Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
Chie f Justice Justices
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED APRIL 23, 2003
THE PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 119889
DONNA ALICE YOST,
Defendant-Appellant.
____________________________________
TAYLOR, J.
We granted leave to appeal in this case to determine
whether the examining magistrate abused his discretion when he
refused to bind defendant over for trial in the circuit court.
Finding such an abuse occurred, we affirm the circuit court
judgment that reinstated the charges.
I. Proceedings below
Donna Yost was charged with open murder, MCL
750.316(1)(a), and felony murder, MCL 750.316(1)(b),1 of her
1
“Murder committed in the perpetration of, or attempt to
perpetrate . . . child abuse in the first degree . . . .”
seven-year-old daughter Monique, who died of an overdose of a
prescription medication called Imipramine on Sunday, October
10, 1999.
The preliminary examination lasted seven days. The
prosecution called several lay witnesses and two expert
witnesses, Dr. Kanu Virani, a forensic pathologist who
performed an autopsy, and Dr. Michael Evans, a toxicologist
who analyzed a blood sample obtained during the autopsy. The
defense also called several lay witnesses and three experts,
Dr. David Fleisher, an expert in pharmocology; Dr. Laurence
Simson, a forensic pathologist; and Dr. Alan Berman, a
clinical psychologist. The district judge, in his role as
examining magistrate, refused to bind defendant over for trial
for lack of credible evidence of a homicide.
The prosecution appealed to the circuit court. That
court reviewed the lengthy transcripts and determined that the
record established a sufficient basis for finding that a
homicide was committed and probable cause to believe that
defendant committed it, and that the magistrate therefore had
abused his discretion in refusing to bind defendant over.
Defendant appealed the circuit court’s decision to the
Court of Appeals. The Court of Appeals denied leave to appeal
“for failure to persuade the Court of the need for immediate
2
appellate review.”2 The Court of Appeals subsequently denied
defendant’s motion for rehearing.3
Defendant next filed an application for leave to appeal
with this Court. We granted leave to appeal limited to the
issues
(1) whether the refusal of the magistrate to bind
the defendant over for trial was an abuse of
discretion, (2) what is the appropriate role of the
magistrate at a preliminary examination in
assessing the credibility of witnesses and how does
that assessment affect the bindover decision, and
(3) whether the reviewing court applied the correct
standard of review in this case?[4]
II. Preliminary examinations
Preliminary examinations are not constitutionally
required. Hall, supra at 603. Rather, the preliminary
examination is solely a creation of the Legislature, i.e., it
2
Unpublished order, entered June 6, 2001 (Docket No.
234065). If the Court of Appeals had denied leave to appeal
“for lack of merit,” we would comment no further. However,
the ground cited by the Court of Appeals for denying leave to
appeal was “failure to persuade the Court of the need for
immediate review.” This reason was flawed. If defendant went
to trial and were found guilty, any subsequent appeal would
not consider whether the evidence adduced at the preliminary
examination was sufficient to warrant a bindover. People v
Hall, 435 Mich 599, 601-603; 460 NW2d 520 (1990) (an
evidentiary deficiency at the preliminary examination is not
a ground for vacating or reversing a subsequent conviction
where the defendant received a fair trial and was not
otherwise prejudiced by the error).
3
Unpublished order, entered July 24, 2001 (Docket No.
234065).
4
465 Mich 966 (2002).
3
is a statutory right.5
MCL 766.13 provides:
If it shall appear to the magistrate at the
conclusion of the preliminary examination either
that an offense has not been committed or that
there is not probable cause for charging the
defendant therewith, he shall discharge such
defendant. If it shall appear to the magistrate at
the conclusion of the preliminary examination that
a felony has been committed and there is probable
cause for charging the defendant therewith, the
magistrate shall forthwith bind the defendant to
appear before the circuit court of such county, or
other court having jurisdiction of the cause, for
trial.
As the statute indicates, the preliminary examination has
a dual function, i.e., to determine whether a felony was
committed and whether there is probable cause to believe the
defendant committed it. At the examination, evidence from
which at least an inference may be drawn establishing the
elements of the crime charged must be presented. People v
Doss, 406 Mich 90, 101; 276 NW2d 9 (1979). The probable-cause
standard of proof is, of course, less rigorous than the guilt
beyond-a-reasonable-doubt standard of proof. Id. at 103.
Probable cause requires a quantum of evidence “sufficient to
cause a person of ordinary prudence and caution to
conscientiously entertain a reasonable belief” of the
accused’s guilt. People v Justice (After Remand), 454 Mich
5
However, as explained in People v Glass (After Remand),
464 Mich 266, 271; 627 NW2d 261 (2001), the right to a
preliminary examination does not apply if a defendant is
indicted by a grand jury.
4
334, 344; 562 NW2d 652 (1997). Yet, to find probable cause,
a magistrate need not be without doubts regarding guilt. The
reason is that the gap between probable cause and guilt beyond
a reasonable doubt is broad, id. at 344, and finding guilt
beyond a reasonable doubt is the province of the jury. People
v Goecke, 457 Mich 442, 469-470; 579 NW2d 868 (1998).
III. Standard of Review
Our case law has sometimes indicated that a reviewing
court may not reverse a magistrate’s bindover decision absent
a “clear abuse of discretion,” e.g., People v Dellabonda, 265
Mich 486, 491; 251 NW 594 (1933); Doss, supra at 101. At
other times our case law has omitted the word “clear” and has
simply required a reviewing court find an “abuse of
discretion,” e.g., Genesee Prosecutor v Genesee Circuit Judge,
391 Mich 115, 121; 215 NW2d 145 (1974); Justice, supra at 344.
In defining what an “abuse of discretion” is, this Court
has frequently invoked the test adopted in Spalding v
Spalding, 355 Mich 382; 94 NW2d 810 (1959). As Spalding
stated the test, an abuse of discretion occurs when the lower
court’s decision is “so palpably and grossly violative of fact
and logic that it evidences not the exercise of will but
perversity of will, not the exercise of judgment but defiance
thereof, not the exercise of reason but rather of passion or
5
bias.” Id. at 384-385.6
IV. Magistrate’s consideration of credibility
Our prior case law recognizes the propriety of an
examining magistrate’s considering the credibility of
witnesses. In People v Paille #2, 383 Mich 621, 627; 178 NW2d
465 (1970), the examining magistrate, when faced with several
collusive witnesses, was struck with their inability to
coordinate their testimony. He concluded that their testimony
was incredible and “could not possibly convince a
disinterested arbiter of facts of their good faith or their
truthfulness.” Id. at 624. They were, as he described it,
engaged in “calculated prevarication to the point of
perjury . . . .” Id. This Court, in reviewing the matter,
indicated that a magistrate in determining whether a crime has
been committed has not only the right, but the duty, to pass
judgment on the credibility of the witnesses.7 Id. at 627.
6
While the propriety of utilizing the Spalding test in
criminal cases has been questioned, People v Williams, 386
Mich 565, 573; 194 NW2d 337 (1972), and People v Talley, 410
Mich 378, 393-397; 301 NW2d 809 (1981) (Levin, J., concurring)
overruled in part on other grounds, People v Kaufman, 457 Mich
266, 276; 577 NW2d 466 (1998), we have continued to utilize
the Spalding test, People v Hine, 467 Mich 242, 250; 650 NW2d
659 (2002); People v Jackson, 467 Mich 272, 277; 650 NW2d 665
(2002), and find no occasion to revisit this question today.
7
Similar statements authorizing the examining magistrate
to assess the credibility of witnesses are found in Talley,
supra at 386, People v King, 412 Mich 145, 152-154; 312 NW2d
629 (1981), and Justice, supra at 343 n 14 (citing King with
(continued...)
6
While this holding clearly allows a magistrate authority
to consider the credibility of witnesses, we have also
instructed examining magistrates to not refuse to bind a
defendant over for trial when the evidence conflicts or raises
reasonable doubt of the defendant’s guilt. Yaner v People, 34
Mich 286, 289 (1876), Doss, supra at 103, and Goecke, supra at
469-470.8
With regard to expert testimony, after the expert has
been properly qualified by the court,9 credibility
determinations are generally handled in the same manner as for
lay witnesses.
V. The magistrate’s decision
Analysis of a blood sample by a laboratory revealed
Monique died from an overdose of Imipramine.10 Dr. Virani
testified that he did not find any pill residue or granular
material in Monique’s stomach during the autopsy. He used
7
(...continued)
approval).
8
There is some tension between these two principles.
However, we find no need to clarify the interplay between
these two principles in this opinion.
9
As we stated in People v Christel, 449 Mich 578, 587;
537 NW2d 194 (1995), before permitting expert testimony, the
court “must find that the evidence is from a recognized
discipline, as well as relevant and helpful to the trier of
fact, and presented by a witness qualified by ‘knowledge,
skill, experience, training, or education . . . .’ MRE 702[.]”
10
This medication had been prescribed to Monique to help
prevent bedwetting.
7
this fact as the basis for his opinion that Monique had not
taken the pills intact, i.e., the pills probably had been
liquified and then ingested. Dr. Virani also opined that
children at the age of seven do not commit suicide. Putting
these propositions together, Dr. Virani concluded that a
crime, homicide, had taken place.
Defendant called several expert witnesses. Dr. Fleisher,
a pharmacology expert, calculated that Monique had taken
eighty-nine Imipramine pills and, because he was familiar with
the dissolution characteristics of Imipramine, concluded there
was no reason to expect to find pill residue in Monique’s
stomach even if she had taken the pills whole. A forensic
pathologist, Dr. Simson, testified that, having considered Dr.
Fleisher’s dissolution testimony, he was not surprised that no
pill residue was found and he could not conclude that a
homicide had occurred. Finally, Dr. Berman, an expert in
suicidology, testified that while rare, children as young as
seven have been known to commit suicide.
The magistrate in stating his ruling indicated that Dr.
Virani’s two major premises were rejected as “not credible.”
First, he disregarded Dr. Virani’s opinion that there would
have been pill residue in Monique’s stomach if the pills had
been taken intact because Dr. Virani was not qualified in
pharmacology or pharmaceutics and because this conclusion was
8
“completely refuted” by qualified defense expert testimony.
Second, he disregarded Dr. Virani’s conclusion that children
as young as seven do not commit suicide because Dr. Virani had
limited training in psychiatry or psychology and because this
conclusion was refuted by Dr. Berman. The gist of this was
that the magistrate thought Dr. Virani was simply not
qualified as an expert in these two areas. Having rejected
these two points of Dr. Virani’s testimony, the magistrate
concluded that one would have to speculate to conclude that a
homicide had occurred. Moreover, if a homicide did occur,
there was little to link the defendant to it. Thus, the
magistrate refused to bind defendant over.
VI. The circuit court’s opinion
The circuit court found that there was credible expert
testimony on both sides and, thus, the magistrate had exceeded
his authority by comparing the credibility of the experts.
The court stated that Dr. Virani’s expert opinion was not
inherently incredible or unbelievable and, given the
conflicting expert opinions, it was the responsibility of the
fact-finder, not the magistrate, to resolve them.
The circuit court further indicated that, leaving aside
Dr. Virani’s two premises, there was enough other credible
circumstantial evidence from which one could conclude that
Monique’s death was a homicide and that defendant killed her.
9
Circumstantial evidence included that (1) defendant had the
opportunity to give Monique the pills because she was alone
with the child during the day when the child ingested the
pills and died, (2) there was evidence of motive in that
defendant was angry and frustrated with Monique and had been
punishing her (for leaving the yard without telling anyone) at
the time Monique ingested the pills, (3) defendant initially
told the police after Monique’s death that all the family’s
medications were accounted for and that Monique could not have
gotten into any of them, (4) defendant failed to tell the
police at that time that Monique had previously been taking
Imipramine, (5) three days after Monique died forty-six
Imipramine pills mysteriously appeared in an upstairs room on
the second floor, when, according to a neighbor, no pills were
present in the room the day after Monique died, and (6) after
the pills were “discovered,” defendant told the police the
pills must have been what killed Monique (this was before the
toxicology report had been completed).
On the basis of all these, the judge concluded that these
circumstances were sufficient to warrant a conclusion by a
cautious person that the defendant had committed murder. The
judge observed that the defendant was free to argue at trial
that Monique committed suicide, but the possibility of suicide
did not preclude a bindover of defendant where there was
10
sufficient other proof of homicide. Thus, the circuit judge
concluded that the magistrate had abused his discretion and
the charges should be reinstated.
VII. Analysis
After carefully reviewing this matter, we agree with the
circuit court that the examining magistrate abused his
discretion in refusing to bind defendant over for trial.
The magistrate rejected Dr. Virani’s opinion testimony
that the lack of pill residue suggested the pills were not
taken whole, but liquified first and then swallowed. It was
the magistrate’s view that Dr. Virani was not qualified to
render such testimony where he did not know how long it took
Imipramine to dissolve in gastric juices. It is unnecessary
for us to determine whether this ruling regarding Dr. Virani’s
qualifications was correct because Dr. Virani’s conclusion was
echoed in the testimony of another expert, the toxicologist,
Dr. Evans, who, because of his own knowledge of the
dissolution characteristics of Imipramine, concluded that,
given the large number of pills taken, residue should have
been present.11
11
The district court’s written opinion never mentioned Dr.
Evans’s testimony, and thus it is unclear that this testimony
was ever considered. This omission is significant because it
suggests that the district court, in making its bindover
decision, overlooked significant evidence that was relevant to
whether there was probable cause to bind over defendant for
trial. Dr. Evans’s testimony tended to support the
(continued...)
11
The second opinion component of Dr. Virani’s testimony
was that children at the age of seven do not commit suicide.
Again, we need not deal with the ruling on Dr. Virani’s
qualifications in this area because the bindover decision
could be made without expert testimony on the propensity of
children to commit suicide. There were proofs in this case
that would cause a cautious individual to have probable cause
to believe that the prosecution had circumstantially
established that defendant had committed murder. This is not
to say that at trial a fact-finder could not be convinced that
the child self-administered the pills, but that the
prosecution has no duty at the preliminary examination to
negate that theory to get defendant bound over for trial. It
is enough that a reasonable person could believe that a crime
by poisoning was shown and that defendant had motive12 and
11
(...continued)
prosecutor’s theory of the case while Dr. Fleisher’s tended to
support the defense’s theory. Because the testimony of both
experts was relevant to a substantial, disputed issue in this
case, and because each witness’s testimony was competent and
credible, resolution of the conflict between them should have
been left for the fact-finder at trial.
12
The testimony established more than one possible motive.
As the circuit court noted, defendant was angry and frustrated
with Monique’s behavior of leaving the yard without telling
anyone where she was going. However, in addition to anger and
frustration, there were other possible motives. Defendant
told the police that Child Protective Services had been out to
the house because Monique had said that defendant had
mistreated her. Also, there was testimony that defendant knew
the prosecutor’s office wanted to interview Monique regarding
(continued...)
12
opportunity, as well as arguably incriminating actions and
explanations.
In sum, we agree with the circuit court that the expert
testimony in tandem with the circumstantial evidence, which
included evidence relating to motive and opportunity, was
sufficient to warrant a bindover. We conclude that the
magistrate failed to give any weight to Dr. Evans’s expert
testimony when he should have, failed to give any weight to
the lay testimony related to defendant’s possible motive13 and
opportunity, and gave undue weight to the testimony regarding
the propensity of children to commit suicide.14 Thus, the
magistrate abused his discretion when he concluded from all
the evidence that probable cause to bind defendant over for
trial did not exist.
12
(...continued)
allegations that she had been molested by a teenager who had
previously stayed at their house and that the teenager had
indicated that Monique’s nine-year-old brother had been
molesting Monique. Further, neighbor Mary Jo Sheldon
testified that just a few days before Monique died Monique had
told her that her brother and father had molested her. Ms.
Sheldon indicated that she reported this to defendant and that
defendant slapped Monique and called her a liar.
13
While motive is not an element of the crime, evidence
of a possible motive was relevant to the bindover decision in
this case.
14
While a child’s propensity to commit suicide was
potentially relevant to whether a crime was committed and to
the defense’s theory of the case, the conflicting testimony on
this issue amounted to the type of disputed fact that should
normally be resolved by the trier of fact.
13
The fact that the magistrate may have had reasonable
doubt that defendant committed the crime was not a sufficient
basis for refusing to bind defendant over for trial. As we
stated in Justice, supra at 344, a magistrate may legitimately
find probable cause while personally entertaining some
reservations regarding guilt.
For these reasons we affirm the judgment of the circuit
court.
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
CAVANAGH, WEAVER, and KELLY, JJ.
We concur in the result only.
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
14
People v. Yost
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