ARNETTA GRABLE V EUGENE BROWN
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STATE OF MICHIGAN
COURT OF APPEALS
ARNETTA GRABLE, Personal Representative of
the Estate of LAMAR GRABLE, Deceased,
UNPUBLISHED
December 20, 2005
Plaintiff-Appellee,
v
No. 256215
Wayne Circuit Court
LC No. 99-906156-NO
EUGENE BROWN,
Defendant-Appellant.
Before: Gage, P.J., and Hoekstra and Murray, JJ.
HOEKSTRA, J. (concurring).
I concur with and join in the majority opinion. I write separately, however, to explain my
reasons for concluding that defendant was not entitled to judgment not withstanding the verdict
(JNOV) on plaintiff’s claim of assault and battery.
As argued in his brief on appeal and at oral arguments, defendant’s claim is grounded in
the assertion that plaintiff’s proofs on assault and battery were insufficient because plaintiff’s
evidence could not “persuade a reasonable jury that [defendant’s] discharging of his weapon was
not justified.” To support that assertion, defendant maintained that “no factual explanation, other
than that offered by Brown, was established by any record evidence” and that any alternative
theories regarding what happened were speculative.
The reason defendant’s argument fails, in my judgment, is that as instructed by the trial
court and is unchallenged on appeal, defendant, not plaintiff, had the burden of proof regarding
whether defendant was justified under the circumstances in using deadly force. Plaintiff’s
burden was to prove assault and battery, which was conclusively established by defendant’s
admission that he fired the shots that killed Lamar Grable. In light of that admission, the focus
of the trial became the defense of justification for which defendant had the burden of proof.
Because defendant had the burden of proof, plaintiff had no obligation to establish or even offer
a defensible alternate explanation. Admittedly, defendant presented through his own testimony
and that of his partner that evening, Vicki Yost, evidence that, if believed, would have proved
justification. Like any evidence, however, the credibility of defendant’s evidence is subject to
attack and ultimately may be rejected by the jury. Detroit/Wayne Co Stadium Authority v
Drinkwater, Taylor & Merrill, Inc, 267 Mich App 625, 644; 705 NW2d 549 (2005) (“[t]he jury
is the judge of the credibility of witnesses and the truthfulness of their statements”). As outlined
in detail in the majority opinion, plaintiff presented a significant attack on the credibility of
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defendant’s version of what transpired that evening. In light of this credibility attack, I believe
that reasonable jurors could honestly have reached differing conclusions regarding whether
defendant established his claim of justification. Zantell Marketing Agency v Whitesell Corp, 265
Mich App 559, 568; 696 NW2d 735 (2005). Consequently, defendant’s claim of entitlement to
JNOV fails.
/s/ Joel P. Hoekstra
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