MSC Rules Duress Defense Applies to 2d Degree Murder Car Crash

 

Yesterday, in a 4-3 decision with a concurrence and two dissenting opinions, the Michigan Supreme Court ruled that duress is an available defense to one form of 2d Degree Murder - willful and wanton disregard that the natural tendency of the act is to cause death or great bodily harm - often referred to as "depraved heart" murder.

Justice Bridget McCormack, probably writing her final opinion as a member of the bench, was joined by Justices Bernstein, Cavanagh and Welch in the opinion in People v Gafken, Docket No. 161835.  Theresa Gafken was convicted of second degree murder in the St. Clair County Circuit Court, MCL 750.317.  The evidence showed she drove her car, while running from the police, at speeds in excess of 100 MPH.  She ran a red light and collided with other vehicles, killing one person and severely injuring several others.  The prosecution's theory was that Gafken had intended to do an act that was in willful and wanton disregard of the likelihood of the natural tendency of the act was to cause death or great bodily harm.

Prior to trial, Gafken had move the trial court to allow her to present the defense of duress.  She claimed that a passenger in her car shoved a gun into her ribs and told her to flee the police.  She knew the passenger was dangerous because he had previously assaulted his mother while under the influence of drugs.  The common law rule is that duress is defense to most crimes, the reasoning being that a person faced with the choice between committing a crime or suffering great bodily harm or death if she does not, should not be held responsible for the criminal act.  However, when the defendant under duress is faced with the choice of murdering an innocent person, the common law would not excuse that crime for social policy reasons.  The trial court ruled she was not entitled to present facts supporting a duress defense.  The Court of Appeals affirmed the decision.

The Court drew a line of distinction between the three types of second degree murder.  The elements of second-degree murder are: (1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse.  Malice may be established in three ways: by showing (1) the intent to kill, (2) the intent to cause great bodily harm, or (3) the intent to do an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.  In 2020, the Court had ruled that duress was a defense to felony murder as long as it was a defense to the underlying felony (People v Reichard, 505 Mich 81), because in that case, the defendant is not faced with the choice of intentionally killing an innocent person to save their own life.  The choice is whether to commit the underlying felony or suffer death.

The Court reasoned the same analysis applies to depraved heart murder.  The defendant's choice is between committing an act that is willfully and wantonly dangerous, in this case driving recklessly, or suffering death or great bodily harm.  Because the defendant in a depraved heart murder does not have the intent to kill an innocent person, duress is an available defense.  The trial court's ruling deprived the defendant of the right to present a defense and the error was not harmless.  The Court reversed the Court of Appeals and the trial court and remanded the case to the circuit court.

Chief Justice Clement and Justice Zahra, joined by Justice Viviano, dissented based on the reasoning that depraved heart murder is no less serious than the intent to kill or cause great bodily harm.  The common law and Michigan jurisprudence have not created such a distinction and have treated the three types of malice with equal severity.  They are all second degree murder, and the majority's opinion creates a division between the intent to kill and the intent to commit a willful and wanton act where none had previously existed.

The People were represented by Melissa J. Keyes of the St. Clair County Prosecutor's Office.  The Defendant was represented by Derek Linkous, a partner at Bush Seyferth, PLLC.