People v. Mroue

• Citation: 315 N.W.2d 192,111 Mich.App. 759
• Decision Date: 28 January 1982
• Docket Number: Docket No. 51722
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Faissal Youssif MROUE, Defendant-Appellant. 111 Mich.App. 759, 315 N.W.2d 192
• Court: Court of Appeal of Michigan (US)

Page 192

315 N.W.2d 192

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Faissal Youssif MROUE, Defendant-Appellant.

Docket No. 51722.

111 Mich.App. 759, 315 N.W.2d 192

Court of Appeals of Michigan.

Submitted Nov. 12, 1981.

Decided Dec. 15, 1981.

Released for Publication Jan. 28, 1982.

[111 MICHAPP 761] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and A. George Best, II, Asst. Pros. Atty., for the People.

Edward A. Khoury, Detroit (Carl Ziemba, Detroit, of counsel), for defendant on appeal.

Before CAVANAGH, P. J., and ALLEN and MacKENZIE, JJ.

ALLEN, Judge.

Defendant was convicted after a jury trial of voluntary manslaughter, M.C.L. § 750.321; M.S.A. § 28.553, and possession of a firearm in the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). He was sentenced May 21, 1980, to a suspended sentence for manslaughter and to the statutorily mandated two-year term for the felony-firearm conviction. He appeals by right, raising three issues, two of which require reversal and a remand for a new trial. Each of these issues involves the court's instructions on self-defense.

The charge against the defendant arose from an incident on July 30, 1979, during which the defendant, who was 18 years old at the time, shot and killed his father in the living room of their home. [111 MICHAPP 762] Defendant was charged with second-degree murder and was bound over on that charge.

At trial, several family members testified that the father had been a strict and violent man who kept the family in a constant state of fear. Defendant's older brother, Fauzi, testified that their father carried a gun at all times and had been treated for a mental disturbance. He said that the father often beat his sons, older daughters and wife, and had threatened the family with the gun. The defendant's mother also described her husband's violent temper and history of psychiatric problems. Similar testimony was elicited from two other children and from two psychiatrists who had treated the deceased. The defendant also described his father's tantrums, and said that his father had told him that he had killed six men in Brazil and would kill others if they did not obey him.

Defendant's mother, testifying with her son Fauzi as an interpreter, said that on the morning of July 30, 1979, the deceased appeared extremely depressed and said he was going to "take my clothes and just go and kill people".

Fauzi, the mother and two of the children described the incidents of the night of the homicide. Fauzi said that his father was angry because the defendant arrived home late from work on the evening of July 30, 1979, and that when his brother arrived, the father ordered him to go to the basement and told Fauzi to stay upstairs or he "would get the first bullet". The brother said he heard the defendant pleading with his father and heard the father threaten to kill the mother and his sister. Fauzi said his father came up the stairs, beating the defendant; that the deceased then began beating the mother and that, while this was [111 MICHAPP 763] occurring, defendant crawled to a china cabinet in the living room and returned with Fauzi's gun, which had been hidden there; that defendant fired two warning shots into the ceiling; that he saw the deceased point a gun at him and his mother, then pull back the hammer; that he thought that the deceased shot, and that defendant then shot the deceased; that the deceased staggered and fell onto a chair; that he (Fauzi) then took the gun from the defendant and kicked the gun from his father's hand. Fauzi testified that he took the gun fired by the defendant and went into the kitchen and that while he was there he heard more shots; that he returned to the living room and saw the defendant with the deceased's gun. The police arrived shortly thereafter.

The mother's testimony, as translated by Fauzi, paralleled that of Fauzi. She was impeached with a prior inconsistent statement she had given to the police, however, which indicated that she had run to the basement before any shots were fired. Defendant's two sisters, who had remained in the basement during the incident, said that the mother had run to the basement after the shooting.

Defendant took the stand in his own behalf and described the beating he had received and the beating he saw his father administering to his mother. He said that he pulled the gun and fired the warning shots, then fired at his father because he believed his father had pulled back the hammer on the gun. He said that he did not know who fired first, that all he saw was flashes. Defendant testified that after Fauzi took his revolver to the kitchen, the deceased began to "dig" for his gun, so he picked it up and fired. The defendant said that he fired the revolver because he believed that [111 MICHAPP 764] if he did not, he and the rest of his family would be killed.

Two police officers described the arrest of the defendant. They said that when they arrived, neither the defendant nor his mother appeared to have been beaten.

The Wayne County Medical Examiner testified that the deceased suffered five gunshot wounds, three of which were made by bullets entering through the back.

The jury was instructed on defendant's theory of the case, which was that the defendant had acted in self-defense, and on the prosecution's theory, which was that the family members were covering up the true facts of the incident to protect the defendant and that the defendant had used excessive force to stop the beating.

The jury was instructed on second-degree murder, voluntary manslaughter and involuntary manslaughter as lesser-included offenses of second-degree murder, and reckless discharge of a firearm. They also were instructed on self-defense. The self-defense instruction, taken from CJI 7:9:02, stated in part:

"The law requires a person to avoid using deadly force if he can safely do so. If the defendant could have safely retreated but did not do so, the failure to retreat is a circumstance which you may consider, together with all other circumstances, in determining whether he went further in repelling the danger than he was justified in doing.

"However, if the defendant believed that he was in imminent danger of death or serious bodily harm and that deadly force was immediately necessary to repel such danger, he was not required to retreat or consider whether he could safely retreat. He was entitled to stand his ground and use such force as he believed immediately necessary to protect his person."

[111 MICHAPP 765] At the close of the instructions, the defense attorney objected to the court's failure to instruct that there is no duty to retreat in one's own home.

The day after the jury was first excused to deliberate, the jurors requested that the instructions on voluntary and involuntary manslaughter be reread. After receiving no objection from counsel, the court reread the instructions on the two crimes. After the jury was excused to resume deliberations, defense counsel objected to the omission of the phrase "without justification or excuse" in the instruction on voluntary manslaughter. The trial court indicated that self-defense was not generally available as a defense for voluntary manslaughter, so the phrase was not needed in the instruction.

After deliberating for approximately one additional hour, the jury found defendant guilty of voluntary manslaughter and of having violated the...