People v. Sizemore, Docket No. 20615

• Decision Date: 24 June 1976
• Docket Number: Docket No. 20615
• Citation: 245 N.W.2d 159,69 Mich.App. 672
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles E. SIZEMORE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 159

245 N.W.2d 159

69 Mich.App. 672

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles E. SIZEMORE, Defendant-Appellant.

Docket No. 20615.

Court of Appeals of Michigan.

June 24, 1976.

Released for Publication Sept. 14, 1976.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., E. Brady Denton, Jr., Pros. Atty., for plaintiff-appellee.

Before KELLY, P.J., and BRENNAN and DANHOF, JJ.

PER CURIAM.

Defendant, Charles E. Sizemore, was convicted by a jury of assault with intent to murder in contravention of M.C.L.A. § 750.83; M.S.A. § 28.278. He was sentenced to serve 10 to 20 years in prison and brings this appeal as of right.

Police Chief Frederick Enos, of the village of Chesaning, was given a restraining order pursuant to divorce litigation to be served upon defendant. Enos testified that just as he was leaving two men reported that the defendant was 'running around with a rifle'. Chief Enos immediately left for the Sizemore residence where he found only children at home. He then proceeded to another address where he heard that defendant had held a gun on one of the residents. The officer then proceeded back to the defendant's home and this time found defendant's car in the driveway. Chief Enos then proceeded onto the front porch and to the screen door at the main entrance of defendant's house.

At this point, testimony conflicted concerning what happened. Officer Enos testified that he 'hollered to Mr. Sizemore' and then opened the door and stood in the threshold. He testified that defendant suddenly appeared with the rifle and fired into the air, at which time he drew his own gun. Enos testified that defendant leveled his gun and shot at Enos who almost simultaneously fired at the defendant. The police chief was hit in the chest and defendant was nicked in the neck.

The defendant testified that he was sitting in his home at a table putting on a pair of cowboy boots when he heard the screen door close. He suddenly heard a noise, was struck in the neck and knocked to the floor. He then claims to have reached for his gun but does not remember whether he shot at the officer or not. Defendant further testified that he had been drinking, and that a short time before he had swallowed a large number of tranquilizing pills.

The screen door of defendant's home was found to have two small holes in it presumably from bullets discharged from defendant's rifle. The door was sent to a crime lab which issued a report stating that human tissue was found around one of the holes. The record does not show that this information was communicated to the prosecutor, although presumably it was. This information was not made available to the defendant.

Defendant brings a number of allegations of error on appeal, three of which merit decisional discussion. Defendant first contends that he was denied a fair trial because evidence regarding the presence of human tissue on the screen door was suppressed by the prosecutor.

The law is settled in Michigan that in a criminal case, the prosecution has an affirmative duty to make known all the evidence of which it has knowledge bearing on the charged offense, whether favorable or unfavorable to the prosecution, particularly when the evidence is in the possession or control of the prosecution. See People v. McCartney, 60 Mich.App. 620, 231 N.W.2d 472 (1975), and cases cited therein. In the case at bar, the record shows that the defendant requested the production of the test results on the screen door, but the record fails to show any objection to its nonproduction. Since this error could have been corrected by objection, absent a showing of a miscarriage of justice, we will not reverse. See People v. Murry, 59 Mich.App. 555, 229 N.W.2d 845 (1975). See also GCR 1963, 529.1 and M.C.L.A. § 769.26; M.S.A. § 28.1096.

Both prosecution and defense seem to agree that the question of whether Chief Enos had entered defendant's home, as defendant claimed, or whether he was merely standing in the doorway, as the prosecution claims, was a crucial issue with regard to defendant's claim of self-defense. The defendant seems to contend that his theory of self-defense is somehow strongly bolstered by showing that the officer had actually entered his house. We cannot agree with this reasoning. The law in Michigan is well settled that the use of deadly force in self-defense can only be justified where the defendant had a reasonable and honest belief that he was in imminent danger of death or great bodily harm. People v. Meert, 157 Mich. 93, 121 N.W. 318 (1909). The fact that somebody may enter another person's home without the owner's permission, and without give rise to a right do so, does not ipso facto give rise to a right on the part of the owner to shoot the intruder. Defendant's counsel correctly stated the law in his closing arguments, of which the following excerpt is instructive:

'Now, when you go to a house to talk to somebody, you don't walk in the door unless you are invited. And he, from his own testimony, opened that screen door. No question about it. He opened that screen door and stood on the threshold. What right does he have to go in that house? What right? I am not saying if a person walks in somebody's house you have a right to shoot them because you don't. If somebody walks in your house tomorrow, you don't have a right to shoot that person. There is no question about it.'

Thus, for a defendant to make out a claim of self-defense, he would need to contend and show that he had an honest and reasonable belief that he was in imminent danger of death or great bodily harm. In the case at bar, defendant did not so contend. Defendant testified that he could not remember shooting Chief Enos at all. There is nothing in the record to show that defendant had anything to fear from anyone. The laboratory report concerning the screen door only tends to show that Chief Enos may have been standing inside the door rather than in the threshold. Under the facts and circumstances of this case, we think that the question of whether Chief Enos was standing in the threshold or just inside the front door was of little or no consequence. We hold that the failure of the prosecution to make available to the defense the laboratory report on the screen door did not cause a miscarriage of justice, and moreover was harmless beyond a reasonable doubt. See People v. Roberson, 55 Mich.App. 413, 222 N.W.2d 761 (1974).

Defendant next contends that the trial judge committed reversible error by incorrectly instructing the jury on the intoxication defense. The record discloses that the trial judge instructed the jury as follows:

'I further charge you that the crimes of assault with intent to do murder and assault with intent to do great bodily harm less than the crime of murder are crimes of specific intent. If the defendant's mental faculties were so far overcome by intoxication or drugs that he was not conscious of what he was doing or did not know what he was doing, then he cannot entertain that specific intent and there being no such intent, the crimes of assault with intent to murder or assault with intent to do great bodily harm, less than murder, could not have been committed.'

Defendant contends that this instruction was reversibly erroneous in that it focused on a 'capacity' standard, such as was expressly disapproved in People v. Crittle, 390 Mich. 368, 212 N.W.2d 196 (1973). It is apparent that the trial judge's instructions were remarkably similar to the instructions given in Roberts v. People, 19 Mich. 401 (1870), which were disapproved in Crittle. In Crittle, the defendant was convicted of armed robbery and sentenced to serve 25 to 50 years in prison. The evidence was clear that the defendant was intoxicated at the time, and his sole defense was that he had intended to pull an April Fool's joke. His defense, therefore, was not that he lacked the...