People v. Dupree, Docket No. 281408.

CourtMichigan Court of Appeals
Writing for the CourtM. Kelly
Citation771 N.W.2d 470,283 Mich. App. 89
PartiesPEOPLE v. DUPREE.
Decision Date28 May 2009
Docket NumberDocket No. 281408.
771 N.W.2d 470
283 Mich. App. 89
PEOPLE
v.
DUPREE.
Docket No. 281408.
Court of Appeals of Michigan.
Submitted March 3, 2009, at Detroit.
Decided May 28, 2009, at 9:00 a.m.

[771 N.W.2d 473]

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

Ernst Law Firm, PLC (by Kevin Ernst), for the defendant.

Before: MURRAY, P.J., and GLEICHER and M.J. KELLY, JJ.

M.J. KELLY, J.


Defendant Roberto M. Dupree appeals by delayed leave granted his jury conviction of possessing or carrying a firearm while ineligible to do so as a result of a prior felony conviction (felon-in-possession), MCL 750.224f. The trial court sentenced Dupree as a fourth-offense habitual offender, MCL 769.12, to serve 48 months to 30 years in prison. On appeal, Dupree argues that the trial court improperly instructed the jury on his theory that he could not be convicted of being a felon-in-possession if he only temporarily took possession of the firearm at issue in order to defend himself during a life-threatening altercation. In order to resolve this issue, we must first determine whether temporary possession of a firearm for self-defense during a life-threatening altercation

771 N.W.2d 474

constitutes an affirmative defense to being a felon-in-possession under Michigan law. We must then determine whether that defense applied in this case and whether the trial court properly instructed the jury on that defense. We conclude that there is such a defense under Michigan law, that it applied to the facts of this case, and that the trial court improperly instructed the jury on this defense. Further, because we conclude that the instructional error was not harmless, we reverse Dupree's conviction of being a felon-in-possession and remand for a new trial on this charge.

I. BASIC FACTS AND PROCEDURAL HISTORY
A. THE FIGHT AND SHOOTING

Dupree's conviction arises out of a fight and shooting at a party in September 2005. On the day in question, Dupree and a female companion went to the home of Dupree's sister-in-law, Adrian Dupree, to celebrate the birthday of Dupree's brother. Adrian's niece, Ashley Horton, and Horton's boyfriend, Damond Reeves, also attended the party. The party lasted several hours and primarily took place in the backyard. After it started to become dark, the party began to wind down and the remaining guests prepared to leave. At around this time, Dupree had an altercation with Reeves in the front of the home.

At trial, Reeves testified that he was preparing to leave the party when he asked Adrian to go inside and get Horton. According to Reeves, Dupree was looking at him and then called him a name and pushed him for no reason. Reeves testified that he and Dupree "tussled" for a time in the front yard, but Dupree eventually broke away from him, went into the house, and came out with a .38 caliber revolver. Reeves stated that Dupree then shot him three times.

Horton testified that she was in the house when she heard that Dupree and Reeves were fighting. Horton stated that she went out onto the porch and saw them fighting, but let them fight awhile. Horton said that she eventually tried to break up the fight, but Dupree pulled a gun and struck her in the face with it. Although the sequence of events was not entirely clear, Horton testified that she went into and out of the house on at least two occasions and that she called the police twice. Horton further testified that, at some point, Dupree came into the house, put the gun to her chin, and pulled the trigger. She stated that the gun did not fire—"it just clicked."

Dupree and his witnesses disputed the version of events proffered by Horton and Reeves. Fallon Dupree testified that she was Dupree's niece and that she attended the party with her boyfriend, Brandon Monroe. Fallon stated that Horton and Reeves were very drunk and that they had been fighting throughout the party. At some point shortly before the fight, Horton went into Adrian's house and Reeves tried to follow her. Fallon said that after Reeves came onto the porch, Adrian was in the way and Reeves pushed her off the porch. Dupree then stepped in front of Reeves and told him that he could not show such disrespect to his sister-in-law and asked him to leave. In response, Reeves pushed Dupree and, after Dupree grabbed Reeves's shirt, both men fell off the porch. Fallon testified that when Dupree grabbed Reeves's shirt, the shirt bunched up and she could see a gun tucked into Reeves's waist. After she saw the gun, Fallon and Monroe decided to leave. Fallon stated that, as she was leaving, she heard a gunshot.

771 N.W.2d 475

Monroe's testimony at trial largely followed that of Fallon. Monroe stated that he too saw the gun on Reeves as Reeves and Dupree fell off the porch. Monroe also testified that he and Fallon decided to leave when they saw the gun.

Dupree testified that, as the party was winding down, he was on the front porch with Adrian. He stated that Horton and Reeves had had some "issue" between them throughout the party and that around the time of the altercation Horton came onto the porch. Dupree said that Adrian told Horton to go inside and Horton did. At that point, Reeves came onto the porch and tried to force his way into the house after Horton. When Adrian got in the way, Reeves pushed her off the porch. Dupree testified that he intervened and Reeves pushed him. As he lost his balance, Dupree grabbed Reeves and both men fell off the porch. Dupree said that when he grabbed Reeves, Reeves's shirt came up and he saw a gun tucked into his waist.

Dupree said that he was immediately afraid because Reeves was a very large man—6 feet 5 inches and about 300 pounds—and armed. Dupree said Reeves went for the gun and that he also tried to grab it. Dupree stated that he continued to struggle with Reeves over the gun when it went off. As the struggle moved toward the street, Dupree said the gun went off two more times. Dupree said he told Reeves to "just stop" and to "let go" when Reeves said "I'm hit" several times. Reeves then wandered over to a neighboring house. Dupree testified that he then walked back to the porch and asked Adrian to look and see if he (Dupree) had been hit. Dupree stated that his female companion came out and said "let's go" and he went with her. Dupree said that as they drove off, his companion told him to get rid of the gun, and he threw it out the window. Dupree denied hitting Horton and denied putting the gun to her head.

B. THE DEFENSE AND THE JURY INSTRUCTIONS

On the basis of these events, the prosecution charged Dupree with five felonies: assault with the intent to murder Reeves, see MCL 750.83, assault with the intent to murder Horton, felon-in-possession, felonious assault against Horton, see MCL 750.82, and carrying or possessing a firearm during the commission of a felony (felony-firearm), see MCL 750.227b. Dupree's trial counsel defended against these charges by arguing that Dupree did not assault Horton in any way and that his actions against Reeves were justified as self-defense. With regard to the felon-in-possession charge, Dupree's trial counsel argued that Dupree's temporary possession was justified under the circumstances.

Although Dupree's trial counsel argued that Dupree's temporary possession could not support a conviction for felon-in-possession under the facts of the case, he did not request a specific instruction to that effect. Instead, Dupree's trial counsel only requested a standard self-defense instruction. Nevertheless, the trial court on its own initiative instructed the jury that it could find Dupree not guilty of being a felon-in-possession if it concluded that he had possessed the gun under certain limited circumstances:

As to being a felon in possession, [Dupree] 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.

771 N.W.2d 476

After the jury left, Dupree's trial counsel objected to this instruction. Specifically, Dupree's trial counsel objected to that part of the instruction indicating that temporary possession for self-defense was a defense as long as Dupree did not keep the gun "any longer than necessary to defend himself." Dupree's counsel would rather have had the instruction state that it was a defense as long as Dupree had not kept the gun "any longer than necessary." Following this objection, the trial court asked Dupree's counsel to research the matter and present his authorities on the next trial date.

On the next trial date, Dupree's trial counsel stated that he had not found any authorities that indicated that the trial court's instruction was incorrect. However, the prosecutor suggested that the trial court should further instruct the jury regarding the felon-in-possession charge using an instruction on momentary innocent possession from a case then before our Supreme Court. The trial court agreed.

After the jury was brought in, the trial court instructed it concerning momentary innocent possession as a defense to the charge of being a felon-in-possession. The trial court indicated that the elements of this defense were

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 trial court clarified that this instruction replaced the previous instruction. Dupree's trial...

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6 practice notes
  • Jackson v. Olsen, CASE NO. 4:12-CV-11463
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • November 8, 2017
    ...Id. at *3 n.1 (citing People v. Hernandez-Garcia, 477 Mich. 1039, 728 N.W.2d 406, 406 (2007); People v. Dupree, 284 Mich. App. 89, 771 N.W.2d 470, 478 n.1 (2009)). Petitioner also argues there was insufficient evidence to establish that he was the taller man, whom Ms. Harsh identified, in p......
  • People Of The State Of Mich. v. Dupree, Docket No. 139396.
    • United States
    • Michigan Supreme Court
    • July 23, 2010
    ...presented to the jury a scenario entirely consistent with a classic duress defense.” People v. Dupree, 284 Mich.App. 89, 113, 771 N.W.2d 470 (2009) (Gleicher, J., concurring). As the majority acknowledges, defendant testified that Damond Reeves, a 300-pound, highly inebriated man with a gun......
  • People v. Anderson, Docket No. 300641.
    • United States
    • Court of Appeal of Michigan (US)
    • June 7, 2011
    ...the elements of the defense provided under the MMA and avoid criminal liability. See People v. Dupree, 284 Mich.App. 89, 99–100, 771 N.W.2d 470 (2009) (opinion by M.J. Kelly, J.). (noting that an affirmative defense is one by which the defendant admits the commission of a crime, but seeks t......
  • Jones v. Rivard, CASE NO. 12-14991
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • December 12, 2014
    ...bodily harm to himself or herself or to another individual. Mich. Comp. Laws § 780.972. In People v. Dupree, 284 Mich. App. 89, 91-92; 771 N.W.2d 470, 473-74 (2009) ("Dupree I"), a panel of the Michigan Court of Appeals held for the first time that a claim of self-defense applies to a charg......
  • Request a trial to view additional results
6 cases
  • Jackson v. Olsen, CASE NO. 4:12-CV-11463
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • November 8, 2017
    ...Id. at *3 n.1 (citing People v. Hernandez-Garcia, 477 Mich. 1039, 728 N.W.2d 406, 406 (2007); People v. Dupree, 284 Mich. App. 89, 771 N.W.2d 470, 478 n.1 (2009)). Petitioner also argues there was insufficient evidence to establish that he was the taller man, whom Ms. Harsh identified, in p......
  • People Of The State Of Mich. v. Dupree, Docket No. 139396.
    • United States
    • Michigan Supreme Court
    • July 23, 2010
    ...presented to the jury a scenario entirely consistent with a classic duress defense.” People v. Dupree, 284 Mich.App. 89, 113, 771 N.W.2d 470 (2009) (Gleicher, J., concurring). As the majority acknowledges, defendant testified that Damond Reeves, a 300-pound, highly inebriated man with a gun......
  • People v. Anderson, Docket No. 300641.
    • United States
    • Court of Appeal of Michigan (US)
    • June 7, 2011
    ...the elements of the defense provided under the MMA and avoid criminal liability. See People v. Dupree, 284 Mich.App. 89, 99–100, 771 N.W.2d 470 (2009) (opinion by M.J. Kelly, J.). (noting that an affirmative defense is one by which the defendant admits the commission of a crime, but seeks t......
  • Jones v. Rivard, CASE NO. 12-14991
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • December 12, 2014
    ...bodily harm to himself or herself or to another individual. Mich. Comp. Laws § 780.972. In People v. Dupree, 284 Mich. App. 89, 91-92; 771 N.W.2d 470, 473-74 (2009) ("Dupree I"), a panel of the Michigan Court of Appeals held for the first time that a claim of self-defense applies to a charg......
  • Request a trial to view additional results

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