Instructional error; Right to a fair trial, to present a defense, & to a properly instructed jury; Self-defense & defense of others; People v Lefew; The deadly aggressor-withdrawal instruction; Admission of evidence; Relevance; Unfair prejudice; MRE 403; Other acts evidence; MRE 404(b); Ineffective assistance of counsel; Trial strategy; Failure to make a futile objection; Prejudice; Vindictive sentencing; Guidelines scoring error; Resentencing

The court held that defendant’s right to a fair trial was not violated. However, he was entitled to resentencing because his minimum guidelines range was miscalculated. He was charged in relation to the victim’s shooting death at a party after a fight broke out. The Michigan Supreme Court vacated his convictions from his first trial, finding the trial court erred by admitting rap videos made by defendant and his friends, “which confused the issue before the jury and ‘portrayed [defendant] as a ruthless and menacing threat to the community who would shoot upon the least provocation.’” It remanded for a new trial. On remand, he was convicted of second-degree murder and felony-firearm and sentenced to 35 to 125 years for second-degree murder, an increase from what he received at his first sentencing. The trial court denied his motion for a second new trial. On appeal, the court rejected his argument that the trial court’s instruction on deadly-aggressor withdrawal was erroneous and effectively prevented the jury from acquitting him under a theory of defense of others. “Because an initial aggressor has no legal right to use deadly force to defend others, they remain subject to the common-law duty to retreat.” And there was evidence at trial for the jury to conclude defendant was the initial aggressor. The court also rejected his claim that the admission of several pieces of unduly prejudicial photographic and other acts evidence violated his right to a fair trial, and that his trial counsel’s failure to object constituted ineffective assistance of counsel. “[A]ny prejudice resulting from the admission of more than one photograph was insufficient to change the verdict” The photos were duplicative, but did not portray him “as any more ‘ruthless and menacing’ than one” photo would have. And evidence that his friends pled guilty to crimes in connection with this case was more probative than prejudicial. In addition, “trial counsel was not ineffective for failing to object . . . .” Finally, the court rejected his contention that his sentence was vindictive, noting a “changed guidelines range counsels against a finding of vindictiveness.” However, it found he was entitled to resentencing because the guidelines were not scored correctly. “[T]he trial court erred by assigning 10, rather than 5, points to PRV 2 and by assigning 25, rather than zero, points to OV 13.” When properly calculated, his “total PRV score should have been 25 points, and his total OV score should have been 90 points. With these scores, [he] still would have been scored at PRV Level D, but he would have been scored at OV Level II (as opposed to OV Level III).” As such, his minimum “guidelines range would have changed. Because [his] sentence is based on an inaccurate calculation of the sentencing guidelines range and, therefore, does not conform to the law, [he] is entitled to resentencing.” Affirmed in part, vacated in part, and remanded for resentencing.