People v. Plozai

E. C. Penzien, J.

(concurring). I reluctantly concur that the defendant’s conviction for first-degree murder must be reversed. I write separately because I do not believe that the harmless error test is inapplicable where an instruction such as that complained of in this case is given. The defense in this case was self-defense. If the jury had been properly instructed on that issue, I would have found the error to be harmless. However, I find the instruction on self-defense to be somewhat confusing on the issue of burden of proof. The somewhat confusing instruction on self-defense, in combination with the erroneous malice instruction, indi*113cates to this writer that the error in the malice instruction was not in fact harmless. However, in a proper factual situation, I believe the harmless error standard is still applicable to an erroneous malice instruction such as was given in this case. See People v Woods, 416 Mich 581; 331 NW2d 707 (1982).