd suggestion to him. Defendant refused to comply. After adjusting a television set, defendant turned to face Reverend Lowe who was now pointing a .38-caliber revolver at him. Defendant then kicked the Reverend's hand, pulled a .22-caliber pistol from his hip pocket and fired at the victim's arm. Because Reverend Lowe still held the gun, defendant covered his face or eyes with his elbow and shot straight at Reverend Lowe. Defendant thought that he had killed the Reverend. He then carried the victim to the basement of the house and hid the body underneath a rug. Defendant drove away in Reverend Lowe's car, which already contained the Reverend's clothes, radio and tape recorder. He threw the .22-caliber pistol away along the highway and he sold the Reverend's .38-caliber gun to a man in Louisville, Kentucky.

In a third statement, defendant repeated the essentials of his original story and denied any involvement in the killing. Defendant admitted that he had taken a color television set from Reverend Lowe's residence and sold it in Indianapolis, Indiana, for $100.

The case was submitted to the jury with instructions allowing a verdict of murder in the first [105 Mich.App. 502] degree, second degree, manslaughter or not guilty. Defendant was found guilty of second-degree murder and was sentenced to life imprisonment.

Defendant first claims that the examining magistrate abused his discretion in binding defendant over on an open murder charge because there was no evidence of premeditation and deliberation aliunde his confession.

A magistrate's determination of probable cause will not be reversed on appeal absent a clear abuse of discretion. People v. Johnson, 93 Mich.App. 667, 287 N.W.2d 311 (1979); People v. Juniel, 62 Mich.App. 529, 233 N.W.2d 635 (1975).

Since the ultimate finding as to degree is for the jury, a magistrate is not required to specify the degree of murder charged. People v. Spalla, 83 Mich.App. 661, 665, 269 N.W.2d 259 (1978). However, the corpus delicti of first-degree murder must be established by evidence aliunde a defendant's confession. People v. Allen, 390 Mich. 383, 212 N.W.2d 21 (1973). First-degree murder is second-degree murder plus an added element, either premeditation or the perpetration or attempt to perpetrate an enumerated felony. People v. Carter, 395 Mich. 434, 437, 236 N.W.2d 500 (1975). Therefore, in order to support a charge of first-degree murder at the preliminary examination, the prosecution need only present sufficient evidence on one of the factors that elevates an otherwise second-degree murder to the crime of murder in the first degree.

In the instant case, the magistrate found sufficient evidence of first-degree murder felony. ¹ We find no abuse of discretion in this finding. The evidence introduced at the preliminary examination[105 Mich.App. 503] aliunde defendant's statements supported the conclusion that a murder had been committed during the perpetration of a robbery. The Reverend Lowe's bedroom was left in disarray, with a stereo and television set missing. Defendant had in his possession the Reverend's automobile, radio, tape recorder and some items of personal clothing. This evidence was sufficient to bind the defendant over for trial on an open charge of murder.

Page 360

Having found sufficient evidence to bind defendant over on the open charge of murder, we likewise reject defendant's claim that the court erred in refusing to quash the information.

At trial, the prosecution abandoned its pursuit of first-degree murder felony and, instead,...