People v. Johnson

¶1Henry Johnson was bound over on an open charge of murder and later convicted by a jury of second-degree murder. On appeal before this Court, Mr. Johnson claims that the open murder charge violates constitutional guarantees of equal protection and due process. He also claims that evidence of premeditation and deliberation was both required and insufficient at the preliminary examination. Finally, Mr. Johnson argues that the trial court deprived him of the right to establish the defense of self-defense by disallowing his testimony concerning his fear and apprehension at the time of a fight.

¶2We would hold that no constitutional violation occurred as a result of the open charge of murder used in this case. We would further hold that proof of premeditation and deliberation need not be shown at a preliminary examination where a defendant is bound over on a charge of open murder. Given the clear statutory framework *102which establishes the open charge of murder, it would be inappropriate for this Court to impose by judicial decision a contrary requirement solely based upon our inherent power. Neither the federal nor the state constitution nor the statutes enacted by the Legislature require proof of premeditation and deliberation before bindover on an open charge of murder. Finally, we concur in Justice Archer’s disposition of defendant’s claim that his right to a fair trial was violated by the trial court’s failure to allow Mr. Johnson to freely describe his feelings and perceptions at the time of the fight. Therefore, we would affirm the decision of the Court of Appeals.

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¶4PACTS

¶5Defendant was bound over on an open charge of murder and convicted by jury of second-degree murder. The events leading up to this case are set forth in the unpublished opinion of the Court of Appeals:

In the early hours of July 9, 1983, defendant, and his friend Michael Crater, drove to the apartment of Barbara Reed in Ionia, Michigan. Upon arrival, they found a party going with some 12 people in attendance and in various stages of intoxication. . . . Not long after arrival, defendant and Barbara left the living room and went through the kitchen to the bathroom where they found the eventual victim, Roy Tower, standing talking to Rick Urbina, one of the guests. Tower, 21 years of age, was manager of the apartment house.

Conflicting versions of just what went on in the *103bathroom upon defendant’s entry were given but all parties agreed a fight ensued. Defendant testified that Tower drew a hunting knife from his side and while holding it at shoulder height advanced toward defendant. Barbara Reed corroborated defendant’s version that Tower had a knife in his hands. Rick Urbana testified that upon entering the bathroom defendant pulled and opened his knife, told Tower, "come on, mother fucker” and stabbed Tower and that Tower had stepped away from defendant prior to the first stabbing. Urbana further testified that defendant advanced on Tower a second time stabbing him in the chest as decedent backed up toward the bathroom. Both witnesses agreed it all occurred within five or ten seconds or within "seconds, seconds fast.” Dr. Simson, a pathologist, testified that decedent died as a result of a stab wound to the heart.

¶6The jury found Mr. Johnson guilty of second-degree murder, and the Court of Appeals affirmed the conviction.

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¶8THE STATUTORY FRAMEWORK

¶9There is no federal constitutional right1 to a preliminary examination or hearing — the procedure is one left to the Legislature to provide or not. Gerstein v Pugh, 420 US 103; 95 S Ct 854; 43 L Ed 2d 54 (1975). In Michigan, the preliminary examination is solely a creation of the Legislature —it is a statutory right. See, generally, MCL 766.1-766.22; MSA 28.919-28.940._

¶10*104MCL 766.1; MSA 28.9192 provides that the state and the accused are entitled to a prompt preliminary examination. MCL 766.4; MSA 28.9223 provides that the preliminary examination must be set within twelve days of the arraignment on the warrant. The preliminary examination’s primary function is "to determine if a crime has been committed and, if so, if there is probable cause to believe the defendant committed it.5People v Duncan, 388 Mich 489, 499; 201 NW2d 629 (1972); MCL 766.5; MSA 28.923.4 While the preliminary examination may contribute to satisfying the Const 1963, art 1, § 20, requirement that the defendant "be informed of the nature of the accusation,” it primarily serves the public policy of ceasing judicial proceedings where there is a lack of *105evidence that a crime was committed or that the defendant committed it. At the preliminary examination, the prosecution has the burden of proving that a crime occurred and that there is probable cause that defendant committed it.6 Absent such a showing, there cannot be a proper bindover by the magistrate. People v Charles D Walker, 385 Mich 565, 573; 189 NW2d 234 (1971); MCL 766.13; MSA 28.931.6

¶11A proper bindover, or waiver, is necessary to provide authority for the prosecutor to file an information against the defendant in circuit court. MCL 767.42; MSA 28.982 provides that a preliminary examination, unless waived, is a "condition precedent” to the filing of an information by the prosecutor. MCL 767.42(1); MSA 28.982(1) provides:

An information shall not be filed against any person for a felony until such person has had a preliminary examination therefor, as provided by law, before an examining magistrate, unless that person waives his statutory right to an examination. If any person waives his statutory right to a *106preliminary examination without having had the benefit of counsel at the time and place of the waiver, upon proper and timely application by the person or his counsel, before trial or plea of guilty, the court having jurisdiction of the cause, in its discretion, may remand the case to a magistrate for a preliminary examination.

¶12This statute is a limitation on the prosecution, not on the general jurisdiction of the circuit court.7 In People v Dochstader, 274 Mich 238, 244; 264 NW 356 (1936), we said:

The finding by the examining magistrate that a crime had been committed and there was probable cause to believe defendant guilty thereof was a necessary prerequisite to the filing of an information. This binding conclusion and finding of the *107examining magistrate is a judicial determination, and constitutes the basis of the right of the prosecuting attorney to proceed in the circuit court by filing an information against defendant. Without such finding and determination by the examining magistrate, the prosecuting attorney is without jurisdiction to proceed in the circuit court by filing an information against defendant. People v Evans, 72 Mich 367 [40 NW 473 (1888)].

¶13Neither statute nor case law requires specification of the degree of murder at a preliminary examination where open murder is charged in the information. Indeed, at common law, there was no specification of degree of murder because all unexcused and unjustified homicides committed with malice were murder punished by death. Perkins, Criminal Law (2d ed), p 88. Specification of degree is a legislative innovation used to distinguish between those murders meriting the harshest punishment and those murders meriting a less severe punishment. Id., pp 88-89. MCL 767.44; MSA 28.9848 simply validates simplified short-form in-formations for the charging of various crimes.9 The *108"open murder” statute, MCL 767.71; MSA 28.1011,10 recognizes that murder is a single offense and that, at the informational stage, no specification of degree is required. The information occurs after and depends upon the bindover for the possible charges. MCL 767.45; MSA 28.985 requires that an information contain merely "[t]he nature of the offense stated in language which will fairly apprise the accused and the court of the offense charged . . . .” MCL 767.71; MSA 28.1011 provides that an indictment or information charging murder need only set forth the "charge that the defendant did murder the deceased . . . .”

¶14The meaning of the "open murder” charge in Michigan statutory criminal procedure is that no evidence of premeditation and deliberation need be adduced at the preliminary examination. The preliminary examination provides the parameters of the information which may be filed by the prosecution. Since MCL 767.71; MSA 28.1011 does not require specification of first- or second-degree murder in the information, it is a reasonable assumption that the Legislature had no intention of requiring proof of premeditation and deliberation at the earlier stage of the preliminary examination. No statute makes such a requirement. The nature of the process is from general to specific, not from specific to general. A requirement of specification of degree at the preliminary examination stage would make the provisions of MCL 767.71; MSA *10928.1011 for an open murder charge at the information stage totally meaningless.

¶15MCL 750.318; MSA 28.550 supports this conclusion. The statute provides that where a person is indicted (or informed against) with murder of an unspecified degree, the jury, upon finding defendant guilty of murder, must also determine the degree:

The jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder of the first or second degree; but, if such person shall be convicted by confession, the court shall proceed by examination of witnesses to determine the degree of the crime, and shall render judgment accordingly.

¶16A requirement that the degree be specified at the preliminary examination would render this statute, along with MCL 767.71; MSA 28.1011, nugatory. See People v Doe, 1 Mich 451, 457-458 (1850). The legislative scheme contemplates that the circuit court has the power to adjudicate both first- and second-degree charges on a bindover on open murder.

¶17The statutory scheme in question addresses concerns of unfair surprise, inadequate notice, and insufficient opportunity to defend, all relevant to a defendant’s right to a fair opportunity to meet the charges against him. Thus, while allowing information or indictment based upon general pleading, MCL 767.44; MSA 28.984 also provides a means for obtaining specific information concerning the factual basis of the offense: "[T]he prosecuting attorney, if seasonably requested by the respondent, shall furnish a bill of particulars setting up specifically the nature of the offense charged.” (Emphasis added.) When a statutory short-form *110information is used, the defendant has a statutory right to a bill of particulars, while when the common law long-form of information is used, the trial court may in its discretion order a bill of particulars. People v Tenerowicz, 266 Mich 276, 287-288; 253 NW 296 (1934). Once a bill of particulars is supplied, a defendant has a right "to have the trial confined to the particulars set up therein.” People v Ept, 299 Mich 324, 326; 300 NW 105 (1941). Thus, the procedural implementation of MCL 767.44; MSA 28.984 assures that the defendant will have notice in advance of trial of the factual basis underlying the alleged offense.11

¶18The trial court had subject matter jurisdiction to adjudicate first- and second-degree murder cases by virtue of the power conferred by the constitution and statutes. It had personal jurisdiction over Mr. Johnson upon the filing of the return by the magistrate as provided by statute. Following the filing of the return, the prosecutor had authority to file an information.

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¶20EQUAL PROTECTION

¶21Federal and state Equal Protection Clauses are not violated by the alleged disparate treatment of murder suspects at preliminary examinations. Post, pp 134-138. Even if those factors which separate first-degree murder from second-degree, murder are "elements” of the crime, disparate treatment of those suspected of murder need only be justified by a rational basis:

[The Equal Protection Clause] does not reject the *111government’s ability to classify persons or "draw lines” in the creation and application of laws, but it does guarantee that those classifications will not be based upon impermissible criteria or arbitrarily used to burden a group of individuals. If the government classification relates to a proper governmental purpose, then the classification will be upheld. [Nowak, Rotunda & Young, Constitutional Law (3d ed), § 14.2, p 525.]

¶22Under the federal constitution, due process does not require an indictment which specifies the degree of murder. Bergemann v Backer, 157 US 655, 657; 15 S Ct 727; 39 L Ed 845 (1895). No fundamental constitutional interest in such an indictment has been recognized by federal courts. The fundamental constitutional interests generally protected by the Equal Protection Clause include the following: the right to vote, Reynolds v Sims, 377 US 533; 84 S Ct 1362; 12 L Ed 2d 506 (1964); the value of one’s vote, Baker v Carr, 369 US 186; 82 S Ct 691; 7 L Ed 2d 663 (1962); the right to travel, Shapiro v Thompson, 394 US 618; 89 S Ct 1322; 22 L Ed 2d 600 (1969); and the right of privacy, Griswold v Connecticut, 381 US 479; 85 S Ct 1678; 14 L Ed 2d 510 (1965). Those classifications which trigger heightened judicial scrutiny include those based upon: race or national origin, Brown v Topeka Bd of Ed, 347 US 483; 74 S Ct 686; 98 L Ed 873 (1954); alienage, Graham v Richardson, 403 US 365; 91 S Ct 1848; 29 L Ed 2d 534 (1971); illegitimacy, Levy v Louisiana, 391 US 68; 88 S Ct 1509; 20 L Ed 2d 436 (1968); and gender, Reed v Reed, 404 US 71; 92 S Ct 251; 30 L Ed 2d 225 (1971).

¶23While the defendant in the instant case was indeed suspected of murder, murder suspects have not yet been treated as a "suspect classification” requiring heightened judicial scrutiny for equal *112protection purposes. Nor is there a fundamental constitutional interest in being charged with degree-specific murder. Since several rational bases for the open murder charge can be imagined,12 any disparate treatment of those charged with murder of unspecified degree by virtue of the open murder charge violates neither the federal nor the state Equal Protection Clause.13

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¶25INHERENT POWER

¶26The judiciary of this state has recognized the use of murder charges of unspecified degree for over a century. Cargen v People, 39 Mich 549 (1878) (information charging murder without specification of degree sufficient); People v McArron, 121 Mich 1; 79 NW 944 (1899) (information charging that defendant did "kill and murder” deceased was sufficient); People v Treichel, 229 Mich 303, 307-308; 200 NW 950 (1924) (open murder charge leaves it open to jury to find either degree of murder or manslaughter as the proof warrants); *113People v Simon, 324 Mich 450, 457-458; 36 NW2d 734 (1949) (information charged murder without specifying degree; jury must ascertain the degree).

¶27Neither People v Duncan, 388 Mich 489; 210 NW2d 629 (1972), nor Yaner v People, 34 Mich 286 (1876), provides precedent for reversal in the instant case. In Duncan, the Court did not overrule an express statutory provision on the sole basis of inherent judicial power as we would have to do in the instant case. Whatever the proper scope of this Court’s inherent power, properly exercised legislative power such as that in the instant case is entitled to a degree of deference. Yanerdealt with a situation in which the magistrate failed to find evidence to support a charge of murder as opposed to manslaughter. Id., p 286. Yanerthus did not deal with the question presented by the instant case.

¶28The opinion for reversal expresses concern for the discretion given to prosecutors by MCL 767.71; MSA 28.1011. This analysis overlooks the fact that this discretion has been given to the prosecution by the Legislature. It is inappropriate to alter the legislative scheme by exercise of our inherent powers merely because of dissatisfaction with the absence of a standard to determine whether the prosecutor’s discretion has been "reasonably exercised.”

¶29The only discretion provided to the prosecutor by the open murder statute is the choice of specifying the degree of murder — that is, first- or second-degree — or merely specifying murder. Either choice requires evidence of malice aforethought, the factor which distinguishes murder from manslaughter. We have previously recognized that the decision whether or not to prosecute, and what charge to bring, generally rests in the prosecutor’s discretion. See, e.g., People v Ford, 417 Mich 66, *11491-93; 331 NW2d 878 (1982) (opinion of Williams, J.) (no abuse of prosecutorial discretion where there is a choice of charging larceny in a building [a felony] or general larceny [a misdemeanor] for the same act); Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115; 215 NW2d 145 (1974) (prosecutor has discretion to charge a greater, rather than a lesser-included, offense); Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972) (choice of statute under which to prosecute is an executive function properly exercised in general by the prosecutor, not the court). The exercise of prosecutorial discretion generally does not violate equal protection unless the choice is deliberately based upon an invidious standard of a suspect classification or impinges upon a fundamental interest without a compelling state interest. See, generally, People v Ford, supra, pp 101-105.

¶30Whether or not there are outmoded or currently viable policy concerns underlying the statutes is a proper consideration for the legislative process, not the judicial arena. Where the Legislature has enacted a constitutionally valid statutory scheme within its legislative authority, this Court should not overrule it simply as a matter of our own preference. "The mere fact a statute appears impolitic or unwise is not sufficient for judicial construction but is a matter for the legislature.” Lansing v Lansing Twp, 356 Mich 641, 648; 97 NW2d 804 (1959).

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¶32SUFFICIENCY OF EVIDENCE AT BINDOVER

¶33Even if evidence of premeditation and deliberation were required at the bindover, there was sufficient evidence in the instant case. In People v *115Doss, 406 Mich 90, 101; 276 NW2d 9 (1979), this Court reversed a Court of Appeals decision overturning a trial court’s denial of a motion to quash. We there noted, without precisely defining the burden of proof which must be met at examination, that "'there must be evidence on each element of the crime charged or evidence from which those elements may be inferred.’ ” There was testimony that the victim retreated into the bathtub, the defendant pursued him into the tub, and defendant stabbed him again. As the magistrate and the trial judge recognized, pursuit of a fleeing victim can indicate premeditation and deliberation. People v Tilley, 405 Mich 38; 273 NW2d 471 (1979).

¶34It is clear on this record that there was evidence from which the magistrate could have inferred premeditation and deliberation, and it is therefore manifest that we, as a reviewing Court, cannot disturb the determination of the magistrate.14 As *116we stated in People v Dellabonda, 265 Mich 486, 491; 251 NW 594 (1933):

This court may not agree with the findings of such magistrate but it has no right to substitute its judgment for his except in case of a clear abuse of discretion.

¶35It is not here disputed that the jury verdict of second-degree murder was supported by the evidence. The jury thus rejected defendant’s claim of self-defense. Since there was enough evidence at trial to take the issue of premeditation and deliberation to the jury, any error at the preliminary examination must be considered harmless in view of the lack of any actual prejudice15 to the defendant’s right to a fair trial.16_

¶36*117VI

¶37CONCLUSION

¶38Open murder includes both first- and second-degree murder. The circuit court acquired jurisdiction of the defendant as to both. MCL 766.13; MSA 28.931. Jurisdiction having been conferred by the Legislature on the circuit court by MCL 766.13; MSA 28.931 and MCL 767.71; MSA 28.1011, it would be inappropriate to wrest such jurisdiction from the circuit court solely because, as a court, we may think it is a good idea. The jurisdiction of *118the trial court, conferred by a valid legislative act, should not be invalidated by judicial fiat.

¶39Therefore, we would affirm the decision of the Court of Appeals.