Jury instruction on self-defense; MCL 780.972; Pointing a loaded gun at another; “Deadly force” & “nondeadly force”; People v Pace; People v Dillard; Duty to retreat; Ineffective assistance of counsel; Failure to seek to correct the jury instructions; Reasonableness of counsel’s performance; Probability of a different outcome

Holding that the jury was improperly instructed on defendant’s claim of self-defense, and his trial counsel was ineffective for failing to seek to correct that error, the court reversed his felonious assault and felony-firearm convictions and remanded for a new trial. The core issue was whether his act of pointing a loaded gun at the victim “constituted the use of deadly force or the use of nondeadly force. Defendant’s trial counsel, the prosecution, and the trial court apparently assumed the act to constitute the use of deadly force, so they agreed the jury should be instructed regarding the use of deadly force in self-defense or in defense of others. The trial court read M Crim JI 7.15, 7.16, and 7.21, which correspond with MCL 780.792(1). [It] did not read M Crim JI 7.22, which corresponds to MCL 780.972(2). Consequently, the jury was instructed defendant could only successfully claim self-defense or defense of his son if he ‘honestly and reasonably believe[d] that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself [] or to’ his son.” It was also instructed that it could consider whether he could have safely retreated. He argued, and the court agreed, that “the instructions were erroneous because he merely threatened to use deadly force, and a threat of deadly force is not the use of deadly force.” The court concluded that, under the circumstances, he did not use deadly force. Thus, the jury instructions as to the use of deadly force were incorrect. “Instead, the jury should have been instructed on the law regarding the use of nondeadly force.” Defendant also argued that it was improperly instructed as to “his duty to retreat, or, more specifically, his lack of a duty to retreat.” The court agreed in part. The jury was instructed that he “would not be required to retreat if he ‘ha[d] an honest and reasonable belief that the use of deadly force [was] necessary to prevent eminent [sic] death, great bodily harm or a sexual assault.’ Thus, defendant was held to a higher standard than specified by MCL 780.972(2),” which only required him “to have anticipated ‘the imminent unlawful use of force.’ As a consequence, the instructions as given increased the burden upon the defense and lightened the burden upon the prosecution.” The court held that these errors were not harmless. Further, “it was objectively unreasonable for counsel to have refrained from objecting to the jury instructions and for failing to seek correct” them. In addition, there was “‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”