People v. Tilley
| Decision Date | 10 January 1979 |
| Docket Number | Docket No. 58985,No. 19,19 |
| Citation | 273 N.W.2d 471,405 Mich. 38 |
| Parties | The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis Edwin TILLEY, Defendant-Appellant. Calendar405 Mich. 38, 273 N.W.2d 471 |
| Court | Michigan Supreme Court |
F. Lee Bailey, Boston, Mass., Ellen H. Witt Nederlander, Dodge & McCauley, P.C., Detroit, for defendant-appellant, Dennis Edwin Tilley; Kenneth J. Fishman, Boston, Mass., on the brief.
William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, Craig L. John, Asst. Pros. Atty., Detroit, for plaintiff-appellee.
The principal issue in this case was whether the jury could properly find first-degree murder, premeditation and deliberation, from the evidence presented. The defendant, Mr. Tilley, was charged with the first-degree murder of Mr. Mickel, an off-duty sheriff's deputy. The shooting followed an altercation outside a restaurant. During the struggle the defendant obtained possession of Mickel's gun. Five or six shots were fired by the defendant at Mickel, some in the parking lot, and others in the vestibule of the restaurant where the victim had retreated.
The defendant was convicted by a jury of first-degree murder. The Court of Appeals affirmed. 70 Mich.App. 18, 245 N.W.2d 389 (1976). We granted leave to appeal. We hold there was evidence upon which the trier of fact, the jury, could have based its verdict.
We affirm.
On Sunday, November 29, 1973, at approximately 2:30 a.m., the defendant entered the Nugget Restaurant. A friend of the defendant's, Mr. Moss, entered the restaurant and started an argument with the victim. At the time Mr. Mickel was wearing civilian clothes. Moss and Mickel left the restaurant followed by Tilley and some other restaurant patrons. Once they were outside, the argument between Mickel and Moss continued. Moss pulled a gun from his pocket, which Mickel knocked to the ground. Mickel picked up Moss' gun and The crowd which had gathered questioned Mickel's authority. Mr. Toth, a restaurant bouncer, approached both men. Mickel showed Toth his badge and said he had everything under control. Toth went back into the restaurant and, as requested by Mickel, called the local police. The crowd continued to ask for Mickel's identification. Tilley began speaking to Mickel in a taunting manner. This distraction enabled Moss to turn and jump Mickel, who then struck Moss with his gun hand. The three men, Tilley, Moss and Mickel, began to struggle, during which time Tilley obtained possession of Mickel's gun. One witness testified that after Tilley gained possession of the gun both Tilley and Moss held Mickel.
drew his own revolver; he placed Moss under arrest and identified himself as a Wayne County Sheriff's Deputy.
At this point Mickel began to back towards the restaurant. Tilley began shooting. Five or six shots were fired at Mickel. Some were fired in the parking lot, and others in the vestibule of the restaurant where Mickel had retreated with Tilley in pursuit.
The testimony of the witnesses varied as to the time lapse between Tilley obtaining possession of the gun and the first shots. There was also variation in the testimony as to the time lapse between the first and the final shots. The variance ranged from one second to one minute for each of the two intervals. There was also testimony presented that the defendant held the gun with two hands while pointing it at Mickel during the first volley, that he dropped his hands while running after Mickel and had to raise the gun in order to fire the final volley of shots.
We examine the totality of the circumstances to determine whether there is evidence to support the findings of the trier of fact; in particular whether the findings of premeditation and deliberation are supported.
In People v. Wolf, 95 Mich. 625, 55 N.W. 357 (1893), this Court did examine the circumstances surrounding a homicide in determining whether premeditation and deliberation were present. In People v. Bauman, 332 Mich. 198, 50 N.W.2d 757 (1952), the same type of factual analysis was reaffirmed. The majority of decisions by this Court involving first-degree murder have been based on such factual analyses of the totality of the circumstances.
A careful review of the testimony in this case persuades us that there was evidence to support the jury's verdict. For purposes of illustration we list several factors surrounding the homicide which support the jury's verdict. We do not intend to imply that any one particular factor is essential to a finding of premeditation and deliberation, but that only by reviewing the circumstances as presented through the testimony of the witnesses can a determination be made.
First, we realize when a homicide occurs during a sudden affray this Court has found that it would be "a perversion of terms to apply the term deliberate to any act which is done on a sudden impulse", Nye v. People, 35 Mich. 16, 19 (1876). In this case the testimony presented allows the jury to find that the fighting had ended when (1) Tilley obtained possession of the gun or (2) Mickel began retreating. There was also testimony that Tilley and Moss were in control of the situation, holding Mickel, before Tilley started shooting.
A second consideration is the time required to premeditate and deliberate. In People v. Vail, 393 Mich. 460, 227 N.W.2d 535 (1975), this Court said:
"While 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 man time to subject the nature of his There was an interval between Tilley securing possession of the gun and the first volley of shots as Mickel was retreating. The testimony presented various estimates of the time lapse ranging from one second to one minute.
response to a 'second look.' " Vail, 469, 227 N.W.2d 538. 1
Third, there was testimony that Tilley followed Mickel after the first volley of shots as Mickel continued retreating, creating a time lapse between the first and second volley. Witnesses also testified that after following Mickel through the doorway of the restaurant Tilley had to raise the gun before firing the second volley of shots.
We recognize that "(s)ome time span between initial homicidal intent and ultimate action is necessary to establish premeditation and deliberation", People v. Hoffmeister, 394 Mich. 155, 161, 229 N.W.2d 305, 308 (1975). The jury had evidence to support the conclusion that the defendant had ample opportunity to premeditate and deliberate.
In addition, there was testimony of another kind indicating premeditation and deliberation. It was that Tilley was holding the gun with two hands when he pointed it at Mickel.
Based on the facts of this case presented through the testimony of the witnesses, there was evidence to support the verdict of the jury.
We affirm the conviction of the defendant of first-degree murder.
The Court states, largely on the basis of Susan Primm's testimony, that the jury could conclude that Tilley and Moss held Mickel and had the situation under control and during that period Tilley had an opportunity to premeditate and deliberate.
Primm did not testify at the preliminary examination. The one witness who had observed the shooting did not testify to the length of time that elapsed between Tilley's recovery of the gun and the commencement of the shooting. It appears from his testimony that the action was continuous.
At the conclusion of the preliminary examination, Tilley's counsel stated that the evidence was insufficient to bind him over on a charge of first-degree murder. After he was bound over on that charge, a motion to quash was made in the circuit court on the same ground and was denied.
Deficiencies in the evidence at preliminary examination cannot be supplemented by evidence at the trial. 1 Where the defendant has so preserved the issue of insufficiency of the evidence at the preliminary examination, a conviction cannot stand.
Since there was sufficient evidence to bind Tilley over on a charge of second-degree murder, the prosecution need not be dismissed. His conviction should be reduced to second-degree murder. 2
The Court states: "One witness testified that after Tilley gained possession of the gun both Tilley and Moss held Mickel." "There was also testimony that Tilley and Moss were in control of the situation, holding Mickel, before Tilley started shooting." Those statements are apparently based on Primm's testimony that Tilley and Moss spread-eagled and held Mickel before Tilley started shooting. Primm was the sole witness of twenty-three who claimed that Tilley and Moss held and controlled Mickel before the shooting began. 3 Her testimony on this point was at odds with every other eye-witness account, and some of her other statements also were significantly different from testimony of other witnesses. 4
Be that as it may, Tilley raised and preserved the issue whether the trial judge erred in failing to grant his motion to quash or reduce the charge. In People v. Kennedy, 9 Mich.App. 346, 348, 155 N.W.2d 855, 856-857 (1968), the court declared:
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