                                                                          Michigan Supreme Court
                                                                                Lansing, Michigan
                                                    Chief Justice:          Justices:



Opinion                                             Robert P. Young, Jr. Michael F. Cavanagh
                                                                         Marilyn Kelly
                                                                         Stephen J. Markman
                                                                         Diane M. Hathaway
                                                                         Mary Beth Kelly
                                                                         Brian K. Zahra

                                                                     FILED MAY 14, 2012

                             STATE OF MICHIGAN

                                      SUPREME COURT


 PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellant,

 v                                                           No. 142913




 VERDELL REESE, III,

               Defendant-Appellee.


 BEFORE THE ENTIRE BENCH

 YOUNG, C.J.


       We granted the prosecution’s application for leave to appeal to resolve whether

 Michigan law recognizes the doctrine of “imperfect self-defense” as an independent

 theory that automatically mitigates criminal liability for a homicide from murder to

 voluntary manslaughter when a defendant acts as the initial aggressor and then claims

 that the victim’s response necessitated the use of force. We hold that the doctrine of

 imperfect self-defense does not exist in Michigan law as a freestanding defense
mitigating murder to voluntary manslaughter, although we recognize that factual

circumstances that have been characterized as imperfect self-defense may negate the

malice element of second-degree murder. When analyzing the elements of manslaughter

in light of defendant’s self-defense claim, we conclude that the Court of Appeals erred in

its ruling on the sufficiency of the prosecution’s evidence to sustain defendant’s

manslaughter conviction. Therefore, we reverse in part the Court of Appeals’ judgment,1

affirm the trial court’s verdict of manslaughter, and remand this case to the Court of

Appeals for further consideration of defendant’s remaining issue on appeal.

                      I. FACTS AND PROCEDURAL HISTORY

        Defendant, Verdell Reese, III, was charged with second-degree murder2 and,

alternatively, voluntary manslaughter3 for the April 2008 death of Leonardo Johnson.4

Defendant waived his right to a jury trial and proceeded to a bench trial in the Wayne

Circuit Court.

        According to testimony adduced at trial, defendant owed $2,000 to Johnson, who

was so upset about the debt that he had not spoken to defendant for approximately six

months. Johnson lived with his cousin, James Long, in Detroit. Defendant was Long’s

1
  The Court of Appeals affirmed defendant’s convictions for being a felon in possession
of a firearm, MCL 750.224f, and felony-firearm, MCL 750.227b. Because defendant
does not cross-appeal those convictions in this Court, our opinion today does not disturb
them.
2
    MCL 750.317.
3
    MCL 750.321.
4
  In addition to these charges, defendant was also charged with being a felon in
possession of a firearm, carrying a concealed weapon, and felony-firearm.



                                            2
close friend; Long described his relationship with defendant as being “like brothers.”

Other testimony established that defendant visited the residence that Long and Johnson

shared several times a week, even though Johnson did not like that defendant visited with

such frequency.

       Long testified that on the evening of April 17-18, 2008, defendant and a man

named John Smith (also known as J.T.) arrived at the Johnson/Long residence. After

they had been at the house for a couple of hours, defendant and another friend, D, drove

to a nearby store to purchase liquor. While defendant and D were at the store, Lakeshia

Williams, who was Johnson and Long’s cousin, left the house with Smith and walked

toward the east, where she lived.

       Williams testified that, after she left the house, she saw Johnson approach from the

east. Once Smith greeted Johnson, Williams heard two gunshots as defendant’s car drove

past them. She heard the first gunshot come from the driver’s side of the car, but testified

that she did not know the origin of the second gunshot. Smith placed himself between

Williams and the street and, after the second gunshot, ran back to Johnson and Long’s

house. Johnson also continued on his way to his house, while Williams continued to her

house and told her father about the gunshots she heard.5

       Although Williams did not see the ensuing encounter between Johnson and

defendant, Long did. After parking his car on the street, defendant walked toward the

house and began talking with Long. According to Long, Johnson then approached the


5
 Long also testified that he heard a gunshot from the east and that defendant and D were
driving back from the store, also from the east, at about this time.



                                             3
house and asked, “[W]hat’s up with that[?]” to which defendant replied, “[W]hat’s up

with what?” Long testified that he then saw both defendant and Johnson step back and

flinch. Long then heard a shot and saw muzzle fire coming from Johnson’s direction,

followed by five more shots that came from both Johnson’s and defendant’s positions.

         Once the shooting ended, Johnson ran across the street and through a vacant lot,

while defendant remained in front of the house. A police officer responding to the

shooting found Johnson’s body facedown on the driveway of a house one block north of

the shootings. Johnson’s .40 caliber semi-automatic pistol was nearby and contained a

live round that had jammed in the chamber. The medical examiner testified that Johnson

had been shot twice and that the fatal bullet passed through his right arm into his chest.

         Defendant had been shot in the right leg. Long and Smith drove defendant to the

hospital in defendant’s car, but not before Long put defendant’s gun in the house.

Another officer was dispatched to the hospital where defendant was admitted and took a

brief statement from defendant.6 Defendant “was very vague [and] did not want to give

any information about what happened.”           However, defendant did say that “he was

standing outside by the car, heard several shots and was struck by several shots” before

being taken to the hospital. Defendant claimed to know neither the person who fired the

shots nor where the shots had come from. He later changed his version of the events and

told another officer that the shots came from a vacant lot across the street, although

defendant again said that he could not provide a description of the shooter. In his third

statement to police, defendant denied having seen who shot him and did not state the

6
    At this point, officers considered defendant a gunshot victim.



                                               4
location of the shooter. However, he claimed that he did not think he was the intended

target of the shooting.

       At the bench trial, defense counsel did not call any witnesses and argued that

defendant did not shoot Johnson or, alternatively, that defendant shot Johnson in self-

defense. The trial court made its findings of fact and issued its ruling from the bench.

First, the trial court rejected defense counsel’s claim that defendant did not shoot and kill

Johnson: “There’s no question . . . [that] Mr. Johnson shot at Mr. Reese and Mr. Reese

shot at Mr. Johnson, okay. So to suggest that Mr. Reese never shot Mr. Johnson is a

mischaracterization of what was proffered by way of evidence here.” The trial court

theorized that the shootings occurred because defendant and Johnson “[couldn’t] settle

their scores in a diplomatic or a professional or responsible way.”

       Addressing the defendant’s alternative claim of self-defense, the trial court

explained that the general rule of self-defense in Michigan is that “one . . . may use

deadly force in self-defense if he . . . honestly and reasonably believes that he is in

imminent danger of death or great bodily harm and that deadly force is necessary to

prevent such a death or great bodily harm.”          The trial court emphasized that “the

touchstone of any claim of self-defense as justified for homicide is a necessity . . . .”

Thus, the trial court determined that “whether or not the Defendant himself was the

original aggressor . . . [is] key to the evaluation of the self-defense defense.”

       The trial court then explained that “Michigan courts have recognized the doctrine

of imperfect self-defense . . . [as] a qualified defense that mitigates second degree murder

to voluntary manslaughter . . . .”     The trial court continued, emphasizing that “the

doctrine only applies where the Defendant would [have] had the right of self-defense


                                               5
[and] . . . he acted as the initial aggressor.” Finally, the trial court explained that an initial

aggressor is entitled to the justification of self-defense when “he generally stopped

fighting his assault and clearly let the other person know that he wanted to make peace.”

       The trial court acquitted defendant of second-degree murder, explaining:

              Is this homicide murder in the second degree? It is not. I don’t
       think the People have proven [their] case beyond a reasonable doubt, but
       what the Court has found is that in this case there’s no question that the
       victim shot at Mr. Reese.

The trial court then concluded that defendant was the initial aggressor in the

confrontation:

               The fact of the matter is, is that Mr. Reese was the one that fired the
       first shot as Mr. Johnson is walking back to his house and I agree with the
       prosecutor. This is Mr. Johnson’s house, not Mr. Reese’s house and Mr.
       Reese knew that if he’d come to that house there would be trouble . . . .

              That being stated the evidence shows clearly the Defendant shot out
       of the car the first shot. That was verified by Miss Williams. She saw that.
       The Court can use circumstantial evidence and you [defendant] were in the
       car. This is verified by Mr. Long who says you got out of the car and as
       you’re walking up, so, too, is Mr. Johnson and at that point this is where the
       evidence parts ways, who fired the first shot.

              This is where the imperfect self-defense comes in and that is clearly
       that you were the aggressor. The Court finds, Mr. Reese, that you were the
       aggressor in this case; that you fired the first shot prompting Mr. Johnson to
       be on guard, prompting Mr. Johnson to pull his weapon on you, prompting
       you then to pull your weapon on him and no question, this was a shoot-out.

After identifying this as a case involving imperfect self-defense, the trial court applied the

elements of manslaughter to the evidence in this case:

              The Court finds the prosecution has proven, first, that the Defendant
       caused the death of Mr. Johnson; that is, that Mr. Johnson died as a result of
       multiple gunshot wounds.




                                                6
              Second, the Defendant had one of these three states of mind; he
      either intended to kill Mr. Johnson or he intended to do great bodily harm
      to Mr. Johnson and pumping five rounds into somebody is pretty much
      evidence that you intended to at least, at the very least, do great bodily
      harm to Mr. Johnson or knowingly created a very high risk of death or great
      harm bodily harm knowing that death or such harm would be the likely
      result of your actions and, third, the Defendant caused the death without
      legal justification.

             The Court find[s] you to be the aggressor here. You’re the one
      [who] shot the first shot. You’re the one [who] scared Mr. Johnson into
      believing that now he had to defend himself. . . .

             Mr. Johnson . . . said, [“]what’s up with that[?”] The Court infers
      from that statement that he’s wondering, what the heck you doing shooting
      a gun off by his house, and the Court finds that you shot him . . . .

                                         * * *

            The Court finds that the Defendant did not act in lawful self-defense
      and the People have proven that he did not act in lawful self-defense
      because he was the initial aggressor.

            He didn’t back off. He didn’t say, okay, it didn’t mean anything.
      Hey, Mr. Johnson[,] . . . I didn’t mean anything . . . .

                                         * * *

             The Court’s going to find the Defendant guilty of voluntary
      manslaughter, homicide manslaughter for the reasons stated on this
      record.[7]

The trial court subsequently sentenced defendant, as a third-offense habitual offender, to

8 to 30 years’ imprisonment for the manslaughter conviction.8        Immediately before


7
  The court also convicted defendant of being a felon in possession of a firearm and
felony-firearm, but acquitted defendant of carrying a concealed weapon.
8
   Defendant received a sentence of 1 to 10 years’ imprisonment for the felon-in-
possession conviction and the 2-year mandatory consecutive sentence on the felony-
firearm conviction, with 217 days of credit on the felony-firearm conviction.



                                            7
sentencing, defense counsel moved for a new trial on the basis of potential testimony by

Smith. Defendant renewed this request in a postsentence pro se motion for a new trial on

the basis of counsel’s failure to call Smith as a witness. The trial court denied both

motions in a subsequent written opinion.

           On appeal, defendant claimed that the prosecution had failed to prove that he was

the initial aggressor and that, therefore, he had a valid self-defense claim. Second,

defendant claimed that the trial court had abused its discretion by denying his posttrial

motions for a new trial.

           The Court of Appeals vacated defendant’s conviction for voluntary manslaughter

and remanded for a new trial on the basis of defendant’s first claim of error.9 The panel

stated that it was “unable to reconcile the uncontroverted facts with what appears to be

the trial court’s inaccurate application of the doctrine of imperfect self-defense.”10 In

particular, the panel questioned the trial court’s conclusion that defendant was the initial

aggressor:

                   The evidence indicates the initial firing of two shots in an unknown
           direction and by an unknown individual before the face-to-face
           confrontation between Reese and Johnson. Only the first shot was
           attributed to Reese based on Williams indicating she heard the shot and
           assumed it was from his vehicle. Williams could not place whether the
           shooter was in the driver’s seat or back seat of the vehicle. There is no
           testimony or evidence to identify who fired the second shot or where it
           originated. Based on Johnson’s continued ambulation toward Reese and
           Long’s house and engaging Reese in conversation, albeit very briefly, it

9
  People v Reese, unpublished opinion per curiam of the Court of Appeals, issued
September 16, 2010 (Docket No. 292153), p 1.
10
     Id.



                                                8
           seems reasonable to assume that Johnson did not feel threatened or
           intimidated by this random, preceding gunfire, which requires us to
           question the trial court’s labeling of Reese as the initial aggressor to justify
           the use of imperfect self-defense to convict him of voluntary
           manslaughter.[11]

           The Court of Appeals criticized the trial court’s characterization of defendant’s

intent to harm Johnson as “problematic on a number of levels.”12 First, the panel claimed

that there was a “lack of evidence that Reese personally fired five shots during the events

involved” because “[t]he medical examiner identified only two wounds to Johnson.”13

           Second, the panel claimed that the trial court’s ruling “would contraindicate the

applicability of imperfect self-defense,” given the trial court’s conclusion that Smith

interfered with Williams’s ability to see the shots from the car “[be]cause he knows

something is coming down . . . .”14 If this observation could be attributed to defendant’s

state of mind, the panel reasoned, that “state of mind would preclude the use of imperfect

self-defense.”15

           Third, the panel claimed that an “insurmountable” difficulty in the trial court’s

ruling was that the trial court had “failed to address Reese’s intent at the crucial point in

time—the initial provocation.”16 The panel then concluded that the evidence did not


11
     Id. at 3.
12
     Id.
13
     Id.
14
     Id. at 4.
15
     Id.
16
     Id.



                                                  9
support the assumption that defendant acted with the required intent during the initial

provocation because even if defendant fired the initial shots before the deadly

confrontation, “there is no evidence that he aimed his weapon at Johnson” and the only

evidence regarding defendant’s intent was “some cryptic comments between Johnson and

Reese before they exchanged fire . . . .”17

           Finally, the panel criticized the trial court for failing to account for the “delay

between the first shots and any further aggression,” which the panel speculated was a

sufficient length of time for defendant to “withdr[a]w from the conflict” and for Johnson

to “initiate a new conflict.”18

           In the end, the Court of Appeals concluded that it could not “state with any

confidence that either the factual findings or the conclusions of law by the trial court are

sufficient to sustain Reese’s conviction for voluntary manslaughter.”19 Accordingly, the

panel vacated defendant’s manslaughter conviction and remanded this case to the trial

court for a new trial, although it affirmed defendant’s convictions and sentences for being

a felon in possession of a firearm and possessing a firearm during a felony. Because it

granted defendant a new trial, the panel did not address defendant’s second claim of

error, involving defendant’s motion for a new trial based on Smith’s potential testimony.

           This Court granted the prosecution’s application for leave to appeal and ordered

the parties to address “whether the doctrine of imperfect self-defense can mitigate

17
     Id.
18
     Id. at 4-5.
19
     Id. at 5.



                                               10
second-degree murder to voluntary manslaughter and, if so, whether the doctrine was

appropriately applied to the facts of this case by the Wayne Circuit Court.”20

                              II. STANDARD OF REVIEW

         Whether the doctrine of imperfect self-defense exists under Michigan law is a

question of law, which this Court reviews de novo.21 In examining the sufficiency of the

evidence, “this Court reviews the evidence in a light most favorable to the prosecutor to

determine whether any trier of fact could find the essential elements of the crime were

proven beyond a reasonable doubt.”22 A trial court’s findings of fact may not be set aside

unless they are clearly erroneous.23 A ruling is clearly erroneous “if the reviewing court

is left with a definite and firm conviction that the trial court made a mistake.”24

                                      III. ANALYSIS

         Because the trial court concluded that the doctrine of imperfect self-defense

applied to this case, and because the Court of Appeals reversed the trial court’s verdict on

the ground that the trial court had misapplied the doctrine to the facts of the case, this

case presents this Court with the question whether the doctrine of imperfect self-defense

exists under Michigan law. Although the Court of Appeals has adopted and applied the



20
     People v Reese, 489 Mich 958 (2011).
21
     People v Riddle, 467 Mich 116, 124; 649 NW2d 30 (2002).
22
     People v Robinson, 475 Mich 1, 5; 715 NW2d 44 (2006).
23
     MCR 2.613(C); Robinson, 475 Mich at 5.
24
     People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011).



                                             11
doctrine of imperfect self-defense,25 this Court has neither adopted it nor defined its

scope and applicability.

                           A. MICHIGAN LAW OF HOMICIDE

       In analyzing the doctrine of imperfect self-defense to determine whether it can

mitigate second-degree murder to voluntary manslaughter, we follow the foundational

principles of interpretation that this Court has outlined regarding Michigan’s law of

homicide:

               Because Michigan’s homicide statutes proscribe “murder” without
       providing a particularized definition of the elements of that offense or its
       recognized defenses,16 we are required to look to the common law at the
       time of codification for guidance. See Const 1963, art 3, § 7;17 People v
       Couch, 436 Mich 414, 418-421; 461 NW2d 683 (1990). Where a statute
       employs the general terms of the common law to describe an offense,
       courts will construe the statutory crime by looking to common-law
       definitions. See Couch, [436 Mich] at 419, quoting Morissette v United
       States, 342 US 246, 263; 72 S Ct 240; 96 L Ed 288 (1952):

              “‘[W]here [a legislature] borrows terms of art in which are
       accumulated the legal tradition and meaning of centuries of practice, it
       presumably knows and adopts the cluster of ideas that were attached to
       each borrowed word in the body of learning from which it was taken and
       the meaning its use will convey to the judicial mind unless otherwise
       instructed. In such case, absence of contrary direction may be taken as
       satisfaction with widely accepted definitions, not as a departure from
       them.’”

       The criminal law, as defined at common law and codified by legislation,
       “should not be tampered with except by legislation,” and this rule applies
       with equal force to common-law terms encompassed in the defenses to



25
  See, e.g., People v Vicuna, 141 Mich App 486, 493; 367 NW2d 887 (1985); People v
Amos, 163 Mich App 50, 56-57; 414 NW2d 147 (1987); People v Butler, 193 Mich App
63, 67; 483 NW2d 430 (1992).



                                           12
         common-law crimes. In re Lamphere, 61 Mich 105, 109; 27 NW 882
         (1886).[26]
         16
            The Legislature has bifurcated all murder offenses into first-degree
         murder, MCL 750.316, and second-degree murder, MCL 750.317. The
         statutory description of these offenses has changed little since the first
         Penal Code was enacted in 1846. See People v Couch, 436 Mich 414, 418-
         421; 461 NW2d 683 (1990) (opinion by BOYLE, J.).
         17
            “The common law and the statute laws now in force, not repugnant to
         this constitution, shall remain in force until they expire by their own
         limitations, or are changed, amended or repealed.”


When the Legislature codifies a common law offense and thereby adopts the common

law defenses to that offense, this Court is “proscribed from expanding or contracting the

defense as it existed at common law.”27

         Riddle correctly observed that Michigan statutory law proscribes, but does not

define, “murder.”28 The same can be said of “manslaughter.”29 Because both of these

26
     Riddle, 467 Mich at 125-126.
27
   Id. at 126; see also People v Dupree, 486 Mich 693, 706; 788 NW2d 399 (2010)
(“Absent some clear indication that the Legislature abrogated or modified the traditional
common law affirmative defense of self-defense for the felon-in-possession charge in
MCL 750.224f or elsewhere in the Michigan Penal Code, we presume that the affirmative
defense of self-defense remains available to defendants if supported by sufficient
evidence.”). In 2006, the Legislature enacted the Self-Defense Act, MCL 780.971 et seq.
This Court has not interpreted the act beyond stating that it does not apply to crimes
committed before the act’s effective date, see Dupree, 486 Mich at 708. However, its
provisions, and its relation to the common law of self-defense, are not at issue in the
instant case because neither party claims that it applies here.
28
   See MCL 750.316 (first-degree murder); MCL 750.317 (second-degree murder).
“Although first-degree murder is defined by statute, the statute is understood to include
the common-law definition of murder.” People v Mendoza, 468 Mich 527, 534 n 6; 664
NW2d 685 (2003).
29
     See MCL 750.321.



                                            13
classes of homicides existed at common law, Michigan courts have defined the statutory

terms in light of their common law meanings.

         For example, as early as 1858, this Court defined “murder” as when “a person of

sound memory and discretion unlawfully kills any reasonable creature in being, in the

peace of the state, with malice prepense or aforethought, either express or implied” and

stated that “[t]his, the common law definition, is still retained in our statute.”30 The

malice enshrined in the common law understanding of murder “did not mean deliberate

and calculating malice, but only malice existing at any time before the act so as to be its

moving cause or concomitant.”31 Applying this traditional understanding of common law

murder, this Court established the following elements of second-degree murder: “(1) a

death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification

or excuse.”32

30
  People v Potter, 5 Mich 1, 6 (1858). Although he did not cite Coke’s Institutes, Chief
Justice MARTIN’s opinion defined murder nearly identically to the definition of murder
that Blackstone attributed to Coke: “‘[W]hen a person of sound memory and discretion
unlawfully killeth any reasonable creature in being, and under the king’s peace, with
malice aforethought, either express or implied.’” 4 Blackstone, Commentaries on the
Law of England (2d Cooley ed), p *195, quoting 3 Coke, Institutes of the Laws of
England, p 47. (This professed quotation of Coke was actually a close paraphrase; Coke
defined murder as “when a man of sound memory, and of the age of discretion,
unlawfully killeth within any county of the realm any reasonable creature in rerum
natura under the king’s peace, with malice fore-thought, either expressed by the party, or
implied by law . . . .” 3 Coke, p 47.)
31
   Nye v People, 35 Mich 16, 19 (1876). The Nye Court generalized the statutory
distinction between first- and second-degree murder in terms of the malice element: “In
dividing murder into degrees, its common-law qualities are not changed, but (except in
special cases) the division is chiefly between cases where the malice aforethought is
deliberate and where it is not.” Id.
32
     People v Goecke, 457 Mich 442, 464; 579 NW2d 868 (1998).



                                            14
          The common law distinguished manslaughter from murder by the absence of

malice. Blackstone defined manslaughter as “the unlawful killing of another without

malice either express or implied” and further classified manslaughter as being committed

“either voluntarily, upon a sudden heat; or involuntarily, but in the commission of some

unlawful act.”33

          This Court explained the crime of voluntary manslaughter further:

                  Manslaughter may in some cases be intentional. In such a case it
          differs from murder because it is provoked. It is not justifiable to take life
          under provocation, and yet the provocation may be serious enough to
          deprive the intentional killing of its malicious character, so that it is neither
          murder on the one hand nor justifiable or excusable on the other. It is a
          very serious crime, though not reckoned as done with malice.[34]

In People v Mendoza, this Court recently reiterated this common law distinction between

murder and manslaughter:

                [T]o show voluntary manslaughter, one must show that the
          defendant killed in the heat of passion, the passion was caused by adequate
          provocation, and there was not a lapse of time during which a reasonable
          person could control his passions. See People v Pouncey, 437 Mich 382,
          389; 471 NW2d 346 (1991). Significantly, provocation is not an element of
          voluntary manslaughter. See People v Moore, 189 Mich App 315, 320; 472
          NW2d 1 (1991). Rather, provocation is the circumstance that negates the
          presence of malice. [People v] Scott, [6 Mich 287, 295 (1859)].[35]

Accordingly, Mendoza concluded that “the elements of voluntary manslaughter are

included in murder, with murder possessing the single additional element of malice.”36

33
     4 Blackstone, p *191.
34
     Nye, 35 Mich at 18-19.
35
     Mendoza, 468 Mich at 535-536.
36
     Id. at 540.



                                                 15
                   B. SELF-DEFENSE AND IMPERFECT SELF-DEFENSE

           Traditionally, the common law of self-defense justifies an otherwise unlawful

homicide by allowing “a man [to] protect himself from an assault, or the like, in the

course of a sudden broil or quarrel, by killing him who assaults him.”37 However,

Blackstone reiterated that “[t]his right of natural defence does not imply a right of

attacking: for, instead of attacking one another for injuries past or impending, men need

only have recourse to the proper tribunals of justice.”38

           This understanding of self-defense is consistent with the fact that this Court from a

very early time characterized self-defense in terms of necessity: “Human life is not to be

lightly disregarded, and the law will not permit it to be destroyed unless upon urgent

occasion.”39 This Court’s decision in Riddle reiterated that “the touchstone of any claim

of self-defense, as a justification for homicide, is necessity.”40 Riddle also explained that

while there is no duty to retreat from within one’s “castle,”41 or from a sudden, violent




37
     4 Blackstone, p *184.
38
     Id.
39
     Pond v People, 8 Mich 150, 173 (1860).
40
     Riddle, 467 Mich at 127.
41
     Id. at 135 (“Where a person is in his ‘castle,’ there is simply no safer place to retreat.”).



                                                16
attack,42 a “voluntary participant in mutual combat” has the duty to retreat to a safer place

before resorting to deadly force.43

          The Texas Court of Appeals appears to have been the first appellate court to define

a separate doctrine of “imperfect self-defense” as it is constituted today, which it did in

an 1882 decision.44 In Reed v State, the defendant was convicted of second-degree

murder for killing his paramour’s husband, apparently while the defendant was in

flagrante delicto with the victim’s wife. The defendant claimed that he acted in self-

defense because the husband drew his weapon upon discovering the defendant with his

wife. Nevertheless, the trial court concluded that the defendant was not entitled to self-

defense in light of the fact that the husband had a justification under Texas law to kill the


42
   Id. at 129-130 (“[O]ne is never obliged to retreat from a sudden, fierce, and violent
attack, because under such circumstances a reasonable person would, as a rule, find it
necessary to use force against force without retreating. The violent and sudden attack
removes the ability to retreat.”).
43
     Id. at 133.
44
  Reed v State, 11 Tex App 509 (1882). The phrase also appears, albeit in a different
sense, in Bishop’s criminal law treatise, published in 1868:

                 There are two kinds of defence which a man may make of his person
          or his property. The one extends, when necessary to accomplish the object,
          to the taking of the life of the aggressor; and this we shall call, in the
          present chapter, perfect defence. The other permits not the person using it
          to take life; but it does permit him to resist trespasses on his person or
          property to an extent not involving the life of the trespasser; and this, in the
          present chapter, we shall call imperfect defence.

2 Bishop, Commentaries on the Criminal Law (3d ed), § 625, p 334. Thus, on Bishop’s
theory of “imperfect defense,” a non-life-threatening “assault and battery, for instance,
may be justified as inflicted in defence of one’s property.” Id., § 642, p 343.



                                                17
defendant.45 The appellate court acknowledged that the preservation of one’s life was

“the first great law of nature” but qualified that right’s application: “[T]he right of self-

defense, though inalienable, is and should to some extent be subordinated to rules of

law . . . .”46 Accordingly, the court divided self-defense into two separate classes:

                  A perfect right of self-defense can only obtain and avail where the
          party pleading it acted from necessity, and was wholly free from wrong or
          blame in occasioning or producing the necessity which required his action.
          If, however, he was in the wrong,—if he was himself violating or in the act
          of violating the law,—and on account of his own wrong was placed in a
          situation wherein it became necessary for him to defend himself against an
          attack made upon himself which was superinduced or created by his own
          wrong, then the law justly limits his right of self-defense, and regulates it
          according to the magnitude of his own wrong.[47]

Thus, if someone is physically attacked when committing a felony, “and in resisting such

attack he slay[s] his assailant, the law would impute the original wrong to the homicide

and make it murder.”48 On the other hand, “if the original wrong was or would have been

a misdemeanor, then the homicide growing out of or occasioned by it, though in self-

defense from an assault made upon him, would be manslaughter under the law.”49 After



45
   Texas law at the time considered a homicide justifiable when it was “‘committed by
the husband upon the person of anyone taken in the act of adultery with the wife,
provided the killing take place before the parties to the act of adultery have separated.’”
Reed, 11 Tex App at 516, quoting article 567 of the Texas Penal Code.
46
     Reed, 11 Tex App at 517.
47
     Id. at 517-518.
48
     Id. at 518-519.
49
     Id. at 519.



                                               18
the Texas court adopted the doctrine of imperfect self-defense, several other states

followed suit.50

         In Michigan, the theory of imperfect self-defense first appeared in a footnote to a

1971 Court of Appeals opinion, although the term itself was not used in that opinion:

                 In general, mitigating circumstances are the commission of the
         killing in a sudden heat of passion caused by adequate legal provocation. 1
         Wharton’s Criminal Law and Procedure, § 274, p 580 et seq.; Perkins on
         Criminal Law (2d ed), p 54. Wharton and Perkins say that even where such
         mitigating circumstances are not present the crime may be manslaughter,
         not murder, when the actor kills in self-defense but was not entitled to do so
         under the circumstances, either because he was not free from fault or his
         belief that he was in danger was not justified.[51]

Then Judge LEVIN’s obiter dictum52 remained just that for nine years, until the Court of

Appeals’ decision in People v Springer reversed a second-degree murder conviction on

the basis of the defendant’s “imperfect right to self-defense.”53 The Springer panel


50
  State v Partlow, 90 Mo 608; 4 SW 14 (1887); State v Flory, 40 Wyo 184; 276 P 458
(1929); Shuck v State, 29 Md App 33; 349 A2d 378 (1975); State v Bush, 307 NC 152;
297 SE2d 563 (1982).
51
     People v Morrin, 31 Mich App 301, 311 n 7; 187 NW2d 434 (1971).
52
   Morrin involved whether the prosecution had proved the elements of first-degree
murder. The panel vacated the defendant’s first-degree murder conviction for insufficient
evidence to “support a reasonable inference that [the defendant] killed his victim with the
requisite deliberation and premeditation” to sustain a first-degree murder conviction. Id.
at 306. However, the panel concluded that the prosecution had presented sufficient
evidence to sustain a second-degree murder conviction and that the jury’s verdict
“constituted an express finding” of the elements of second-degree murder. Id. at 307.
Accordingly, the panel ordered entry of a judgment convicting the defendant of second-
degree murder. Id.
53
  People v Springer, 100 Mich App 418, 421; 298 NW2d 750 (1980), remanded on other
grounds 411 Mich 867 (1981), rev’d on other grounds 417 Mich 1060 (1983).



                                              19
explained that this “qualified right of self-defense has been adopted in several

jurisdictions” and determined that a defendant “is guilty of manslaughter, not murder”

when “the defendant would be entitled to claim self-defense except for the fact that he

was at fault in provoking the danger to himself . . . .”54

         After the Court of Appeals’ decision in Springer, several other decisions of the

Court of Appeals applied the doctrine of imperfect self-defense to situations in which the

defendant was the initial aggressor.55 However, the lead Court of Appeals opinion in

People v Kemp warned that “the inquiry regarding the applicability of the doctrine of

imperfect self-defense requires more than just a determination whether defendant was the

initial aggressor.”56 Rather, the court must “focus . . . on ‘the intent with which the

accused brought on the quarrel or difficulty’” giving rise to lethal force.57 On this

principle, a defendant who “initiate[s] the confrontation between himself and the victim

54
     Springer, 100 Mich App at 421.
55
   See, e.g., Vicuna, 141 Mich App at 493; Amos, 163 Mich App at 56-57; Butler, 193
Mich App at 67. The Court of Appeals has also noted that this Court had not recognized
the doctrine and chose not to expand the doctrine beyond the scope of Springer. Thus,
the panel in People v Deason stated that “Michigan courts . . . have not addressed
[imperfect self-defense] where a defendant merely asserts that he maintained an
unreasonable belief or reacted with an unreasonable amount of force” and declined to
extend the doctrine in that manner, even though “such circumstances [were] alluded to by
Judge, now Justice, LEVIN” in his Morrin dictum. People v Deason, 148 Mich App 27,
32; 384 NW2d 72 (1985). The panel noted that such an application “would be a
significant extension of prior case law and is more appropriately a matter for legislation,
court rule, or appeal to the Supreme Court.” Id.
56
   People v Kemp, 202 Mich App 318, 324; 508 NW2d 184 (1993) (opinion by REILLY,
J.).
57
     Id., quoting Partlow, 90 Mo at 617.



                                              20
with the intent to kill or do great bodily harm” is not entitled to have the crime be

mitigated to manslaughter.58

           Although Judge CONNOR agreed with the panel’s decision to remand for further

trial court proceedings regarding voluntary manslaughter, he criticized the lead opinion’s

emphasis on the doctrine of imperfect self-defense as “counterproductive” in light of the

fact that the panel was “only following the longstanding law of voluntary manslaughter in

Michigan.”59 Judge CONNOR explained:

                  In Michigan, the crime of murder is reduced to manslaughter if
           committed “under the influence of passion or in the heat of blood produced
           by adequate provocation.” CJI 16:4:02(1). If defendant’s desire to kill his
           victim was actually born of the moment, if it was the result of such
           provocation that would cause a reasonable person to kill in the heat of
           passion, then his crime is manslaughter, not murder. See People v Younger,
           380 Mich 678, 681-682; 158 NW2d 493 (1968).

                  I do not believe that the theory of imperfect self-defense adds
           anything to Michigan’s traditional notions of self-defense or voluntary
           manslaughter, and I would not require the trial court to apply the theory of
           imperfect self-defense in this case.[60]

Although Judge MICHAEL J. KELLY also concurred in the remand, he too criticized the

doctrine of imperfect self-defense, calling it “slippery and undeveloped,” and suggested

that this Court take up the issue.61 We do so today.

58
     Kemp, 202 Mich App at 324.
59
     Id. at 327 (CONNOR, J., dissenting in part).
60
     Id.
61
  Id. at 325 (MICHAEL J. KELLY, J., concurring). Until today, this Court has not resolved
the issue, although we have alluded to it in the past. This Court’s decision in People v
Heflin, 434 Mich 482, 509; 456 NW2d 10 (1990) (opinion by RILEY, C.J.), did not
formally adopt the doctrine in the context of voluntary manslaughter, but Chief Justice


                                               21
     C. IMPERFECT SELF-DEFENSE DOES NOT EXIST UNDER MICHIGAN LAW

        Under Michigan law, the doctrine of imperfect self-defense does not exist as a

freestanding defense that mitigates a murder to manslaughter because it was not

recognized as such under the common law at the time the Legislature codified the crimes

of murder and manslaughter.

        As discussed, the doctrine first appeared in an 1882 Texas decision, postdating the

Michigan Legislature’s 1846 codification of the common law crimes of murder and

manslaughter and their attendant defenses. It is significant that the doctrine of imperfect

self-defense developed after the Legislature codified the common law crimes of murder

and manslaughter, which means that the Legislature could not have codified the doctrine

into the murder and manslaughter statutes. In further support of this conclusion, we note

that when adopting the doctrine of imperfect self-defense, the Springer panel

acknowledged that the doctrine was an innovation in the common law by stating that it

“has been adopted in several jurisdictions . . . .”62 Thus, the Springer panel erred by



RILEY’s lead opinion discussed the doctrine’s incompatibility with involuntary
manslaughter and stated that imperfect self-defense was “an unlawful act that does not
fall within the definition of common-law involuntary manslaughter: a lawful act
negligently performed.” In People v Posey, 459 Mich 960 (1999), this Court
acknowledged that it had not decided whether Michigan law recognizes the doctrine of
imperfect self-defense by stating that “[o]ur resolution of this matter should not be
construed as a ruling that ‘imperfect self-defense’ is recognized as a theory which would
reduce murder to manslaughter.”
62
   Springer, 100 Mich App at 421 (emphasis added). Other states have similarly refused
to adopt the doctrine of imperfect self-defense and noted that the issue is now a matter of
legislative prerogative. See State v Shaw, 168 Vt 412, 417; 721 A2d 486 (1998) (“The
doctrine of imperfect self-defense has not been generally recognized at common law.”);
State v Bowens, 108 NJ 622, 626-627; 532 A2d 215 (1987) (“[R]ecognition of an


                                            22
purporting to change the common law of this state after the Legislature codified the

common law crimes of murder and manslaughter in 1846. This Court has emphatically

stated that once the Legislature codifies a common law crime and its attendant common

law defenses, the criminal law of this state concerning that crime “should not be

tampered with except by legislation . . . .”63

         Although we reject the doctrine of imperfect self-defense, many circumstances

that involve what the Court of Appeals labeled “imperfect self-defense” can nevertheless

provide grounds for a fact-finder to conclude that the prosecution has not proved the

malice element that distinguishes murder from manslaughter. However, we emphasize

that the operative analysis for the fact-finder is not whether the circumstances involving

“imperfect self-defense” exist. Rather, the operative analysis is whether the prosecution

has proved the element of malice beyond a reasonable doubt. This focus rightly turns on

the actual elements of murder and manslaughter, rather than any label of “imperfect self-

defense” as a judicially created shorthand that risks becoming unmoored from the actual

element distinguishing the two crimes.

         “[T]he elements of voluntary manslaughter are included in murder, with murder

possessing the single additional element of malice.”64 Malice itself “evolved from being

‘imperfect self-defense’ would require us to create, as a matter of decisional law, new
substantive elements not embraced by the [New Jersey] Code [of Criminal Justice].”).
63
  Riddle, 467 Mich at 126, quoting Lamphere, 61 Mich at 109; see also Const 1963, art
3, § 7 (“The common law and the statute laws now in force, not repugnant to this
constitution, shall remain in force until they expire by their own limitations, or are
changed, amended or repealed.”).
64
     Mendoza, 468 Mich at 540.



                                                 23
merely an intent to kill to also evidencing the absence of mitigating circumstances.”65

After describing several examples of malice, Blackstone explained:

                  [The] general rule [is] that all homicide is malicious, and, of course,
           amounts to murder, unless where justified by the command or permission of
           the law; excused on the account of accident or self-preservation; or
           alleviated into manslaughter, by being either the involuntary consequence
           of some act, not strictly lawful, or (if voluntary), occasioned by some
           sudden and sufficiently violent provocation.[66]

This understanding of malice is consistent with this Court’s 1859 determination that the

element of malice is negated when the “direct intent to kill” was caused by “great

provocations sufficient to excite the passions beyond the control of reason.”67

           This Court’s Mendoza decision summarized the scope of the mitigating

circumstances that the common law traditionally recognized:

                  [B]oth murder and voluntary manslaughter require a death, caused
           by defendant, with either an intent to kill, an intent to commit great bodily
           harm, or an intent to create a very high risk of death or great bodily harm
           with knowledge that death or great bodily harm was the probable result.
           However, the element distinguishing murder from manslaughter—malice—
           is negated by the presence of provocation and heat of passion.[68]

Additional circumstances—including the label “imperfect self-defense”—were not

themselves recognized at common law as negating the element of malice. Because the

Legislature chose to codify the common law offenses of murder and manslaughter,


65
     Id.
66
     4 Blackstone, p *201.
67
     People v Scott, 6 Mich 287, 295 (1859).
68
     Mendoza, 468 Mich at 540, citing Scott, 6 Mich at 295.



                                                24
thereby including the attendant defenses and mitigations, we are foreclosed from altering

that which the Legislature adopted.69 Accordingly, we reiterate the Mendoza Court’s

formulation of the distinction between murder and manslaughter and hold that there is no

independent defense of imperfect self-defense in Michigan law.70

                                   IV. APPLICATION

         Both the trial court and the Court of Appeals analyzed defendant’s claim within

the context of imperfect self-defense. The Court of Appeals granted defendant relief in

the form of a new trial on the manslaughter charge because it determined that the trial

court had both misinterpreted the evidence of this case and misapplied the doctrine of

imperfect self-defense to the evidence. In light of our holding that the doctrine of

imperfect self-defense does not exist as an independent mitigation in Michigan law, we

need not review the Court of Appeals’ analysis of the doctrine except as it relates to the

Court of Appeals’ application of the facts of this case to the elements of manslaughter.71

69
     Riddle, 467 Mich at 126.
70
  The partial dissent would not rule on the doctrine of imperfect self-defense and instead
would leave to another day the question whether the doctrine exists in Michigan law.
However, both the trial court and the Court of Appeals treated this case as one involving
imperfect self-defense and analyzed the doctrine in detail in their rulings. As a result, the
doctrine of imperfect self-defense is so intertwined with both the trial court’s conviction
on manslaughter and the Court of Appeals’ reversal of that conviction that this Court has
the responsibility to obviate the doctrinal confusion regarding imperfect self-defense
before analyzing and correcting the other errors in those rulings. Thus, we are not
“reach[ing] out to strike down the doctrine of imperfect self-defense,” post at 3, but
instead are correcting an error of law that already pervades both lower court decisions
and that was essential to their rulings.
71
  The trial court concluded that the prosecution had not proved the elements of second-
degree murder beyond a reasonable doubt. Accordingly, the prosecutor conceded at oral
argument before this Court that defendant is no longer subject to the second-degree


                                             25
         Voluntary manslaughter requires “a death, caused by defendant, with either an

intent to kill, an intent to commit great bodily harm, or an intent to create a very high risk

of death or great bodily harm with knowledge that death or great bodily harm was the

probable result.”72 The trial court concluded that the prosecution had proved the first two

elements beyond a reasonable doubt, rejecting defendant’s theory that he did not shoot

Johnson. The court based its conclusion on Long’s eyewitness testimony that defendant

and Johnson engaged in a shooting match in front of Johnson and Long’s house. This

conclusion is not clearly erroneous and, along with the unrebutted testimony of the

medical examiner, establishes the first two elements of voluntary manslaughter—that

defendant caused Johnson’s death by gunshot. The Court of Appeals rightly did not

disturb this conclusion.

         The trial court also concluded that the prosecution had proved the third element of

manslaughter beyond a reasonable doubt—that defendant caused Johnson’s death with

the requisite intent. The Court of Appeals, however, rejected as “problematic on a

number of levels” the trial court’s claim that

         “pumping five rounds into somebody is pretty much evidence that you
         intended to at least, at the very least, do great bodily harm to Mr. Johnson
         or knowingly created a very high risk of death or great bodily harm
         knowing that death or such harm would be the likely result of your
         actions.”[73]


murder charge, and this Court need not speculate whether the evidence adduced at trial
could sustain a second-degree murder conviction.
72
     Mendoza, 468 Mich at 540.
73
     Reese, unpub op at 3.



                                             26
The panel explained that “there is no evidence that five shots were expended during these

events” and that, at most, “only three gunshots can be attributed to Reese, not five as

stated by the trial court.”74 Even if the Court of Appeals was correct regarding the

number of shots defendant fired, the trial court’s reasonable finding that “this was a

shoot-out” between Johnson and defendant alone renders its conclusion regarding the

intent element of manslaughter not clearly erroneous.75 Because defendant participated

in the shootout, defendant clearly had the intent to create a very high risk of great bodily

harm to Johnson, knowing that death or great bodily harm was the probable result of his

actions. This intent existed regardless of whether the shooting was justified in self-

defense, as defendant claims.76       Accordingly, the trial court did not clearly err by

concluding that the prosecution had proved all three elements of manslaughter beyond a

reasonable doubt.

          Because defendant claims that he was entitled to assert self-defense as a complete

justification for shooting Johnson, we also address this claim. “[O]nce the defendant

satisfies the initial burden of production, the prosecution bears the burden of disproving

the common law defense of self-defense beyond a reasonable doubt.”77 Defendant has

74
     Id. at 3-4.
75
  Moreover, a stipulated laboratory report regarding defendant’s revolver revealed that it
had five empty shell casings in the cylinder, supporting the trial court’s factual
conclusion that the weapon had been fired five times.
76
   An affirmative defense, like self-defense, “admits the crime but seeks to excuse or
justify its commission. It does not negate specific elements of the crime.” Dupree, 486
Mich at 704 n 11.
77
     Id. at 710.



                                              27
satisfied his initial burden of production because he “produc[ed] some evidence from

which a [fact-finder] could conclude that the elements necessary to establish a prima

facie defense of self-defense exist . . . .”78 The prosecution claims that defendant was not

entitled to assert self-defense, however, because defendant was the initial aggressor in the

encounter with Johnson. The trial court agreed with this view.

           To analyze the trial court’s conclusion that defendant was not entitled to the

justification of self-defense, we must examine its conclusion that by firing two shots from

his car at the outset of the confrontation, defendant was the initial aggressor. The Court

of Appeals panel concluded that the trial court had erred by finding that defendant fired

two shots from his car at the outset of the confrontation with Johnson. The panel

observed that “[o]nly the first shot was attributed to Reese based on Williams indicating

she heard the shot and assumed it was from his vehicle.”79 The panel also determined

that “[t]here is no testimony or evidence to identify who fired the second shot or where it

originated.”80 However, Williams testified that she heard two gunshots, at least one of

them coming from the car that she testified was defendant’s. Although Williams did not

know the source of the second gunshot, it was not clearly erroneous for the trial court to

conclude, on the basis of the logical inferences drawn from Williams’s testimony, that

defendant fired both shots from his car. Moreover, Long’s testimony was consistent with

this conclusion because Long testified that defendant’s car arrived at his and Johnson’s

78
     Id. at 709-710.
79
     Reese, unpub op at 3.
80
     Id.



                                             28
residence shortly after he heard the two gunshots from the direction of defendant’s car.

There being evidence to support the trial court’s conclusion, the Court of Appeals erred

by rejecting the trial court’s conclusion.

           Next, the Court of Appeals concluded that “it seems reasonable to assume that

Johnson did not feel threatened or intimidated by this random, preceding gunfire . . . .”81

To begin with, the Court of Appeals’ conclusion does not disprove the trial court’s

conclusion that defendant was the initial aggressor. Even so, the Court of Appeals’

conclusion was erroneous. The panel reached its conclusion by noting that Johnson

“continued [to] ambulat[e] toward Reese and Long’s house and engag[ed] Reese in

conversation . . . .”82 However, the undisputed testimony is that Johnson was walking

toward his own house, not defendant’s house, a point that the trial court correctly

appreciated and that severely undermines the Court of Appeals’ theory that defendant

could not have felt threatened or intimidated by the initial gunshots. Moreover, although

there was testimony that Johnson “engag[ed] Reese in conversation,” that conversation

was hardly premised on the lack of a perceived threat. Rather, Long testified that

Johnson asked, “[W]hat’s up with that[?]” In interpreting this question, the trial court

“infer[red] from that statement that he’s wondering, [‘]what the heck you doing shooting

a gun off by his house[?’]” While this question could have been innocuous, given the

context of the situation, the trial court’s interpretation of this exchange was not clearly

erroneous. The trial court concluded that Johnson did not view the preceding gunfire as

81
     Id.
82
     Id.



                                             29
“random,” as the Court of Appeals opined, but saw it as an aggressive act.              This

conclusion was not clearly erroneous. Thus, when all the circumstances are considered

as a whole, the Court of Appeals erred by discounting the trial court’s factual conclusion

that as the initial aggressor in the shootout between defendant and Johnson, defendant

was not entitled to use the doctrine of self-defense as justification for shooting Johnson.

         Although the trial court went on to discuss this finding in the context of imperfect

self-defense, it remains relevant to reviewing the trial court’s conclusion that defendant

was not entitled to self-defense as a complete justification for shooting Johnson. This

Court reiterated in Riddle that an “‘aggressor in a chance-medley (an ordinary fist fight,

or other nondeadly encounter)’” who “‘finds that his adversary has suddenly and

unexpectedly changed the nature of the contest and is resorting to deadly force . . . must

not resort to deadly force if there is any other reasonable method of saving himself.’”83

In this case, the trial court correctly applied the law from Riddle and specifically found

that defendant had not engaged in one such reasonable method of defusing the situation.

The trial court explained: “[Defendant] didn’t back off. He didn’t say, okay, it didn’t

mean anything.” The trial court did not clearly err by concluding that defendant was not

entitled to self-defense as a complete justification to homicide.84

83
     Riddle, 467 Mich at 133, quoting Perkins & Boyce, Criminal Law (3d ed), p 1121.
84
   The Court of Appeals also claimed that the trial court did not fully analyze defendant’s
state of mind at the time of the initial aggression, and the panel provided extensive
analysis on that point to posit a potential circumstance under which defendant could not
benefit from the doctrine of imperfect self-defense. However, this analysis—while
relevant to analyzing the malice element of murder—is irrelevant to defendant’s claim
that the evidence was insufficient to establish the elements of manslaughter. While the
prosecutor argued that defendant had a malicious intent at the time of the initial


                                              30
          The Court of Appeals also examined the timing of the events and concluded that

“there was a delay between the first shots and any further aggression between these

combatants,” which might have allowed for a cooling-off period.85 Thus, the panel

speculated that “Johnson knew when he approached and engaged Reese verbally that he

was no longer in imminent danger but elected to initiate a new conflict.”86 However, as

Riddle explained, an initial aggressor may find that his adversary “‘suddenly and

unexpectedly changed the nature of the contest and is resorting to deadly force.’”87

While the trial court and the Court of Appeals disagreed about whether the events

constituted a single, escalating conflict or separate incidents, the trial court’s decision to

treat them as a single, escalating conflict was not clearly erroneous.88

          The Court of Appeals’ opinion is deficient for all the foregoing reasons, but when

considered as a whole, it is difficult to escape the conclusion that the panel simply

substituted its interpretation of the testimony for the trial court’s. This is inappropriate

when the standard of review requires an appellate court to accept the trial court’s findings

of fact unless they are clearly erreoneous.89 This standard is higher than the standard for

aggression, it is not necessary for this Court to review the Court of Appeals’ claim as it
relates to the instant case, given that defendant has been acquitted of second-degree
murder.
85
     Reese, unpub op at 4.
86
     Id. at 5.
87
     Riddle, 467 Mich at 133, quoting Perkins & Boyce, Criminal Law (3d ed), p 1121.
88
  The Court of Appeals’ acknowledgement that “[a]rguably, Reese withdrew from the
conflict,” Reese, unpub op at 4 (emphasis added), further supports this conclusion.
89
     MCR 2.613(C); Robinson, 475 Mich at 5.



                                              31
reviewing questions of law because the finder of fact often must choose between

conflicting and contradictory testimony and is “in a far better position than is this

Court”—or the Court of Appeals—“to determine [witnesses’] credibility.”90

         In summary, the evidence as outlined here was sufficient for a fact-finder to have

concluded that defendant was guilty of each of the elements of voluntary manslaughter

and that defendant was not entitled to use self-defense. Moreover, the trial court did not

clearly err in rendering its findings of fact on the elements of voluntary manslaughter and

defendant’s self-defense claim. Accordingly, defendant is not entitled to a new trial on

the ground that the evidence was insufficient.

                                    V. CONCLUSION

         Because the common law of murder and manslaughter did not recognize the

doctrine of “imperfect self-defense” at the time the Legislature codified those crimes, this

Court concludes that the doctrine of imperfect self-defense does not independently

mitigate murder to manslaughter. Rather, in deciding between murder and the lesser

included offense of manslaughter, the fact-finder must determine whether the prosecution

has proved the element distinguishing the two crimes: malice. While some “imperfect

self-defense” situations may involve “provocation [as] the circumstance that negates the

presence of malice,”91 courts may not use the doctrine of imperfect self-defense to

shortcut any analysis of the elements of the two crimes.


90
     People v Szymanski, 321 Mich 248, 253; 32 NW2d 451 (1948).
91
     Mendoza, 468 Mich at 536.



                                             32
      In this case, the Court of Appeals erred by concluding that the trial court’s verdict

was clearly erroneous. For the foregoing reasons, the trial court’s verdict was not clearly

erroneous and is affirmed. We therefore reverse the Court of Appeals’ judgment ordering

a new trial, vacate the opinion to the extent that it is inconsistent with the foregoing

analysis, and remand to the Court of Appeals for the panel to consider defendant’s

remaining issue on appeal.92


                                                       Robert P. Young, Jr.
                                                       Stephen J. Markman
                                                       Mary Beth Kelly
                                                       Brian K. Zahra




92
  We do not disturb the Court of Appeals’ affirmation of defendant’s felon-in-possession
and felony-firearm convictions because defendant has not cross-appealed those
convictions.



                                            33
                            STATE OF MICHIGAN

                                     SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellant,

v                                                           No. 142913

VERDELL REESE, III,

              Defendant-Appellee.


MARILYN KELLY, J. (concurring in part and dissenting in part).


       I concur in the majority’s decision to reinstate defendant’s conviction for

manslaughter but dissent from the pronouncement that the doctrine of imperfect self-

defense does not exist in Michigan law. Any opining about the doctrine is unnecessary to

resolve this matter and should be left for another day and a more appropriate case.

       Defendant was convicted of manslaughter after a bench trial. In the Court of

Appeals, he asserted that he was entitled to an acquittal on the basis of self-defense and

that the trial judge’s findings of fact were clearly erroneous. At issue was the judge’s

finding that defendant was the initial aggressor.

       The Court of Appeals vacated the manslaughter conviction and remanded for a

new trial. The prosecution appealed in this Court, asserting that the trial court’s finding

was not clearly erroneous and that defendant’s manslaughter conviction should be

reinstated.
       The majority opinion agrees that the finding was not clearly erroneous. Because

that is the question at issue on appeal in this Court, answering it is all that is needed to

resolve the appeal.     Hence, a determination whether imperfect self defense should

continue to exist in Michigan law is unnecessary to the resolution of this case and

irrelevant. The appropriate holding is that the Court of Appeals incorrectly applied the

clear error standard in setting aside the finding that defendant was the initial aggressor.

       Because the trial court acquitted defendant of second degree murder, for the

prosecution to renew the count would constitute double jeopardy.1 As the prosecution

stated in its arguments before this Court, we cannot now consider whether defendant

should have been convicted of murder; that ship has sailed. At this point, the prosecution

can charge and try defendant only for manslaughter. Hence, the doctrine of imperfect

self-defense could not arise again in this matter, it not being a mitigating defense to

manslaughter.     Consequently, answering the question in this decision of whether

imperfect self-defense exists has no effect on the relief available to either party.

       Further supporting this position is the fact that both parties stated at oral argument

that this is not the case to address the doctrine of imperfect self-defense. However

intertwined the doctrine may have been with the lower court’s ruling, we need not

adjudicate its appropriateness in order to decide the case. The majority has selectively

dissected the defense out of the lower court’s analyses and dispatched it from Michigan’s

jurisprudence despite the fact that doing so was unnecessary and neither party requested

1
 See also MCL 768.33, which states: “When a defendant shall be acquitted or convicted
upon any indictment for an offense, consisting of different degrees, he shall not thereafter
be tried or convicted for a different degree of the same offense . . . .”



                                              2
it. I would reverse the Court of Appeals’ judgment and reinstate defendant’s conviction

for manslaughter. But I would not reach out to strike down the doctrine of imperfect self-

defense.


                                                       Marilyn Kelly
                                                       Michael F. Cavanagh
                                                       Diane M. Hathaway




                                            3
