People v. Dabish

• Decision Date: 22 January 1990
• Docket Number: Docket No. 107922
• Citation: 181 Mich.App. 469,450 N.W.2d 44
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Amer DABISH, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 44

450 N.W.2d 44

181 Mich.App. 469

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Amer DABISH, Defendant-Appellant.

Docket No. 107922.

Court of Appeals of Michigan.

Submitted Oct. 16, 1989.

Decided Dec. 18, 1989.

Released for Publication Jan. 22, 1990.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Crim. Div., Research, Training and Appeals, and Olga Agnello, Asst. Pros. Atty., for the People.

Richard Paul Zipser, Southfield, for defendant-appellant.

Before McDONALD, P.J., and MICHAEL J. KELLY and MURPHY, JJ.

MURPHY, Judge.

Following a jury trial, defendant was convicted of involuntary manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Thereafter, defendant was sentenced[181 Mich.App. 471] to 1- 1/2 to 15 years imprisonment on the manslaughter conviction with a consecutive two-year prison term on the felony-firearm conviction. Defendant now appeals and we affirm.

This matter involves the prosecution of defendant for the October, 1986, shooting death of undercover Detroit Police Officer Freddie Jackson. Jackson was working with his partner Adrian Ponder in an unmarked car trying to apprehend suspected car thieves near Idaho Street in Detroit. Both Ponder and Jackson were dressed in street clothes. Defendant was working alone at his business, Intrastate Distribution, Inc., located on Idaho Street.

Ponder testified that he and Jackson had been sitting in Jackson's unmarked car between Idaho and Midland Streets surveying the area for crime. Ponder saw three males walking south on Idaho on the side of the street opposite defendant's office. The three males walked up to defendant's car, a Monte Carlo, and looked inside. Two of them got into the car and the third stayed behind the car as a lookout. Ponder and Jackson decided to drive up to the Monte Carlo and block its path because they suspected the three were attempting to steal the car.

Jackson then put a portable blue oscillating light on the dashboard, plugged it in and drove up to the Monte Carlo. Ponder and Jackson, who had a portable radio in his hand, jumped out of the car and the three men ran away. Ponder took several steps away from Jackson's car when he heard a gunshot. Ponder then saw a man standing in the doorway of defendant's business with a gun aiming it at the officers. Ponder jumped behind Jackson's car, pulled his gun out, held up a badge, and identified himself as a police officer. The man at the door yelled, "Fuck you, you're not the police," and went into the building. Ponder then realized that Jackson had been shot in the face and chest. Ponder also noticed Jackson's gun was still in his holster, which was hidden under his jacket. When additional officers arrived, defendant was ordered out of the building and arrested.

Defendant testified that at approximately 7:50 p.m. on October 6, 1986, he was alone in his office. He was typing a letter when he heard noises coming from his car. He described the noises as the sound of car doors being opened. He got up and looked through the peephole and saw two people seated in the front seat of his car. He went to the bathroom where a shotgun was kept in the closet. The gun had been placed there in 1985 by his brother, in case he needed it for protection. Before October 6, he had never fired a gun.

When he returned and looked for the thieves, the front car doors were opened and there was no one in the car. He stepped into the doorway with the gun pointed toward the sky. He kept his leg in the doorway so the door would not close behind him. He saw a man standing next to his car and another man on the opposite side of his car. He asked what was going on and they did not answer. The man on the driver's side had his back to defendant and started to turn around while bent in a kneeling position with his hand on what looked like a gun. Defendant told the men to leave and, when they did not leave, he fired once. Defendant then threatened, "If you don't get the hell out of here, I'm calling the police." He did not believe that the man who had identified himself as a police officer was an officer. Defendant then went into his office and closed and locked the door. Defendant allegedly did not shoot at Ponder because he believed that Ponder did not threaten or try to kill him.

On cross-examination, defendant testified that at some point he went out of his office with a shotgun in his hand and he made the decision to point the gun at Jackson and pull the trigger. He admitted the shotgun was normally kept loaded in a closet with a round in the chamber and the safety switch off. He also testified that he did not care about his car and that it was not right to kill someone over a car. He further admitted that when he went out with his gun he had not called the alarm company or 911. The jury returned a verdict of guilty of involuntary manslaughter and felony-firearm. Defendant now appeals.

Defendant first contends that the trial court erred in failing to give his requested instruction on the misdemeanor offense of careless, reckless or negligent use of a firearm. We disagree because the evidence adduced at trial did not support the giving of such instruction.

Our Supreme Court in People v. Steele, 429 Mich. 13, 412 N.W.2d 206 (1987), explained that in People v. Stephens, 416 Mich. 252, 330 N.W.2d 675 (1982), it adopted a new rule addressing lesser included misdemeanor instructions that would better serve the goals of preventing harassment of the defendant, eliminating compromise verdicts, and avoiding jury confusion. Steele, supra, 429 Mich. pp 18-19, 412 N.W.2d 206.

The first condition of Stephens is that there be a proper request by the defendant for such an instruction. Second, there must be an appropriate relationship existing between the charged offense and the requested misdemeanor. Third, the requested misdemeanor must be supported by a rational view of the evidence adduced at trial. Fourth, if the prosecutor requests the instruction, the defendant must have adequate notice of it as one of the charges against which he may have to defend. Finally, the fifth condition is that the requested instruction not result in undue confusion or injustice. The trial court is vested with substantial discretion in determining whether the cause of justice would be served by giving lesser included misdemeanor instructions on the facts of any given case. Steele, supra, pp. 19-22, 412 N.W.2d 206.

In this case, the trial court instructed the jury on second-degree murder, manslaughter, and involuntary manslaughter. It denied defendant's request to instruct on careless, reckless, or negligent use of a firearm. See M.C.L. Sec. 752.861; M.S.A. Sec. 28.426(21) and CJI 11:3:01 and 11:3:03. Having carefully reviewed the record, we conclude that the third prong of the Stephens test has not been satisfied; that is, a rational trier of fact could not conclude that there was evidence to support the misdemeanor instruction.

Defendant testified that he made a conscious, mental decision to aim the gun at Jackson and pull the trigger so that the pellets would strike the victim. We conclude that this willful or conscious and knowing action by defendant precludes application of the reckless discharge instruction in this case. See CJI 11:3:03. Moreover, we note that defendant does not argue that he did not intend to shoot Officer Jackson, only that he did it with the belief that it was necessary for self-defense or the defense of his property. Therefore, as the evidence was not appropriate to support an instruction on reckless discharge of a firearm, the court did not err in refusing to give that instruction.

Defendant next contends that the trial court erred in refusing to instruct the jury that defendant had no duty to retreat from his place of business. We disagree.

Generally, Michigan has recognized that there is no duty to retreat and avoid using deadly force in one's home. Pond v. People, 8 Mich. 150, 175-176 (1860); People v. Crow, 128 Mich.App. 477, 488, 340 N.W.2d 838 (1983). See also People v. Joeseype Johnson, 75 Mich.App. 337, 341-343, 254 N.W.2d 667 (1977). This Court in Joeseype Johnson reversed a security guard's conviction for second-degree murder for shooting an assaultive theater patron. This Court rejected the rigid trial court instruction that the defendant had a duty to retreat. The Court limited its holding to the facts of the case:

For purposes of the present appeal, however, we need not and hence do not decide whether to expand the "no-retreat" exception to cover all persons who encounter deadly force in their places of business. We approach with caution a decision to enlarge an exception that has grown but little since its original Michigan enunciation in Pond v. People, 8 Mich. 150, 177 (1860). Especially is this so where extending the "no-retreat" exception might heighten the prospect that an individual will choose to shed another's blood rather than avoid a conflict.

On the other hand, the virtue of the common law is its resilience, its willingness to yield in the face of reason and common understanding. The choice is not whether to be for or against unnecessary killing. As with most of the law, the alternatives are neither so polar nor simplistic. To hold that a security guard, assigned to protect theater patrons, must flee to a place of safety when confronted by a deadly attack is to disregard the possibility that such a withdrawal might permit an aggressor to vent his anger on those patrons remaining in the crowded lobby.

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We hold as a matter of law that under the circumstances of this case a private security guard hired to maintain order and protect business invitees has no obligation to retreat when acting in the course of his employment, but may meet deadly force with deadly...