PEOPLE OF MI V MARCEL R RIDDLE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 13, 2000
Plaintiff-Appellee,
v
No. 212111
Wayne Circuit Court
LC No. 97-006731
MARCEL R. RIDDLE,
Defendant-Appellant.
Before: Gribbs, P.J., and Hoekstra and Markey, JJ.
PER CURIAM.
Defendant appeals by right his jury convictions of second-degree murder, MCL 750.317; MSA
28.549, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA
28.424(2). Defendant was sentenced as a fourth habitual offender, MCL 769.12; MSA 28.1084, to a
term of fifteen to thirty years’ imprisonment for the murder conviction and a consecutive two-year term
for the felony-firearm conviction. We affirm.
Defendant first argues that the trial court improperly refused to give a no-duty-to-retreat
instruction to the jury.1 We disagree. Whether there is a duty to retreat from a garage adjacent to
one’s home is a question of law that is reviewed de novo. See Cardinal Mooney High School v
Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991). Further, a claim of
instructional error is reviewed de novo. People v Hubbard (After Remand), 217 Mich App 459, 487;
552 NW2d 493 (1996).
Generally, a person has a duty to retreat if retreat i safely possible before he may exercise
s
deadly force to repel an attack. Pond v People, 8 Mich 150, 176 (1860). However, where the
person is assaulted in his own home, there is no duty to retreat, but “he must not take life if he can
otherwise arrest or repel the assailant.” Id. at 177. The trial court must instruct the jury as to the
1
Although the prosecutor claims that this issue is unpreserved, we disagree. While defense counsel did
offer to withdraw the request for the no duty to retreat jury instruction, the trial court rejected the offer
and made a ruling, denying the request based on the facts and evidence of the case.
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applicable law and fully and fairly present the case to the jury in an understandable manner.
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People v Moore, 189 Mich App 315, 319; 472 NW2d 1 (1991). Jury instructions are to be read as a
whole rather than piecemeal. People v Bell, 209 Mich App 273, 276; 530 NW2d 167 (1995). “Even
if somewhat imperfect, there is no error if the instructions fairly presented the issues to be tried and
sufficiently protected the defendant’s rights.” Id. The trial court is required to give jury instructions on
any theories or defenses if there is evidence to support them. People v Daniel, 207 Mich App 47, 53;
523 NW2d 830 (1994).
In the present case, the issue is whether, in connection with defendant’s claim of self-defense,
defendant was entitled to a jury instruction that he was under no duty to retreat from his own home.
See CJI2d 7.17. It is undisputed that the shooting occurred outside defendant’s house, next to his
garage. However, because the shooting occurred outside defendant’s home but within the home’s
curtilage, the parties dispute whether the no-duty-to-retreat instruction should have been given. We
conclude that the trial court properly refused to give the instruction.
In People v Kulick, 209 Mich App 258, 264-265; 530 NW2d 163 (1995), remanded on
other grounds 449 Mich 851 (1995),2 this Court stated:
In People v Godsey, 54 Mich App 316, 321; 220 NW2d 801 (1974), this
Court held that the no-duty-to-retreat rule extended “only to inhabited outbuildings
located within the curtilage of the home.” The Court specifically rejected the notion that
the rule extended to the outdoor portions of a curtilage. Id.
Here, all the witnesses testified that the altercation between defendant and
complainants . . . occurred outside defendant’s home. Accordingly, the lower court did
not err in failing to give the requested jury instruction. See also People v Wytcherly,
172 Mich App 213, 221; 431 NW2d 463 (1988), which states that a defendant is
excused from a duty to retreat only if the defendant is in inhabited physical structures
within the curtilage of his home.
Like Kulick, previous decisions of this Court also have concluded that there is a duty to retreat when a
person is attacked within the curtilage of the home but outside the physical walls of the home, unless the
person is attacked in an inhabited outbuilding. See, e.g., People v Drake, 142 Mich App 357, 361;
370 NW2d 355 (1985) (the defendant was not entitled to the no-duty-to-retreat jury instruction where
the defendant “was outside of his house and the supposed burglar was almost across the lot line of [the]
defendant’s property”); Godsey, supra at 321.
In Godsey, supra at 318, the case on which the Kulick Court relied, the defendant claimed
2
Contrary to defendant’s assertion, Kulick is still good law on the issue of the no-duty-to-retreat rule.
We recognize that Kulick is no longer good law on the issue of prosecutorial misconduct because it was
remanded by our Supreme Court on the issue, 449 Mich 851 (1995), and, on remand, this Court
issued an unpublished opinion finding no misconduct and affirming the defendant’s conviction, People v
Ullah, 216 Mich App 669, 681; 550 NW2d 568 (1996).
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that he heard his neighbor throwing rocks and pieces of concrete at his house. The defendant went out
on his porch and was struck by a piece of concrete. He then grabbed a baseball bat and confronted the
victim, who was holding another piece of concrete, and standing on or near their property line. Id. The
defendant struck his neighbor with the bat twice, killing him. Id. The victim’s body was found on his
own side of the property line. Id. The defendant claimed self-defense. The issue on appeal was
whether the trial court erred in not giving a no-duty-to-retreat instruction. Id. at 318, 323.
The Court in Godsey examined the Supreme Court case of Pond, supra, and read Pond as
extending the right of self defense without retreat “only to inhabited outbuildings located within the
curtilage of the home.” Id. at 321. The Godsey Court stated that
the contrary rule - that a man may utilize deadly force without retreat whenever attacked
in the curtilage of his home - would effectively limit the applicability of the prevailing
retreat requirement to situations in which the defendant was on another’s property.
Such a result, to us, is both an unwarranted extension of Michigan law and inconsistent
with the high value placed on human life by any enlightened society. [Id.]
Because the altercation occurred on or near the lot line separating the defendant’s property from the
victim’s, and because the decedent’s body was found on his side of the lot line, our Court concluded
that the defendant was not in his dwelling at the time of the killing, so the trial court did not err in failing
to instruct the jury with respect to the no-duty-to-retreat rule. Id.
In Pond, supra at 166-167, the defendant requested a no-duty-to-retreat instruction, and the
trial court refused the request. The defendant in Pond lived in a fishing community with his wife and
children. Id. at 151. The door of the defendant’s house faced the door of a net-house, which was
about thirty-six feet from the d
efendant’s house and which he also owned. Id. at 151-152. The
defendant’s two hired men slept in the net-house, a one-room building measuring about sixteen feet by
fourteen feet. Id. at 152.
On the day before the killing in Pond, three men, including the victim, encountered the
defendant while he was away from his home, threatened, and hit him. Id. at 153-154. The defendant
escaped, but later, the men came to the defendant’s home and his net-house looking for him. Id. at
154. The men did not find the defendant at either place. Id. at 154-155. The next day, the men again
threatened the defendant. Id. at 155-156. Later that night, the three men returned to the defendant’s
net-house and proceeded to tear boards off the roof and wall. Id. at 156. Thereafter, the men went to
the defendant’s door and demanded that the defendant come outside. Id. at 156-157, 179. The men
spoke to the defendant’s wife through the door, while the defendant hid under the bed. Id. at 157, 179.
At one point, when the defendant’s wife slightly opened the door, one of the men squeezed the wife’s
arm until she fainted. Id. at 157, 180. After the men left, the defendant went to his brother-in-law’s
house, obtained a gun, and went home. Id. at 158, 180. Later, the three men returned to the
defendant’s home. When the wife would not open the door, the men went to the defendant’s net-house
and began to tear it down and assault one of the defendant’s hired men, who was sleeping. Id. at 160,
180. The defendant came out of his home, heard his hired man “hallooed” as if he were in pain, and
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ordered the men to “[l] eave or I’ll shoot.” Id. at 160, 180-181. The defendant shot and killed one of
the three men. Id. at 160-161, 181.
At trial, the court instructed the jury on self defense, defense of others, and defense of one’s
property. Id. at 163-164. The trial court specifically instructed the jury that, if possible, the defendant
had the duty to retreat. Id. at 163. The defendant argued that he did not have a duty to retreat because
the net-house was part of his dwelling. Id. at 165-167. The court refused to give the instruction
because the attack was not on the defendant’s dwelling occupied by his wife and children. Id. at 168.
On appeal, our Supreme Court noted that a person attacked has a duty to retreat if possible,
but that ‘[a] man is not, however, obliged to retreat if assaulted in his dwelling,” and may use deadly
force to defendant himself, if necessary. Id. at 176-177. The Court also noted: “Human life is not to be
lightly disregarded, and the law will not permit it to be destroyed unless upon urgent occasion.” Id. at
173. In concluding that the trial court had erred in refusing to give the no-duty-to-retreat instruction
requested by the defendant, the Court stated:
A question was raised whether the net-house was a dwelling or a part of the
dwelling of Pond. We think it was. It was near the other building, and was used not
only for preserving nets which were used in the ordinary occupation of Pond, as a
fisherman, but also as a permanent dormitory for his servants. [Id. at 181.]
After the Pond case, our Supreme Court decided People v Lilly, 38 Mich 270 (1878). In
Lilly, supra at 273, the defendant discharged one of his farmhands, and a dispute developed regarding
how much the defendant owed the farmhand for his last wages. When the two encountered each other
in town, the farmhand threatened the defendant. Id. Later that evening, the farmhand went to the
defendant’s home to retrieve his belongings and ran into the defendant outside in “the passage way
between” the defendant’s old home and a new home he was building “a few feet” away. Id. at 274.
The dispute over the farmhand’s wages erupted again, and other workers overheard the defendant
telling the farmhand to “take his hands off and not strike him again.” Id. at 274-275 (emphasis
omitted). A struggle ensued, and the defendant stabbed the farmhand with a pocket knife, killing him.
Id. at 275.
At trial, the court instructed the jury that if the defendant “could have saved himself from all
serious harm by retreating or calling for assistance,” but did not do so, and, instead, “stood his ground
and resisted,” the killing would not be justifiable or excusable. Id. at 275. The Supreme Court ordered
a new trial after holding that the instruction was “improper and misleading” because it suggested to the
jury that “it was incumbent upon [the defendant] to fly from his habitation where his wife and children
were, in order to escape danger instead of resisting the aggressor. Such is not the law.” The Court
opined that, “[i]n these cases of personal peril,” the person attacked has a right and a duty to defend
himself, and the law does not impose “any obligation to remain supine and attempt to shift this duty upon
other private persons” who have no obligation to help. Id. at 276-277.
Although instant defendant argues to the contrary, we are of the opinion that Godsey and Pond
are not inconsistent with Lilly. In Lilly, the primary focus was not on the no-duty-to-retreat rule, but
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rather on self defense. The Court was concerned that the trial court had instructed the jury that (1) the
defendant had to call for assistance from others and wait to see if others would come to his aid before
he could exercise self defense, and (2) that the defendant had to flee from his home to resist the
aggressor even though in doing so, his wife and children would remain there at the mercy of the
aggressor. The Lilly Court never said that the defendant was entitled to a no-duty-to-retreat
instruction.
In contrast, the Pond Court was confronted with the question whether a no-duty-to-retreat
instruction should have been given because the net-house was a dwelling or part of defendant’s dwelling
from which he had no duty to retreat. The Supreme Court could have easily resolved the case by
stating that the no-duty-to-retreat rule applied because the net-house was located within the curtilage of
the defendant’s home. However, the Court did not do so. Instead the Court looked at the specific
details of the case: the net-house was close to the defendant’s home (i.e., the structure was within the
curtilage); the net-house was used for preserving items that the defendant used in his occupation, and it
was permanently inhabited by the defendant’s servants. Our Court in Godsey, which was relied on by
the Kulick Court, interpreted Pond as requiring that an outbuilding located within the home’s curtilage
must be inhabited before the no-duty-to-retreat rule applies. We agree with this interpretation of Pond,
which is consistent with the Pond Court’s concern, that “[h]uman life is not to be lightly disregarded,
and the law will not permit it to be destroyed unless upon urgent occasion.” Id. at 173. Defendant
urges us to accept the interpretation that a person has no duty to retreat when although outside the home
he is within the home’s curtilage and without regard to whether the out building is inhabited. We believe
this conclusion would be contrary to the Pond Court’s concern about whether the outbuilding was
inhabited.
Further, considering defendant’s testimony in the present case that he immediately reached for
his rifle upon seeing the victim pull out a dark object that he thought was a gun, we note that the focus in
the present case was not on whether defendant had an opportunity to retreat before using deadly force,
but on whether defendant was required to act immediately upon perceiving the alleged threat of the
victim pulling out a gun. Thus, it is questionable whether the jury was even required to reach the issue of
retreat.
Next, defendant argues that he was denied a fair trial because the prosecutor committed
misconduct by asking defendant whether he believed that the prosecution’s main witness, defendant’s
friend, was lying. We disagree. Because defendant failed to object, review is precluded unless the
resulting prejudice is so great that it could not have been cured by a timely requested instruction or
unless the failure to consider the issue would result in a miscarriage of justice. People v Stanaway, 446
Mich App 643, 687; 521 NW2d 557 (1994).
The test for prosecutorial misconduct is whether the defendant was denied a fair and impartial
trial. People v Paquette, 214 Mich App 336, 342; 543 NW2d 342 (1995). Claims of prosecutorial
misconduct are decided on a case-by-case basis, and the reviewing court must examine the record and
evaluate the prosecutor’s remarks in context. Id. A prosecutor is prohibited from asking a defendant
to comment on the credibility of a witness. People v Buckey, 424 Mich 1, 17; 378 NW2d 432
(1985).
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During direct examination, defendant stated that witness Billingsley’s story about the victim’s
making a disrespectful comment about defendant’s girlfriend was “not true at all.” On cross
examination, the prosecutor asked defendant whether Billingsley was “lying” when he said that
defendant went into the house and came out with a weapon. Defendant indicated that he had no idea,
and agreed that he, Billingsley, and the victim were all “buddies.”
Our review of the transcripts indicates that Billingsley did not testify that he saw defendant come
out of the house with the weapon. Billingsley testified that he heard the screen door behind him shut and
that all of a sudden defendant started firing. This testimony is not necessarily inconsistent with
defendant’s testimony that the gun was right next to the garage door and that he just reached in,
grabbed it, and shot it. Moreover, the question the prosecutor posed was asked as a follow-up to
defendant’s comment that Billingsley’s version of the events was not true. Thus, because defendant
opened the door on the subject during direct examination, cross-examination on the subject was proper.
Paquette, supra; People v Bettistea, 173 Mich App 106, 116; 434 NW2d 138 (1988). Further, no
prejudice resulted because the jury found defendant guilty of second-degree murder, not premeditated
murder, thus, impliedly finding that defendant did not coolly enter the house to get the weapon with the
intent to come back out and kill the victim. In any event, any prejudice could have been cured by a
timely requested instruction. Defendant was not denied a fair trial, and reversal is not warranted on this
basis.
In a supplemental brief filed by defendant after oral argument, defendant raises the issue that the
trial court improperly denied him the right to be tried by a jury composed of persons drawn only from
the City of Detroit in accordance with Local Rule 6.410 of the Third Judicial Circuit, 3rd Circuit LCR
6.410. We disagree. The construction of a court rule is a question of law that this Court reviews de
novo. People v Levandoski, 237 Mich App 612, 617; 603 NW2d 831 (1999).
On the first day of trial before the jury was selected, the following dialogue occurred between
defense counsel and the court:
[DEFENSE COUNSEL]: Judge, I did file a motion for a Detroit jury panel in this
matter.
THE CLERK: I don’t have a motion for a Detroit jury in the file.
THE COURT: We’re going to bring the jury in in a moment. I don’t see, we don’t see
a motion for a Detroit jury in the file. And the pretrial conference , or the final
conference in this matter was I think October 24th.
In any event, assuming that somehow Mr. Riddle would be entitled to a jury
from a pool of citizens from Detroit only, I believe proceeding with this jury, with a
county-wide jury does not result in any prejudice whatsoever to this defendant. I’m
sure that his jury can be as fair as any other potential jury pool in the county of Wayne.
With that, we’ll proceed.
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3rd Circuit LCR 6.410, which became effective on October 1, 1997, and deals with the
selection of juries for trials of former Recorder’s Court cases, provides:
(A) Application. This rule only applies to defendants who are
(1) charged with committing a felony in the City of Detroit, and
(2) arraigned on the warrant or complaint before October 1, 1997.
(B) Selection of Jurors. For trials of defendants described in subrule (A), the court
will draw potential jurors fom all of Wayne County, unless the defendant elects in
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writing, on or before the final pretrial conference, to be tried by a jury composed of
persons drawn only from the City of Detroit.
The lower court record indicates that subsection (A) of 3rd Circuit LCR 6.410 is satisfied because
defendant was charged with committing a felony in Detroit and was arraigned in August 1997, i.e.,
before October 1, 1997. With regard to subsection (B) of the rule, although defendant takes issue with
the court’s statement that a “motion” was never filed rather than a “writing” as required by the rule,
there is no writing or any indication in the lower court record that defendant ever stated in writing that he
desired to be tried by a jury composed of persons drawn only from the City of Detroit. Nor is there
any indication in the October 24, 1997, final pretrial conference that such a request had been made to
the trial court. The plain language of the rule is clear, and every word in the court rule must be given
meaning and not treated as surplusage. People v Schmitz, 231 Mich App 521, 529; 586 NW2d 766
(1998). The court rule clearly states that potential jurors will be drawn from Wayne County, “unless the
defendant elects in writing, on or before the final pretrial conference,” to be tried by a jury composed of
persons from Detroit. Because there is nothing in the record to suggest that a request was made in
writing, defendant’s argument must fail.
We affirm.
/s/ Roman S. Gribbs
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
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