People Of Mi V Kerriion Antonio Pope ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 24, 2022
Plaintiff-Appellee,
v No. 351578
Wayne Circuit Court
AJHAUN LYNN DAVIS, LC No. 19-004975-02-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 352161
Wayne Circuit Court
KERRIION ANTONIO POPE, LC No. 19-004975-01-FC
Defendant-Appellant.
Before: BOONSTRA, P.J., and GLEICHER and LETICA, JJ.
PER CURIAM.
In these consolidated appeals,1 defendants Ajhaun Lynn Davis (Davis) and Kerriion
Antonio Pope (Pope) appeal by right their convictions and sentences entered after a joint jury trial
before separate juries. In Docket No. 351578, Davis was convicted of first-degree felony murder,
MCL 750.316(1)(b), armed robbery, MCL 750.529, and two counts of carrying a firearm during
the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced Davis to
life in prison without parole (LWOP) for the felony murder conviction, a prison term of 35 to 60
years for the armed robbery conviction, and two-year prison terms for each count of felony-
1
See People v Davis, unpublished order of the Court of Appeals, entered January 15, 2020 (Docket
Nos. 351578 and 352161).
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firearm. In Docket No. 352161, Pope (who was 17 years old at the time the offenses were
committed) was convicted of first-degree felony murder, armed robbery, two counts of felony-
firearm, and two counts of witness bribing, intimidating, or interfering, MCL 750.122(7)(b). The
trial court sentenced Pope to prison terms of 33½ to 60 years for the felony murder and armed
robbery convictions, 2 to 10 years for each count of witness bribing, intimidating, or interfering,2
and two years for each count of felony-firearm. We vacate Davis’s convictions in Docket No.
351578; in Docket No. 352161, we affirm Pope’s convictions but remand for resentencing
regarding only his armed robbery conviction.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
This case arises from the shooting death of Marquis Hill on April 22, 2019 in Inkster,
Michigan. Keilon Pope (Keilon) testified at trial3 that he was Pope’s older brother and a close
friend of Davis’s. He lived at 4442 Spruce Street in Inkster with his girlfriend, Pope, and several
other family members. Keilon claimed, however, that he could not remember anything about the
shooting, about having answered questions in response to an investigative subpoena, or about
previously testifying in this case. Over defense counsels’ objections, the trial court agreed that the
prosecution could admit Keilon’s April 24, 2019 investigative subpoena testimony as substantive
evidence.
In pertinent part, Keilon previously testified that Davis had called him on the morning of
April 22, 2019, and had told Keilon that “he had a lick on the floor,” which Keilon understood to
refer to a robbery. Davis asked if Pope was there and whether Pope’s .45 caliber pistol was at the
house. Keilon testified that he anticipated that Davis would be coming over to the house to get
Pope’s gun to use in a robbery. Pope returned home around noon, and Davis arrived approximately
45 minutes later. Keilon testified that he and several others, including Davis, were outside smoking
marijuana while Davis exchanged text messages with Hill trying to arrange a place to meet so that
Davis could purchase marijuana from Hill. Pope and Davis eventually left the house together;
Keilon testified that he believed, based on the way he carried himself and adjusted his jacket, that
Pope was armed with his pistol. Approximately 10 to 15 minutes later, Keilon heard several
gunshots.
Pope and Davis ran back to Pope’s house together. Although Keilon testified that he did
not see a gun, he noticed that Davis had a black backpack that Keilon believed was filled with
marijuana. According to Keilon, Pope admitted shooting Hill, but claimed that he did so only
because Hill had reached for a gun. While Pope was showering, Davis told Keilon that he returned
to Hill’s vehicle to retrieve the backpack with the marijuana after Pope shot Hill. A friend of
Davis’s testified that she was present at the home that day and also observed Davis with a black
backpack she had not seen before. Pope’s girlfriend testified that Pope had admitted his
2
Pope raises no specific arguments on appeal concerning these charges, which stem from his
communications with his girlfriend while in jail awaiting trial.
3
Keilon testified under a grant of immunity.
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involvement in the incident and that he “hit a lick” or robbed someone for marijuana with the
assistance of a person she did not know.
Both defendants elected to take the stand in their own defense and provided substantially
similar testimony about the shooting. Davis explained that he had a history of purchasing
marijuana from Hill and arranged a deal with Hill on April 22, 2019, because Hill had indicated
that he had high-quality marijuana available at a low price. Davis and Pope met with Hill and
entered his car, with Hill in the driver’s seat, Davis in the front passenger seat, and Pope in the
backseat. Pope and Davis both planned to make a purchase, but when Hill arrived they realized
the marijuana was not of satisfactory quality. Davis told Hill that he was no longer interested,
prompting Hill to point a gun at Davis and demand that Davis, “[G]ive [him] everything.” Pope
testified that he then fired his gun in the direction of the front driver’s seat, believing that Hill was
about to shoot Davis. The three men exited the vehicle as Hill and Pope continued to exchange
gunfire. Defendants said they ran back to Pope’s house without taking any of Hill’s marijuana.
Davis specifically denied ever possessing a black backpack, full of marijuana or otherwise, on the
day of the shooting.
Pope’s trial testimony differed significantly from the statement he gave to police after the
shooting, at which time he admitted that he and Davis had planned to rob Hill. Pope told police
that Davis had contacted him about a robbery, that Davis had brought the gun, and that, during the
exchange with Hill, Pope did not fire a gun but did “hear[] a shot go off.”
Defendants were convicted and sentenced as described. These appeals followed.
II. DOCKET NO. 351578
Davis argues on appeal that the trial court erred by refusing to instruct his jury regarding
self-defense or defense of others. We agree.
“We review a claim of instructional error involving a question of law de novo, but we
review the trial court’s determination that a jury instruction applies to the facts of the case for an
abuse of discretion.” People v Craft, 325 Mich App 598, 604; 927 NW2d 708 (2018), quoting
People v Everett, 318 Mich App 511, 528; 899 NW2d 94 (2017) (quotation marks omitted). “An
abuse of discretion occurs when the trial court’s decision is outside the range of reasonable and
principled outcomes.” Craft, 325 Mich App at 604.
The trial court is responsible for instructing the jury on the applicable law. Everett, 318
Mich App at 528. In order to be entitled to an instruction regarding an affirmative defense, the
defendant must produce some evidence in support of each element of the defense. People v
Guajardo, 300 Mich App 26, 34-35; 832 NW2d 409 (2013). If the evidence supports a self-
defense or defense-of-others theory, the jury must be instructed accordingly. People v Rajput, 505
Mich 7, 11; 949 NW2d 32 (2020), amended by 505 Mich 1112 (2020). However, a trial court’s
failure to instruct the jury on a defense, even if erroneous, does not provide an automatic basis for
reversal. Everett, 318 Mich App at 528. For preserved, nonstructural, constitutional error, reversal
is unnecessary if the beneficiary of the error establishes “beyond a reasonable doubt that there is
no reasonable possibility that the [error] complained of might have contributed to the conviction.”
People v Anderson (After Remand), 446 Mich 392, 406; 521 NW2d 538 (1994) (quotation marks
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and citation omitted). See also People v Rajput, 505 Mich 1112 (2020) (remanding for
determination of whether denial of self-defense instruction was harmless beyond a reasonable
doubt).
Recently, in People v Leffew, __ Mich __; __ NW2d __ (2022) (Docket Nos. 161797 and
161805), our Supreme Court extensively discussed the defense-of-others defense at both common
law and as modified by Self Defense Act (SDA) MCL 780.971 et seq. MCL 780.972(1):
Under the defense-of-others doctrine, “[o]ne may use force in defense of another
when he or she reasonably believes the other is in immediate danger of harm and
force is necessary to prevent the harm; deadly force is permissible to repel an attack
which reasonably appears deadly.” 3A Gillespie, Michigan Criminal Law &
Procedure (2d ed.), § 91:59, p. 399; see also 2 LaFave, Substantive Criminal Law,
§ 10.5, p. 222 (3d ed.). As with self-defense, defense of others is generally not
available to a person who is the initial aggressor. See People v Riddle, 467 Mich
116, 120 n 8; 649 NW2d 30 (2002).
Though invoked less commonly than its more popular sibling, self-defense, the
defense-of-others doctrine has deep roots in Michigan jurisprudence. In 1860, we
addressed the narrow class of “excusable homicide[s]” and noted that the accused
in such cases acts in “the defense of [his] own life, or that of his family, relatives
or dependants [sic], within those relations where the law permits the defense of
others as of one's self.” Pond v People, 8 Mich 150, 175 (1860) (emphasis added).
In the century and a half following Pond, Michigan courts have repeatedly
recognized the common-law defense-of-others doctrine. See People v Curtis, 52
Mich 616, 622-624; 18 NW 385 (1884) (the defendant in a homicide case “was
entitled and bound to take an interest in the life and safety of his brother,” and his
use of a deadly weapon to that end was not necessarily evidence of malice); People
v Burkard, 374 Mich 430, 437-438; 132 NW2d 106 (1965), partially abrogated on
other grounds by People v Heflin, 434 Mich 482; 456 NW2d 10 (1990) (the
defendant was entitled to an accurate jury instruction related to his claim that his
act of homicide was based on his belief that his wife's life was in danger); People v
Wright, 25 Mich App 499, 503; 181 NW2d 649 (1970) (per Curtis, the defendant
had a right to protect his brother, even though that right had no application on the
facts of this manslaughter case); People v Kurr, 253 Mich App 317; 654 NW2d 651
(2002) (applying the defense-of-others doctrine in a homicide prosecution where
the pregnant defendant stabbed a man who was repeatedly punching her stomach);
see also Bendinelli & Edsall, Defense of Others: Origins, Requirements,
Limitations and Ramifications, 5 Regent U L Rev 153 (1995) (tracing the common-
law history of the defense-of-others doctrine, as the early English self-defense
doctrine gradually evolved to include defense of family members and, eventually,
strangers).
* * *
[T]he SDA . . . expanded, rather than contracted, the ability to invoke the
affirmative defenses of self-defense and defense of others. The SDA codified and
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expanded “the circumstances in which a person may use deadly force in self-
defense or in defense of another person without having the duty to retreat.” [People
v] Dupree, 486 Mich [693,] [][] 708; 788 NW2d 399 [(2010)]. Section 2 of the
SDA removed the traditional common-law duty to retreat, so long as the individual
engaging in self-defense or defense of others was not committing or had not
committed a crime and had a legal right to be where they were when they used
force. MCL 780.972; 1 Gillespie, § 1:63, pp. 162-163.
But aside from limiting one's duty to retreat, the statute did not modify or abrogate
the common-law defenses of self-defense or defense of others. People v Conyer,
281 Mich App 526, 530; 762 NW2d 198 (2008); see also People v Guajardo, 300
Mich App 26, 35-36; 832 NW2d 409 (2013). As we have said many times, “[w]e
will not lightly presume that the Legislature has abrogated the common law.” Velez
v Tuma, 492 Mich 1, 11; 821 N.W.2d 432 (2012); Dupree, 486 Mich at 706; 788
N.W.2d 399; Triplett, 499 Mich at 58; 878 N.W.2d 811. But here we don't have to
presume because the Legislature left no doubt: § 4 of the SDA states that the statute
“does not diminish an individual's right to use deadly force or force other than
deadly force in self-defense or defense of another individual as provided by the
common law of this state. . . .” MCL 780.974. [Leffew, slip op at 10-13.]
The Court in Leffew noted that the defense was available as to at least some non-assaultive
crimes, holding that “[t]he applicability of the defense must be determined on the particular facts
of each case, not the charges the prosecution brings.” Id. at ___; slip op at 14. The Court concluded
that the defendants’ counsel had performed below an objective standard of reasonableness for
failing to request a common-law defense-of-others instruction, pointing out that, although the
statutory defense was precluded by the SDA’s “stand your ground” provision, “the SDA neither
abrogated nor limited the common-law affirmative defense of defense of others.” Id., slip op at
14. The Court held that the defendants had presented evidence in support of the defense-of-others
theory, but that the lack of an instruction on the defense of others deprived the jury of any path to
a verdict of acquittal. Id. at ___; slip op at 21-22, 26-27.
In this case, Pope’s jury was instructed on self-defense and defense of others. Counsel for
Davis requested an instruction on defense of others based on his theory that Pope had shot Hill in
defense of Davis. The trial court denied the request, stating that “[a] person that says they did
nothing did not act in self-defense.” The trial court’s reasoning was incorrect. As Davis points
out on appeal, the trial court in Rajput, 505 Mich at 9-10, refused to give an instruction on self-
defense when the defendant claimed that a person he was aiding committed a homicide in self-
defense. The Supreme Court rejected the trial court’s reasoning because the defendant would be
relieved of liability if the principal had acted in self-defense. Id. at 11. The same rationale applies
in this case. Davis’s theory was that Hill had tried to rob defendants and that Pope had shot Hill
to defend Davis. There was evidence to support this theory, as both defendants testified that they
were simply attempting to purchase marijuana from Hill when Hill pointed a gun at Davis in an
attempted robbery. A .40 caliber gun was found near Hill’s body, an extra .40 caliber magazine
was located in the glovebox of Hill’s vehicle, and a concealed pistol license was discovered in his
wallet. Both .40 caliber and .45 caliber casings were discovered at the crime scene, demonstrating
that at least two people were shooting, consistent with defendants’ version of the events. The fact
that Davis denied having personally shot Hill is immaterial—if the jury had believed that Pope
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shot Hill in defense of Davis, it would have been appropriate for the jury to find Davis not guilty
of felony murder as an aider and abettor. Id.; see also Leffew, ___ Mich at ___; slip op at 10. The
trial court erred by concluding otherwise.
Moreover, under Leffew, we cannot conclude that the trial court’s error was harmless. In
Leffew, defense counsel neglected to request a defense-of-others instruction for their clients, id. at
6, Micheline and Jeremiah Leffew, an omission that our Supreme Court deemed deficient
performance under Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
Leffew, ___ Mich at ___, slip op at 17. The Court then addressed whether the failure to request a
defense-of-others instruction prejudiced the defendants. Under the Strickland standard, the
defendants had to demonstrate “a reasonable probability of a different outcome had the error not
been committed.” Id. at 18, citing Strickland, 466 US at 694. Such a probability existed, the
Supreme Court reasoned, because a defense-of-others instruction “would have come with a
corollary jury instruction explaining that the prosecution had to disprove that Micheline acted in
defense of [another] beyond a reasonable doubt.” Leffew, ___ Mich at ___, slip op at 20-21
(emphasis added). Furthermore, the Supreme Court stressed as to Micheline, “[h]er defense
hinged on an excuse the law recognizes—defense of others—but those dots were never connected
for the jury.” Id. at p 21. Regarding Jeremiah, the Court observed that even if the jury was not
convinced that Micheline “acted with just cause or excuse” and the two defendants shared the same
factual defense, a court cannot “assume that jurors, when tasked with judging two defendants in a
joint trial, would, without being instructed to do so, impute jury instructions for one to defendant
to the other.” Id. at 24 (quotation marks omitted).
In this case, Pope’s jury was instructed that in order to find that he had acted in self-defense
or in defense of others, it was first required to determine that “the defendant must not have been
engaged in the commission of a crime.” This instruction tracks with the modification of the
common-law duty to retreat found in the SDA; MCL 780.972(1) limits the applicability of the
SDA to “[a]n individual who has not or is not engaged in the commission of a crime” at the time
deadly force is used. See also Guajardo, 300 Mich App at 36 (discussing limitation in self-defense
statute).
However, as the Supreme Court observed in Leffew, “aside from limiting one’s duty to
retreat, the [SDA] did not modify or abrogate the common-law defenses of self-defense or defense
of others.” Leffew, ___ Mich at ___, slip op at 13. See also MCL 780.974 (providing that the
SDA “does not diminish an individual’s right to use deadly force or force other than deadly force
in self-defense of another individual as provided by the common law of this state . . . .”). Davis
was therefore entitled to a jury instruction on common-law self-defense (even though he may not
have been entitled to a jury instruction under the SDA.
Davis’s jury was not instructed on common-law self-defense, however. Davis’s counsel
did request the same SDA instruction that Pope’s jury had received. The trial court denied that
request. Although Davis’s counsel did not specifically request a common-law instruction, the trial
court’s holding that the defense was not available because Davis had said “that he did nothing”
leads us to believe the result would have been the same if counsel had elaborated (or been able to
elaborate) on the issue. And, as in Leffew, the trial court’s ruling left the jury without the means
to acquit Davis if it determined that Pope or Davis had been “engaged in the commission of a
crime” when the shooting took place. MCL 780.972(1). Because, at a minimum, both defendants
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admitted that they met Hill to illegally purchase marijuana, we conclude that the error was not
harmless beyond a reasonable doubt. See Rajput, 505 Mich at 12.
Davis’s jury should have been instructed on the common-law defense of others and should
have been permitted to consider such issues as whether Hill was the initial aggressor or whether
the duty to retreat was implicated. Rajput, 505 Mich at 12. Because we vacate his sentences and
remand for a new trial on the basis of this error, we decline to address the remainder of Davis’s
arguments on appeal.
III. DOCKET NO. 352161
A. INVESTIGATIVE SUBPOENA TESTIMONY
Pope argues on appeal that the trial court erred by admitting Keilon’s investigative
subpoena testimony as substantive evidence. We disagree.
To the extent that Pope’s claim of error rests on the application of evidentiary rules, this
issue was preserved below by a timely objection from his attorney. Thorpe, 504 Mich at 252.
However, Pope’s trial counsel did not object on the basis that the challenged evidence violated the
Confrontation Clause, so Pope’s constitutional claim is unpreserved. Id.
Preserved claims of evidentiary error are reviewed for an abuse of discretion. People v
Clark, 330 Mich App 392, 428; 948 NW2d 604 (2019). “An abuse of discretion occurs when the
trial court’s decision is outside the range of reasonable and principled outcomes.” Craft, 325 Mich
App at 604. We review unpreserved claims for plain error affecting the defendant’s substantial
rights. Brown, 326 Mich App at 195.
We note that Pope’s evidentiary argument is arguably not properly before this Court, as it
falls outside the scope of his statement of the question presented, which frames this issue as strictly
a matter of constitutional law. People v Mysliwiec, 315 Mich App 414, 420; 890 NW2d 691
(2016). In any event, we conclude that his evidentiary argument lacks merit.
The trial court ruled that Keilon’s investigative subpoena testimony was substantively
admissible as a prior inconsistent statement under MRE 801(d)(1)(A), citing this Court’s opinion
in People v Chavies, 234 Mich App 274; 593 NW2d 655 (1999), overruled in part on other grounds
by People v Williams, 475 Mich 245 (2006). The defendant in Chavies challenged the admission
of grand jury testimony from two witnesses, arguing that their lack of memory at trial was not
inconsistent with their grand jury testimony for purposes of MRE 801 and that they were
unavailable and not subject to cross-examination for purposes of MRE 804. Id. at 281. This Court
concluded that the inadmissibility of the prior testimony under MRE 804 was harmless because
the testimony was properly admitted under MRE 801(d)(1)(A). Id. at 284.
MRE 801(d)(1)(A) provides that a statement is not hearsay if
[t]he declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is (A) inconsistent with the declarant’s
testimony, and was given under oath subject to the penalty of perjury at a trial,
hearing, or other proceeding, or in a deposition . . . .
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In assessing whether the witnesses’ grand jury testimony fell within the scope of this rule, the
Chavies Court accepted as persuasive federal precedent regarding the nearly identically worded
federal rule of evidence, FRE 801(d)(1)(A). Chavies, 234 Mich App at 282. Specifically, the
Court cited federal authority reasoning that “for purposes of FRE 801(d)(1)(A), inconsistency is
not limited to diametrically opposed answers but may be found in evasive answers, inability to
recall, silence, or change of position.” Id. (quotation marks and citation omitted). Therefore,
because the witnesses testified at trial that they could not remember anything, despite having
implicated the defendant in their grand jury testimony, their former testimony satisfied the
inconsistency requirement of MRE 801(d)(1)(A). Id. at 282-283.
The trial court correctly applied Chavies in admitting Keilon’s investigative subpoena
testimony. Pope concedes that the investigative subpoena hearing was a “hearing” for purposes
of MRE 801(d)(1)(A), but argues that Keilon’s testimony at trial was not inconsistent. But Keilon
testified at trial that he could not remember anything about the events surrounding the shooting,
nor did he recall making any of the incriminating statements reflected in the transcript of his former
testimony. Chavies makes clear that “evasive answers” and an “inability to recall” in these
circumstances constitutes inconsistent testimony that renders prior sworn statements admissible
under MRE 801(d)(1)(A). Id. Consequently, the trial court did not abuse its discretion by
admitting Keilon’s prior sworn testimony from the investigative subpoena hearing.
This Court’s opinion in Chavies further demonstrates that Pope’s constitutional argument
must also fall:
Regarding defendant’s right of confrontation, the Supreme Court has held
that, when witnesses are present at trial and could be cross-examined about their
statements—even though they claim to remember nothing—the witnesses are
“available” for cross-examination within the meaning of the Confrontation Clause.
United States v Owens, 484 US 554, 559; 108 S Ct 838; 98 L Ed 2d 951 (1988) . . . .
“[T]he Confrontation Clause guarantees only ‘an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.’ ” Owens, supra at 559 (quoting Kentucky
v Stincer, 482 US 730, 739; 107 S Ct 2658; 96 L Ed 2d 631 [1987]). “It is sufficient
that the defendant has the opportunity to bring out such matters as the witness’ bias,
his lack of care and attentiveness, his poor eyesight, and even (what is often a prime
objective of cross-examination . . .) the very fact that he has a bad memory.”
Owens, supra at 559 (citation omitted). “The weapons available to impugn the
witness’ statement when memory loss is asserted will of course not always achieve
success, but successful cross-examination is not the constitutional guarantee.”
Owens, supra at 560. Therefore, although the witnesses claimed to remember
nothing at trial, defendant’s right of confrontation was not violated by the admission
of their grand jury testimony. [Id. at 283 (alterations in original).]
Chavies remains binding on this point and compels the conclusion that admission of Keilon’s prior
testimony did not violate Pope’s right to confrontation because Keilon testified at trial and was
therefore available for cross-examination, even if such examination was limited by Keilon’s poor
memory. MCR 7.215(J)(1). No error, plain or otherwise, occurred with respect to this issue.
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B. INEFFECTIVE ASSISTANCE OF COUNSEL
Pope also argues that he was denied the effective assistance of counsel when his attorney
failed to move to sever his trial from Davis’s, or to properly prepare him to testify. We disagree.
Pope filed a motion for remand with this Court for the purpose of raising this issue below, which
motion this Court denied.4 In the absence of an evidentiary hearing, our review is limited to
mistakes apparent on the record. Muhammad, 326 Mich App at 63.
Again, claims of ineffective assistance of counsel involve mixed questions of fact and
constitutional law. Hoang, 328 Mich App at 63. This Court reviews factual findings for clear
error and constitutional questions de novo. Id. As noted earlier, a defendant pressing a claim of
ineffective assistance of counsel must demonstrate that “(1) counsel’s performance fell below an
objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a
reasonable probability that the outcome would have been different.” Trakhtenberg, 493 Mich at
51. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Muhammad, 326 Mich App at 63 (quotation marks and citation omitted). The defendant bears a
heavy burden to overcome the presumption that his counsel’s actions were sound trial strategy.
Carbin, 463 Mich at 600.
“Under MCR 6.121(C), the trial court ‘must sever the trial of defendants on related
offenses on a showing that severance is necessary to avoid prejudice to substantial rights of the
defendant.’ ” People v Furline, 505 Mich 16, 20; 949 NW2d 666 (2020). Pope argues that he was
prejudiced by the joint trial because, due to the erroneous admission of Keilon’s investigative
subpoena testimony, both defendants felt compelled to testify to contradict those accusations, and
the juries should not have been permitted to hear both defendants testify to their versions of events.
Essentially, Pope argues that Davis and Pope each sought to place the blame on the other defendant
for the events surrounding the shooting. Severance may indeed be warranted when joint
defendants present mutually exclusive or antagonistic defenses that create a serious risk of
prejudice. Id. at 21. But requisite prejudice only occurs when “the competing defenses are so
antagonistic at their cores that both cannot be believed.” Id. (quotation marks and citation omitted).
Here, Davis’s testimony and theory of the case was not antagonistic to Pope’s defense. They both
testified to essentially the same version of events, in which Davis had arranged a marijuana
purchase from Hill and Pope shot Hill after Hill attempted to rob them at gunpoint. Although each
defendant may have tried to minimize his own role in the events and to emphasize the culpability
of the other, their versions were not factually inconsistent or otherwise impossible to both be
believed. Because defendants relied on the same defense, there was no basis to sever the trial, and
defense counsel was not ineffective in failing to seek severance before trial. Id.
Pope also argues that he was denied the effective assistance of counsel when his attorney
failed to adequately prepare him to testify, thereby leaving Pope unprepared to respond to a
4
People v Pope, unpublished order of the Court of Appeals, entered January 15, 2021 (Docket No.
352161).
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question from the jury about why he would own an unregistered gun and be involved in a crime.5
We disagree. Lawyers are not omniscient; the effective assistance of counsel does not require an
attorney to foresee every question that might be asked of a witness, especially on matters tangential
to the key issues in dispute. Moreover, Pope swore or affirmed, as all testifying witnesses do, to
tell the truth in response to questions. We decline to conclude that Pope’s defense attorney’s
failure to anticipate a specific question and instruct Pope exactly how to respond was unreasonable.
Even if we were to conclude otherwise, there is no evidence that Pope was prejudiced by
defense counsel’s performance. In response to the juror’s question, Pope testified that he acquired
a gun for protection because he lived in an unsafe area and the transaction with Hill “wasn’t
supposed to be a crime,” as he was simply attempting to purchase marijuana. Pope’s answer was
a reasonable response to the juror’s question, and Pope has not demonstrated a reasonable
probability that a different result would have been reached but for defense counsel’s failure to
specifically instruct Pope how to respond to such a question.
C. SENTENCE PROPORTIONALITY
Lastly, Pope argues that he is entitled to resentencing because the trial court failed to
explain why the 33½ to 60-year sentence it imposed for armed robbery satisfied the principle of
proportionality. We agree.
This Court reviews for an abuse of discretion the reasonableness of a particular sentence.
People v Dixon-Bey, 321 Mich App 490, 520; 909 NW2d 458 (2017). “A sentence is
unreasonable—and therefore an abuse of discretion—if the trial court failed to adhere to the
principle of proportionality in imposing its sentence on a defendant.” People v Lampe, 327 Mich
App 104, 125; 933 NW2d 314 (2019). A sentencing court “necessarily abuses its discretion when
it makes an error of law.” Wiley, 324 Mich App at 165 (quotation marks and citation omitted).
Pope was 17 years old at the time of the underlying offenses. As is permitted by
MCL 769.25, the prosecution opted not to seek a LWOP sentence for Pope’s felony-murder
conviction. During sentencing, the trial court discussed at length its opinion that Pope was “set up
for failure” by poor examples of behavior in the people around him and having been raised in an
environment that misconstrued the concept of manhood. Considering his circumstances, the court
determined that a sentence of 33½ to 60 years’ imprisonment was appropriate for the felony-
murder conviction. It then added without further explanation that Pope’s sentence for armed
robbery would be the same.
The principle of proportionality “requires sentences imposed by the trial court to be
proportionate to the seriousness of the circumstances surrounding the offense and the offender.”
People v Walden, 319 Mich App 344, 351-352; 901 NW2d 142 (2017) (quotation marks and
citation omitted). Trial courts are free to impose sentences outside of the sentencing guidelines
when the guidelines do not adequately address important factors. Id. at 352. “Trial courts must
consult the sentencing guidelines when imposing a sentence, but the key test is whether the
5
We note that Pope’s attorney did object to the juror’s question as assuming that Pope was
involved in the commission of a crime, but the trial court overruled the objection.
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sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres
to the guidelines’ recommended range.” People v Lydic, ___ Mich App ___, ___; ___ NW2d ___
(2021) (Docket No. 349216); slip op at 8 (quotation marks and citation omitted).
With respect to his armed robbery conviction, Pope was assessed 25 points for prior record
variables and 85 points for offense variables, resulting in a recommended minimum sentence of
135 to 225 months. MCL 777.62. The trial court’s minimum sentence of 33½ years (or 402
months) for armed robbery was thus significantly out-of-guidelines. In selecting an appropriate
sentence, “the trial court must justify the sentence imposed in order to facilitate appellate review,
which includes an explanation of why the sentence imposed is more proportionate to the offense
and the offender than a different sentence would have been.” Dixon-Bey, 321 Mich App at 525
(quotation marks and citation omitted). Here, the trial court did not provide an explanation of any
kind for the out-of-guidelines sentence. And the mere fact that the armed robbery sentence
matched the sentence imposed for felony-murder is not a sufficient basis for the sentence because
it fails to establish that the chosen sentence was proportionate to the sentencing offense, i.e., armed
robbery, rather than felony murder. Because the trial court did not provide a sufficient basis for
this Court to determine that the out-of-guidelines sentence was justified by the seriousness of the
circumstances surrounding both the offense and the offender, we remand for the trial court to
resentence Pope on the armed robbery conviction only, and to articulate a rationale should it choose
to again impose an out-of-guidelines sentence. People v Steanhouse, 500 Mich 453, 476; 902
NW2d 327 (2017).
IV. CONCLUSION
In Docket No. 351578, we vacate Davis’s convictions and sentences and remand for further
proceedings consistent with this opinion. We do not retain jurisdiction.
In Docket No. 352161, we affirm Pope’s convictions and sentences, except that we vacate
his sentence for armed robbery and remand for resentencing on that offense only. We do not retain
jurisdiction.
/s/ Mark T. Boonstra
/s/ Elizabeth L. Gleicher
/s/ Anica Letica
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