People v. Bennett

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAMAL DEVONTA BENNETT, Defendant-Appellant.

No. 360217

Court of Appeals of Michigan

April 18, 2024

UNPUBLISHED

Kent Circuit Court LC No. 15-000869-FC

Before: Boonstra, P.J., and Feeney and Young, JJ.

PER CURIAM.

Jamal Devonta Bennett appeals as of right his jury trial convictions of second-degree murder, MCL 750.317, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced Bennett to serve 35 to 125 years' in prison for second-degree murder, to run consecutively to his mandatory 2-year sentence for felony-firearm. On appeal, Bennett argues that (1) his constitutional right to a fair trial was violated by an erroneous jury instruction, the admission of unduly prejudicial evidence, and his trial counsel's ineffective assistance; and (2) he is entitled to resentencing. We conclude the challenged instruction was proper, admission of the challenged evidence did not constitute plain error affecting Bennett's substantial rights, and Bennett's trial counsel was not ineffective. However, the trial court erred by miscalculating Bennett's minimum sentencing guidelines range. Therefore we affirm Bennett's convictions but vacate the judgment of sentence and remand for resentencing consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case stems from a retrial on charges related to the death of Derecko Martin on March 16, 2013. The Michigan Supreme Court vacated the convictions from Bennett's first trial because the trial court erred in admitting rap videos made by Bennett and his friends, which confused the issue before the jury and "portrayed [Bennett] as a ruthless and menacing threat to the community who would shoot upon the least provocation." People v Bennett, 505 Mich. 961 937 N.W.2d 119, 120 (2020). The remand order emphasized that Bennett's state of mind when he shot Derecko, not his identity, was the issue before the jury. The case was remanded for new trial. Id.

On March 15, 2013, Phillip Williams and Tayvone Williams were celebrating their birthdays at a party hosted at their aunt's apartment. Donnell Martin, Phillip and Derecko's uncle,^[1]was invited. Some of Tayvone's invited friends included Bennett; Bennett's cousin, Anthony Bennett; Juan Colon; Jolan Hines; and Sammie Butler-Coleman.^[2] Bennett and Colon allegedly arrived at the party with firearms, which prompted Phillip and other partygoers to request they leave. At this point, the facts diverge.

Many witnesses presented conflicting testimony about the sequence of events that led to a shooting. The testimony is consistent, however, that a chaotic fight broke out and shots were fired. Phillip was shot in his left arm and right hip, but survived. Derecko was shot in the shoulder, abdomen, and head by an individual wearing a red sweatshirt, whom multiple witnesses and exhibits identified as Bennett. Derecko's wounds were fatal.

Based on witnesses' varying accounts, the facts were in dispute regarding whether Colon was armed and provoked the fight, whether Colon or Bennett shot Phillip, and whether Colon fired a first shot before Bennett began shooting (verses whether Bennett was the first to discharge his weapon). In the end, the jury again found Bennett guilty of second-degree murder and felony-firearm. The trial court sentenced him to 35 to 125 years' imprisonment for second-degree murder, an increase from the 30 to 100 years' imprisonment he received after his first sentencing hearing for the same conviction.

Bennett moved for a (second) new trial in the trial court, arguing he received ineffective assistance of counsel. The trial court denied Bennett's motion for a new trial. Bennett now appeals.

II. ANALYSIS

Bennett argues that his constitutional right to a fair trial was violated in two ways. First, the trial court's instruction to the jury on deadly-aggressor withdrawal, as it pertained to his defense-of-others defense, was erroneous and effectively prevented the jury from acquitting him based on this defense. Second, several pieces of evidence, including photographs and testimony, were unfairly prejudicial and violated his right to a fair trial. Bennett relatedly argues that his trial counsel's failure to object to the admission of this evidence constituted ineffective assistance of counsel. We disagree and affirm Bennett's convictions.

Bennett also argues that he is entitled to resentencing for three reasons. First, he contends that the trial court's basis for increasing his sentence following his retrial was pretextual and the trial court's sentence was vindictive. Second, Bennett asserts that his minimum sentencing guidelines range was incorrectly calculated and should have been lower. Lastly, he argues that the trial court's sentence was disproportionate and violated his constitutional right against cruel or unusual punishment. We agree with Bennett's arguments concerning the scoring of his minimum sentencing guidelines range. As a result, we decline to address the proportionality of his sentence and we remand for resentencing.

A. INSTRUCTIONAL ERROR

Bennett first argues that the trial court's instruction on deadly-aggressor withdrawal was erroneous and effectively prevented the jury from acquitting him under a theory of defense of others. We disagree.

"We review a claim of instructional error involving a question of law de novo, but we review the trial court's determination that a jury instruction applies to the facts of the case for an abuse of discretion." People v Everett, 318 Mich.App. 511, 528; 899 N.W.2d 94 (2017) (citation omitted). When an instructional error occurs, "[r]eversal is warranted only if[,] after an examination of the entire cause," it "affirmatively appear[s] that it is more probable than not that the error was outcome determinative." Id. (quotation marks and citation omitted; first alteration in original). The defendant must establish that "the error undermined the reliability of the verdict." People v Hawthorne, 474 Mich. 174, 184; 713 N.W.2d 724 (2006).

"Under the state and federal Constitutions, a criminal defendant has a right to present a defense." People v Leffew, 508 Mich. 625, 643; 975 N.W.2d 896 (2022). Accordingly, "[instructional errors that directly affect a defendant's theory of defense can infringe a defendant's due process right to present a defense." Id. (citation omitted). "A criminal defendant is entitled to have a properly instructed jury consider the evidence against him." People v Armstrong, 305 Mich.App. 230, 239; 851 N.W.2d 856 (2014) (citation omitted).

Jury instructions are considered "as a whole to determine whether error requiring reversal occurred." People v Wood, 307 Mich.App. 485, 519; 862 N.W.2d 7 (2014). "The instructions must include all elements of the charged offenses and any material issues, defenses, and theories if supported by the evidence." People v McGhee, 268 Mich.App. 600, 606; 709 N.W.2d 595 (2005). "[T]he trial court is required to instruct the jury concerning the law applicable to the case and fully and fairly present the case to the jury in an understandable manner." People v Montague, 338 Mich.App. 29, 37; 979 N.W.2d 406 (2021) (alteration in original).

"[A]n imperfect instruction is not grounds for setting aside a conviction if the instruction fairly presented the issues to be tried and adequately protected the defendant's rights." People v Kowalski, 489 Mich. 488, 501-502; 803 N.W.2d 200 (2011). The defendant bears the burden of establishing that the asserted instructional error resulted in a miscarriage of justice. People v Lukity, 460 Mich. 484, 493; 596 N.W.2d 607 (1999).

"[T]he killing of another person in self-defense is justifiable homicide only if the defendant honestly and reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself." People v Riddle, 467 Mich. 116, 127; 649 N.W.2d 30 (2002). Under the defense-of-others doctrine," '[o]ne may use force in defense of another when he or she reasonably believes the other is in immediate danger of harm and force is necessary to prevent the harm; deadly force is permissible to repel an attack which reasonably appears deadly.'" Leffew, 508 Mich. at 638, quoting 3A Gillespie, Michigan Criminal Law & Procedure (2d ed), § 91:59, 399 (alteration in original). The Self Defense Act (SDA), MCL 780.971 et seq., "removed the traditional common-law duty to retreat, so long as the individual engaging in . . . defense of others was not committing or had not committed a crime and had a legal right to be where they were when they used force." Leffew, 508 Mich. at 641. "[A]side from limiting one's duty to retreat, the statute did not modify or abrogate the common-law" defense-of-others defense. Id.

However, "[a]s with self-defense, defense of others is generally not available to a person who is the initial aggressor." Leffew, 508 Mich. at 638. An initial aggressor is "one who is the first to use deadly force against the other[.]" Riddle, 467 Mich. at 120 n 8. "This Court has long defined 'deadly force' as 'where the defendant's acts are such that the natural, probable, and foreseeable consequence of said acts is death." People v Ogilvie, 341 Mich.App. 28, 38; 989 N.W.2d 250 (2022), quoting People v Pace, 102 Mich.App. 522, 534; 302 N.W.2d 216 (1980).

As part of its final instructions to the jury, the trial court gave the following deadly aggressor-withdrawal instruction, which matches Michigan Model Criminal Jury Instruction 7.18:

Deadly aggressor withdrawal. A person who started an assault on someone else with a deadly force and/or with a dangerous or

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