## Facts

- Jaclyn Louise Kurr fatally stabbed her boyfriend, Antonio Peña, during an argument on October 9, 1999.
- Kurr told police the dispute involved Peña’s cocaine use and that Peña punched her twice in the stomach.
- Kurr stated she warned Peña not to hit her because she was carrying his babies, and she stabbed him when he came toward her again.
- The defense introduced evidence of Peña’s prior violence toward Kurr, including past assaults leading to hospital treatment and a stay at a domestic violence shelter.
- Evidence about Kurr’s pregnancy status was conflicting, including testimony of both positive and negative pregnancy tests and a possible miscarriage.
- Before trial, the court granted a motion permitting Kurr to present a theory that she acted to defend her unborn child(ren).
- At trial, Kurr requested the standard jury instruction on defense of others; the court refused to give it.

## Issues

1. Whether the evidence required a jury instruction on defense of others where Kurr claimed she used deadly force to protect her unborn children from an ongoing assault.
2. Whether an unborn fetus, viable or nonviable, qualifies as an “other” for purposes of Michigan’s defense-of-others doctrine.
3. Whether refusing the requested instruction violated due process by denying Kurr a meaningful opportunity to present her theory of defense.

## Decision

- The Michigan Court of Appeals reversed Kurr’s voluntary manslaughter conviction and remanded for a new trial.
- The court held that there was sufficient evidence to support a defense-of-others instruction and that the trial court’s refusal was error.
- The court held that, for defense-of-others purposes, an unborn child—viable or nonviable—may be the “other” whom a defendant may defend.
- The court concluded the instructional denial deprived Kurr of due process because it removed the legal framework needed for the jury to evaluate her justification theory.
- The court ruled that conflicting proof about pregnancy did not justify withholding the instruction; it presented a factual question for the jury.

## Legal Principles

- A defendant is entitled to a properly requested defense instruction when there is “some evidence” supporting the defense.
- Under Michigan law, defense of others permits the use of deadly force when the actor honestly and reasonably believes another faces imminent death or serious bodily harm and force is necessary.
- Defense of others is derivative of self-defense: the defender may act as the threatened person would be legally entitled to act.
- An unborn fetus, viable or nonviable, may qualify as an “other” within the defense-of-others doctrine.
- Denial of an instruction central to a defendant’s theory of justification can violate due process by denying the right to present a defense.

## Conclusion

The court ordered a new trial because the jury should have been instructed on defense of others in light of evidence that Kurr believed her unborn child(ren) faced imminent serious harm, and because Michigan law permits defense of a fetus, viable or nonviable, under the same conditions governing defense of any third person.


People v. Kurr, 253 Mich. App. 317, 654 N.W.2d 651 (Mich. Ct. App. 2002)