Ineffective assistance of counsel; Failure to request a self-defense instruction as to felony-firearm charges; M Crim JI 11.34(c); Remedy

The court held that defendant established both prongs of his ineffective assistance of counsel claim for failure to request a self-defense instruction as to the felony-firearm charge predicated on second-degree murder. But he was not entitled to relief on the felony-firearm conviction predicated on FIP because he did not establish prejudice. Thus, the court vacated his “conviction and sentence for the felony-firearm count predicated on second-degree murder” and remanded for a new trial in that respect but it otherwise affirmed his convictions and sentences. He was acquitted of second-degree murder. The prosecution conceded that trial counsel was ineffective for failing to request a self-defense instruction as to the felony-firearm charges. Defense “counsel requested—and the trial court provided—several self-defense instructions,” but defense counsel failed to “request M Crim JI 11.34(c) (self-defense as to felony-firearm)[.]” The prosecution agreed with defendant on appeal that “the evidence supported that instruction and that counsel’s failure to request it was objectively unreasonable. The defense theory was that defendant acted in self-defense, and evidence supported that theory.” The court held that under the circumstances, the “failure to request a self-defense instruction as to the felony-firearm charges fell below an objective standard of reasonableness” He also established prejudice, with the result that his “conviction for the felony-firearm charge predicated on second-degree murder must be vacated.” He asked the court “to vacate both felony-firearm convictions” and remand with instructions to dismiss the charges with prejudice. The court declined to do so, noting that “the appropriate remedy is to vacate the affected conviction and remand for a new trial.” In addition, he was “not entitled to relief on the felony-firearm conviction predicated on” FIP because he did not establish prejudice. While the jury was instructed on self-defense as to both the murder and FIP charges, it rejected that defense as to the latter, ultimately convicting” him of FIP. “That verdict necessarily reflects that the jury did not credit defendant’s claim that his possession of the firearm was justified.”