FACTS At 3:27 a.m. on November 24, 2001, Officers from the Cedar Springs Police Department and Deputies from the Kent County Sheriff s Department were dispatched to 153 Pine Street in the City of Cedar Springs in reference to a prowler and shooting. More specifically, dispatch informed the responding officers that a suspect was trying to gain access to the residence and that the homeowner, 48 year old Robert James Clarke, had shot the suspect, later identified as 22 year old Kevin Lee Salinas. Upon arrival, officers found Mr. Salinas laying on his back approximately 5 to 6 feet away from a wooden deck attached to the rear of the residence. The deck is more specifically described as being approximately l8 above ground and 23 x 24. It was determined by medical personnel at the scene that Mr. Salinas had been shot once in the lower left quadrant of his abdomen. He was described as semi-conscious and combative. Mr. Salinas was transported to Spectrum Hospital in Grand Rapids where he died at approximately 10:50 a.m. that same morning. Investigation at the scene revealed, in part, that Mr. Clarke lived at 153 Pine Street with his wife, Valerie, and their five minor children. Mrs. Clarke was awakened by the sound of what she described as someone trying to get into their house through the garage, side and slider doors. She then woke her husband, who was hooked up to a snoring machine, and looked outside. At that point, Mrs. Clarke claimed to have seen an individual walking across the backyard away from the house toward their shed; neither Mr. nor Mrs. Clarke knew Mr. Salinas prior to the 24 th. She thought the person was drunk because she saw him stumbling. She told her husband that someone was trying to get into the house and immediately called 911. Upon being awakened, Mr. Clarke claimed that he immediately grabbed a flashlight and went outside through the door of his bedroom that opens onto the deck. After going outside, he claimed that he saw Mr. Salinas walk from the area near the Clarke s pole barn toward their shed. Mr. Clarke further indicated that he said to Mr. Salinas what are you doing, you better leave and the police are on their way. Mr. Salinas responded we ve already been through this before and began to walk across the lawn toward Mr. Clarke. Neither Mr. Clarke nor Mrs. Clarke, who also heard the statement by Mr. Salinas, understood what he meant by the remark. Although both Mr. and Mrs. Clarke claimed that Mr. Salinas uttered additional phrases during the course of this incident, the others were unintelligible and the aforementioned statement is the only one they could comprehend. At this juncture, Mr. Clarke became concerned for his safety and the safety of his family and went back inside to retrieve his legally registered 9mm Smith & Wesson semi-automatic handgun that he kept in his dresser drawer. He stated there was no round in the chamber so he racked one in and went back out on the deck. Although Mr. Clarke does not recall turning on the outside lights (Mrs. Clarke had done so), he stated it was light enough to see. Mr. Clarke indicated that at the time he went back outside, he had the flashlight in his left hand and the 9mm handgun in his right hand. After returning to the deck, Mr. Clarke stated that Mr. Salinas was still walking toward him and, despite repeated commands to stop and/or freeze, he continued to approach until he
ultimately stepped onto the deck of Mr. Clarke s home. Although Mr. Clarke did not see anything in Mr. Salinas hand, he stated that he felt that Mr. Salinas was going to assault him and access his home. As Mr. Salinas continued to advance, Mr. Clarke told him, at a minimum, right now, son, you better sit down and sit down. Again, Mr. Salinas disregarded Mr. Clarke s warnings and continued to cross the deck toward Mr. Clarke. At the same time, Mr. Clarke backed across his deck away from Mr. Salinas until he had almost reached his bedroom door. When Mr. Salinas had moved to within approximately 5 feet, Mr. Clarke aimed his gun at Mr. Salinas midsection and fired one shot. Mr. Salinas immediately went down, rolled around on the deck and then rolled off the deck and onto the grass. Mr. Clarke claimed he shot Mr. Salinas because he was afraid that if Mr. Salinas got any closer to him, he could potentially take the gun away, enter his home and harm not only him but also his wife and children. A prior police contact between Officer Jack Pieters of the Cedar Springs Police Department and Kevin Salinas and a friend of Mr. Salinas, Brian Ellison, had occurred approximately one hour (2:21a.m.) before Mr. Salinas was shot. Officer Pieters had seen both young men on foot in the area of Pine Street and White Pine Trail (4 houses from Clarke s residence) and had attempted to stop them to determine what they were doing. Subsequent to his arrest, Mr. Ellison told Officer Pieters that he had met Kevin around 7:30-8:00 on the evening of the 23 rd and that the two of them had gone to his mother s house and had a couple of beers. They then decided to go to the Round-Up on Main Street in Cedar Springs where they stayed until about 1:30 a.m. on the 24 th. They next went to the Gun Tavern where they stayed until closing time. According to Mr. Ellison, both he and Kevin had a lot to drink. Mr. Ellison s blood alcohol level was.21 at the time he was lodged at the Kent County Correctional Facility. Mr. Ellison further claimed that after they left the Gun Tavern they walked up Main Street to Pine Street and were passed by a Cedar Springs police officer. At this point, Kevin yelled run. Mr. Ellison initially ran but immediately stopped and was arrested. Mr. Salinas, however, ran and was not seen again until Mrs. Clarke saw him in her backyard. His whereabouts from the time he fled Officer Pieters until he was seen in the Clarke s backyard are unaccounted for. A search of the deck area of the Clarke home led to the discovery of one fired Win- Luger 9mm cartridge in an area consistent with having been fired from the location and in the manner described by both Mr.and Mrs.Clarke. Further examination also revealed a fresh bloodstain on the deck in an area consistent with the events as described by the Clarkes. No sign of forced entry to either the residence or out buildings was noted. All exterior doors were processed for latent fingerprints and DNA. Two latent friction ridge lifts were recovered from the home s exterior sliding door frame. No additional latents were found. A comparison conducted by Michigan State Police Scientific Crime Laboratory personnel on December 10 th identified the prints as belonging to members of the Clarke household. No identifiable prints of Mr. Salinas were found. As of December 18 th, no DNA tests have been conducted and, due to the backlog at the Michigan State Police Laboratory, it is not anticipated that tests will be completed until well after January 1, 2002. An autopsy performed by Dr. David Start showed that Mr. Salinas died as the result of a single gunshot wound to the abdomen. Toxicology results received on December 14 th indicate
that at or near the time Mr. Salinas was shot his blood alcohol level was.25 (2 ½ times the legal limit to drive an automobile). No illegal substances were detected. Ballistic tests were also performed by personnel of the Michigan State Police Scientific Crime Laboratory on December 13 th and 14 th in an effort to determine the distance between Mr. Clarke and Mr. Salinas at the time the fatal shot was fired. All that could be concluded, however, was that Mr. Salinas had to have been further than 3 feet from the muzzle of the gun at the time he was shot. Although not terribly illuminating, these findings are nonetheless consistent with Mr. Clarke s description of having shot Mr. Salinas from a distance of approximately 5 feet. The 911 call received by the Kent County Sheriff s Department at 3:27:34 a.m. from the Clarke residence reveals an agitated, emotional and frightened Valerie Clarke. More significantly, however, it also provides the ability to hear some of the commands directed toward Mr. Salinas prior to the shooting. The following are portions of that call: Mrs. Clarke: Hello. There s a drunk guy stumbling around in my backyard. I m at 153 Pine Street. Could you please co come immediately? Dispatcher: You don t know who it is? Mrs. Clarke: No 3:27:45 Mrs. Clarke: He. He just stumbled up onto our deck and ah he 3:27:58 Dispatcher: Can you still see him? Mrs. Clarke: No. My husband just went out and was shining the flashlight. Now I don t know he walked out be behind the gar 3:28:03 MR. CLARKE: HE AIN T LEAVING (in background) Mrs. Clarke: He s not leaving my husband said. 3:28:09 Dispatcher: There s officers on the way. Mrs. Clarke: Bobby. Police on the way. Police on the way. Who is that? Dispatcher: Calm down. 3:28:16 Mrs. Clarke: He s right. He s right here. Standing on Dispatcher: OK. He s still outside though? 3:28:20 Mrs. Clarke: Yes. He s on our deck.
Voice in background (unintelligible) Mrs. Clarke: Bobby. He doesn t have a gun does he? 3:28:27 MR.CLARKE: RIGHT NOW. (in background) Mrs. Clarke: Is he unarmed? Go on. 3:28:31 MR.CLARKE: SON, YOU BETTER SIT DOWN. (in background) Dispatcher: Why do you think he has a weapon? Is he Voice in background (unintelligible) 3:28:34 MR.CLARKE: SIT DOWN. (in background) Dispatcher: Did he threaten you? Voice in background (unintelligible) Mrs. Clarke: No 3:28:37 GUNSHOT 3:29:25 Dispatcher: Has he tried to get in? Mrs. Clarke: No he hasn t. He tried a minute ago. He tried. Now he s getting up. He s getting up. He did try a little while ago. He was pulling on the doors to try and get in the house. That s what that s what woke me up. Because he was rattling on our doors and then he was stumbling around in circles. Dispatcher: He s very, very intoxicated. Mrs. Clarke: Very, very, very. He s kneeling. He s going to kneel. 3:29:58 Dispatcher: Where s he bleeding from? Mrs. Clarke: I have no idea. It was in his side. It was in his side that he did it. Dispatcher: Where s your husband now?
Mrs. Clarke: He s right here. He s just putting on his pants. 3:30:18 Mrs. Clarke: Oh dear. 3:30:23 Dispatcher: Did he ever say anything when he tried to get in or just wiggled at the door? Mrs. Clarke: He said He...No he was wiggling violently. He wasn t he wasn t saying anything. He was just stumbling around trying to get in here. He was going from door to door. 3:31:02 Dispatcher: Is he still down on the deck? Mrs. Clarke: Yes he is. He s not gone anywhere. Dispatcher: Do you know if he is dead? Mrs. Clarke: I can t tell. I have no idea. I just don t know why this man was trying to get into our house. 3:31:50 Dispatcher: Where s your husband? Is he still inside? Mrs. Clarke: He s he s walking around the house. He s just he s just going back and forth. He s worried. He s very worried. 3:32:06 Mrs. Clarke: The man is trying to get up. Dispatcher: He is trying to get up? Mrs. Clarke: Ya. Ya, Ya Ya. He s in a kneeling position. He s trying to crawl. Mrs. Clarke: Please, please, please hurry. 3:32:50 MR. CLARKE: What s going on? They bringing somebody? (in background) Mrs. Clarke: Ya. Ya. Ya. 3:33:30 Police and/or rescue vehicles drive past the Clarke residence. 3:33:43 Mrs. Clarke: please, please hurry. I don t want anything to happen to him. I can t believe this happened.
3:34:04 Dispatcher: Is he still on the deck ma am? Mrs. Clarke: No. He s right off the edge of the deck 3:34:25 Mrs. Clarke: Oh my gosh. 3:34:42 Mrs. Clarke: Our porch light is on. Why aren t they here? 3:34:50 Mrs. Clarke: Where are they? 3:34:59 Mrs.Clarke: Here here there they go again. Police and/or rescue vehicles again drive past the Clarke home. 3:35:20 Mrs. Clarke: Please, please, please hurry.please get somebody here. 3:35:45 Mrs. Clarke: They re here 3:36:14 Mrs. Clarke: My husband is trying to find them. He s trying to find them. LEGAL ANALYSIS Because Mr. Clarke used deadly force against Mr. Salinas, that resulted in his death, Mr. Clarke, by definition, committed a homicide. Not all homicides, however, are criminal. Given a death caused by the defendant, a homicide is not murder..if the killing was justified..the defendant s state of mind is determinative. A homicide is justified if the defendant acted in self-defense.. People v Morrin, 31 Mich App 301, 310-311 (1971). The question therefore is whether the use of force and the resulting homicide were justified under the circumstances as they reasonably appeared to Mr. Clarke during the early morning hours of November 24, 2001. Under Michigan law, a person has the right to use deadly force in self-defense where the actor has a reasonable and honest belief that he is in imminent danger of death or great bodily harm. People v Meert, 157 Mich 93 (1909). This principle also extends to the defense of those individuals whom a person has a legally or socially recognized right to defend, i.e., immediate family members. Perkins & Boyce, Criminal Law (3d Ed), Ch. 10, 5, p 1145. It is not enough, however, that the actor s belief be honest; that belief must also be reasonable. People v Heflin, 434 Mich 482, 503, n. 16 (1990). In addition, it must be emphasized that the issue is not whether from the advantage of hindsight the use of such force was actually necessary. Actual necessity is not the test for self-defense; where circumstances present a person with reasonable cause to believe he is in danger he may respond, even if his belief is later shown to have been a mistaken one. People v Shelton, 64 Mich App 154 (1975),
citing, inter alia, Pond v People, 8 Mich 150 (1860). Furthermore, the issue is not whether Mr. Salinas was armed (he was not), or whether he intended to assault Mr. Clarke or break into his home; it is rather whether Mr. Clarke had an honest and reasonable belief that Mr. Salinas was armed and/or that he posed a threat to Mr. Clarke and his family, and whether his actions, under all the circumstances as they reasonably appeared to Mr. Clarke at the time, were justified. An analysis of the law of self-defense must, by necessity, also include an examination of the duty to retreat. Michigan is a duty to retreat state, i.e., a person is not entitled to use deadly force in self-defense if the person can safely retreat and avoid the danger of death or great bodily harm. The reason for this is clear: [h]uman life is not to be lightly disregarded, and the law will not permit it to be destroyed unless upon urgent occasion. Pond v People, supra, 8 Mich at 173. Michigan law is currently unclear as to the extent of the duty to retreat. Traditionally, a person was not required to retreat when inside his or her own dwelling; i.e. the no retreat zone was strictly limited to the occupied portions of a dwelling. People v Godsey, 54 Mich App 316, 320-321 (1974). Recently, however, the Court of Appeals held that a person was not required to retreat from the porch of his home. People v Canales, 243 Mich App 571 (2000). The attached deck of the Clarke home is, in my opinion, analogous to the porch in Canales. The Michigan Supreme Court has recently granted leave to appeal in the case of People v Riddle, Docket No. 118181, leave granted October 3, 2001. The issue stated in the order granting leave is: whether the trial court erred reversibly in denying defendant s request to instruct the jury on lack of duty to retreat. In their arguments, the parties shall address the various different possible zones in which courts have found, or commentators have argued, that there should be no duty to retreat and the parties shall argue the merits and demerits of each approach. Although we welcome the Supreme Court s decision to address this confused area of law and believe it to be long overdue, the law of the state today is that expressed in Canales. As such, Mr. Clarke, even though he had retreated across his deck to the area of his bedroom door, was not legally obligated to retreat into his home before using deadly force. Furthermore, a person is not required to retreat into his own home if, in view of all of the circumstances as they appeared to him at the time, he honestly believed that he or his family were in imminent danger of death or great bodily harm, which could be avoided only by immediately acting in defense of himself or his family. People v Kuehn, 93 Mich 619 (1892). The fact that someone enters another person s home without the legal right to do so does not automatically give the occupant the right to shoot the intruder. People v Sizemore, 69 Mich App 672, 676 (1976). But when an intruder insists upon an unlawful entrance into the dwelling with such violence that only deadly force can stop him, the [homeowner] will usually have good reasons to fear for his safety or the safety of members of his household. Perkins & Boyce, Criminal Law (3d Ed), Ch. 10, 6, p 1149.
Although Mr. Salinas never entered the house, it is clear from the 911 tape that Mrs. Clarke heard him try to do so and was sufficiently alarmed to awaken her husband. Mrs. Clarke stated that she heard noises, which sounded as if someone were trying to break into her house. On the 911 tape, Mrs. Clarke can be heard to ask her husband, he doesn t have a gun does he and is he unarmed. This illustrates the reasonable mindset of a homeowner who hears someone trying to enter their home in the middle of the night. It reasonably appeared to Mr. and Mrs. Clarke that Mr. Salinas was a potential burglar, attempting a forcible and unlawful entry into their home, that he was potentially armed, and that he posed a danger to them and their children sleeping in the home. One of the investigating officers in this matter has publicly opined that this incident would never have occurred had Mr. Clarke remained inside the home, and that Mr. Clarke is therefore to blame to the extent that his actions escalated the situation. In retrospect, the officer might well be correct. Had Mr. Clarke chosen to stay inside, the shooting in all likelihood would not have happened. But what Mr. Clarke could have done, might have done or should have done is not the issue. While Mr. Clarke s decision to go outside can be legitimately debated, as the law in Michigan presently stands, he was under no legal obligation to remain in his house. Furthermore, Mr. Clarke initially went outside armed with only a flashlight. It was only after he shined the flashlight on Mr. Salinas, after he told him to leave and the police were on the way, after Mr. Salinas refused to leave, after Mr. Salinas said we ve already been through this before, and after Mr. Salinas started approaching Mr. Clarke, that Mr. Clarke went back into the house and retrieved his gun. A homeowner has the right to possess a weapon, even a concealed weapon, in his own home or on other land possessed by the person. MCL 750.227(1). Mr. Clarke committed no crime by going outside to confront a man he believed to be potential a burglar, rather than waiting inside for the police to arrive, and by going back into his home and retrieving his gun when that potential burglar began to pose a threat by advancing toward him and his home. Based on these legal principles and the facts as they can best be ascertained, we have the following: Mrs. Clarke heard what she honestly and reasonably believed to be a burglar, attempting to get into her house. Mrs. Clarke awakened her husband, who went outside onto the deck of their home with just a flashlight. Mrs. Clarke called 911 to report a drunk guy stumbling around in my backyard. On the 911 tape, she is obviously frightened by Mr. Salinas presence. Mr. Clarke, while on his deck and unarmed, confronted Mr. Salinas at a time when Mr. Salinas was more than 75 feet away and told him to leave the property and that the police were on the way. Rather than leaving, Mr. Salinas said we ve already been through this before and advanced across the lawn toward Mr. Clarke. (Since neither Mr. nor Mrs. Clarke had ever seen Mr. Salinas before, this statement makes sense only in the context of Mr. Salinas confrontation with Officer Pieters earlier that evening, and indicates that Mr. Salinas, in his drunken condition, perhaps thought that Mr. Clarke was a police officer.)
Mr. Clarke then went back inside the house and retrieved his gun, which was located in a dresser drawer just inside his bedroom. Mr. Salinas stepped onto the deck and continued to approach Mr. Clarke, who backed across his deck until he was near the bedroom door. Mr. Salinas still continued to advance toward Mr. Clarke, even though Mr. Clarke pointed a gun at him and said, at a minimum, right now, son, you better sit down and sit down. Mr. Clarke honestly and reasonably feared that Mr. Salinas either had a weapon or could potentially take Mr. Clarke s weapon from him. Mr. Clarke discharged his weapon a single time, causing the fatal wound to Mr. Salinas. Mr. Clarke was confronted with a person whom he honestly and reasonably believed posed a danger to him and to his family. He shot Mr. Salinas only after Mr. Salinas continued to advance toward him. Given the time of the morning at which this occurred, Mr. and Mrs. Clarke s belief that Mr. Salinas had tried to enter their home unlawfully, Mr. Salinas intoxication, Mr. Salinas comment that we ve already been through this before, and Mr. Salinas subsequent actions in continuing to advance toward Mr. Clarke and the Clarke home, Mr. Clarke had an honest and reasonable belief that Mr. Salinas posed a threat to himself and his family. His action in shooting Mr. Salinas was justified. Mr. Salinas had, at the time of his death, a pending charge of home invasion. That is not, however, a factor which was considered in rendering this opinion. A decedent s prior acts are relevant only if they are known to the person who used deadly force. People v Kerley, 95 Mich App 74, 79 (1980). Mr. Clarke did not know Mr. Salinas, and thus Mr. Salinas alleged prior home invasion is not relevant. We have considered the statements of Mr. and Mrs. Clarke, the 911 tape, the autopsy results, ballistic tests results and the physical evidence from the scene of the shooting. The only evidence, which we do not yet have, are the results of DNA testing from swabs taken from the exterior doors of the Clarke residence. It is possible that such testing could reveal that Mr. Salinas had touched the doors of the Clarke home. But the reverse is not true; a negative result would only mean that it couldn t be proven Mr. Salinas touched the door, not that he could not have done so. Trace DNA evidence can occur when small, microscopic skin particles are left on an item, which a person has handled, but such trace evidence is not automatically found with every contact. Given the cold weather, and the likelihood that any contact Mr. Salinas had with the home would have been fleeting, it is possible that he left no DNA, or that he left traces which simply were not recovered. More significantly, however, a negative result on the DNA testing would not change the fact that Mr. Clarke honestly and reasonably believed that he was confronted with a dangerous man, who presented a threat to enter his home and a potential danger to either Mr. Clarke or his family. Everyone involved and interested in this situation is entitled to a resolution as expeditiously as possible and it would be unreasonable to wait for the results of tests, which would not affect my opinion. CONCLUSION It is important to reiterate the issue: whether Mr. Clarke acted within the proper scope of the doctrine of self-defense. It is not whether another course of action could have been taken. It
is not whether, with the full benefit of hindsight, this tragic death could have been avoided. For the prosecutor, the question is simpler, though no less profound: was the death the result of an honest and reasonable belief in the need to act in self-defense. A review of the facts, and an application of the law to those facts, indicates that the answer to the question is yes. The Kent County Prosecutor s Office will accordingly decline to prosecute Mr. Clarke for his actions on the night of November 24, 2001.