Michigan Court of Appeals Confirms Duress Is Not A Defense To Murder, Assault With Intent to Murder

On June 26th, 2014, the Michigan Court of Appeals confirmed in a criminal case the rule that the affirmative defense of duress does not apply to charges of murder or assault with intent to murder.

In People v Henderson, Docket No. 311864, the Michigan Court of Appeals address an appeal where defendant contended that the trial court erred in instructing the jury that duress was not a defense to murder.

The Court first recited the facts of the case.

Following a jury trial, defendant appeals as of right his convictions for second-degree murder, MCL 750.317, assault with intent to commit murder (AWIM), MCL 750.83, felon in possession of a firearm, MCL 750.224f, and three counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant as an habitual offender, fourth offense, MCL 769.12, to 35 to 80 years’ imprisonment for the murder and AWIM convictions, to 76 to 360 months’ imprisonment for the felon-in-possession conviction, and to two years’ imprisonment for each of the felony-firearm convictions. We affirm.

On appeal, defendant first argues that the trial court erred in declining to give a duress instruction in response to a request for such an instruction by the jury. Rather than instruct on duress, the trial court directed: [']You must follow the instructions as given to you. Duress is not a defense to homicide murder . . .[']

The Court's analysis of defendant's duress argument followed.

[']Duress is a common-law affirmative defense.['] People v Lemons, 454 Mich 234, 245; 562 NW2d 447 (1997). To warrant an instruction on an affirmative defense, such as duress, a defendant asserting the defense must produce some evidence from which the jury can conclude that the essential elements of the defense are present. Id. at 246. Specifically, to merit a duress instruction, a defendant bears the burden of producing some evidence from which the jury could conclude:

A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;

B) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant;

C) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and

D) The defendant committed the act to avoid the threatened harm. [Id. at 247.]

A threat of future injury is not sufficient; rather, [']the threatening conduct or act of compulsion must be ‘present, imminent, and impending.’['] Id., quoting People v Merhige, 212 Mich 601, 610-611; 180 NW 418 (1920). Moreover, the threat [']‘must have arisen without the negligence or fault of the person who insists upon it as a defense.’['] Lemons, 454 Mich at 247 (citation omitted).

Relevant to defendant’s case, it is well established that duress is not a defense to homicide. People v Gimotty, 216 Mich App 254, 257; 549 NW2d 39 (1996); People v Moseler, 202 Mich App 296, 299; 508 NW2d 192 (1993); People v Etheridge, 196 Mich App 43, 56; 492 NW2d 490 (1992); People v Travis, 182 Mich App 389, 392; 451 NW2d 641 (1990). [']The rationale underlying the common law rule is that one cannot submit to coercion to take the life of a third person, but should risk or sacrifice his own life instead.['] People v Dittis, 157 Mich App 38, 41; 403 NW2d 94 (1987). Because duress is not a defense to homicide, the trial court did not err in instructing the jury in this regard with respect to defendant’s murder charge. Defendant maintains that the principle that duress is not a defense to homicide is inapplicable, where defendant did not actually commit the murder himself but was instead prosecuted primarily as an aider and abettor to murder. We fail to see the logic in this argument, and defendant provides no supporting authority that an aider and abettor to murder can employ a duress defense even though a principal is not entitled to do so. If directly committing a homicide is not subject to a duress defense, assisting a principal in the commission of a homicide cannot be subject to a duress defense, considering that an aider and abettor to murder is assisting in taking the life of an innocent third person instead of risking or sacrificing his or her own life. See Dittis, 157 Mich App at 41. The underlying rationale articulated in Dittis is equally sound and not distinguishable in the context of aiding and abetting murder. The court in State v Dissicini, 126 NJ Super 565, 570; 316 A2d 12 (1974), aff’d 66 NJ 411 (1975), in rejecting a similar argument, observed:

[']Defendant does not dispute the general rule, but argues that it is applicable only to a defendant who is the actual perpetrator of the killing, and that the defense should be available to one such as he who did not directly kill but only aided and abetted. Authoritative discussion of the point is sparse . . . and this is undoubtedly so because the argument has little merit.[']

The California Supreme Court has stated that [']because duress cannot, as a matter of law, negate the intent, malice or premeditation elements of a first degree murder, we further reject defendant's argument that duress could negate the requisite intent for one charged with aiding and abetting a first degree murder.['] People v Vieira, 35 Cal 4th 264, 290; 106 P3d 990 (Cal, 2005). Even the United States Court of Appeals for the Ninth Circuit has noted that duress does not excuse murder and [']in many jurisdictions duress does not excuse attempted murder or aiding and abetting murder[.]['] Annachamy v Holder, 733 F3d 254, 260 (CA 9, 2012). We are unaware of any Michigan precedent to the contrary in which the issue was directly confronted.

Defendant also contends on appeal that duress was available regarding his AWIM conviction. However, defendant has not provided any authority for the proposition that duress applies to AWIM, nor are we aware of any such rule. On the contrary, application of a duress defense in the context of AWIM would be entirely incongruous with the principle that [']one cannot submit to coercion to take the life of a third person, but should risk or sacrifice his own life instead.['] Dittis, 157 Mich App at 41. AWIM is, by definition, an assault with the intent to kill, [']which, if successful, would make the killing murder.['] People v Ericksen, 288 Mich App 192, 196; 793 NW2d 120 (2010). In other words, it is only the fortunate fact of the victim’s survival—not a difference in the defendant’s conduct—that renders him guilty of AWIM as opposed to murder. Given that a defendant may not justify homicide with a claim of duress, it logically follows that a defendant cannot justify conduct intended to kill, simply because he or she failed in the effort. Instead, faced with the choice between saving oneself and endeavoring to kill an innocent third person, the law recognizes that one “should risk or sacrifice his own life instead.” See Dittis, 157 Mich App at 41; see also State v Mannering, 112 Wash App 268, 276; 48 P3d 367 (2002) (allowing duress as a defense to attempted murder but not to murder would be absurd; because “duress is not a defense to murder, it is also not a defense to attempted murder”).

Defendant argues that by failing to instruct the jury on duress relative to the AWIM charge, the trial court effectively allowed for an AWIM conviction absent the need to establish an intent to kill. This argument lacks merit; the trial court specifically instructed the jury that the prosecutor was required to prove beyond a reasonable doubt that there was an intent to kill with respect to the AWIM charge. And the lack of a duress instruction in no way alleviated the prosecution’s burden to establish an intent to kill. In sum, duress is not a defense to AWIM, and, accordingly, the trial court did not err in failing to instruct on duress.