People v. Khoury

• Decision Date: 21 November 1989
• Docket Number: Docket No. 97912
• Citation: 181 Mich.App. 320,448 N.W.2d 836
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jim W. KHOURY, Defendant-Appellant. 181 Mich.App. 320, 448 N.W.2d 836
• Court: Court of Appeal of Michigan — District of US

Page 836

448 N.W.2d 836

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jim W. KHOURY, Defendant-Appellant.

Docket No. 97912.

181 Mich.App. 320, 448 N.W.2d 836

Court of Appeals of Michigan.

Submitted Nov. 15, 1988.

Decided Dec. 4, 1989.

Released for Publication Nov. 21, 1989.

[181 MICHAPP 322] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Crim. Div., Research, Training and Appeals, and Don W. Atkins, Principal Atty., Appeals, for the People.

Dykema, Gossett, Spencer, Goodnow & Trigg by Kathleen McCree Lewis and Glenn A. Jackson, Detroit, for defendant-appellant.

Before HOLBROOK, P.J., and MICHAEL J. KELLY and BURNS, ^* JJ.

HOLBROOK, Presiding Judge.

Defendant appeals as of right his June 2, 1986, bench trial conviction of statutory manslaughter, i.e., death from a firearm pointed intentionally but without malice, M.C.L. Sec. 750.329; M.S.A. Sec. 28.561, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A Sec. 28.424(2). The trial court denied defendant's motion for a new trial or dismissal of the charges on January 21, 1987. We affirm.

On June 27, 1985, at about 7:30 p.m., defendant, an on-duty uniformed Romulus police officer, was [181 MICHAPP 323] dispatched in a marked police car to an apartment complex at which a fight was reported in progress, possibly involving knives and baseball bats. The trial testimony of more than a dozen eyewitnesses varied concerning the particulars leading to defendant's shooting James Hester, one of the fight participants, in the head.

When defendant arrived, Hester and Marvin Boyd were fighting, facing each other. Defendant took out a gun and approached Hester from behind and to the left. Hester showed no awareness of defendant's presence. Two witnesses testified that defendant cocked the gun, then touched Hester's temple with the gun. When Hester moved his head and upper body away from defendant, the gun discharged. Most witnesses agree that Hester was holding a knife when he was shot, although testimony varied regarding the position in which Hester was holding it. Defendant, on the other hand, testified that he never cocked the gun or touched Hester's head with it. Contrary to the testimony of several witnesses, defendant claimed that he yelled "Break it up" at Hester and Boyd several times while approaching them. When Hester pulled a knife, defendant got out his gun. Ignoring defendant's repeated request to put the knife down, Hester swung the knife up. Defendant thought Hester was going to stab Boyd, but Hester swung at defendant and as defendant pulled his arm back, Hester hit defendant's left arm with his wrist. Defendant's gun accidentally fired in his other hand.

Originally charged with second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), defendant was bound over to circuit court on the lesser offenses of manslaughter, death by firearm pointed intentionally, M.C.L. Sec. 750.329; M.S.A. Sec. 28.561, and common-law [181 MICHAPP 324] manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553, as well as felony-firearm. The circuit court subsequently quashed the common-law manslaughter and felony-firearm charges. In an interlocutory appeal, this Court reversed that portion of the trial court's pretrial order which quashed the felony-firearm charge, unpublished order of April 7, 1986 (Docket No. 91090).

On appeal, defendant first claims that the prosecution presented insufficient evidence to support the involuntary manslaughter conviction, citing People v. Morrin, 31 Mich.App. 301, 310, 187 N.W.2d 434 (1971). Defendant contends that there was insufficient evidence that Hester's death resulted without lawful justification (self-defense or defense of Boyd) or excuse (accident), the third element of the crime charged. See People v. Duggan, 115 Mich.App. 269, 271, 320 N.W.2d 241 (1982), lv. den. 417 Mich. 857 (1983). As noted by the Duggan Court, to support a conviction under M.C.L. Sec. 750.329; M.S.A. 28.561 it is necessary only that the prosecution show that defendant intentionally pointed a firearm at decedent and that decedent died as a result of the subsequent discharge of the firearm.

Here, defendant admitted that he aimed the gun at Hester's head, and has never claimed that the pointing of the gun at Hester was other than intentional. Viewed in a light most favorable to the prosecution, the prosecution introduced evidence sufficient to justify a rational trier of fact in finding that Hester's death resulted without lawful excuse. ¹

[181 MICHAPP 325] Concerning whether sufficient evidence was produced to show that defendant did not act in self-defense, we note that in People v. Doss, 406 Mich. 90, 102-103, 276 N.W.2d 9 (1979), our Supreme Court said that a police officer, like a private citizen, who claims self-defense must have reasonably and honestly believed himself to be in great danger and that his response was necessary to save himself. See also People v. Garfield, 166 Mich.App. 66, 78-79, 420 N.W.2d 124 (1988). Viewing the evidence in a light most favorable to the prosecution, a reasonable factfinder could have concluded that, whether or not defendant's belief was honest, defendant did not reasonably believe that he was in great danger from Hester. This is so because most prosecution witnesses testified that Hester never looked at defendant or was aware of defendant's presence. The same may be said of defendant's professed belief that Boyd was in danger from Hester. Testimony was presented showing that Hester held the knife in a defensive rather than an attack position, and that Hester did not go after Boyd in any way.

Defendant also takes issue with the following findings of fact:

Was he a threat to Mr. Boyd at that point? Well, I guess in one sense he was. He had a weapon displayed. But to invoke the defense of self, the threat must have been an immediate one so that to a person observing, even if that were not the fact, that the use of deadly force would have appeared to have been immediately necessary in order to prevent force of like character, deadly force to be used against another. [Emphasis added.]

Defendant contends that these findings show that the trial court applied the wrong legal standard in [181 MICHAPP 326] judging self-defense, first, by failing to analyze the circumstances surrounding the shooting as they appeared to defendant. We find that the trial court's reference to "a person observing" was merely a passing reference to the reasonableness standard set forth in Doss, supra. Second, defendant claims that these findings demonstrate that the trial court improperly required that defendant's response to Hester's actions be "immediately necessary" to justify self-defense. We note that our Supreme Court has held it erroneous to confine self-defense to the apprehension of immediate danger to life. See Brownell v. People, 38 Mich. 732, 738 (1878). However, in Pond v. People, 8 Mich. 150, 173-174 (1860), a case relied upon by defendant, our Supreme Court applied an "imminent danger" test. ² As in Pond, the focus of the trial court's inquiry in the comments quoted above was not on the imminence or the immediacy of the danger Hester posed to Boyd, but rather the reasonableness of defendant's claimed belief that Hester posed a danger to Boyd. Examined in context, the trial court's comments do not demonstrate a misapplication of the law. People v. Melvin Davis, 146 Mich.App. 537, 549-550, 381 N.W.2d 759 (1985).

We next consider defendant's claims that the felony-firearm statute, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), was not intended to apply to on-duty police officers, and is void for vagueness under both the federal and Michigan constitutions. ³ With regard to the first of these claims, we note that the issue was decided in defendant's earlier appeal in this case. A question of law decided by an appellate[181 MICHAPP 327] court may not be decided differently in subsequent appeal in the same case where the facts have not materially changed. Johnson v. White, 430 Mich. 47; 420 N.W.2d 87 (1988); Muilenberg v. The Upjohn Co., 169 Mich.App. 636, 640-641, 426 N.W.2d 767 (1988). Therefore, the doctrine of the law of the case prevents our review of the issue. With regard to the second of these claims, defendant cites People v. Howell, 396 Mich. 16, 20, 238 N.W.2d 148 (1976), and challenges the felony-firearm statute on the first two "vagueness" grounds there enumerated: (1) the statute does not provide fair notice of the conduct proscribed; and (2) it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense was committed. Specifically, defendant claims that he was denied notice because he could not learn that he had violated the felony-firearm statute until the prosecution assessed his defenses and the trier of fact judged them with regard to the underlying manslaughter charge. As a result, his ability to avoid violating the statute was curtailed. We disagree.

A vagueness challenge must be examined in light of the facts at hand. People v. Cavaiani, 172 Mich.App. 706, 714, 432 N.W.2d 409 (1988). Here, defendant was in possession of a firearm at the time he committed the felony of manslaughter. Had he refrained from pointing his gun at Hester's head, defendant could have avoided violating the manslaughter statute. Once having done that act, however, and the trial judge having found that Hester's resulting death was neither justified nor excusable, the judge was required to consider whether defendant possessed a firearm during the commission of a felony. This requirement does not confer unlimited discretion. Under the facts of this case, the felony-firearm statute provides fair notice [181 MICHAPP 328] of proscribed conduct and does not confer unfettered and unlimited discretion on the trial judge to decide...