Thursday, July 29, 2010

Self Defense is Available to Felon-in-Possession of a Firearm

Last Friday, the Supreme Court rendered another opinion dealing with a criminal case in People v Roberto Dupree. The question presented was whether a defendant may assert the defense of self-defense when charged with being a felon in possession of a firearm contrary to MCL 750.224f. The answer, at least in regard to Dupree’s facts, is, “Yes.” The Court granted Dupree a new trial, finding that Wayne County Circuit Judge Brian Sullivan erred when he gave, sua sponte, a jury instruction which he called “the necessity defense to being a felon-in-possession.”
Justice Maura Corrigan wrote the opinion for the majority, consisting of Justices Weaver, Young, Markman, Hathaway and her, affirming the Court of Appeals published decision. (Judge Murray dissented).  Justices Cavanagh and Kelly concurred in the result but wrote separately concerning the additional defense of duress which the defendant raised separately. Kevin Ernst represented Dupree on appeal.

The defendant’s version of the events differed significantly from the prosecution’s, but did create a plausible self-defense argument. Dupree was at a party and observed the complainant, Reeves, shove a female relative off of the porch. Dupree interceded and told Reeves not to disrespect his sister-in-law. Reeves shoved Dupree and the two fell off the porch wrestling. During the struggle, Reeves shirt came up and Dupree saw a gun in Reeves’ waistband. Dupree was in fear for his life because Reeves was bigger, drunk and armed, and, when Reeves went for the gun, Dupree grabbed it. As the two struggled over the gun, Dupree shot Reeves three (3) times. Dupree kept the gun, left the premises and threw the gun out of his car window when he was a sufficient distance from the house. Dupree was charged with Assault with Intent to Murder, Felonious Assault, Felon in Possession of a Firearm and Felony Firearm. The jury found him not guilty on everything except being a felon in possession of a firearm.

The verdict, the Court found, was necessarily correct in light of the trial court’s erroneous jury instruction which included the following element: “And third, that it was the defendant’s intention to deliver the gun to the police at the earliest possible time. The law imposes that duty as a concomitant part of that.” Michigan’s jurisprudence carries with it no such requirement, and the Court found that the error was not harmless.

Because the Court had granted leave to address whether, if at all, self-defense is available to a defendant in a felon-in-possession case, a majority of the opinion is devoted to answering that question. Because the defense is “embedded in our criminal jurisprudence” it is available as a defense to this charge even though the charge of felon in possession of a firearm was statutorily created and not part of the common law. “Legislative bodies enact criminal statutes against a background of Anglo-Saxon common law.” Unless the Legislature affirmatively abrogated the defense for a felon-in-possession charge, the Court concluded the defense is available. Of course, that means that, once the defendant proffers a prima facie case of self defense, it then becomes the prosecution’s burden to prove beyond a reasonable doubt the defendant did not act in self-defense. The Court affirmed the Court of Appeals’ decision to remand the case to Wayne County for a new trial on the felon-in-possession charge.  Time will tell whther the prosecution will actually go forward in light of the Court's ruling.

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