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A Better Partnership
May 29, 2009

COA Opinion: In a three-way split, Court determines that temporary possession of a firearm for self-defense is an affirmative defense to a felon-in-possession charge

In a divided opinion in People v. Dupree, No. 281408 (published May 28, 2009), the Michigan Court of Appeals concluded that the defenses of duress, self-defense, and justification apply to the charge of being a felon in possession of a firearm in violation of MCL ' 750.224f. Two judges agreed that the defenses applied on the facts of the case, while the dissent concluded both that the defendant waived an instructions as to these defenses and that the instruction the trial court did issue was harmless error. The majority opinion by Judge Michael Kelly can be found here, the concurrence by Judge Gleicher here, and the dissent by Judge Murray here.

The case arose out of an incident at a party. According to the defense, another man at the party pushed the defendant, and in the ensuing fight the defendant discovered that the man was carrying a gun in the waist of his pants. The gun went off during the struggle, wounding the other man. The defendant left the scene shortly thereafter, and threw the gun out the window as they drove off. According to the prosecution's version of events, the defendant, not the other man, brought the gun to the struggle.

At trial, the defense did not request a specific instruction on duress or self-defense, but the trial court, on its own initiative, instructed the jury that the self-defense was a defense to the charge, as long as the defendant "did not keep the gun in his possession any longer than necessary to defend himself." Although he had not requested a self-defense instruction, counsel for the defendant objected to the instruction because of its requirement about how quickly the defendant should have disposed of the gun. The prosecution then suggested that an instruction for momentary innocent possession be given instead. Because this instruction required that the defendant "deliver the gun to the police at the earliest possible time," defense counsel objected to this instruction as well and stated that the court should include a separate instruction concerning self-defense. The trial court gave just the momentary innocent possession instruction.

Writing for the majority, Judge Kelly first rejected the government's argument that the defendant waived its argument by failing to request the proper instruction. Although defense counsel did not request a self-defense instruction, the objections he did make to the instructions were consistent with the defense's theory, which was actually argued to the jury, that self-defense was an affirmative defense. Turning to the validity of the defenses, the majority concluded that the felon-in-possession statute must be read against the background of Anglo-Saxon common law, and thus the defenses of duress and self-defense apply. If the jury had believed the testimony presented by the defense, it could have concluded that the defendant met the elements of these defenses. Additionally, the majority concluded that a justification defense also applied, and that the defendant's conduct fell within that defense as well. Finally, the majority concluded that the failure to instruct the jury as to self-defense was not harmless error, because the jury might have concluded that the defendant's continued possession of the gun for a period of time after the fight broke up precluded the defenses covered in the actual jury instructions.

Judge Gleicher concurred and wrote separately, emphasizing that the actual instruction given to the jury "instructed the jury that defendant had failed to prove an essential element of the defense"—that is, that he delivered the gun to the police. Judge Gleicher also noted that raising a duress defense shifts the burden of proof to the prosecution to show that, beyond a reasonable doubt, the defendant did not act under duress. She could not conclude that these errors were "harmless beyond a reasonable doubt."

In dissent, Judge Murray noted that the defense never requested a self-defense instruction, instead simply objecting to the instructions proposed by the trial judge and the prosecution. Because the defendant never requested an instruction, he waived the argument. Moreover, the error was harmless because the jury could have accepted the self-defense argument as to the possession of the firearm during the fight and based the conviction on the continued possession of the firearm after the need for self-defense had ended.

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