People v. Choate, Docket No. 27550

• Decision Date: 16 January 1979
• Docket Number: Docket No. 27550
• Citation: 276 N.W.2d 862,88 Mich.App. 40
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Algene CHOATE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 862

276 N.W.2d 862

88 Mich.App. 40

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Algene CHOATE, Defendant-Appellant.

Docket No. 27550.

Court of Appeals of Michigan.

Jan. 16, 1979.

Released for Publication March 29, 1979.

James R. Neuhard, State Appellate Defender, John A. Lydick, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Rita C. Chastang, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and V. J. BRENNAN and CAMPBELL, ^* JJ.

KAUFMAN, Judge.

Defendant was charged with assault with intent to murder, in violation of M.C.L. § 750.83; M.S.A. § 28.278. Following a jury trial held October 15-27, 1975, defendant was convicted of assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279, and was sentenced to a prison term of 3 to 10 years. He appeals as of right.

On appeal, defendant raises several claims of error. These deal with 1) instructions on self-defense, 2) impeachment by a juvenile charge not resulting in conviction, 3) examination of a nine-year-old witness regarding religious beliefs, 4) failure to instruct on assault and battery, and 5) alleged prosecutorial misconduct. We find no reversible error and affirm the conviction.

I

Testimony at trial revealed that on July 1, 1975, defendant and his next-door neighbor, Lionel Beauchamp, got into a fistfight in the street in front of their homes. Some witnesses stated that defendant was the aggressor, while others placed the blame on Beauchamp. Most agreed, however, that after the two men had been fighting for a while, defendant's 13-year-old son Joey got a shotgun from the Choate residence and fired one or two shots at or near Beauchamp. Beauchamp then ran to his own front porch.

Defendant's testimony was that Beauchamp then advanced to the fence between the two lots, carrying a semiautomatic shotgun. According to defendant, Beauchamp proceeded to fire through the fence at defendant's 9-year-old son, Roger. Fearful for Roger's safety, defendant ran with him into the Choate residence.

Defendant stated that Joey Choate, who was already inside the house, then gave defendant a .30-caliber carbine. From the kitchen window, defendant saw Beauchamp on Beauchamp's front porch, loading and racking his semiautomatic shotgun.

Defendant testified that he and Roger both almost shot Beauchamp at this point, but defendant managed to restrain himself and to talk Roger out of shooting. Defendant's testimony continued:

"And at that point Lionel started to train the shotgun on the kitchen window right in front of where me and Roger were we were by the kitchen window at the kitchen table and when Lionel started this sweep with the gun towards the kitchen window I whipped up and fired. I was trying to shoot low at his hip but he kind of crouched when he fired and it caused the bullet to hit him a little higher.

"Q (by defense counsel:) Then what happened?

"A He fell down ".

II

On appeal defendant contends that the trial court erred reversibly in instructing the jury that defendant had a duty to retreat. The court stated:

"I also instruct you, members of the jury, that the law requires a person to avoid using deadly force if he can safely do so. If the defendant could have safely retreated but did not do so, his failure to retreat is a circumstance which you may consider together with all the other circumstances in determining in faith in repelling the danger then was justified in doing (sic). However, on the other hand if the defendant felt he was in imminent danger of death or serious bodily harm and deadly force was immediately necessary to repell (sic) such danger, he was not required to retreat or consider whether he could safely retreat. He is entitled to stand his ground under those circumstances and use such form or force as he believes is necessary to protect his person at that moment."

Defendant emphasizes the italicized portion of the above instruction. He argues that the court should have stated that one attacked in his own dwelling has no duty to retreat. Because of this omission, defendant states, the jury never even got to the tougher issues of who was the aggressor and whether the defendant used excessive force. We disagree with this analysis.

Jury instructions must be read as a whole, not extracted piecemeal from the transcript and assailed as reversible error. When the italicized portion, above, is read with the remainder of the quoted passage, with other instructions on self-defense, ¹ and with the evidence in the case, there is no error.

We must not lose sight of the foundation for the rule that one attacked "in his home" has no duty to retreat. It was expressed by Judge Cardozo in People v. Tomlins, 213 N.Y. 240, 243-244, 107 N.E. 496, 498; Ann.Cas.1916c, 916 (1914), and quoted in People v. Lenkevich, 394 Mich. 117, 121-122, 229 N.W.2d 298 (1975):

"It is not now, and never has been the law that a man assailed in his own dwelling, is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home. * * * The rule is the same whether the attack proceeds from some other occupant or from an intruder. It was so adjudged in Jones v. State (1884) (76 Ala. 8, 14). 'Why,' it was there inquired, 'should one retreat from his own house, when assailed by a partner or cotenant, any more than when assailed by a stranger who is lawfully upon the premises? Whither shall he flee, and how far, and when may he be permitted to return? ' " (Emphasis added.)

The above rationale simply does not apply to the facts of this case: defendant in his own kitchen, being aimed at by a person with a shotgun outside defendant's property. Even if defendant believed he could run faster than a bullet, the best place for him to retreat to was obviously further inside his own home not "to the fields and the highways" or anyplace else. When read as a whole, the instructions given fit defendant's theory of the case, which was that defendant shot Beauchamp because he honestly felt this was necessary to avoid death to himself or his children. In this situation, the court instructed, defendant had no obligation to retreat. We find no error.

III

Defendant next asserts that reversible error occurred when the prosecutor questioned 9-year-old Roger Choate about a felonious assault conviction:

"Q (by the prosecutor:) Now let me ask you this. Do you remember on the July 26th, 1975, were you convicted of a felonious assault?

"A About what?

"THE COURT: Well, the question is, were you convicted of felonious assault in the Juvenile Court?

"A I think so. I don't know.

"MRS. RITTER (defense counsel): He may not understand.

"THE COURT: Do you know what the term 'conviction' is? Were you found guilty of a felonious assault?

"A No.

"THE COURT: You were not found guilty of it?

"A No.

"THE COURT: Were you placed on probation?

"A No."

We agree that the above was error. A 9-year-old child cannot be "convicted" of felonious assault, but can only be found to come within the provisions of the juvenile code. See M.C.L. § 712A.18; M.S.A. § 27.3178 (598.18). While impeachment via a juvenile record is sometimes permitted in the court's discretion, see People v. Hawkins, 58 Mich.App. 69, 226 N.W.2d 851 (1975), here there was no juvenile record, but apparently a charge which was later dismissed. Arrests and charges not resulting in conviction may not be used for impeachment. People v. Falkner, 389 Mich. 682, 695, 209 N.W.2d 193 (1973).

Despite these observations, we find no prejudice to defendant. In the first place, Roger Choate denied having been convicted, and the court repeatedly instructed the jury that evidence came from the statements of witnesses, not the questioning of attorneys. Secondly, the prosecutor's questions were apparently the result of a good faith but mistaken belief. The prosecutor did not belabor or pursue the issue any further, and defense counsel did not object or seek a curative instruction. Finally, this one brief reference in defendant's 8-day trial was insignificant when compared with numerous other references to this witness's assaultive behavior, elicited by defense counsel or as part of the res gestae of the instant offense. For these reasons, we find the error harmless beyond a reasonable doubt. People v. Floyd, 71 Mich.App. 462, 464, 248 N.W.2d 586 (1976).

IV

Defendant also claims reversible error in the court's questioning of Roger Choate regarding his belief in God and Sunday school attendance. We find no error, since the questioning took place as part of an inquiry into Roger's sense of obligation to tell the truth, required by M.C.L. § 600.2163; M.S.A. § 27A.2163 for witnesses under ten years of age. People v. Booth, 58 Mich.App. 466, 228 N.W.2d 425 (1975...