by David M. Reutter

The Supreme Court of Michigan held that defense counsel was ineffective for failing to request a defense-of-others jury instruction for defendants who were on trial for home invasion and felonious assault.  

Jeremiah and Micheline Leffew moved to Michigan in September 2017 and moved in with Jeremiah’s biological mother, Donna Knezevich, and her partner of 25 years, Lisa Seibert. A few months before that Knezevich and Seibert opened their relationship to include Michael Porter.

On November 14, 2017, Knezevich and Seibert got into a “little squabble” that got “pretty heated.” Police arrived, and Seibert went to Porter’s home on Knezevich’s insistence. A few days later, Knezevich sought to reconcile. She called Siebert and proposed marriage. Seibert accepted and asked Knezevich to pick her up.

Jeremiah drove Knezevich and Micheline to Porter’s house. He honked the horn twice and waited for Seibert to emerge, but she did not after several minutes. Porter called 911 and later claimed he did so because Jeremiah had previously lunged at him with a knife. The various parties’ account of the incident diverged at that point.

According to Micheline and Jeremiah, when Seibert failed to emerge, they walked to the front door with Knezevich. Seibert responded affirmatively to Micheline’s query of whether she wanted to leave. Micheline recalled Porter saying, “Give me a few minutes.” Jeremiah recalled “Porter saying, “Lisa’s not coming.” Porter then slammed the door shut.

Looking through a large window next to the door, Jeremiah and Micheline watched Porter grab Seibert by her shoulders and drag her into the back room. Jeremiah testified he saw Seibert momentarily break free, only for Porter to grab her and throw her to the floor. Both Jeremiah and Micheline said Porter pushed Seibert into a chair, and she cried out for help.

Upon hearing Seibert’s screams, Micheline and Jeremiah ran to the back of the house where there was a sliding glass door and a separate backdoor. As Jeremiah was looking through the sliding glass door to see Porter holding Seibert to the chair as she screamed while he was yelling for Porter to stop hurting his stepmother, there was a loud boom caused by Micheline kicking in the backdoor.

The moment she stepped into Porter’s home to rescue Seibert, Porter smashed a heavy ashtray over her head, knocking her to the ground and triggering a seizure. Jeremiah saw his wife face down and bleeding when he came to the door. Porter then punched him repeatedly, so Jeremiah grabbed a knife on the counter, held it threateningly, and asked Porter to leave his family alone and let them go. He then helped his wife and drove his family to the hospital after Porter backed down.

In Porter’s version of events, he claimed that he asked for time to speak to Seibert and helped her into the chair after she had slumped to the floor. He admitted hitting Micheline with the ashtray when the back door flew open. He said Jeremiah attacked him, and Micheline jumped on his back, yelling “Let’s kill him, let’s kill him.” Jeremiah then rifled through the drawers to find a knife to threaten Porter. He stopped only when Knezevich called out to her son.

Seibert’s direct testimony downplayed the nature of Porter’s behavior, but she was impeached on cross-examination by defense counsel, who confronted her with her statements to police immediately after the incident in which she described being physically assaulted and kept inside the house against her will by Porter.

A jury convicted Micheline of third-degree home invasion, and she was sentenced to five months in jail and two years’ probation. Jeremiah was convicted of first-degree home invasion and felonious assault, as a third time offender. He was sentenced to 25-40 years for home invasion and 2-8 years for felonious assault.

On appeal, Jeremiah and Micheline argued that their respective defense attorneys should have requested a defense-of-others jury instruction. The Court of Appeals disagreed and affirmed.

On review in the Michigan Supreme Court, the Court noted that as far back as 1860, it recognized the common law defense-of-others affirmative defense. Pond v. People, 8 Mich 150 (1860). In the century and a half since Pond, Michigan courts have continued to recognize that defense. See People v. Curtis, 18 N.W. 385 (1884), and subsequent line of cases.

Although that defense generally applies to assaultive crimes, the Court stated that it can also apply to nonassaultive crimes in Michigan and other states. See People v. Dupree, 788 N.W.2d 399 (Mich. 2010) (holding defense of others may be invoked against the nonassaultive crime of felon in possession of a firearm). The Court of Appeals acknowledged this application, but it determined that MCL 780.972(2) of the Self-Defense Act, MCL 780.971 et seq., which states that invocation of defense-of-others requires the defendant to be somewhere “he or she has a legal right to be,” precludes Jeremiah and Micheline from invoking the defense since “a person who has entered a home without permission from the lawful owner” isn’t anywhere he has a legal right to be.  

The Court rejected the lower court’s reasoning and conclusion, stating that § 780.972(2) isn’t relevant to the current case. That section is simply a required precondition to standing one’s ground under the Self-Defense Act. But the defendants aren’t arguing that they had a right to stand their ground in Porter’s home, i.e., the statutory duty to retreat isn’t at issue. Rather, the Court explained that their assertion of defense-of-other is based on common law, not statute. The Court noted that in conceding this point the Attorney General effectively explained why the Court of Appeals’ position is incorrect and would raise public-policy issues by stating it can’t be the law that “someone might be excused from taking the life of a kidnapper if they reasonably and sincerely believed a hostage’s life was in imminent danger, but they could not be excused from crossing the threshold of the kidnapper’s home in order to kill that kidnapper.”

Consequently, the Court ruled that the Court of Appeals eared in concluding that defense-of-others is unavailable for nonassaultive crimes. Rather, the Court instructed that the “applicability of the defense must be determined on the particular facts of each case, not the charges the prosecution brings.”

Next, the Court addressed the issue of whether Jeremiah and Micheline were entitled to the defense-of-others jury instruction. It concluded that they were, so their attorneys’ failure to request it constituted deficient performance and thus satisfied the first prong of the ineffective assistance of counsel test under Strickland v. Washington, 466 U.S. 668 (1984).

An instruction on an affirmative defense is not automatic upon request. The defendant has the burden of producing “some evidence from which the jury can conclude that the essential elements of [the defense] are present.” People v. Lemons, 562 N.W.2d 447 (Mich. 1997). This burden is not a heavy one. United States v. Johnson, 416 F.3d 464 (6th Cir. 2005). “Even when the supporting evidence is weak or of doubtful credibility its presence requires an instruction on the theory of defense.” United States v. Garner, 529 F.2d 962 (6th Cir. 1976).

Thus, the Court concluded that Jeremiah and Micheline met their burden of putting forth “some evidence” that they reasonably believed that it was necessary to enter Porter’s home to prevent imminent harm to Seibert.

The Court then turned to the prejudice prong of Strickland and concluded that but for their attorneys’ deficient performance there was a reasonable probability that the outcome of the trial would have been different. It stated that “[b]oth defense attorneys presented evidence and argument leading the jury to an acquittal under a defense-of-others theory only to deprive jurors of a judge-given map to reach that destination. Their failures to request the defense-of-others instruction that supported their trial strategy was objectively unreasonable,” and so they satisfied the prejudice prong of Strickland. Thus, the Court held Jeremiah and Micheline’s defense counsel provided ineffective assistance, and the deficient performance prejudiced them.

Accordingly, the Court reversed the Court of Appeals’ judgment and remanded for a new trial. See: People v. Leffew, 2022 Mich. LEXIS 166 (2022). 

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