Dеfendant appeals as of right his convictions by a jury of second-degree murder, MCL 750.317, possession of a firearm by a felon, MCL 750.224Í, and two counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced as a second-offense habitual offender, MCL 769.10, to 25 to 40 years’ imprisonment for the second-degree murder conviction, 5 years to 90 months in prison for the conviction of possession of a firearm by a felon, and 2 years’ imprisonment for each felony-firearm conviction. For the reasons set forth in this opinion, we affirm.
I. FACTS
Defendant’s convictions arise out of the shooting death of Kevin Powell that occurred about December 17, 2010. The shooting occurred at a boarding house in Saginaw that defendant had signed a contract to purchase a few days earlier. Powell, who was a large, heavyset man, was a tenant at the boarding house. Several days before the shooting, the police refused a request from a man named “Juan” for assistance in evicting Powell because “Juan” could not produce a valid eviction notice. A police officer testified that he told “Juan” to call the police if the subject, i.e., Powell, became “assaultive.” The officer testified that “Juan” responded by stating that no call would be necessary because “he takes care of his own.” Defendant testified that his friend had made the call and impersonated defendant.
At trial, evidence showed that defendant and Powell engaged in several verbal altercations in the months and days preceding the shooting. Defendant testified that he initially met Powell in the parking lot of a grocery store where he and Powell argued and Powell allegedly stated, “I’ll go get my gun and I’ll find out who you are.” The verbal altercations continued after defendant purchased the boarding house. Defendant testified that Powell was angry that defendant planned to evict all the residents of the boarding house. According to defendant, Powell refused to vacate the boarding house without a refund of his past rent and he allegedly stated, “we shoot cops over here ... you ain’t s— to me.”
Before the shooting, defendant, Delano Williams, and John O’Valle moved some of defendant’s belongings, including a rifle, into the boarding housе. According to
According to Williams, after defendant left the boarding house to buy alcohol, O’Valle and Powell got into an argument. O’Valle became angry and retrieved defendant’s rifle, which had been placed in a back bedroom. As O’Valle carried the rifle down a hallway toward Powell’s room, Powell confronted O’Valle and took the rifle away from him. Powell brought the rifle into his room.
Following the dispute between O’Valle and Powell, according to Williams, he and Powell quarreled over Williams’ missing watch. Williams explained that the incident occurred in Powell’s room and he stated that Powell started to choke him. Williams testified that while Powell was choking him, defendant returned from the store, and that Powell released Williams when he saw defendant approach. Williams stated that defendant went and “got the rifle back” about 10 to 25 minutes after Powell choked him. Specifically, Williams testified that defendant went into Powell’s room, and, following a conversation, Powell handed the rifle back to defendant and told defendant to “control his peoples.”
Williams testified that after defendant retrieved the rifle from Powell, defendant placed it in a back bedroom underneath a mattress. According to Williams, sometime thereafter, while he and O’Valle sat at a table, defendant got the rifle from underneath the mattress, walked to Powell’s room, knocked on the door, asked Powell if he wanted some soup, and then fired the gun. Specifically, Williams explained, “I heard the door go, you know, like somebody touched the knob and gonna pull it open and then just heard a bang.” Williams was unclear about the timing regarding when defendant stowed the rifle under the mattress after Powell gave it back to him and the time when defendant got the rifle back out from under the mattress and shot Powell. At one point, Williams stated that the shooting occurred about an hour after defendant placed the rifle under the mattress. Williams did not clarify why defendant confronted Powell with a rifle other than stating that Powell “went too far when he decided he wanted to touch me” and that Powell was “too big.” He agreed that defendant “got up from the table” unannounced, got the rifle, and went to Powell’s room with it.
Defendant’s testimony differed from Williams’ testimony. Defendant testified that, when he returned to the boarding house from purchasing alcohol, he witnessed Powell laying over O’Valle holding a rifle. Defendant stated that Powell brought the rifle into his room. Defendant went into Powell’s room and conversed and drank alcohol with Powell for approximately 15 minutes then arose to leave the room. Powell handed the rifle to defendant as he left the room.
According to defendant, sometime after he and Powell conversed, while he was eating with O’Valle, he heard a “ruckus in the kitchen” and then saw Powell choking Williams. Defendant explained that he instructed Powell to release Williams and Powell complied. However, defendant testified that Pоwell stated, “that’s it .. . I’m getting my gun. I’m killin’ all of yous. ... He said he was gonna kill us.” Powell left the area and returned to his room. Defendant
I was scared that I was going to catch a bullet, you know, through the door, and then when I went into the bedroom, I was what the hell is wrong with you. And then he saw the gun in my hand. He says I got a gun too, mother f- — . And I says well you better not move.
... And that’s when he moved this hand. He had something in his hand right here. But I figured he had two guns. And he moved this hand. As he moved, I stepped back and I brought the gun up like this. Now the door is in between halfway him and me. And at the same time when I brought it like this, after he moved, the gun just went off. I mean, it don’t just go off, but I don’t remember squeezing the trigger. It just happened so fast. And, I mean, I didn’t аim for him.
Defendant testified that he was scared of “gettin’ killed.” He explained that Powell was holding a “long black thing” that looked like the barrel of a gun when he went in Powell’s room. However, defendant testified that Powell was “bluffing” and must have been holding a hammer that the police later found on his bed. Defendant testified that his rifle fired only once and he stated that he was “shocked that it went off. I actually thought that it was empty.” He explained that he brought what he thought was an unloaded rifle to Powell’s room to try and intimidate Powell and prevent him from “get[ting] his gun and kill[ing] all three of us like he said he was gonna do.” Defendant agreed with the prosecution that his “sworn testimony to this jury was that this was an accident taking place at a time that you were in fear for your life.” Defendant testified that, immediately after the shooting, he concluded that Powell was dead and he, Williams, and O’Valle placed some belongings and the rifle into a wheelbarrow and fled to a home nearby.
The police were called to the boarding house the following day, where they discovered Powell’s body covered with some bedding. The police found a hammer on Powell’s bеd and a spent shell casing on the floor near the door next to Powell’s room. Shortly thereafter, the police arrested defendant.
At the close of proofs, defense counsel requested an instruction on self-defense and the defense of others, but the trial court denied defendant’s request and explained:
With regard to the self-defense claim here, what little research we can do on this matter, there’s the idea of accidental self-defense ... you have to have a rational view of the facts to support this.
In this case, the defendаnt has testified that the gun accidentally went off. It wasn’t his intent to kill the person.
He went there with the weapon because of the position he was in because he was frightened but the gun accidentally went off. So the very nature of discharging a firearm in defense of himself or others would not apply, and the fact that he went to the decedent’s room would negate it anyway. I believe that more importantly his statement that the gun accidentally discharged would ehminate any claim that this discharge was withthe intent to defend himself or someone else, so I’m not going to give the instruction.
The trial court instructed the jury on the defense of accident. The jury convicted defendant as set forth above. This appeal ensued.
II. STANDARD OF REVIEW
Defendant contends that the trial court denied him his right to a fair trial when it refused to instruct the jury on self-defense and defense of others.
We review questions of law arising from the provision of jury instructions de novo. People v Gillis,
III. ANALYSIS
A. GOVERNING LAW
“A defendant in a criminal trial is entitled to have a properly instructed jury consider the evidence against him or her.” People v Dobek,
Under the common law, the affirmative defense of self-defense justified 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.’ ”
In 2006, the Legislature enacted the Self-Defense Act (SDA), MCL 780.971 et seq. Effective October 1, 2006, the SDA “codified the circumstances in which a person may use deadly force in self-defense or in defense of another person without having the duty to retreat.” Dupree,
(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 reasоnably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual. [MCL 780.972(1) (emphasis added).]
At the outset we note that a key provision of the statutory language set forth above is that portion which provides “[a]n 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.. . .” (Emphasis added.) This language raises the question whether a felon possessing a firearm is precluded from asserting self-defense under the SDA. Indeed, in this case, defendant was a convicted felon and wаs precluded from possessing a firearm under MCL 750.224f at the time of the shooting. Therefore, when defendant possessed the rifle used in the shooting, he was a felon in possession of a firearm contrary to that statute. Accordingly, we must proceed by determining whether a felon in possession of a firearm is precluded from asserting the affirmative defense of self-defense under the SDA.
There is no published caselaw addressing the interplay between the statute proscribing the possession of a firearm by a felon and the SDA; thus, we must first turn to the plain language of the statutes. MCL 750.224f provides that an individual convicted of a felony may not “possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm,” unless certain conditions are satisfied. See People v Perkins,
With respect to the SDA, as noted, the statute articulates when an individual may use deadly force in self-defense or defense of others with no duty to retreat, MCL 780.972(1), but it too is silent on whether the statute applies to felons possessing firearms. Importantly, however, the SDA provides: “This act does 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 (emphasis added). Thus, in order to resolve whether a felon in possession of a firearm is precluded from asserting self-defense under the SDA, we must proceed by examining the scope of an individual’s right to assert self-defense at common law.
In Dupree,
The prosecution charged the defendant with assault with intent to commit murder, felonious assault, possession of a firearm by a felon, and felony-firearm. Id. at 697-698. At trial, the defendant claimed self-defense and he argued that his temporary possessiоn of the gun was justified because he seized it only to protect himself during the scuffle. Id. at 699. The trial court provided a standard self-defense instruction; however, with respect to the felon-in-possession charge, the court provided a “momentary innocent possession” instruction. Id. at 699-700. The jury acquitted the defendant of all the charges except the felon-in-possession charge and the defendant appealed. Id. at 700.
This Court reversed the defendant’s conviction and remanded for a new trial, finding that common-law self-defense was available for a chаrge of being a felon in possession of a firearm and that the trial court had erred by failing to instruct the jury accordingly. People v Dupree,
Our Supreme Court affirmed this Court’s result,
Dupree clearly establishes that at common law, felons in possession of a firearm were not precluded from asserting self-defense if the defense was supported by sufficient evidence. The Legislature did not alter the availability of self-defense under the SDA for felons possessing firearms. Rather, the SDA explicitly stаtes that the statute “does 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 (emphasis added). Therefore, we hold that a felon possessing a firearm is not precluded from raising self-defense under the SDA when there is evidence that would allow a jury to conclude that criminal possession of a firearm was justified because the accused had an honest and reasonable belief that the use of deadly force was necessary to prevent imminent death, great bodily harm, or sexual assault to himself or herself or to another. See Dupree,
B. APPLICATION
Having concluded that a felon possessing a firearm is not precluded from asserting self-defense under the SDA if the defense is supported by evidence, we now turn to whether, in this case, self-defense was supported by the evidence.
After a thorough review of the record, we conclude that there was no evidence that would have allowed a jury to find that defendant’s criminal possession of the rifle was justified by an honest and reasonable belief that it was nеcessary for him to use deadly force to prevent imminent death or great bodily harm to himself or to another.
Additionally, althоugh defendant testified that he feared for his life, there was no evidence that defendant had a reasonable and honest belief that the use of deadly force was necessary to prevent imminent death or great bodily harm. Dupree,
Moreover, defendant did not advance a self-defense theory at trial. While defendant correctly claims that a criminal defendant can assert inconsistent defenses, People v Lemons,
IV CONCLUSION
In summary, we conclude that a felon possessing a firearm is not precluded from asserting self-defense under the SDA when there is evidence that would allow a jury to conclude that the criminal possession of the firearm was justified because the accused had an honest and reasonable belief that the use of deadly force was necessary to prevent imminent death, grеat bodily harm, or sexual assault to himself or herself or to another. In this case, the trial court did not abuse its discretion when it refused to provide a self-defense instruction because there was no evidence that would allow a juror to conclude that defendant’s possession of a firearm was justified on the basis that he had a reasonable and honest belief that the use of deadly force was necessary to prevent imminent death or great bodily harm to himself or to another and because defendant advanced an accident defense at trial.
Affirmed.
Notes
“An affirmative defense is one that admits the doing of the act charged, but seeks to justify, excuse, or mitigate it.... It does not negate selected elements or facts of the crime.” People v Lemons,
At common law, a person could also use deadly force in defense of others under similar circumstances. See People v Kurr,
Our Supreme Court did not affirm this Court’s holding that the affirmative defense of duress was available to a felon-in-possession charge because the defense was not properly raised in the trial court. Dupree,
We note that the temporal relationship between the time the accused came into possession of the firearm and the time he or she deployed deadly force is relevant to determining whether the accused had an honest and reasonable belief that possession of a firearm was justified to prevent imminent death, great bodily harm, or sexual assault. For example, in Dupree,
It was not alleged, and there was no evidence, that there was any danger of sexual assault; thus, our analysis is limited to whether defendant had a reasonable and honest belief of imminent death or great bodily harm.