In People v Goree, __ Mich App __ (#302046, 4/17/2012) the Court of Appeals held that the trial court erred by instructing the jury that self-defense is not applicable to a felony firearm charge.
At its core, felony-firearm is a possessory offense. In People v Dupree, 486 Mich 693 (2010) the Supreme Court has found self defense applicable to another possessory offense—being a felon in possession of a firearm in violation of MCL 750.224f. In Dupree, the defendant was a convicted felon who was legally barred from possessing a weapon. The defendant wrested a weapon away from an armed assailant during a confrontation at a family party. The defendant then used the weapon to shoot the assailant three times.
at 698-699. The defendant challenged the assault charges raised against him, asserting that he acted in self defense. Id. at 699. Similar to the current case, the jury acquitted Dupree of the assault charges but convicted him of being a felon in possession of a firearm. Id. at 700. On appeal the Supreme Court determined that common-law self-defense was applicable to a felon-in-possession charge without the trial court’s gloss requiring a defendant to discard the weapon as soon as possible. Id. at 705-706. The Court noted that felon-in-possession statutes are “‘not intended to affect [a defendant’s] right to use a firearm in self-defense’” but were merely intended “‘to prohibit members of the affected classes from arming themselves with firearms or having such weapons in their custody or control in circumstances other than those in which the right to use deadly force in self-defense exists or reasonably appears to exists [sic].’” Id.
Pursuant to MCL 780.972, a criminal defendant may raise self-defense as follows: (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 reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual. (2) An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.
In this case the trial court’s instruction that defendant’s act of felony-firearm could not be justified by self-defense was reversible error. Defendant was “entitled to have a properly instructed jury consider the evidence against him,” and is therefore entitled to a new trial on the felony-firearm charge, with an instruction on self defense.