People v. Oliver

427 N.W.2d 898, 170 Mich. App. 38
CourtMichigan Court of Appeals
DecidedJuly 18, 1988
DocketDocket 97803
StatusPublished
Cited by54 cases

This text of 427 N.W.2d 898 (People v. Oliver) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Oliver, 427 N.W.2d 898, 170 Mich. App. 38 (Mich. Ct. App. 1988).

Opinions

G. S. Allen, J.

Following a bench trial in Recorder’s Court, defendant was found not guilty of the charged offense of assault with intent to murder but was found guilty of the lesser offense of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). Sentenced October 3, 1986, to two to ten years in prison and an additional two years in prison for felony-firearm, defendant appeals as of right raising five issues. We affirm defendant’s conviction, but remand for resentencing.

The incident giving rise to the charges against defendant occurred on October 23, 1985. Norie Embry, the complainant, testified that about 6:00 p.m. on that date he was standing on the sidewalk [41]*41outside a store at Fischer and Bessemore Streets in Detroit and watched defendant drive up to the store in a gray Lincoln Continental. From inside the car defendant spoke to Embry saying: "[I]f I do what I think I should do you will be through.” Embry then got back into his own car, a white Monte Carlo, which was parked along the curb. For about a minute the two men watched each other from their cars. Then defendant drove oif.

Embry testified that five or ten minutes later he drove away from the store proceeding at about ten miles an hour down Fischer Street. About a half a block away from the store he observed defendant in the process of parking his Continental on Fischer Street. As Embry drove past, defendant got out of his car, stood in the middle of the street, and fired a black pistol at Embry’s car. Embry saw this in his rear view mirror. He heard five or six shots and heard some three shots hit his car. When he heard the shots he ducked down as he continued to drive down the street. He estimated that the first shot was fired when his car was two or three lengths away from defendant’s car and the last shot was fired when his car was four or five lengths distant from defendant’s car. Embry drove to his mother’s home where he phoned the police. At his mother’s home he noticed two circular dents and one scratch in his car. The police arrived and Embry reported the incident.

At trial, evidence was presented establishing that at one time Embry and defendant had been friends and lived together, but several months prior to October 23, 1985, their relationship soured and Embry lived in a house where defendant’s brother and two other men, Reginald Foy and Marcus Glenn, lived. Defendant’s brother was murdered, allegedly by Foy and Glenn. Embry testified against Foy and Glenn at their trial, but [42]*42did so only after being given immunity from prosecution for being an accessory after the fact on grounds of transporting the deceased.

Defendant presented Catrina Calhoun as an alibi witness. She testified that she was a friend of the defendant and had known him for fourteen years, that on October 23, 1985, she was with defendant from 3:15 or 3:30 until 10:00 p.m., that they went shopping at the Eastland Shopping Center, and that, thereafter, they had dinner at Burger King. She explained she remembered that particular day because it was the day after her father got paid and therefore he had been able to give her money for shopping. Additional facts will be recited as needed in the discussion of the issues.

i

Defendant first argues that the magistrate clearly abused his discretion at the preliminary examination when he bound defendant over and that the trial court abused its discretion in denying defendant’s motion to quash the information. Specifically, defendant contends that the intent to kill was not shown and that no showing was made that a firearm meeting the definition of MCL 8.3t; MSA 2.212(20) was used. Quoting from Roberts v People, 19 Mich 401, 415-416 (1870), defendant claims that the requisite intent requires an actual intent to kill and not a mere knowing creation of a high risk of death. See People v Taylor, 422 Mich 554, 567-568; 375 NW2d 1 (1985). No gun was found and, according to defendant, Embry’s scant description of the gun and the fact that only dents rather than bullet holes were found on the car was insufficient to meet the statutory definition of firearm.

When considering a motion to quash and deter[43]*43mining whether a defendant should have been bound over on preliminary examination, the trial court should apply a clear abuse of discretion review. People v Irby, 129 Mich App 306; 342 NW2d 303 (1983); People v Dyer, 157 Mich App 606, 608; 403 NW2d 84 (1986). The Court of Appeals then reviews the trial court’s decision under an abuse of discretion standard. Dyer, supra; People v Hammond, 161 Mich App 719, 721; 411 NW2d 837 (1987). The magistrate is not required to find guilt beyond a reasonable doubt, but some evidence on each element of the crime charged must be presented or evidence must be presented from which the elements on each offense can reasonably be inferred. People v Irby, supra, pp 321-322; People v Kubasiak, 98 Mich App 529, 532; 296 NW2d 298 (1980). Where the testimony both supports and negates an element of the crime charged, the question is one of fact which properly should be left to the finder of fact. People v Tait, 99 Mich App 19, 24; 297 NW2d 853 (1980).

At the preliminary examination on March 27, 1986, Embry testified that only a week and a half prior to October 23, 1985, defendant’s brother had been killed and that defendant strongly believed Embry had something to do with it. Upon cross-examination, Embry denied he was charged with the homicide but admitted he testified at the trial of those charged with that homicide. Embry testified he saw defendant shoot at him shortly after defendant made the threats on October 23, 1985. We find that this evidence supports an inference of an intent to kill Embry.

We also find Embry’s testimony at preliminary examination sufficient to establish possession of a firearm. Embry stated he saw defendant holding a gun, that the gun was a black steel revolver, that he heard several shots ring out, that he ducked [44]*44down to avoid being hit and that there were dents in the trunk of his car which he believed were caused by bullets. Also, the weapon was fired shortly after the threats were made. The elements of a felony-firearm charge are (1) that defendant committed the charged felony and (2) that defendant committed the felony knowing that he possessed a firearm. Keeping in mind that the level of proof at the preliminary examination stage does not require positive proof of guilt, but only some evidence of each element, we find sufficient evidence was established to support the bindover on the felony-firearm charge.

ii

Defendant next argues that the trial court failed to follow MCR 2.517(A)(1), formerly GCR 1963, 517.1, by not making specific findings of fact and that the evidence adduced at trial was insufficient to support findings that defendant had the specific intent to do great bodily harm to Embry, that defendant fired a gun at Embry and that, even if a gun were fired, the gun met the requirements of the felony-firearm statute. We address the arguments sequentially.

MCR 2.517(A)(1) provides:

In actions tried on the facts without a jury or with an advisory jury, the court shall find the facts specially, state separately its conclusions of law, and direct entry of the appropriate judgment.

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Cite This Page — Counsel Stack

Bluebook (online)
427 N.W.2d 898, 170 Mich. App. 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-oliver-michctapp-1988.