Solomon v. Shuell

• Decision Date: 03 July 1990
• Docket Number: Docket No. 82658
• Citation: 457 N.W.2d 669,435 Mich. 104
• Parties: Estate of Joseph SOLOMON by Charlotte Solomon, Personal Representative, Plaintiff-Appellant, v. John SHUELL, Defendant-Appellee, and Michael Hall and City of Detroit Department of Police, Defendants. 435 Mich. 104, 457 N.W.2d 669
• Court: Michigan Supreme Court

Page 669

457 N.W.2d 669

Estate of Joseph SOLOMON by Charlotte Solomon Personal Representative, Plaintiff-Appellant, v. John SHUELL, Defendant-Appellee and Michael Hall and City of Detroit Department of Police Defendants.

Docket No. 82658.

435 Mich. 104, 457 N.W.2d 669

Supreme Court of Michigan.

Argued Jan. 9, 1990.

Decided July 3, 1990.

Harvey Chayet, Tammy J. Reiss, Thurswell, Chayet & Weiner, Southfield, for plaintiff-appellant.

Marion R. Jenkins, Asst. Corp. Counsel, Detroit, for defendants-appellees.

Williams, Schaefer, Ruby & Williams by James P. Cunningham, Birmingham, for amicus curiae, Family Law Section of the State Bar of Michigan.

Robert N. Hammond, Dykema Gossett, Grand Rapids, James G. Gross, Cheatham & Acker, Detroit, for amicus curiae Michigan Defense Trial Counsel.

Mark Granzotto, Detroit, Monica Linkner, Berkley, Charles P. Burbach, Southfield, for amicus curiae for Michigan Trial Lawyers Assn.

ARCHER, Justice.

We granted leave to appeal in order to consider two principal questions. The first question is whether four police reports were properly admitted into evidence under either MRE 803(6), the business records exception to the hearsay rule, or MRE 803(8), the public records hearsay exception. The second question is whether the jury was properly instructed on the so-called rescue doctrine. We would hold that the police reports were improperly admitted into evidence and that the jury was improperly instructed on the rescue doctrine. We therefore would reverse the judgment of the Court of Appeals and remand the case for a new trial.

I

Plaintiff-appellant Charlotte Solomon, personal representative of the estate of Joseph Solomon, filed this wrongful death action against the City of Detroit and Detroit Police Officers John Shuell, Michael Hall, and Richard Nixon after Officer Shuell shot and killed her husband on March 20, 1981.

Officers Shuell and Nixon were members of the department's Western Surveillance Unit. Sergeant Hall was their supervisor. The three officers were plain clothed and drove separate unmarked automobiles.

On March 19 and 20, 1981, the officers were investigating a series of armed robberies on Detroit's west side. Prior to March 19, four armed men had stolen two cars from two separate automobile dealership salesmen while on test drives. Both robberies were at gunpoint. After reporting the robberies, both salesmen told the police that the perpetrators had driven to their dealerships in a Ford Thunderbird, license plate number SYF-830. The Thunderbird was registered to Claudia Williams, and the police began an undercover surveillance of her home at 18603 Curtis Street in Detroit.

On March 20, at 2:30 p.m., Officers Shuell and Nixon were assigned to the surveillance of Curtis Street in plain clothes and in separate unmarked vehicles. Alvin Solomon, Joseph Solomon's son, and a male passenger arrived in an Oldsmobile at the Curtis Street house and picked up two more men. After informing Sergeant Hall, who was also on duty in his own unmarked car, the officers were ordered to follow the Oldsmobile. They followed it to 20045 Ward, where two of the men got out of the vehicle. The car drove on, and the officers continued to follow the vehicle but lost it in traffic.

Sergeant Hall ordered the officers to return to Ward Street and watch the house. Later that afternoon, the two suspects, who had previously entered 20045 Ward, left the residence. Sergeant Hall and Officers Nixon and Shuell then stopped and questioned the suspects as they walked down the block away from the house.

At approximately the same time as the two suspects were being questioned, another police officer radioed Shuell and Nixon and told them that the Ford Thunderbird used in the armed robberies had returned to the Curtis Street address. Sergeant Hall ordered Shuell and Nixon to return to Curtis Street. Along the way, Nixon spotted the Oldsmobile driven by Alvin Solomon. Alvin, now accompanied by his girl friend, Wynee Green, was driving north on Strathmoor Street. Nixon relayed the information to Shuell and Sergeant Hall and followed the Oldsmobile to 20045 Strathmoor, the Solomon family home. Nixon pulled up behind the Oldsmobile. Shortly thereafter, Shuell stopped in front of the suspect's automobile. The two officers got out and approached the Oldsmobile. The account of what happened next differs according to the trial testimony.

Alvin testified that, after he got out of his car, Nixon rushed him, quickly flashed a badge, threw him toward the car, and confiscated a pellet gun that he carried in his waistband. Shuell ran toward the two, failed to identify himself as a police officer, put his gun to Alvin's head and dragged him to the rear of the car. Alvin told Wynee to get his father, Joseph Solomon, who came outside with a gun, which was pointed down toward the ground. Neither Nixon nor Shuell identified themselves to Alvin's father. Before Joseph Solomon could come off the front porch, Shuell fired his gun, striking him. Joseph Solomon kept approaching Shuell and Alvin and fell dead at the end of the driveway.

Charlotte Solomon, Alvin's mother and Joseph's wife, testified that, at the time of the incident, she and her husband were inside their home watching television. Joseph got up, briefly left the room and came back in and said, "[s]omebody got my child out there." He went outside with his gun and yelled, "[t]urn my child loose." Charlotte got to the doorway in time to see her husband fall at the end of the driveway.

Nixon testified that, as he approached the Oldsmobile, he showed Alvin his badge and ID card and told him he was a police officer. As Alvin got out of the vehicle, Nixon saw a gun in Alvin's waistband, which he confiscated. At this time, Shuell asked Alvin to put his hands on the car so he could be frisked. Alvin resisted, shouting at his girl friend to get his father. As Nixon walked around the car to restrain the girl, he heard a noise at the doorway of the house. Joseph Solomon ran out of the house and came off the porch holding a gun in both hands, extended in a combat stance. Nixon held his badge up and yelled, "Sir, we're police officers, we're police officers." Nixon heard one shot, turned, and saw Joseph Solomon's hands recoil. He then heard other shots, after which Joseph fell. Nixon also stated that neither Shuell nor he had drawn their guns before Joseph Solomon came out of the house.

Shuell testified that both Nixon and he approached the car, showed Alvin their badges, and told him they were police officers. As Alvin got out of his car, Shuell told Nixon he saw a gun in Alvin's waistband and grabbed Alvin by his left wrist. Shuell told Alvin he was under arrest, and asked him to place his hands on the car. Alvin backed away from the car and told his girl friend to get his father. Shuell told Alvin to go to the rear of the car and put his hands on the trunk. Shuell was frisking Alvin when Nixon yelled, "Police, police, John, look out, he's got a gun." Joseph Solomon assumed a two-hand stance and aimed his gun at Shuell. As Shuell grabbed Alvin, Joseph told Alvin to get down. Alvin shouted, "Daddy, don't do it." Shuell yelled, "Drop the gun. Police." As Shuell fell to the ground with Alvin, his pistol was still in its holster. Joseph fired one shot, which missed Shuell. By this time, Shuell had drawn his weapon and returned Joseph Solomon's fire.

Joseph Solomon fired at least one shot. Shuell fired nine, eight of which hit Solomon, instantly killing him.

Plaintiff-appellant filed the present case in Wayne Circuit Court. She alleged negligence, assault and battery, and the violation of her husband's constitutional rights. Before the case went to the jury, defendant Nixon had been dismissed. In addition, the trial judge granted a directed verdict in favor of defendants Michael Hall and the City of Detroit.

As to defendant Shuell, the jury returned a special verdict, finding that Shuell was negligent and that his negligence was a proximate cause of Joseph Solomon's death. Consequently, the jury found plaintiff's damages to be $100,000. The jury also found, however, that decedent was negligent and that his own negligence was also a proximate cause of his death and assessed this at eighty percent. Accordingly, a judgment was entered in favor of plaintiff for $20,000. ¹

Plaintiff subsequently filed a claim of appeal, alleging that the trial court had improperly admitted four exhibits into evidence and had improperly instructed the jury. The Court of Appeals panel, one judge dissenting, rejected plaintiff's argument that the trial court improperly admitted into evidence four police reports under MRE 803(6), the business records hearsay exception. Although two members of the panel agreed with plaintiff that the trial court also committed error by giving a modified version of SJI2d 13.07, stating the so-called rescue doctrine, the Court found this error to be harmless. ² The Court of Appeals, therefore, affirmed the decision of the trial court. 166 Mich.App. 19, 420 N.W.2d 160 (1988).

Plaintiff-appellant subsequently applied for leave to appeal in this Court, which we granted on April 11, 1989, limited to the issues (1) whether the trial court improperly admitted into evidence four police reports prepared during the investigation of decedent's shooting, and (2) whether the trial court properly instructed the jury on the so-called rescue doctrine. 432 Mich. 891, 437 N.W.2d 636 (1989). Subsequently, we ordered the parties to submit supplemental briefs on the applicability of MRE 803(8), the public records hearsay exception, to the four police reports. We also invited amicus curiae briefs to be filed. The order was entered on October 24, 1989.

II

The first question presented is whether four police reports were improperly admitted into evidence. Plaintiff's exhibit 113 and defendant's exhibit 122 are police department homicide witness statements taken...