People v. Bailey

Order Michigan Supreme Court
Lansing, Michigan

February 2, 2010 Marilyn Kelly,
Chief Justice

139276 Michael F. Cavanagh
Elizabeth A. Weaver
PEOPLE OF THE STATE OF MICHIGAN, Maura D. Corrigan
Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman
Diane M. Hathaway,
v SC: 139276 Justices
COA: 278411
Kent CC: 06-006768-FC
SAMMIE RAY BAILEY, JR.,
Defendant-Appellant.
_________________________________________/

On order of the Court, the application for leave to appeal the May 21, 2009
judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in
lieu of granting leave to appeal, we VACATE that portion of the Court of Appeals
judgment addressing harmless error, and we REMAND this case to the Court of Appeals
for reconsideration of its harmless error analysis for constitutional error under the holding
in Neder v United States, 527 US 1, 15; 119 S Ct 1827; 144 L Ed 2d 35 (1999). In all
other respects, leave to appeal is DENIED, because we are not persuaded that the
remaining questions presented should be reviewed by this Court.

We do not retain jurisdiction.

KELLY, C.J. (concurring).

The Court of Appeals opinion in this case, which was unpublished, persuasively
explained in part II (A) and (B) its rationale for finding that the jury instructions were in
error:

A. Self-Defense Elements

Bailey asserts that the trial court’s “erroneous, muddled, and
confusing” self-defense instructions violated his right to due process by
lessening the prosecutor’s burden of proof.
As a general rule, the killing of another person in self-
defense by one who is free from fault is justifiable homicide
if, under all the circumstances, he honestly and reasonably
believes that he is in imminent danger of death or great bodily
 2

harm and that it is necessary for him to exercise deadly force.
The necessity element of self-defense normally requires that
the actor try to avoid the use of deadly force if he can safely
and reasonably do so, for example by applying nondeadly
force or by utilizing an obvious and safe avenue of retreat.
[People v Riddle, 467 Mich 116, 119; 649 NW2d 30 (2002).]
In addition to these general concepts, the Supreme Court emphasized in
Riddle that “a person is never required to retreat from a sudden, fierce, and
violent attack; nor is he required to retreat from an attacker who he
reasonably believes is about to use a deadly weapon.” Id. (emphasis in
original). “[A]s long as he honestly and reasonably believes that it is
necessary to exercise deadly force in self-defense, the actor’s failure to
retreat is never a consideration,” and “he may stand his ground and meet
force with force.” Id.
In contrast, when a defendant “is voluntarily engaged in mutual,
nondeadly combat that escalates into sudden deadly violence,” the
defendant must retreat. Riddle, supra at 131-132. The Supreme Court in
Riddle explained further the following situation in which an affirmative
obligation to retreat exists:
One who was the aggressor in a chance-medley (an
ordinary fist fight, or other nondeadly encounter), or who
culpably entered into such an engagement, finds that his
adversary has suddenly and unexpectedly changed the nature
of the contest and is resorting to deadly force. This . . . is the
only type of situation which requires ‘retreat to the wall.’
Such a defender, not being entirely free from fault, must not
resort to deadly force if there is any other reasonable method
of saving himself. Hence if a reasonable avenue of escape is
available to him he must take it unless he is in his ‘castle’ at
the time. [Id. at 133 (citation omitted, emphasis in original).]
“Once evidence of self-defense is introduced, the prosecutor bears the
burden of disproving it beyond a reasonable doubt.” People v Elkhoja, 251
Mich App 417, 443; 651 NW2d 408 (2002), vac’d in part on other grounds
467 Mich 916 (2003).
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
 3

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
NW2d 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 NW2d 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 NW2d 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 NW2d 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.
 4

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
 5

presence at this confrontation, without more, did not automatically render
him an “aggressor,” and did not eliminate his ability to claim self-defense.
B. Self-Defense Burden of Proof

Bailey avers that the trial court’s instructions “lowered the
prosecution’s burden of disproving self defense and defense of another”
because the court repeatedly referred to self-defense as a “limited” defense
and failed to specifically instruct the jury that the prosecution bore the
burden of proving that Bailey and Lambeth did not act in self-defense.
The trial court’s instructions regarding the prosecutor’s burden of
disproving self-defense appear in the following excerpt:
The first thing you have to keep in mind is that the
lack of justification has to be proven here. The defendant
doesn’t have to prove justification. The evidence has to
establish the lack of justification. Now, that’s an awkward
way of saying things. It is talking about proving a negative,
which is technically correct, but hard to talk about. Let’s turn
it around and talk about it positively.
Since it has got to be proven beyond a reasonable
doubt, just like you contributed to the murder, that a person
did not kill with justification, I'm going to state it this way: If
there is a realistic possibility, based upon the evidence
presented here, that one or both of the defendants acted in
either self-defense or defense of another person, then we
don’t have a murder, if there was a realistic possibility. If, on
the other hand, it’s not a realistic possibility, no possibility at
all, or even just a mere possibility, just a possibility, not a
realistic possibility, then murder is back on the table, because
then the thing which would eliminate it; justification, doesn’t
exist.
We conclude that the trial court erred by failing to properly instruct
the jury regarding the applicable burden of proof. The trial court’s
instruction that “[t]he defendant doesn’t have to prove justification” is
correct. Had the trial court followed this statement with language similar to
that contained in CJI2d 7.20, the jury would have been more completely
and properly instructed. Instead, the trial court continued, “The evidence
has to establish the lack of justification. Now, that’s an awkward way of
saying things. It is talking about proving a negative, which is technically
correct, but hard to talk about.” During the trial court’s ensuing effort to
clarify the law, the court entirely neglected to inform the jurors that the
prosecutor bore the burden to disprove Bailey’s and Lambeth’s self-defense
 6

claims. [People v Bailey, unpublished opinion per curiam of the Court of
Appeals (on reconsideration), issued May 21, 2009 (Docket No. 278411).]
YOUNG, J. (dissenting).

I dissent from the order in this case and instead would affirm the decision of the
Court of Appeals. The jury instructions properly set forth the correct standards for self-
defense and provocation, and I would affirm the defendant’s convictions on that basis.

Defendant shot and killed Keith Hoffman, a local drug dealer who had recently
stolen money and jewelry from defendant. At issue during trial was whether defendant
acted in self-defense. After a jury convicted defendant of second-degree murder and
felony-firearm, defendant appealed, claiming that his jury instructions were
constitutionally deficient. The Court of Appeals agreed that the jury instructions were
erroneous, but concluded that any error was harmless because it “f[ound] it clear beyond
a reasonable doubt that a properly instructed jury would have rendered the same
verdict.”1

The challenged instructions, when considered in their entirety,2 are not erroneous.
The Court of Appeals determined that the jury instructions failed on two grounds: in
providing erroneous instructions on provocation as negating self-defense and in lowering
the prosecution’s burden of proof on self defense. I will consider each of these claims of
error seriatim.

PROVOCATION

In People v Riddle, this Court articulated when provocation precludes asserting the
justification of self-defense: “the cardinal rule, applicable to all claims of self-defense, is
that the killing of another person is justifiable homicide if, under all the circumstances,
the defendant honestly and reasonably believes that he is in imminent danger of death or
great bodily harm and that it is necessary for him to exercise deadly force.”3 In
discussing the rule, this Court expressly addressed provocation: “For example, where a
defendant ‘invites trouble’. . . 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.”4

1
People v Bailey, unpublished opinion per curiam of the Court of Appeals, May 21,
2009 (Docket No. 278411).
2
See People v Dye, 356 Mich 271, 279 (1959).
3
People v Riddle, 467 Mich 116, 142 (2002).
4
Id., at 127.
 7

Here, the trial court instructed the jury that “a person forfeits self-defense, even if
they’d otherwise have it, have that right to it, if they were the first to use deadly force. . . .
Nor can a person claim self-defense if they provoked the other person into using deadly
force.” The trial court continued:

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. 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.
The Court of Appeals claims that the trial court’s instructions were erroneous: “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.”

However, the trial court concluded its discussion of self-defense by indicating that
the defendant

must fear, actually fear and reasonably fear, that then and there you are
about to be killed or seriously injured, or that someone else is. You’ve got
to actually and reasonably believe that the use of deadly force in response,
is the only way to fend off that imminent threat. . . . And, the defendant, to
have the benefit of the defense, cannot have been the aggressor, which
means the first to use deadly force, a person who provoked it, or one who
did something to set up a situation where deadly force ends up getting used,
and then they in turn get to respond to it and bootstrap into a claim of
defense.

When considered in their entirety, the trial court’s instructions to the jury indicated that
provocation negates a claim of self-defense. The phrase “by their mere presence”
specifically refers to a person “confront[ing] someone” with the intention of
“provok[ing]” violence. In some circumstances, a person’s mere presence may be
sufficiently provocative to eliminate a claim of self-defense. However, the trial court’s
instruction did not, as the Court of Appeals suggests, indicate that a person’s “mere
presence” necessarily “eliminate[s] one’s potential opportunity to invoke a self-defense.”
Ultimately, the trial court’s instruction, when considered in its entirety, correctly
identified the appropriate legal standard.
 8

BURDEN OF PROOF

The Court of Appeals also determined that the trial court erred in articulating the
burden of proof associated with a claim of self-defense. This Court’s precedent holds
that “once the issue of self-defense is injected and evidentially supported, ‘[t]he burden of
proof to exclude the possibility that the killing was done in self-defense, rests on the
prosecution.’”5

Here, the trial court instructed the jury as follows:

The first thing you have to keep in mind is that the lack of
justification has to be proven here. The defendant doesn’t have to prove
justification. The evidence has to establish the lack of justification. Now,
that’s an awkward way of saying things. It is talking about proving a
negative, which is technically correct, but hard to talk about. Let’s turn it
around and talk about it positively.
Since it has got to be proven beyond a reasonable doubt, just like
you contributed to the murder, that a person did not kill with justification,
I’m going to state it this way: If there is a realistic possibility, based upon
the evidence presented here, that one or both of the defendants acted in
either self-defense or defense of another, then we don’t have a murder, if
there was a realistic possibility. If, on the other hand, it’s not a realistic
possibility, no possibility at all, or even just a mere possibility, just a
possibility, not a realistic possibility, then murder is back on the table,
because then the thing which would eliminate it[,] justification, doesn’t
exist.[6]
The trial court’s instructions made it clear that the lack of justification needs to be proven
beyond a reasonable doubt, which is the correct burden of proof. While the trial court’s
attempt at “turn[ing] it around and talk[ing] about [justification] positively” was inartful,
it did not do anything but equate the presence of a “realistic possibility” of justification
with the failure to prove lack of justification beyond a reasonable doubt. Accordingly,
the trial court correctly stated that the prosecutor bears the burden of disproving
justification beyond a reasonable doubt.

5
People v Jackson, 390 Mich 621, 626 (1973), quoting People v Stallworth, 364 Mich
528, 535 (1961).
6
Emphasis added.
 9

CONCLUSION

The trial court did not err in instructing the jury on self defense. Accordingly, the
Court of Appeals need not have engaged in a harmless error analysis. Therefore, I would
affirm the result of the Court of Appeals on the alternative grounds that no error occurred.

WEAVER, J., joins the statement of YOUNG, J.

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
February 2, 2010 _________________________________________
p0126 Clerk