People v. Green

• Court: Court of Appeal of Michigan
• Writing for the Court: MAHER; RILEY; WALSH
• Citation: People v. Green, 318 N.W.2d 547, 113 Mich.App. 699 (Mich. App. 1982)
• Decision Date: 04 May 1982
• Docket Number: Docket No. 50487
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Jessie GREEN, Defendant-Appellant. 113 Mich.App. 699, 318 N.W.2d 547

Page 547

318 N.W.2d 547

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Jessie GREEN, Defendant-Appellant.

Docket No. 50487.

113 Mich.App. 699, 318 N.W.2d 547

Court of Appeals of Michigan.

Submitted Nov. 9, 1981.

Decided March 2, 1982.

Released for Publication May 4, 1982.

[113 MICHAPP 700] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Andrea L. Solak, Asst. Pros. Atty., for the People.

Kim Robert Fawcett, Asst. State Appellate Defender, for defendant on appeal.

Before MAHER, P. J., and WALSH and RILEY, JJ.

MAHER, Presiding Judge.

I

Defendant was charged in a two-count information with second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and possession of a weapon during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). After a bench trial defendant was convicted of manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553, and acquitted of the felony-firearm charge. He appeals as of right.

The parties stipulated that the alleged victim, [113 MICHAPP 701] Willie Leonard, had died of a gunshot wound to the abdomen on August 17, 1979. Defendant claimed that he had killed Leonard in self-defense.

Defendant, testifying in his own behalf, gave the following version of the incident: On August 17, 1979, defendant met Leonard, whom he had known for about three years, at about 4 p. m. They both fell asleep in defendant's apartment at approximately 6 or 6:30 p. m. Before falling asleep, defendant saw some money fall out of Leonard's pocket and onto a love seat occupied by Leonard. After defendant had informed him that he had dropped the money, Leonard picked it up, counted it, and put it back in his pocket. Leonard subsequently left the room, returned 4 or 5 minutes later, and said that he wanted his money and that if he didn't get it he was going to "fuck [defendant] up."

At the time, Leonard had his hands under his coat and behind his back. Defendant got his rifle from the closet and came down the hallway toward Leonard. He stopped and asked Leonard to leave. Leonard responded, "Fuck you." Defendant then fired a shot into the baseboard near Leonard; Leonard continued to approach. Leonard then began to remove his hands from behind his jacket, and defendant shot him.

Defendant believed Leonard was carrying a weapon. He had seen Leonard on prior occasions in possession of a stiletto, which he usually kept in his car. On previous occasions defendant had seen Leonard act violently toward other people. Defendant once saw Leonard beat up another person for absconding with $12 that Leonard had entrusted to him.

[113 MICHAPP 702] At the conclusion of the trial, the trial court made the following statement:

"I find as a fact on August 16, 1979, at 1200 Selden, Building 801, Building [sic ] 452 the complainant, Willie Randolph Leonard, met his death as a result of being shot by the defendant, Kenneth Jessie Green, in the manner described in the autopsy report. I find that the defendant and the complainant were friends, known to each other prior to that day, and that on the occasion of the shooting that the two of them had engaged in an altercation, that that altercation was of short duration and that at some point in such altercation that the defendant claims that he believed that the decedent was going to do him some physical harm. He claimed the reason was that he believed--had to do with his prior knowledge of his proprneisites [sic ] for violence. He claimed that the fact that the decedent's hands were hidden added to the apprehension, fear and concern, and that his physically handicapped condition of having no fingers, made him apprehensive of significant injury, because he was not in a position to defend himself.

"I find the other elements of self-defense clearly shown and it is the question of the reasonableness of the defendant's belief that has caused the Court some concern. The description of the shooting comes into form. That of the physical evidence about which the prosecutor argues, and the defendant's statement. Taking in [sic ] in its best light, the defendant's statement, I do find there was substantial distance between the parties. I further find that that distance was described by the defendant while on the witness stand as between him and counsel's table, which appears to exceed fifteen feet. I find that the defendant never actually saw a weapon, indeed there was none. But he fired over that distance having apprehension that the decedant [sic ] was advancing on him. I find the defendant's claimed reasonableness is not reasonable, nor honest, as the Court perceives it. The Court appreciates the person who finds himself under attack is not required to make nice distinctions as to what is reasonable.

[113 MICHAPP 703] "I find the acts of the defendant are precipitated prior to that time, that he should not have done that which he did claiming to defend himself. I'm of the opinion instead the shooting of the deceased was done in anger, but in any event, self-defense has not been established."

II

A

As a panel of this Court pointed out in People v. Robinson, 79 Mich.App. 145, 261 N.W.2d 544 (1977), there is considerable controversy over the proper standard to be employed in determining when a person is justified in the use of deadly force. ¹ Analysis of the relevant case law reveals that the principal area of disagreement is over the following issue: In order to establish the validity of a claim of self-defense, must a defendant show only that he actually believed he was in danger of death or serious bodily harm, or must he also show that he reasonably believed that he was in such danger?

B

In People v. Burkard, 374 Mich. 430, 438, 132 N.W.2d 106 (1965), the Supreme Court referred to an "honest belief" standard in concluding that the trial court had incorrectly instructed the jury. However, careful examination of the Burkard opinion does not indicate that the Court intended to overrule sub silentio the long line of cases holding that "reasonable belief" is the proper standard. ²[113 MICHAPP 704] 2] Rather, Burkard stands for the proposition that the reasonableness of a defendant's belief that his life is in danger must be judged on the basis of the circumstances as they were perceived by the defendant, and not as they actually existed. ³

Subsequently, in People v. Lenkevich, 394 Mich. 117, 124, 229 N.W.2d 298 (1975), and most recently, in People v. Doss, 406 Mich. 90, 102, 276 N.W.2d 9 (1979), the Supreme Court indicated that "reasonable belief" is the right test. People v. Perez, 66 Mich.App. 685, 692, 239 N.W.2d 432 (1976) sets forth the correct analysis:

"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. 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, [113 MICHAPP 705] 235 N.W.2d 93 (1975); People v. Bright, 50 Mich.App. 401, 406, 213 N.W.2d 279 (1973)."

See also, People v. Cooper, 73 Mich.App. 660, 663, 252 N.W.2d 564 (1977).

C

We are unable to determine from the trial court's ruling whether or not it believed defendant's version of the circumstances confronting him before the shooting incident. Accordingly, we remand this case to the trial court for specific factual findings on the following issues: (1) the circumstances as they appeared to defendant prior to the shooting; and (2) whether defendant actually believed that he was in danger of death or serious bodily harm.

If the trial court indicates on remand that it believed defendant's version of the circumstances as he perceived them (set forth in Part I, supra ), and if it originally intended to find that defendant actually believed that he was in danger of serious bodily harm, then defendant is entitled to reversal of his conviction and discharge. Under defendant's version of the facts, if the trial court finds it truthful, we hold as a matter of law that defendant reasonably believed that his life was in danger. Given a specific set of factual findings, the reasonability of a defendant's actual belief that he is in danger is a question of law.

On the other hand, if the trial court specifically finds that defendant did not actually believe that he was in danger of serious bodily harm, then his conviction of manslaughter shall be affirmed.

[113 MICHAPP 706] Finally, in the event that the trial court finds that defendant actually believed that he was in danger of serious bodily harm but indicates that it disbelieved certain aspects of defendant's story, then the trial court shall make a legal determination of the reasonableness of defendant's belief. This legal determination will be subject to normal review--i.e., not under the "clearly erroneous" standard--by this Court.

III

Defendant has raised three other issues on appeal which merit relatively little discussion. First of all, defendant contends that the trial court imposed on him the burden of proving that he acted in self-defense in shooting Leonard. We do not believe that the trial court's use of such language as "I found the other elements of self-defense clearly shown ", and "self-defense has not been established", indicates that it was under the impression that defendant had the burden of proof on the self-defense issue. If the trial court had been under such an impression, reversal would be required. People v. Jackson, 390 Mich. 621, 212 N.W.2d 918 (1973). Reversal would be necessary in the instant case if the trial court had stated that defendant had not "shown" or "established" self-defense...