Dеfendant, who killed her boyfriend, Antonio Pena, with a knife, appeals as of right from her conviction by a jury of voluntary manslaughter, MCL 750.321. The trial court sentenced her as a fourth-offense habitual offender, MCL 769.12, to five to twenty years’ imprisonment. Defendant argues on appeal that she should have been allowed a jury instruction regarding the defense of others because the jurors could have concluded that she killed Pena while defending her unborn children. 1 We agree that a defense of others jury instruction was appropriate *319 here and therefore reverse defendant’s conviction and remand this case for a new trial.
Defendant stabbed Pena on October 9, 1999. According to a Kalamazoo police officer, defendant told him that she and Pena had argued that day over Pena’s cocaine use. Defendant told the officer that Pena subsequently punched her two times in the stomach and that she warned Pena not to hit her because she was carrying his babies. Defendant stated that when Pena came towаrd her again, she stabbed him in the chest. He died as a result of the stab wound.
Months before trial, defendant moved for permission to present testimony and to argue that she killed Pena in defense of her unborn children. The trial court concluded that a person could assert the defense of others theory if the person is claiming that deadly forcе had to be used to protect a fetus or embryo. The court signed an order stating that “Defendant’s Motion to Allow Defense of Defendant’s Unborn Child as a Theory of Defense is hereby granted.”
At trial, defendant presented evidence of Pena’s assaultive nature. Apparently, he had hit defendant on other occasions, causing her at one point to seek treatment at a hospital and stay in a domestic violence shelter. The parties also presented testimony regarding defendant’s alleged pregnancy. A nurse employed with the Kalamazoo County Sheriff’s Department testified that defendant had a negative pregnancy test on November 9, 1999. However, another nursе employed by the Kalamazoo County Jail testified that defendant had a positive pregnancy test on October 25, 1999, and defendant and her cellmate testified that a tissue-like discharge had *320 appeared on defendant’s sanitary napkin during the first week of November.
At the conclusion of the trial, defendant requested a jury instruction on the dеfense of others. See CJI2d 7.21, which states, in part, that “[a] person has the right to use force or even take a life to defend someone else under certain circumstances.” Despite its earlier ruling, the trial court disallowed a defense of others instruction, noting that (1) the fetus or fetuses would have been only sixteen or seventeen weеks in gestation at the time of the stabbing and (2) according to a physician’s trial testimony, a fetus under twenty-two weeks old is nonviable, i.e., it is not capable of surviving outside the mother’s womb. The trial court concluded that in order for defendant to assert a defense of others theory, there had “to be a living human being existing independent of [defendant] . . . .” It stated: “[E]ven under the evidence in this case, under 22 weeks, there are no others. And, that’s my theory.” The trial court did allow a self-defense jury instruction.
Defendant now argues that because the trial court did not instruct the jury on the defense of others theory, she was denied her constitutional right to present a defense. In order to determine whether the court shоuld indeed have given the defense of others instruction, we must initially decide the purely legal question whether a nonviable fetus constitutes an “other” in the context of this defense. 2 With certain restrictions, we conclude that it does.
“In Michigan, the killing of another person in self-defense is justifiable homicide if the defendant hon
*321
estly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm.”
People v Heflin,
We conclude that in this state, the defense should also extend to the protection of a fetus, viable or nonviable, from an assault against the mother, and we base this conclusion primarily on the fetal protection act adopted by the Legislature in 1998. See MCL 750.90a et seq. 3 This act punishes individuals who harm or kill fetuses or embryos under various circum *322 stances. MCL 750.90a and 750.90b set forth penalties for harming a fetus or embryo during an intentional assault against a pregnant woman. MCL 750.90a punishes аn individual for causing a miscarriage or stillbirth with malicious intent toward the fetus or embryo or for causing a miscarriage or stillbirth while acting “in wanton or willful disregard of the likelihood that the natural tendency of [his] conduct is to cause a miscarriage or stillbirth or great bodily harm to the embryo or fetus.” MCL 750.90b punishes an individual for harming or killing a fetus or embryo during an intentional аssault against a pregnant woman without regard to the individual’s intent or recklessness concerning the fetus or embryo. MCL 750.90c punishes an individual for harming or killing a fetus or embryo during a grossly negligent act against a pregnant woman, again without regard to the individual’s state of mind concerning the fetus or embryo.
The plain language of these provisions shows the Legislature’s conclusion that fetuses are worthy of protection as living entities as a matter of public policy. See, generally,
People v Matelic,
Because the act reflects a public policy to protect even an embryo from unlawful assaultive or negligent conduct, 5 we conclude that the defense of others concept does extend to the protection of a nonviable fetus from an assault against the mother. We emphasize, however, that the defense is available solely in the context of an assault against the mother. Indeed, the Legislature has not extended the protection of the criminal laws to embryos existing outside а woman’s body, i.e., frozen embryos stored for future use, and we therefore do not extend the applicability of the defense of others theory to situations involving these embryos.
We acknowledge that in
Ogas v Texas,
Michigan has not similarly codified the defense of others theory in its criminal statutes, and we are therefore not bound by restrictive statutory definitions. Our Legislature, as noted earlier, has expressed its intent that fetuses and embryos be provided strong protection under the law from assaults against pregnant women, and we believe that our decision today effectuates that intent.
The common law of other statеs is likewise distinguishable. In
Illinois v Gaines,
9 Ill App 3d 589, 592-594;
In the instant case, we do find criminal law — specifically, the fetal protection act — to support defendant’s right to assert the defense of others theory. Moreover, we fail to discern the “clear logic” referred to by the Illinois court. Indeed, we do not believe that a woman is limited to the use of deadly force against an attacker only if her own life is in danger. Instead, she may, under the appropriate circumstances, use deadly force to protect her fetus even if she does not fear for her own life.
A number of cases exist in which antiabortion activists on trial for criminal conduct have unsuccessfully raised the defense of others theory. For example, in Louisiana v Aguillard, 567 So 2d 674, 675 (La App, 1990), the defendants were prosecuted for criminal trespass, obstructing public passage, and resisting an officer after they protested abortions at an abortion clinic. The Louisiana Court of Appeals held that they were not entitled to assert a defense of others theory because a woman’s right to obtain an abortion is constitutionally protected. Id. at 676-677. Likewise, in Allison v City of Birmingham, 580 So 2d 1377, 1383 (Ala Crim App, 1991), the Alabama Court of Criminal Appeals held that the defendant, who had been convicted of criminal trespass for protesting at an abortion clinic, could not raise a defense of others theory because “ ‘[u]nlawful physical force’ must be used by the other person in order to support a defense-of-third-persons” claim and because abortion is lawful.
The distinction between the abortion cases and the instant case is straightforward. The United States
*326
Supreme Court has held that the Fourteenth Amendment of the United States Constitution guarantees the right to personal privacy and that this right encompasses a woman’s decision whether to terminate her pregnаncy.
Roe v Wade,
In light of our holding regarding the applicable law, •we must now determine whether the trial court’s jury instructions represented an adequate application of the law to the facts of the instant case. A criminal defendant has a state and federal constitutional right to present a defense. Const 1963, art 1, § 13; US Const, Ams VI, XIV;
People v Hayes,
This Court reviews claims of instructional error de novo.
People v Hubbard (After Remand),
We conclude that the failure to give a defense of others jury instruction deprived defendant of her due process right to present a defense. The prosecutor argues that the instructions as given were sufficient because they included a self-defense theory, which *328 the jury rejected, and because the court allowed defendant to present testimony concerning her pregnancy in order to justify her decision to defend herself. This argument is disingenuous. Indeed, in light of the punches to defendant’s stomach, the jury could have rejected defendant’s self-defense theory while at the same time finding that defendant killed Pena in defense of her unborn children. There was sufficient evidence presented from which the jury could have concluded that defendant was indeed pregnant at the time of the incident. As noted, jury instructions must not exclude consideration of material issues, defenses, and theories for which therе is supporting evidence. Canales, supra at 574. Because the jury instructions essentially excluded consideration of defendant’s viable defense of others theory, a new trial is warranted.
We emphasize that our decision today is a narrow one. We are obviously aware of the raging debate occurring in this country regarding the point at which a fetus becomes a person entitled to all the protections of the state and federal constitutions. This issue, however, is not raised by the parties, is not pertinent to the resolution of the instant case, and does not drive our ruling today. Indeed, the issue today is straightforward: Is a nonviable fetus entitled to the protection of the laws of the state of Michigan to the extent that an individual, typically the mother, may defend the fetus during an assault against the mother? We conclude that an individual may indeed defend a fetus from such an assault and may even use deadly force if she honestly and reasonably believes the fetus to be in danger of imminent death or great bodily harm. Any other result would be anomalous, given the express policy of this state as declared by *329 the Legislature in the fetal protection act. Because the trial court did not instruct the jury regarding the defense of others theory as requested by defendant, we reverse defendant’s conviction and remand this case for a new trial.
Reversed and remanded. We do not retain jurisdiction.
Notes
Defendant told a Kalamazoo police officer that she had been carrying quadruplets at the time of the stabbing.
We note that this Court reviews questions of law de novo.
People v Mackle,
References to the act in this opinion are to the statutory language in effect at the time relevant to this matter. Subsequent amendments have not materially changed the provisions for purposes of our analysis.
The only harsher penally being life imprisonment without the рossibility of parole.
We note that the Legislature also passed civil protections for fetuses and embryos. See MCL 600.2922a, which currently provides, in part, that “[a] person who commits a wrongful or negligent act against a pregnant individual is liable for damages if the act results in a miscarriage or stillbirth by that individual, or physical injury to or the death of the embryo or fetus.”