Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 31, 2002
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 118181
MARCEL R. RIDDLE,
Defendant-Appellant.
___________________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
We granted leave in this case to consider whether
defendant is entitled to the reversal of his convictions of
second-degree murder1 and possession of a firearm during the
commission of a felony (felony-firearm)2 on the ground that
1
MCL 750.317.
2
MCL 750.227b.
the trial court denied his request for a jury instruction that
he was not required to retreat before exercising deadly force
in self-defense while in his yard. We affirm.
I. INTRODUCTION
The prosecution contends that Michigan law generally
imposes a “duty to retreat” upon a person who would exercise
deadly force in self-defense, and that the so-called “castle
doctrine”–providing an exception to this duty to retreat when
a person is attacked within his dwelling–does not extend to
the area outside the dwelling. Defendant, on the other hand,
contends that the castle doctrine should be extended to the
curtilage and that he was not required to retreat when he was
assaulted in his backyard.
Because Michigan’s case law has become somewhat confused
with respect to the concepts of retreat and the castle
doctrine, we take this opportunity to clarify these principles
as they apply to a claim of self-defense. We reaffirm today
the following, according to the common-law principles that
existed in Michigan when our murder statute was codified.
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 harm and that it is necessary for him to exercise
2
deadly force.3 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.4
There are, however, three intertwined concepts that
provide further guidance in applying this general rule in
certain fact-specific situations. First, 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.5 In
these circumstances, as 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 when determining if the necessity element of
self-defense is satisfied; instead, he may stand his ground
and meet force with force.6 That is, where it is uncontested
3
See People v Heflin, 434 Mich 482, 502-503; 456 NW2d 10
(1990) (opinion by RILEY , C.J.); People v Lennon, 71 Mich 298,
300-301; 38 NW 871 (1888).
4
Pond v People, 8 Mich 150, 176 (1860); People v Doe, 1
Mich 451, 455-456 (1850).
5
Doe, supra at 455-456; People v Macard, 73 Mich 15, 21
22; 40 NW 784 (1888).
6
People v Kuehn, 93 Mich 619, 621-622; 53 NW 721 (1892);
Macard, supra at 21-22; Brownell v People, 38 Mich 732, 738
(1878); People v Lilly, 38 Mich 270, 276 (1878); Patten v
(continued...)
3
that the defendant was the victim of a sudden and violent
attack, the Court should not instruct the jury to consider
whether retreat was safe, reasonable, or even possible,
because, in such circumstances, the law does not require that
the defendant engage in such considerations.7
Second, Michigan law imposes an affirmative obligation to
retreat upon a nonaggressor8 only in one narrow set of
circumstances: A participant in voluntary mutual combat will
not be justified in taking the life of another until he is
deemed to have retreated as far as safely possible.9 One who
6
(...continued)
People, 18 Mich 313, 330-331 (1869).
7
See Beard v United States, 158 US 550, 564; 15 S Ct 962;
39 L Ed 1086 (1895), stating that the victim of a sudden and
violent attack is “not obliged to retreat, nor to consider
whether he could safely retreat . . . .”
Where, on the other hand, a factual issue has been
presented for the jury’s resolution concerning the
circumstances under which the defendant used deadly force—as
is true in the case at bar—the jury should be instructed
concerning all relevant principles for which evidentiary
support exists.
8
We are not concerned in this case with the use of deadly
force by one who is an initial aggressor (i.e., one who is the
first to use deadly force against the other), as such a person
is generally not entitled to use deadly force in self-defense.
See Heflin, supra at 502-503; People v Townes, 391 Mich 578;
218 NW2d 136 (1974); Perkins & Boyce, Criminal Law (3d ed), pp
1121, 1129-1133. The principles articulated in this opinion
apply solely to those who are otherwise privileged to exercise
deadly force in self-defense.
9
See People v Lenkevich, 394 Mich 117, 120-121; 229 NW2d
298 (1975); Pond, supra at 174-175.
4
is involved in a physical altercation in which he is a willing
participant–referred to at common law as a “sudden affray” or
a “chance medley”–is required to take advantage of any
reasonable and safe avenue of retreat before using deadly
force against his adversary, should the altercation escalate
into a deadly encounter.
Third, regardless of the circumstances, one who is
attacked in his dwelling is never required to retreat where it
is otherwise necessary to exercise deadly force in self
defense. When a person is in his “castle,” there is no safer
place to retreat; the obligation to retreat that would
otherwise exist in such circumstances is no longer present,
and the homicide will be deemed justifiable. This is true
even where one is a voluntary participant in mutual combat.10
Because there is no indication that this “castle doctrine”
extended to outlying areas within the curtilage of the home at
the time of the codification of our murder statute, however,
we decline defendant’s invitation to extend the doctrine in
this manner; we hold instead that the doctrine is limited in
application to the home and its attached appurtenances.11
10
See Pond, supra at 176.
11
We specifically do not address whether a person may
exercise deadly force in defense of his habitation, and our
holding should not be misconstrued to sanction such use of
force as it pertains to the defense of one’s habitation.
Rather, we hold only that a person is not obligated to retreat
(continued...)
5
II. FACTUAL AND PROCEDURAL BACKGROUND
On the evening of August 15, 1997, defendant and two
friends, Robin Carter and James Billingsley, convened at
defendant’s home. The three men were in the backyard just
outside defendant’s house, in the driveway near a detached
garage, when defendant shot Carter in the legs eleven times
with an automatic carbine rifle. After shooting Carter,
defendant immediately drove to the Detroit River, where he
disposed of the rifle. Carter, who did not have a weapon in
his possession, was resuscitated at the scene but died as a
result of the gunshot wounds three days later.
Although the facts in the preceding recitation are
undisputed, at defendant’s trial on charges of first-degree
murder12 and felony-firearm the prosecution and the defense
presented different versions of the events leading to the
shooting. Billingsley testified for the prosecution that
after Carter made a disparaging comment about defendant’s
fiancée, defendant went into the house, came back outside
armed with a rifle, and began firing at Carter. Billingsley
stated that Carter was not armed and did not approach
11
(...continued)
in his dwelling or its attached appurtenances before
exercising deadly force in self-defense if he honestly and
reasonably believes that he is in imminent danger of death or
serious bodily harm. See n 3.
12
MCL 750.316.
6
defendant when he came out of the house with the weapon.
Defendant, on the other hand, testified that he intervened in
an argument between Carter and Billingsley and that he told
Carter, whom he considered to be “the more aggressive one,” to
leave. Seeing a “dark object” in Carter’s hand and believing
it to be a gun, defendant immediately reached for his rifle,
which he testified was in his detached garage. Defendant
stated that he aimed the rifle at Carter’s legs and pulled the
trigger, intending only to scare him.
Defendant requested that the jury be instructed, pursuant
to CJI2d 7.17, that there is no duty to retreat in one’s own
home before exercising self-defense.13 The prosecution
objected, contending that the instruction was not appropriate
because the shooting took place outside the home, in the
curtilage. Although defendant attempted to withdraw his
request for CJI2d 7.17, the trial court proceeded to rule that
the instruction was not appropriate under the circumstances of
13
CJI2d 7.17 provides:
If a person [assaulted the defendant in the
defendant’s own home / forcibly entered the
defendant’s home], the defendant did not have to
try to retreat or get away. Under those
circumstances, the defendant could stand [his]
ground and resist the [attack / intrusion] with as
much force as [he] honestly and reasonably believed
necessary at the time to protect [himself].
7
the case.14 The trial court instead instructed the jury, in
accordance with CJI2d 7.16, as follows:
By law, a person must avoid using deadly force
if he can safely do so. If the defendant could
have safely retreated but did not do so, you can
consider that fact along with all the other
circumstances when you decide whether he went
farther in protecting himself than he should have.
However, if the defendant honestly and
reasonably believed that it was immediately
necessary to use deadly force to protect himself
from an [imminent] threat of death or serious
injury, the law does not require him to retreat.
He may stand his ground and use the amount of force
he believes necessary to protect himself.[15]
The jury returned a verdict of guilty of the lesser offense of
second-degree murder and guilty as charged of felony-firearm.
In his appeal before the Court of Appeals, defendant
argued that the trial court improperly denied his request for
a “no duty to retreat” instruction. The Court of Appeals
panel examined this Court’s decisions in Pond v People, 8 Mich
150 (1860), and People v Lilly, 38 Mich 270 (1878), and held
that defendant had a duty to retreat if safely possible before
exercising deadly force to repel an attack unless he was
inside his dwelling or an inhabited outbuilding within the
curtilage. Because the shooting occurred within the curtilage
14
We assume, therefore, for purposes of this opinion that
defendant’s claim of error was properly preserved, despite
counsel’s offer to withdraw the request for CJI2d 7.17.
15
The jury was also given the general self-defense
standard jury instruction, CJI2d 7.15.
8
but not in an inhabited outbuilding, the panel opined, the
trial court properly refused to instruct the jury that
defendant had no duty to retreat. Unpublished opinion per
curiam, issued October 13, 2000 (Docket No. 212111).
We granted leave to appeal, limited to the issue whether
the trial court committed error requiring reversal in denying
defendant’s request to instruct the jury concerning the lack
of a duty to retreat. 465 Mich 884 (2001). Because we
conclude that the trial court did not err, we affirm
defendant’s convictions.
III. STANDARD OF REVIEW
We are required in this case to determine under what
circumstances a defendant must retreat before exercising
deadly force in self-defense. This presents a question of
law, which we review de novo. People v Hamilton, 465 Mich
526, 529; 638 NW2d 92 (2002); People v Layher, 464 Mich 756,
761; 631 NW2d 281 (2001).
A criminal defendant is entitled to have a properly
instructed jury consider the evidence against him. People v
Rodriguez, 463 Mich 466, 472; 620 NW2d 13 (2000); People v
Mills, 450 Mich 61, 80-81; 537 NW2d 909 (1995). When a
defendant requests a jury instruction on a theory or defense
that is supported by the evidence, the trial court must give
the instruction. Rodriguez, supra at 472-473; Mills, supra at
9
81. However, if an applicable instruction was not given, the
defendant bears the burden of establishing that the trial
court’s failure to give the requested instruction resulted in
a miscarriage of justice. MCL 769.26; Rodriguez, supra at
473-474; People v Lukity, 460 Mich 484, 493-494; 596 NW2d 607
(1999). The defendant’s conviction will not be reversed
unless, after examining the nature of the error in light of
the weight and strength of the untainted evidence, it
affirmatively appears that it is more probable than not that
the error was outcome determinative. MCL 769.26; Rodriguez,
supra at 474; Lukity, supra at 495-496.
IV. ANALYSIS
A. PRINCIPLES OF CONSTRUCTION
Because Michigan’s homicide statutes proscribe “murder”
without providing a particularized definition of the elements
of that offense or its recognized defenses,16 we are required
to look to the common law at the time of codification for
guidance. See Const 1963, art 3, § 7;17 People v Couch, 436
16
The Legislature has bifurcated all murder offenses into
first-degree murder, MCL 750.316, and second-degree murder,
MCL 750.317. The statutory description of these offenses has
changed little since the first Penal Code was enacted in 1846.
See People v Couch, 436 Mich 414, 418-421; 461 NW2d 683 (1990)
(opinion by BOYLE , J.).
17
“The common law and the statute laws now in force, not
repugnant to this constitution, shall remain in force until
they expire by their own limitations, or are changed, amended
(continued...)
10
Mich 414, 418-421; 461 NW2d 683 (1990). Where a statute
employs the general terms of the common law to describe an
offense, courts will construe the statutory crime by looking
to common-law definitions. See Couch, supra at 419, quoting
Morissette v United States, 342 US 246, 263; 72 S Ct 240; 96
L Ed 288 (1952):
“[W]here [a legislature] borrows terms of art
in which are accumulated the legal tradition and
meaning of centuries of practice, it presumably
knows and adopts the cluster of ideas that were
attached to each borrowed word in the body of
learning from which it was taken and the meaning
its use will convey to the judicial mind unless
otherwise instructed. In such case, absence of
contrary direction may be taken as satisfaction
with widely accepted definitions, not as a
departure from them.”
The criminal law, as defined at common law and codified by
legislation, “should not be tampered with except by
legislation,” and this rule applies with equal force to
common-law terms encompassed in the defenses to common-law
crimes. In Re Lamphere, 61 Mich 105, 109; 27 NW 882 (1886).
Therefore, because our Legislature has not acted to change the
law of self-defense since it enacted the first Penal Code in
1846, we are proscribed from expanding or contracting the
defense as it existed at common law.18 We therefore apply the
17
(...continued)
or repealed.”
18
Thus, although we are certainly not oblivious to various
policy concerns that might otherwise affect our analysis were
(continued...)
11
common law as it was understood when the crime of murder was
codified to clarify the concepts of retreat and the castle
doctrine.
B. SELF -DEFENSE AND RETREAT
1. GENERALLY APPLICABLE RULES
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. 40 Am Jur 2d, Homicide, § 138, p 609.
When a defendant accused of homicide claims self-defense,
[t]he question to be determined is, did the
accused, under all the circumstances of the
assault, as it appeared to him, honestly believe
that he was in danger of [losing] his life, or
great bodily harm, and that it was necessary to do
what he did in order to save himself from such
apparent threatened danger? [People v Lennon, 71
Mich 298, 300-301; 38 NW 871 (1888).]
Thus, the 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. See People v Daniels, 192 Mich App 658, 672; 482
NW2d 176 (1991).
18
(...continued)
we not constrained to apply MCL 750.317 to the facts of the
case before us, we leave the task of rendering such policy
judgments to the Legislature.
12
We reaffirm today that the touchstone of any claim of
self-defense, as a justification for homicide, is necessity.
An accused’s conduct in failing to retreat, or to otherwise
avoid the intended harm, may in some circumstances–other than
those in which the accused is the victim of a sudden, violent
attack–indicate a lack of reasonableness or necessity in
resorting to deadly force in self-defense. For example, where
a defendant “invites trouble” or meets non-imminent 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.19
However, as Judge Cardozo cautioned in People v Tomlins,
213 NY 240, 245; 107 NE 496 (1914), “[g]eneral statements to
the effect that one who is attacked should withdraw, must be
read in the light of the facts that led up to them.” Thus,
19
See People v Walters, 223 Mich 676, 682-683; 194 NW 538
(1923) (jury was properly instructed that killing was not
justifiable if the defendant “renewed the affray” after the
deceased abandoned it); People v Meert, 157 Mich 93, 95, 100
101; 121 NW 318 (1909) (opining that the defendant, who
carried a revolver to a saloon because he “was expecting” that
he would encounter his victim there, did not act reasonably
when he walked up to the victim and shot him because “[r]eady
means of escape were at hand . . . and no danger was to be
apprehended”); People v Robinson, 152 Mich 41, 47; 115 NW 997
(1908) (instruction that the defendant, who assaulted a man in
a barroom, had a duty to “retire” if he could safely do so
unless he was attacked with a deadly weapon or was in the
defense of property or others did not constitute error
requiring reversal because the defendant was in a place of
perfect safety when he assaulted the victim).
13
the generally applicable element of necessity contemplates
three reticulate rules that are applicable in certain specific
factual scenarios.
2. THREE DEPARTURES FROM THE GENERAL RULE OF NECESSITY
a. NO DUTY TO RETREAT FROM SUDDEN , VIOLENT ATTACK
Although Michigan’s common law that was codified imposes
a duty to avoid using deadly force, it is clear that retreat
is never required in circumstances similar to those delineated
in Beard v United States, 158 US 550; 15 S Ct 962; 39 L Ed
1086 (1895),20 the classic American “no duty to retreat” case:
when a person is violently attacked and it does not reasonably
appear that it would be safe to retreat.
The statement of the governing principles of self-defense
as set forth in People v Doe, 1 Mich 451, 456-457 (1850), is
indicative of the common-law rules that were in place when the
Legislature enacted Michigan’s murder statutes just four years
earlier. These principles remain apropos today and have not
20
[If a] defendant . . . had at the time
reasonable grounds to believe, and in good faith
believed, that the deceased intended to take his
life, or do him great bodily harm, he was not
obliged to retreat, nor to consider whether he
could safely retreat, but was entitled to stand his
ground, and meet any attack made upon him with a
deadly weapon, in such way and with such force as,
under all the circumstances, he, at the moment,
honestly believed, and had reasonable grounds to
believe, were necessary to save his own life, or to
protect himself from great bodily injury. [Beard,
supra at 564 (emphasis supplied).]
14
been modified since their implicit codification more than 150
years ago:
First. That a man who, in the lawful pursuit
of his business, is attacked by another under
circumstances which denote an intention to take
away his life, or do him some enormous bodily harm,
may lawfully kill the assailant, provided he use
all the means in his power, otherwise, to save his
own life or prevent the intended harm; such as
retreating as far as he can, or disabling his
adversary without killing him, if it be in his
[21]
power.
Secondly. When the attack upon him is so
sudden, fierce and violent, that a retreat would
not diminish, but increase his danger, he may
instantly kill his adversary without retreating at
all.
Thirdly. When from the nature of the attack,
there is reasonable ground to believe that there is
a design to destroy his life, or commit any felony
upon his person, the killing of the assailant will
be excusable homicide, although it should
afterwards appear that no felony was intended.
[Emphasis supplied.]
The rules of self-defense as provided in Doe state the
obvious: If it is possible to safely avoid an attack then it
is not necessary, and therefore not permissible, to exercise
deadly force against the attacker. However, one is never
obliged to retreat from a sudden, fierce, and violent attack,
because under such circumstances a reasonable person would, as
a rule, find it necessary to use force against force without
retreating. The violent and sudden attack removes the ability
21
Thus, where a threatened attack is not imminent, the
person being threatened may not lawfully exercise deadly force
in self-defense.
15
to retreat.22 Where immediate danger to life or great bodily
harm is threatened upon the innocent victim, he “cannot be
required when hard pressed, to draw very fine distinctions
concerning the extent of the injury that an infuriated and
reckless assailant may probably inflict.” People v Brownell,
38 Mich 732, 738 (1878). As Justice Holmes reasoned in Brown
v United States, 256 US 335, 343; 41 S Ct 501; 65 L Ed 961
(1921), “detached reflection cannot be demanded in the face of
an uplifted knife.” There, Justice Holmes concluded that “it
is not a condition of immunity that one in that situation
should pause to consider whether a reasonable man might not
think it possible to fly with safety . . .” Id., citing Rowe
v United States, 164 US 546, 558; 17 Sup Ct 172; 41 L Ed 547
(1896).23
22
To hold that an innocent person has a duty to retreat
in the face of a violent assault would be tantamount to
holding such a person “responsible for having brought . . .
necessity upon himself, on the sole ground that he failed to
fly from his assailant when he might have safely done so[.]”
Erwin v State, 29 Ohio St 186, 199 (1876). Indeed, the
possibility of safe retreat cannot serve as a factor in
determining the gravity or mortality of the peril. To so hold
would be to require that the assailed “avoid the necessity by
retreating before his assailant.” Palmer v State, 9 Wy 40; 59
P 793, 795 (1900).
23
Similarly, Wharton stated: “A man can only kill in self
defense from necessity, whether he has a right to stand his
ground, or it is his duty to retreat; but in the one case he
can have that necessity determined in view of the fact that he
has a right to stand his ground, and on the other hand [where
he is involved in the sudden affray] he must show, as one
feature of the necessity, that he has retreated to the wall.”
(continued...)
16
In People v Macard, 73 Mich 15; 40 NW 784 (1888), this
Court reaffirmed that Michigan never recognized at common law
an obligation to retreat from a sudden and violent attack
before codification. In Macard, the defendant and his
neighbor had a history of mutual animosity. The defendant was
standing in or near a public road in front of his home when
his neighbor began advancing toward him from across the
street, carrying a gun and making threats. When the neighbor
continued to advance despite the defendant’s warning that he
stop, the defendant shot him. At his trial for murder, the
defendant asserted self-defense and argued that retreating
would have exposed him to greater danger. This Court reversed
the defendant’s conviction of manslaughter and granted him a
new trial on the basis that the trial court erred in
instructing the jury that the defendant was justified in
shooting “‘[i]f there was no reasonable opportunity or means
of avoiding what the [defendant] anticipated as an assault
with this deadly weapon”:
Go which way [the defendant] would, he would
only the more surely expose himself to the deadly
aim of his antagonist. In such case, about the
only question for the jury to determine was, did
the [defendant] in good faith believe this to be
his true situation? If he did, the jury should
have been told [he] was fully justified. . . . To
hold otherwise would be to destroy the right of
self-defense. It was not necessary for the
23
(...continued)
Wharton, Homicide (3d ed), § 298, p 478.
17
[defendant], if without fault, on being suddenly
assaulted by the use of a deadly weapon upon the
public highway or upon his own premises, to retreat
before using his weapon. An instant of delay might
have been at the expense of his life, and the law
requires no man to run such risks. [Id. at 21-22
(emphasis supplied).]
b. THE DUTY TO RETREAT : SUDDEN AFFRAY OR CHANCE MEDLEY
Michigan law imposes an affirmative obligation to
retreat, where safely possible, in one narrow set of
circumstances: where a defendant–who is not in his “castle”–
is voluntarily engaged in mutual, nondeadly combat that
escalates into sudden deadly violence. This represents the
only type of situation in which the English common law imposed
upon a defender an affirmative duty to “retreat to the wall,”
Pond, supra at 174-175; Erwin, supra at 195; Perkins & Boyce,
Criminal Law (3d ed), pp 1121-1123, 1126, and it is apparent
from our case law that Michigan adhered to this rule at the
time of the codification of our murder statute.
As explained by Professors Perkins and Boyce, by
reference to Foster, Crown Law (1762), the use of deadly force
in self-defense at English common law was considered in light
of the different positions of the parties involved. The first
scenario involved a defendant who was without fault:
One, entirely free from fault, is the victim
of an assault which was murderous from the
beginning. He is under no obligation to retreat .
. . but may stand his ground, and if he reasonably
believes it necessary to use deadly force to save
himself from death or great bodily harm, he is
18
privileged to do so. [Perkins & Boyce, supra at
1121 (emphasis supplied).]
Thus, at common law the innocent victim of a murderous assault
had no affirmative duty to retreat; instead, if he reasonably
believed that it was necessary under the circumstances to
exercise deadly force, he could kill his assailant in self
defense. This rule is consistent with the generally
applicable rules of self-defense as codified in Michigan’s
murder statutes, as discussed above. See Macard, supra at 21
22; Lennon, supra at 300-301; Brownell, supra at 738; Pond,
supra at 177-178.
However, an affirmative obligation to retreat applied to
a voluntary participant in mutual combat:
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. [Perkins & Boyce, supra
at 1121 (emphasis supplied).]
Thus, the original concept of a “‘duty to retreat to the wall’
applied not to the innocent victim of a murderous assault, but
only to the culpable participant of a chance-medley.” Perkins
19
& Boyce, supra at 1225.24 This principle was recognized by
this Court in Pond, supra at 175-176:
In [cases in which a defensive homicide
occurred in a sudden affray], the original assault
not being with a felonious intent, and the danger
arising in the heat of blood on one or both sides,
the homicide is not excused unless the slayer does
all which is reasonably in his power to avoid the
necessity of extreme resistance, by retreating
where retreat is safe, or by any other expedient
which is attainable. He 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.
Accordingly, we conclude that at the time of the codification
of our first murder statute in 1846, the common-law rule in
Michigan recognized only one instance in which an affirmative,
specific duty to retreat applied, namely, when the defendant
was the voluntary participant in mutual combat.25
c. THE “CASTLE ” DOCTRINE
i. RETREAT IS NOT A FACTOR IN ONE ’S DWELLING
It is universally accepted that retreat is not a factor
in determining whether a defensive killing was necessary when
24
It appears clear enough to us that “[c]ourts which
adopted [a] ‘no-retreat rule’ [were] frequently under the
false impression that this required departure from the English
common law.” Perkins & Boyce, supra at 1137.
25
Perkins refers to a third situation that is not relevant
to the matter at hand: “One who starts an encounter with a
murderous assault upon another, or who willingly engages in
mutual combat with malice aforethought . . . has forfeited all
right of self-defense during that contest.” Perkins & Boyce,
supra at 1121. That is consistent with the Michigan rule that
one who is an aggressor may not avail himself of the defense.
See Heflin, supra at 509. See also n 8.
20
it occurred in the accused’s dwelling:
Regardless of any general theory to retreat as
far as practicable before one can justify turning
upon his assailant and taking life in self-defense,
the law imposes no duty to retreat upon one who,
free from fault in bringing on a difficulty, is
attacked at or in his or her own dwelling or home.
Upon the theory that a man’s house is his castle,
and that he has a right to protect it and those
within it from intrusion or attack, the rule is
practically universal that when a person is
attacked in his own dwelling he may stand at bay
and turn on and kill his assailant if this is
apparently necessary to save his own life or to
protect himself from great bodily harm. [40 Am Jur
2d, § 167, p 636.]
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.’” People v Godsey, 54 Mich App 316, 319; 220 NW2d
801 (1974) (citations omitted). Moreover, in a very real
sense a person’s dwelling is his primary place of refuge.
Where a person is in his “castle,” there is simply no safer
place to retreat.
ii. THE REACH OF THE CASTLE DOCTRINE
Defendant, who was outside his home in the driveway or
yard between the home and a detached garage at the time of the
homicide, contends that he was wholly excused from any
obligation to retreat because he was in his “castle.” We
disagree and hold that the castle doctrine, as it applied in
this state and as was codified in our murder statute in 1846,
applies solely to the dwelling and its attached appurtenances.
21
Although many courts have extended the castle exception to
other areas,26 we conclude that there is simply no basis in the
case law of this state, contemporaneous with the enactment of
our initial murder statute, to justify extending the rule in
this manner.
It is unknown whether the English common law applied the
castle doctrine–which, as we have noted, was relevant only to
the voluntary participant in a nondeadly encounter–to areas
beyond the dwelling. As noted by Professors Perkins and
Boyce, “the scope of [the] special privilege granted to one so
far at fault might have been limited to the actual building
[but this] is mere speculation.” Id. at 1134-1135. Because
the only indication we have of the castle doctrine as it
applied in Michigan at the time of the codification of our
murder statute is that it applied “in the dwelling,” Pond,
26
The majority of jurisdictions employing the castle
doctrine have extended the doctrine to the curtilage
surrounding the home. See Dressler, Understanding Criminal
Law (3d ed), § 18.02[C][3], p 228. The doctrine has also been
extended in several jurisdictions to numerous areas away from
the dwelling: cars, businesses, and homes owned by third
parties, to name a few. Because the Legislature codified the
common-law rules as they existed in 1846, this Court has no
authority to act on different policy determinations concerning
the expansion of the castle doctrine. Thus, we leave it to
the Legislature to decide whether there are other places in
which a defendant’s failure to retreat cannot be considered as
a factor in determining whether it was necessary for him to
exercise deadly force in self-defense. We note that many
states have legislatively addressed the self-defense and
retreat issues that are presented in this case. See, e.g.,
Model Penal Code, § 3.04; Ala Code, § 13A-3-23 (1982); Conn
Gen Stat, § 53a-19.
22
supra at 176 (emphasis supplied), we lack the authority to now
extend this rule to areas beyond “the dwelling” itself.
Defendant contends that this Court’s statements in Pond
indicate that Michigan’s common law extended the castle
doctrine to the curtilage surrounding the home. However, we
agree with the prosecution’s contention that Pond did not in
any way purport to extend the self-defense castle exception to
the curtilage area surrounding the dwelling.27 With respect
to self-defense, this Court explained in Pond that
[t]he danger resisted must be to life, or of
serious bodily harm of a permanent character; and
it must be unavoidable by other means. Of course,
we refer to means within the power of the slayer,
so far as he is able to judge from the
circumstances as they appear to him at the time.
27
The Pond Court held that, for the purpose of the
defendant’s claim that he killed the victim in resisting a
violent and forcible felony upon a dwelling, an outlying net
house was “a dwelling or part of the dwelling” of the
defendant because it was near the dwelling house and was used
as a permanent dormitory for his servants. Id. at 181-182;
see also id. at 164-167. Because this Court considered the
net-house to be a dwelling not for the purpose of the self
defense castle doctrine but instead for the purpose of a
completely different defense, this holding is not relevant to
our inquiry. Moreover, whether this outlying building would
have been considered a “dwelling” for the purpose of self
defense is not an inquiry that aids us in determining whether
the castle doctrine applies to open areas within the
curtilage. Because the Court of Appeals cited Pond for the
proposition that the self-defense castle exception–providing
that no person is required to retreat within his dwelling
before exercising self-defense–extends to “inhabited
outbuildings,” we wish simply to point out that (1) Pond does
not stand for this proposition and (2) as the case at bar does
not involve an inhabited outbuilding, we need express no
opinion concerning whether the castle doctrine would apply to
such a building.
23
A man is not, however, obliged to retreat if
assaulted in his dwelling, but may use such means
as are absolutely necessary to repel the assailant
from his house, or to prevent his forcible entry,
even to the taking of life. But here, as in the
other cases, he must not take life if he can
otherwise arrest or repel the assailant. [Emphasis
supplied.]
This statement of the castle rule, taken from a case issued
quite contemporaneously with the enactment of our murder
statute, provides no basis from which to conclude that the
rule applied anywhere but “in [the] dwelling,” that is, an
inhabited building and its attached appurtenances.28
Pond, therefore, does not allow us to conclude that the
castle doctrine, so far as it was a part of the common law of
this state when our murder statute was enacted, extended to
the curtilage surrounding the dwelling. Instead, by providing
essentially the sole indication, contemporaneous with the
enactment of the murder statute, concerning whether and to
what extent any duty to retreat existed in our common law,
Pond establishes that the castle doctrine applies in this
State only to a residence. Thus, for example, while the
castle doctrine applies to all areas of a dwelling–be it a
28
Contemporaneous dictionary definitions wholly support
our conclusion. See, e.g., Worcester, Dictionary of the
English Language (Brewer and Tileston, 1864), defining
“dwelling” as “[h]abitation; place of residence; residence;
abode; dwelling-place”; Webster’s American Dictionary of the
English Language (1828) (accord); The Oxford English
Dictionary (1989), providing examples of the usage of the word
“dwelling” from the years 1340 through 1863 as meaning “[a]
place of residence; a dwelling-place, habitation, house.”
24
room within the building, a basement or attic, or an attached
appurtenance such as a garage, porch or deck–it does not apply
to open areas in the curtilage that are not a part of a
dwelling.
Defendant additionally argues that Lilly provides a basis
for extending the castle exception to the curtilage. In
Lilly, the defendant was attacked at night on his property in
a passageway between his house and a new house that he was
constructing. The defendant stabbed and killed the attacker,
a farmhand whom he had recently discharged and who had earlier
that day threatened the defendant with extreme personal
violence. At the defendant’s trial for murder, the trial
court instructed the jury as follows:
“If you find that . . . [the defendant] could
have saved himself from all serious harm by
retreating or calling for assistance, and the
defendant so knew or believed, but that he did not
do so; but stood his ground and resisted [the
farmhand], and in such resistance killed [him],
such killing would not be justifiable or excusable.
“If [the defendant] believed that [the
farmhand] came to his premises on the evening of
the homicide with the intention of seeking a combat
with him, and that he sought him for that purpose
and the defendant so knew, then it was [the
defendant’s] duty to have avoided [him], and to
have avoided such combat by all reasonable means
within his power, and if he chose to stand up and
resist the assault when he might have avoided it, .
. . such killing would not be justifiable.” [Id.
at 275.]
This Court set aside the defendant’s conviction for
manslaughter and ordered a new trial, holding that the jury
25
instructions improperly suggested to the jury that the facts
would warrant findings that were not supported by the
evidence, “especially that defendant did not make reasonable
efforts to avoid deceased and avert his attack.” Id.
Furthermore, this Court held, the instructions were improper
because they
indicated to the jury . . . [that] it was incumbent
upon [the defendant] to fly from his habitation
where his wife and children were, in order to
escape danger instead of resisting the aggressor.
Such is not the law. The jury should have been
instructed in effect that if they were satisfied
that [the defendant] being at his own house had
reason to believe and did believe from [the
farmhand’s] previous and present language, manner
and actions, and what had already taken place, that
it was necessary to inflict the wounds he did
inflict . . . to save his own life or to protect
himself from danger of great bodily harm, he was
excused.
. . . The charge was inconsistent with the
view here explained, and it conveyed the idea that
if help was within call and that defendant so
believed, then his act was not lawful self-defense.
[Id. at 275-276.]
We do not agree with defendant’s assertion that Lilly
abrogates the necessity element of self-defense where the
accused kills an assailant within the curtilage of his
dwelling. Instead, Lilly reaffirms that the fundamental
inquiry with respect to a claim of self-defense is whether the
defendant reasonably believed that it was necessary to utilize
deadly force against his aggressor. Lilly further establishes
that the defendant was not required to leave his premises–
26
thereby subjecting his wife and children to danger in his
absence–or to seek aid from third parties. Lilly simply did
not involve the castle exception.
In short, there is no basis in our case law for supposing
that Michigan ever recognized an extension of the doctrine
beyond the inhabited “dwelling” itself at the time the common
law rules were codified. Instead, we adhere to this Court’s
formulation of the doctrine in Pond, supra at 176, that “[a]
man is not . . . obliged to retreat if assaulted in his
dwelling” (emphasis supplied). Thus, the castle doctrine is
relevant only to acts of self-defense that take place in the
dwelling; the doctrine has no application to “a conflict
outside the home.” People v Stallworth, 364 Mich 528, 535;
111 NW2d 742 (1961).29
C. APPLICATION
In this case, defendant requested that the jury be
instructed in accordance with CJI2d 7.17, which is titled “No
Duty to Retreat While in Own Dwelling” and which provides that
a person assaulted in his own home does “not have to try to
29
Accordingly, in Stallworth, this Court held that the
jury’s rejection of the defendant’s claim of self-defense,
resulting in a verdict of guilty of manslaughter, was not
against the great weight of the evidence where there was
testimony that the killing took place on the sidewalk outside
the defendant’s dwelling: This testimony portrayed “a conflict
outside the home where it would have been possible for the
jury to conclude that defendant might have retreated to avoid
further trouble.” Id. at 535 (emphasis supplied).
27
retreat or get away,” but may “stand his ground and resist the
attack.” The trial court denied defendant’s request and
instead instructed the jury in accordance with CJI2d 7.16,
which is titled “Duty to Retreat to Avoid Using Deadly Force.”
We hold that defendant was not entitled to the requested
instruction. Defendant was not in his dwelling or an attached
appurtenance when he killed Carter. He was outside his home
in the yard.
Nevertheless, as we have explained, defendant was
entitled to an instruction that adequately conveyed to the
jury that he was not required to retreat if it was necessary
for him to exercise deadly force under the circumstances as
they reasonably appeared to him. While we suggest that CJI2d
7.16 be revised to further comport with the principles
expressed in this opinion, the language of the instruction
accurately conveyed to defendant’s jury that the baseline
inquiry is necessity:
By law, a person must avoid using deadly force
if he can safely do so. If the defendant could
have safely retreated but did not do so, you can
consider that fact along with all the other
circumstances when you decide whether he went
farther in protecting himself than he should have.
However, if the defendant honestly and
reasonably believed that it was immediately
necessary to use deadly force to protect himself
from an [imminent] threat of death or serious
injury, the law does not require him to retreat.
He may stand his ground and use the amount of force
he believes necessary to protect himself.
28
This instruction was properly given under the circumstances of
this case. Pursuant to this instruction, the jury was
permitted only to consider whether defendant could have safely
retreated under the circumstances as they reasonably appeared
to him. The second portion of this instruction further
emphasized that there is never a duty to retreat if the
accused reasonably and honestly believes that he is in
imminent harm and that it is necessary to exercise deadly
force.30 Moreover, the jury was given a comprehensive general
self-defense instruction (CJI2d 7.15) that further explained
the relevant principles and additionally permitted the jury to
“consider how the excitement of the moment affected the choice
the defendant made” in exercising deadly force.
V. CONCLUSION
We hold that the cardinal rule, applicable to all claims
of self-defense, is that the killing of another person is
30
There might be circumstances in which an instruction
permitting the jury to consider a defendant’s failure to
retreat would be improper; for instance, if the defendant was
inside his dwelling when he was attacked or if the undisputed
evidence established that he was suddenly and violently
attacked. See, e.g., Macard, supra. In such a case there
would be no basis for an instruction allowing the defendant’s
failure to retreat to be considered in determining whether he
acted in lawful self-defense. In the instant case, the
parties disputed whether defendant had any reason whatsoever
to believe that he was in danger. Thus, it was properly
within the province of the jury to determine whether defendant
honestly and reasonably believed that it was necessary to
exercise deadly force.
29
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. As part and
parcel of the “necessity” requirement that inheres in every
claim of lawful self-defense, evidence that a defendant could
have safely avoided using deadly force is normally relevant in
determining whether it was reasonably necessary for him to
kill his assailant. However, (1) one who is without fault is
never obligated to retreat from a sudden, violent attack or to
retreat when to do so would be unsafe, and in such
circumstances, the presence of an avenue of retreat cannot be
a factor in determining necessity; (2) our law imposes an
affirmative “duty to retreat” only upon one who is at fault in
voluntarily participating in mutual nondeadly combat; and (3)
the “castle doctrine” permits one who is within his dwelling
to exercise deadly force even if an avenue of safe retreat is
available, as long as it is otherwise reasonably necessary to
exercise deadly force.
Defendant was not entitled to a “castle exception”
instruction in this case because he was in his yard and not in
his dwelling when he used deadly force. However, defendant
was entitled to an instruction that adequately conveyed to the
jury that, although he was required to avoid using deadly
force if possible, he had no obligation to retreat if he
30
honestly and reasonably believed that he was in imminent
danger of great bodily harm or death and that it was necessary
to use deadly force in self-defense. The standard jury
instruction that was given adequately imparted these
principles. Accordingly, we vacate the decision of the Court
of Appeals in part and affirm defendant’s convictions for the
reasons expressed in this opinion.
CORRIGAN , C.J., and WEAVER , TAYLOR , and MARKMAN , JJ.,
concurred with YOUNG , J.
CAVANAGH and KELLY, JJ., concurred in the result only.
31