Circuit Court LC No. 17-004208-01-FC
Before: Jansen, P. J., and Cameron and Tukel, JJ.
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.
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.
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.
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
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
SUFFICIENCY OF THE EVIDENCE
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.
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).
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).]
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).
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
[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.
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.
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).]
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.
DUE PROCESS AND RIGHT TO COUNSEL
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
WITHDRAWAL OF PLEA
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).
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.
was scheduled to be sentenced following his entry into a plea
agreement. At the sentencing hearing, the following exchange
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 ...