944 N.W.2d 370
Mich. Ct. App.2019Background
- Defendant Kenyon Bailey bought narcotics from the victim, complained about their quality, left a Detroit repair shop, reentered shortly after, and then shot the victim six times; one bullet entered the victim’s back.
- A .32 revolver was found under the victim but no .32 bullets/casings from the scene; a witness (Reilly) saw Bailey in his car with a .40-caliber handgun immediately after the shooting.
- Bailey was tried in a bench trial and convicted of felon in possession of a firearm, second-degree murder, and felony-firearm (second offense).
- Bailey argued on appeal that the evidence was insufficient because he acted in self-defense; he also raised due-process/counsel claims tied to plea withdrawal and the court’s sua sponte substitution of appointed counsel.
- Bailey challenged sentencing calculations (OV 5 scoring), denial of meaningful allocution, and the amount of jail credit. The Court affirmed convictions but vacated the sentence and remanded for resentencing and recalculation of jail credit.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Bailey) | Held |
|---|---|---|---|
| Sufficiency of evidence / self-defense | The evidence (surveillance, number/placement of wounds, lack of .32 fire) rebuts self-defense; kills constituted second-degree murder. | Bailey claimed the victim fired first and he shot in self-defense; therefore prosecution failed to negate justification and malice. | Conviction affirmed; circumstantial and video evidence allowed a rational finder to reject self-defense and infer malice. |
| Plea withdrawal / due process | Court correctly permitted Bailey to withdraw plea when he unequivocally asked to; no denial of right to counsel occurred. | Bailey says court denied time to consult counsel before permitting withdrawal, violating due process. | Court found no due-process violation: Bailey clearly and voluntarily sought withdrawal and did not request additional time with counsel. |
| Sua sponte substitution of appointed counsel | Trial court’s replacement of appointed counsel was error but did not prejudice Bailey’s substantial rights; no plain error warranting reversal. | Bailey argued court improperly removed his appointed counsel without grounds, violating right to counsel. | Court held substitution was erroneous (no gross incompetence, incapacity, or contumacious conduct) but, because issue was unpreserved, no plain-error reversal—Bailey suffered no shown prejudice. |
| Sentencing errors (OV 5, allocution, jail credit) | OV5 scoring and jail-credit calculations were incorrect; but OV5 error did not change guidelines range; allocution requirement not violated. | OV5 should be 0 (no proof of serious psychological injury), Bailey denied meaningful allocution, and he seeks additional jail credit for pretrial incarceration. | Court agreed OV5 was mis-scored (reduce to 0), found court violated allocution rule (plain error) requiring vacatur and resentencing, and remanded to verify and correct jail credit. |
Key Cases Cited
- People v. Lanzo Const. Co., 272 Mich. App. 470 (evidentiary sufficiency standard in appeals)
- People v. Blevins, 314 Mich. App. 339 (use of circumstantial evidence and inferences)
- People v. Smith, 478 Mich. 64 (elements of second-degree murder)
- People v. Dupree, 486 Mich. 693 (self-defense and non‑aggressor standard)
- People v. Stevens, 306 Mich. App. 620 (prosecution must exclude self-defense beyond a reasonable doubt)
- People v. Riddle, 467 Mich. 116 (no duty to retreat; stand-your-ground principles)
- People v. Werner, 254 Mich. App. 528 (malice may be inferred from conduct creating risk of death)
- Daniels v. Lafler, 501 F.3d 735 (6th Cir.) (no constitutional right to appointed counsel of choice; substitution may violate rights if prejudicial)
- United States v. Dinitz, 538 F.2d 1214 (5th Cir.) (judicial control over counsel conduct and removal analysis)
- People v. Calloway, 500 Mich. 180 (OV 5 requires proof of serious psychological injury to victim’s family)
- People v. Clark, 315 Mich. App. 219 (jail-credit principles; unrelated incarcerations not creditable)
- People v. Carines, 460 Mich. 750 (plain-error standard for unpreserved constitutional claims)
- People v. Fonville, 291 Mich. App. 363 (standards for withdrawing pleas in the interest of justice)