Marlinga doubts dismissal of 2nd-degreemurder
Question involves bar-punch death case
A Macomb County judge has taken the unique step to ask attorneys in a St. Clair Shores bar punch case to opine whether he has the authority to reinstate a second-degree murder charge to potentially correct a lower court judge.
Judge Carl Marlinga of Macomb
County Circuit Court in a six-page opinion asks Macomb prosecutors and the defense attorney for Hatum Akrawi to submit legal briefs on his authority to reinstate themurder charge or remand the case back to district court for reconsideration.
Akrawi, 33, was originally charged with second- degree murder and manslaughter for the death of Shawn Kubic, 47, of St. Clair Shores, after Akrawi punched him inside Kapone’s bar on Harper Avenue, south of 10 Mile Road.
Judge Mark Fr at arc angeli of 40th District Court in St. Clair Shores in September dismissed the murder charge and maintained the manslaughter count following a preliminary examination. Amedical examiner testified Kubic died from a head
injury from his fall to the degree murder floor.
Kubic’s family protested the decision outside the courthouse in the hours following the decision and protested again Oct. 6 at circuit court in Mount Clemens when Akrawi pleaded guilty to manslaughter. However, Marlinga did not accept the plea and took it under advisement. The next day he issued the opinion seeking input from the attorneys.
Kubic’s family wants secondto stick. It is punishable by any number of years up to life in prison while manslaughter is capped at 15 years behind bars.
In the opinion, Marlinga, who served 20 years as Macomb County prosecutor, wrote he believes Fratarcangeli may have mistakenly dismissed the murder charge based on what he has read in media reports.
“If the evidence at the preliminary examination is consistent with media reports, it would appear to this court that the district court may have made a serious legal error in binding thematter over on the manslaughter charge, rather than second-degree murder,” Marlinga wrote.
Marlinga says video from the incident that has been shown on broadcast media outlets “supplies sufficient evidence on all the elements necessary for bindover over on second-degree murder.”
He notes second-degree murder doesn’t require an intent to kill but can include whether a defendant “created a very high risk of death or great bodily harm, knowing that death or such harm would be the likely result of his or her actions.”
“From the video-tape alone, it appears that there is sufficient evidence to let a jury decided if the defendant ‘knowingly created a very high risk of … great bodily harm … knowing that such harm would be the likely result of his… actions,’” he says.
“It makes no legal difference whatsoever if the brain trauma which resulted in death was caused by the punch or by the fall.”
Marlinga concedes there are legal defenses Akrawi’s attorney could argue at trial but notes: “These are defenses at trial. It is not up to the district court judge to be both judge and jury.”
Still, Marlinga also acknowledges he cannot challenge the decision of Macomb prosecutors to refrain from appealing Fratarcangeli’s opinion. However, he asks prosecutors and defense attorney Joe Arnone to address whether he can “correct plain error of the district court,” and/or remand the case to district court to “clarify whether its bindover was premised on voluntary or involuntary manslaughter.” He also asks themto say whether they believe prosecutors can meet the timeliness standards to appeal Fratarcangeli’s decision at this point.
Marlinga also requested the transcript of the district court preliminary examination.
The next hearing in the case is set for Oct. 28.
The incident occurred last Dec. 22 when Kubic was at a bar table at Kapone’s and Akrawi “sucker punched” him while he wasn’t looking. Kubic fell backward to the floor and lay motionless until help arrived.
A second man, Johnny Zan Ritten berry of Warren, is accused of pouring a drink on Kubic as he lay on the floor. Kubic died five days later in a hospital.
Ritten berry was charged with assault and battery, a misdemeanor. A hearing in his case is scheduledfor Friday in 40th District Court.