Mr. Zale asserts that he was entitled to have M Crim JI 7.16a read to the Jury:
(1) If you find both that:
(a) the deceased was breaking and entering a dwelling or business, or committing home invasion, or had broke and entered or committed home invasion and was still present in the dwelling or business, or is unlawfully attempting to remove a person from a dwelling, business, or vehicle against the person's will, and
(b) the defendant honestly and reasonably believed the deceased was engaged in any of the conduct just described - you must presume that the defendant had an honest and reasonable belief that imminent [death / great bodily harm / sexual assault] would occur.
Although the jury was instructed regarding self defense, M Crim n 7.15 and 7.16 (T 5-12-2015, P 221-224), Mr. Zale asserts that he was entitled to the instruction regarding the presumption found in MCLA 780.951.
(1) Except as provided in subsection (2), it is a rebuttable presumption in a civil or criminal case that an individual who uses deadly force or force other than deadly force under section 2 of the self-defense act has an honest and reasonable belief that imminent death of, sexual assault of, or great bodily harm to himself or herself or another individual will occur if both of the following apply:
(a) The individual against whom deadly force or force other than deadly force is used is in the process of breaking and entering a dwelling or business premises or committing home invasion or has broken and entered a dwelling or business premises or committed home invasion and is still present in the dwelling or business premises, or is unlawfully attempting to remove another individual from a dwelling, business premises, or occupied vehicle against his or her will.
(b) The individual using deadly force or force other than deadly force honestly and reasonably believes that the individual is engaging in conduct described in subdivision (a).
Livingston County Court and Prosecutor opinion:
The Livingston County Court and Prosecutor may not like guns, and may not like the 'Stand Your Ground,' Michigan Self-Defense Act, but it is not their place to change the written law. The Prosecutor and Court should follow the law that is on the books. In the case of this trial, they both thought that it's ok if Derek Flemming unlawfully attacked and beat Martin Zale to death. Derek Flemming had a habit of 'losing control' in public, over ordinary day-to-day interactions with people. If it were not Martin Zale that he attacked, it would have been somebody that day, because Derek Flemming was a "hothead" and a repeat offender.
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As argued below, and incorporated herein by reference, Mr. Zale asserts that his jury was not properly instructed, and that Counsel was ineffective for not requesting M Crim JI 7.16a, and for not objecting to M Crim JI 7.18. The Court should not have given the instruction suggesting that Martin Zale was the aggressor. The jury should not have been given the instruction that Martin Zale had a 'duty' to retreat, especially while being subjected to a sudden, fierce, and violent attack by Derek Flemming.
Derek Flemming illegally drove through a red light to chase Martin Zale. Flemming unlawfully exited his vehicle on a busy highway, unlawfully attacked Martin Zale, and tried to unlawfully remove Martin Zale from his vehicle to beat him. Derek Flemming 'had a meltdown' on this day, worse than he did previously in Costco over the price of a slice of pizza. Mr. Flemming was out of control when he left his vehicle to attack Martin Zale, and his own wife could not control him.