People v. Gafken

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. THERESA MARIE GAFKEN, Defendant-Appellant.

No. SC 161835

Supreme Court of Michigan

December 29, 2022

Argued on application for leave to appeal October 13, 2022.

Chief Justice: Elizabeth T. Clement Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch

Theresa M. Gafken was convicted following a jury trial in the St Clair Circuit Court of second-degree murder, MCL 750.317. Defendant drove her vehicle at speeds exceeding 100 miles per hour while fleeing the police; she ran a red light and collided with other vehicles, killing one person and severely injuring several others. Defendant was originally charged with one count of second-degree murder and two counts of operating a vehicle while intoxicated (OWI), MCL 257.625(5)(a). Before trial, defendant moved to be allowed to testify that she intended to pull over when the police officer activated his overhead lights and that she did not do so because the passenger sitting behind her, Michael Scandalito, thrust a gun into her ribs and threatened to kill her if she stopped the car. In addition, defendant wanted to testify that Scandalito was on parole and being sought for a parole violation and that he had committed aggravated assault against his mother while using drugs. The prosecution opposed the motion, arguing that defendant should not be allowed to introduce the evidence because it amounted to a duress defense, which was not allowed. The court, Michael L. West J., granted in part and denied in part the motion, concluding that the evidence was not admissible with regard to the second-degree-murder charge but was admissible with regard to the OWI charges. Following that ruling, the prosecution dismissed the two OWI charges, after which defendant moved to allow a duress defense. The court denied the motion, and the jury ultimately convicted defendant of second-degree murder. Defendant appealed. In an unpublished per curiam opinion issued on June 18, 2020 (Docket No. 345954), the Court of Appeals, Murray, C.J., and Jansen and Markey, JJ., affirmed defendant's conviction and sentence. Defendant sought leave to appeal in the Supreme Court, and the Supreme Court ordered and heard oral argument on whether to grant the application or take other action. 508 Mich. 961 (2021).

In an opinion by Justice McCormack, joined by Justices Bernstein Cavanagh, and Welch, the Supreme Court, in lieu of granting leave to appeal, held:

A defendant charged with second-degree murder under a depraved-heart theory has a right to raise the affirmative defense of duress. The elements of second-degree murder are (1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse. Malice may be established in three ways: by showing (1) the intent to kill, (2) the intent to cause great bodily harm, or (3) the intent to do an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm. Murder proved using the third way of showing malice is commonly referred to as depraved-heart murder. A defendant is constitutionally guaranteed the right to a meaningful opportunity to present a complete defense, and duress is a common-law affirmative defense. The defense of duress does not negate any offense element but, rather, excuses the offense. The rationale of the defense of duress is that, for reasons of social policy, it is better that a person, faced with a choice of evils, choose to do the lesser evil (violate the criminal law) in order to avoid a greater evil threatened by another person. Historically, duress was not permitted as an affirmative defense to murder. However, People v Reichard, 505 Mich. 81 (2020), held that duress may be asserted as an affirmative defense to a charge of felony murder if it is a defense to the underlying felony; the historical rationale that a person should die themselves rather than murder an innocent person does not apply to felony murder because the individual in the felony-murder context faces a choice between whether to spare their own life or aid in a lesser felony (that is, one that does not include as an element the killing of an innocent person). The historical rationale is also absent when depraved-heart murder is charged because depraved-heart murder does not present the choice between sparing one's own life or taking the life of an innocent; rather, the choice presented is to lose one's life or commit a lesser felony than intentional murder. In this case, the prosecution charged defendant only under a depraved-heart theory of murder. Because defendant alleged that she chose to do the lesser evil-drive recklessly-the duress defense was available. The trial court's order preventing defendant from raising a duress defense to a second-degree murder charge that relied on a depraved-heart theory of malice was error, and it was not harmless. The denial of the defense, coupled with the trial court's exclusion of any evidence that Scandalito threatened defendant, effectively left defendant with no defense at all.

Court of Appeals judgment reversed; defendant's conviction vacated; and case remanded to the St. Clair Circuit Court.

Justice Welch, joined by Justice Bernstein, concurring, agreed with the majority that duress is available as a common-law defense to second-degree murder when the accused is charged and prosecuted under the depraved-heart theory of malice; however, she wrote separately for two reasons. First, Justice Welch believed it was important to acknowledge that Michigan's Constitution gives the Michigan Supreme Court the final say as to the common law of Michigan regardless of the choices made by other jurisdictions. Recent scholarship has challenged longstanding assumptions about the historical scope of the common-law duress defense in English courts. Moreover, Michigan courts have no obligation to adopt all aspects of English common law. Second, Justice Welch wrote separately to draw attention to the fact that several questions about the scope and contours of the duress defense as applied to depraved-heart murder were left unresolved by the majority opinion, including who bears the burdens of proof and persuasion. Also left unanswered was whether duress is a complete defense to an unintentional homicide or whether it merely mitigates what would be second-degree murder down to manslaughter. The Michigan Supreme Court will eventually need to provide answers to these questions if the Legislature does not.

Chief Justice Clement, dissenting, would have held that duress is not a defense to depraved-heart murder and that because defendant waived the defense of duress in the trial court, that issue should not have been addressed. Chief Justice Clement disputed whether the choice to act with the intent to create a very high risk of death or great bodily harm with the knowledge that death or great bodily harm is the probable result, as depraved-heart murder requires, was meaningfully different than a choice of taking the life of an innocent person. The common law, as adopted by the Legislature, does not recognize a meaningful distinction between these forms of malice. Keeping all other circumstances the same, a defendant with the intent to kill and a defendant with the intent to create a very high risk of death or great bodily harm with the knowledge that death or great bodily harm is the probable result will be found guilty of the same crime: second-degree murder. That each form of malice results in second-degree murder reflects a moral and legal judgment that the wanton and willful disregard of the risk of death or of great bodily harm is just as depraved as the intent to kill or the intent to cause great bodily harm. The majority incorrectly characterized depraved-heart murder as a "lesser felony" than intent-to-kill murder because they are the same felony of second-degree murder, only brought under alternative theories of malice. Chief Justice Clement would not have differentiated among the theories of malice regarding the availability of the duress defense as the majority did. Instead, she would have concluded that, just as Michigan common law imposes the moral standard that a threatened person cannot take a life to save their own, the same threatened person cannot act in a way that is nearly certain to cause death or great bodily injury to save their own life.

Justice Zahra, joined by Justice Viviano, dissenting, emphasized that the long-established principle that duress is not a defense to murder means that no forms of killing with malice can or should be excused on the basis of duress. The majority rested its case on loose language from scattered sources that duress is not a defense to "intentional murder"; these cases at no point mentioned or discussed depraved-heart murder. The majority relied on the lack of more extensive caselaw to support its position, but this lack of caselaw may demonstrate that few serious jurists believed that a defendant could be acquitted of depraved-heart murder because of duress. Regarding Reichard, it was incongruous, at best, to apply logic underlying the Court's rejection of felony murder as a common-law crime in toto to create a duress defense for a long-established form of common-law murder-even more so when the primary case cited in favor of that defense explicitly rejected it. All common-law murders are intentional. They all involve an intentional act and either the intent to kill or the legal and moral equivalent to an intent to kill. For centuries, Michigan law has recognized that there is no legal, social, or moral reason to treat differently individuals who kill with the intent to cause...