People v. Cooper

• Decision Date: 01 March 1977
• Docket Number: Docket No. 24047
• Citation: 252 N.W.2d 564,73 Mich.App. 660
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Milton COOPER, Defendant-Appellant. 73 Mich.App. 660, 252 N.W.2d 564
• Court: Court of Appeal of Michigan — District of US

Page 564

252 N.W.2d 564

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Milton COOPER, Defendant-Appellant.

Docket No. 24047.

73 Mich.App. 660, 252 N.W.2d 564

Court of Appeals of Michigan.

March 1, 1977.

Released for Publication April 27, 1977.

[73 MICHAPP 661] James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., E. Brady Denton, Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and BASHARA and MAHER, JJ.

DANHOF, Chief Judge.

Defendant was convicted of second-degree murder, contrary to M.C.L.A. § 750.317; M.S.A. § 28.549, and sentenced to a term of from 10 to 20 years imprisonment. Defendant appeals by right.

Defendant claims that the self-defense instructions given by the trial judge were reversibly erroneous. The self-defense instructions complained of are indistinguishable from those given in People v. Shelton, 64 Mich.App. 154, 235 N.W.2d 93 (1975). It appears that here, as in Shelton, supra, the trial judge relied upon 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 906, Form No. 411, p. 1288, which states that a defendant "must satisfy the jury that that defense was [73 MICHAPP 662] necessary, that he did all he could to avoid it, and that it was necessary to protect his own life". (Emphasis added.) In Shelton, supra, at 157, 235 N.W. at 95, this Court said that that instruction "is at best misleading to the jury, giving them the impression that only actual necessity, not a reasonable but mistaken belief in necessity, would justify extreme action in self-defense". In addition, as in Shelton, supra, the trial judge's instruction that "Ill will of the victim and former quarrels and affrays could have nothing whatever to do with the respondent's peril", "implied that prior threats or conduct of the victim should not be considered". Id. The law is otherwise. People v. Giacalone, 242 Mich. 16, 217 N.W. 758 (1928), People v. Cameron, 52 Mich.App. 463, 217 N.W.2d 401 (1974). Although defense counsel failed to object to the above portions of the trial judge's self-defense instruction, the error is not waived when, as here, the trial judge improperly instructed the jury on the law of the case. Defendant had a right to have a properly instructed jury pass upon the evidence. People v. Townes, 391 Mich. 578, 218 N.W.2d 136 (1974), People v. Reece, 9 Mich.App. 108, 155 N.W.2d 870 (1967), see M.C.L.A. § 768.29; M.S.A. § 28.1052. The instruction here was confusing and misleading, and therefore warrants reversal. People v. Townes, supra, People v. Liggett, 378 Mich. 706, 148 N.W.2d 784 (1967).

People v. Perez, 66 Mich.App. 685, 692, 239 N.W.2d 432, 436 (1976), provides guidance in the formulation of appropriate instructions on self-defense:

"(W)e 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, People v. Burkard, 374 Mich. 430, 132 N.W.2d 106 (1965), People v. [73 MICHAPP 663] Sangster, 33 Mich.App. 712, 190 N.W.2d 317 (1971). 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, People v. Lenkevich, 394 Mich. 117, 124, 229 N.W.2d 298 (1975), People v. Shelton, 64 Mich.App. 154, 235 N.W.2d 93 (1975), People v. Bright, 50 Mich.App. 401, 406, 213 N.W.2d 279 (1973)." (Emphasis added.)

Although our holding with respect to the self-defense instruction requires reversal, we proceed to consider defendant's other assignments of error because they involve questions likely to be raised upon retrial of this cause. First, defendant claims on appeal that the trial judge erred in excluding certain testimony relating to a prior violent act by the victim, Liddell. After defendant testified that Liddell had once pulled a gun on him, he attempted to testify that Liddell had shot defendant's brother. The trial judge sustained the prosecutor's objection and instructed the jury to disregard the testimony. Because defense counsel made no attempt thereafter to lay a foundation for the admission of such testimony, we are unable to determine whether it would have been admissible, but we are of the opinion that under certain circumstances it would be.

The rule permitting a defendant who claims self-defense to offer proof of prior threats made against him by the victim and altercations between the defendant and the victim is well settled. People v. Ake, 362 Mich. 134, 106 N.W.2d 800 (1961), People v. Giacalone, 242 Mich. 16, 217 N.W. 758 (1928), People v. Tillman, 132 Mich. 23, 92 N.W. 499 (1902), People v. Cameron, 52 Mich.App. 463, 217 N.W.2d 401 (1974). "For an accused to prevail on a claim of self-defense, it must be shown that under all of the [73 MICHAPP 664] circumstances as they appeared to him at the time, he was in danger of suffering death or great bodily harm." People v. Cameron, supra, at 465, 217 N.W.2d at 403 (Emphasis added). Accordingly, evidence of specific violent acts or threats by the victim directed against the defendant is admissible "to show the defendant's apprehensive state of mind." Id. at 466, 217 N.W.2d at 403; People v. Giacalone, supra, at 21-22, 217 N.W. 758. Evidence of the victim's reputation for violence, on the other hand, is admissible for two purposes:

"It is held to be circumstantial evidence bearing on the state of mind of the defendant or on the question of which party was the aggressor in the affray." People v. Stallworth, 364 Mich. 528, 536, 111 N.W.2d 742, 746 (1961). (Emphasis added.)

"Where the evidence of propensity for violence is offered to corroborate other evidence that the victim of the assault was the aggressor, it whould (sic ) not be necessary to show knowledge on the part of the defendant of the victim's aggressive character. But on the issue of self-defense where the question is whether the defendant acted upon reasonable apprehension of danger, he must show that the other party's character or reputation for violence was known to him, or that threats of violence were actually communicated to him, since it is the defendant's state of mind or his belief of impending peril which is the subject of inquiry." I Jones, Evidence (6th Ed.), § 4.40, pp. 464-465.

Evidence of the specific act to which defendant attempted to testify, viz. evidence that Liddell shot defendant's brother, would not be admissible as evidence of Liddell's general reputation as a person having a violent character. People v. Cellura, 288 Mich. 54, 64, 284 N.W. 643 (1939). That specific acts of violence by Liddell would not be admissible to prove his general reputation for violence does not render proof of such acts inadmissible for any purpose, however. In People v. Rapier, 43 Mich.App.[73 MICHAPP 665] 297, 204 N.W.2d 339 (1972), a prosecution of the victim's wife for second-degree murder, defendant attempted to introduce evidence that the victim had raped four young girls, including her daughter and her niece. This Court...