People v. Bailey

• Decision Date: 24 September 2019
• Docket Number: No. 342175,342175
• Citation: 944 N.W.2d 370,330 Mich.App. 41
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenyon BAILEY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

330 Mich.App. 41

944 N.W.2d 370

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Kenyon BAILEY, Defendant-Appellant.

No. 342175

Court of Appeals of Michigan.

Submitted September 5, 2019, at Detroit.

Decided September 24, 2019, 9:10 a.m.

Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Deborah K. Blair, Assistant Prosecuting Attorney, for the people.

Lee A. Somerville, Redford, for defendant.

Before: Jansen, P.J., and Cameron and Tukel, JJ.

Cameron, J.

Following a bench trial, defendant, Kenyon Bailey, was convicted of murdering the drug dealer who reportedly sold him poor quality narcotics. Bailey now appeals his convictions of felon in possession of a firearm (felon-in-possession), MCL 750.224f ; second-degree murder, MCL 750.317 ; and possession of a firearm during the commission of a felony, second offense (felony-firearm), MCL 750.227b. Bailey was sentenced to 10 to 15 years' imprisonment for the felon-in-possession conviction, 30 to 50 years' imprisonment for the second-degree murder conviction, and a consecutive sentence of five years' imprisonment for the felony-firearm conviction. We affirm Bailey's convictions, but vacate his sentence and remand for resentencing and recalculation of Bailey's jail credit.

I. FACTUAL BACKGROUND

At the time of the offenses, Bailey had recently purchased narcotics from the victim (the owner of an automobile repair shop in Detroit) and later discovered that the drugs were ineffective. Bailey and his friend, Stacey Reilly, drove to the victim's repair shop, and Bailey attempted to get his money back from the victim. Bailey entered the repair shop, returned to his car approximately four minutes later, and then went back inside the repair shop.

After Bailey reentered the repair shop, Reilly heard a series of gunshots. Reilly stepped into the repair shop and encountered two of the victim's employees. Reilly searched the employees for weapons. As Reilly searched the employees, he saw Bailey run out of the repair shop. Reilly found Bailey seated in his car with a gun on his lap. At trial, Reilly identified the gun in Bailey's lap as a .40 caliber handgun. Bailey appeared shaken and distressed, and asked Reilly if he planned to "tell on him." Reilly told Bailey he would not tell anyone what he saw.

Officers from the Detroit Police Department responded to the shooting. Two officers at the scene saw blood and multiple spent .40 caliber bullet casings on the floor of the repair shop. The officers found the victim on the ground between two cars and determined that he had died of multiple gunshot wounds. The officers discovered a .32 caliber revolver wedged underneath the victim's body, and six spent shell casings were discovered in the cylinder of the revolver. However, no .32 caliber bullets were discovered at the scene of the crime. A medical examination concluded that the victim was shot six times. Bailey was arrested and charged with felon-in-possession, second-degree murder, and felony-firearm.

Bailey testified at trial, asserting that the victim threatened him with a gun first and that the killing was in self-defense. Bailey was convicted of the charged crimes. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

Bailey argues that there was insufficient evidence to convict him of second-degree murder because he acted in self-defense when he shot the victim. We disagree.

This Court reviews a challenge to the sufficiency of the evidence de novo. People v. Lanzo Constr. Co. , 272 Mich. App. 470, 473, 726 N.W.2d 746 (2006). "Evidence is sufficient if, when viewed in the light most favorable to the prosecution, ‘a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.’ " People v. Blevins , 314 Mich. App. 339, 357, 886 N.W.2d 456 (2016) (citation omitted). Direct and circumstantial evidence, including reasonable inferences arising from the use of circumstantial evidence, may provide sufficient proof to meet the elements of a crime. People v. Henderson , 306 Mich. App. 1, 9, 854 N.W.2d 234 (2014).

Bailey maintains that the trial court erred by finding him guilty of second-degree murder because his shooting of the victim was justified as an act of self-defense. The elements of second-degree murder are as follows:

(1) a death, (2) the death was caused by an act of the defendant, (3) the defendant acted with malice, and (4) the defendant did not have lawful justification or excuse for causing the death. [ People v. Smith , 478 Mich. 64, 70, 731 N.W.2d 411 (2007).]

A killing may be considered justified if the defendant acts in self-defense. People v. Dupree , 486 Mich. 693, 707, 788 N.W.2d 399 (2010). Generally, an individual "who is not the aggressor in an encounter is justified in using a reasonable amount of force against his adversary," but only if the individual believes that he is in immediate danger of bodily harm and that the use of force is necessary to avoid said danger. Id. (quotation marks and citation omitted). When a defendant raises the issue of self-defense, the defendant must "satisf[y] the initial burden of producing some evidence from which a [factfinder] could conclude that the elements necessary to establish a prima facie defense of self-defense exist ...." People v. Stevens , 306 Mich. App. 620, 630, 858 N.W.2d 98 (2014) (quotation marks and citation omitted). The prosecution is then required to "exclude the possibility of self-defense beyond a reasonable doubt." Id. (quotation marks and citation omitted).

Bailey argues that he acted in self-defense because the victim pulled out a gun and shot at him. Bailey further contends that he felt it necessary to pull out his own gun and shoot back at the victim because he believed that he was in imminent danger of great bodily harm. In support of this assertion, Bailey argues that he was within his right to stand his ground in the face of a perceived attack. Bailey directs this Court to People v. Riddle , 467 Mich. 116, 119, 649 N.W.2d 30 (2002), in which our Supreme Court opined:

[A] person is never required to retreat from a sudden, fierce, and violent attack; nor is he required to retreat from an attacker who he reasonably believes is about to use a deadly weapon. In these circumstances, as long as he honestly and reasonably believes that it is necessary to exercise deadly force in self-defense, the actor's failure to retreat is never a consideration when determining if the necessity element of self-defense is satisfied; instead, he may stand his ground and meet force with force. [Citation omitted.]

The evidence presented at trial does not suggest that the victim used a deadly weapon against Bailey, which would have necessitated Bailey's use of deadly force as a means of self-defense. Rather, the evidence indicates that Bailey walked into the repair shop and walked back out again. After approximately seven minutes, Bailey reentered the repair shop, got into an argument with the victim, and shot him. The trial court viewed a surveillance video of the offense, and found that there was no indication that the victim pulled a gun out and fired at Bailey; rather, the trial court found that the surveillance video suggested that Bailey left the repair shop and then opened fire on the victim immediately after returning to the repair shop. Additionally, the evidence showed that Bailey shot the victim six times. One of the bullets entered through the victim's back, suggesting that the victim had his back to Bailey when he was shot. The trial court could certainly choose to disbelieve Bailey's argument that he acted in self-defense when he shot the victim six times, particularly in light of the surveillance video and the fact that one of the bullets entered the victim's body through his back. Further, although a .32 caliber revolver was discovered underneath the victim's body, there was no evidence that this gun was fired inside the repair shop. No .32 caliber bullets were found in the repair shop after the shooting, suggesting to the trial court that the victim did not fire his gun at Bailey. Thus, the prosecution presented sufficient evidence to rebut Bailey's theory of self-defense. See Stevens , 306 Mich. App. at 630, 858 N.W.2d 98.

Additionally, Bailey argues that because he acted in self-defense, the prosecution could not establish that he acted with malice. As previously noted, one of the elements of second-degree murder requires a defendant to act with malice. Smith , 478 Mich. at 70, 731 N.W.2d 411. Malice is defined as

the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm. Malice may be inferred from evidence that the defendant intentionally set in motion a force likely to cause death or great bodily harm.

[ People v. Werner , 254 Mich. App. 528, 531, 659 N.W.2d 688 (2002) (citation and quotation omitted).]

The prosecution is not required to prove that a defendant intended to harm or kill a specific victim. Id.

Rather, "the prosecution must prove the intent to do an act that is in obvious disregard of life-endangering consequences." Id. (quotation marks and citation omitted). In this instance, the prosecution proved that the victim's murder was not done in self-defense, and thus, no justification or excuse for the killing was presented in the trial court. It is clear that Bailey opened fire on the victim in a closed space, with—at the very least—complete disregard for the fact that his conduct could cause the victim great bodily injury or harm. Therefore, the prosecution presented evidence that proved, beyond a reasonable doubt, that Bailey acted with malice and without the justification of self-defense. See id . Accordingly, sufficient evidence existed to support Bailey's conviction of second-degree murder.

III. DUE PROCESS AND RIGHT TO COUNSEL

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