Opinion
No. 352927
02-18-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DAVID LEE YSKES, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Allegan Circuit Court
LC No. 19-022608-FH Before: BOONSTRA, P.J., and BORRELLO and RICK, JJ. PER CURIAM.
Defendant appeals as of right his jury trial convictions of felonious assault, MCL 750.82, and felony-firearm, MCL 750.227b(1). The trial court sentenced defendant to three days in jail with credit for three days served for the felonious-assault conviction and 2 years' imprisonment for the felony-firearm conviction. For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
This case stems from an altercation that occurred when defendant attempted to deliver a pizza to the victim. On October 1, 2018, while working at Tiara Yachts in Holland, the victim ordered a pizza from Jet's Pizza and prepaid for the pizza with his debit card. Defendant and the victim exchanged several text messages around the time that defendant arrived with the pizza. The victim testified that defendant arrived earlier than expected and that the victim knew that defendant would have to wait "a little bit" for the victim to get the notification that defendant had arrived and for the victim to "put all of [his] work stuff down and go out and get the pizza." The victim estimated that defendant had been in the parking lot for approximately 10 minutes before he knew that defendant had arrived.
At trial, the parties stipulated on the record to "identification and jurisdiction and venue."
The victim testified that he thought defendant's text messages "sounded hostile," apparently because the victim "felt a vibe." At trial, the victim read the following messages from defendant:
"This is the driver from trying to get—this is the driver from Jets. I am trying to get ahold of you. This is the driver from Jets, still trying to get ahold of you. You keep sending me to voicemail." "Well, I am—I have been sitting here in the parking lot trying to get ahold of you and you keep sending me to voicemail."
The victim went outside to get his pizza, and defendant was in his vehicle with the window down. The victim testified on cross-examination by defense counsel:
Q. And did you—did you make statements to him about calling him, why is mother***** bothering you [sic], talking to you like that?
A. No. That's not it at all. I went up to his door and he was about to hand me the pizza and as he is handing me the pizza, I asked, "Hey, what was the deal with all the text messages?" And then that's when he had the pizza back from me, smiled and went back in the car and like rolled his window up.
Q. So you were upset about the—about receiving text messages—
A. Yes. I—
Q. —about where you are at.
A. Yes. I was upset. But I didn't—like, I wasn't hostile. I said it in a non-confrontational voice, I guess you could say. All I was, I was like, "Hey man, like, what was with all of the—what was with the text messages?" Like that, "the attitude", I said "the attitude", what was with the attitude. I didn't say it like how—raising my voice. I didn't say it in a hostile way. It was just completely the honest question. And then that's when everything after that went downhill.
According to the victim, defendant drove away with the pizza, and the victim smacked the window of defendant's vehicle and shouted, "Hey, hey." Defendant made a U-turn and returned as the victim was walking back toward the building. The window of defendant's vehicle was down. Defendant asked, "Do you want to do this over again?" The victim testified: "I told him, like, hey, like, you are already going to lose your job at Jets, don't go to jail over a pizza. And like, in the middle of me saying all that, that's when he pulled out his gun." The victim testified that defendant pulled the gun "out on me" and pointed it at him with both hands on the gun "like what you would see in a combat training video." The victim further testified that defendant's finger was on the trigger of the gun, that he thought he was going to be shot, and that defendant said that he was going to "eff me up." The victim indicated that he was about 15 feet away from defendant.
The victim called 911, and the recording of the call was played for the jury. The victim told the dispatcher during the call that he did not have any weapons on him.
Holland police officer Joel Reimink testified that he arrived at Tiara Yachts in response to the complaint and spoke to the victim. Defendant was eventually located at his residence. Reimink searched defendant with defendant's consent and found a "Glock 43 magazine" with rounds in it in defendant's pocket. Reimink also spoke to defendant at the residence, and defendant told Reimink that he pointed a weapon at the victim. Defendant permitted law enforcement to go into his residence, and he told them where the Glock handgun was located. According to Reimink, defendant indicated that this was the gun that he pointed at the victim. The Glock handgun was seized. Reimink testified that when the gun was recovered, it had "one round in the chamber," which meant that it would have fired a bullet if the trigger was pulled.
During his trial testimony, Reimink indicated that defendant had claimed during the interview that the victim had been swearing at him from the beginning when he first came out of the Tiara Yachts building. Reimink also indicated that defendant stated that he left the scene, the victim was beating on defendant's vehicle, and that defendant subsequently decided to come back to try again. The victim was approximately 10 to 15 feet away from defendant's vehicle.
A recording of Reimink's interview with defendant was played for the jury and admitted as an exhibit at trial. In this video, defendant told Reimink that he made multiple attempts to contact the victim and that when the victim finally came outside to get his pizza, the victim was "belligerent" and "cussing and swearing." Defendant indicated that he was just going to leave, and the victim started banging on defendant's vehicle. Defendant drove away because the victim was beating on defendant's vehicle. Defendant took a "long loop" in the parking lot and decided to come back and try again. Defendant indicated that he asked the victim if he wanted to try again, he was "belligerent," and he made a "rushing charge" at defendant while defendant was still in his vehicle with the vehicle in park, and defendant pulled out his gun. The victim stopped, and the two individuals exchanged words. Defendant claimed that he did not know if the victim was going to try to get in through the window or "sucker punch me in the face." Defendant stated that he did not see the victim with any weapon. Defendant left. When Reimink asked defendant why he did not just drive away when the victim charged him, Reimink indicated that he had "no idea" and also that he did not know if he could have gotten away quickly enough because his vehicle was in park. Defendant also said that he "wasn't ready for him to come at me like that."
Defense counsel argued at trial that defendant acted in self-defense. Defense counsel argued that there was a right to "stand your ground" and that defendant had no duty to retreat because he was not engaged in a crime and was where he had a legal right to be. Defense counsel additionally maintained that defendant's actions were justified because defendant returned so that he could complete the delivery of the pizza, that defendant was "vulnerable" while his vehicle was in park with the window down and the victim charged at him, that he pulled out his gun but did not shoot it, and that defendant put his weapon away when the victim stopped.
The jury convicted defendant of both felonious assault and felony-firearm. Defendant now appeals.
II. SELF-DEFENSE JURY INSTRUCTIONS
Defendant first raises a challenge to part of the trial court's jury instructions regarding self-defense. A record of defendant's objection was made outside the presence of the jury and before the final instructions were given to the jury. This issue is therefore preserved. MCR 2.512(C); MCR 6.001(D).
A. STANDARD OF REVIEW
"A defendant in a criminal trial is entitled to have a properly instructed jury consider the evidence against him or her." People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007). This Court reviews "questions of law arising from the provision of jury instructions de novo" and reviews "a trial court's determination whether a jury instruction is applicable to the facts of a case for an abuse of discretion." People v Guajardo, 300 Mich App 26, 34; 832 NW2d 409 (2013). "An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." Id. (quotation marks and citation omitted). "To the extent that we must interpret and apply relevant statutes, issues of statutory construction involve questions of law that we review de novo." Id.
"The defendant bears the burden of establishing that the asserted instructional error resulted in a miscarriage of justice. MCL 769.26; People v Lukity, 460 Mich 484, 493-494; 596 NW2d 607 (1999)." People v Dupree, 486 Mich 693, 702; 788 NW2d 399 (2010). "No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury . . . unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice." MCL 769.26.
B. ANALYSIS
As an initial matter, the parties do not appear to dispute that this case involves the alleged use of force other than deadly force in self-defense. Our analysis will therefore be focused accordingly.
During final jury instructions, the trial court instructed the jury as follows regarding self-defense:
The Defendant claims he acted in self-defense. A person has the right to use force to defend himself under certain circumstances. If a person acts in lawful self-defense, his actions are justified and he is not guilty of assault with a dangerous weapon.
You should consider all of the evidence and use the following rules to decide whether the Defendant acted in lawful self-defense. Remember to judge the Defendant's conduct according to how the circumstances appeared to him at the time he acted.
First, when he acted, the Defendant must have honestly and reasonably believed that he had to use force to protect himself from the imminent unlawful use of force by another.
If his belief was honest and reasonable, he could act at once to defend himself. Even if it turns out later that he was wrong about how much danger he was in.
Second, a person is only justified in using the degree of force that seems necessary at the time to protect himself from danger. The Defendant must have used the kind of force that was appropriate to the attack made and the circumstances as he saw them.
When you decide whether the force used was—was what seemed necessary, you should consider whether the Defendant knew about any other ways of protecting himself, but you may also consider how the excitement of the moment affected the decision—the choices Defendant made.
Third, the right to defense [sic] oneself only lasts as long as it seems necessary for the purpose of protection.
Fourth, the person claiming self-defense must not have acted wrongfully and brought on the assault. If the Defendant only used words that does not prevent him from claiming self-defense if he was attacked.
A person can use force in self-defense only where it's necessary to do so. If the Defendant could have safely retreated but did not do so, you may consider that fact in deciding whether the Defendant honestly and reasonably believed he needed to use force in self-defense. A person is never required to retreat if attacked in his own home, nor if the person reasonably believes that an attacker is about to use a deadly weapon, nor if the person is subject to a sudden, fierce, and violent attack. Further, a person is not required to retreat if he or she has not or is not engaged in the commission of a crime at the time the force is used and has the legal right to be where he or she it [sic] at at the time, and honestly and reasonably believes that the use of force is necessary to defend himself or herself or another individual from the imminent, unlawful use of force by another individual.
The Defendant does not have to prove that he acted in self-defense. Instead, the prosecutor must prove beyond a reasonable doubt that the Defendant did not act in self-defense.
The trial court also instructed the jury on self-defense with respect to the felony-firearm charge, but defendant does not raise any issue with this instruction on appeal.
Before giving the final jury instructions, defense counsel was able to make a record of his objections to these instructions outside the presence of the jury:
The Court: At this time, are there any objections to the jury instructions?
[Prosecutor]: No, your Honor.
[Defense Counsel]: The—the only concern that I had had, your Honor, which we had discussed at length was 7161, where there is some indication that they should consider whether he could have safely retreated. I had objected under the self-defense act. The Court believed that it's covered later in the instructions.
The Court: Yes. I—I think the instruction is clear that a person at the subsection three of that jury instruction what the person's duties or abilities are is clear that the duty to retreat is covered in—or duty to stand ground is basically covered in that particular section. So the Court would not change that instruction, but otherwise, we have agreement on the rest of the instructions.
And I can't remember if there is anything else we discussed off the record that should be placed on the record. Do either of the attorneys know of other issues that we should have placed on the record?
[Prosecutor]: I don't think so, your Honor.
[Defense Counsel]: Your Honor, I hate to bring this at this late hour, but they asked what—what the stand your guard—stand your ground—
The Court: Law was.
[Defense Counsel]: —law is. Should we—should we way [sic] we have a statute and city [sic] M.C.L. 780.972, which is the stand your ground law. Which it's actually parroted in the felony firearm defense. Which indicates,
"The individual is not engaged in a crime—commission of a crime at the time where she uses force, other than deadly force, other than—may use force other than deadly force against an individual. He or she has a legal right to be with no duty to retreat, if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual with imminent—" And that's parens two.
But parens one indicates,
"Individual who is not nor is—has not, nor is engaged in commission of a crime any time he or she uses deadly force—possessed deadly force—"
The Court: Where are you—I—what jury instruction are you referencing?
[Defense Counsel]: I—I am not. I am referring to the self-defense act.
The Court: But why isn't that covered in the jury instructions that we are giving? That's—
[Defense Counsel]: Well, I am just—I just think we should have some cla—I am wondering whether we should have some clarification for the jury what the self—what the stand your ground law is.
The Court: But that's what these jury instructions are.
[Defense Counsel]: Right.
The Court: I don't—I think if the people who composed these jury instructions had felt that they needed to use the phrase, "stand your ground", they would have done that—
[Defense Counsel]: Certainly.
The Court: —and they didn't. So I am going to follow the jury instruction on the issue.
[Defense Counsel]: Thank you. All right.
Defense counsel was referring to a question that was submitted by the jury during Reimink's testimony. The jury submitted the question, "what is the stand your ground law[?]" The trial court did not ask Reimink to answer the question and instead addressed the jury as follows:
And although I didn't reference it in the instructions prior to evidence, I—you will get instructions about that law from the Court. It doesn't come from a witness. The witnesses supply factual evidence and I provide you with the law that you can apply to that. So that's the answer to that question. You will get that in jury instructions.
On appeal, defendant challenges the trial court's self-defense instruction. M Crim JI 7.16. Specifically, defendant argues that the trial court should not have included Paragraph (1) of M Crim JI 7.16 because defendant had no duty to retreat under the Self-Defense Act (SDA), MCL 780.971 et seq., and the duty to retreat thus was not at issue. Defendant maintains that the jury should not have been able to even consider whether defendant could have retreated because he had no duty to retreat, that Paragraph (1) was inapplicable because it reflects the common law and defendant was relying solely on the SDA, and that providing both Paragraphs (1) and (3) of M Crim JI 7.16 was confusing to the jury and could have led the jury to conclude that defendant had a duty to retreat. Defendant further argues that the trial court's self-defense instruction did not adequately address the jury's concern with the meaning of the "stand-your-ground law."
"Jury instructions must include all the elements of the offenses charged against the defendant and any material issues, defenses, and theories that are supported by the evidence." Dobek, 274 Mich App at 82. This Court "consider[s] the instructions as a whole, rather than piecemeal, to determine whether any error occurred." People v Kowalski, 489 Mich 488, 501; 803 NW2d 200 (2011). Furthermore, our Supreme Court has explained:
Instructional errors that omit an element of an offense, or otherwise misinform the jury of an offense's elements, do "not necessarily render a criminal trial
fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Accordingly, an imperfect instruction is not grounds for setting aside a conviction if the instruction fairly presented the issues to be tried and adequately protected the defendant's rights. [Id. at 501-502 (citation omitted).]
"Model jury instructions do not have the force or effect of a court rule, MCR 2.512(D)(1), but pertinent portions of the instructions 'must be given in each action in which jury instructions are given if (a) they are applicable, (b) they accurately state the applicable law, and (c) they are requested by a party,' MCR 2.512(D)(2)." People v Robar, 321 Mich App 106, 115; 910 NW2d 328 (2017).
Paragraph (1) of M Crim JI 7.16 provides:
A person can use [force / deadly force] in self-defense only where it is necessary to do so. If the defendant could have safely retreated but did not do so, you may consider that fact in deciding whether the defendant honestly and reasonably believed [he / she] needed to use [force / deadly force] in self-defense. [Brackets in original.]
Defendant maintains that the trial court should have omitted Paragraph (1) while still giving Paragraph (3) of M Crim JI 7.16, rather than including both of these paragraphs in its instructions to the jury at trial. Paragraph (3) of M Crim JI 7.16 provides:
As quoted above, the end of the instruction was modified at trial in this case to reflect the standard for using force other than deadly force. See MCL 780.972(2) (discussed in more detail below). The jury in this case was not instructed on the use of deadly force, and the distinction between deadly and nondeadly force is not at issue in this appeal. The parties presented the case to the jury as one involving the use of nondeadly force. As previously noted, the parties do not appear to dispute on appeal that this case only involves the use of nondeadly force.
Further, a person is not required to retreat if he or she:
(a) has not or is not engaged in the commission of a crime at the time the [force / deadly force] is used, and
(b) has a legal right to be where he or she is at that time, and
(c) has an honest and reasonable belief that the use of [force / deadly force] is necessary to prevent imminent [death / great bodily harm / sexual assault] of [himself / herself] or another person. [Brackets in original]
Paragraph (3) of M Crim JI 7.16, as modified at trial in this case to reflect the use of nondeadly force, is consistent with the statutory provision relied on by defendant in this case, MCL 780.972(2). This provision, which is contained within the SDA, provides as follows:
An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual. [MCL 780.972(2).]
"[T]he SDA modified the common law's duty to retreat that was imposed on individuals who were attacked outside their own home or were not subjected to a 'sudden, fierce, and violent' attack." Guajardo, 300 Mich App at 35 (citation omitted). However, as this Court observed in Guajardo, the requirement that a person must have an honest and reasonable belief in the necessity of using force in self-defense has been preserved in the statutory language. See id. at 35-36 (discussing the use of deadly force under MCL 780.972(1)); see also MCL 780.972(2) (requiring a person using force other than deadly force to "honestly and reasonably believe[] that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual").
The use of force to defend "another individual," MCL 780.972(2), is not at issue in this case.
In this case, defendant generally relies on People v Richardson, 490 Mich 115; 803 NW2d for his contention that Paragraph (1) of M Crim JI 7.16 should not have been given because it is inconsistent with Paragraph (3) of the instruction and the SDA and, additionally, his contention that the jury therefore should not have been instructed to consider retreat "when deciding whether the defendant had a right to stand his ground" because he had no duty to retreat.
In Richardson, the defendant and the two victims were involved in an altercation on the porch of the defendant's home when the defendant shot and injured the two victims. Richardson, 490 Mich at 117-118. The defendant claimed that he acted in self-defense. Id. at 118.
The trial court's instructions to the jury in Richardson included CJI2d 7.16, which included the same language in Paragraph (1) that is at issue in the instant case under the current version of the instruction in M Crim JI 7.16(1), stating: " 'If the defendant could have safely retreated but did not do so, you may consider that fact in deciding whether the defendant honestly and reasonably believed [he/she] needed to use deadly force in self-defense.' " Richardson, 490 Mich at 118, quoting CJI2d 7.16(1) (bracketed material in original). Much like the circumstances of the instant case, the trial court in Richardson also instructed the jury about situations implicated by the facts of that case where there was no duty to retreat, although the SDA was not at issue in Richardson. Richardson, 490 Mich at 119. Rather, in Richardson, the issue involved Paragraph (2) of CJI2d, which stated: " 'However, a person is never required to retreat if attacked in [his/her] own home, nor if the person reasonably believes that an attacker is about to use a deadly weapon, nor if the person is subject to a sudden, fierce, and violent attack.' " Richardson, 490 Mich at 119, quoting CJI2d 7.16(2) (bracketed material in original).
Questions submitted by the jury in Richardson during deliberations indicated that whether the defendant was in his "home" at the time of the shooting was a significant point of concern. Richardson, 490 Mich at 119. At one point, after the jurors indicated that they could not reach a decision, "[t]he court reinstructed them on self-defense, explaining that people 'can actually be in their home, their dwelling and not be subject to self-defense unless those circumstances them self [sic] justify that.' " Id. (alteration in original). The court also reread CJI2d 7.16 and asked the jury to continue deliberations. Richardson, 490 Mich at 119. On appeal, the defendant in Richardson raised an argument analogous to the argument put forth by defendant in the instant case, contending that "the trial court erred by giving CJI2d 7.16" and that "the court should have instructed the jury that defendant had no duty to retreat because it was undisputed that he was in his home when attacked." Richardson, 490 Mich at 119.
Our Supreme Court in Richardson concluded that the defendant did "not establish[] that it was plain error for the court to instruct the jury using CJI2d 7.16" because "[t]he instruction correctly told the jurors that, if defendant was in his home, he did not have to retreat" and "[i]t also correctly informed them that defendant was entitled to use deadly force in self-defense only if it was necessary to do so." Id. at 120. The Richardson Court stated:
It is apparent that the jury concluded that deadly force was not necessary and that the facts support that conclusion. An instruction that omitted the general duty to retreat and informed the jury only that defendant had no duty to retreat might have been clearer. However, defense counsel did not ask the court to give such an instruction. And defendant was not prejudiced by this omission because the jury was, in fact, informed that a person attacked in his or her home has no duty to retreat. It was also instructed that a person's porch is considered part of his or her home. [Id. at 120-121.]
Here, it is not clear that defendant undisputedly satisfied the criteria of MCL 780.972(2) because there was evidence that defendant drove away with the pizza that belonged to the victim and for which the victim had already paid, thus indicating that defendant may have "engaged in the commission of a crime" and was ineligible to rely on MCL 780.972(2) to support his claim of self-defense. Our Supreme Court in Richardson acknowledged a footnote in People v Riddle, indicating that " '[t]here might be circumstances in which an instruction permitting the jury to consider a defendant's failure to retreat would be improper; for instance, if the defendant was inside his dwelling when he was attacked or if the undisputed evidence established that he was suddenly and violently attacked.' " Richardson, 490 Mich at 122 & n 12, quoting People v Riddle, 467 Mich 116, 141 n 30; 649 NW2d 30 (2002). However, because there was not undisputed evidence in the instant case that defendant met the requirements under MCL 780.972(2) to claim that he had no duty to retreat, it was not necessarily improper to allow the jury to consider defendant's failure to retreat. Richardson, 490 Mich at 122 & n 12, quoting Riddle, 467 Mich at 141 n 30. Moreover, our Supreme Court in Richardson expressly determined that the quoted statement in Riddle was dictum. Richardson, 490 Mich at 122 & n 12.
Much like the instruction in Richardson, the jury instructions in this case adequately informed the jury that defendant was not required to retreat before using force in self-defense if the factual circumstances satisfied the requirements of the SDA as defendant contended, i.e., that defendant had not been engaged in committing a crime, was in a place where he was legally entitled to be, and honestly and reasonably believed that the use of such force was necessary to defend himself from imminent and unlawful force. See Richardson, 490 Mich at 120; MCL 780.972(2). Considering the instructions as a whole, the trial court's use of M Crim JI 7.16 in this case was not erroneous. Kowalski, 489 Mich at 501.
We conclude our Supreme Court's decision in Richardson supports the conclusion that the challenged instruction was not erroneous. Our Supreme Court stated in Richardson that "the success of defendant's self-defense claim did not hinge on whether he was required to retreat or stand his ground on his porch" but instead "hinged on whether he honestly and reasonably believed that it was necessary to use deadly force while standing his ground." Richardson, 490 Mich at 122. Here, considering that defendant allegedly pointed his gun at the victim in response to the victim charging at him while on foot and unarmed and while defendant was still inside his vehicle, the honesty and reasonableness of defendant's belief that his use of force was necessary was clearly an issue of significant importance. The SDA still requires that a person possess an honest and reasonable belief that the use of force in self-defense is necessary. Guajardo, 300 Mich App at 35-36; MCL 789.972(2).
Furthermore, the essence of defendant's argument appears to be that the common law regarding self-defense and the SDA are somehow mutually exclusive. This understanding of the SDA is undermined by the language of the act itself. The SDA specifically provides that "[e]xcept as provided in section 2, this act does not modify the common law of this state in existence on October 1, 2006 regarding the duty to retreat before using deadly force or force other than deadly force." MCL 780.973. The SDA further provides that "[t] his act does not diminish an individual's right to use deadly force or force other than deadly force in self-defense or defense of another individual as provided by the common law of this state in existence on October 1, 2006." MCL 780.974. MCL 780.972 sets forth a series of situations in which a person may use force in self-defense without having a duty to retreat. As this Court has previously observed, the Legislature's enactment of the SDA "codified the circumstances in which a person may use deadly [or nondeadly] force in self-defense or in defense of another person without having the duty to retreat," and the SDA "[s]pecifically . . . modified the common law's duty to retreat that was imposed on individuals who were attacked outside their own home or were not subjected to a sudden, fierce, and violent attack." Guajardo, 300 Mich App at 35 (quotation marks and citations omitted). This appears to be the sole purpose of the SDA. Id.; MCL 780.972; MCL 780.973; MCL 780.974. Accordingly, contrary to defendant's apparent contentions, a defendant does not have a right under the SDA to negate the existence of applicable principles of common-law self-defense.
In light of the above analysis, the self-defense jury instruction at issue in this case was not erroneous and did not constitute an abuse of the trial court's discretion, even acknowledging that Richardson involved review of an unpreserved claim of error for plain error and that the instant case involves review of a preserved claim of error. See Richardson, 490 Mich at 120 ("We conclude that defendant has not established that it was plain error for the court to instruct the jury using CJI2d 7.16. The instruction correctly told the jurors that, if defendant was in his home, he did not have to retreat. It also correctly informed them that defendant was entitled to use deadly force in self-defense only if it was necessary to do so."). As in Richardson, the instruction in this case correctly informed the jury, consistent with the SDA, about when a person could use force in self-defense without being required to retreat. MCL 780.972(2); Guajardo, 300 Mich App at 35-36. Considering the instructions as a whole, Kowalski, 489 Mich at 501, the instructions accurately stated the applicable law, Robar, 321 Mich App at 115. As such, the trial court's self-defense instruction adequately addressed the jury's question about the "stand-your-ground" law by informing the jury of the circumstances under which a person may use force in self-defense without having a duty or obligation to retreat.
Additionally, even if the trial court erred by including Paragraph (1) of M Crim JI 7.16 in its instructions to the jury, defendant has not demonstrated that it constituted a miscarriage of justice because the instructions sufficiently protected defendant's rights by informing the jury of the circumstances under which defendant had no duty to retreat before using force in self-defense. "[A]n imperfect instruction is not grounds for setting aside a conviction if the instruction fairly presented the issues to be tried and adequately protected the defendant's rights." Kowalski, 489 Mich at 501-502; see also Richardson, 490 Mich at 120-121 (stating that an "instruction that omitted the general duty to retreat and informed the jury only that defendant had no duty to retreat might have been clearer," but the "defendant was not prejudiced by this omission because the jury was, in fact, informed that a person attacked in his or her home has no duty to retreat"). There was also sufficient evidence in the instant case for the jury to conclude that defendant's belief that force was necessary was not honest and reasonable. See Richardson, 490 Mich at 117 ("We hold that it was appropriate to use the standard jury instruction in this case. Defendant was on his porch during the altercation in question, so he had no duty to retreat. However, there was adequate evidence from which the jury could conclude that he did not need to use deadly force to defend himself.").
Next, defendant argues that the trial court erred in how it responded and instructed the jury following the jury's question during deliberations whether all four elements of self-defense had to be established, essentially maintaining that this instruction was inconsistent with the SDA.
During deliberations, the jury submitted a question to the trial court asking about the requirements for self-defense. The trial court addressed the jury question as follows on the record:
The Court: You may be seated.
The jury has presented the Court with a question. The question is, when considering self-defense, do all criteria need to be met? For instance, in jury instruction 7.22, there are four elements for self-defense. If one of those elements are not met, can self-defense still be considered justified?
In order for a person's actions to be justified under the law for lawful self-defense, all four criteria must be met. I am going to read them to you again.
First, when he acted, the Defendant must have honestly and reasonably believed that he had to use force to protect himself from the imminent unlawful use of force by another.
If his belief was honest and reasonable, he could act at once to defend himself, even if it turns out later that he was wrong about how much danger he was in.
Second, a person is only justified in using the degree of force that seems necessary at the time to protect himself from danger.
The Defendant must have used the kind of force that was appropriate to the attack made and the circumstances as he saw them.
When you decide whether the force used was what seemed necessary, you should consider whether the Defendant knew about any other ways of protecting himself. But you may also consider how the excitement of the moment affected the choice the Defendant made.
Third, for the right to defend oneself only lasts as long as it seems necessary for the purpose of protection. And fourth, the person claiming self-defense must not have acted wrongfully and brought on the assault.
You can return to the jury room. Thank you.
[Defense Counsel]: Your Honor, may we complete the instruction?
The Court: Oh, however, if the Defendant only used words, that does not prevent. him from claiming self-defense if he was attacked. And you have the jury instruction, I am sure you've reviewed it, since your question was very complete.
Thank you for that reminder, [defense counsel].
We are adjourned again.
This instruction is consistent with M Crim JI 7.22, which provides as follows:
(1) The defendant claims that [he / she] acted in lawful [self-defense / defense of __________]. A person has the right to use force to defend [himself / herself / another person] under certain circumstances. If a person acts in lawful [self-defense / defense of others], [his / her] actions are justified and [he / she] is not guilty of [state crime].
(2) You should consider all the evidence and use the following rules to decide whether the defendant acted in lawful [self-defense / defense of __________]. Remember to judge the defendant's conduct according to how the circumstances appeared to [him / her] at the time [he / she] acted.
(3) First, when [he / she] acted, the defendant must have honestly and reasonably believed that [he / she] had to use force to protect [himself / herself / __________] from the imminent unlawful use of force by another. If [his / her] belief was honest and reasonable, [he / she] could act at once to defend [himself / herself / __________], even if it turns out later that [he / she] was wrong about how much danger [he / she / __________] was in.
(4) Second, a person is only justified in using the degree of force that seems necessary at the time to protect [himself / herself / the other person] from danger. The defendant must have used the kind of force that was appropriate to the attack made and the circumstances as [he / she] saw them. When you decide whether the
force used was what seemed necessary, you should consider whether the defendant knew about any other ways of protecting [himself / herself / __________], but you may also consider how the excitement of the moment affected the choice the defendant made.
(5) Third, the right to defend [oneself / another person] only lasts as long as it seems necessary for the purpose of protection.
(6) Fourth, the person claiming self-defense must not have acted wrongfully and brought on the assault. [However, if the defendant only used words, that does not prevent (him / her) from claiming self-defense if (he / she) was attacked.] [Brackets in original.]
Paragraphs (1) and (2) of M Crim JI 7.22 were included in the trial court's final jury instructions, although they were not repeated in response to the jury's question during deliberations. --------
The trial court's statement that all four of the criteria in M Crim JI 7.22 must be satisfied was in accordance with the model instruction. M Crim JI 7.22(2). Defendant's argument on appeal is premised on his assertion that M Crim JI 7.22 is inconsistent with the SDA because M Crim JI 7.22 contains certain requirements that are not listed in the SDA and does not include other language that is in the SDA. Accordingly, defendant maintains that it is unnecessary to satisfy all of the requirements in M Crim JI 7.22 and that only the SDA was relevant to this case. Defendant also repeats his contention that common-law principles of self-defense were irrelevant to the circumstances of this case.
However, as explained above, the common law of self-defense and the SDA are not mutually exclusive and the sole concern of the SDA is to modify the duty to retreat. Guajardo, 300 Mich App at 35; MCL 780.972; MCL 780.973; MCL 780.974. The jury in this case was appropriately instructed regarding the applicable circumstances when there was no duty to retreat by way of M Crim JI 7.16(3), which is consistent with MCL 780.972(2). The jury's question during deliberations only concerned M Crim JI 7.22, and defense counsel did not request that M Crim JI 7.16(3) be repeated at that time as well. Defendant has thus failed to establish that any error occurred or that any error caused a miscarriage of justice. Kowalski, 489 Mich at 501-502; Dupree, 486 Mich at 702.
Defendant has not shown error requiring reversal with respect to his jury instruction issues.
II. MRE 608(b)
Next, defendant raises a challenge to one of the trial court's evidentiary rulings.
At trial, during defense counsel's cross-examination of the victim, the following exchange occurred:
[Defense Counsel]: You've lied to the police before, have you not?
[Prosecutor]: Your Honor, can we approach?
The Court: Yes.
(at 12:08 p.m., attorneys approached the bench)
The Court: The objection is sustained.
The trial court subsequently explained on the record, and outside the presence of the jury, its rationale for sustaining the objection:
We had a conversation at the bench and the Court determined that first of all, it was in reference to a matter—a police matter that was not related to this case. There certainly wasn't, in this Court's opinion, a proper foundation laid for that. And it did not seem relevant to the proceedings at hand. And it certainly wasn't an appropriate [sic] for impeachment purposes in the way it was presented. So the Court sustained [the prosecutor's] objection on that question.
On appeal, defendant argues that the trial court abused its discretion by excluding this evidence. Defendant appears to argue that he should have been permitted to ask the question and elicit the victim's response pursuant to MRE 608(b), which provides as follows:
Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
However, defendant has not presented any evidence or offer of proof to this Court on appeal regarding the circumstances or substance of the victim's alleged prior interaction with the police. Accordingly, there is no evidence from which to assess the propriety of the trial court's conclusions that it made on the record about the evidence. Notably, these conclusions do not indicate what the actual circumstances of the interaction was, or how the victim allegedly lied. Defendant's mere assertion that the victim previously lied to the police, without providing any evidence or context, is insufficient for this purpose. In the absence of any substantive evidence, this Court is unable to provide meaningful appellate review of the trial court's ruling. See MRE 103(a)(2) (stating that "error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked"); see also People v Brownridge, 459 Mich 456, 460, 463-465; 591 NW2d 26 (1999), amended on other grounds 459 Mich 1276 (1999) (discussing on appeal the substantive evidence of the witness's alleged false statement to determine whether the trial court abused its discretion in prohibiting cross-examination about the statement at trial under MRE 608(b)).
Accordingly, defendant has not demonstrated error requiring reversal on this issue.
Affirmed.
/s/ Mark T. Boonstra
/s/ Stephen L. Borrello
/s/ Michelle M. Rick