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Michigan Supreme Court Lansing, Michigan

Opinion
SUPREME COURT PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v ROBERTO MARCHELLO DUPREE, Defendant-Appellee.

Chief Justice:

Justices:

Marilyn Kelly

Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway

FILED JULY 23, 2010 STATE OF MICHIGAN

No. 139396

BEFORE THE ENTIRE BENCH CORRIGAN, J. In this criminal case, we hold that the traditional common law affirmative defense of self-defense may be interposed to a charge of being a felon in possession of a firearm, MCL 750.224f. Defendant temporarily possessed a firearm in violation of the felon-inpossession statute but introduced evidence at trial supporting the theory that his violation was justified because he acted in self-defense. The prosecutor did not resist defendant's argument regarding the availability of self-defense, and the trial court gave a standard self-defense jury instruction. Over defendant's objection, the trial court also instructed

the jury regarding the momentary innocent possession defense to the charge of being a felon in possession. The jury convicted defendant. The Court of Appeals reversed defendant's conviction and remanded for a new trial, concluding that the common law affirmative defenses of self-defense and duress are generally available to a defendant charged with being a felon in possession if supported by sufficient evidence. 1 We originally granted leave to consider whether any of the traditional common law affirmative defenses are available for a charge of felon-in-possession and, if so, whether the defendant has the burden of proving the affirmative defense. We conclude, however, that only the common law affirmative defense of self-defense was properly raised before the trial court. Limiting our analysis to the issue preserved below, we agree with the Court of Appeals that self-defense is generally available for a felon-inpossession charge if supported by sufficient evidence. Defendant introduced sufficient evidence from which the jury could have concluded that he violated the felon-inpossession statute but that his violation could be justified because he honestly and reasonably believed that his life was in imminent danger and that it was necessary for him to exercise force to protect himself. Therefore, we hold that self-defense is an available defense under these facts. We also take this opportunity to reaffirm that the prosecution bears the burden of disproving the common law affirmative defense of self-defense beyond a reasonable doubt. Finally, we conclude that the Court of Appeals properly ruled that the trial court's

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People v Dupree, 284 Mich App 89; 771 NW2d 470 (2009).
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modified jury instruction on the momentary innocent possession defense was erroneous. Because this instructional error more probably than not resulted in a miscarriage of justice, defendant is entitled to a new trial on the felon-in-possession charge. Accordingly, we affirm the Court of Appeals' result and remand for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY On September 11, 2005, defendant Roberto Marchello Dupree and a female companion attended a birthday party for his brother at the house of defendant's sister-inlaw, Adrian Dupree. Adrian's 24-year-old niece, Ashley Horton, and Horton's 24-yearold boyfriend, Damond Reeves, also attended. When the party was ending, defendant and Reeves began quarrelling on the porch. The altercation culminated in defendant shooting Reeves three times. As a result of the altercation, the prosecutor charged defendant with two counts of assault with intent to commit murder, 2 felonious assault,3 felon-in-possession, 4 and possession of a firearm during the commission of a felony. 5 After a three-day trial, the jury acquitted defendant of all charges except the felon-inpossession charge. The witnesses gave conflicting testimony at trial about the circumstances surrounding the altercation. Reeves testified that defendant directed an expletive at him
2 3 4 5

MCL 750.83. MCL 750.82. MCL 750.224f. MCL 750.227b.
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and shoved him for no reason. Reeves also testified that he and defendant fought until defendant left the fracas, went inside, and returned with a gun. Reeves stated that defendant shot him three times as he continued wrestling with defendant from the front yard to the street. Although the sequence of events was unclear, Horton testified that when she attempted to intervene, defendant struck her in the face with the gun. She went inside to call the police and heard a shot. Horton returned to the porch and heard a second shot before going back inside, where she heard a third shot. She stated that defendant later entered the house, put the gun to her chin, and pulled the trigger. The gun did not fire. By contrast, defendant and two other bystanders testified that the altercation began when Reeves shoved Adrian Dupree off the porch. Defendant told Reeves not to

disrespect his sister-in-law and asked him to leave. Reeves then pushed defendant. The two men fell off the porch and began wrestling. Reeves's shirt was pulled up, exposing a gun in the waistband of his pants. Defendant testified that he feared for his life because Reeves was larger than defendant, inebriated, and armed. Defendant stated that Reeves went for his gun and that defendant grabbed it to protect himself. As the two men struggled over the gun, defendant shot Reeves three times. Defendant kept the gun until he left with his female companion in her vehicle, throwing the gun out the window after he was some distance from the house. During the three-day jury trial, defense counsel argued that defendant had not assaulted Horton, but had acted in self-defense in response to Reeves's actions. Regarding the felon-in-possession charge, defense counsel asserted that defendant's
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temporary possession of the gun was justified because defendant had seized possession of the gun to protect himself during the struggle. Defense counsel requested a standard selfdefense jury instruction for all charges. The prosecutor did not object, and the trial court instructed the jury as requested. Additionally, the court instructed the jury sua sponte that it could find defendant not guilty of being a felon in possession if it found the following: As to being a felon in possession, [defendant] claims that the gun was produced in a struggle. And of course, if that's the case that the gun was produced during the course of a struggle and you find that it happened that way, that would be a defense to felon in possession provided you find that he did not keep the gun in his possession any longer than necessary to defend himself. Defense counsel objected to the trial court's instruction, arguing that the court should not have included the phrase "any longer than necessary to defend himself." The trial court responded that it had crafted the instruction, which it labeled "the necessity defense to being a felon-in-possession," from federal law. After further discussion, the court gave defense counsel more time to locate legal authority to substantiate the objection. When defense counsel failed to locate any legal authority invalidating the instruction, the prosecutor suggested that the trial court provide an instruction on the momentary innocent possession defense to carrying a concealed weapon then under consideration by this Court in People v Hernandez-Garcia, 477 Mich 1039 (2007). 6 Defense counsel objected. The court overruled the objection and reinstructed the jury Approximately five months following this trial, we affirmed and adopted the Court of Appeals' holding in Hernandez-Garcia that the momentary innocent possession of a concealed weapon is not a defense to the charge of unlawfully carrying a concealed weapon, MCL 750.227(2). Hernandez-Garcia, 477 Mich at 1040, overruling People v Coffey, 153 Mich App 311; 395 NW2d 250 (1986).
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concerning the momentary innocent possession defense to being a felon in possession as follows: And if the person had a brief or momentary possession of the weapon based on necessity, that's a defense to being a felon in possession. And the elements to that are that the defendant had the gun because he had taken it from someone else who was in wrongful possession of it, or he took it from him because of necessity, because he needed to. Second, that the possession after taking the gun was brief. And third, that it was the defendant's intention to deliver the gun to the police at the earliest possible time. The law imposes that duty as a concomitant part of that. [Emphasis added.] The trial court stated that the modified instruction replaced its prior instruction regarding "the necessity defense." Subsequently, the jury acquitted defendant of all felony charges except the felon-in-possession charge. The court sentenced defendant to serve a term of 48 months' to 30 years' imprisonment as a fourth-offense habitual offender. 7 In a published opinion, the Court of Appeals reversed defendant's conviction and remanded for a new trial. The majority concluded that defendant had not waived his claim of instructional error and that the common law affirmative defenses of self-defense and duress are generally available for felon-in-possession charges. The Court adopted the term "justification" to describe the affirmative defense under which "a defendant might be justified in temporarily possessing a firearm--even though the possession is unlawful--if the possession is immediately necessary to protect the defendant or another from serious bodily harm." 8 Using the elements of common law duress as its basis, the

7 8

MCL 769.12. Dupree, 284 Mich App at 104 (opinion by M. J. KELLY, J.).
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lead opinion listed five elements that would allow a defendant to raise a justification defense to a felon-in-possession charge. 9 The Court held that each of the five elements had been established in this case and that the instructional error was not harmless because the trial court's modified jury instruction effectively directed a guilty verdict on the felon-in-possession charge. The dissenting Court of Appeals judge disagreed, concluding that the instructional error was harmless and that the evidence did not support a jury instruction on the justification defense.

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The Court of Appeals stated:

[A] defendant may raise justification as a defense to being a felonin-possession by introducing evidence from which the jury could conclude all the following: (1) The defendant or another person was under an unlawful and immediate threat that was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm, and the threat actually caused a fear of death or serious bodily harm in the mind of the defendant at the time of the possession of the firearm. (2) The defendant did not recklessly or negligently place himself or herself in a situation where he or she would be forced to engage in criminal conduct. (3) The defendant had no reasonable legal alternative to taking possession, that is, a chance to both refuse to take possession and also to avoid the threatened harm. (4) The defendant took possession to avoid the threatened harm, that is, there was a direct causal relationship between the defendant's criminal action and the avoidance of the threatened harm. (5) The defendant terminated his or her possession at the earliest possible opportunity once the danger had passed. [Id. at 107-108.]
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The prosecution then applied for leave to appeal in this Court. We granted the application and directed the parties to address whether any of the traditional common law affirmative defenses of self-defense, necessity, or duress are available for the charge of being a felon in possession, MCL 750.224f, and, if so, whether the defendant has the burden of proof to establish the defense. 10 II. STANDARD OF REVIEW Whether common law affirmative defenses are available for a statutory crime and, if so, where the burden of proof lies are questions of law. This Court reviews questions of law de novo. People v Thompson, 477 Mich 146, 151; 730 NW2d 708 (2007). We review a claim of instructional error involving a question of law de novo, but we review the trial court's determination that a jury instruction applies to the facts of the case for an abuse of discretion. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006). The defendant bears the burden of establishing that the asserted instructional error resulted in a miscarriage of justice. MCL 769.26; People v Lukity, 460 Mich 484, 493-494; 596 NW2d 607 (1999). III. ANALYSIS The preliminary issue in this case is whether the prosecution or defendant properly raised and preserved the traditional common law affirmative defenses of self-defense and duress before the trial court. Although the Court of Appeals analyzed the availability of both affirmative defenses in its decision and the parties addressed both defenses in their

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People v Dupree, 485 Mich 916 (2009).
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arguments before this Court, our review is necessarily limited by the specific issue preserved below. We have "long recognized the importance of preserving issues for the purpose of appellate review." People v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994); see also People v Brott, 163 Mich 150, 152; 128 NW 236 (1910) ("This court has often held that it will not review questions that have not been raised in the trial court, and such is the rule according to the great weight of authority."). In accordance with the general rule of issue preservation, "issues that are not properly raised before a trial court cannot be raised on appeal absent compelling or extraordinary circumstances." Grant, 445 Mich at 546. After thoroughly reviewing the record, we conclude that neither defendant nor the prosecution properly raised the affirmative defense of duress before the trial court. Defendant did not present evidence that pertained to the affirmative defense of duress or otherwise assert its availability for the charge of felon-in-possession. Similarly, the prosecution failed to interpose any issue concerning duress or its attendant burden of proof at trial. It appears that defendant first injected the issue of duress in the Court of Appeals. The prosecution seized on the issue in this Court, discussing duress extensively in its brief and at oral argument. In light of these facts, we cannot conclude that the parties preserved the issue of duress. However, we conclude that defendant properly raised the common law affirmative defense of self-defense before the trial court. Defendant's theory of the case was that he did not assault Horton, but acted in self-defense in response to Reeves's actions. Defendant introduced testimony to support his self-defense theory at trial, which the
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prosecutor attempted to discredit. Further, defendant requested a standard self-defense jury instruction for all charges. The prosecutor did not object to defendant's request for a self-defense jury instruction. Consequently, we agree with the Court of Appeals to the extent that it concluded that self-defense is generally available for a felon-in-possession charge because defendant preserved the issue of self-defense for appellate review. 11 The felon-in-possession statute, MCL 750.224f, places defendants in two distinct categories. People v Perkins, 473 Mich 626, 630; 703 NW2d 448 (2005). 12 The

statutory prohibition is identical for defendants in either category.

MCL 750.224f

provides that both categories of defendants "shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state" until a series of requirements is fulfilled. The statute does not address the availability of common law affirmative defenses, including self-defense. An affirmative defense admits the crime but seeks to excuse or justify its commission. It does not negate specific elements of the crime. People v Lemons, 454 Mich 234, 246 n 15; 562 NW2d 447 (1997); see also People v Pegenau, 447 Mich 278, 319; 523 NW2d 325 (1994) (BOYLE, J.) ("[A]n affirmative defense in effect concedes the facial criminality of the conduct and presents a claim of justification or excuse . . . .").
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The Perkins Court explained:

The first category consists of persons convicted of a "felony." These persons regain their right to possess a firearm three years after paying all fines imposed for their violations, serving all jail time imposed, and successfully completing all conditions of parole or probation. MCL 750.224f(1). The second category consists of persons convicted of a "specified felony." These persons must wait five years after completing the same requirements and, moreover, must have their right to possess a firearm restored. MCL 750.224f(2). [Perkins, 473 Mich at 630-631.] In this case, the parties stipulated that defendant had been convicted of a "specified felony" under MCL 750.224f(2).
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The Legislature's failure to provide explicitly for the common law affirmative defense of self-defense does not foreclose defendants from relying on it to justify a violation of MCL 750.224f. It is axiomatic that the common law affirmative defense of self-defense is embedded in our criminal jurisprudence. 13 Historically, in cases in which the statutory provision did not squarely resolve the issue before this Court, we have applied the common law, presuming that the Legislature enacted statutes mindful of those aspects of common law that have become "firmly embedded in our jurisprudence . . . ." 14 More recently, the United States Supreme Court recognized the interrelated nature of criminal statutes and the common law, stating that legislative bodies enact criminal statutes "against a background of Anglo-Saxon common law . . . ." 15 We find this

rationale instructive. Absent some clear indication that the Legislature abrogated or modified the traditional common law affirmative defense of self-defense for the felon-inpossession charge in MCL 750.224f or elsewhere in the Michigan Penal Code, we

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See, e.g., People v Coughlin, 65 Mich 704; 32 NW 905 (1887).

Garwols v Bankers Trust Co, 251 Mich 420, 424; 232 NW 239 (1930); see also Const 1963, art 3,

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