People v. Kemp

• Decision Date: 01 November 1993
• Docket Number: Docket No. 151691
• Citation: People v. Kemp, 508 N.W.2d 184, 202 Mich.App. 318 (Mich. App. 1993)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lamon Aurellio KEMP, Defendant-Appellant.
• Court: Court of Appeal of Michigan

Page 184

508 N.W.2d 184

202 Mich.App. 318

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lamon Aurellio KEMP, Defendant-Appellant.

Docket No. 151691.

Court of Appeals of Michigan.

Submitted Sept. 14, 1993, at Detroit.

Decided Nov. 1, 1993, at 9:45 a.m.

Released for Publication Dec. 3, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

Robert E. Slameka, Detroit, for defendant-appellant on appeal.

Before REILLY, P.J., and MICHAEL J. KELLY, and CONNOR, JJ.

REILLY, Presiding Judge.

Defendant was convicted, after a bench trial, of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). He was sentenced to a term of fourteen to twenty-five years of imprisonment for the murder conviction and a consecutive term of two years for the felony-firearm conviction. Defendant now appeals as of right. We remand for further proceedings.

Defendant's conviction arose out of the shooting death of Antoinette Compton. Ms. Compton was shot in a house owned by defendant's father where she sold cocaine for both defendant and his father. About four days before the shooting, defendant and the victim fought over missing money. In his statement to the police, defendant said that when he asked the victim about the money, she started "talking smart" and he hit her.

According to defendant's statement, on the day of the shooting someone called defendant's mother's house and made threats against defendant. Defendant believed that the victim was the person making the threats because of their prior argument. Upon learning about the threats, defendant and two of his cousins went to the house where the victim was staying. Defendant was armed with a semiautomatic rifle. Defendant's cousin, Jamal, was also armed with a rifle.

When defendant arrived at the house, the victim came to the door and opened it. According to defendant, the victim said, "You should have been dead motherfucker." Defendant noticed that the victim had a gun in her hand. The victim slammed the door shut as defendant approached the house. He then kicked in the door and went inside the house. Defendant stated that the victim was standing at the top of the stairs with a gun in her hand. ¹ Defendant said that he fired at the victim after she cocked her gun. Defendant fired about ten shots and then left the house and shot at the windows from the sidewalk. His cousin, Jamal, also shot at the windows.

Defense counsel argued that defendant shot the victim in self-defense. Counsel asserted that although defendant was the initial aggressor, he had decided not to take any action and fired only to protect himself. The trial court found that defendant caused the victim's death and that he acted with the requisite intent for second-degree murder. With regard to the issue of self-defense, the court stated:

I'm aware also that the prosecutor ... must prove a lack of self-defense. And I think there is some proving of that by the fact that even though the Court is not satisfied of premeditation, that there is some going to this home with these rather large guns and that there is a kicking open of this door, no intent to peacefully enter the premises in any way.

There is also an issue I think about the amount of force that you can use to be necessary to protect yourself at the time. And I think it's very clear that there is some allegation by at least one of the witnesses that there was a popping sound and then some other gunfire. That's not borne out by all the other witnesses and there is no physical evidence of that although there does not certainly have to be physical evidence of it. And then there is, quite frankly, a lot of unloading of gunfire it appears to the Court....

I'm satisfied that it's not a threat of minor injury. I'm also satisfied that Mr. Lamon Kemp probably reasonably and honestly thought he was in danger of being seriously injured by some gunfire since his statement says that at least the gun was being raised to be pointed at him. I don't know that that might not have been because he was standing there with that big rifle and whether or not the amount of force that he used back was as much as if he were acting in self-defense was reasonably necessary to protect himself from being killed or seriously injured.

I don't think that it's self-defense on the part of Mr. Lamon Kemp. I think the prosecution has proved that by showing that the way he entered, that he went to the home with the gun and that it's not clear that any shot was fired although the person who had control it seems of the premises may have had a gun. And therefore I find him guilty of murder in the second degree and felony firearm.

Defendant argues on appeal that the evidence presented at trial was insufficient to support his conviction of second-degree murder. He asserts that the court erred in not determining that he acted in self-defense or that he at least had a claim for imperfect self-defense that would reduce the crime from murder to voluntary manslaughter.

This Court reviews a challenge to the sufficiency of the evidence at a bench trial by viewing the evidence presented in the light most favorable to the prosecution to determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v. Petrella, 424 Mich. 221, 268-270, 380 N.W.2d 11 (1985).

When the right to a trial by jury has been waived by a defendant, the trial court, sitting as factfinder, must make specific findings of fact and state its conclusions of law. MCR 6.403; People v. Jackson, 390 Mich. 621, 627, 212 N.W.2d 918 (1973); People v. Legg, 197 Mich.App. 131, 134, 494 N.W.2d 797 (1992). Factual findings are sufficient as long as it appears that the trial court was aware of the issues and correctly applied the law. Id.

To establish the crime of second-degree murder, it must be determined that the defendant caused the death of the victim and that the killing was done with malice and without justification. People v. Harris, 190 Mich.App. 652, 659, 476 N.W.2d 767 (1991). Malice is the intent to kill, the intent to do great bodily harm, or the intent to create a high risk of death or great bodily harm with knowledge that death or great bodily harm will be the probable result. Malice may be inferred from the facts and circumstances of the killing. Id.

In Michigan, the killing of another in self-defense is justifiable homicide if the defendant honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm. People v. Heflin, 434 Mich. 482, 502, 456 N.W.2d 10 (1990). A defendant is not entitled to use any more force than is necessary to defend himself. People v. Deason, 148 Mich.App. 27, 31, 384 N.W.2d 72 (1985). Furthermore, the defense is not available when a defendant is the aggressor unless he withdraws from any further encounter with the victim and communicates such withdrawal to the victim. Id.; People v. Kerley, 95 Mich.App. 74, 82, 289 N.W.2d 883 (1980); People v. Peoples, 75 Mich.App. 616, 620-624, 255 N.W.2d 707 (1977).

In this case it is clear that defendant was not entitled to prevail on a "perfect" self-defense theory because he initiated and pursued the confrontation with the victim. At no time did he withdraw or attempt to withdraw from the confrontation. There was sufficient evidence on the record to support the trial court's finding that defendant was not acting in self-defense.

The question remains whether defendant was entitled to prevail on a theory of "imperfect" self-defense. Imperfect self-defense is a qualified defense that can mitigate second-degree murder to voluntary manslaughter. People v. Butler, 193 Mich.App. 63, 67, 483 N.W.2d 430 (1992). Where imperfect self-defense is applicable, it serves as a method of negating the element of malice in a murder charge. Heflin, supra, 434 Mich. at 509, 456 N.W.2d 10. Although the Michigan Supreme Court has not yet considered the viability of the theory of imperfect self-defense, panels of this Court have recognized the doctrine where a defendant would have been entitled to invoke the theory of self-defense had he not been the initial aggressor. Heflin, supra; Butler, supra; People v. Amos, 163 Mich.App. 50, 57, 414 N.W.2d 147 (1987).

Defendant asserts that he should have been convicted of voluntary manslaughter because, had he not been the initial aggressor, he would have been entitled to act in self-defense because he honestly and reasonably believed his life was in imminent danger or that there was a threat of serious bodily harm and he did not use any more force than was necessary to defend himself. However, we believe that the inquiry regarding the applicability of the doctrine of imperfect self-defense requires more than just a determination whether defendant was the initial aggressor. In determining whether an initial aggressor is entitled to a claim of imperfect self-defense, the focus is on "the intent with which the accused brought on the quarrel or difficulty." State v. Partlow, 90 Mo. 608, 617, 4 S.W. 14 (1887). See generally Perkins & Boyce, Criminal Law (3d ed), pp 1137-1143.

"[I]f one takes life, though in defense of his own life, in a quarrel which he himself has commenced with the intent to take life or inflict grievous bodily harm, the jeopardy in which he has been placed by the act of his antagonist constitutes no defense whatever, but he is guilty of murder. But if he commenced the quarrel with no intent to take life or inflict grievous bodily harm, then he is not acquitted of all responsibility for the affray which arose from his own act, but his offense is reduced from murder to manslaughter." [State v. Crisp, 170 N.C. 785, 793, 87...