Michigan Supreme Court Lansing, Michigan
Megan K. Cavanagh, Chief Justice Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas Noah P. Hood,
Justices
Order
July 25, 2025 168506 & (18)
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v SC: 168506
COA: 374212
Macomb CC: 2024-002935-FC
DAMAREE DARVELL TERRY,
Defendant-Appellant. _________________________________________/ On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal the March 19, 2025 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
BOLDEN, J. (dissenting).
I respectfully dissent from the decision to deny leave. This case arrived in our Court on interlocutory appeal from the denial of defendant's motion to quash the information and dismiss the charges against him.
The preliminary examination is a statutory right that allows a magistrate "to determine whether a felony was committed and whether there is probable cause to believe the defendant committed it." People v Yost, 468 Mich 122, 125-126 (2003); see also MCL
766.13. If there is not probable cause to charge a defendant, the defendant must be discharged and may not be bound over for trial. MCL 766.13. Probable cause is not a mere formality, but rather a procedural safeguard. It serves "as a screening device to [e]nsure that there is a basis for holding a defendant to face a criminal charge." People v Weston, 413 Mich 371, 376 (1982). An unsupported bindover subjects a defendant to extraordinary hardship: a reputational harm of felony prosecution, the financial and emotional toll of trial preparation, and the ongoing stigma and stress of a public accusation. Even when a jury ultimately acquits, the damage done by an unjustified prosecution is neither theoretical nor easily undone. That is why the probable-cause standard is meant to function as a meaningful gatekeeping mechanism. When that standard is applied too loosely—e.g., on the basis of speculation, generalized culpability, or legally insufficient inferences—it undermines both fairness and judicial economy. For these reasons, and because defendant presents a compelling argument that bindover in this case was improper, I believe careful appellate review is warranted. Therefore, I would remand this case to the Court of Appeals as on leave granted for full consideration.
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I. FACTUAL BACKGROUND
In this case, defendant was allegedly driving one of three vehicles that were traveling at extreme speeds through city streets in Warren. One of those vehicles, driven by codefendant James Hudson, struck another vehicle at high speed as Hudson's car drove through a red light, killing one of the passengers in the vehicle. Defendant's vehicle was not involved in the crash, and defendant was not apprehended by the police at the time of the accident, but he was later arrested. Following a preliminary examination, the district court bound defendant over to circuit court on charges of second-degree murder, MCL 750.317; reckless driving causing serious impairment of a body function, MCL 257.626(3); and first- and second-degree fleeing and eluding, MCL 257.602a(4) and (5). Defendant moved to quash the information and dismiss the charges, contending that his conduct was not the cause of the victims' injuries and deaths. The trial court denied the motion. Defendant pursued an interlocutory application for leave to appeal, which the Court of Appeals denied for lack of merit. People v Terry, unpublished order of the Court of Appeals, entered March 19, 2025 (Docket No. 374212). Defendant then sought leave to appeal in this Court.
II. LEGAL BACKGROUND
A district court's bindover decision is reviewed for an abuse of discretion. People v Anderson, 501 Mich 175, 182 (2018). An abuse of discretion occurs "when the trial court chooses an outcome falling outside [the] principled range of outcomes." People v Babcock,
469 Mich 247, 269 (2003). "To bind a criminal defendant over for trial in the circuit court, the district court must find probable cause to believe that the defendant committed a felony . . . ." People v Shami, 501 Mich 243, 250 (2018). This "requires sufficient evidence of each element of the crime charged, or from which the elements may be inferred, to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of defendant's guilt." Id. at 250-251 (quotation marks and citations omitted).
In the criminal-law context, "the term 'cause' has acquired a unique, technical meaning": it refers to factual and proximate causation. People v Feezel, 486 Mich 184, 194 (2010) (opinion by M. F. CAVANAGH, J.) (quotation marks and citation omitted). Factual causation exists where, " 'but for' the defendant's conduct, . . . the result would not have occurred . . . ." People v Schaefer, 473 Mich 418, 435-436 (2005). Proximate cause
"is a legal construct designed to prevent criminal liability from attaching when the result of the defendant's conduct is viewed as too remote or unnatural." Id. at 436. "For a defendant's conduct to be regarded as a proximate cause, the victim's injury must be a 'direct and natural result' of the defendant's actions." Id., quoting People v Barnes, 182 Mich 179, 198 (1914). "If the finder of fact determines that an intervening cause supersedes a defendant's conduct 'such that the causal link between the defendant's conduct and the victim's injury was broken,' proximate cause is lacking and criminal
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liability cannot be imposed." Feezel, 486 Mich at 195 (opinion by M. F. CAVANAGH, J.), quoting Schaefer, 473 Mich at 436-437. Whether an intervening cause supersedes a defendant's conduct is a question of "reasonable foreseeability." Schaefer, 473 Mich at
437.
"[A]iding and abetting is not a separate substantive offense. Rather, 'being an aider and abettor is simply a theory of prosecution' that permits the imposition of vicarious liability for accomplices." People v Robinson, 475 Mich 1, 6 (2006), quoting People v Perry, 460 Mich 55, 63 n 20 (1999). To establish that a defendant aided and abetted the commission of a crime, the prosecution must demonstrate that
(1) the crime charged was committed by the defendant or some other person;
(2) the defendant performed acts or gave encouragement that assisted the commission of the crime; and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time that the defendant gave aid and encouragement. [Robinson, 475 Mich at 6 (cleaned up).]
The elements of second-degree murder are: "(1) a death, (2) the death was caused by an act of the defendant, (3) the defendant acted with malice, and (4) the defendant did not have lawful justification or excuse for causing the death." People v Smith, 478 Mich 64, 70 (2007); see also People v Spears, 346 Mich App 494, 517 (2023) (explaining that the "without justification or excuse" component of second-degree murder is not an element so much as it is part of the "cluster of ideas" surrounding the offense). Malice is "the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and 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 (1998).
III. ANALYSIS
In this matter, the prosecution's theory of liability for second-degree murder is based on aiding and abetting. However, I question whether the preliminary examination record supports probable cause for the offenses charged against him. As this Court reaffirmed in Shami, the district court must find "sufficient evidence of each element of the crime charged, or from which the elements may be inferred, to ' "cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief" ' of the defendant's guilt." Shami, 501 Mich at 250-251, quoting Anderson, 501 Mich at 183, in turn quoting Yost, 468 Mich at 126. I am doubtful that standard was met here. First, the record reflects that defendant's vehicle did not strike the surviving victim's vehicle and did not cause the passenger's death. During the preliminary examination, Officer Nicolas Gushen testified that Hudson was the driver of the vehicle that entered the intersection on a red light and caused the crash, while defendant's vehicle "drove around
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the accident and continued on Westbound Ten Mile." Detective John Talos likewise confirmed that defendant's vehicle was not damaged and that it was not involved in the collision. The surviving victim was the only eyewitness to the crash, and he testified that only one vehicle struck his own: the one coming from the east at high speed, which was later confirmed to be driven by Hudson.
Further, there is no evidence in the record of communication between defendant and Hudson, no indication of a shared plan, and no testimony that defendant encouraged, aided, or even knew Hudson. The prosecution's aiding-and-abetting theory lacks the minimum factual predicate that the prosecution prove the defendant gave aid or encouragement and did so with knowledge of the principal's intent. Robinson, 475 Mich at 6. Next, second-degree murder requires a showing of malice. Viewing the evidence in the light most favorable to the prosecution, the act of driving at extremely high speeds while fleeing the police could support an inference of malice, because such conduct could reasonably be deemed as an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm. Accordingly, the record appears to satisfy a finding of probable cause on the element of malice. However, malice is only one of the required elements.
The prosecution also bore the burden of establishing probable cause for the causation element. Here, the testimony established that defendant's vehicle did not strike the victims' vehicle and did not contribute directly to the fatal collision. There was no evidence that defendant's actions set in motion the chain of events leading to the crash. Accordingly, even if malice could be inferred from his conduct, it would appear that the prosecution failed to present sufficient evidence to support the causation element of second-degree murder.
Most troubling, the district court's rationale for bindover was grounded in speculation rather than the evidence presented. The judge acknowledged that defendant's vehicle did not strike the victims' car, but reasoned that defendant "was a missile just as well as the one that struck" and that "but for the grace of god, he got—he could have hit someone too." This reasoning abandons the required evidentiary standard and replaces it with hypothetical culpability.
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I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. July 25, 2025
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Clerk The trial court's rationale for binding defendant over mirrors the reasoning given by a trial court to support a bindover decision that was reversed in People v Stafford, 434 Mich 125 (1990). There, this Court affirmed the Court of Appeals' conclusion that a magistrate had abused his discretion by relying on broad assumptions of guilt rather than assessing whether the elements of the crime had been supported with evidence. Given Stafford, I question whether the record indicates that defendant was bound over on the basis of the trial court's assumptions about his conduct and its hypothetical consequences rather than on probable cause to believe that defendant's actions met all the elements of second-degree murder. Given the closeness of this question, the similarities to Stafford, and the burdens imposed by a bindover decision, I believe further appellate review is warranted.
IV. CONCLUSION
Even under the deferential standard of review applicable to bindover determinations, the prosecution must present evidence—more than speculation—of probable cause as to each element of the charged felonies. Here, the record has me questioning whether there was evidence produced of the shared intent, coordination, or causation required to bind defendant over on a charge of second-degree murder. Accordingly, I would have remanded this case to the Court of Appeals to consider whether the district court's bindover decision constituted an abuse of discretion.
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