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April 16, 1991


Hood, P.j., and Weaver and Marilyn Kelly, JJ.

The opinion of the court was delivered by: Per Curiam

Following a jury trial, defendant was convicted of first-degree murder, MCL 750.316; MSA 28.548, second-degree murder, MCL 750.317; MSA 28.549, felonious assault, MCL 750.82; MSA 28.277, and three counts of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). *fn1 He was sentenced to mandatory life imprisonment without parole for the first-degree murder conviction, life imprisonment for the second-degree murder conviction, two to four years for the felonious assault conviction, and three consecutive two-year sentences for the felony-firearm convictions. Defendant appeals as of right. *fn2


The convictions arose from the shooting deaths of Jean Coddington (defendant's sister-in-law) and Julie Mendoza (Jean's sister) and the assault of Mary Coddington (defendant's mother). The crimes occurred in the early morning hours of May 7, 1987, at the home of Mary and Chester Coddington. At the time of the shootings, several people resided at the Coddington home, including Mary and Chester; their son, Michael, and his wife, Jean Coddington, and children, Michael and Margaret Ann; and Julie Mendoza and her son, Christopher.

Defendant had been involved in a relationship with Julie Mendoza for a few months before the shootings. Julie had become pregnant, and although the point was disputed, defendant reputedly wanted her to have an abortion. In time, the pregnancy became a point of contention between the two.

On the morning of the shootings, defendant arrived at his parents' house between 3:00 and 3:30 A.M., well after everyone had retired for the night. *fn3 An argument over the expected baby ensued, and defendant began to physically and verbally assault Julie. Awakened by the argument, defendant's mother, Mary, and Jean Coddington tried to restrain defendant and assist Julie. Jean was struck in the mouth by defendant, but Mary was able to move defendant away from Julie's bedroom. Mary went to get a washcloth for Jean while Chester came down to get defendant under control. Shots were heard coming from the bedroom. Defendant was seen backing out of the room with what appeared to be a gun. The children testified that they saw defendant shoot Julie first and then Jean.

As defendant retreated from the bedroom, he threatened to shoot both his parents if they did not get out of his way. He went to the kitchen, took his mother's car keys, and left. When the police arrived, they found Julie lying on the bed, gasping and twitching, while Jean was on the floor between the bed and the dresser. There was still a cloud of gun smoke hovering near the ceiling. Mary indicated to the police that defendant had shot both women, threatened her, and left in her car.

The medical examiner testified that Julie Mendoza's autopsy indicated that she had been shot from a distance. The first bullet entered near the left ear and came out of the top of her head. This wound corresponded to the bloodstains found on the wall just above the head of the bed. The second shot was also to her head and was a "keyhole" wound, causing only a single defect, and corresponded to stains and a bullet hole on her pillow.

Jean Coddington's autopsy indicated that she also sustained two gunshot wounds to the head. One wound had extensive gunpowder soot and stippling *fn4 at the entrance, leading the medical examiner to conclude that the gun had been fired within six inches of her head but not in contact with it. Jean's other wound was caused when a bullet grazed the top of her head, leaving stippling, but no soot, around the wound. The absence of soot indicated that the gun was 6 inches to 2 1/2 feet from her head when fired.

A blackish soot deposit was discovered at the base of Jean Coddington's left thumb. On the basis of test firings, it was believed that Jean had her hand on or near the barrel of the gun when it was discharged. The medical examiner also concluded that Jean was probably standing when first shot, and most likely struggling with her assailant.


Defendant contends that the examining magistrate abused his discretion in denying defendant's motion for a continuance brought before the start of his preliminary examination on the basis of defense counsel's inability to prepare. Our review of the record reveals that the magistrate did adjourn the preliminary examination for 1 1/2 hours and then only entertained the direct examination of Mary Coddington; defense counsel was not required to cross-examine this or any other witnesses on the date in question. Following the Conclusion of Mary Coddington's direct examination, the preliminary examination was adjourned and it did not resume until almost two weeks later. We note that defense counsel had previously discussed the case with defendant and had access to the police report. Defendant has not demonstrated any prejudice of any kind from the denial of the continuance. Under these circumstances, we conclude that the magistrate did not abuse his discretion in denying defendant's motion for a continuance. See People v Wilson, 397 Mich 76, 80; 243 NW2d 257 (1976); People v Sinistaj, 184 Mich App 191, 201; 457 NW2d 36 (1990).


Defendant also challenges the sufficiency of the evidence presented at the preliminary examination to bind him over on two counts of open murder, one count of felonious assault, one count of unlawfully driving away an automobile (UDAA), and four counts of felony-firearm. Defendant also claims that the trial court erred in denying his pretrial motions to dismiss the charges of first-degree murder, UDAA, and felonious assault.


A defendant must be bound over for trial if evidence is presented at the preliminary examination that a crime has been committed and there is probable cause to believe that the defendant was the perpetrator. MCL 766.13; MSA 28.931; People v Gonzalez, 178 Mich App 526, 530; 444 NW2d 228 (1989). At this stage, the prosecutor is not required to prove each element beyond a reasonable doubt. Id. However, there must be some evidence from which these elements may be inferred. People v Greenberg, 176 Mich App 296, 306; 439 NW2d 336 (1989). Thus, circumstantial evidence and reasonable inferences arising from the evidence may be sufficient to justify a bindover. People v Drayton, 168 Mich App 174, 176; 423 NW2d 606 (1988). On appeal, we will not substitute our judgment for that of the examining magistrate unless an abuse of discretion is apparent. People v Talley, 410 Mich 378, 385; 301 NW2d 809 (1981).


On appeal, defendant claims that because there was no evidence of premeditation or deliberation it was improper to bind him over on the open murder charges, which encompass first-degree murder. We disagree.

Relying in part on People v Johnson, 427 Mich 98; 398 NW2d 219 (1986), the prosecutor argued that it was not necessary to present evidence of premeditation and deliberation at the preliminary examination when charges of open murder are brought pursuant to MCL 767.71; MSA 28.1011. In Johnson, Justice Boyle opined that proof of these elements was not required to bind a defendant over for trial. Justice Boyle explained:

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, (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 28.984 simply validates simplified short-form informations for the charging of various crimes. The "open murder" statute, MCL 767.71; MSA 28.1011, 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 "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. [427 Mich 107-109. Emphasis in original.]

Justices Brickley and Riley concurred with this opinion. Justice Williams wrote a separate opinion in which he indicated his specific concurrence with Justice Boyle's opinion regarding the sufficiency of the evidence of premeditation and deliberation at the preliminary examination, and concluded by stating that he concurred "generally with the remainder of Justice Boyle's opinion, particularly with regard to defendant's constitutional arguments." 427 Mich 118-120. This ambiguous closing comment by Justice Williams has led at least one panel of this Court to conclude that it is still unclear whether such proof is required. See Gonzalez, supra, p 531.

Upon review, we find Justice Boyle's opinion persuasive and, for the reasons expressed in that opinion, hold that the elements of premeditation and deliberation are not required elements for which evidence must be presented at a preliminary examination in order to bind a defendant over for trial on open murder charges. *fn5 Therefore, we conclude that no abuse of discretion resulted in this case when the magistrate bound defendant over on these charges.


Defendant next claims that there was insufficient evidence to bind him over for the alleged assault of his mother, Mary Coddington. The elements required to establish felonious assault are: (1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or place the victim in reasonable fear or apprehension of an immediate battery. People v Crook, 162 Mich App 106, 107; 412 NW2d 661 (1987).

We have reviewed the record and conclude that the prosecutor presented sufficient evidence on each of these elements. The magistrate was not required to accept Mary Coddington's testimony that an assault did not occur, especially where there was evidence from other sources indicating the contrary. We find no abuse ...

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