People of Michigan v. Tiffany Lynn Reichard ( 2020 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Syllabus Bridget M. McCormack
Chief Justice Pro Tem:
David F. Viviano
Stephen J. Markman
Brian K. Zahra
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
PEOPLE v REICHARD
Docket No. 157688. Argued on application for leave to appeal October 2, 2019. Decided
March 30, 2020.
Tiffany L. Reichard was bound over to the Jackson Circuit Court on a charge of open
murder under a felony-murder theory for having aided and abetted her boyfriend in an armed
robbery during which he stabbed a man to death. Defendant moved to present evidence that her
boyfriend had physically abused her and that she had participated in the armed robbery under
duress. The court, Thomas D. Wilson, J., granted the motion. The prosecution filed an
interlocutory application for leave to appeal, and the Court of Appeals, SAWYER, P.J., and
BORRELLO and SERVITTO, JJ., reversed and remanded, holding that duress may not be used as a
defense to first-degree felony murder when the claim of duress involves the defendant’s
participation in the underlying felony. 323 Mich. App. 613 (2018). Defendant sought leave to
appeal in the Supreme Court, which ordered and heard oral argument on whether to grant the
application or take other action. 503 Mich. 910 (2018).
In a unanimous opinion by Justice VIVIANO, the Supreme Court, in lieu of granting leave
to appeal, held:
Duress may be asserted as an affirmative defense to felony murder if it is a defense to the
underlying felony. People v Gimotty, 216 Mich. App. 254 (1996), and People v Etheridge, 196
Mich. App. 43 (1992), were overruled to the extent they held that duress is not an affirmative
defense to felony murder.
1. Under MCL 750.316(1)(b), a person who commits murder in the perpetration of or
attempt to perpetrate robbery, among other specified felonies, is guilty of first-degree murder. To
convict a person of felony murder under this provision, the prosecution must show that the
defendant acted with intent to kill or to inflict great bodily harm or with a wanton and willful
disregard of the likelihood that the natural tendency of the defendant’s behavior is to cause death
or great bodily harm. Thus, MCL 750.316(1)(b) operates only to elevate a second-degree murder
to first-degree murder if it was committed in the commission of one of the enumerated felonies.
2. To merit an instruction on the common-law affirmative defense of duress, a defendant
bears the burden of producing some evidence from which a jury could conclude that the threatening
conduct was sufficient to create in the mind of a reasonable person the fear of death or serious
bodily harm, the conduct in fact caused such fear of death or serious bodily harm in the mind of
the defendant, the fear or duress was operating upon the mind of the defendant at the time of the
alleged act, and the defendant committed the act to avoid the threatened harm. Regarding the first
factor, the threatening conduct or act of compulsion must be present, imminent, and impending,
and the threat must have arisen without the negligence or fault of the person who insists upon it as
a defense. Historically, duress was not permitted as an affirmative defense to murder, and
Michigan has recognized this common-law rule. Other jurisdictions have also recognized the rule
or adopted it by statute.
3. The Michigan Supreme Court has not directly addressed whether duress is a defense to
felony murder, but the Michigan Court of Appeals has held that it is not on the ground that duress
is not a defense to homicide. However, the rationale for precluding the use of duress as an
affirmative defense for other types of murder is that when someone has a choice between sparing
his or her own life or that of an innocent, the law expects that individual to spare the innocent
person’s life. But felony murder does not present that choice. Instead, in the felony-murder
context, the individual faces a choice between whether to spare his or her own life or aid in a lesser
felony, i.e., one that does not include as an element the killing of an innocent. Moreover, holding
that duress may not be asserted as an affirmative defense to felony murder could lead to illogical
and unacceptable results: if the underlying felony alone were charged, duress could be used as an
affirmative defense; but, when they are charged together, a defendant might be acquitted of the
underlying felony on the basis of duress, but then be found guilty of felony murder. The fact that
MCL 750.316(1)(b) separately requires malice does not mean that duress cannot be an affirmative
defense to felony murder because a successful defense would negate the aggravator element—i.e.,
commission of the underlying crime—by showing that the defendant was justified in committing
the underlying felony. With the aggravator element negated, a prosecutor would still be able to
proceed against the defendant on the lesser included offense of second-degree murder if the
evidence supported that charge.
4. The Court of Appeals’ judgment was reversed, and the case was remanded to the trial
court. On remand, the trial court must provide a duress instruction if such an instruction is
requested by defendant and if a rational view of the evidence supports the conclusion that
defendant aided the robbery out of duress.
Reversed and remanded for further proceedings.
©2020 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
OPINION Bridget M. McCormack
Chief Justice Pro Tem:
David F. Viviano
Stephen J. Markman
Brian K. Zahra
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
FILED March 30, 2020
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 157688
TIFFANY LYNN REICHARD,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
VIVIANO, J.
The issue in this case is whether duress is an affirmative defense to a charge of
felony murder. For the reasons below, we hold that duress may be asserted as an
affirmative defense to felony murder if it is a defense to the underlying felony.
I. FACTS
Defendant is charged with open murder for assisting her boyfriend, Michael Beatty,
in an armed robbery that resulted in the stabbing death of the victim, Matthew Cramton.
According to the evidence presented at the preliminary examination, defendant agreed to
help Beatty conduct a robbery by knocking on the door of Cramton’s home. When
Cramton came to the door, Beatty entered the home with a gun to rob him. Defendant
acted as a lookout while Beatty was inside. When Beatty left Cramton’s home, he was
covered in blood and carrying a knife. Defendant then drove Beatty to his mother’s house
and helped him dispose of his clothing. Cramton died from multiple stab wounds.
Prior to trial, defendant filed a motion to present a duress defense to the felony-
murder charge. Defendant claimed that Beatty had physically and sexually abused her in
the past and that she aided him in the armed robbery that resulted in Cramton’s death
because she was under duress. Therefore, because defendant committed the underlying
felony under duress, she contends that she cannot be guilty of felony murder. The trial
court granted the motion, ruling that defendant would be permitted to present her duress
defense.
The prosecutor appealed, and the Court of Appeals reversed. In deciding that duress
cannot be asserted as a defense to felony murder, the Court of Appeals relied on People v
Henderson, 306 Mich. App. 1, 5; 854 NW2d 234 (2014), which held that duress is not
available as a defense to aiding and abetting murder. The panel reasoned:
It is the existence of the predicate felony that raises the principal’s
liability from second-degree murder to first-degree murder. We fail to see
why aiding and abetting the murder itself should disallow the duress defense,
while aiding and abetting the predicate felony would allow for it. That is, if
this were simply a second-degree murder case but the facts otherwise the
same, with defendant’s liability being based upon an aiding and abetting
theory, both defendant and the principal would be guilty of second-degree
murder, and the duress defense would be unavailable to defendant. With the
addition of the predicate felony, the principal’s liability is raised to first-
degree murder. Yet defendant’s role as an aider and abettor has remained
the same, so her criminal responsibility should also be raised to first-degree
2
murder. Simply put, in both cases she aided and abetted a crime that resulted
in the taking of a human life.[1]
The Court of Appeals also posited that, to convict defendant under an aiding and abetting
theory, the prosecutor would need to show “(1) that she intended to aid in the charged
offense, or (2) that she knew that the principal intended to commit the charged offense, or
(3) that the charged offense was a natural and probable consequence of the crime that she
intended to aid and abet.” 2 Thus, the Court of Appeals reasoned:
If the prosecutor is able to make this showing, then defendant will have
intentionally or knowingly participated in a homicide or, at a minimum,
participated in a crime for which homicide was a natural and probable
consequence. Therefore, to allow the duress defense in this context would,
in fact, allow it to be used as a defense to murder.[3]
Consequently, the Court of Appeals held “that the trial court erred by granting
defendant’s motion to raise duress as a defense to the murder charge, including the felony-
murder theory.” 4 Defendant then sought leave to appeal in this Court. We ordered oral
argument on the application, directing the parties to address “whether the Court of Appeals
correctly determined that duress is not an available defense to the charge of felony murder
under any circumstances.” 5
1
People v Reichard, 323 Mich. App. 613, 617; 919 NW2d 417 (2018).
2
Id. at 618.
3
Id. at 619.
4
Id.
5
People v Reichard, 503 Mich. 910, 910 (2018).
3
II. STANDARD OF REVIEW
“Whether common law affirmative defenses are available for a statutory crime and,
if so, where the burden of proof lies are questions of law.” 6 As such, they are reviewed de
novo. 7
III. ANALYSIS
A. FELONY MURDER
Defendant was charged with open murder under a felony-murder theory with armed
robbery as the underlying felony. 8 MCL 750.316 provides, in part:
(1) . . . [A] person who commits any of the following is guilty of first
degree murder and shall be punished by imprisonment for life without
eligibility for parole:
* * *
(b) Murder committed in the perpetration of, or attempt to perpetrate,
arson, criminal sexual conduct in the first, second, or third degree, child
abuse in the first degree, a major controlled substance offense, robbery,
carjacking, breaking and entering of a dwelling, home invasion in the first or
6
People v Dupree, 486 Mich. 693, 702; 788 NW2d 399 (2010).
7
Id.
8
Defendant was charged pursuant to MCL 767.71, which provides that “[i]n all indictments
for murder and manslaughter it shall not be necessary to set forth the manner in which nor
the means by which the death of the deceased was caused; but it shall be sufficient in any
indictment for murder to charge that the defendant did murder the deceased . . . .” The
offense of felony murder is set forth in MCL 750.316(1)(b), which is discussed in more
detail below. The offense of armed robbery is set forth in MCL 750.529, which provides
that “[a] person who engages in conduct proscribed under [MCL 750.530] and who in the
course of engaging in that conduct, possesses a dangerous weapon . . . , is guilty of a felony
punishable by imprisonment for life or for any term of years. If an aggravated assault or
serious injury is inflicted by any person while violating this section, the person shall be
sentenced to a minimum term of imprisonment of not less than 2 years.”
4
second degree, larceny of any kind, extortion, kidnapping, vulnerable adult
abuse in the first or second degree under [MCL 750.145n], torture under
[MCL 750.85], aggravated stalking under [MCL 750.411i], or unlawful
imprisonment under [MCL 750.349b].
At common law, the felony-murder doctrine “recognize[d] the intent to commit the
underlying felony, in itself, as a sufficient mens rea for murder.” 9 By contrast, under our
felony-murder statute, malice has to be separately shown. 10 As in every murder case, to
convict a person of felony murder under this statute, “it must be shown that he acted with
intent to kill or to inflict great bodily harm or with a wanton and willful disregard of the
likelihood that the natural tendency of his behavior is to cause death or great bodily
harm.” 11 Thus, MCL 750.316(1)(b) operates only to elevate a second-degree murder to
9
People v Aaron, 409 Mich. 672, 717; 299 NW2d 304 (1980). See also id. at 689-698
(discussing the historical development of the common-law felony-murder doctrine).
10
Id. at 733 (holding that under the Michigan felony-murder statute, the mental element of
murder is not satisfied by proof of the intention to commit the underlying felony, but
instead must be separately shown).
11
Id.; see also People v Dumas, 454 Mich. 390, 397; 563 NW2d 31 (1997) (opinion by
RILEY, J.) (noting that after Aaron, “the people must prove one of the three intents that
define malice in every murder case”); id. at 414 (BOYLE, J., dissenting) (“The teaching of
Aaron is that malice, with regard to a homicide, may not be imputed from the underlying
felony.”); People v Nowack, 462 Mich. 392, 401; 614 NW2d 78 (2000), quoting People v
Carines, 460 Mich. 750, 758-759; 597 NW2d 130 (1999) (“ ‘The elements of felony murder
are: (1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or
to create a very high risk of death or great bodily harm with knowledge that death or great
bodily harm was the probable result [i.e., malice], (3) while committing, attempting to
commit, or assisting in the commission of any of the felonies specifically enumerated in
[the statute . . . ].’ ”).
5
first-degree murder if it was committed in the commission of one of the enumerated
felonies. 12
B. DURESS
Defendant seeks to present a duress defense. “Duress is a common-law affirmative
defense.” 13 To merit a duress instruction, a defendant bears the burden of producing some
evidence from which the jury could conclude the following:
“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.”[14]
Regarding the first factor, “[T]he threatening conduct or act of compulsion must be
‘present, imminent, and impending . . . ,’ and . . . the threat ‘must have arisen without the
negligence or fault of the person who insists upon it as a defense.’ ” 15
12
Aaron, 409 Mich. at 721. One author has referred to these kinds of statutes as “felony
aggravator statutes.” Binder, The Origins of American Felony Murder Rules, 57 Stan L
Rev 59, 141 (2004). Michigan was not alone in adopting a statute of this type. Id. (noting
that felony aggravator statutes were enacted by 22 states, including Arkansas, Connecticut,
Delaware, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts,
Michigan, Nebraska, New Hampshire, North Carolina, Ohio, Pennsylvania, Tennessee,
Virginia, Washington, West Virginia, and Wyoming).
13
People v Lemons, 454 Mich. 234, 245; 562 NW2d 447 (1997).
14
Id. at 247, quoting People v Luther, 394 Mich. 619, 623; 232 NW2d 184 (1975).
15
Lemons, 454 Mich. at 245, quoting People v Merhige, 212 Mich. 601, 610; 180 N.W. 418
(1920).
6
Historically, duress was not permitted as an affirmative defense to murder. In the
seventeenth century, Sir Matthew Hale wrote:
[I]f a man be desperately assaulted, and in peril of death, and cannot
otherwise escape, unless to satisfy his assailant’s fury he will kill an innocent
person then present, the fear and actual force will not acquit him of the crime
and punishment of murder, if he commit the fact; for he ought rather to die
himself, than kill an innocent[.][16]
Blackstone, nearly a century later, explained the rule as follows:
Another species of compulsion or necessity is what our law calls
duress per minas; or threats and menaces, which induce a fear of death or
other bodily harm, and which take away for that reason the guilt of many
crimes and misdemeanors; at least before the human tribunal. . . . This
however seems only, or at least principally, to hold as to positive crimes, so
created by the laws of society; and which therefore society may excuse; but
not as to natural offences, so declared by the law of God, wherein human
magistrates are only the executioners of divine punishment. And therefore
though a man be violently assaulted, and hath no other possible means of
escaping death, but by killing an innocent person; this fear and force shall
not acquit him of murder; for he ought rather to die himself, than escape by
the murder of an innocent.[17]
The Court of Appeals first recognized the rule in People v Dittis, 157 Mich. App. 38, 41;
403 NW2d 94 (1987), in which the Court of Appeals held that “duress is not a valid defense
16
1 Hale, History of the Pleas of the Crown, p 51.
17
4 Blackstone, Commentaries on the Laws of England, p 30.
7
to homicide in Michigan.” And it has repeatedly recognized the rule in subsequent cases. 18
Other jurisdictions have also recognized the common-law rule or adopted it by statute. 19
18
See, e.g., People v Young, 120 Mich. App. 645, 653; 327 NW2d 329 (1982) (BEASLEY,
J., dissenting) (stating that “duress is never a defense to murder”); People v Feldmann, 181
Mich. App. 523, 532; 449 NW2d 692 (1990) (“The prosecution met its burden of disproving
defendant’s duress defense beyond a reasonable doubt. . . . As for defendant’s murder
charges, coercion was not a viable defense.”); People v Travis, 182 Mich. App. 389, 392;
451 NW2d 641 (1990) (“Duress is not a defense to homicide[.]”); People v Etheridge, 196
Mich. App. 43, 56; 492 NW2d 490 (1992) (“However, duress is not a valid defense to
homicide.”); People v Moseler, 202 Mich. App. 296, 299; 508 NW2d 192 (1993) (rejecting
defendant’s claim that she should have been afforded a duress defense based on Dittis when
convicted of involuntary manslaughter); People v Henderson, 306 Mich. App. 1, 5; 854
NW2d 234 (2014) (“[I]t is well established that duress is not a defense to homicide.”). But
see People v Rolston, 51 Mich. App. 146, 148; 214 NW2d 894 (1974) (holding that the
defendant’s acquittal of murder, which resulted after the defendant presented a duress
defense, prevented further prosecution for other crimes arising out of the same criminal
transaction).
We note that several treatises state more precisely that duress is not an affirmative
defense to murder or intentional homicide, as opposed to homicide generally. See, e.g., 2
LaFave, Substantive Criminal Law (3d ed), Duress, § 9.7(b) (“[D]uress is no defense to the
intentional taking of life by the threatened person . . . .”); 2 Robinson, Criminal Law
Defenses, Duress, § 177(g) (“If a legislature concludes that no pressure is sufficient to
cause the reasonable citizen to commit murder, a rule barring a duress excuse for murder
is sound.”); 40 Am Jur 2d, Homicide, § 107 (“It is generally held that neither duress,
coercion, nor compulsion are defenses to murder . . . .”); 40 CJS, Homicide, § 181 (“The
rule encompasses denial of the defense to all forms of murder, including homicides
resulting from an intent to do grievous bodily harm, as well as an actual intent to kill and
seems to include all other offenses where an intent to kill is an essential element.”). Dittis
is the first Michigan case to state that duress is not a defense to “homicide,” though Dittis
involved first-degree murder. Nevertheless, as stated above, Dittis’s statement has been
applied more broadly. See, e.g., Moseler, 202 Mich. App. at 299 (relying on Dittis to
determine that duress is not a defense to involuntary manslaughter). We overrule Dittis
and its progeny to the extent they purported to adopt this overly broad rule. Because it is
not necessary in the instant case to consider whether duress may be an affirmative defense
to any form of homicide other than felony murder, we do not consider this question further.
19
See 2 Robinson, Criminal Law Defenses, Duress, § 177 (noting that “the common law
exclusion of duress . . . is also prevalent in modern statutes”); id. at n 58 (listing cases and
statutes from 16 states that prohibit the use of duress as an affirmative defense to murder).
8
C. WHETHER DURESS IS AN AFFIRMATIVE DEFENSE TO FELONY MURDER
This Court has not directly addressed whether duress is a defense to felony murder, 20
but the Court of Appeals has considered this argument. In People v Gimotty, 216 Mich
App 254; 549 NW2d 39 (1996), the defendant was convicted of felony murder. A
coperpetrator had gone into a women’s clothing store and stolen six dresses before getting
into defendant’s vehicle, which defendant was driving. The police pursued them, and the
defendant got into a fatal collision with a third party. The defendant claimed that he did
not know his coperpetrator planned to steal any items and that his coperpetrator had slapped
him on the head to force him to drive. The Court of Appeals found that no duress
But see MacKool v State, 363 Ark. 295, 302; 213 S.W.3d 618 (2005) (allowing duress as an
affirmative defense to murder on statutory grounds); State v Heinemann, 282 Conn 281,
298; 920 A2d 278 (2007) (same). Additionally, in some states, the fact that a defendant
acted under duress may reduce his or her guilt. See, e.g., Commonwealth v Vasquez, 462
Mass 827, 835; 971 NE2d 783 (2012) (“Although we hereby reject duress as a defense to
deliberately premeditated murder, murder committed with extreme atrocity or cruelty, and
murder in the second degree, we do not foreclose the possibility that, in exceptional and
rare circumstances of duress, justice may warrant reduction of a defendant’s guilt in our
review under G.L. c. 278, § 33E.”).
20
In People v Repke, 103 Mich. 459, 472; 61 N.W. 861 (1895), this Court determined that a
defendant convicted of first-degree murder was not entitled to a duress instruction because
the defendant claimed he was threatened three days before the crime. In support of its
holding, the Court noted that “[t]he necessity which will excuse a man for breach of law
must be instant and imminent.” Id. See also Lemons, 454 Mich. at 247. Although Repke
may be read as implying that duress may be asserted as a defense to felony murder in an
appropriate case, any such implication was not deliberately examined or decided by the
Court and thus carries no precedential weight. See People v Graves, 458 Mich. 476, 480;
581 NW2d 229 (1998), citing People v Jamieson, 436 Mich. 61, 79; 461 NW2d 884 (1990)
(opinion by BRICKLEY, J.) (discussing standards for stare decisis).
9
instruction was warranted because “[i]t is well settled that duress is not a defense to
homicide.” 21
However, Gimotty’s conclusion makes little sense in light of the rationale for
precluding the use of duress as an affirmative defense for other types of murder: that
“though a man be violently assaulted, and hath no other possible means of escaping death,
but by killing an innocent person; this fear and force shall not acquit him of murder; for he
ought rather to die himself, than escape by the murder of an innocent.” 22 That is, when
someone has a choice between sparing his or her own life or that of an innocent, the law
expects that individual to spare the innocent person’s life. But felony murder does not
present that choice. Instead, in the felony-murder context, the individual faces a choice
between whether to spare his or her own life or aid in a lesser felony (i.e., one that does not
include as an element the killing of an innocent).
As the Oklahoma Court of Criminal Appeals explained in Tully v State, 730 P2d
1206, 1210; 1986 OK CR 185 (Okla, 1986):
It is compatible with the common law policy of duress that the defense should
attach where the defendant consented, by duress, only to the commission of
the lesser crime and not to the killing, and, at the time of his participation in
21
Gimotty, 216 Mich. App. at 257, citing Etheridge, 196 Mich. App. at 56; Moseler, 202
Mich. App. at 299; and Travis, 182 Mich. App. at 392. Moreover, in Gimotty, the Court of
Appeals also determined that the defendant could not assert a duress defense to the
underlying felony because he could not show that he was threatened with conduct of
sufficient magnitude to create fear of death or serious injury in the minds of reasonable
persons. Gimotty, 216 Mich. App. at 257.
22
4 Blackstone at 30; see also 1 Hale at 51.
10
the lesser felony, had reason to believe his life or the life of another was
immediately in danger unless he participated.[23]
In McMillan v State, 428 Md 333, 353; 51 A3d 623 (2012), the court similarly explained
that “[Blackstone’s] rationale disappears when the sole ground for the murder charge is
that the defendant participated in an underlying felony, under duress, and the defendant’s
co-felons unexpectedly killed the victim, thereby elevating the charge to felony murder.” 24
Moreover, holding that duress may not be asserted as an affirmative defense to
felony murder could lead to illogical and “unacceptable results.” 25 If the underlying felony
alone were charged, duress could be used as an affirmative defense. But, where they are
charged together, a defendant might be acquitted of the underlying felony on the basis of
duress, but then be found guilty of felony murder.
Our conclusion is supported by courts and commentators alike. The Supreme Court
of Kansas, relying on Tully, concluded “that, where compulsion is a defense to an
underlying felony . . . so that the felony is justifiable, compulsion is equally a defense to
23
Id.
24
Id. (citation and quotation marks omitted). See also Rodriguez v State, 174 So 3d 502,
506-507 (Fla App, 2015), citing McMillan, 428 Md at 353.
The Court of Appeals held that duress is not an affirmative defense to aiding and
abetting in the underlying felony for felony murder because it is not a defense to aiding
and abetting a murder. Reichard, 323 Mich. App. at 617. But the situations are not
analogous. As explained, Blackstone’s rationale is not applicable in the felony-murder
context, in which someone faces a choice between sparing his or her own life or aiding in
a lesser felony. Blackstone’s rationale is applicable though when someone has a choice
between sparing his or her own life or aiding and abetting the murder of an innocent person.
25
McMillan, 428 Md at 354.
11
charges of felony murder.” 26 The Massachusetts Supreme Judicial Court similarly
reasoned, “As duress is available against a charge of armed robbery, . . . it would seem to
follow that it should also apply to armed robbery eventuating in death, i.e., a felony murder,
especially since religious or ethical objections would be felt less strongly here than in a
case of premeditated murder.” 27 And, according to LaFave, “[D]uress is no defense to the
26
State v Hunter, 241 Kan 629, 642; 740 P2d 559 (1987).
27
Commonwealth v Robinson, 382 Mass 189, 201 n 14; 415 NE2d 805 (Mass, 1981).
Indeed, this appears to be the prevailing view. See also Pugliese v Commonwealth, 16 Va
App 82, 95-96; 428 SE2d 16 (1993); State v Gay, 334 NC 467, 491-492; 434 SE2d 840
(1993); People v Serrano, 286 Ill App 3d 485, 490-493; 676 NE2d 1011 (1997); People v
Anderson, 28 Cal 4th 767, 784; 50 P3d 368 (2002); McMillan, 428 Md at 353; Rodriguez,
174 So 3d at 506-507; Doubleday v People, 364 P3d 193, 197-198; 2016 CO 3 (Colo,
2016).
Of the state courts reaching the opposite conclusion, the vast majority are
distinguishable because they have refused to recognize duress as an affirmative defense to
felony murder on statutory grounds. See State v Moretti, 66 Wash 537, 540; 120 P. 102
(1912) (basing its holding on a statute allowing for a duress defense for any crime “except
murder”); State v Encinas, 132 Ariz 493, 496; 647 P2d 624 (1982) (basing its holding on
a statute providing that duress “is unavailable for offenses involving homicide or serious
physical injury”); State v Rumble, 680 S.W.2d 939, 940-941 & n 3 (Mo, 1984) (basing its
holding on a statute providing for a duress defense except “[a]s to the crime of murder”);
Moore v State, 697 NE2d 1268, 1273 & n 2 (Ind Ct App, 1998) (basing its holding on a
statute providing for a duress defense except for “offense[s] against the person”); State v
Proctor, 585 NW2d 841, 843 (Iowa, 1998) (basing its holding on a statute disallowing a
duress defense for “act[s] by which one intentionally or recklessly causes physical injury
to another”). Because Michigan has no similar statute, we find these cases unpersuasive.
The only case we could locate reaching the opposite conclusion without reliance on a
statute is State v Perkins, 219 Neb 491, 499; 364 NW2d 20 (1985). There, the court held,
“The trial court did not err in refusing to instruct as to duress. As established in State v.
Fuller, 203 Neb. 233, 278 N.W.2d 756 (1979), supp. op. 204 Neb. 196, 281 N.W.2d 749,
duress is not a defense to a charge of homicide.” Perkins, 219 Neb at 499. But neither
Perkins nor Fuller, on which Perkins relies, provides any further analysis to support its
holdings. Fuller, 203 Neb at 243 (“Duress or compulsion is no excuse to a charge of
12
intentional taking of life by the threatened person; but it is a defense to a killing done by
another in the commission of some lesser felony participated in by the defendant under
duress.” 28
The prosecution argues that, while duress may be allowed as an affirmative defense
to felony murder under the common-law felony-murder doctrine, it should not be an
affirmative defense under MCL 750.316(1)(b). Specifically, because duress may not be
asserted as an affirmative defense to second-degree murder, and MCL 750.316(1)(b)
operates only to elevate a second-degree murder to first-degree murder if it was committed
in the commission of one of the enumerated felonies, the prosecution urges us to conclude
that duress may not be asserted as a defense to felony murder. 29 However, that conclusion
is a non sequitur. The fact that MCL 750.316(1)(b) separately requires malice does not
mean that duress cannot be an affirmative defense to felony murder since a successful
defense would negate the aggravator element (i.e., commission of the underlying crime),
homicide.”), citing 22 CJS, Criminal Law, § 44, p 135. Therefore, we find Perkins’s
reasoning unpersuasive.
28
2 LaFave, § 9.7(b).
29
See People v Carp, unpublished per curiam opinion of the Court of Appeals, issued
December 30, 2008 (Docket No. 275084), p 6 (“Significantly, felony-murder in Michigan
cannot be established solely by the intent to commit a felony. [Aaron, 409 Mich] at 727.
Rather, the requirement of malice to establish felony-murder is the same as the requirement
of malice to establish second-degree murder; ‘the intent to kill, intent to do great bodily
harm, or wanton and willful disregard of the likelihood that the natural tendency of a
person’s behavior is to cause death or great bodily harm.’ Id. at 727-728. Thus, a finding
of felony-murder necessarily entails a finding of malice to establish second-degree murder.
Given that duress is not a defense to second-degree murder, duress cannot be a defense to
felony-murder.”).
13
by showing that the defendant was justified in committing the underlying felony. 30 With
the aggravator element negated, a prosecutor would still be able to proceed against the
defendant on the lesser included offense of second-degree murder if the evidence supported
that charge. 31 In other words, the defendant’s duress defense to the underlying felony
would only prevent the enhancement of second-degree murder to first-degree murder.
IV. CONCLUSION
In sum, we hold that duress may be asserted as an affirmative defense to felony
murder if it is a defense to the underlying felony. That Michigan has a separate malice
requirement for felony murder does not alter our conclusion. 32 We therefore reverse the
Court of Appeals’ judgment and remand this case to the trial court for proceedings not
inconsistent with this opinion. On remand, the trial court must provide a duress instruction
if such an instruction is requested by defendant and if a rational view of the evidence
supports the conclusion that defendant aided Beatty with the robbery out of duress. 33 We
30
Lemons, 454 Mich. at 247 n 16 (“Although there has been disagreement among
authorities with regard to this issue, we are persuaded that the correct view is that ‘even
though [the defendant] has done the act the crime requires and has the mental state which
the crime requires, his conduct which violates the literal language of the criminal law is
justified because he has thereby avoided a harm of greater magnitude.’ ”), quoting 1
LaFave & Scott, Substantive Criminal Law, § 5.3, p 615 (citations omitted).
31
People v Carter, 395 Mich. 434, 437; 236 NW2d 500 (1975) (“We hold that there were
lesser included offenses to first-degree felony-murder. Second-degree murder is always a
lesser included offense of first-degree murder.”).
32
In its amicus brief, the Prosecuting Attorneys Association of Michigan contends that the
burden of persuasion for duress should be on the defendant. However, because no party
addressed this issue, we decline to reach it.
33
In re Piland, Minors, 503 Mich. 1032, 1033 (2019).
14
also overrule Gimotty, as well as People v Etheridge, 196 Mich. App. 43, 56; 492 NW2d
490 (1992), to the extent they hold that duress is not an affirmative defense to felony
murder.
David F. Viviano
Bridget M. McCormack
Stephen J. Markman
Brian K. Zahra
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
15