Michigan Court of AppealsJun 26, 1998
230 Mich. App. 459 (Mich. Ct. App. 1998)
230 Mich. App. 459584 N.W.2d 610

Docket No. 204847.

Submitted April 14, 1998, at Detroit.

Decided June 26, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Carolyn M. Breen, Assistant Prosecuting Attorney, for the people.

Cornelius Pitts, for Dragan Djordjevic.

John F Royal, for Saso Savich.


Former Court of Appeals judge, sitting on the court of Appeals by assignment.

Leave to appeal sought.

The prosecution appeals by leave granted from an order of the Recorders Court dismissing second-degree murder charges, MCL 750.317; MSA 28.549, against defendants. We reverse and remand.

This case presents a novel question, namely, whether the death of a coconspirator during an arson provides the requisite malice for second-degree murder. The lower court dismissed the charges against defendants, concluding that there was insufficient evidence to establish the mens rea for second-degree murder. We disagree.

Defendants owned a bar, Slap Shots, in Detroit. The bar was insured against fire loss and, in December 1995, defendants offered to pay the decedent, Allen Lowery, to burn down the bar. During the early morning hours of December 31, 1995, Lowery did just that. Unfortunately for Lowery, however, he was killed during the fire as a result of soot and smoke inhalation.

Defendants were charged with second-degree murder, on the basis of the death of Lowery in the fire, as well as burning real property, burning insured property, and conspiracy to burn insured property. The district court bound defendants over on these charges, but the Recorders Court quashed the second-degree murder charges, concluding that the evidence supported only a finding of accidental death and did not establish the requisite malice requirement.

We review the trial court's decision to quash an information de novo. People v. Flowers, 191 Mich. App. 169; 477 N.W.2d 473 (1991). The district courts decision to bind defendants over for trial should be reviewed for an abuse of discretion. People v. Thomas, 438 Mich. 448, 452; 475 N.W.2d 288 (1991). Unlike the trial court, we are not convinced that the district court abused its discretion in binding defendants over for trial.

This appears to be a question of first impression in Michigan. Furthermore, decisions in other states are not particularly helpful because our sister states are split on the issue. See, e.g., Commonwealth v. Bolish, 381 Pa. 500; 113 A.2d 464 (1955), which supports the prosecutors position, and People v. Jennings, 243 Cal.App.2d 324; 52 Cal.Rptr. 329 (1966), which supports defendants position. Furthermore, those cases are distinguishable from the case at bar inasmuch as they were first-degree felony-murder cases.

The malice element of second-degree murder is satisfied by showing that the defendant possessed the intent to kill, to do great bodily harm, or to create a high risk of death or great bodily harm with the knowledge that death or great bodily harm would be the probable result. People v. Kemp, 202 Mich. App. 318, 322; 508 N.W.2d 184 (1993). Malice can be inferred from evidence that a defendant intentionally set in motion a force likely to cause death or great bodily harm. People v. Aaron, 409 Mich. 672, 729; 299 N.W.2d 304 (1980).

The parties agree that defendants did not act with the intent to kill or do great bodily harm. The prosecutor argues that it was foreseeable that either a fire fighter, Lowery, or a person in a nearby home could have been injured or killed by the fire. Defendants argue that the evidence reflects only an intent to burn the bar, not to injure anyone in the process.

First, we note that the decision to bind a defendant over for trial is not based upon a determination of guilt beyond a reasonable doubt, but that the evidence is sufficient to establish a reasonable belief that the defendant is guilty. See People v. Justice (After Remand), 454 Mich. 334, 343; 562 N.W.2d 652 (1997).

Second, we note that this Court, in People v. Baker, 216 Mich. App. 687; 551 N.W.2d 195 (1996), rev'd 457 Mich. 442 (1998), distinguished between involuntary manslaughter and second-degree murder (based upon the creation of a high risk of death or great bodily harm) by whether death or great bodily harm is the natural tendency of the act (second-degree murder) or whether the defendant merely acted in wanton disregard that death or great bodily harm may follow (manslaughter).

We are satisfied that the evidence establishes probable cause to believe that death or great bodily harm was the natural tendency of defendants act. That is, while it would not be unreasonable for a jury to conclude that defendants acted only in wanton disregard that death or great bodily harm might follow, a jury could also reasonably conclude that death or great bodily harm was the natural tendency of defendants act. A fire was set in a building with gasoline, with residences nearby. A reasonable jury could conclude that the danger to the arsonist, neighbors, or fire fighters was sufficiently high to allow for the conclusion that death or great bodily harm was the natural tendency of the act. The trial court erred in removing that determination from the province of the jury.

In short, there was sufficient evidence to establish probable cause to believe that defendants committed second-degree murder and, therefore, the district court did not abuse its discretion in binding defendants over for trial. Whether the evidence is sufficient to establish guilt beyond a reasonable doubt is to be determined by the jury.

Defendants reliance on People v. Austin, 370 Mich. 12; 120 N.W.2d 766 (1963), is misplaced. Austin does not, as defendants suggest, create a rule that the death of a criminal participant cannot constitute the crime of murder with respect to the remaining participants. The rule in Austin is narrower: The justifiable killing of a criminal participant cannot establish a felony murder against a coparticipant. The case at bar involves neither felony murder nor a justifiable killing.

Reversed and remanded to the trial court with instructions to reinstate the charges of second-degree murder against defendants. We do not retain jurisdiction.