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What Are The Grounds For Second-Degree Murder In Michigan?

by | Feb 20, 2020 | Homicide Offenses |


There are two tiers of murder in Michigan: first-degree murder and second-degree murder.  First-degree murder is the killing of another person with malice but with the aggravating factors of premeditation or deliberation, felony-murder or the killing of a peace officer or correctional officer.  “All other kinds of murder [other than first degree murder] shall be murder of the second degree, and shall be punished by imprisonment in the state prison for life, or any term of years, in the discretion of the court trying the same.”  MCL 750.317.  What are the grounds for second-degree murder in Michigan?

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.  Malice is defined as “the intent to kill, the intent to cause great bodily harm, or the intent 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.”  People v Henderson, 306 Mich App 1, 9; 854 NW2d 234 (2014).  Malice can be “inferred from evidence that a defendant intentionally set a motion in force likely to cause death or great bodily harm.”  People v Reeves, 202 Mich App 706, 712; 510 NW2d 198 (1993).  For example, setting a house on fire knowing that there are occupants sleeping inside can constitute setting a force in motion to commit murder.  People v Djordjevic, 230 Mich App 459, 462; 584 NW2d 610 (1998).

The law does not “imply malice from the unprovoked, inexcusable, unjustifiable killing of another…”.  People v Woods, 416 Mich 581, 597; 331 NW2d 707 (1982).  For example, drunk driving alone does not establish the “egregious circumstances” needed for malice to sustain a murder conviction.  People v Goecke, 457 Mich 442, 467; 579 NW2d 868 (1998).  Some evidence of malice that was misconduct beyond drunk driving around the time of the fatal accident include evidence of traffic violations, speeding, minor collisions, near collisions and erratic driving.  Id at 470-473.  Whether the defendant possessed the specific intent to kill or caused an event that brings with it the very high risk of death, either was sufficient to convict for second-degree conviction.  People v Dykhouse, 418 Mich 488, 502; 345 NW2d 150 (1994).  The jury does not have to agree on the same theory for malice (e.g. intent to kill or high risk of death) for conviction, as long as they all agree at least one of the theories for malice is met.  People v Johnson, 187 Mich App 621, 629-630; 468 NW2d 307 (1999).

It is possible that second-degree murder can be reduced voluntary manslaughter if the individual acted out of passion or anger brought about by adequate cause and before the individual had a reasonable time to calm down. For manslaughter, the following two things must be present:

  • First, when the individual acted, his or her thinking must be disturbed by emotional excitement to the point that a reasonable person might have acted on impulse, without thinking twice, from passion instead of judgment. This emotional excitement must have been the result of something that would cause a reasonable person to act rashly or on impulse. M Crim JI 16.9(2).
  • Second, the killing itself must result from this emotional excitement. The individual must have acted before a reasonable time had passed to calm down and return to reason. The test is whether a reasonable time passed under the circumstances of this case.  M Crim JI 16.9(3).

It is the element of provocation that distinguishes the offense of manslaughter from murder.  People v Sullivan, 231 Mich App 510, 532; 586 NW2d 578 (1998).  The prosecutor does not have to prove an absence of provocation to establish second degree murder.  “However, a homicide may be reduced to voluntary manslaughter if the factfinder determines from an examination of all the circumstances surrounding the killing that malice was negated by adequate and reasonable provocation and the homicide was committed in the heart of passion.”  People v Hopson, 178 Mich App 406, 410; 444 NW2d 167 (1989).  “Passion, in the context of voluntary manslaughter, describes a state of mind incapable of cool reflection.”  Id at 411.  The classic situation that everyone thinks about for “heat of passion” is that a husband comes home to find his wife in bed with another man and he loses control to the point that he shoots and kills the paramour.  While not a total excuse from criminal liability related to the act, it may lead to the husband being convicted of the much lesser offense of manslaughter (15 year max) rather than life in prison.


Despite all of the serious penalties, there are many possible defenses to second-degree murder that can be asserted by a skilled criminal defense attorney:

  • DEADLY FORCE SELF-DEFENSE – “An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:”
      • (1) “The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.” MCL 780.972(1)(a).
      • (2) “The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.” MCL 780.972(1)(b).

A person can use deadly force in self-defense only where it is necessary to do so.  If the individual could have safely retreated but did not do so, it is a consideration for the jury to consider in whether or not the individual honestly and reasonably believed he or she needed to use deadly force in self-defense.  A person is not required to retreat under the following circumstances:

      • (1) He or she was attacked in his own home, or he or she believed the attacker is about to use a deadly weapon, or if the person is subject to a sudden, fierce and violent attack. MCL 780.951(1)(a); M Crim JI 7.16(2).
      • (2) He or she was not engaged in the commission of a crime at the time that the deadly force is used, he or she has a legal right to be where he or she is at that time, and he or she has an honest and reasonable belief that the use of deadly force is necessary to prevent imminent death, great bodily harm or sexual assault of himself or herself, or another person. MCL 780.951(1)(b); M Crim JI 7.16(3).
  • DECEDENT ALREADY DEAD – You cannot be convicted of murder if you shoot a corpse. If the deceased had already passed away before the accused commits an act that could lead to death (e.g. man dies of a heart attack in his sleep before he is shot in the head), then the element of “killing” cannot be satisfied.
  • INVOLUNTARY INTOXICATION – If the defendant was drugged against his knowledge or consent and then commits a crime while he was incapacitated, then he may not have the necessary mens rea to be culpable of murder. However, voluntary intoxication is not a defense to second-degree murder because it does not require intent to kill, but rather only wanton and willful disregard for the high risk of death from the criminal act.  People v Longworthy, 416 Mich 630, 651; 331 NW2d 171 (1982).
  • KILLING WAS ACCIDENTAL – Malice for murder requires “the intent to kill, the intent to cause great bodily harm, or the intent 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.” However, conduct that amounts to negligence only (e.g. improper storage of gasoline by flammable objects that leads to fatal fire) will not be enough to sustain a murder conviction.
  • ALIBI OR MISTAKEN IDENTITY – The defendant may assert that he was in another location at the date and time that the murder occurred, provided that there are sufficient witnesses and proper notice to the prosecutor to establish the alibi.
  • LEGAL INSANITY – A person may be found not guilty by reason of insanity. A person is legally insane if, as a result of mental illness or intellectual disability, he or she was incapable of understanding the wrongfulness of his or her conduct, or was unable to conform his or her conduct to the requirements of the law.  The defendant has the burden of proof to show that he or she was legally insane at the time of the killing.

Being convicted of second-degree murder can result in several decades in prison.  The stakes are too high to gamble on a subpar legal defense.  You need to have the best representation in your corner right away to assert all of the available defenses at law and fight for the best outcome.

If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.


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