PEOPLE OF MI V ALEXANDER NEMETH
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 10, 1997
Plaintiff-Appellee,
v
No. 195153
Recorder’s Court
LC No. 91-004750
ALEXANDER NEMETH, III,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 197415
Recorder’s Court
LC No. 91-004750
ALEXANDER NEMETH, III,
Defendant-Appellee.
Before: Bandstra, P.J., and Murphy and Young, JJ.
PER CURIAM.
In these consolidated cases, defendant appeals by leave granted from his bench trial convictions
for second-degree murder, MCL 750.317; MSA 28.549, and possession of a firearm during the
commission of a felony, MCL 750.227b; MSA 28.424(2). He was originally sentenced to fifteen to
thirty years in prison for the second-degree murder conviction, and two years for the felony-firearm
conviction, the sentences to run consecutively. The prosecutor appeals as of right from the trial court’s
subsequent judgment resentencing defendant to five to fifteen years for the second-degree murder
conviction, and two years for the felony-firearm conviction, the sentences to run consecutively. We
affirm defendant’s convictions, reverse the trial court’s order granting resentencing, vacate the sentence
of five to fifteen years for the second-degree murder conviction, and reinstate defendant’s original
-1
sentences of fifteen to thirty years for the second-degree murder conviction and two years for the
felony-firearm conviction.
To facilitate our analysis, we begin by addressing defendant’s second and third arguments,
leaving his first argument for discussion together with the prosecutor’s sole argument. Defendant argues
that he was deprived of his right to a fair and impartial trial because of judicial bias. This argument
stems from an incident that occurred in chambers when attorney Jacqueline George (who was not an
attorney of record in this case) told the trial judge that the brother of a witness in the case wished to
assist the judge in his election campaign. Defendant failed to move for disqualification of the trial judge
below under the procedure provided in MCR 2.003(C)(1). Therefore, this issue is not preserved for
appellate review absent manifest injustice. People v Sharbnow, 174 Mich App 94, 99; 435 NW2d
772 (1989). See, also, Stockler v Rose, 174 Mich App 14, 23; 436 NW2d 70 (1989). Judicial
misconduct is grounds for reversal only if the defendant has been deprived of his right to a fair and
impartial trial. Sharbnow, supra. Here, defendant has made no showing of bias or prejudice on the
part of the trial judge sufficient to overcome the presumption of judicial impartiality. In re Forfeiture of
$1,159,420, 194 Mich App 134, 151; 486 NW2d 326 (1992). The trial judge’s comments on the
record disclosing this incident make clear that he did not allow this incident to affect his decision in the
case and that he was not even aware whether the person offering assistance was related to a
prosecution witness or to a defense witness. The judge further indicated that he asked attorney George
to leave as soon as it was brought out that the person offering assistance was the brother of a witness.
We are satisfied from the judge’s comments on the record that the incident did not affect his decision
and that defendant was not denied a fair and impartial trial. We therefore see no need to remand for an
evidentiary hearing on this issue.
Defendant argues that the trial judge failed to find defendant guilty beyond a reasonable doubt of
all of the elements of the charged offense. We find no merit in defendant’s argument because defendant
confuses the trial judge’s role in ruling on a motion for directed verdict and his role in this bench trial as
the ultimate trier of fact. The standard to be used by a trial court in ruling on a motion for directed
verdict is the same standard that this Court uses in reviewing such a ruling: “the court must consider the
evidence presented by the prosecutor, up to the time the motion was made, in the light most favorable
to the prosecution and determine whether a rational trier of fact could find that the essential elements of
the charged crime were proven beyond a reasonable doubt.” People v Daniels, 192 Mich App 658,
665; 482 NW2d 176 (1992). When denying defendant’s motion, the trial judge explained that he was
not finding as the trier of fact that each element had been proven beyond a reasonable doubt, but rather
that he was viewing the evidence in the light most favorable to the people and determining whether a
rational trier of fact could find that the essential elements of the offense had been proven. Our review of
the judge’s comments reveal that he applied the correct standard when ruling on defendant’s motion.
Defendant misconstrues the judge’s comments as indicating that the judge, as the trier of fact, was not
finding defendant guilty of each element beyond a reasonable doubt.
Defendant further contends that the trial court should have granted his motion because the
evidence established that adequate and reasonable provocation for his actions existed, thus requiring a
conviction for manslaughter rather than second-degree murder. We disagree.
-2
To establish second-degree murder, the prosecution was required to prove that
defendant caused the death of the victim and that the killing was done with malice and
without justification or excuse. [Citation omitted.] Malice is the intent to kill, the intent
to do great bodily harm, or the intent to create a high risk of death or great bodily harm
with knowledge that such is the probable result. Malice may be inferred from the facts
and circumstances of the killing. . . . A homicide may be reduced to voluntary
manslaughter if the circumstances surrounding the killing show that malice was negated
by adequate and reasonable provocation and the homicide was committed in the heat of
passion. [People v Harris, 190 Mich App 652, 659, 661; 476 NW2d 767 (1991).]
Here, a rational trier of fact could infer the requisite state of mind from defendant’s use of the gun in
shooting decedent three times. People v Turner, 213 Mich App 558, 567; 540 NW2d 728 (1995).
Moreover, we do not believe that malice was negated by adequate and reasonable provocation.
Defendant was injured several minutes before he fired the gun, and he then fired the gun a second and
third time at the decedent as he laid on the ground at least seven seconds after the first shot. A sufficient
“cooling-off” period existed to make reasonable a finding of malice. See, generally, People v
Pouncey, 437 Mich 382, 385, 392; 471 NW2d 346 (1991) (sufficient “cooling-off” period existed
where the defendant went into his house following a verbal exchange and returned thirty seconds later
with a shotgun); People v Wofford, 196 Mich App 275, 280; 492 NW2d 747 (1992).
We now address the sentencing issues raised by both parties. The prosecutor argues that the
trial court did not have authority to order that defendant be resentenced. We agree. Whether the trial
court had such authority is a question of law, which we review de novo. People v Medlyn, 215 Mich
App 338, 340; 544 NW2d 759 (1996). The trial court indicated that the reason for its decision to
resentence defendant was that the original sentence was disproportionate. We have recently held that a
trial court may not grant resentencing on that basis. People v Wybrecht, 222 Mich App 160, 168; 564
NW2d 903 (1997). “[O]nly appellate courts are authorized to invalidate sentences for lack of
proportionality.” Id. The trial court did not have authority to grant resentencing.
Defendant’s first argument is that his original sentence of fifteen to thirty years for second
degree murder violated the principle of proportionality. We disagree. A sentence constitutes “an abuse
of discretion if that sentence violates the principle of proportionality, which requires sentences imposed
by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and
the offender.” People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). Defendant’s minimum
sentence fell within the guidelines range of 48 to 180 months. The sentence is therefore presumed to be
proportionate. Wybrecht, supra at 175. Defendant has failed to overcome this presumption.
Defendant, the owner of Elmer’s Bar, fired three shots at the decedent, a patron of the bar. Although
defendant had been injured during a commotion, testimony at trial (which defendant disputed) indicated
that the injury occurred five to ten minutes before the shooting. It also appears from the testimony of
several witnesses (excluding defendant) that any danger posed to defendant by the decedent had
passed. After the decedent attempted to throw a chair at defendant, who was behind the bar, the chair
landed on the bar and another customer began to escort the decedent toward the front door to leave.
Defendant and decedent then resumed arguing. Defendant fired the first shot while decedent, who was
-3
apparently unarmed, was at least six feet away. At least seven seconds later, defendant leaned over the
bar and fired two more shots into decedent’s body while he was lying helplessly on the ground. Given
these facts, we do not believe that the original sentence of fifteen to thirty years in prison is
disproportionate to the seriousness of the circumstances surrounding the offense and the offender.
Defendant’s convictions are affirmed. The trial court’s order granting resentencing is reversed,
and defendant’s sentence of five to fifteen years in prison for the second-degree murder conviction is
vacated. Defendant’s original sentences of fifteen to thirty years in prison for the second-degree murder
conviction and two years for the felony-firearm conviction are reinstated.
/s/ Richard A. Bandstra
/s/ William B. Murphy
/s/ Robert P. Young
-4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
