Order Michigan Supreme Court
Lansing, Michigan
January 24, 2018 Stephen J. Markman,
Chief Justice
Brian K. Zahra
Bridget M. McCormack
155115 David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
Elizabeth T. Clement,
Justices
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v SC: 155115
COA: 328759
Kent CC: 15-000869-FC
JAMAL DEVONTA BENNETT,
Defendant-Appellant.
_________________________________________/
By order of September 20, 2017, the prosecuting attorney was directed to answer
the application for leave to appeal the November 17, 2016 judgment of the Court of
Appeals. On order of the Court, the answer having been received, the application for
leave to appeal is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting
leave to appeal, we VACATE that part of the Court of Appeals judgment addressing
whether the erroneous admission of the music videos and gang-affiliation evidence was
harmless, and we REMAND this case to that court for reconsideration of those issues.
The Court of Appeals correctly stated that “[a] preserved error in the admission of
evidence does not warrant reversal unless after an examination of the entire cause, it shall
affirmatively appear that it is more probable than not that the error was outcome
determinative.” People v Burns, 494 Mich 104, 110 (2013) (quotation marks and citation
omitted). However, the Court of Appeals failed to adequately explain why the erroneous
admission of the music videos was harmless under this standard, especially in light of the
prosecutor’s concession that the record does not reflect that this was a gang-motivated
killing, the defendant’s admission that he was the shooter, and, in particular, the
defendant’s asserted affirmative defenses of self-defense and defense of others, which the
prosecution bore the burden of disproving beyond a reasonable doubt. People v Dupree,
486 Mich 693, 697 (2010). On remand, the Court of Appeals shall engage in an
examination of the entire cause and reconsider whether it is more probable than not that
the preserved error in the admission of the music videos was outcome determinative.
Burns, 494 Mich at 110.
2
Because the error in the admission of the gang-affiliation testimony was not
preserved, the Court of Appeals shall review that error under the plain-error standard.
People v Carines, 460 Mich 750, 763-764 (1999). In determining whether the defendant
has carried his burden of showing prejudice, the Court of Appeals shall take into account
the considerations noted above. Finally, in relation to both errors, the Court of Appeals
shall address whether the erroneously admitted evidence, in conjunction with the
prosecutor’s arguments in closing that this evidence showed the “mentality” of the
defendant and his friends on the night of the offense and the “lifestyle” they lived,
constituted impermissible character evidence used to prove that the defendant “acted in
conformity with the character traits commonly associated with gang members on a
particular occasion, in violation of MRE 404(a).” People v Bynum, 496 Mich 610, 631
(2014); see also Michelson v United States, 335 US 469, 475-476 (1948) (explaining that
character evidence is generally inadmissible not because it “is irrelevant; on the contrary,
it is said to weigh too much with the jury and to so overpersuade them as to prejudge one
with a bad general record and deny him a fair opportunity to defend against a particular
charge”).
In all other respects, leave to appeal is DENIED, because we are not persuaded
that the remaining questions presented should be reviewed by this Court.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
January 24, 2018
a0117
Clerk