People v. Deason

• Decision Date: 04 April 1986
• Docket Number: Docket No. 79839
• Citation: 384 N.W.2d 72,148 Mich.App. 27
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dan DEASON, Defendant-Appellant. 148 Mich.App. 27, 384 N.W.2d 72
• Court: Court of Appeal of Michigan — District of US

Page 72

384 N.W.2d 72

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dan DEASON, Defendant-Appellant.

Docket No. 79839.

148 Mich.App. 27, 384 N.W.2d 72

Court of Appeals of Michigan.

Submitted Oct. 3, 1985.

Decided Dec. 17, 1985.

Released for Publication April 4, 1986.

[148 MICHAPP 29] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Conrad J. Sindt, Pros. Atty., and Wendelyn M. Harris, Asst. Pros. Atty., for the People.

[148 MICHAPP 30] David S. Steingold, Detroit, for defendant-appellant.

Before WALSH, P.J., and GRIBBS and SHEPHERD, JJ.

PER CURIAM.

Following a three-day jury trial, defendant was convicted of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. He was sentenced to from 10 to 40 years in prison, with credit for 162 days served. Defendant appeals as of right. We affirm.

On November 11, 1983, William Parish died from a single stab wound to his heart. Parish was visiting with his friend, Daniel Nicholson, and the defendant, at the defendant's Battle Creek apartment. Defendant had placed Parish in some sort of a headlock. When Parish was released or broke loose from the hold, some of his shirt buttons were torn off. Parish became angry at the defendant. An argument ensued between the two men, during which the defendant plunged a folding pocket knife into Parish's chest. Parish ran out of the house and died in the driveway.

I

Defendant's theory at trial was that he reacted in self-defense. The jury was provided with the standard Criminal Jury Instructions for self-defense (CJI 7:9:01), second-degree murder (CJI 16:3:01), and manslaughter (CJI 16:4:04). The trial court denied defendant's request for the following instruction on imperfect self-defense:

"The law further states that, when a person kills another in self-defense but was not entitled to do so because he was being threatened with less than serious bodily injury, that he is guilty of the lesser included offense of manslaughter."

[148 MICHAPP 31] Defendant first argues that the trial court erred in denying his request for an instruction on imperfect self-defense.

The test for determining whether a defendant has acted in lawful self-defense is whether, according to (CJI) 7:9:01 which the trial court read to the jury, 1) defendant honestly believed that he was in danger, 2) the degree of danger which he feared was serious bodily harm or death, and 3) the action taken by the defendant appeared at the time to be immediately necessary, i.e., defendant is only entitled to use the amount of force necessary to defend himself. See also People v. Vail, 49 Mich.App. 578, 592-593, 212 N.W.2d 268 (1973), rev'd on other grounds 393 Mich. 460, 227 N.W.2d 535 (1975). The criminal jury instruction on self-defense does not state that the defense is not available when the defendant is the aggressor, although cases have generally considered that to be an additional limitation. See People v. Townes, 391 Mich. 578, 218 N.W.2d 136 (1974), People v. Vicuna, 141 Mich.App. 486, 493, 367 N.W.2d 887 (1985), and People v. Van Horn (On Remand ), 64 Mich.App. 112, 235 N.W.2d 80 (1975), lv. den. 397 Mich. 820 (1976).

"Imperfect self-defense" is a qualified defense which can mitigate an act of second-degree murder to voluntary manslaughter. People v. Morrin, 31 Mich.App. 301, 311, fn. 7, 187 N.W.2d 434 (1971), lv. den. 385 Mich. 775 (1971). This qualified defense has been invoked elsewhere than in Michigan where a defense of self-defense fails because the defendant was the aggressor, or maintained an unreasonable belief of danger, or reacted with an unreasonable amount of force. State v. Powell, 84 N.J. 305, 313, 419 A.2d 406 (1980).

Although the doctrine of imperfect self-defense has been codified in several jurisdictions (see e.g., Ill.Rev.Stat.1969, Ch. 38, Sec. 9-2[b] ) and is recognized [148 MICHAPP 32] in the Model Penal Code (Sec. 3.09 ), the doctrine has not been explicitly recognized in Michigan to the extent urged by defendant in this case. The doctrine has been applied only where the defendant would have had a right to self-defense but for his actions as the initial aggressor. People v. Vicuna, supra, 141 Mich.App. p. 493, 367 N.W.2d 887; People v. Springer, 100 Mich.App. 418, 298 N.W.2d 750 (1980), rem. on other grounds, 411 Mich. 867, 306 N.W.2d 100 (1981), rev'd on other grounds, 417 Mich. 1060, 335 N.W.2d 906 (1983).

Here, as noted above, the trial court read the standard criminal jury instruction on self-defense which does not contain a limitation where a defendant is the aggressor. There was evidence presented in this case from which the jury could reasonably conclude that defendant did not have an honest belief that he was in imminent danger of death or serious bodily harm and that he used more force than he could reasonably have believed necessary to eliminate the danger. Thus, an instruction on each of these factors would be necessary were we to adopt defendant's position.

Michigan courts, however, have not addressed this mitigating defense where a defendant merely asserts that he maintained an unreasonable belief or reacted with an unreasonable amount of force. Extension of this defense to such circumstances was alluded to by Judge now Justice, Levin, in a footnote in People v. Morrin, supra, 31 Mich.App. p. 311, fn. 7, 187 N.W.2d 434. We decline to extend the doctrine of imperfect self-defense to cover the circumstances of this case. Application of the defense to these facts would be a significant extension of prior case law and is more appropriately a matter for legislation, court rule, or appeal to the Supreme Court.

II

Defendant next argues that the trial court erred [148 MICHAPP 33] in failing to instruct the jury that the prosecution must prove the absence of provocation beyond a reasonable doubt in order to convict defendant of second-degree murder. This issue is without merit. We note initially that defendant did not object at trial to the portion of the jury instructions regarding the prosecutor's burden of proof. A conviction will not be reversed for errors in the jury instructions which were not objected to at trial unless manifest injustice would result. People v. Clayton, 97 Mich.App. 815, 816, 296 N.W.2d 177 (1980), lv. den. 409 Mich. 943 (1980).

In any event, provocation or the absence of provocation is not an actual element of the crime of second-degree murder or manslaughter which the prosecution must prove beyond a reasonable doubt. See People v. Doss, 406 Mich. 90, 98-99, 276 N.W.2d 9 (1979); People v. Van Wyck, 402 Mich. 266, 269, 262 N.W.2d 638 (1978). The standard criminal jury instructions read to the jury on second-degree murder (CJI 7:9:01) and voluntary manslaughter as a lesser included offense of murder (CJI 16:4:02) adequately informed the jury of the differences between the two offenses and the prosecutor's burden of proof.

III

Defendant next argues that the circuit court erred in denying defendant's motion to quash the information.

An examining magistrate's function is to determine whether a crime has been committed and whether there is probable cause for charging the defendant with that crime. M.C.L. Sec. 766.13; M.S.A. Sec. 28.931. The magistrate need not find positive proof of guilt but there must be evidence on each element[148 MICHAPP 34] charged or from which these elements can be inferred. People v. Doss, supra, 406 Mich. p. 101, 276 N.W.2d 9.

"The object of a preliminary examination is not to prove guilt or innocence beyond a reasonable doubt, nor should a magistrate discharge a defendant when evidence conflicts or raises reasonable doubt of his guilt; such questions should be left for the jury upon the trial. People v. Medley, 339 Mich 486; 64 NW2d 708 (1954)." Id., p. 103, 276 N.W.2d 9.

In reviewing the decision of a magistrate to bind over an accused, the circuit court judge may not substitute his judgment for that of the magistrate, but may reverse a magistrate's decision only if it appears on the record that there has been an abuse of discretion. People v. Talley, 410 Mich. 378, 384, 301 N.W.2d 809 (1981).

To charge the defendant here with second-degree murder, the magistrate must have been satisfied that there was sufficient evidence showing that William Parish died on November 11, 1983, that the death was caused by an act of the defendant, and that the defendant intended to kill or cause great bodily harm without justification or excuse. CJI 16:2:01. Daniel Nicholson, an eyewitness, testified that, on November 11, 1983, the defendant, Parish, and Nicholson were at the defendant's apartment. Nicholson testified that, after a verbal argument between Parish and the defendant, the defendant drew a knife. He further testified that the two men stood six to seven feet apart when Nicholson began to leave the room, the defendant "hit" the decedent in the chest with the knife, the decedent never hit or touched the defendant, and the decedent died in the driveway soon after he ran from the house.

We conclude that the magistrate did not abuse his discretion in binding defendant over for trial [148 MICHAPP 35] on second-degree murder and the circuit court properly denied defendant's motion to quash the information.

IV

Defendant also argues that there was insufficient evidence to support his conviction for second-degree murder. He claims that the prosecution did not meet its burden of proving that defendant was not acting in self-defense.

When a defendant introduces evidence of self-defense, the prosecution bears the burden of excluding the possibility that the defendant acted in self-defense. People v. Norwood, 123 Mich.App. 287, 296, 333 N.W.2d 255 (1983), lv. den. 417 Mich. 1006 (1983). The jury was so instructed in the present case. The standard of review for a sufficiency of the evidence claim is whether a rational trier of fact could find that the elements of the crime were proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (...