                           STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     June 28, 2018
               Plaintiff-Appellee,

v                                                                    No. 328572
                                                                     Macomb Circuit Court
GERALD ANDREW KUPINSKI,                                              LC No. 2015-000099-FC

               Defendant-Appellant.


Before: MURPHY, P.J., and JANSEN and RONAYNE KRAUSE, JJ.

MURPHY, P.J. (concurring).

       I agree with the majority that reversal is necessary, but I would employ a different
analysis. Accordingly, I respectfully concur.

                                       I. INTRODUCTION

        The issue posed to us concerns the proper manner in which to instruct a jury with respect
to self-defense and the crime of felon in possession of a firearm. Defendant challenges the
following language in the trial court’s instructions, “First, at the time he acted the defendant must
not have been engaged in the commission of a crime.” This language was read twice to the jury,
once for the instruction on defense of oneself and again for the instruction on defense of others.1
Defendant argues that this language necessarily undermined his claim of self-defense in regard to
felon-in-possession, because he had stipulated to being a “felon” and his possession of the
firearm before the shooting could be viewed as constituting the “commission of a crime,” i.e.,
felon-in-possession, effectively and immediately short-circuiting the claim of self-defense before
the jury moved on to the other elements. Defendant also contends that the general framework of
the self-defense instructions, which spoke to justifying or excusing the use of deadly force, could
have led the jury to believe that justifying or excusing the mere possession of a firearm was not
encompassed by the instructions.




1
  The jury was also instructed on the duty to retreat under M Crim JI 7.16, which provides, in
part, that retreat is not required if the defendant was not “engaged in the commission of a crime
at the time the deadly force [was] used . . . .”

                                                -1-
        The prosecution argues that the trial court’s instructions on self-defense relative to felon-
in-possession were consistent with the law. The prosecution also contends that the evidence did
not support a conclusion that defendant possessed the gun for purposes of self-defense. To the
extent that the prosecution is maintaining that the evidence did not support instructions on self-
defense in regard to the offense of felon-in-possession, the prosecution agreed to the instructions
at issue, so that claim was waived. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).

                      II. SELF-DEFENSE UNDER THE COMMON LAW

        In People v Dupree, 486 Mich 693, 712; 788 NW2d 399 (2010), our Supreme Court held
as follows:

               Having necessarily limited our analysis to the specific issue properly
       raised and preserved before the trial court, we conclude that the traditional
       common law affirmative defense of self-defense is generally available to a
       defendant charged with being a felon in possession if supported by sufficient
       evidence. We also conclude that self-defense was available under the facts of this
       case. Once a defendant satisfies the initial burden of producing some evidence
       from which a jury could conclude that the elements necessary to establish a prima
       facie defense of self-defense exist, the prosecution bears the burden of disproving
       the affirmative defense of self-defense beyond a reasonable doubt. [Emphasis
       added.]

         The DuPree Court tackled the issue of self-defense in relation to felon-in-possession
under the common law, and the Court explained the general nature of common-law self-defense,
stating:

               At common law, the affirmative defense of self-defense justifies otherwise
       punishable criminal conduct, usually the killing of another person, if the
       defendant honestly and reasonably believes his life is in imminent danger or that
       there is a threat of serious bodily harm and that it is necessary to exercise deadly
       force to prevent such harm to himself. Generally,

               one who is not the aggressor in an encounter is justified in using a
               reasonable amount of force against his adversary when he
               reasonably believes (a) that he is in immediate danger of unlawful
               bodily harm from his adversary and (b) that the use of such force is
               necessary to avoid this danger.

               A finding that a defendant acted in justifiable self-defense necessarily
       requires a finding that the defendant acted intentionally, but that the
       circumstances justified his actions. [Id. at 707 (citations, quotation marks, and
       alteration brackets omitted).]

       In People v Riddle, 467 Mich 116, 119, 126; 649 NW2d 30 (2002), the Michigan
Supreme Court indicated that common-law self-defense may be raised where a defendant “is free
from fault” and is “a nonaggressor.” In People v Reese, 491 Mich 127, 144-145; 815 NW2d 85
(2012), our Supreme Court explained that self-defense is focused on the concept of “necessity.”
                                                 -2-
In People v Townes, 391 Mich 578, 593; 218 NW2d 136 (1974), the Supreme Court, addressing
common-law self-defense and quoting State v Perigo, 70 Iowa 657, 666; 28 NW 452 (1886),
observed:

               It may be conceded that everything that was done by defendant in the
       transaction, up to the moment of the final attack by the deceased, was unlawful
       and wrongful; yet, if that assault was felonious and was of such a character as to
       clearly indicate an intention by the assailant to take defendant's life, or to inflict
       on him some enormous bodily injury, there is no valid ground for holding that he
       was precluded from the right to defend himself against it by the mere fact that he
       had been, or then was, engaged in the commission of a trespass upon the property
       of the deceased.

               The general doctrine undoubtedly is that one who has taken the life of an
       assailant, but who was himself in the wrong, cannot avail himself of the plea of
       self-defense. But the wrong which will preclude him from making that defense
       must relate to the assault in resistance of which the assailant was killed. If at the
       time the assault is made upon him, he is engaged in the commission of an act
       which is wrongful, but which is independent of the assault, he may lawfully
       defend himself against it, to the extent even of slaying the assailant, if it is
       felonious, unless, indeed, his act is of such a character as to justify the assault.
       The mere fact, then, that defendant was engaged in committing a trespass when
       deceased attacked him, does not necessarily constitute him a wrong-doer in the
       matter of the assault, or preclude him from making the defense of self-defense.
       [Citations, quotation marks, and ellipses omitted.]

        As reflected in the Michigan Supreme Court precedent, the common law does not
automatically deny a defendant a claim of self-defense in situations wherein the defendant is
engaged in the commission of a crime when deadly force is exerted by the defendant. Rather,
criminal activity by a defendant can only defeat a claim of self-defense if it entails the defendant
acting as the aggressor, e.g., the defendant initiates a felonious assault, or if the criminal activity
otherwise justifies a forceful response to which the defendant forcefully reacts. In other words,
even if a defendant is engaged in the commission of a crime, self-defense can still be claimed so
long as the crime is independent of the other person’s assaultive behavior, freeing the defendant
from fault. Thus, for example, a defendant who participates in an illegal drug transaction with
another individual would not be precluded from raising a claim of self-defense if the other
person initially attempts to fatally stab the defendant during the transaction and the defendant
responds by killing the individual. In that scenario, defendant’s engagement in an otherwise
non-violent drug deal would be independent of the other person’s decision and act to knife the
defendant. As an additional example, a woman engaged in an act of prostitution can claim self-
defense if, during the act, she kills the “john” after he first violently assaults her, given that the
woman’s involvement in the commission of a crime, prostitution, would not justify a physically
assaultive response. Accordingly, the common law does not mechanically require general non-
engagement in crime as a prerequisite to pursuing self-defense. Consistently with this
proposition, nowhere in the DuPree opinion did the Supreme Court state that a defendant facing
a charge of felon-in-possession is required to show that he or she was not engaged in the
commission of a crime when exercising deadly force in order to claim self-defense. Of course, if
                                                 -3-
a defendant had committed a crime that amounted to him or her being the initial aggressor, self-
defense would not be available. See M Crim JI 7.18.

                        III. SELF-DEFENSE PURSUANT TO STATUTE

       Pursuant to 2006 PA 309, the Legislature enacted Michigan’s Self-Defense Act (SDA),
MCL 780.971 et seq., which was made effective October 1, 2006.2 MCL 780.972 provides, in
pertinent part:

                 (1) An individual who has not or is not engaged in the commission of a
         crime at the time he or she uses deadly force may use deadly force against another
         individual anywhere he or she has the legal right to be with no duty to retreat if
         either of the following applies:

                 (a) The individual honestly and reasonably believes that the use of deadly
         force is necessary to prevent the imminent death of or imminent great bodily harm
         to himself or herself or to another individual.

                 (b) The individual honestly and reasonably believes that the use of deadly
         force is necessary to prevent the imminent sexual assault of himself or herself or
         of another individual. [Emphasis added.]
        Except as provided in MCL 780.972, the SDA did “not modify the common law of this
state in existence on October 1, 2006 regarding the duty to retreat before using deadly force or
force other than deadly force.” MCL 780.973. And the SDA did “not diminish an individual's
right to use deadly force or force other than deadly force in self-defense or defense of another
individual as provided by the common law of this state in existence on October 1, 2006.” MCL
780.974.3 The SDA “altered the common law of self-defense concerning the duty to retreat.”


2
 Although the Supreme Court’s decision in Dupree was issued in 2010, the altercation at issue
occurred in September 2005; therefore, the Court did not look to the SDA for resolution.
Dupree, 486 Mich at 708.
3
    MCL 780.961 provides:
                 (1) An individual who uses deadly force or force other than deadly force
         in compliance with section 2 of the self-defense act and who has not or is not
         engaged in the commission of a crime at the time he or she uses that deadly force
         or force other than deadly force commits no crime in using that deadly force or
         force other than deadly force.
                 (2) If a prosecutor believes that an individual used deadly force or force
         other than deadly force that is unjustified under section 2 of the self-defense act,
         the prosecutor may charge the individual with a crime arising from that use of
         deadly force or force other than deadly force and shall present evidence to the
         judge or magistrate at the time of warrant issuance, at the time of any preliminary
         examination, and at the time of any trial establishing that the individual's actions
         were not justified under section 2 of the self-defense act.

                                                 -4-
People v Conyer, 281 Mich App 526, 530; 762 NW2d 198 (2008). The SDA “created a new
substantive right, i.e., the right to stand one’s ground and not retreat before using deadly force in
certain circumstances in which a duty to retreat would have existed at common law.” Id. The
Conyer panel compared the duty to retreat under the common law to the duty to retreat under the
SDA, explaining:
               [U]nless attacked inside one's own home, or subjected to a sudden, fierce,
       and violent attack, a person has a common-law duty to retreat, if possible, as far
       as safely possible. People v Riddle, 467 Mich 116, 118-121; 649 NW2d 30
       (2002). Conversely, under § 2 of the SDA, there is no duty to retreat if the person
       has not committed or is not committing a crime and has a legal right to be where
       the person is at the time he or she uses deadly force. MCL 780.972(1). Section 2
       of the SDA thus constitutes a substantive change to the right of self-defense.
       [Conyer, 281 Mich App at 530 n 2.]

                                         IV. ANALYSIS

         As reflected above, self-defense under the common law and self-defense under the SDA
take a parallel track with similar requirements, except with respect to the duty to retreat, with the
SDA allowing a person to stand his or her ground in self-defense and not retreat, even outside a
homestead, but only if the “individual . . . has not or is not engaged in the commission of a crime
at the time he or she uses deadly force[.]” MCL 780.972(1). The Legislature plainly intended to
give Michiganders the right to stand their ground, limited, however, to law-abiding citizens; any
involvement in criminal activity negates the right. In the instant case, defendant shot the alleged
assailant inside defendant’s home. Therefore, there was no duty to retreat under the common
law, nor would there have been a duty to retreat under the SDA; however, the SDA would have
demanded evidence that defendant was not engaged in the commission of a crime when he shot
and killed the purported assailant. Thus, because the duty to retreat was not in dispute, the
proper tactical approach here from defense counsel’s perspective would have been to seek jury
instructions that did not require the jury to entertain the question whether defendant was engaged
in the commission of a crime at the time of the shooting, as the law would support entirely the
omission of such instructional language under a common-law view. 4 Instead, defense counsel
agreed to instructions that raised that precise issue for the jury’s contemplation and resolution in
three instructions, which was of no benefit whatsoever to defendant and only to his detriment,
considering the likely confusion generated by the instructions as argued by defendant and




4
  I cannot emphasize enough that the SDA generally preserved self-defense under the common
law; therefore, the Supreme Court’s common-law-based opinion in DuPree remains relevant,
and DuPree did not indicate or suggest that the defendant, who claimed self-defense in regard to
the crime of felon-in-possession, had any obligation to show that he was not engaged in the
commission of a crime at the time he employed deadly force.

                                                 -5-
recognized by the majority.5 This constituted deficient performance, as counsel’s representation
fell below an objective standard of reasonableness. People v Carbin, 463 Mich 590, 600; 623
NW2d 884 (2001); People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). Finally, I agree
with the majority’s analysis and conclusion that the instructional error was prejudicial.6

       I respectfully concur.


                                                            /s/ William B. Murphy




5
  I recommend that the Committee on Model Criminal Jury Instructions work to formulate and
draft an instruction that is neatly tailored for self-defense when a defendant is charged with the
crime of felon-in-possession.
6
  I note that my discussion of the statutory right to stand one’s ground under the SDA, MCL
780.972(1), is to show that it is necessarily connected to the very language at issue in this case
regarding whether defendant was engaged in the commission of a crime at the time he used
deadly force, which is part of the statutory language, not the common law. And because
defendant was in his home when the shooting occurred, he did not have to resort to the statutory
stand-your-ground provision; therefore, there was no basis in law to instruct the jury of the need
to show that defendant was not engaged in the commission of a crime when he shot the assailant.
The whole purpose of my concurrence is to demonstrate that the challenged instructions were
improper under the law of self-defense, as framed by the common law and the SDA, in the
context of this case, and not because a “Catch-22” was created, although that concern certainly
supports the determination that the error was prejudicial.

                                               -6-
