A Macomb County judge denied one of two requests by a defense attorney to dismiss a second-degree murder charge against an 18-year-old Detroit man charged in a fatal crash that occurred while he was fleeing police.

Judge James Biernat Jr. maintained the second-degree murder charge against Tavion Smith, who is also charged with the lesser offense of causing the death of a pregnant individual and three other charges for the August 2023 crash that killed Faith Gumma, 31, her unborn child and injured her husband, Norman, then 34, and son, Elijah, then 2, in Sterling Heights.

Smith’s attorney, Adil Haradhvala, argued at an April 22 pretrial hearing that the language of both manslaughter and second-degree murder is so similar that prosecutors should charge the lesser offense. Manslaughter, which equates to gross negligence in civil law, carries a maximum penalty of 15 years in prison while second-degree murder is punishable by any number of years up to life.

“What we have is negligence, gross negligence,” Haradhvala said. “The appropriate charge would be manslaughter.”

But Assistant Macomb Prosecutor Steve Fox countered prosecutors can charge the higher offense and leave the ultimate conclusion as a “question of fact for the jury.”

Fox argued Smith’s “level of driving, type of driving, the speed, the running of multiple red lights, the sum total of the circumstances provides a basis for a jury to determine the defendant acted not just with negligence, gross negligence, but with malice — knowing what he did would lead to death or great bodily harm.”

Second-degree requires malice, which legally is “defined as the intent to kill, cause great bodily harm, or act in wanton or willful disregard of the likelihood that the natural tendency of such behavior could cause serious bodily harm or death,” without premeditation, according to Dallo law in Bloomfield Hills.

Voluntary manslaughter involves intentionally killing a person without malice while involuntary manslaughter is an “unintentional loss of life,” according to Flint-based attorney Matthew Norwood.

Haradhvala’s second legal motion that that day, a request to dismiss second-degree murder in favor of first-degree fleeing and eluding, was taken under advisement by Judge Biernat.

For that request, Haradhvala argued prosecutors must charge the more specific charge in a case, and contended second-degree murder is a more “general” charge.

Fox retorted the charges are different because second-degree murder involves a higher level of malice than what it is for first-degree fleeing and eluding, which, like manslaughter, is punishable by up to 15 years behind bars.

The incident occurred Aug. 12, 2023 after police officers attempted to conduct a traffic stop of Smith, 16 at the time, as he was driving a tan Chevrolet Equinox on eastbound 15 Mile Road near Van Dyke due to the vehicle’s left-turn being activated for nearly a mile. In the process, officers discovered the vehicle was not insured.

Smith sped away and was allegedly driving about 93 mph and drove through two red traffic lights while heading north on Van Dyke before crashing into the Gumma’s GMC Terrain at Metropolitan Parkway, police said.

The incident was captured on video.

Norman Gumma suffered a head injury, and $290,000 was raised on a gofundm.com page for his recovery. Elijah suffered fractured ribs and lacerated organs, from which he was expected to make a full recovery.

Haradhvala, who is court appointed, is Smith’s third attorney.

A July 22 trial has been scheduled, preceded by a June 12 pretrial. Smith is free on a $200,000 personal bond with GPS tether restrictions.