People v. Henderson

854 N.W.2d 234, 306 Mich. App. 1
CourtMichigan Court of Appeals
DecidedJune 26, 2014
DocketDocket No. 311864
StatusPublished
Cited by281 cases

This text of 854 N.W.2d 234 (People v. Henderson) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Henderson, 854 N.W.2d 234, 306 Mich. App. 1 (Mich. Ct. App. 2014).

Opinion

Murphy, C.J.

Following a jury trial, defendant appeals as of right his convictions for second-degree murder, MCL 750.317, assault with intent to commit murder (AWIM), MCL 750.83, being a felon in possession of a firearm, MCL 750.224f, and three counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 35 to 80 years’ imprisonment for the murder and AWIM convictions, to 76 to 360 months’ imprisonment for the felon-in-possession conviction, and to 2 years’ imprisonment for each of the felony-firearm convictions. We affirm.

On appeal, defendant first argues that the trial court erred by declining to give a duress instruction in response to a request for such an instruction by the jury. Rather than instruct on duress, the trial court directed: “You must follow the instructions given to you. Duress is not a defense to homicide/murder.” Defense counsel objected to the trial court’s response to the jury, thereby preserving this issue for review. See MCR 2.512(C). “Claims of instructional error are generally reviewed de novo by this Court, but the trial court’s determination that a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion.” People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007).

[4]*4A defendant has the right to have a properly instructed jury consider the evidence against him or her, and it is the trial court’s role “to clearly present the case to the jury and to instruct it on the applicable law.” Id.; see also MCL 768.29. “The instructions must include all elements of the charged offenses and any material issues, defenses, and theories if supported by the evidence.” People v McGhee, 268 Mich App 600, 606; 709 NW2d 595 (2005). When examining instructions to determine if an error has occurred, the instructions must be considered “as a whole, rather than piecemeal . . . .” People v Kowalski, 489 Mich 488, 501; 803 NW2d 200 (2011). Even if imperfect, a jury instruction is not grounds for setting aside a conviction “if the instruction fairly presented the issues to be tried and adequately protected the defendant’s rights.” Id. at 501-502.

“Duress is a common-law affirmative defense.” People v Lemons, 454 Mich 234, 245; 562 NW2d 447 (1997). To be entitled to an instruction on an affirmative defense, such as duress, a defendant asserting the defense must produce some evidence from which the jury can conclude that the essential elements of the defense are present. Id. at 246. Specifically, to merit a duress instruction, a defendant bears the burden of producing some evidence from which the jury could conclude the following:

A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;
B) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant;
C) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and
[5]*5D) The defendant committed the act to avoid the threatened harm. [Id. at 247.]

A threat of future injury is not sufficient; rather, “the threatening conduct or act of compulsion must be ‘present, imminent, and impending... d ” Id., quoting People v Merhige, 212 Mich 601, 610; 180 NW 418 (1920). Moreover, the threat “ ‘must have arisen without the negligence or fault of the person who insists upon it as a defense.’ ” Lemons, 454 Mich at 247 (citation omitted).

Relevant to defendant’s case, it is well established that duress is not a defense to homicide. People v Gimotty, 216 Mich App 254, 257; 549 NW2d 39 (1996); People v Moseler, 202 Mich App 296, 299; 508 NW2d 192 (1993); People v Etheridge, 196 Mich App 43, 56; 492 NW2d 490 (1992); People v Travis, 182 Mich App 389, 392; 451 NW2d 641 (1990). “The rationale underlying the common law rule is that one cannot submit to coercion to take the life of a third person, but should risk or sacrifice his own life instead.” People v Dittis, 157 Mich App 38, 41; 403 NW2d 94 (1987). Because duress is not a defense to homicide, the trial court did not err by declining to instruct the jury in this regard with respect to defendant’s murder charge. Defendant maintains that the principle that duress is not a defense to homicide is inapplicable when he did not actually commit the murder himself but was instead prosecuted primarily as an aider and abettor to murder. We fail to see the logic in this argument, and defendant provides no supporting authority that an aider and abettor to murder can employ a duress defense even though a principal is not entitled to do so. If directly committing a homicide is not subject to a duress defense, assisting a principal in the commission of a homicide cannot be subject to a duress defense either, considering that an [6]*6aider and abettor to murder is assisting in taking the life of an innocent third person instead of risking or sacrificing his or her own life. See Dittis, 157 Mich App at 41. The underlying rationale articulated in Dittis is equally sound and not distinguishable in the context of aiding and abetting murder. The court in State v Dissicini, 126 NJ Super 565, 570; 316 A2d 12 (NJ App, 1974), aff'd 66 NJ 411 (1975), in rejecting a similar argument, observed:

Defendant does not dispute the general rule, but argues that it is applicable only to a defendant who is the actual perpetrator of the killing, and that the defense should be available to one such as he who did not directly kill but only aided and abetted. Authoritative discussion of the point is sparse ... and this is undoubtedly so because the argument has little merit.

The California Supreme Court has stated that “because duress cannot, as a matter of law, negate the intent, malice or premeditation elements of a first degree murder, we further reject defendant’s argument that duress could negate the requisite intent for one charged with aiding and abetting a first degree murder.” People v Vieira, 35 Cal 4th 264, 290; 25 Cal Rptr 3d 337; 106 P3d 990 (2005). Even the United States Court of Appeals for the Ninth Circuit has noted that duress does not excuse murder and “in many jurisdictions, duress does not excuse attempted murder or aiding and abetting murder[.]” Annachamy v Holder, 733 F3d 254, 260 n 6 (CA 9, 2012). We are unaware of any Michigan precedent to the contrary in which the issue was directly confronted.

Defendant also contends on appeal that duress was available as a defense regarding his AWIM conviction.1 [7]*7However, defendant has not provided any authority for the proposition that a duress defense applies to AWIM, nor are we aware of any such rule. On the contrary, application of a duress defense in the context of AWIM would be entirely incongruous with the principle that “one cannot submit to coercion to take the life of a third person, but should risk or sacrifice his own life instead.” Dittis, 157 Mich App at 41. AWIM is, by definition, an assault with the intent to kill, “which, if successful, would make the killing murder.” People v Ericksen, 288 Mich App 192, 195-196; 793 NW2d 120 (2010) (quotation marks and citation omitted).

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Cite This Page — Counsel Stack

Bluebook (online)
854 N.W.2d 234, 306 Mich. App. 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-henderson-michctapp-2014.