Michigan Supreme Court Holds That The Defendant Did Not Lose The Right To Self-Defense Merely By Presenting Himself To The Victim On A Public Street While Armed (Michigan)

In People v. Bailey [excerpt after the jump] the trial judge instructed the jurors that a person cannot “claim self defense if . . . they confront someone, intending, by their mere presence, to provoke the person to do something, and then take advantage of it.”

The Michigan Supreme Court concluded that this instruction misstated the facts and the law of self-defense because “[s]tanding alone, Bailey’s armed presence on the street [did] not amount to either fault or provocation.”

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253.4.15 - Self Defense By Aggressor
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F 5.54 - Self-Defense By An Aggressor

People v. Bailey, slip opn. pp 2-5 (Mich., SC: 139276, Feb. 2, 2010)
Bailey submits that the following instructions of the trial court regarding the concept of an aggressor effectively eliminated his claim of self-defense: You've also got to remember that a person forfeits self-defense, even if they'd otherwise have it, have the right to it, if they were the first to use deadly force, that's the ultimate bootstrapping. You can't use deadly force, and then have someone respond to deadly force and say, Now I can use deadly force to defend myself. You just can't do that.

Nor can a person claim self-defense if they provoked the other person into using deadly force. They deliberately provoke them into using deadly force, and then say, Well, now that they are, I can respond to it.

Nor can a person claim self-defense if what they do is confront someone, intending, by their mere presence, to provoke that person into doing something, and then take advantage of it. That is all making the person who is claiming self-defense the aggressor. You have to be without fault. Without fault means that you can't be the first one to use, and you can't provoke the other person into doing it, and you can't set up a situation where what you mean for them to do is to take the first step so that you are then claiming to take the second step. [Emphasis supplied.]

In People v Heflin, 434 Mich. 482, 509 (opinion by Riley, C.J.); 456 N.W.2d 10 (1990), the Supreme Court explained that "an act committed in self-defense but with excessive force or in which defendant was the initial aggressor does not meet the elements of lawful self-defense." In People v Van Horn (On Remand), 64 Mich. App. 112, 115, 235 N.W.2d 80 (1975), this Court quoted with approval from Wharton's Criminal Law & Procedure (Anderson ed), § 229, p 501: "It is generally held that the aggressor is the one who first does acts of such nature as would ordinarily lead to a deadly combat or as would put the other person involved in fear of death or serious bodily injury."

We find that the trial court improperly stated the law regarding the concept of an "aggressor," particularly as to defendant Bailey, when he instructed the jury in this regard. No legal authority in Michigan supports that one becomes an aggressor merely by presenting oneself to the victim on a public street, even if armed. In People v Bright, 50 Mich. App. 401, 405, 213 N.W.2d 279 (1973), this Court held that "merely possessing a loaded weapon does not take away the claim of self-defense from an individual." In People v Townes, 391 Mich. 578, 586-592, 218 N.W.2d 136 (1974), our Supreme Court rejected the notion that the defendant's trespass at a tire store and his attempted provocation of a store employee precluded him from arguing self-defense. Although the defendant shared some degree of "fault" for the encounter, he was nevertheless entitled to claim self-defense.

Similarly, in Riddle, the Supreme Court explained that even one who is "an aggressor in a chance-medley" may be entitled to use deadly force, depending on the circumstances. Riddle, supra at 133. The Supreme Court stated that "where a defendant 'invites trouble' or meets nonimminent force with deadly force, his failure to pursue an available, safe avenue of escape might properly be brought to the attention of the factfinder as a factor in determining whether the defendant acted in reasonable self-defense." Id. at 127. "Inviting trouble," according to Riddle, includes "voluntarily participating in mutual nondeadly combat." Id. at 142. Further, it is generally accepted that[o]ne may, without forfeiting his right to defend himself against attack, seek an interview with another in a peaceable manner, for the purpose of demanding an explanation of offensive words or conduct or demanding the settlement of a claim, and according to many decisions, he need not go in a friendly spirit. He may, it seems, assert self-defense as excuse or justification, even though he arms himself before seeking the interview. [26 Am Jur, Homicide, § 131].

Standing alone, Bailey's armed presence on the street does not amount to either fault or provocation. Contrary to the trial court's charge, "confront[ing] someone, intending, by their mere presence" to provoke an affray does not eliminate one's potential opportunity to invoke a self-defense. Rather, Bailey's actions amount to conduct that a jury must evaluate, along with the totality of the surrounding circumstances, in deciding whether he "started an assault … with deadly force [or] with a dangerous or deadly weapon." CJI2d 7.18. The trial court's "mere presence" instruction additionally contradicts CJI2d 7.19, "Nondeadly Aggressor Assaulted with Deadly Force":A defendant who (assaults someone else with fists or a weapon that is not deadly / insults someone with words  trespasses on someone else's property / tries to take someone else's property in a nonviolent way) does not lose all right to self-defense. If someone else assaults him with deadly force, the defendant may act in self-defense, but only if he retreats if it is safe to do so.

Furthermore, no record evidence supports that Bailey "intended by his mere presence" to incite or provoke the victim. Construed in the light most favorable to the prosecution, the record reveals that Bailey did not know the victim, and agreed to accompany Lambeth so that Lambeth could confront the victim. Contrary to the trial court's instruction, Bailey's mere presence at this confrontation, without more, did not automatically render him an "aggressor," and did not eliminate his ability to claim self-defense.