People v. Kur

654 N.W.2d 651 (2002)

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Nature of the Case

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Facts

D stabbed Pena on October 9, 1999. D told police that she and Pena had argued that day over Pena’s cocaine use. D told the officer that Pena subsequently punched her two times in the stomach and that she warned Pena not to hit her because she was carrying his babies. D stated that when Pena came towards her again, she stabbed him in the chest. He died as a result of the stab wound. Before trial D moved for permission to present testimony and to argue that she killed Pena in defense of her unborn children. The trial court concluded that one could assert the defense of others theory if claiming that deadly force had to be used to protect a fetus or embryo. At trial, D presented evidence of Pena’s assaultive nature. Pena had hit D on other occasions, causing her to seek treatment at a hospital and stay in a domestic violence shelter. The parties also presented testimony regarding D’s alleged pregnancy. A nurse employed with the Kalamazoo County Sheriff’s Department testified that D had a negative pregnancy test on November 9, 1999. However, another nurse employed by the Kalamazoo County Jail testified that D had a positive pregnancy test on October 25, 1999, and D and her cellmate testified about a tissue-like discharge that appeared on defendant’s sanitary napkin during the first week of November. D requested a jury instruction on the defense of others. 'A person has the right to use force or even take a life to defend someone else under certain circumstances.” The trial court disallowed it noting that (1) the fetus or fetuses would have only been sixteen or seventeen weeks in gestation at the time of the stabbing and (2) according to a physician’s trial testimony, a fetus under twenty-two weeks old is nonviable, i.e., it is not capable of surviving outside the mother’s womb. The trial court concluded that in order for defendant to assert a defense of others theory, there had “to be a living human being existing independent of [defendant] . . . .” It stated, “even under the evidence in this case, under 22 weeks, there are no others. D was convicted and appealed.