PEOPLE
v.
KERLEY
Docket No. 78-3883.
Michigan Court of Appeals.
Decided January 22, 1980.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James D. Norlander, Prosecuting Attorney, and Samuel I. Durham, Jr., Assistant Prosecuting Attorney, for the people.
Peter Jon Van Hoek, Assistant State Appellate Defender, for defendant on appeal.
Before: BRONSON, P.J., and ALLEN and R.M. MAHER, JJ.
ALLEN, J.
Following a three-day trial by jury, defendant was found guilty of first-degree murder contrary to MCL 750.316; MSA 28.548. On June 28, 1979, he was sentenced to prison for life, and he appeals of right. He raises four claims of error.
On Friday evening, September 30, 1977, defendant shot and killed his brother-in-law, Lyn Amos. The shooting occurred in the kitchen of defendant's sister, Denise, where Denise and Amos had been living since their marriage some two weeks earlier. There was friction between the deceased and defendant over an alleged beating inflicted on Denise by the deceased. Defendant had arrived at the apartment earlier that evening with records. Present was the deceased, his 15-year-old brother, Phillip, and his 13-year-old sister, Jennell. Following some drinking by the deceased and defendant, *77 and what defendant alleged were antagonistic comments by the deceased, defendant left the apartment and went to his home where he secured a shotgun. He returned to the apartment but first left the gun in some bushes outside the building. He found Lyn and the two children in the living room.
Shortly thereafter defendant went back outside, secured the gun, and returned to the living room where he announced, "I heard you want to kick my ass", or words to that effect. The deceased responded by rising from the chair. At this point the testimony becomes conflicting. Defendant testified that when the deceased got up, he quickly retreated to the kitchen intending to go out the back door which he knew would jam unless opened slowly, that he had his back to the kitchen and was attempting to open the back door when he looked backward, saw the deceased six feet away coming towards him, and fired in self-defense. On the other hand, Jennell testified that when defendant entered the living room "he had the gun and pointed it at Lyn". Jennell also testified that after the defendant got to the kitchen, he goaded the deceased by calling to deceased, "come on, come on out". Both young people stated the shot was fired while defendant was standing in the back door with his foot holding the door open. According to Jennell, while defendant was holding the door open, he was aiming the gun at the deceased.
1. Proper Standard for Ruling on Motion for Directed Verdict of Acquittal.
Defendant contends that the evidence of premeditation and deliberation was so insufficient that defendant's motion for a directed verdict of acquittal should have been granted. We disagree. While there has been a division of opinion as to the *78 proper standard to be employed in ruling on a motion for a directed verdict of acquittal, e.g., compare People v Milton, 81 Mich. App. 515, 517; 265 NW2d 397 (1978), with People v Royal, 62 Mich. App. 756, 757-758; 233 NW2d 860 (1975), the Supreme Court in People v Hampton, 407 Mich. 354, 368; 285 NW2d 284 (1979), defined the proper standard as follows:
"[T]he trial judge when ruling on a motion for a directed verdict of acquittal must consider the evidence presented by the prosecution up to the time the motion is made, [People v] Garcia, [398 Mich. 250; 247 NW2d 547 (1976)], view that evidence in a light most favorable to the prosecution, People v Vail, 393 Mich. 460, 463; 227 NW2d 535 (1975), and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt, Jackson, [v Virginia, 443 U.S. 307; 99 S. Ct. 2781; 61 L. Ed. 2d 560 (1979)]."
Viewing the evidence in the light most favorable to the prosecution in the instant case, the record indicates that sufficient evidence was presented by the prosecution on the elements of premeditation and deliberation to avoid a directed verdict of acquittal under the standard set forth above.
2. Adequacy of Trial Court's Definition of the Terms "Premeditation" and "Deliberation", in Absence of Objection.
Though it would have been better had the trial court followed the CJI in defining the terms premeditation and deliberation, we find the instruction given was adequate. In support of our conclusion herein we refer to People v Bodley, 38 Mich. App. 27, 31-32; 195 NW2d 803 (1972), People v Fields, 64 Mich. App. 166, 169-170; 235 NW2d 95 (1975), People v Collins, 43 Mich. App. 259, 269; 204 NW2d 290 (1972). Milton, supra, is distinguishable *79 on the instruction issue since there, unlike the instant case, the basic error was the trial court's failure to distinguish first-degree murder from second-degree murder.
3. CJI 7:9:10 General Reputation and Specific Acts of Past Violence of Deceased.
Defendant contends that the trial court erred when it (a) prevented defendant from testifying as to the deceased's general reputation for violence in Battle Creek, and (b) limited the detail to which the defendant could testify as to specific acts of violence committed by decedent, which acts gave defendant reason to fear the deceased. Defendant had only lived in the community of Battle Creek three weeks, had only known deceased for three weeks and had not talked with anyone concerning decedent in Lansing where defendant had lived prior to coming to Battle Creek. Based on these facts, defendant was obviously disqualified to testify about decedent's general reputation, and the court so held. People v Walters, 223 Mich. 676; 194 N.W. 538 (1923), People v Perez, 66 Mich. App. 685, 693; 239 NW2d 432 (1976), lv den 397 Mich. 824 (1976), 1 Wharton's Criminal Evidence (13th ed), § 236, pp 511-512.
After making a separate record without the jury being present, the court did allow defendant to testify about specific acts of violence which defendant had heard about from defendant's family. Defendant stated he only heard about specific acts of violence from his own family. This testimony was properly admitted by the trial judge. People v Walters, supra, People v Knott, 59 Mich. App. 105, 108-110; 228 NW2d 838 (1975). See People v Cellura, 288 Mich. 54, 64; 284 N.W. 643 (1939). The court excluded only one incident, that being an occasion when deceased, while intoxicated, had *80 taken defendant's mother, father, and sister on a high-speed car ride and threatened that he was taking them to hell. We do not find the omission of this single incident prejudicial. Nor do we find that the trial court's exercise of discretion, in limiting the detail with which the specific acts of violence could be described, constituted reversible error.
4. CJI 7:9:01 Self Defense, and CJI 7:9:04 Communicated Withdrawal, Adequacy of Instructions Thereon in Absence of Objection.
Defendant contends that in its instructions to the jury on self-defense, the trial court erred in four particulars,[1] despite the fact that no objection was made and no alternate instruction was requested. We find defendant's claim without merit as to items (B) and (D). However, the alleged error as to claims (A) and (C), and in particular (A), present close questions. The trial court's instruction on item (C) was:
"In justification of the offense here charged against the defendant, he has interposed a plea of self defense. To make the plea available it must appear that the defendant was without fault on his part. If he, himself, was the aggressor in the conflict, he cannot invoke the doctrine of self defense as an excuse for the killing, unless at that time he reasonably believed in his own mind that he was in imminent danger of losing his own life or suffering from grievous bodily injury, and there was no way for him to retreat, as he saw it, and his only safety lie [sic] in firing the shot which caused the death of Lyndale Amos. The degree of danger which *81 must be feared is serious bodily harm or death." (Emphasis added.)
Citing CJI 7:9:01(3) and the commentary thereto at pages 191-194, defendant argues that error was committed because the court used the words "reasonably believed" rather than "honestly believed". See also People v Robinson, 79 Mich. App. 145, 156-161; 261 NW2d 544 (1977). For many years, Michigan case law alternately approved instructions using either the term "reasonably believed", People v Shelton, 64 Mich. App. 154, 156; 235 NW2d 93 (1975), People v Perez, supra, or "honestly believed", People v Burkard, 374 Mich. 430, 438; 132 NW2d 106 (1965), People v Robinson, supra. But as appears from the commentary to CJI, it is not the magic words "honestly" or "reasonably" which determine whether the instruction is proper. Instead, the test is whether the language, when read as a whole, makes it clear that defendant's conduct is to be judged from the circumstances as they appeared to the defendant rather than as they would appear to a third party. As was stated in Perez, supra:
"Without deciding whether the instructions given were reversibly erroneous, we think that two aspects of self-defense should be consistently emphasized in the instructions upon retrial. First, the self-defense justification for homicide is based upon the circumstances as they appeared to defendant, and not as they actually existed. [citations omitted] Second, those circumstances as they appeared to the defendant must result in a reasonable belief that he, the defendant, is in danger of death or serious bodily harm." 66 Mich App at 692.
The language used by the court was "reasonably believed in his own mind". As such, and given the fact that, unlike the situation in Robinson, no *82 objection was made, we believe the jury understood that defendant's justification for firing the gun was to be based on the circumstances as they appeared ("in his own mind") to the defendant.
A more difficult question is posed as to item (A). Defendant's theory was that he took the gun to deceased's apartment, not because he intended to shoot his brother-in-law, but because he feared the deceased's violent temper, and that as soon as deceased rose, threatening, from his chair, defendant retreated to the kitchen where he was trying to get out the back door when deceased advanced towards him and he shot in self-defense. Defendant argues that the jury may well have believed that when defendant entered the living room armed with the gun, he was the aggressor and therefore the jury was misled by the court's instruction that if the defendant was the aggressor, "he cannot invoke the doctrine of self-defense". Defendant asserts that even if he were the aggressor in the first instance, the doctrine of self-defense may still be invoked if the aggressor subsequently withdraws from any further encounter with his victim and reasonably makes the fact of his withdrawal known to the victim. In legal parlance this is known as the doctrine of "communicated withdrawal after provocation of conflict".[2] A jury instruction reflecting this doctrine is set forth in CJI 7:9:04. The issue before us is whether a CJI 7:9:04 instruction should have been given by the trial court even though no request was made.
In People v Peoples, 75 Mich. App. 616, 620; 255 NW2d 707 (1977), this Court in a 2-1 opinion held that on the facts of that case, a communicated withdrawal instruction should have been given *83 even in the absence of a request therefor, and in the absence of an objection to the instruction given. The evidence of that defendant's withdrawal was clear and uncontested.[3] In the case before us it is certainly not clear that defendant had abandoned his assault on deceased with a gun. According to the two other witnesses to the shooting, defendant had opened the door and was holding it open with his foot. Nothing prevented him from going out the door. Even if one assumes that defendant was retreating, and in good faith had given up the initial assault, there is no evidence that defendant effectively communicated this intent to the deceased.
We refuse to extend the holding in Peoples to a situation where, as here, the testimony is conflicting as to whether the defendant was withdrawing from the conflict or had reasonably informed his adversary of his intent to withdraw. The doctrine of communicated withdrawal may not be invoked unless the aggressor's intent to withdraw is clearly made known to his victim.
"The aggressor in or initiator of the conflict, in order to revive his right to self-defense, must not only withdraw, he must also announce or otherwise communicate his withdrawal or desire for peace to his adversary. In other words, the initial aggressor must withdraw or abandon the conflict in such a way that the fact of withdrawal is perceived by his opponent, so that his adversary is aware that he is no longer in any danger *84 from the original aggressor." 3 Am Jur, Proof of Facts 2d, § 3-705, p 712.
"Nor is this all; the aggressor must inform his antagonist of his purpose to withdraw from the conflict. If the circumstances are such that he cannot do this, it is attributable to his own fault and he must abide by the consequences. A mere momentary cessation of hostilities with no bona fide, clearly expressed intention to withdraw from the conflict is not sufficient to justify the original aggressor in killing in self-defense." 40 Am Jur 2d, Homicide, § 150, pp 438-439.
The majority opinion in Peoples concluded by stating that a communicated withdrawal instruction (CJI 7:9:04) was only necessary "where the particular factual situation supports such an instruction". 75 Mich App at 624-625. In our judgment, the facts in the instant situation do not support such an instruction.
Affirmed.
NOTES
[1] Defendant's brief subdivides this issue into components A, B, C and D as follows: (A) failure of the court to instruct sua sponte on withdrawal; (B) failure to define the terms "aggressor" and "assault"; (C) defendant's belief of death or harm must be an honest rather than a reasonable belief; (D) the cumulative effect of errors A-B-C resulted in manifest injustice even though no objection was made at trial.
[2] For discussion of the doctrine of communicated withdrawal see citations and authorities set forth in footnote 3 of People v Peoples, 75 Mich. App. 616, 621; 255 NW2d 707 (1977).
[3] Defendant Peoples and the deceased had been drinking with friends in a private home. They went outside and engaged in a fistfight. Upon reentering the home, defendant fired a shot over the deceased's head. After the shot was fired, the other persons present separated the two and persuaded defendant to leave the home. The deceased was restrained from going out to face defendant. Some one to five minutes after defendant left the house, the deceased was allowed to leave. In the instant case, the defendant had not left and only seconds intervened between the argument in the living room and the fatal shooting in the kitchen.