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Homicide and Murder

Everything you need to know when facing a homicide charge, and how we attack the issue head on to either vindicate you or mitigate your sentencing

What Qualifies as Self Defense in Michigan?

Before breaking down the elements and special considerations for each homicide charge, it’s important to understand what qualifies as self-defense, one of the most common defenses for a homicide charge. In Michigan, the jury will get the following definition of self-defense;

  1. At the time he or she acted, the defendant must have honestly and reasonably believed that he or she was in danger of being killed, seriously injured, or sexually assaulted. If the defendant’s belief was honest and reasonable, he or she could act immediately to defend himself or herself even if it turned out later that he or she was wrong about how much danger they were in; but
  2. A  person may not kill or seriously injure another person just to protect himself or herself against what seems like a threat of only minor injury. The defendant must have been afraid of death, serious physical injury, or sexual assault; and
  3. At the time he or she acted, the defendant must have honestly and reasonably believed that what he or she did was immediately necessary. Under the law, a person may only use as much force as he or she thinks is necessary at the time to protect himself or herself.

The jury will be instructed to consider the following conditions when determining whether the accused should have reasonably feared death, serious injury, or sexual assault;

  • the condition of the people involved including their relative strength,
  • whether the other person was armed with a dangerous weapon or had some other means of injuring the defendant,
  • the nature of the other person’s attack or threat, and
  • whether the defendant knew about any previous violent acts or threats made by the other person.

What Are the Different Homicide Charges in Michigan?

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused caused the death of the victim;
  2. The accused intended to kill the victim;
  3. That this intent to kill was premeditated, that is, thought out beforehand;
  4. That the killing was deliberate, which means that the accused considered the pros and cons of the killing and thought about and chose his or her actions before he or she did it.

Special Considerations

  • There must have been real and substantial reflection for long enough to give a reasonable person a chance to think twice about the intent to kill. The law does not say how much time is needed. It is for the jury to decide if enough time passed under the circumstances of the case. The killing cannot be the result of a sudden impulse without thought or reflection.
  • Voluntary intoxication as a result of the defendant consuming alcohol or any controlled substance is no longer a defense.
  • Elements 3 & 4 are not necessary to prove for a first-degree murder conviction if the victim was a police officer or prison guard

Penalty

Imprisonment for life without eligibility for parole.

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused caused the death of the victim;
  2. The accused either:
    1. actually intended to kill victim;
    2. intended to do great bodily harm to victim; or
    3. knowingly created a very high risk of death or great bodily harm knowing that death or such harm would be the likely result of his or her actions
  3. The accused was committing or attempting to commit a felony at the time of the act causing victim’s death.

Special Considerations

  • The following felonies apply to felony murder: arson, criminal sexual conduct in the first, second, or third degree, child abuse in the first degree, a major controlled substance offense, robbery, carjacking, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind, extortion, kidnapping, vulnerable adult abuse in the first or second degree, torture, or aggravated stalking.

Penalty

Imprisonment for life without eligibility for parole.

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused caused the death of the deceased person; that is, the deceased person died as a result of the alleged act causing death;
  2. The accused either:
    1. actually intended to kill victim;
    2. intended to do great bodily harm to victim; or
    3. knowingly created a very high risk of death or great bodily harm knowing that death or such harm would be the likely result of his or her actions

Special Considerations

  • First-degree premeditated murder and second-degree murder are distinguished by the elements of premeditation and deliberation.

Penalty 

Imprisonment for life or any term of years.

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused caused the death of the deceased person; that is, the deceased person died as a result of the alleged act causing death;
  2. The accused either:
    1. actually intended to kill victim;
    2. intended to do great bodily harm to victim; or
    3. knowingly created a very high risk of death or great bodily harm knowing that death or such harm would be the likely result of his or her actions

Special Considerations

  • In order to mitigate a homicide from second-degree murder to manslaughter, the following elements must be present (1) “[T]he defendant must kill in the heat of passion,” (2) “the passion must be caused by an adequate provocation,” and (3) enough time must not have elapsed to have permitted a reasonable person to control his or her passions.”People v Pouncey437 Mich 382, 388, 471 NW2d 346 (1991)
  • The provocation must be adequate, namely, that which would cause a reasonable person to lose control.

Penalty 

Felony punishable by imprisonment for not more than 15 years, a fine of not more than $7,500, or both.

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused caused the death of the deceased person; that is, the deceased person died as a result of the alleged act causing death;
  2. The accused either:
    1. acted in a grossly negligent manner; 
    2. intended to injure the decedent;
    3. was intentionally pointing a gun at the victim; or
    4. willfully neglected or refused to perform a legal duty and his or her failure to perform it was grossly negligent to human life

Special Considerations

  • Unlike voluntary manslaughter, involuntary manslaughter does not require an intent to kill or an intent to cause serious injury.
  • The supreme court held that an unintended death caused by an assault and battery committed with the specific intent to injure constitutes involuntary manslaughter under Michigan law.
  • The now-standard, three-part test for gross negligence is:
  • (1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another.
  • (2) Ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand.
  • (3) The omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.

Penalty 

Felony punishable by imprisonment for not more than 15 years, a fine of not more than $7,500, or both.

What will we do as your Defense Attorney?

These are very serious charges that require an aggressive defense in which all of the facts of the case are thoroughly reviewed. We listen carefully to what our clients tell us in order to both put together a strong defense and mitigate sentencing. We do this in several ways.

First, we never take for granted that the police report is an accurate representation of the incident in question. These reports are usually very biased towards convicting the accused, and are therefore often filled with inconsistencies. We use our client’s testimony, research, private investigators, and crime scene visits to poke holes in the prosecution’s case, and ultimately, prove your innocence or argue that the facts are so that a lenient sentence is appropriate. We always visit the scene of the crime. It’s the only way to learn details showing that the police investigation was flawed or that the prosecution’s eyewitness could not have seen what he or she claims.

The strongest defenses for murder are that the death was accidental or a result of self defense. By knowing the facts of the case inside and out, we will craft a creative defense to either vindicate you or obtain a lesser offense. As you can see above, the only difference between second-degree murder and voluntary manslaughter is an interpretation of the facts. Using experts and fact finders we will find the facts that support your defense.

If the accused is between the ages of 17 and 24 they may be eligible to qualify for a sentence under the Holmes Youthful Trainee Act (HYTA). This Act allows the client to plead guilty, but have the offense dismissed by the court if he or she satisfies the terms set by the court. HYTA does not apply to any felony where the maximum penalty is life imprisonment (such as First Degree Arson). With that said, we always try to plea down to a non–life offense such as simple Second Degree Arson, so that HYTA is available. 

Convincing the prosecutor to reduce the charge  should always be on the table.  Mitigating factors that we look out for are things like the state of mind of the accused and whether they were acting in a desperate manner due to drugs or alcohol. Also important is nature of the relationship with the victim. In other words the punishment must fit the crime or we will not stand for it. 

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Email: kerrylawpllc@gmail.com

Tel: (734) 263-1193

Address: 214 S. Main St. Ste 200
                 Ann Arbor MI, 48104
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