Opinion
Nos. 112079, 112885.
November 13, 1998.
Leave to Appeal Denied November 13, 1998.
Reported below: 229 Mich. App. 293.
I would grant leave to appeal to review this published opinion in which the Court of Appeals has found insufficient evidence of premeditation and deliberation as a matter of law and reversed a jury's verdict. In People v. Hoffmeister, 394 Mich. 155, 158-159 (1975), this Court noted the unremarkable proposition that premeditation and deliberation can be inferred from an adequate basis in the record. Any question of credibility or intent is a question for the jury, People v. Renno, 392 Mich. 45, 60 (1974), and the court must view the evidence in the light most favorable to the prosecution and determine whether a trier of fact could have found that the prosecution proved the elements of the crime beyond a reasonable doubt. People v. Hampton, 407 Mich. 354 (1979); People v. Petrella, 424 Mich. 221, 268-270 (1985).
Despite the fact that the defendant did not testify, the Court of Appeals found the defendant's 0.10 blood alcohol level and testimony stating that the defendant appeared "panicked" at the time of the killing to be evidence depriving the defendant of the capacity to analyze the situation, and further inferred that the defendant "quite possibly believed" his brother was "seriously injured." The appellate court then chose to publish its opinion. The Court of Appeals finding appears to be a substitution of inferences drawn by the panel rather than an inquiry regarding whether the jury could make an inference of premeditation and deliberation by construing the evidence ma light most favorable to the prosecution.
So viewed, there was evidence in the record from which the jury could have found as follows: Defendant Plummer entered the nightclub armed with a weapon. When his brother began to fight with another patron (Kevin Day), the defendant drew his gun and held it at his side, although there was no evidence that either of the combatants was armed. Damon Hatcher, a friend of Day, approached the men after the fight began to try to dispel the fight, but fell against the wall. As Hatcher righted himself, the defendant raised his arm, pointed the gun in a downward direction, and shot at his back, striking him in the back left shoulder. The defendant fired a second shot at the deceased. After he fired the second shot and started to flee from the scene, the defendant fired a third shot at Day's back, which struck another patron. The defendant tried to dispose of his gun and gave a false statement to the police.
The Court of Appeals concluded that "[e]ven if, for the sake of argument, we assume that defendant's action indicates that he was contemplating murder, defendant presumably would have been considering shooting Day, not the decedent." 229 Mich. App. 293, 304 (1998). Contrary to the Court of Appeals hypothetical example, it makes no difference that the defendant thought about killing another person because his intent to kill Day transferred to the decedent. The jury could have inferred that the defendant removed his gun with the intent to shoot someone, held the gun at his side while he made a decision, and then fired the fatal shots. Such an inference rebuts the Court of Appeals finding that the defendant "instantaneously premeditate[d] a murder." Id. at 305.
Second, this case does not conflict with this Court's decision in People v. Tilley, 405 Mich. 38 (1979). In Tilley, the defendant's friend, Mr. Moss, and Mr. Mickel, the decedent, had an argument outside a restaurant. Mr. Moss drew a gun from his pocket and Mr. Mickel, an off-duty sheriff's deputy wearing civilian clothes, knocked the gun to the ground. The victim then retrieved Mr. Moss' gun from the ground and drew his own gun, placing Mr. Moss under arrest and identifying himself as a deputy. The defendant then began taunting the deputy, which distracted Mr. Mickel and allowed Mr. Moss time to turn on Mr. Mickel. As Mr. Mickel and Mr. Moss fought, the defendant managed to grab Mr. Mickel's gun. As Mr. Mickel began to retreat from the fight toward the restaurant, the defendant fired five or six shots at Mr. Mickel. Witnesses testified that the defendant held the gun with both hands, dropped his hands while chasing Mr. Mickel toward a store, and raised the gun again to fire the fatal shots. On the basis of these facts, the Court determined that there was ample evidence for the jury to determine that the defendant had adequate time to pause and deliberate before shooting the decedent.
The Court of Appeals attempt to distinguish Tilley from this case is problematic. As in Tilley, there were at least a few seconds between the time the defendant drew his gun and the time he fired it. The defendant also had time for reflection as he fled from the bar and, instead of simply leaving the bar, defendant began his retreat, but fired back into the bar toward Day, hitting another patron. The evidence suggests that the defendant had to raise his gun or at least shift his body before firing the third shot. Because the evidence of defendant's actions both before and after the fatal shot supported an inference that defendant either premeditated the death of Day (but instead killed Hatcher) or that of Hatcher, I would grant leave to appeal.
WEAVER and TAYLOR, JJ.
We join in the statement of Justice BOYLE.
No. 112885 — Reconsideration denied January 26, 1999.
KELLY, J.
I would grant reconsideration and, on reconsideration, would grant to leave to appeal.