Jury instruction that self-defense is a defense to voluntary manslaughter; Ineffective assistance of counsel; Failure to request a self-defense instruction as to felony-firearm; People v Kilgore

The court concluded that the trial court denied defendant-Josey “his right to present a defense to the shooting when it denied his motion for a self-defense jury instruction regarding voluntary manslaughter. Trial counsel denied Josey his right to the effective assistance of counsel by failing to request a self-defense jury instruction regarding felony-firearm.” The court could not “conclude that the former error was harmless beyond a reasonable doubt or that the latter error did not prejudice Josey.” As such, it reversed his convictions for voluntary manslaughter and felony-firearm and remanded for a new trial. Josey first argued “that the trial court’s denial of his request to instruct the jury that self-defense is a defense to voluntary manslaughter denied him his right to present a defense.” The record evidence did “not support the trial court’s reason for determining that the omitted instruction was harmless.” Further, the court concluded that “the trial court’s failure to provide the instruction was not harmless. Because Josey presented evidence that he acted in self-defense, he was entitled to a self-defense jury instruction.” The court noted that “the trial court’s jury instructions informed the jury that it could conclude that Josey’s actions were justified with respect to murder, but not with respect to voluntary manslaughter.” Thus, the instructions denied him “his constitutional right to present a defense.” The court noted that “the jury may have determined that Josey acted in self-defense, but that self-defense was not a defense to voluntary manslaughter.” Josey next argued “that his trial counsel rendered ineffective assistance of counsel by failing to request a self-defense instruction with respect to felony-firearm.” The court held that it did “not appear that trial counsel’s failure to request a self-defense jury instruction with respect to felony-firearm constituted sound trial strategy.” It could not “envision a strategic reason for failing to request the instruction. Similar to Kilgore, defense counsel’s failure to request the instruction was objectively unreasonable given that Josey asserted a defense of self-defense at trial. Further, when combined with the trial court’s error regarding the voluntary manslaughter self-defense jury instruction, it is reasonably probable that the result of the proceeding would have been different.” The court could not “consider trial counsel’s error independently from the trial court’s error. Because Josey was entitled to a jury instruction informing the jury that self-defense was a complete defense to voluntary manslaughter, we must review [his] ineffective-assistance claim in light of that error. If properly instructed, the jury may have determined that [he] acted in self-defense and acquitted him of voluntary manslaughter. If it so concluded, it likewise may have acquitted him of felony-firearm.”