PEOPLE OF MI V TRAVIS ALLEN BULMER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 19, 2000
Plaintiff-Appellant,
v
No. 226796
Eaton Circuit Court
LC No. 99-000353-FH
TRAVIS ALLEN BULMER,
Defendant-Appellee.
Before: Murphy, P.J., and Griffin and Wilder, JJ.
WILDER, J. (dissenting)
I respectfully dissent from the majority opinion. I would hold that the prosecution
presented sufficient evidence of intent to bind defendant over on second-degree murder, reverse
the circuit court’s order denying the prosecution’s motion to amend the information, and reinstate
the charge of second-degree murder.
A district court’s decision to bind over a defendant is reviewed for an abuse of discretion.
People v Hudson, 241 Mich App 268, 276; 615 NW2d 784 (2000). When reviewing a district
court’s decision to bind over a defendant for trial, the circuit court must consider the entire
record. In re Abraham, 234 Mich App 640, 656; 599 NW2d 736 (1999). This Court’s review of
the circuit court is de novo to determine whether the district court abused its discretion. Id.
A magistrate’s responsibility when presiding over a preliminary examination has been
described as follows:
The magistrate is not required to find that the evidence at the time of the
preliminary examination proves the defendant’s guilt beyond a reasonable doubt
in order to bind the defendant over for trial on the charge.
Despite this rather low level of proof, the magistrate must always find that
there is “evidence regarding each element of the crime charged or evidence from
which the elements may be inferred” in order to bind over a defendant. If the
evidence introduced at the preliminary examination conflicts or raises a
reasonable doubt about the defendant’s guilt, the magistrate must let the factfinder
at trial resolve those questions of fact. This requires binding the defendant over
for trial. In other words, the magistrate may not weigh the evidence to determine
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the likelihood of conviction, but must restrict his or her attention to whether there
is evidence regarding each of the elements of the offense, after examining the
whole matter. The evidence that factors into the magistrate’s decision may be
direct or circumstantial, and it meets the “probable cause” standard when, “by a
reasonable ground of suspicion, [it is] supported by circumstances sufficiently
strong to warrant a cautious person in the belief that the accused is guilty of the
offense charged[.]” [Hudson, supra at 278-279; citations omitted.]
Thus, a bindover is not a finding of guilt beyond a reasonable doubt; rather, it is a preliminary
hearing which is “a much less searching exploration into the merits of a case than a trial . . . .”
People v Justice (After Remand), 454 Mich 334, 343; 562 NW2d 652 (1997), quoting Coleman v
Burnett, 155 US App DC 302, 316; 477 F2d 1187 (1973).
After reviewing the entire record, I believe that the prosecution presented competent
evidence at the preliminary examination to support an inference that defendant possessed the
requisite malice for second-degree murder. Malice for second-degree murder is defined as (1)
the intent to kill, (1) the intent to cause great bodily harm, or (3) the intent to do an act in wanton
or willful disregard of the likelihood that the natural tendency of such behavior is to cause death
or great bodily harm. People v Goecke, 457 Mich 442, 464; 579 NW2d 868 (1998); People v
Mayhew, 236 Mich App 112, 125; 600 NW2d 370 (1999). It is this third type of malice,
commonly referred to as depraved-heart malice, that is at issue in the instant case. Malice may
be inferred from evidence that the defendant “intentionally set in motion a force likely to cause
death or great bodily harm.” Mayhew, supra at 125, quoting People v Djordjevic, 230 Mich App
459, 462; 584 NW2d 610 (1998). Further, malice may be implied when “the defendant does an
act with a high probability that it will result in death and does it with a base antisocial motive and
with wanton disregard for human life.” Goecke, supra at 467, quoting People v Fuller, 86 Cal
App 3d 618, 628; 150 Cal Rptr 515 (1978).
In the instant case, there are notable inconsistencies between defendant’s version of the
events and the forensic pathologist’s testimony regarding the injuries sustained by the child.
These inconsistencies permit an inference that defendant possessed the requisite malice sufficient
for second-degree murder (i.e., that defendant’s actions were done with wanton and willful
disregard for the likelihood that great bodily harm or death would result to the child). Joyce
DeJong, the forensic pathologist at Sparrow Hospital who examined the child after his death,
testified that the child’s death was caused by craniocerebral trauma inflicted by another person
and not sustained in an accident. DeJong noted external bruises on the child’s forehead, the right
side of his face and his lower extremities, and a cut or break in the frenulum (the flap of tissue on
the underside of the upper lip). During her internal examination of the child’s body, DeJong
found a hemorrhage under his scalp, internal bleeding under the bruises and around the central
nervous system, and hemorrhages on both retinas and around the optic nerves. She stated that
the child’s injuries were consistent with a violent shaking of the baby for a minute or more (and
possibly impact during the shaking) and that a gentle shaking would not typically cause such
injuries. She further stated that a child injured in such a manner would typically show signs of
distress within seconds of the injury, including breathing difficulties and loss of neural control
such as seizure or limpness.
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On the other hand, Michigan State Police Detective Sergeant Douglas Barrett testified at
the preliminary examination that the first time he interviewed defendant at the police station,
while the child was still alive, defendant stated that he never shook the child at any time and the
child appeared to be in good health and behaving normally when defendant put him to bed in his
playpen. However, at a subsequent interview a few days later, after the child had died, defendant
admitted to Barrett that, after he put the child to bed, he heard the child coughing forcefully and
went into his bedroom to check on him. Defendant admitted that he leaned over the playpen,
took the baby by the shoulders, and shook him gently two or three times to try to help him stop
coughing.1 According to defendant, the child stopped coughing and defendant started to walk
out of the room. As he left, defendant heard the baby make a strange gurgling noise and returned
to the playpen where he observed blood on the child’s mouth. Defendant noticed that the baby
was having difficulty breathing and he picked up the child, who was virtually limp at this time,
and placed him on a bed in the master bedroom. Defendant then carried the child to the living
room, placed the baby on the floor, and called 911.
Viewing these facts and circumstances in their entirety, defendant’s delayed admission to
shaking the baby coupled with DeJong’s unequivocal opinion that the child’s injuries were not
the result of an accident, but were instead the result of a violent shaking of the child,2 establish
sufficient evidence of depraved-heart malice to warrant a bindover. More specifically, DeJong’s
testimony supported a reasonable inference for purposes of bindover that defendant shook the
baby more violently, and for a longer time, than he admitted to Barrett. See People v Vasher,
167 Mich App 452, 458; 423 NW2d 40 (1988) (child’s testimony, coupled with that of her
mother and the examining physician that the three-year-old child was sexually penetrated, was
sufficient to warrant the inference that defendant penetrated the child). Further, defendant’s
1
The record is unclear whether the child’s face collided with the floor of the playpen when
defendant shook the child; however, in view of the injuries sustained to the child (e.g., subdural,
retinal and petechical hemorrhages) it is not unreasonable to infer that defendant’s actions of
shaking the baby caused the child’s face to impact the floor of the playpen and produce the
resulting injuries. Further, such an inference is wholly consistent with DeJong’s testimony that
“there may have been impact during the course of the shaking of the forehead.”
2
DeJong’s acknowledgment on cross-examination that “a gentle shaking doesn’t typically cause
these type of injuries” does not, in my view, make her testimony equivocal and thus insufficient
to establish causation. DeJong stated quite clearly that “[t]his is not an accidental-type event,”
and that “[t]he injuries to the head most likely occurred with a shaking, a violent shaking, and
there may have been impact during the course of this shaking of the forehead.” Such testimony
bind this matter over for trial. See People v Thomas, 85 Mich App 618, 627; 272 NW2d 157
(1978) (physician’s testimony that the trauma to the victim’s legs caused the chain of events that
led to the victim’s death and that causation was not only medically probable but medically likely.
was sufficient to establish causal relationship between injury and death); People v McFee, 35
Mich App 227, 230; 192 NW2d 355 (1971) (physician’s testimony that, in his best medical
judgment, there was a definite causal relationship between the injuries inflicted on the victim by
the defendant and the victim’s death, was sufficient to establish a causal relationship necessary
for a second-degree murder conviction). See also People v Flenon, 42 Mich App 457; 202
NW2d 471 (1972); People v Geiger, 10 Mich App 339; 159 NW2d 383 (1968).
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initial denial and subsequent admission to shaking the baby supports the inference that defendant
knew that shaking the baby could be harmful, and lied about the shaking to avoid responsibility
while simultaneously denying knowledge of the risk of harm. Even if defendant did not realize
that his conduct might cause death or great bodily harm, however, the conduct of shaking the
baby is itself so risky that defendant should have recognized the likely consequences of his
actions, particularly where the baby’s distress would have been immediately apparent. Goecke,
supra at 465, n 25.3 Indeed, the prosecution was not required to show that defendant was
subjectively aware of the risk created by his conduct. Id. at 464-467.
For these reasons, I would find that the evidence presented at the preliminary examination
would permit a person of ordinary caution and prudence to conscientiously entertain a reasonable
belief that defendant intended the consequences of his act or that he knew there was very high
risk of great harm from his action and, by shaking the child, he acted in disregard of that risk.
Justice, supra at 344. Further, I would find that a jury could also reasonably conclude from the
evidence presented that death or great bodily harm was the natural tendency of the defendant’s
actions (the mens rea necessary for second-degree murder). See Djordjevic, supra at 462-463.
As stated above, the law requires the magistrate to bind a defendant over for trial on a
charge where the evidence is conflicting or raises a reasonable doubt about the defendant’s guilt.
Hudson, supra at 278; People v Northey, 231 Mich App 568, 575; 591 NW2d 227 (1998). I
would hold that the district court resolved the discrepancy between defendant’s version of the
events and DeJong’s testimony that the child’s injuries could not have resulted from a gentle
shaking, thereby engaging in impermissible fact finding and usurping the role of the jury.
Northey, supra at 575. Because the evidence presented at the preliminary examination, taken as
a whole, was conflicting on the issue of defendant’s intent (i.e., there was evidence both
supporting and negating an inference of malice), I believe that the district court was compelled to
bind defendant over on second-degree murder and allow the jury to resolve the factual question
of defendant’s intent. Hudson, supra; Northey, supra.
/s/ Kurtis T. Wilder
3
In Goecke, supra at 465, n 25, our Supreme Court noted that “[m]ost depraved-heart murder
cases do not require a determination of the issue of whether the defendant was actually aware of
the risk entailed by his conduct; his conduct was very risky and he himself was reasonable
enough to know it to be so. It is only the unusual case which raises the issue [whether defendant
was subjectively aware of the risk created by his conduct]—where the defendant is more absentminded, stupid or intoxicated than the reasonable man.”
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