PEOPLE OF MI V DONALD C RICHARDSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 27, 2010
Plaintiff-Appellee,
v
No. 291617
Wayne Circuit Court
LC No. 08-013456-FC
DONALD C. RICHARDSON,
Defendant-Appellant.
Before: SHAPIRO, P.J., and SAAD and SERVITTO, JJ.
PER CURIAM.
Defendant appeals his jury trial convictions of two counts of assault with intent to do
great bodily harm less than murder, MCL 750.84, and possession of a firearm during the
commission of a felony, MCL 750.227b. The trial court sentenced defendant to 36 to 120
months in prison for each assault conviction and two years in prison for the felony-firearm
conviction. For the reasons set forth below, we affirm.
I. FACTS
This case arises out of a shooting that occurred on September 25, 2008, outside a
residence on Forrer Street in Detroit. Defendant admitted at trial that he shot the victims, Brandy
Abrams and Dennis Dinwiddie, but he claimed that he acted in self-defense.
On the afternoon of the incident, defendant’s wife and several other people were
throwing eggs and rocks at each other outside of defendant’s home. Defendant’s wife swore and
made threats to various people at the scene, including to her neighbor, Teresa Moore. Ms.
Abrams’s son was involved in the disturbance and, when Ms. Abrams drove up to defendant’s
house, she verbally confronted defendant’s wife. The women exchanged vulgar remarks and
threats and Ms. Abrams eventually picked up a baseball bat. Though it appears Ms. Abrams
stood on the ground while defendant and his wife stayed on their porch or inside their front door,
Ms. Abrams conceded at trial that, during the confrontation, she hit defendant’s porch railing and
screen door with the bat.
Mr. Dinwiddie testified that he was drinking a beer at Ms. Moore’s house next door and
he witnessed the argument between Ms. Abrams and defendant’s wife. According to Mr.
Dinwiddie, he walked up to Ms. Abrams to lead her back to Ms. Moore’s house so that she
would not get in trouble and so that no one would get hurt. Ms. Abrams testified that Mr.
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Dinwiddie tried to talk to defendant, but defendant suddenly said he was “tired of this shit,” he
pulled out a gun, and started shooting. Mr. Dinwiddie said the first bullet felt like a dagger in his
back. In total, Ms. Abrams sustained four gunshot wounds and Mr. Dinwiddie sustained two
gunshot wounds. Thereafter, defendant reloaded his revolver and waited on his porch until the
police and EMS arrived.
With regard to defendant’s claim of self-defense, defendant presented evidence that he
has a reputation for being a law-abiding and peaceful person. He testified on his own behalf at
trial and claimed that he was provoked by Ms. Abrams when she broke his glass screen door
with the baseball bat and hit him in the chest with the baseball bat. Defendant testified that, after
this happened, he was afraid that Ms. Abrams would seriously hurt or kill his wife or himself and
that he therefore felt it necessary to shoot. Defendant also saw Mr. Dinwiddie running toward
him but could not see if he was carrying anything in his hand. Defendant testified that friends or
relatives of his neighbor, Ms. Moore, have acted in a threatening manner toward him in the past,
but the police provided him no assistance. Accordingly, defendant asserted that he honestly and
reasonably believed he and his family were in imminent danger of severe injury or death.
II. SUFFICIENCY OF THE EVIDENCE AND SELF-DEFENSE
Defendant argues that the trial court presented insufficient evidence to support his
convictions and that evidence showed he shot the two victims in self-defense. This Court
“review[s] de novo challenges to the sufficiency of the evidence in a criminal trial to determine
whether, when viewing the evidence in the light most favorable to the prosecutor, a rational trier
of fact could have found all of the elements of the charged crime to have been proven beyond a
reasonable doubt.” People v James, 267 Mich App 675, 677; 705 NW2d 724 (2005). “The
elements of assault with intent to do great bodily harm less than murder are: ‘(1) an attempt or
threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do
great bodily harm less than murder.’” People v Brown, 267 Mich App 141, 147; 703 NW2d 230
(2005), quoting People v Parcha, 227 Mich App 236, 239; 575 NW2d 316 (1997) (emphasis in
Brown); MCL 750.84.
Evidence established both elements of assault within intent to do great bodily harm.
“This Court has defined the intent to do great bodily harm as ‘an intent to do serious injury of an
aggravated nature.’” Brown, 267 Mich App at 147, quoting People v Mitchell, 149 Mich App
36, 39, 385 NW2d 717 (1986). “An intent to harm the victim can be inferred from defendant’s
conduct.” Parcha, 227 Mich App at 239. The requisite intent is established if a defendant
attempts to do corporeal harm to a victim through the use of a deadly weapon. Id. As noted, the
prosecution presented evidence that defendant shot Ms. Abrams four times and he shot Mr.
Dinwiddie twice. Evidence also showed that defendant shot both of the victims at close range
and he shot Mr. Dinwiddie first in the back.1 This evidence was sufficient for a rational jury to
1
Defendant claims that the medical records show that Mr. Dinwiddie was shot in the side, not in
the back. While he points to a notation in the medical records that could suggest that a gunshot
wound to Mr. Dinwiddie’s posterior right flank and chest may “possibly” represent an entrance
and exit wound, other parts of the medical record state that the posterior right flank wound and
the chest wound were both “penetrating” wounds and, as noted, Mr. Dinwiddie testified that he
(continued…)
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convict defendant of assault with intent to do great bodily harm. And, though defendant argues
that prosecution witnesses offered untruthful and contradictory testimony, “[t]he credibility of
witnesses and the weight accorded to evidence are questions for the jury, and any conflict in the
evidence must be resolved in the prosecutor’s favor.” People v Harrison, 283 Mich App 374,
378; 768 NW2d 98, 101 (2009).
Defendant argues, however, that evidence showed he acted in self-defense. “[C]ommonlaw self-defense excuses an otherwise unlawful act―typically the killing of another
person―under circumstances in which the defendant acted out of fear of death or serious bodily
harm.” People v Dupree, 284 Mich App 89, 101; 771 NW2d 470 (2009). Indeed, pursuant to
MCL 780.972:
(1) An individual who has not or is not engaged in the commission of a
crime at the time he or she uses deadly force may use deadly force against another
individual anywhere he or she has the legal right to be with no duty to retreat if
either of the following applies:
(a) The individual honestly and reasonably believes that the use of deadly
force is necessary to prevent the imminent death of or imminent great bodily harm
to himself or herself or to another individual.
(b) The individual honestly and reasonably believes that the use of deadly
force is necessary to prevent the imminent sexual assault of himself or herself or
of another individual.
“‘Once evidence of self-defense is introduced, the prosecutor bears the burden of disproving it
beyond a reasonable doubt.’” People v Roper, 286 Mich App 77, 86; 777 NW2d 483 (2009),
quoting People v Fortson, 202 Mich App 13, 20; 507 NW2d 763 (1993).
We hold that the prosecutor established, beyond a reasonable doubt, that when defendant
shot Ms. Abrams and Mr. Dinwiddie, he did not have an honest or reasonable fear of imminent
harm. Defendant argues that various witnesses threatened him at the scene, including Ms.
Moore, Ms. Abrams, and Mr. Dinwiddie, and that this led to his reasonable fear of imminent
harm. Specifically, he cites Ms. Moore’s reference to throwing acid on his wife, Mrs.
Richardson. However, Ms. Moore testified that, in response to Mrs. Richardson’s attempt to
throw a bucket of hot water on her, she merely said to defendant that he should restrain his wife
and that it would be wrong of Ms. Moore to throw acid on Mrs. Richardson. Ms. Moore testified
that she did not have any acid and was merely pointing out that such conduct would be wrong,
just as Mrs. Richardson’s conduct was wrong. The record does not support an inference that Ms.
Moore “threatened” Mrs. Richardson or defendant. Evidence also showed that Ms. Moore was
on her porch when she made the comment and that Mrs. Richardson and defendant were on their
own property. Thus, Ms. Moore’s comment could not lead defendant to believe that he or his
wife were in imminent danger of being harmed by Ms. Moore.
(…continued)
felt the bullet hit him in the back.
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Defendant also asserts that Mr. Dinwiddie made threats to Mrs. Richardson and
defendant. Mrs. Richardson told police that Mr. Dinwiddie tried to get inside her house and said
he was going to “get” her. However, this was not corroborated by other witnesses. To the
contrary, Mr. Dinwiddie, Ms. Abrams, and Ms. Moore testified that Mr. Dinwiddie was simply
trying to restrain Ms. Abrams and to bring her back to Ms. Moore’s property. Defendant
testified that, when Mr. Dinwiddie was standing on Ms. Moore’s porch, he told defendant that
when the argument was over “its [sic―it’s] going to be between me and him. And he said he
didn’t have a problem busting a woman upside the head . . . .” Again, however, Mr. Dinwiddie
allegedly made this threat from Ms. Moore’s house and several witnesses testified that the
confrontation subsided for several minutes thereafter. It also appears undisputed that Mrs.
Richardson was swearing at and threatening numerous people at the scene throughout this period
of time.
Defendant concedes that defendant did not testify truthfully about Ms. Abrams hitting
him with a baseball bat. No other witness so testified and no one else stated that Ms. Abrams
broke defendant’s glass screen door. Defendant argues that his presumably false assertion is
irrelevant because the testimony of other witnesses was so contradictory. However, defendant’s
own argument makes the point: like the witnesses he cites, defendant also made statements that
contradicted his other testimony, his wife’s statements to the police, and the testimony of other
witnesses; it is not for this Court to sort out which witnesses offered the more credible version of
events. Harrison, 283 Mich App at 378.
Defendant’s best evidence to support his theory of self-defense is that Ms. Abrams yelled
at and threatened Mrs. Richardson while carrying a bat, and she admittedly hit defendant’s porch
railing and screen door with the bat. However, ample other evidence showed that Ms. Abrams
never walked up onto the porch to physically confront Mrs. Richardson or defendant, defendant
had pushed Mrs. Richardson inside the house when Ms. Abrams hit the porch and door (thus
getting her out of the way of any potential harm), defendant had armed himself earlier in the day
with three loaded guns, Mr. Dinwiddie attempted to defuse the situation by pulling Ms. Abrams
away from the confrontation, the two were heading back toward Ms. Moore’s house when
defendant began to shoot, and the first shot coming from defendant’s gun hit Mr. Dinwiddie in
the back. This evidence, if believed by the jury, establishes beyond a reasonable doubt that
defendant could not have had a reasonable belief that he needed to use deadly force against either
Ms. Abrams or Mr. Dinwiddie to prevent imminent death or great bodily harm to himself or his
family.
Defendant seems to suggest that the history of acrimony on the street and the whole
atmosphere on the afternoon of the incident led him to believe that he or his family could be
gravely injured or killed. By all accounts this was a volatile confrontation involving a great deal
of yelling and threatening language from both sides. It also appears that defendant may well
have had trouble with unruly, intoxicated neighbors but felt powerless to do anything about it.
However, based on the evidence presented at trial, Ms. Abrams’s conduct and that of Mr.
Dinwiddie simply did not rise to a level that would excuse defendant’s actions in shooting them
six times with a revolver. While, arguably, defendant had no duty to retreat because he was on
his porch at the time of the incident, absent evidence that he had an honest and reasonable belief
that he had to use deadly force to prevent imminent injury or death, his conduct is not excused
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under a theory of self-defense. People v Riddle, 467 Mich 116, 127; 649 NW2d 20 (2002).
Accordingly, we affirm the jury’s decision.
III. JUDICIAL CONDUCT AND JURY INSTRUCTIONS
Defendant argues that he was denied his constitutional right to due process because the
trial court was biased against him. As this Court explained in People v Odom, 276 Mich App
407, 421-422; 740 NW2d 557 (2007):
A determination regarding whether a party has received due process is a
question of law reviewed de novo. For a due process violation to result in reversal
of a criminal conviction, a defendant must prove prejudice to his or her defense.
Because defendant did not preserve his claim of bias through a timely objection before the trial
court, this Court reviews this unpreserved constitutional claim under the plain error standard.
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
MRE 611(a) provides as follows:
The court shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the truth, (2)
avoid needless consumption of time, and (3) protect witnesses from harassment or
undue embarrassment.
Moreover, in People v Paquette, 214 Mich App 336, 340; 543 NW2d 342 (1995), this Court
explained:
A trial court has wide, but not unlimited, discretion and power in the
matter of trial conduct. Portions of the record should not be taken out of context
in order to show trial court bias against defendant; rather the record should be
reviewed as a whole. A trial court’s conduct pierces the veil of judicial
impartiality where its conduct or comments unduly influence the jury and thereby
deprive the defendant of a fair and impartial trial. [Citations omitted.]
A party that challenges a judge for bias must overcome a heavy presumption of judicial
impartiality. People v Wells, 238 Mich App 383, 391; 605 NW2d 374 (1999).
Defendant contends that the trial court had a “hostile attitude” toward defense counsel
during his cross-examination of Ms. Abrams. The record reflects, however, that the trial court
was merely attempting to control defense counsel’s improper cross-examination. Defense
counsel was attempting to introduce Ms. Abrams’s prior testimony when he was not actually
impeaching any testimony elicited at trial. Moreover, the trial court was simply making the point
that it was improper for defense counsel to make the general, inaccurate statement before the jury
that Ms. Abrams’s “entire testimony” differed from her prior testimony. The trial court’s
comments, while perhaps exhibiting some displeasure with trial counsel’s conduct, fall under the
category of controlling the conduct in the courtroom and the appropriate questioning of
witnesses and does not constitute error. MRE 611; Paquette, 214 Mich App at 340.
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Later in the cross-examination of Ms. Abrams, the trial court made the accurate
observation that defense counsel’s attempt to impeach was improper because the allegedly
conflicting testimony was actually about two different times during the incident and defense
counsel raised his voice to the court while denying his own, obvious error. The trial judge did
not express bias against defendant personally, nor did he respond to defense counsel’s conduct
improperly. Simply put, there is no indication in the record of the kind of “deep-seated
favoritism or antagonism such that the exercise of fair judgment is impossible,” and it wellsettled that “[c]omments critical of or hostile to counsel or the parties are ordinarily not
supportive of finding bias or partiality.” Wells, 238 Mich App at 391.
Defendant asserts that the trial court improperly intervened on two other occasions to
guide his questioning, including when defense counsel asked if Ms. Abrams had told a police
officer that defendant was the only person with a weapon on the scene. Ms. Abrams
acknowledged her prior statement and defense counsel countered, “You have forgotten that you
had the baseball bat at that time; is that correct?” The trial court intervened and said:
There is a difference between saying someone has something like a gun
that’s known to be a weapon and someone having a baseball bat. In and of itself a
baseball bat is not a weapon. You should phrase the question to at least
understand the two are different, Mr. Lusby.
Contrary to defendant’s implication on appeal, the trial court was not telling the jury that a
baseball bat can never be a weapon. Rather, the trial judge was merely clarifying that, to
properly impeach a lay witness, the testimony must actually conflict. The judge was simply
asking defense counsel to phrase the question in a manner so as not to wrongfully suggest that
Ms. Abrams denied to the police officer that she had a bat at the scene of the shooting. Again,
this was not improper. MRE 611; Paquette, 214 Mich App at 340.
Though defense counsel complains that the court emphasized a point that favored the
prosecution during the testimony of witness Annie Norman, i.e., that Ms. Abrams was not
standing on defendant’s porch when she swung the bat, this was proper questioning under MRE
611 in an effort to “make the interrogation and presentation effective for the ascertainment of the
truth” and no error occurred. Nothing in the record indicates that the trial court showed bias for
or against one of the parties and defendant is not entitled to relief on this issue.
Under the same question presented, defendant argues that the trial court gave the jury
confusing and improper instructions. Defendant’s point appears to be that, in combination with
the trial court’s alleged hostility toward the defense, the trial court’s instructional error resulted
in an unfair trial. Defendant’s argument is without merit.
In Dupree, 284 Mich App at 97, this Court opined:
This Court reviews de novo claims of instructional error. People v Martin,
271 Mich App 280, 337; 721 NW2d 815 (2006). Likewise, this Court reviews de
novo questions of law such as the proper interpretation of criminal statutes in the
context of traditional common-law principles. See People v Tombs, 472 Mich
446, 451-459; 697 NW2d 494 (2005).
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Furthermore,
Jury instructions are to be read as a whole rather than extracted piecemeal
to establish error. People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67
(2001). The reviewing court must balance the general tenor of the instructions in
their entirety against the potentially misleading effect of a single isolated
sentence. People v Freedland, 178 Mich App 761, 766; 444 NW2d 250 (1989).
[People v Waclawski, 286 Mich App 634, 675; 780 NW2d 321 (2009).]
“Instructions must cover each element of each offense charged, along with all material
issues, defenses, and theories that have evidentiary support.” People v Wess, 235 Mich App 241,
243; 597 NW2d 215 (1999). “Even if the instructions are somewhat imperfect, reversal is not
required as long as they fairly presented the issues to be tried and sufficiently protected the
defendant's rights.” Aldrich, 246 Mich App at 124.
The trial court instructed the jury on self-defense and stated that “a person is never
required to retreat if attacked in his or her own home, nor if the person reasonably believed that
the attacker is about to use a deadly weapon, nor if the person is subject to a sudden fear and
violent attack.” Defendant does not complain that this instruction was incorrect and, indeed,
counsel expressed satisfaction with the instructions after the trial court gave them. After the jury
asked the scope of a person’s “home” for purposes of self-defense, the trial court instructed the
jury that “home” includes the curtilage, “meaning land or yard adjoining a house usually within
an enclosure.” The Court further explained:
And also, as used in this section, dwelling means a structure or shelter that is used
permanently or temporarily as a place of abode and including an appurtenant
structure attached to that structure, meaning something that is attached to that
structure or shelter also. Sometimes people may have sheds or something like
that, enclosed porches, something along that line.
The trial court also reinstructed the jury on self-defense and, again, defense counsel expressed
satisfaction with the court’s instructions. When the jury indicated that it could not reach a
verdict, the trial court re-instructed the jury on its duties as the finder of fact, the presumption of
innocence, and the definition of reasonable doubt. The trial court also gave the jury the selfdefense instruction again, including the word “curtilage” when referring to the lack of a duty to
retreat within a person’s own home. Though defense counsel asked the court to define
“curtilage” again, the court declined to do so.
The trial court’s decision not to re-instruct the jury on the definition of “curtilage” did not
deprive defendant of a fair trial. The trial court fully, accurately, and repeatedly instructed the
jury on self-defense, explicitly defining the word curtilage to the full satisfaction of defense
counsel. The jury did not express confusion about the word after the trial court defined it and
there is simply no reason to presume that the jury failed to understand the definition as given by
the court. Jurors are presumed to follow their instructions and nothing in the record suggests that
the verdict was based on a misunderstanding or failure to consider the meaning of “curtilage.”
See People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Overall, the court “fairly
presented the issues to be tried and sufficiently protected the defendant’s rights.” Aldrich, 246
Mich App at 124. Accordingly, defendant has not shown that he was denied a fair trial.
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Affirmed.
/s/ Douglas B. Shapiro
/s/ Henry William Saad
/s/ Deborah A. Servitto
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