Jury instruction; Self-defense; M Crim JI 7.18

Concluding that the trial court did not err “by providing the jury with an instruction that was consistent with M Crim JI 7.18[,]” the court affirmed “defendant’s conviction. But because the amendment of the notice to seek an enhanced sentence was contrary to law,” it remanded for resentencing. Specifically, it ordered that defendant “be resentenced as a third-offense habitual offender.” He was convicted of voluntary manslaughter. He was sentenced as a fourth-offense habitual offender to 25 years to 25 years and one day. Defendant averred that the “instruction was improper because it presumes that defendant was the initial aggressor.” His claim of error failed for two reasons. “First, the instruction does not ‘assume’ or presume anything. It merely instructs the jury that if it finds that a defendant who initiated an assault with a dangerous weapon, then that person cannot claim self-defense unless the person ceases the assault and communicates the desire to make peace to the other person. If that other person nevertheless continues the fight in light of the defendant’s desire to make peace, then and only then is the defendant allowed to assert self-defense. The instruction leaves it to the jury’s determination as to whether the defendant initiated an assault and whether the defendant used a dangerous or deadly weapon.” Second, an “instruction is proper if it is supported by the evidence.” Defendant relied “on his self-serving testimony that he was acting in self-defense, which thereby made him not the initial aggressor. Notably, the jury was not required to believe or accept that testimony.” The court found that “the jury had little choice but to disregard defendant’s testimony because it was at odds with what was seen on the video of the events that evening.” It concluded that “because the evidence supports a finding that defendant was the initial aggressor with a dangerous weapon, the jury instruction was proper. Importantly, although the evidence supports such a finding, the jurors ultimately were free to decide whether the circumstances described in the jury instruction applied.”