People v. Waters

• Decision Date: 07 October 1982
• Docket Number: Docket No. 57047
• Citation: People v. Waters, 324 N.W.2d 564, 118 Mich.App. 176 (Mich. App. 1982)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronnie C. WATERS, Defendant-Appellant. 118 Mich.App. 176, 324 N.W.2d 564
• Court: Court of Appeal of Michigan

Page 564

324 N.W.2d 564

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronnie C. WATERS, Defendant-Appellant.

Docket No. 57047.

118 Mich.App. 176, 324 N.W.2d 564

Court of Appeals of Michigan.

Submitted May 13, 1982.

Decided July 19, 1982.

Released for Publication Oct. 7, 1982.

[118 MICHAPP 179] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and Lawrence J. Bunting, Asst. Pros. Atty., for the People.

Waterman, Curry & Stanley, Pontiac, for defendant-appellant.

Before ALLEN, P. J., and CYNAR and FALAHEE, ^* JJ.

CYNAR, Judge.

Following a nonjury trial held on February 5 through 9, 1981, defendant was convicted of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, assault with intent to murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and two counts of felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). On March 5, 1981, defendant was sentenced to a term of life imprisonment for murder, life for assault with intent to murder, and two years for each felony-firearm count. He appeals as of right.

Defendant was charged with the following offenses[118 MICHAPP 180] on May 7, 1980: open murder, M.C.L. Secs. 750.316; 750.317; M.S.A. Secs. 28.548, 28.549, assault with intent to murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and two counts of felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). A preliminary examination was held on August 18, 1980, in the Oakland County 48th District Court.

In this appeal, defendant raises two issues, each dealing with the correctness of the lower courts' findings of premeditation and deliberation. The first issue raises the question of whether the magistrate abused his discretion in failing to bind over defendant to the circuit court on the charge of first-degree murder. The second issue concerns the question of whether the trial court erred when it determined that sufficient evidence of premeditation and deliberation was introduced at trial.

At the preliminary examination, it was stipulated that Deborah Porcelli died on May 3, 1980, as a result of a gunshot wound to her head. The prosecution presented six witnesses. No testimony was presented in behalf of the defense.

Joseph Porcelli, the victim's husband, stated that he parked their green and white 1973 Monte Carlo five or six rows behind the concession stand at the Miracle Mile Drive-In on May 2, 1980. Near the end of the first show, he noticed five young black males walk past his car toward the restrooms in the rear of the concession stand. After standing near the restrooms for some time, smoking until the movie ended, the youths walked toward the back of the drive-in. As they passed the Porcelli car, three walked on the passenger's side and two went to the driver's side. One of the individuals, standing approximately 12 to 15 feet from the driver's side, looked at Porcelli and said: "Hey, man, you got a light?" Porcelli, who smokes, was not smoking at that time. The other person on [118 MICHAPP 181] the driver's side stood approximately 20 feet away. Porcelli, who was afraid because the car was surrounded, responded politely, "Sorry, I can't help you". As the inquirer walked away, Porcelli heard another voice utter, "You can help me". The next thing he saw, heard or felt, he was struck on the side of the head, fell across his wife's lap and he heard his wife scream.

Defendant's companions on May 3, 1980, Jessie Lee King, Michael Holmes, Richard Alston and Roderick Howard, each testified at the preliminary examination. King testified that he kept a .22-caliber pistol, which he called "Marv", in his desk drawer for the pistol's owner Holmes. On May 2, 1980, Holmes gave "Marv" to defendant to "style" for the evening. Defendant, King, Holmes, and Howard went to a Jefferson Junior High School dance, visited a McDonald's restaurant, and picked up Alston before arriving at the drive-in. There, they entered through a hole in the rear fence, proceeding to the concession stand. At the concession stand, the boys "messed around" for approximately one-half hour. While leaving the premises, they passed a green and white vehicle. Alston asked a man inside the automobile for a match. When the occupant responded that he could be of no help, the entire group walked away, except defendant, who was standing approximately eight feet from the car. Defendant said, "Can't have no match". Suddenly, King heard a shot, turned, heard another shot, and saw defendant with "Marv" drawn. According to King, defendant was eight feet from the car, holding the pistol with both hands. He stated that a "couple seconds" passed between the first and second shots. Holmes saw defendant draw the pistol and fire two shots in rapid succession into the vehicle's passenger [118 MICHAPP 182] compartment. Holmes thought that defendant held the gun with two hands. Alston also believed that defendant held the pistol with two hands. He began to run after the first shot, and heard the second shot being fired approximately four seconds later. Howard turned when he heard the shots, observing the driver's side window burst. However, he did not see the gun. The boys ran, escaped through the hole in the rear fence, and gathered at King's automobile. There, defendant stated that he did not mean to shoot; instead, he meant only to scare the couple. The following day, defendant phoned King and informed him that the lady had died. Later in the evening, King and Holmes tossed "Marv" into nearby Crystal Lake.

State Police Sergeant Michael C. Arrowood stated that it took between 10 and 11 pounds of pressure to pull the murder weapon's trigger (at trial, it was testified that by first cocking the trigger, the weapon could be fired with two to three pounds of pressure).

At the conclusion of the testimony at the preliminary examination, defendant contended that there had been no showing of premeditation and deliberation. The magistrate agreed, binding over defendant on a second-degree murder charge, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, assault with intent to murder, and two felony-firearm counts. On the appeal of the people to the circuit court the circuit judge overturned the magistrate's decision, reinstating the open murder count. Defendant contends the circuit court judge's decision constitutes reversible error. We disagree.

An examining magistrate is to bind a defendant over for trial if it appears that a crime has been committed and that there is probable cause to believe defendant committed it. M.C.L. Sec. 766.13; M.S.A. Sec. [118 MICHAPP 183] 28.931, People v. Asta, 337 Mich. 590, 609-610, 60 N.W.2d 472 (1953). While positive proof of guilt is not required, there must be evidence on each element of the crime charged or evidence from which those elements may be inferred. People v. Oster, 67 Mich.App. 490, 495, 241 N.W.2d 260 (1976), People v. Goode, 106 Mich.App. 129, 136, 308 N.W.2d 448 (1981). The magistrate is required to make his determination after an examination of the whole matter. People v. King, 412 Mich. 145, 154, 312 N.W.2d 629 (1981). Probable cause is defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged. People v. Dellabonda, 265 Mich. 486, 490, 251 N.W. 594 (1933). In reviewing the decision of a magistrate to bind over an accused person, a circuit court judge may not substitute his judgment for that of the magistrate, but may reverse a magistrate's decision only if it appears on the record that there has been an abuse of discretion. People v. Talley, 410 Mich. 378, 385, 301 N.W.2d 809 (1981), Genesee Prosecutor v. Genesee Circuit Judge, 391 Mich. 115, 121, 215 N.W.2d 145 (1974). Review is limited to the preliminary examination transcript. People v. Charles D. Walker, 385 Mich. 565, 572, 189 N.W.2d 234 (1971).

In People v. Morrin, 31 Mich.App. 301, 329-330, 187 N.W.2d 434 (1971), the elements of premeditation and deliberation were defined as follows:

"To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts have pointed out, premeditation and deliberation characterize a thought process undisturbed by hot blood. While the minimum time necessary to exercise this process is [118 MICHAPP 184] 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 response to a 'second look'." (Footnotes omitted.)

Accord, People v. Mullaney, 104 Mich.App. 787, 793, 306 N.W.2d 347 (1981).

We have carefully considered and distinguished the Supreme Court's recent decision in People v. King, supra, from the case at bar. There, the defendant was charged with first-degree murder. At the preliminary examination, both prosecution and defense presented evidence. The magistrate bound over defendant on the charge of manslaughter. After the circuit court found no abuse of discretion, the prosecutor appealed to this Court. In an unpublished opinion a Court of Appeals panel reversed, finding that the prosecutor had presented evidence on each element of first-degree murder. In reversing and remanding to the circuit court for further proceedings on the manslaughter charge, the Supreme Court determined that this Court's inquiry was too narrow and stated on page 154, 312 N.W.2d 629:

"Without regard to the defense's evidence of intoxication and provocation, the Court of Appeals found the prosecution had presented evidence on each element of first-degree murder and therefore found an abuse of discretion in the magistrate's failure to bind over on that charge. In so doing, the Court of Appeals too narrowly conceived the scope of the inquiry. The inquiry is not limited to whether the...