People Of The State Of Mich. v. Dupree

Decision Date23 July 2010
Docket NumberDocket No. 139396.
Citation788 N.W.2d 399,486 Mich. 693
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Roberto Marchello DUPREE, Defendant-Appellee.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

COPYRIGHT MATERIAL OMITTED.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Kym L. Worthy, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training and Appeals, and Joseph A. Puleo, Assistant Prosecuting Attorney, for the people.

Kevin Ernst, for defendant.

Brian A. Peppler, David S. Leyton, and Donald A. Kuebler, for the Prosecuting Attorneys Association of Michigan.

Opinion

CORRIGAN, J.

In this criminal case, we hold that the traditional common law affirmative defense of self-defense may be interposed to a charge of being a felon in possession of a firearm, MCL 750.224f. Defendant temporarily possessed a firearm in violation of the felon-in-possession statute but introduced evidence at trial supporting the theory that his violation was justified because he acted in self-defense. The prosecutor did not resist defendant's argument regarding the availability of self-defense, and the trial court gave a standard self-defense jury instruction. Over defendant's objection, the trial court also instructed the jury regarding the momentary innocent possession defense to the charge of being a felon in possession. The jury convicted defendant. The Court of Appeals reversed defendant's conviction and remanded for a new trial, concluding that the common law affirmative defenses of self-defense and duress are generally available to a defendant charged with being a felon in possession if supported by sufficient evidence. 1

We originally granted leave to consider whether any of the traditional common law affirmative defenses are available for a charge of felon-in-possession and, if so, whether the defendant has the burden of proving the affirmative defense. We conclude, however, that only the common law affirmative defense of self-defense was properly raised before the trial court. Limiting our analysis to the issue preserved below, we agree with the Court of Appeals that self-defense is generally available for a felon-in-possession charge if supported by sufficient evidence. Defendant introduced sufficient evidence from which the jury could have concluded that he violated the felon-in-possession statute but that his violation could be justified because he honestly and reasonably believed that his life was in imminent danger and that it was necessary for him to exercise force to protect himself. Therefore, we hold that self-defense is an available defense under these facts.

We also take this opportunity to reaffirm that the prosecution bears the burden of disproving the common law affirmative defense of self-defense beyond a reasonable doubt. Finally, we conclude that the Court of Appeals properly ruled that the trial court's modified jury instruction on the momentary innocent possession defense was erroneous. Because this instructional error more probably than not resulted in a miscarriage of justice, defendant is entitled to a new trial on the felon-in-possession charge. Accordingly, we affirm the Court of Appeals' result and remand for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

On September 11, 2005, defendant Roberto Marchello Dupree and a female companion attended a birthday party for his brother at the house of defendant's sister-in-law, Adrian Dupree. Adrian's 24-year-old niece, Ashley Horton, and Horton's 24-year-old boyfriend, Damond Reeves, also attended. When the party was ending, defendant and Reeves began quarrelling on the porch. The altercation culminated in defendant shooting Reeves three times. As a result of the altercation, the prosecutor charged defendant with two counts of assault with intent to commit murder, 2 felonious assault, 3 felon-in-possession, 4 and possession of a firearm during the commission of a felony. 5 After a three-day trial, the jury acquitted defendant of all charges except the felon-in-possession charge.

The witnesses gave conflicting testimony at trial about the circumstances surrounding the altercation. Reeves testified that defendant directed an expletive at him and shoved him for no reason. Reeves also testified that he and defendant fought until defendant left the fracas, went inside, and returned with a gun. Reeves stated that defendant shot him three times as he continued wrestling with defendant from the front yard to the street. Although the sequence of events was unclear, Horton testified that when she attempted to intervene, defendant struck her in the face with the gun. She went inside to call the police and heard a shot. Horton returned to the porch and heard a second shot before going back inside, where she heard a third shot. She stated that defendant later entered the house, put the gun to her chin, and pulled the trigger. The gun did not fire.

By contrast, defendant and two other bystanders testified that the altercation began when Reeves shoved Adrian Dupree off the porch. Defendant told Reeves not to disrespect his sister-in-law and asked him to leave. Reeves then pushed defendant. The two men fell off the porch and began wrestling. Reeves's shirt was pulled up, exposing a gun in the waistband of his pants. Defendant testified that he feared for his life because Reeves was larger than defendant, inebriated, and armed. Defendant stated that Reeves went for his gun and that defendant grabbed it to protect himself. As the two men struggled over the gun, defendant shot Reeves three times. Defendant kept the gun until he left with his female companion in her vehicle, throwing the gun out the window after he was some distance from the house.

During the three-day jury trial, defense counsel argued that defendant had not assaulted Horton, but had acted in self-defense in response to Reeves's actions. Regarding the felon-in-possession charge, defense counsel asserted that defendant's temporary possession of the gun was justified because defendant had seized possession of the gun to protect himself during the struggle. Defense counsel requested a standard self-defense jury instruction for all charges. The prosecutor did not object, and the trial court instructed the jury as requested. Additionally, the court instructed the jury sua sponte that it could find defendant not guilty of being a felon in possession if it found the following:

As to being a felon in possession, [defendant] claims that the gun was produced in a struggle. And of course, if that's the case that the gun was produced during the course of a struggle and you find that it happened that way, that would be a defense to felon in possession provided you find that he did not keep the gun in his possession any longer than necessary to defend himself.

Defense counsel objected to the trial court's instruction, arguing that the court should not have included the phrase “any longer than necessary to defend himself.” The trial court responded that it had crafted the instruction, which it labeled “the necessity defense to being a felon-in-possession,” from federal law. After further discussion, the court gave defense counsel more time to locate legal authority to substantiate the objection.

When defense counsel failed to locate any legal authority invalidating the instruction, the prosecutor suggested that the trial court provide an instruction on the momentary innocent possession defense to carrying a concealed weapon then under consideration by this Court in People v. Hernandez-Garcia, 477 Mich. 1039, 728 N.W.2d 406 (2007). 6 Defense counsel objected. The court overruled the objection and reinstructed the jury concerning the momentary innocent possession defense to being a felon in possession as follows:

And if the person had a brief or momentary possession of the weapon based on necessity, that's a defense to being a felon in possession. And the elements to that are that the defendant had the gun because he had taken it from someone else who was in wrongful possession of it, or he took it from him because of necessity, because he needed to. Second, that the possession after taking the gun was brief. 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. [Emphasis added.]

The trial court stated that the modified instruction replaced its prior instruction regarding “the necessity defense.” Subsequently, the jury acquitted defendant of all felony charges except the felon-in-possession charge. The court sentenced defendant to serve a term of 48 months' to 30 years' imprisonment as a fourth-offense habitual offender. 7

In a published opinion, the Court of Appeals reversed defendant's conviction and remanded for a new trial.

The majority concluded that defendant had not waived his claim of instructional error and that the common law affirmative defenses of self-defense and duress are generally available for felon-in-possession charges. The Court adopted the term “justification” to describe the affirmative defense under which “a defendant might be justified in temporarily possessing a firearm-even though the possession is unlawful-if the possession is immediately necessary to protect the defendant or another from serious bodily harm.” 8 Using the elements of common law duress as its basis, the lead opinion listed five elements that would allow a defendant to raise a justification defense to a felon-in-possession charge. 9 The Court held that each of the five elements had been established in this case and that the instructional error was not harmless because the trial court's modified jury instruction effectively directed a guilty verdict on the felon-in-possession charge. The dissenting Court of Appeals judge disagreed, concluding that the instructional...

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