People v. Oster

• Citation: 241 N.W.2d 260,67 Mich.App. 490
• Decision Date: 26 February 1976
• Docket Number: Docket No. 23270
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Charles OSTER, Defendant-Appellant. 67 Mich.App. 490, 241 N.W.2d 260
• Court: Court of Appeal of Michigan — District of US

Page 260

241 N.W.2d 260

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Charles OSTER, Defendant-Appellant.

Docket No. 23270.

67 Mich.App. 490, 241 N.W.2d 260

Court of Appeals of Michigan.

Feb. 26, 1976.

Released for Publication May 5, 1976.

[67 MICHAPP 493] Campbell, Kurzman, Leitman, Plunkett & Roggenbaum, by Bruce T. Leitman, Bloomfield Hills, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.

Before KAUFMAN, P.J., and T. M. BURNS and CAVANAGH, JJ.

T. M. BURNS, Judge.

Defendant was charged with open murder. M.C.L.A. § 750.316; M.S.A. § 28.548, M.C.L.A. § 750.317; M.S.A. § 28.549. On August 19, 1974, after a trial before the court, he was found guilty of voluntary manslaughter. Defendant was sentenced to 10 to 15 years in prison and appeals as of right.

Because of its bearing on the issues raised in this appeal, an extended relation of the evidence presented at the preliminary examination is required. The testimony indicated that defendant and Alan Goodman were present at a party at the home of the parents of Diane Cohn, defendant's girl friend. It is undisputed that defendant stabbed Goodman during an altercation and that Goodman later died from the stab wounds.

Miss Cohn testified that before the fight occurred, she and defendant were preparing to leave the party. Defendant put his arm around her and she pushed him away. Witnessing this, Goodman told [67 MICHAPP 494] defendant to leave her alone. Defendant informed Goodman, in effect, that it was all right because she was his girl friend. Miss Cohn also told Goodman that it was alright. At that point, Goodman pushed the defendant and lunged at him.

Another witness testified that he saw the two men wrestling and pushing each other. He then saw Goodman throw defendant up a stairway, leaving defendant sprawled out on the stairs. Defendant then pulled a knife out of a pouch on his belt, leaped down on the stairs, and stabbed Goodman several times. The witness approximated that five seconds had elapsed between the time that Goodman had pushed defendant onto the stairway and the time that defendant stabbed Goodman. There were three stab wounds in Goodman's chest and two in his back.

Another witness testified that although he did not see who started the fight, he did see that prior to the stabbing, Goodman hit defendant in the eye and that the eye began to bleed.

It appears from the testimony that Goodman was a good sized young man standing over 6 5 in height and weighing 220 lbs.

After hearing the evidence, the magistrate found that the crime charged had been committed and that there was probable cause that defendant committed that crime. More specifically, he found that all the elements of open murder were present, that there was premeditation or malice aforethought and that there was no self-defense involved. The case was then ordered bound over to circuit court on the open charge of murder. Defendant filed a motion to quash the information alleging in part that no proof of premeditation or deliberation was presented at the preliminary hearing and that the examining magistrate had thus abused his discretion[67 MICHAPP 495] in binding the case over on a charge of open murder, which included first-degree murder. This motion was denied.

Defendant then filed a written waiver of jury trial in which he stated that he was waiving such because of the erroneous denial of his motion to quash, which would force him to take a substantial risk that a jury, untrained in the law, would convict him of first-degree murder.

At the close of the People's case at trial, the court dismissed the first-degree murder charge.

In this appeal of his voluntary manslaughter conviction defendant raises two issues, neither of which demonstrate reversible error in the courts below.

Did the examining magistrate abuse his discretion in binding defendant over to the circuit court for trial on an open charge of murder?

Defendant argues that the prosecutor failed to prove at the preliminary examination that either first- or second-degree murder had been committed.

It is axiomatic that at the preliminary examination the prosecutor must show that the offense charged has been committed. While positive proof of guilt is not required, People v. Martinovich, 18 Mich.App. 253, 257, 170 N.W.2d 899 (1969), there must be evidence on each element of the crime charged or evidence from which those elements may be inferred, including premeditation where the charge is first-degree murder. People v. Juniel, 62 Mich.App. 529, 536, 233 N.W.2d 635 (1975). In the instant case, the magistrate did find that there was premeditation or malice aforethought. The magistrate's determination of such will not be upset on appeal unless clear abuse of discretion is demonstrated. People v. Juniel, supra.

[67 MICHAPP 496] It must be remembered that it is not the function of the examining magistrate to carefully weigh the evidence and discharge the accused when the evidence conflicts or raises a reasonable doubt of his guilt; such questions should be left for the jury. People v. Medley, 339 Mich. 486, 64 N.W.2d 708 (1954). The evidence presented at the examination showed that defendant stabbed Goodman with a knife and that Goodman died as a result. This clearly is sufficient to bind defendant over on a second-degree murder charge, as the malice necessary for that charge may be presumed from the use of a deadly weapon to perpetrate the killing. People v. Juniel, supra, People v. Wright, 25 Mich.App. 499, 181 N.W.2d 649 (1970), Lv. den., 384 Mich. 804 (1971).

Defendant's argument that the inference of malice was negated by provocation is inapposite. That is not a question for the examining magistrate. Defendant would expand the function of magistrate to trial judge and jury. Binding defendant over on a second-degree murder charge would not have been a clear abuse of discretion.

Binding defendant over on first-degree murder is a neater question. Whether there was evidence presented at the preliminary examination from which an inference of premeditation and deliberation in the killing can be drawn is the essential inquiry. This particular thought process is not easily defined, but our Supreme Court has phrased it in the following ways:

'(t)o think about beforehand '(t)o measure and evaluate the major facets of a choice or problem

[67 MICHAPP 497] '(a) thought process undisturbed by hot blood

'(t)he interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a 'second look'.' People v. Vail, 393 Mich. 460, 468--469, 227 N.W.2d 535 (1975).

Premeditation can be inferred from various kinds of evidence, such as the prior relationships between the parties, whether the murder weapon had been acquired or positioned in preparation for the homicide, the immediate circumstances of the killing, and the defendant's post-homicide conduct. People v. Berthiaume, 59 Mich.App. 451, 459, 229 N.W.2d 497 (1975), People v. Morrin, 31 Mich.App. 301, 328--330, 187 N.W. 434 (1971). We have noted in the past that evidence sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: evidence which shows that the defendant had been engaged in planning the killing, evidence establishing a motive for the killing, and evidence that the nature of the killing was such that the defendant must have intentionally killed according to a preconceived design to take his victim's life in a particular way.

Reviewing the evidence presented at the preliminary examination and weighing it against the above guidelines, we can only conclude that the magistrate's finding of premeditation or deliberation was clearly erroneous. There was no evidence of planning or motive; indeed, it appears that defendant and Goodman were total strangers. The...