Citation. 253 Mich. App. 317, 654 N.W.2d 651,2002 Mich. App. 1380.
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The Defendant, Jaclyn Louise Kurr (Defendant), killed her boyfriend, Antonio Pena (the victim), in order to protect her unborn babies after he punched her in the stomach twice.
Synopsis of Rule of Law.
Under the defense of others concept, a person may kill a person threatening another if he reasonably believes that that person is in imminent danger of death or serious bodily harm. An unborn fetus, viable or nonviable, is included in the defense of others.
Facts.
The Defendant and the victim had argued on the day of the killing regarding the victim’s cocaine use. The victim then punched the Defendant twice in the stomach. The Defendant warned the victim not to hit her since she was carrying his babies. When the victim approached the Defendant again, she stabbed him in the chest.
Issue.
Did the trial court err in refusing to give a defense of others jury instruction at trial?
Held.
Yes. The failure to give such an instruction deprived the Defendant of her due process right to present a defense. The state of Michigan recognizes that under a defense of others theory, a person may use deadly force if another is threatened with death or serious bodily harm. Michigan also recognizes that a fetus, whether viable or nonviable, is an “other” permitting the Defendant to utilize deadly force if the fetus is threatened.
Discussion.
Under the defense of others concept, a person can essentially step into the shoes of one being threatened with death or serious bodily injury and take the same action that that person is entitled to take under the law, i.e. self-defense. A person can assert defense of others if the “other” is a fetus.
