People v. Joeseype Johnson
254 N.W.2d 667
Mich. Ct. App.
1977
Check Treatment

*1 JOHNSON PEOPLE v JOESEYPE Self-Defense—Deadly Security 1. Homicide — Force — Guards— Duty to Retreat. private security guard A hired a theater to maintain order protect obligation business invitees has retreat when acting employment, in the course of his meet deadly force; guard charged force with whether homicide employed deadly exceeded the bounds of the law when force during patron a confrontation with a noisome theater is a question properly jury. for decision instructed 2. Homicide- —Self-Defense—Evidence. required

One accused aof homicide who was not to retreat when still, faced with must avail himself of the (a) self-defense, produce ag- defense of evidence that his own (b) gressive conflict, precipitate did not acts that he enter- tained an at the time that honest belief he was imminent (c) danger harm, bodily of death or serious lay physically repelling recourse the attack. by Allen, 3. Homicide —Self-Defense—Retreat.

Retreat, absolutely even if should not be all available; cases of homicide to make the defense of self-defense possible a failure to retreat when retreat is a jury may determining which the circumstance consider justiñed using deadly whether a defendant was Detroit, Appeal from Recorder’s Court of Elvin References for Points in Headnotes 160, 162-169, Am Jur Homicide 480. [1-3] §§ Duty to Homicide: retreat as condition of when self-defense office, employment. attacked business or ALR3d 584. premises Homicide: Extent which without defended right under self-defense. 52 ALR2d 1458. App 337 4, 1977, January J. L. Submitted Davenport, 26753.) (Docket 1977. May Decided No. Detroit. denied, Mich 803. appeal Leave *2 of second-degree Joeseypé Johnson was convicted Reversed and re- appeals. murder. Defendant manded. General, A. Robert Kelley,

Frank J. Attorney Cahalan, L. General, Derengoski, William Solicitor Wilson, Reilly Edward Re- Prosecuting Attorney, Lip- Willie G. search, and Training Appeals, scomb, for Jr., Assistant Prosecuting Attorney, the people. Edwards, III, for defendant on appeal.

George C. J., D. E. Holbrook P. Allen, Before: D. C. JJ. Riley, trial and convic- Following J.

D. C. Riley, murder, second-degree MCLA charge tion on 28.549, out a 750.317; trial court meted MSA life to defendant Joe- imprisonment, sentence of appeals raising now Johnson. Defendant seype reverse on one and re- four claims of error. We they since are addressing from the others frain unlikely to recur on retrial. George surrounding death of

The facts Undisputed trial. contested hotly Peaks were reveals, August that on the Colonial Theater Mr. Peaks entered man and two women accompanied by a Detroit approached a.m. Mr. Peaks 2:30 approximately stand, popcorn purchased a container concession attendant, Campbell, for Gladys Ms. asked the plastic Campbell pointed to red salt. Ms. some in- designed dispense catsup container catsup the salt was Mr. Peaks formed container. Mr. Peaks balked at idea of catsup claiming unsanitary, container, it was given regular and demanded he be salt explained prior Campbell patrons shaker. Ms. had taken the theater’s salt shakers and that catsup dispenser container available of salt. protest

Unmollified, Mr. Peaks continued to loudly. manager, Mr. theater Frederick Kre- gear, hearing approached disturbance, Mr. problem Peaks and discussed two or three Being satisfy Peaks, minutes. unable to Mr. manager then summoned the defendant who was private guard stationed at the employ as a in the Security Agency. of the Gardner The man- ager attempted then withdrew wrong. learning ascertain what was After of Mr. *3 complaint, Campbell Peaks’s defendant Ms. asked purchase price popcorn; to return the of the she complied by placing 68 cents on the counter. patrons,

In meantime, a number of theater variously persons, estimated 15 to 30 sensed the dispute, lobby left their seats and entered the apparently satisfy curiosity. their point

At this the facts are controverted. Defend- money, ant claimed that Mr. Peaks refused the spoke derisively punched defendant, of defendant jaw pocket, in the and then reached into his coat pulled at which time defendant out of mortal fear gun, falling punch, his while backward from the and shot Mr. Peaks once in the chest. Others poked testified that defendant Mr. two or Peaks flashlight more times the chest with as de- returning coins, fendant was that Mr. Peaks attempted merely jabs to ward off the flashlight but did resist, not otherwise and that Mr. Peaks stumbled backward shot and was then of pulled defendant is unclear when

by defendant. It drawn had defendant gun. Some said others affray; testified weapon the start before shot a moment pulled that he unsure when the fired; still others were was later found was gun was drawn. Mr. Peaks been unarmed. provided examiner medical testimony theories prosecution

support for both defense testified examiner incident. The chest, upward, traveled Mr. Peaks’s bullet entered the neck. Such a lodged in the muscles contended, if, as defendant would result wound shot, if as as he backward falling Mr. Peaks stumbled suggested, witnesses people’s flashlight. from the defendant’s jabs backward showing that presented Abundant appeared inebri- drinking Mr. Peaks had been addition, that Mr. In it was established ated. stood feet pounds weighed Peaks tall; women inches he was described theater, who had known him the accompanying "strong as a bull”. years, being him for several 5 feet weighs pounds and stands Defendant tall. inches that, objection, even absent

Defendant submits instructing lower erred court defendant, guard, was under a private retreat, if attacked to a safe haven when Lenkevich, People v premises. Citing on business 229 NW2d 298 *4 request a or to object contends that failure appellate no review. instruction is bar different apparent reconcile the con- attempting to Without 516.2, 1963, we Lenkevich and GCR flict between the importance to the merits because of proceed involved. question 341 v Admittedly, majority jurisdictions consider- ing question held place one faced with a assault respond business kind without neces- See, e.g., sity retreating safety. first Johnston, v 485; Commonwealth 438 Pa 263 A2d McNamara, 376; State v (1970), 41 ALR3d 576 Feltovic, 19, (1960), State v Iowa NW2d 568 (1929), 303; 110 Conn 147 A 801 and cases cited in 584, 3, rule, however, ALR3d pp 589-590. This State, See Wilson v is not without its critics. Ga Commonwealth, (1882), Hall v Ky — Gagne, v (1893), Commonwealth SW 333 Mass —; and Commonwealth v 326 NE2d 907 Johnston, supra (Pomeroy, J., at 492-494 dissent- ing).

For purposes present appeal, of the we need not do and hence not decide whether expand exception the "no-retreat” to cover all persons who encounter places their approach business.1 We with caution a decision enlarge exception that has grown little since original Michigan its Pond enunciation People, Especially is this so where extending the "no-retreat” exception might heighten the prospect an individual will choose to shed another’s blood rather than avoid conflict. hand,

On other the virtue of the common resilience, law is its willingness yield face of reason and common understanding. choice is not whether to be or against unneces- sary killing. law, with most As the alterna- tives are so polar neither nor To hold simplistic. that a security guard, assigned to protect 1Moreover, express opinion regarding the retreat issue vis guard employed protect property. vis a *5 safety

patrons, when con- to must flee disregard is to attack the fronted might permit possibility a withdrawal that such anger patrons aggressor on those vent his to lobby. remaining the crowded accept suggest we This is not defendant’s do not. Nor do the We view of confrontation. jury’s accept contrary versions, verdict jury believed us be that tells little. It his corroborative wit- account nesses but defendant compelled to nonetheless convict again, did not retreat. Then defendant because might irrespective that, concluded response duty-to-retreat issue, defendant’s dece- request far for a salt shaker exceeded the dent’s patron. noisy any In to subdue given event, record, state this indeterminate significant possibility that there exists the question Hence, was decisive. we con- squarely. front hold matter of law that under

We as a private security guard this case a circumstances of protect hired to maintain order and business invi- obligation acting has retreat when tees the course of his no

employment, may meet incongruous deadly expect It is force with safety job to retire to when illogical he remain. It is to de- commands that doing he, may arguably when well mand that he flee so as employer owner, his be civilly

held accountable for the havoc wreaked Court, It is unrealistic for this in his absence.2 Torts, 223-224, pp f: See Restatement Comment police possessor open Duty premises. premises "f. Since the [of purposes] public for not an of the visitor’s the safety, business insurer ordinarily any he is under to exercise care until he person or has to know that the acts of third are knows reason may, occurring, or about to occur. know or have are He know, past experience, likelihood of reason to from there is a aerie, safely appellate isolated in enforce a rule practical application whose in the instant setting denies sense. common below adduced manifests noisy necessitating police disturbances often assist- *6 ance Colonial, common occurrences a 24-hour located near downtown Detroit. The defendant’s was to maintain job order there within the the law. bounds of Whether in fact he exceeded properly those limits for a instructed jury, Court, not this decide. to

We do not to by opinion intend intimate this that private guards now kill may noisome patrons with carefree abandon. The decision to take can life be countenanced only the most Thus, extreme compelling circumstances. available, make the defense of self-defense evi requisite dence on the other elements must still appear. defendant must Specifically, produce evi (a) dence own aggressive his acts not did 3 (b) precipitate conflict; that he entertained part persons general likely conduct on the of third which is endanger expect character of his visitor, safety though even he has no reason to part any particular place on individual. If the or business, past experience, or his is such that he reasonably anticipate part should careless or criminal conduct on the persons, generally time, particular may third either or at some he duty it, precautions against provide be under a take and to a reasonably protec- sufficient number servants a to afford reasonable added.) Id, (Emphasis tion.” at 225-226. Sears, Similarly, 818 Co, 136; Nash v Roebuck see & Mich 174 NW2d (1970), Weitzman, 157, 163-164; Manuel v 386 Mich 191 NW2d (1971), Theater, Valley Forge Inc, Moran v Drive-in 431 Pa 911, 2, pp 246 A2d 875 29 ALR2d § 913-914. remand, following On observation from 4 Am Jur Amuse Exhibitions, 9, p prove helpful ments and should lower fashioning court in on instruction self-defense: proprietor public "The of a amusement has quiet proper good place during maintain the may, order in and about his performance persons leaving. assembling and while are conduct He patron’s it, justifies request where he believes a quiet orderly, quietly, politely, latter to be without but he must do so unnecessarily humiliating patron. enough, If that is not App P. J. Allen, he in imminent honest belief at the time (c) bodily danger harm; and or serious death repelling physically lay recourse Bright, the attack. See 406; 213 NW2d insistence on That a died because man tragedy do not condone. salt shaker may for life for That man incarcerated another may committed is an evil a crime he not have equally as lamentable.

Reversed and remanded. J.,

D. E. Holbrook, concurred. (concurring). I concur in the deci- Allen, steps necessary he as deems he to end the act take additional reasonable such disturbance, summoning police officer to or noise leave, or, patron patron, may request quieting eject necessary necessary, if it seems use and reasonable force persists noise or or in who leave and disorder refuses to adopted quiet *7 violating regulations proper to secure and reasonable order, right ejection good within and limitations of if he exercises the abuse, or, insult, defamation, good order and without ” said, arbitrarily, just or without reason or cause. it has been not omitted.) (Emphasis added. Footnotes Hence, regard requiring defense that the with to the element of self non-aggressive, defendant would be enti- accused be without fault or tled, aggres- upon request, to an instruction that defendant is not necessary” necessary and sor "if it that defendant "use seemfed] eject persists who to leave and in noise reasonable force to refuses added.) (Emphasis or disorder”. Townes, 578, 591-592; Cf.,People v 218 NW2d 136 Moreover, confusion, allay be that even an it should noted aggressor may justifiably defend in two himself situations: "(1) (i.e., encounter, begins using nondeadly agressor an A one who deadly nondeadly weapon) is met force his fists who or some against may justifiably attack. himself in defense This is so because the defend victim, by aggressor’s (2) too, against nondeadly agression, uses unlawful So agressor good effectively any further who in faith withdraws from (and with his victim to make an effective withdrawal encounter must is restored to his him) victim, notify notify steps or at least take reasonable Scott, right of & Criminal self-defense.” LaFave omitted.) (Footnotes Law, p 395. it, appropriate issue warrants should Thus if the evidence instructions foregoing qualifications. incorporating the Alien, possibility sion reverse because of felt the defendant’s failure required automatically retreat his conviction. For expressed eloquently by Judge the reasons so Ri- agree I into that the law should take account ley, security the fact that other lives be lost if a guard retreats in order to save his own life. There- agree fore, if even I retreat absolutely should not be in all cases. opinion may However, I am afraid that interpreted establishing rule that guard fight is entitled to stand and even if he immediately jeopardizing could retreat without anyone’s safety. prefer approach adopted by proposed

I Michigan Jury new Criminal Instructions which state that a failure to retreat when possible jury may is a circumstance which the determining consider in whether the defendant justified using deadly Michigan force. See (1975 Draft), Jury Criminal Instructions Volume Chap p II, 6, 370.