People v. Neal

• Decision Date: 04 October 1993
• Docket Number: Docket No. 147741
• Citation: 201 Mich.App. 650,506 N.W.2d 618
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerome Garcia NEAL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 618

506 N.W.2d 618

201 Mich.App. 650

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerome Garcia NEAL, Defendant-Appellant.

Docket No. 147741.

Court of Appeals of Michigan.

Submitted July 7, 1993, at Lansing.

Decided Oct. 4, 1993, at 9:20 a.m.

Released for Publication Nov. 5, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Carl J. Marlinga, Pros. Atty., Robert J. Berlin, Chief Appellate Lawyer, and Steven Kaplan, Asst. Pros. Atty., for the People.

Mark J. Swanson, Mt. Clemens, for the defendant-appellant.

Before MacKENZIE, P.J., and RICHARD ALLEN GRIFFIN and CAHALAN, ^* JJ.

RICHARD ALLEN GRIFFIN, Judge.

Defendant appeals by leave granted an order of the Macomb Circuit Court reversing the decision of the 42-1 District Court to bind over defendant on a charge of voluntary manslaughter rather than second-degree murder. We reverse and reinstate the voluntary manslaughter charge.

I

This case arises out of an ugly racial incident that led to the tragic shooting death of Larry Heyd by defendant. Defendant was initially charged with second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2), and carrying a concealed weapon, M.C.L. § 750.227; M.S.A. § 28.424. At the conclusion of the preliminary examination, the district court bound over defendant on charges of felony-firearm, carrying a concealed weapon, and the lesser offense of voluntary manslaughter, MCL 750.321; MSA 28.553. The examining magistrate found that "this was [not] a conscious effort by [defendant] to cause the death of an individual." On appeal by the people, the circuit court reversed the district court's decision to reduce the charge from second-degree murder to voluntary manslaughter. The circuit court concluded that the district court abused its discretion in refusing to bind over defendant on the charge of second-degree murder because there was conflicting evidence whether defendant acted with malice. After thorough review, we disagree.

II

The testimony at the preliminary examination established that defendant and three companions attended the Richmond Good Old Days Fair in Macomb County on the evening of September 8, 1991. While at the fair, the group engaged in a conversation with a school friend, Kevin Kazmierczak. During the conversation, they were joined by Kazmierczak's cousin, Robert Kazmierczak. Robert demanded to know from Kevin whether defendant and his companions had been involved in a fight the previous night in which Robert had been beaten up by a black male. Although Robert was informed of their noninvolvement, he became enraged when one of the youths started laughing and invited them to leave the fairgrounds, apparently to fight. Defendant then allegedly lifted his shirt to reveal a silver handgun lodged in the front of his pants. Robert and two friends and defendant and his companions left the fairgrounds. Once outside, the decedent, Larry Heyd, attacked one of defendant's friends. The altercation attracted a large group of white youths. There is also testimony that defendant then waved a handgun at the gathering crowd and ordered them to stay back before he turned and fled with his companions. One person in the crowd began yelling "Run, nigger, run." Apparently, at this point the crowd began to give chase.

After the group ran approximately three hundred yards to the top of a hill, defendant fired two warning shots into the air. One of the pursuers yelled that defendant's gun was a "fake." The crowd then resumed chasing defendant for approximately one-quarter to one-half mile until they reached a trailer park. The decedent caught up to defendant in the trailer park and was thereafter shot by defendant. Apparently, only a small number of pursuers had reached the trailer park at the time of the shooting. Although the witnesses agreed that defendant shot the decedent only after warning him that he did not want to shoot, there was conflicting testimony regarding whether the decedent was advancing or turning slightly away from defendant at the time the actual shot was fired.

III

Defendant's sole claim on appeal is that the circuit court erred in reversing the district court's dismissal of the second-degree murder charge when the evidence presented at the preliminary examination failed to establish that defendant acted with malice. We agree.

Generally, we apply the same standard on review as applied by the circuit court in reviewing a district court's decision to bind over a defendant. People v. Thomas, 438 Mich. 448, 452, 475 N.W.2d 288 (1991); People v. Etheridge, 196 Mich.App. 43, 54, 492 N.W.2d 490 (1992). In assessing the circuit court's decision to reverse the district court's decision, we must determine whether the district court abused its discretion in concluding that there was not probable cause to believe defendant committed second-degree murder. People v. Fiedler, 194 Mich.App. 682, 692-693, 487 N.W.2d 831 (1992); People v. Flowers, 191 Mich.App. 169, 174, 477 N.W.2d 473 (1991).

A death caused by a defendant with malice and without justification or excuse is second-degree murder. People v. Spearman, 195 Mich.App. 434, 438, 491 N.W.2d 606 (1992). Malice requires an intent to kill, an intent to do great bodily harm, or an intent to create a high risk of death or great bodily harm with knowledge that such is the probable result. People v. Wofford, 196 Mich.App. 275, 278, 492 N.W.2d 747 (1992). Further, malice must be established from facts or circumstances that do not mitigate the degree of the offense to manslaughter or constitute an excuse or justification. People v. Porter, 169 Mich.App. 190, 193, 425 N.W.2d 514 (1988).

The examining magistrate must bind over a defendant for trial if it appears that "a felony has been committed and there is probable cause for charging the defendant therewith." M.C.L. § 766.13; M.S.A. § 28.931; People v. Hill, 433 Mich. 464, 469, 446 N.W.2d 140 (1989). Our Supreme Court in People v. King, 412 Mich. 145, 154, 312 N.W.2d 629 (1981), addressed the relevant scope of inquiry by the magistrate in making the probable cause determination:

The inquiry is not limited to whether the prosecution has presented evidence on each element of the offense. The magistrate is required to make his determination "after an examination of the whole matter." Although the prosecution has presented some evidence on each element, if upon an examination of the whole matter the evidence is insufficient to satisfy the magistrate that the offense charged has been committed and that there is probable cause to believe that the defendant committed it, then he should not bind the defendant over on the offense charged but may bind him over on a lesser offense as to which he is so satisfied.

See also People v. Stafford, 434 Mich. 125, 133, 450 N.W.2d 559 (1990).

Accordingly, in making this determination, mitigating evidence, including evidence of provocation, must be considered by the magistrate. King, supra 412 Mich. at 154, 312 N.W.2d 629; Stafford, supra 434 Mich....