Michigan Standard Jury Instructions
Use of Deadly Force in Self-Defense
1) The defendant claims that [he/she] acted in lawful self-defense. A person has the right to use force or even take a life to defend [himself/herself] under certain circumstances. If a person acts in lawful self-defense, [his/her] actions are excused and [he/she] is not guilty of any crime.
2) You should consider all the evidence and use the following rules to decide whether the defendant acted in lawful self-defense. Remember to judge the defendant's conduct according to how the circumstances appeared to [him/her] at the time [he/she] acted.
3) First, at the time [he/she] acted, the defendant must have honestly and reasonable believed that [he/she] was in danger of being [killed/seriously injured/forcibly sexually penetrated]. If [his/her] belief was honest and reasonable, [he/she] could act immediately to defend [himself/herself] even if it turned out later that [he/she] was wrong about how much danger [he/she] was in. In deciding if the defendant's belief was honest and reasonable, you should consider all the circumstances as they appeared to the defendant at the time.
4) Second, a person may not kill or seriously injure another person just to protect [himself/herself] against what seem like a threat of only minor injury. The defendant must have been afraid of [death/serious physical injury/forcible sexual penetration]. When you decide if the defendant was afraid of one or more of these, you should consider all the circumstances: [the condition of the people involved, including their relative strength/ whether the other person was armed with a dangerous weapon or had some other means of injuring the defendant / the nature of the other person's attack or threat / whether the defendant knew about any previous violent acts or threats made by the other person].
5) Third, at the time [he/she] acted, the defendant must have honestly and reasonably believed that what [he/she] did was immediately necessary. Under the law, a person may only use as much force as [he/she] thinks is necessary at the time to protect [himself/herself], but you may also consider how the excitement of the moment affected the choice the defendant made.
Use when requested where some evidence of self-defense has been introduced or elicited.
CJI2d 7.15 was CJI 7:9:01; amended June, 1990; June, 1991.
In People v Deason, 148 Mich App 27, 31, 384 NW2d 72 (1985), the court of appeals stated that the test for determining whether a defendant acted in lawful self-defense is whether (1) the defendant honestly believed that he or she was in danger, (2) the degree of danger was of serious bodily harm or death, and (3) the action taken by the defendant appeared at the time to be immediately necessary, that is, defendant is only entitled to use the amount of force necessary for self-defense.
Poin (1) in the above test has been a matter of some controversy in Michigan until the controversy apparently was put to rest in People v Heflin (People v Landrum), 434 Mich 482, 502-503, 456 NW2d 10 (1990), where the majority rejected the honest belief standard and stated that a defendant must have both an honest belief standard and reasonable belief that he or she was in danger. The jury instructions on self-defense were modified in June of 1990 to reflect that standard.
The amount of force immediately necessary may include taking another person's life under some circumstances. Patten v People, 18 Mich 314 (1869); People v Giacalone, 242 Mich 16, 217 NW 758 (1928).
In People v Barker, 437 Mich 161, 468 NW2d 492 (1991), the court held that the trial judge erred in refusing to instruct that a defendant may use deadly force to repel an imminent forcible sexual penetration, but found the instructional omission harmless under the facts of the case. See MCLA 750.520a(l); MSA 28.788(1)(l) for the definition of sexual penetration. CJI2d 7.15 was revised in June, 1991, to include forcible sexual penetration.
In cases involving the use of deadly force, Michigan recognizes the doctrine of imperfect self-defense. Imperfect self-defense is a qualified defense that can mitigate second-degree murder to voluntary manslaughter. Although in some other jurisdictions the defense applies where the defendant reacted with unreasonable force or had an unreasonable belief about the danger at hand, in Michigan the doctrine only applies where the defendant would have had a right to self-defense but for the defendant's actions as the initial aggressor. Deason, 148 Mich App at 32.
The defendant must request an instruction on imperfect self-defense. People v Fuqua, 146 Mich App 133, 379 NW2d 396 (1985). The defendant is not entitled to the instruction where his or her position at trial is that the victims were the initial aggressors, as imperfect self-defense focuses on whether the defendant would have had a right to self-defense but for his actions as the initial aggressor. People v Vicuna, 141 Mich App 486, 367 NW2d 887 (1985).
In People v Curry, 175 Mich App 33, 437 NW2d 310 (1989), the court of appeals held that the trial court's failure to instruct on imperfect self-defense was not reversible error where testimony was conflicting on whether the defendant was the aggressor in the fight, and general self-defense instructions were otherwise adequate.
In Landrum (People v Heflin), 434 Mich at 507-509, the Michigan Supreme Court refused to recognize the doctrine of imperfect self-defense as a means of mitigating murder to involuntary manslaughter.
Duty to Retreat to Avoid Using Deadly Force
(1) By law, a person must avoid using deadly force if [he/she] can safely do so. If the defendant could have safely retreated but did not do so, you can consider that fact, along with all the other circumstances, when you decide whether [he/she] went farther in protecting [himself/herself] than [he/she] should have.
(2) However, if the defendant honestly and reasonably believed that it was immediately necessary to use deadly force to protect [himself/herself] from and imminent threat of [death / serious injury / forcible sexual penetration], the law does not require [him/her] to retreat. [ He/She} may stand [his/her] ground and use the amount of force [he/she] believes necessary to protect [ himself/herself].
Use CJI2d 7.17 if the act occurred in the defendant's dwelling or in inhabited buildings within its curtilage; in those situations, do not use this instruction.
CJI2d 7.16 was CJI 7:9:02; amended September, 1990; June, 1991.
If the defendant has the option of retreating to a place of safety, he or she normally must exercise that option. The supreme court stated the rule in People v Stallworth, 364 Mich 528, 535, 111 NW2d 742 (1961), quoting Pond v People, 8 Mich 150, 176 (1860):
Self-defense, however, requires a showing that the defendant had done "all which is reasonably in his power to avoid the necessity of extreme resistance, by retreating where retreat is safe."..."[A] man is not...obliged to retreat if assaulted in his dwelling."
See also People v Mroue, 111 Mich App 759, 765, 315 NW2d 192 (1981).
The jury instructions on self-defense were modified in 1990 to reflect the standard in People v Heflin (People v Landrum), 434 Mich 482, 502-503, 456 NW2d 10 (1990). In June, 1991, the jury instructions were modified to reflect the supreme court's decision in People v Barker, 437 Mich 161, 468 NW2d 492 (1991). See commentary to CJI 2d 7.15.
No Duty to Retreat While in Own Dwelling
If a person [assaulted the defendant in the defendant's own home / forcibly entered the defendant's home], the defendant did not have to try to retreat or get away. Under those circumstances, the defendant could stand [his/her] ground and resist the [attack / intrusion] with as much force as [he/she] honestly and reasonably believed necessary at the time to protect [himself/herself].
This instruction may be used when the force used was either deadly or nondeadly. Either CJI2d 7.15 or CJI2d 7.22 must also be given.
This instruction may be given when the act occurred in inhabited buildings within the curtilage of the defendant's dwelling. For a statutory definition of "dwelling," see MCLA 750.110a(1)(a), MSA 28.305(a)(1)(a). The curtilage does not necessarily extend to the lot line. See commentary.
Michigan law recognizes that there is no duty to retreat from either an assault within one's home or a forcible entry of one's home. See commentary. Choose the factually appropriate alternative(s) from the bracketed language. In situations involving use of deadly force in defense of property, see Pond v People, 8 Mich 150, 177-178 (1860).
CJI2d 7.17 was CJI 7:9:03; amended September, 1990; January, 1991.
A person is not obligated to retreat if he or she is assaulted in his or her own dwelling. People v Lenkevich, 394 Mich 117, 229 NW2d 298 (1975).
If the defendant was in his or her dwelling at the time of the offense, the trial court must instruct the jury sua sponte on the no-duty-to-retreat rule. People v Paxton, 47 Mich App 144, 209 NW2d 251 (1973); People v Szymarek, 57 Mich App 354, 225 NW2d 765 (1975); see also Lenkevich. However, in People v Godsey, 54 Mich App 316, 220 NW2d 801 (1974), the court was not required to instruct sua sponte on the no-duty-to-retreat rule when defendant was charged with killing his next-door neighbor near the common boundary line of their adjacent lots.
Deadly Aggressor - Withdrawal
A person who started an assault on someone else [with deadly force / with a dangerous or deadly weapon] cannot claim that [he/she] acted in self-defense unless [he/she] genuinely stopped [fighting / (his/her) assault] and clearly let the other person know that [he/she] wanted to make peace. Then, if the other person kept on fighting or started fighting again later, the defendant had the same right to defend [himself/herself] as anyone else and could use force to save [himself/herself] from immediate physical harm.
If supported by the facts, failure to give this instruction sua sponte is reversible error.
CJI2d 7.18 was CJI 7:9:04.
A defendant who was initially the aggressor may still claim self-defense if he decided to withdraw from the conflict an communicated that withdrawal to the other person. People v Peoples, 75 Mich App 616, 255 NW2d 707 (1977). In Peoples, the court held that were the facts clearly establish withdrawal, and also where the facts are conflicting, the trial court should instruct on withdrawal. If the facts support the instruction, it is reversible error for the trial court to fail sua sponte to instruct the jury that an aggressor's communicated withdrawal revives his or her right to self-defense.
In People v Kerley, 95 Mich App 74, 83-84, 289 NW2d 883 (1980), the court declined to apply the Peoples requirement of a sua sponte instruction where there was conflicting testimony as to whether the defendant was withdrawing and had reasonably informed his adversary of his intent to withdraw.
In People v Terrell, 106 Mich App 319, 321, 308 NW2d 183 (1981), the court cited Kerley and held that it was error not to instruct sua sponte on an element of self-defense where the element is "clear and uncontested."