by Douglas Ankney

In a case of first impression for the Supreme Court of Michigan, the Court announced that the affirmative defense of duress may be asserted in a prosecution for felony murder if such defense is available for the underlying felony, overruling People v. Gimotty, 549 N.W.2d 39 (Mich. Ct. App. 1996), and People v. Etheridge, 492 N.W. 2d 490 (Mich. Ct. App. 1992).

Tiffany Lynn Reichard agreed to help her boyfriend, Michael Beatty, rob Matthew Cramton. Reichard knocked on Cramton’s door. When Cramton came to the door, Beatty entered with a gun to rob him while Reichard acted as a lookout. Beatty exited the home carrying a knife and covered in blood. Reichard drove Beatty to his mother’s home and helped him dispose of his clothes. Cramton died of multiple stab wounds.

Reichard was charged with open murder under a felony-murder theory with armed robbery as the underlying felony in violation of MCL 750.316. Prior to trial, Reichard filed a motion to present a duress defense. Reichard claimed that Beatty had physically and sexually assaulted her in the past and that she aided him in the robbery because she was under duress. She contended that because she committed the underlying felony under duress, she could not be guilty of felony murder. The trial court granted the motion allowing Reichard to present her duress defense, and the prosecutor appealed.

Relying on People v. Henderson, 854 N.W. 2d 234 (Mich. Ct. App. 2014), a panel of the Court of Appeals reversed. The panel reasoned that if this were simply a second-degree murder case with Reichard’s liability based upon an aiding and abetting theory, both she and Beatty would be guilty of second-degree murder, and the duress defense would be unavailable pursuant to Henderson. Since it was the existence of the predicate felony that raised the liability of Beatty from second-degree murder to first-degree murder under the felony-murder doctrine and Reichard’s role of an aider and abettor remained the same, her criminal responsibility should also be raised to first-degree murder. 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.”

The Supreme Court of Michigan ordered oral argument in response to Reichard’s application for leave to appeal 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.”

The Court observed that MCL 750.316 provides, in pertinent part, that a person is guilty of first-degree murder when the murder is committed in the perpetration of, or attempted perpetration of, several enumerated felonies, including robbery. While in common law the felony-murder doctrine recognized the intent to commit the underlying felony to be sufficient mens rea for murder, Michigan’s felony-murder statute requires the malice to be separately shown. People v. Aaron, 299 N.W. 2d 304 (Mich. 1980). To convict a defendant under the 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.” Id. Thus, MCL 750.316 operates only to elevate second-degree murder to first-degree murder, if the murder was committed in the commission, or attempted commission, of one of the enumerated crimes. Id.

A defense of duress requires a defendant to produce some evidence to support a conclusion that: (1) there was threatening conduct sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm, (2) the conduct in fact caused such fear in the mind of the defendant, (3) the fear was operating upon the defendant’s mind while the alleged crime was occurring, and (4) the defendant committed the alleged crime to avoid the threatened harm. People v. Lemons, 562 N.W. 2d 447 (Mich. 1997).

But historically, duress was not permitted as an affirmative defense to murder. This was premised on the theory that it was better for a person to allow himself or herself to be killed rather than to kill an innocent person to avoid being killed. 4 Blackstone, Commentaries on the Laws of England, p. 30. The Court of Appeals first recognized the principle in People v. Dittis, 403 N.W. 2d 94 (Mich. Ct. App. 1987), in which it held that “duress is not a valid defense to homicide in Michigan.” And in Gimotty, the defendant was found guilty of felony murder. The Court of Appeals found that Gimotty was not entitled to an instruction on duress because “[i]t is well settled that duress is not a defense to homicide.”

But the Supreme Court of Michigan had never addressed whether duress was a defense to felony murder. And the Court observed that the conclusion in Gimotty made little sense in light of the rationale for precluding the defense of duress for other types of murder. That is, in other types of murder a person is faced with the choice of sparing his or her own life or that of an innocent – and the law expects that person to spare the life of an innocent.  For example, if a perpetrator points a loaded gun at a man and tells the man he will be killed unless the man pushes his wife off a bridge, the law expects the man to accept being killed rather than kill his wife.

But in felony murder, the defendant is faced with a choice of being killed or committing some lesser felony for the defense of duress to arise. The lesser felony does not include the killing of an innocent. In Tully v. State, 730 P.2d 1206 (Okla. 1986), the Oklahoma Court of Criminal Appeals explained:

“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 the lesser felony, had reason to believe his life or the life of another was immediately in danger unless he participated.”

The Michigan Supreme Court also observed that disallowing the defense of duress could result in illogical and unacceptable conclusions. For example, if the underlying felony alone was charged, the defendant may be acquitted by duress. But if the underlying felony and the felony murder were charged together, the defendant could be acquitted of the underlying felony based on duress but convicted of the felony murder.

The Court concluded that duress may be asserted as an affirmative defense to felony murder if it is a defense to the underlying felony. The Court also explicitly overruled Gimotty and Etheridge to the extent that they held duress is not a defense to felony murder.

Accordingly, the Court reversed the judgment of the Court of Appeals and remanded to the trial court for proceedings not inconsistent with the Court’s opinion and with directions that the trial court must provide duress instructions if such instructions are requested by Reichard and if a rational view of the evidence supports a conclusion she aided Beatty with the robbery out of duress. See: People v. Reichard, 2020 Mich. LEXIS 621 (2020). 

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