Opinion
Docket No. 54642.
Decided November 17, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Andrea L. Solak, Assistant Prosecuting Attorney, for the people.
Culpepper Sorise (by Domnick J. Sorise), for defendant on appeal.
Before: DANHOF, C.J., and N.J. KAUFMAN and D.C. RILEY, JJ.
Following a jury trial, defendant Frank Lee Usher was found guilty as charged of first-degree murder, MCL 750.316; MSA 28.548, and felony-firearm, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to life imprisonment for the first-degree murder conviction, the sentence to be preceded by a jail sentence of two years for the felony-firearm conviction. He appeals by right.
Defendant first challenges the sufficiency of the evidence presented against him at his preliminary examination.
An examining magistrate has a duty to bind a defendant over for a trial if it appears that a crime has been committed and there is probable cause to believe that the defendant committed it. MCL 766.13; MSA 28.931; People v Asta, 337 Mich. 590; 60 N.W.2d 472 (1953); People v Goode, 106 Mich. App. 129; 308 N.W.2d 448 (1981). A magistrate should not discharge a defendant when the evidence is conflicting or if it raises reasonable doubts of the defendant's guilt. Instead, such questions should be left for the jury to decide at a trial. People v Doss, 406 Mich. 90; 276 N.W.2d 9 (1979); People v Tait, 99 Mich. App. 19; 297 N.W.2d 853 (1980). Even if a reviewing court disagrees with the examining judge's decision, it may not reverse the determination of probable cause absent a finding of a clear abuse of discretion. People v Doss, supra; People v Michael Johnson, 105 Mich. App. 498; 307 N.W.2d 357 (1981).
We agree with defendant's contention that the magistrate's preliminary ruling, that hearsay was per se admissible to determine probable cause, was erroneous. See People v Asta, supra; People v Duncan, 388 Mich. 489; 201 N.W.2d 629 (1977). We cannot agree, however, that this ruling mandates reversal of defendant's convictions. The introduction of incompetent evidence is harmless if probable cause is established by other competent evidence. In any event, defendant chose to adopt as his own the testimony given at a prior preliminary examination held for persons who allegedly participated with defendant in the crimes. Our task, then, is to review the testimony given at the prior preliminary examination to determine if it was an abuse of discretion for the magistrate to decide that the testimony given there established probable cause with respect to defendant.
The alleged crimes arose out of a series of events at the Democratic Club, a private club in Detroit, culminating in the killings of three people, their subsequent beheadings, and amputation of five of their six hands. The evidence showed that two men were wired money to travel from California to Detroit and testimony indicated that they were in the club the evening of the killings. With respect to defendant, the evidence showed that on the morning of the killings, he was allowed entrance to the private club by the doorman. The three victims arrived soon after the defendant arrived. Orders had been given that people were not to be let into the club. After the killings, defendant was seen at a table with the men from California while others cleaned up the blood in the club. One of the men was counting money. Muffled sounds were later heard coming from a storage room. A witness saw an amputated hand in a storage room and defendant exiting from it. A witness to the events was nervous and shaking as he told the club cook that defendant had cut off the woman's head. Defendant and the men from California left the club together. Club members then proceeded with an orderly clean-up of the club, including the disposal of guns and a meat cleaver that had not previously been on the premises. The autopsy report showed that the victim's death was caused by gunshot wounds to their backs and heads, and not as a result of their subsequent decapitations.
Though hearsay, this evidence was admissible as an excited utterance under MRE 803(2). Decapitation would seem to be an "exciting event". The nervousness and shaking suggests that he was still under the influence of the event when he described it. See, generally, People v Coppernol, 59 Mich. App. 745; 229 N.W.2d 913 (1975).
Defendant does not contest that the deaths were due to a murder in the first degree. Instead, defendant argues that there was insufficient evidence to support the prosecution's theory that defendant aided or abetted in the murders.
The term "aiding or abetting" includes all forms of assistance. The term comprehends "all words or deeds which may support, encourage, or incite the commission of the crime". People v Palmer, 392 Mich. 370; 220 N.W.2d 393 (1974). The amount of aid or advice is immaterial so long as it had the effect of inducing the crime. People v Washburn, 285 Mich. 119; 280 N.W. 132 (1938), app den 305 U.S. 577; 83 L Ed 363; 59 S Ct 355 (1939). One aids or abets when he takes conscious action to make the criminal venture succeed. People v Wright (On Remand), 99 Mich. App. 801; 298 N.W.2d 857 (1980); People v Boose, 109 Mich. App. 455; 311 N.W.2d 390 (1981). Contrary to defendant's interpretation, People v Tunnacliff, 375 Mich. 298; 134 N.W.2d 682 (1965), does not require that the prosecution show that the defendant aided or abetted any particular person.
We find that the evidence produced established probable cause to believe that defendant aided or abetted in the killing of the three victims. While defendant is correct in stating that the decapitation alone cannot establish probable cause to believe defendant aided or abetted, defendant is incorrect in stating that post-death evidence is irrelevant to the determination. See People v Hooper, 50 Mich. App. 186; 212 N.W.2d 786 (1973), lv den 391 Mich. 808 (1974); People v Cismadija, 167 Mich. 210; 132 N.W. 489 (1911). The decapitation can be viewed as a means to destroy evidence of the crime and shows consciousness of guilt. There was probable cause to believe that defendant's presence was part of a preconceived plan to kill the victims and dispose of the evidence. The examining magistrate did not abuse his discretion in binding defendant over for trial.
Defendant also argues that there was insufficient evidence to support binding him over on the charge of felony-firearm. We agree. In People v Johnson, 411 Mich. 50, 54; 303 N.W.2d 442 (1981), the Supreme Court held that:
"To convict one of aiding and abetting the commission of a separately charged crime of carrying or having a firearm in one's possession during the commission of a felony, it must be established that the defendant procured, counselled, aided, or abetted and so assisted in obtaining the proscribed possession, or in retaining such possession otherwise obtained. See People v Doemer, 35 Mich. App. 149; 192 N.W.2d 330 (1971); People v Francis, 71 Cal.2d 66; 450 P.2d 591; 75 Cal.Rptr. 199 (1969)."
While evidence was produced at the trial that tended to show that defendant gave his gun to one of the participants, no such evidence was introduced at the preliminary examination. The prosecutor conceded this point during oral argument. Defendant's felony-firearm conviction must be reversed. See People v Kennedy, 9 Mich. App. 346; 155 N.W.2d 855 (1968), rev'd on other grounds 384 Mich. 339 (1971).
Defendant next contends that insufficient evidence was produced at the trial.
When a defendant challenges the sufficiency of the evidence against him at trial, the reviewing court must determine, when viewing the evidence in the light most favorable to the prosecution, whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. People v Delongchamps, 103 Mich. App. 151; 302 N.W.2d 626 (1981), lv den 412 Mich. 857 (1981).
The evidence introduced at the preliminary examination was substantially reproduced at trial. In addition, the evidence at trial, when viewed in the light most favorable to the prosecution, showed that defendant conversed with the victims at a party he had given in the early morning before the killings. The victims worked for defendant. They left the party at the same time. The victims arrived at the club soon after defendant arrived. Defendant gave his gun to the man who had obtained the services of the hit men from California. When the hit men arrived at the club, defendant sought the possession of one of their guns. Defendant and the hit men were well-acquainted. After the victims were repeatedly shot, their bodies were removed to the storage room, where defendant decapitated at least one of the victims. While other members of the club cleaned the building, defendant, in a joyful mood, sat at a table with the two hit men while they counted money. After retrieving his gun, defendant left with the hit men and the three of them drove away in defendant's car. The meat cleaver, which had never previously been at the club, was disposed of. Sometime later, defendant was heard to say that he was considering killing three witnesses who had talked to the police, but thought the police would connect those killings to him.
We find that a reasonable jury could have found defendant guilty of first-degree murder beyond a reasonable doubt. Viewed in the light most favorable to defendant, the evidence showed that defendant was a part of an elaborate plan to murder the victims and dispose of the evidence. Defendant even tried to obtain one of the hit men's guns to participate more fully. His presence tended to facilitate the killings. The victims were lured to their deaths by the man for whom they worked. We also find no merit in defendant's claim that the verdict was against the great weight of the evidence.
Defendant's final claim on appeal concerns a question decided earlier on interlocutory appeal to this Court. This Court reversed the trial court's suppression of a prosecution witness's testimony. People v Usher, (Docket No. 51900, decided June 9, 1980, 408 Mich. 957 (1980). [Unreported.] The Supreme Court denied leave to appeal. If defendant desired further consideration of that issue by this Court, he should have moved for a rehearing following the earlier decision. Since he did not do so, the decision became the law of the case and further review is precluded. People v Drew, 83 Mich. App. 57; 268 N.W.2d 284 (1978); People v Hamm, 100 Mich. App. 429; 298 N.W.2d 896 (1980), lv den 411 Mich. 888 (1981); People v Prophet, 101 Mich. App. 618; 300 N.W.2d 652 (1980). See also GCR 1963, 800.4.
Affirmed in part and reversed in part.