PEOPLE OF MI V EDWARD RAYMOND BELL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 13, 1998
Plaintiff-Appellee,
v
No. 194782
Calhoun Circuit Court
LC No. 95-002480 FC
EDWARD RAYMOND BELL,
Defendant-Appellant.
Before: O’Connell, P.J., and MacKenzie and Gage, JJ.
PER CURIAM.
Defendant was charged with open murder in the shooting death of Michael Gray. Following a
jury trial, he was convicted of 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 sentenced to
two years’ imprisonment for the felony-firearm conviction, to be served consecutively to a twenty-five
to fifty-year term for the murder conviction. Defendant appeals as of right. We reverse and remand for
a new trial.
This case arises out of a dispute between two groups of people in their teens and early twenties,
one led by Anthony McNichols and the other led by Jamie Lepird. Trial testimony established that late
on July 4 or early on July 5, 1995, McNichols, Gray, and two others showed up at a gathering at
defendant’s sister’s house attended by defendant and several other friends of Lepird, including Tom
Howard. All had apparently spent the day drinking and celebrating the holiday. A fight broke out
between McNichols and Howard. After Howard came at McNichols with a broken bottle, Gray
tossed a knife to McNichols. The fight ended with Howard bleeding heavily. Fearing someone might
have called the police, McNichols and his companions left and started walking toward Gray’s house.
At some point, McNichols returned the knife to Gray.
Lepird was angry about what McNichols had done to Howard. Consequently, he, defendant,
and up to twenty others went to find McNichols. They eventually found McNichols and Gray near
Gray’s house. Lepird confronted McNichols and began taunting him. The two wrestled for
approximately five minutes as several people watched and yelled. When McNichols stopped fighting,
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Lepird continued to taunt him, and defendant joined in. McNichols then announced that Gray would
fight defendant. Words were exchanged between defendant and Gray. Gray approached defendant,
threw down his hat, and said “I’m going to get you” or “you’re going to die.” Defendant pulled a gun
from his waist and shot Gray in the neck.
Defendant contends that the trial court committed error requiring reversal by submitting to the
jury a first-degree murder charge that the evidence did not support. We agree that there was insufficient
evidence of premeditation and deliberation to justify submission of the first-degree murder charge. We
disagree, however, that the error compromised the jury, as defendant claims. Nevertheless, we are
compelled to reverse under People v Vail, 393 Mich 460, 464; 227 NW2d 535 (1975). See People
v Graves, 224 Mich App 676; 569 NW2d 911 (1997).
When reviewing the denial of a motion for directed verdict, this Court views the evidence in a
light most favorable to the prosecution to determine if a rational trier of fact could find the elements of
the crime were proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d
748 (1992), amended 441 Mich 1201 (1992). To constitute first-degree murder, it must be established
that the defendant intentionally killed the victim and that the act of killing was premeditated and
deliberate. People v Youngblood, 165 Mich App 381, 387; 418 NW2d 472 (1988). Premeditation
and deliberation may be inferred from the circumstances surrounding the killing. Id. Although the length
of time needed to measure and evaluate a choice before it is made is incapable of precise determination,
there must be some interval in which a second look can be contemplated. People v Daniels, 192 Mich
App 658, 665; 482 NW2d 176 (1992). The following factors are relevant to finding premeditation and
deliberation: (1) the prior relationship of the parties; (2) the defendant’s actions before the killing; (3) the
circumstances of the killing itself; and (4) the defendant’s conduct after the killing. People v Anderson,
209 Mich App 527, 537; 531 NW2d 780 (1995).
In this case, there was no evidence of any dispute or even any exchange between defendant and
Gray until moments before the shooting. One witness testified that he attempted to stop Gray from
attacking defendant because Gray and defendant were friends. Two days after the shooting, in an
interview with the police, defendant also recounted that in the moments before the shooting, McNichols
taunted him and said Gray would “whip my ass.…Ya know, I just said, ‘Mikey [Gray], ain’t gonna do
nothing, Mikey’s my friend.” It appears that the real dispute in this case was between McNichols and
Lepird; there were no facts presented regarding the prior relationship of defendant and Gray from which
a deliberated and premeditated killing could reasonably be inferred.
Although defendant was carrying a gun when he left the gathering at his sister’s house, there was
no evidence that defendant planned to kill Gray or anyone else that night. In People v Gill, 43 Mich
App 598, 604; 204 NW2d 699 (1972), this Court stated that the defendant’s “delay in producing a
weapon until he found himself losing the fight suggests that he did not intend in all events to use the
weapon he apparently was carrying on his person -- that his purpose at the outset of the fight was not to
kill [the victim].” Likewise, in this case, no witnesses testified that they saw defendant with a gun before
the shooting. Rather, testimony indicated that defendant was not known to carry, or even own, a gun.
Defendant stated that he had purchased the gun the day of the shooting for protection because he had
been threatened by someone other than Gray, and that the gun was in his pocket when Gray
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approached him. Like the defendant in Gill, the evidence fails to suggest that defendant’s purpose in
carrying the gun was to kill Gray, and premeditation could not reasonably be inferred from the mere fact
that defendant was carrying a gun.
Defendant stated that after he shot Gray he ran home, throwing the gun into a dumpster along
the way. No evidence to the contrary was presented at trial. Such conduct is inconsistent with a
planned killing. People v Morrin, 31 Mich App 301, 309-310, 332; 187 NW2d 434 (1971).
Therefore, premeditation could not reasonably be inferred from defendant’s conduct after the killing.
Based on the evidence presented at trial, and viewing the evidence in the light most favorable to
the prosecution, a rational trier of fact could not conclude that defendant took time to reflect or take a
second look before shooting Gray. Possession of a deadly weapon in advance of the slaying is the only
fact from which premeditation and deliberation can reasonably be inferred on this record. In the
absence of other circumstances showing a motive, plan, or reflection that would enable a trier of fact to
infer that the killing was not a spur-of-the-moment decision, however, possession of the gun is
insufficient. See People v Waters, 118 Mich App 176, 186-187; 324 NW2d 564 (1982), People v
Livingston, 63 Mich App 129, 133; 234 NW2d 176 (1975), Morrin, supra, p 333. It is difficult to
infer from this record that defendant even considered fighting Gray until Gray’s friend, McNichols,
suggested it moments before the shooting. The trial court should not have submitted the case to the jury
on a charge of first-degree murder.
Because the jury was permitted to consider a charge unwarranted by the proofs, we must
reverse and remand for a new trial on the charge of second-degree murder. Vail, supra. Like the
panel in Graves, supra, however, were we not bound by Vail, we would reject its position and affirm
defendant’s second-degree murder conviction. For the reasons stated in Graves, we urge the Court to
reconsider its Vail decision.
Defendant’s remaining arguments require little discussion. First, the claim that the prosecutor
improperly elicited testimony from several witnesses that, although not a gang member, defendant
associated with members of a gang named “187” after the California penal code number for murder, is
not preserved. While we agree that the testimony concerning defendant’s association with members of
the 187 gang and the meaning of the 187 name was not particularly relevant, the questioning did not
deprive defendant of a fair trial, which is the test for prosecutorial misconduct. People v Minor, 213
Mich App 682, 689; 541 NW2d 576 (1995).
Finally, under the circumstances of this case, the trial court did not abuse its discretion in
denying defendant’s request for funds to hire an investigator. People v Blackburn, 135 Mich App
509, 520-521; 354 NW2d 807 (1984). The denial of funds did not substantially prejudice defendant
at trial. Mason v Arizona, 504 F2d 1345, 1352 (CA 9, 1974).
Reversed and remanded for a new trial. We do not retain jurisdiction.
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/s/ Peter D. O’Connell
/s/ Barbara B. MacKenzie
/s/ Hilda R. Gage
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