People v. Johnson

398 N.W.2d 219, 427 Mich. 98

• Court: Michigan Supreme Court
• Decided: December 26, 1986
• Docket: 75775, (Calendar No. 4)
• Status: Published

Opinions

Boyle, J.

Henry 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.

We 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 which 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.

i

PACTS

Defendant 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 The events leading up to this case are set forth in the unpublished opinion of the Court of Appeals: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 bathroom 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.

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

n

THE STATUTORY FRAMEWORK

There 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._

MCL 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.⁵ People 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 evidence 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

A 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 preliminary 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.

This 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 examining 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)].

Neither 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 "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 . . . .”

The 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 28.1011 for an open murder charge at the information stage totally meaningless.

MCL 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.

A 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.

The 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 information 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

The 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.

hi

EQUAL PROTECTION

Federal 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 government’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.]

Under 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).

While 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 protection 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

iv

INHERENT POWER

The 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); People v Simon, 324 Mich 450, 457-458; 36 NW2d 734 (1949) (information charged murder without specifying degree; jury must ascertain the degree).

Neither 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. Yaner dealt with a situation in which the magistrate failed to find evidence to support a charge of murder as opposed to manslaughter. Id., p 286. Yaner thus did not deal with the question presented by the instant case.

The 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.”

The 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, ; 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.

Whether 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).

v

SUFFICIENCY OF EVIDENCE AT BINDOVER

Even if evidence of premeditation and deliberation were required at the bindover, there was sufficient evidence in the instant case. In People v Doss, 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).

It 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 we 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.

It 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_

VI

CONCLUSION

Open 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 the trial court, conferred by a valid legislative act, should not be invalidated by judicial fiat.

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

Brickley and Riley, JJ., concurred with Boyle, J.

1 Even a violation of a federal constitutional right does not necessarily require reversal. See Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967); Delaware v Van Arsdall, 475 US 673; 106 S Ct 1431, 1438; 89 L Ed 2d 674 (1986); People v Whitfield, 425 Mich 116; 388 NW2d 206 (1986).

2 MCL 766.1; MSA 28.919 provides:

The state and accused shall be entitled to a prompt examination and determination by the examining magistrate in all criminal causes and it is hereby made the duty of all courts and public officers having duties to perform in connection with such examination, to bring them to a final determination without delay except as it may be necessary to secure to the accused a fair and impartial examination.

3 MCL 766.4; MSA 28.922 provides:

The magistrate before whom any person is brought on a charge of having committed a felony shall set a day for a preliminary examination not exceeding 12 days thereafter, at which time a magistrate shall examine the complainant and the witnesses in support of the prosecution, on oath in the presence of the accused, in regard to the offense charged and in regard to any other matters connected with the charge which the magistrate considers pertinent.

4 MCL 766.5; MSA 28.923 provides:

If it appears that a felony has been committed and that there is probable cause to believe that the accused is guilty thereof, and if the offense is bailable by the magistrate and the accused offers sufficient bail, it shall be taken and the prisoner discharged until trial.

5 There is some question concerning whether the standard of cause to believe a crime was committed is the same as the standard of cause to believe that it was the defendant who committed it. See Note, proposed MCR 6.107(E), 422A Mich 32-33. Proposed MCR 6.107(E) resolves the question by requiring the same probable cause standard for the offense as for the defendant’s connection with the offense. 422A Mich 27-28.

6 MCL 766.13; MSA 28.931 provides:

If it shall appear to the magistrate at the conclusion of the preliminary examination either that an offense has not been committed or that there is not probable cause for charging the defendant therewith, he shall discharge such defendant. If it shall appear to the magistrate at the conclusion of the preliminary examination that a felony has been committed and there is probable cause for charging the defendant therewith, the magistrate shall forthwith bind the defendant to appear before the circuit court of such county, or other court having jurisdiction of the cause, for trial.

7 The circuit court is a "court of general jurisdiction,” MCL 600.151; MSA 27A.151, having "original jurisdiction in all matters not prohibited by law . . . .” Const 1963, art 6, § 13. See MCL 600.601; MSA 27A.601.

" 'Jurisdiction’ is 'the power [of a court] to act.’ ” State Hwy Comm’r v Gulf Oil, 377 Mich 309, 312; 140 NW2d 500 (1966); Kent Prosecutor v Kent Circuit Judges, 110 Mich App 404, 407; 313 NW2d 135 (1981). Subject matter jurisdiction " 'is the right of [a] court to exercise judicial power over a class of cases; not the particular case before it, but rather the abstract power to try a case of the kind or character of the one pending ....’” (Emphasis supplied.) Joy v Two-Bit Corp, 287 Mich 244, 253; 283 NW 45 (1938); Adams v Adams, 100 Mich App 1, 16; 298 NW2d 871 (1980), lv den 409 Mich 935 (1980). "The jurisdiction of the [circuit] court over the subject matter [(breaking and entering)] [was] not . . . questioned” in People v Phillips, 383 Mich 464, 469; 175 NW2d 740 (1970). (Emphasis supplied.) There the Supreme Court was "concerned only with the validity of the procedure whereby [the circuit] court sought to exercise its jurisdiction over the person of the accused.” Id. (Emphasis supplied.)

Jurisdiction of a criminal defendant is acquired by the circuit court "upon the filing ... of the return of the magistrate before whom [the defendant] had waived preliminary examination,” In re Elliott, 315 Mich 662, 675; 24 NW2d 528 (1946), or "before whom the defendant had been examined,” Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 119; 215 NW2d 145 (1974). See also People v Curtis, 389 Mich 698, 707; 209 NW2d 243 (1973); People v Farmilo, 137 Mich App 378, 380; 358 NW2d 350 (1984); MCL 766.14; MSA 28.933. "The circuit court does not lose jurisdiction, where a void or improper information is filed.” In re Elliott, supra, 675.

8 The pertinent portions of MCL 767.44; MSA 28.984 provide:

The following forms may be used in the cases in which they are applicable but any other forms authorized by this or any other law of this state may also be used:

Murder — A.B. murdered C.D.

9 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 reasonably 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 information is used, the defendant has a statutory right to a bill of particulars, while, when the common-law long-form 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).

10 MCL 767.71; MSA 28.1011 provides:

In all indictments for murder and manslaughter it shall not be necessary to set forth the manner in which nor the means by which the death of the deceased was caused; but it shall be sufficient in any indictment for murder to charge that the defendant did murder the deceased; and it shall be sufficient in manslaughter to charge that the defendant did kill the deceased.

11 The "open discovery” rules set out in the Proposed Rules of Criminal Procedure would also provide a defendant with pretrial information concerning the factual basis underlying the charge. See proposed MCR 6.201-6.204, 422A Mich 68-79.

12 The Legislature may well have had a simple pragmatic reason for allowing informations charging murder without specification of degree: the difficulty of obtaining hard evidence of premeditation and deliberation at an early stage — within twelve days of arraignment on the complaint — of the criminal prosecution. Another possible reason would be a legislative choice to permit the decision on premeditation and deliberation, often a pure credibility question, to be made by the jury rather than by the magistrate. A third rational basis is that the statute simply codifies the common law.

13 The opinion for reversal, post, pp 136-137, has a curious interpretation of the "presumption of constitutionality” which legislative enactments have traditionally been held to possess. The opinion concludes that because there is a question concerning the rational basis for the legislative decision to allow the open murder charge, the statute must fall. Thus, there is actually a presumption of unconstitutionality applied by the dissent in the instant case. The proper analysis is that if a "plausible” rational basis can be imagined, the statute must be upheld. United States Railroad Retirement Bd v Fritz, 449 US 166, 179; 101 S Ct 453; 66 L Ed 2d 368 (1980).

14 While the opinion for reversal bases its result upon an admittedly nonconstitutional error, post, pp 137-138, it errs in the standard it applies to determine whether the error is harmless. Certain constitutional violations require automatic reversal. See, e.g., Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963) (denial of counsel at trial). Other constitutional violations are measured by the standard that requires a court to be convinced "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v California, 386 US 18, 24; 87 S Ct 824; 17 L Ed 2d 705 (1967) (commenting on defendant’s failure to testify at trial could be harmless error); Rose v Clark, 478 US —; 106 S Ct 3101; 92 L Ed 2d 460 (1986) (jury instruction shifting the burden of proof to the defendant can be harmless error). Nonconstitutional violations, such as that alleged in the instant case, are measured by a third standard in the federal system: The defendant must show a reasonable probability that the error affected the outcome of the trial. See United States v Mechanik, 475 US 66; 106 S Ct 938; 89 L Ed 2d 50 (1986) (no reversal for grand jury error unless the error affected the outcome of the trial). The proposed Michigan Rules of Criminal Procedure would adopt a similar standard for error at the preliminary examination: "Absent a showing of prejudice, a court may not reverse an otherwise valid conviction because of either a violation of these subrules or an error in failing to dismiss an information for violation of these subrules.” Proposed MCR 6.107(G), 422A Mich 28 (1986). Thus, for a nonconstitutional error such as that alleged in this case, the conviction should only be reversed where the defendant has shown prejudice as a result of the alleged error.

15 There is no basis on this record to assume that the jury’s verdict was a product of compromise. There is simply no more reason for assuming that jurors have compromised on a verdict when there is an erroneous charge than there is to believe they have simply reached a middle ground when several instructions are correctly given. If there was error in allowing the first-degree murder charge to go to the jury, the jury corrected that error by acquitting defendant of that charge and returning a proper verdict of second-degree murder. Most courts agree that a proper verdict of second-degree murder cures an error in instructing a jury on first-degree. See Anno: Modern status of law regarding cure of error, in instruction as to one offense, by conviction of higher or lesser offense, 15 ALR4th 118, 164-166, § 21(a). While Michigan cases have not agreed, id., § 21(b), any other conclusion is based on judicial speculation that jurors who would have acquitted the defendant have compromised their views despite an express direction from the trial court to the contrary.

The trial judge instructed the jury concerning deliberations as follows:

Now, when you go to the jury room, your deliberations should be conducted in a businesslike manner. You shall first select a foreman. She or he should see to it that the discussion goes forward in a sensible and orderly fashion and that each juror has the opportunity to discuss the issues fully and fairly.

Remember, a verdict in a criminal case must be unanimous. In order to return a verdict, it is necessary that each of you agree upon that verdict. In the jury room you will discuss the case among yourselves, but ultimately each of you will have to make up your own mind. Any verdict must represent the individual, considered judgment of each one of you.

It is your duty to consult with your fellow jurors and to deliberate with a view to reaching an agreement, if you can do so without violating your own judgment.

Before deciding the case, give impartial consideration to the views of your fellow jurors. This means that you should give respectful consideration to one another’s views and talk over differences of opinion in a spirit of fairness and frankness.

It is natural in a case of this type that differences may arise. When they do, each of you should not only express your opinion but also the facts and reasons upon which you base it.

By reasoning the matter out, it is often possible for all of you to agree.

In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you’re convinced that it is wrong.

However, none of you should surrender your honest conviction as to the weight and effect of the evidence or lack of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. [Emphasis added.]

The above instructions are in substantial accord with CJI 3:1:18, Deliberations and Verdict.

16 See proposed MCR 6.107(G), 422A Mich 28, which provides that errors at the preliminary examination must actually prejudice the defendant before an appellate court can reverse an otherwise valid conviction. As the commentary to proposed MCR 6.107 notes, "[w]hen the preliminary examination error does not affect the trial, reversal of a conviction creates a windfall for the defendant.” 422A Mich 34.