Ineffective assistance of counsel; Jury instructions; Defense of property; People v Shaffran; Citizen’s arrest; MCL 764.16; People v Hampton; Lesser included offense of brandishing a firearm in public; MCL 750.234e

The court held that defense counsel was not ineffective for failing to request jury instructions on defense of property, citizen’s arrest, or brandishing a firearm in public because none of those instructions was legally warranted on the facts presented. Defendant chased three teenage girls walking on a public road near his father’s property, got out of a vehicle with a handgun equipped with a flashlight, fired into the air, ordered them to “get on the ground,” and threatened to shoot anyone else who might be present. A jury convicted him of felonious assault, reckless use of a firearm, unlawful imprisonment, and felony-firearm. He argued on appeal that counsel should have sought additional jury instructions. The court noted that counsel is not ineffective for failing to request an instruction the trial court could not properly give. It first held that a defense-of-property instruction was unsupported because, although a person “may use such force as is necessary for the protection of his property,” that rule does not permit the use of deadly force or conduct endangering human life, and defendant’s decision to restrain the girls and fire a gun “falls well short of the limited right to use force in defense of property.” The court next held that a citizen’s-arrest instruction had no basis because MCL 764.16 authorizes a private arrest only in specified felony circumstances, while the suspected conduct here was, at most, trespass, and there was not “a shred of evidence” the girls committed a felony. The court also held that brandishing in public is not a necessarily included lesser offense of felonious assault because brandishing contains a public-place element that felonious assault does not, making it a cognate offense only. Affirmed.