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People v. Wafer

Supreme Court of Michigan

March 9, 2018

THEODORE PAUL WAFER, Defendant-Appellant.

         Wayne CC: 14-000152-FC

          Stephen J. Markman, Chief Justice Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement, Justices.


         On October 12, 2017, the Court heard oral argument on the application for leave to appeal the April 5, 2016 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

          Markman, C.J. (dissenting).

         Renisha McBride, the deceased, was shot and killed by defendant in the middle of the night on defendant's porch. In hindsight, it appears likely that she was seeking some aid after being involved in a nearby car accident a few hours earlier. Defendant, unfortunately, was unaware of these facts. Instead, understanding only that his home was under assault from one or more unknown individuals outside, he chose to meet the apparent threat at his front door.

         Despite the tragic nature of this case, defendant was entitled to a fair trial with all the protections guaranteed to him by law. In my judgment, however, defendant was deprived of a critical protection at trial. This deprivation prejudiced the outcome, for which the only remedy is a new trial. Accordingly, I respectfully dissent from this Court's order denying leave to appeal.


         Defendant lived alone in Dearborn Heights, close to the border of Detroit. He was aware that his neighborhood had recently suffered from an increase in crime. For instance, one of his neighbors had to display a handgun for protection against apparent drug users. In addition, defendant's vehicle had been vandalized a few weeks before the shooting at issue. As a result of this increase, defendant converted a hunting shotgun that he owned into a shotgun that was better suited for home defense by installing a pistol grip. His home had three doors-at the front, side, and back of the home. All doors were kept locked, including the screen door protecting the front door.

         The deceased crashed her car in Detroit (near Dearborn Heights) at about 1:00 a.m. on November 2, 2013. Witnesses indicated that the deceased seemed "out of it, " and she declined to wait for an ambulance. Instead, she walked away from the scene. It is not clear what the deceased did between about 1:30 a.m. and 4:30 a.m., nor is it clear why she appeared at defendant's home. In any event, at about 4:30 a.m., defendant was awakened by a loud banging.

         Defendant testified that the banging started at the side door and then moved to the front door. Defendant looked out of the front-door peephole and saw a figure leaving the porch. The banging then resumed at the side door, increasing in intensity. Defendant said that he feared that the person or persons were trying to enter his home and that the side door was being "attacked." He then obtained a baseball bat and went into the kitchen. The banging again resumed at the front door; this time, it sounded like metal hitting the door. Defendant decided to obtain his shotgun from the bedroom closet. By that point, the banging had again moved to the side door; defendant believed that it sounded like the person or persons were trying to kick in the door. When the banging at the side door stopped, defendant went to the front door to investigate, fearing that "they" were attempting to break into his home. He believed that if the person or persons outside saw him at the front door holding a gun, the person or persons might run away. By then, according to defendant, the front-door peephole was cracked and unusable from the pounding on the door.

         Defendant testified that he unlocked the front door, opened it a few inches, and saw that the screen from the screen door was damaged or out of place. He then opened the front door completely, at which point someone suddenly rushed toward the door. Defendant explained that he immediately discharged his shotgun while assertedly fearing for his life, apparently with the screen door still closed, and the deceased was killed at close range. Experts later opined that she was two to eight feet away from the shotgun when it was discharged, but more likely at the short end of that range. Defendant said that it was only after he discharged the shotgun that he realized the person was a woman. He called the police at 4:42 a.m., stating that he had "just shot somebody on my front porch with a shotgun banging on my door."[1]

         The trial court provided two self-defense instructions to the jury, CJI2d 7.15 and CJI2d 7.16, each of which is consistent with the Self-Defense Act, MCL 780.971 et seq.[2] However, the trial court refused defense counsel's requests to also give CJI2d 7.16a.[3]Relevant to this case, CJI2d 7.16a would have instructed the jury that if an individual is "in the process of breaking and entering, " and the homeowner honestly and reasonably believes that fact, then the jury should presume that the homeowner has an honest and reasonable belief of imminent death or great bodily harm. See MCL 780.951(1). The trial court reasoned that CJI2d 7.16a was inapplicable because "there is no evidence that [the deceased] was either breaking or entering."

         Ultimately, the jury found defendant guilty as charged of second-degree murder, MCL 750.317, statutory manslaughter, MCL 750.329, and possession of a firearm during the commission of a felony, MCL 750.227b. The Court of Appeals affirmed his convictions, People v Wafer, unpublished per curiam opinion of the Court of Appeals, issued April 5, 2016 (Docket No. 324018), and we directed the Clerk to schedule oral argument on the application, People v Wafer, 500 Mich. 930 (2017).


         This Court reviews de novo claims of instructional error. People v Dupree, 486 Mich. 693, 702 (2010).



         "At common law, a claim of self-defense, which 'is founded upon necessity, real or apparent, ' may be raised by a nonaggressor as a legal justification for an otherwise intentional homicide." People v Riddle, 467 Mich. 116, 126 (2002), quoting 40 Am Jur 2d, Homicide, § 138, p 609. "[T]he killing of another person in self-defense is justifiable homicide only 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." Riddle, 467 Mich. at 127. "[O]nce the defendant satisfies the initial burden of production, the prosecution bears the burden of disproving the common law defense of self-defense beyond a reasonable doubt." People v Reese, 491 Mich. 127, 155 (2012) (quotation marks and citation omitted; alteration in original).

         As a general rule under the common law, a person exercising his right of self-defense is "bound, if possible, to get out of his adversary's way, and has no right to stand up and resist if he can safely retreat or escape." Pond v People, 8 Mich. 150, 176 (1860). However, under the castle doctrine, "[i]t is universally accepted that retreat is not a factor in determining whether a defensive killing was necessary when it occurred in the accused's dwelling[.]" Riddle, 467 Mich. at 134. "The rule has been defended as arising from 'an instinctive feeling that a home is sacred, and that it is improper to require a man to submit to pursuit from room to room in his own house.' " Id., quoting People v Godsey, 54 Mich.App. 316, 319 (1974) (citations and quotation marks omitted).


         "With the enactment of the Self-Defense Act (SDA), MCL 780.971 et seq., the Legislature 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, 486 Mich. at 708. MCL 780.972(1)(a) of the SDA reads 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.

MCL 780.972 is consistent with the common law of self-defense to the extent that it allows a person to use deadly force in self-defense when (1) the person honestly and reasonably believes that there is a threat of imminent death or great bodily harm to himself, and (2) the person honestly and reasonably believes that the use of deadly force is necessary to prevent such an outcome.

         Furthermore, MCL 780.951 provides heightened statutory protection for a person who uses deadly force in self-defense when the circumstances suggest that another person presents an imminent threat of death or great bodily harm to those within a dwelling. MCL 780.951(1) provides, in relevant part, as follows:

(1) . . . [I]t is a rebuttable presumption in a civil or criminal case that an individual who uses deadly force or force other than deadly force under [MCL 780.972] has an honest and reasonable belief that imminent death of, sexual assault of, or great bodily harm to himself or herself or another individual will occur if both of the following apply:
(a) The individual against whom deadly force or force other than deadly force is used is in the process of breaking and entering a dwelling or business premises or committing home invasion or has broken and entered a dwelling or business premises or committed home invasion and is still present in the dwelling or business premises, or is unlawfully attempting to remove another individual from a dwelling, business premises, or occupied vehicle against his or her will.
(b) The individual using deadly force or force other than deadly force honestly and reasonably believes that the individual is engaging in conduct described in subdivision (a).

Thus, MCL 780.951(1) essentially provides that, when the evidence shows that both subdivisions (a) and (b) have been satisfied, the defendant is entitled to a rebuttable presumption that he possesses an honest and reasonable belief of imminent death or great bodily harm. The trial court here, despite repeated requests from defense counsel, refused to instruct the jury concerning MCL 780.951 by providing the jury CJI2d 7.16a. Its refusal to do so is dominantly at issue in this appeal. Put simply, defendant was entitled to such an instruction if the evidence supported both MCL 780.951(1)(a) and (1)(b). See People v Rodriguez, 463 Mich. 466, 472 (2000) ("[W]hen a jury instruction is requested on any theories or defenses and is supported by evidence, it must be given to the jury by the trial judge.") (quotation marks and citation omitted); People v Kolanek, 491 Mich. 382, 411-412 (2012) ("[I]f a defendant produces sufficient evidence of the elements of the defense, then the question whether the defendant has asserted a valid defense is for the jury to decide.").

         a. MCL 780.951(1)(a)

         In relevant part, MCL 780.951(1)(a) is satisfied when either (1) the individual "is in the process of breaking and entering a dwelling" or (2) the individual "has broken and entered a dwelling . . . and ...

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