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People v. Bailey

Court of Appeals of Michigan

September 24, 2019

KENYON BAILEY, Defendant-Appellant.

          Wayne Circuit Court LC No. 17-004208-01-FC

          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 Bailey 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.


         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, but he returned to his car approximately four minutes later. Bailey 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.

         Detroit police 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. 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.


         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 Const Co, 272 Mich.App. 470, 473; 726 N.W.2d 746 (2006). "The evidence is viewed in a light most favorable to the prosecution to determine whether the trial court could have found that the essential elements of the crime were proven beyond a reasonable doubt." Id. at 474. "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. When a defendant raises the issue of self-defense, he must "satisffy] 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 in self-defense 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. [Footnote 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 from behind. Further, although a .32 caliber revolver was discovered underneath the victim's body, there was no evidence that the gun was actually 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.

         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. 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 Werner, 254 Mich.App. at 531. Accordingly, sufficient evidence existed to support Bailey's conviction of second-degree murder.


         Bailey argues that the trial court violated his right to due process and right to counsel. Bailey first argues that the trial court violated his right to due process by failing to allow him time to consult with his attorney before withdrawing his plea. He then argues that the trial court violated his right to counsel when it sua sponte substituted his appointed defense counsel. We disagree that the trial court's plea procedures violated Bailey's right to due process, but we agree that the trial court erred by substituting defense counsel. However, the trial court's substitution of counsel did not constitute plain error affecting Bailey's substantial rights; therefore, Bailey is not entitled to relief.


         This Court reviews a trial court's decision regarding a motion to withdraw a plea for an abuse of discretion. People v Martinez, 307 Mich.App. 641, 646; 861 N.W.2d 905 (2014). "An abuse of discretion occurs when the trial court's decision is outside the range of principled outcomes." Id. (quotation marks and citation omitted). This Court reviews all underlying questions of law de novo. Id. "[A] trial court's factual findings are reviewed for clear error." Id. at 646-647. (quotation marks and citation omitted).

         Before sentencing, as is the case here, a trial court may withdraw a plea "on the defendant's motion or with the defendant's consent, only in the interest of justice . . . ." MCR 6.310(B)(1). A plea is considered to be withdrawn "in the interest of justice" if a defendant provides "a fair and just reason" for withdrawing the plea. People v Fonville, 291 Mich.App. 363, 378; 804 N.W.2d 878 (2011) (quotation marks and citation omitted). "Fair and just reasons include reasons like a claim of actual innocence or a valid defense to the charge." Id. Conversely, "dissatisfaction with the sentence or incorrect advice from the defendant's attorney" are not considered "fair and just reasons" for withdrawing a plea. Id.

         Bailey was scheduled to be sentenced following his entry into a plea agreement. At the sentencing hearing, the following exchange took place:

Defendant Bailey: Hey I-Listen, I am not guilty .... I shouldn't have took [sic] this plea, I should have went [sic] to trial you know.
I was scared. I didn't understand it really, you know, what I'm saying, and-
The Court: You had a right to be scared.
Defendant Bailey: Right, you know, I didn't go up there to kill that man, no, honest to God I didn't. [The victim] shot at me first, and that man had a gun on him and I had my gun on me but he pulled his out first and it's on camera and that's all I got to say, sir.
Ms. Logan [the prosecutor]: Well, Your Honor, it sounds like the defendant is trying to withdraw his plea.
The Court: That's what it sounds like, is that what you are trying to do?
Defendant Bailey: Yes, sir, that's why I went to the library, I want to withdraw my plea.
The Court: Hold it, hold it. I don't want to hear about you going to the ...

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