PEOPLE OF MI V DATRELL IVEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 25, 2003
Plaintiff-Appellee,
v
No. 241588
Wayne Circuit Court
LC No. 01-009669
DATRELL IVEY,
Defendant-Appellant.
Before: Fort Hood, P.J., and Murphy and Neff, JJ.
PER CURIUM.
Defendant was convicted, following a jury trial, of voluntary manslaughter, MCL
750.321, two counts of felonious assault, MCL 750.82, and possession of a firearm during the
commission of a felony, MCL 750.227b. He was sentenced to 10 to 15 years’ imprisonment on
the manslaughter conviction, 18 months to 4 years’ imprisonment on each of the assault
convictions, and 2 years’ imprisonment on the felony-firearm conviction. Defendant appeals as
of right. The sole issue on appeal is whether the trial court erred in sentencing defendant to a 10year minimum prison term with respect to the manslaughter conviction, where the minimum
sentencing guidelines range was 36 to 71 months’ imprisonment. Defendant’s conviction is
affirmed, but we reverse and remand for resentencing because the trial court failed to articulate,
on the record, substantial and compelling reasons for departure from the guidelines that are
objective and verifiable.
I. FACTS – TRIAL TESTIMONY
This case arises out of the fatal shooting of Kenon Shaw outside defendant’s residence
following a physical altercation earlier in the evening involving defendant, his brother Thomas,
Kenon’s two brothers Jerome and Tyrone, and Kenon’s cousin Billy at a local Wendy’s
Restaurant. The shooting was the culmination of ongoing “bad blood” between members of
defendant’s and Kenon’s family.1
1
The trial and sentencing transcripts indicate that members of the two families engaged in
disruptive behavior inside and directly outside the courtroom during the trial and sentencing,
forcing the trial court to threaten the removal of family members during the trial, and forcing the
(continued…)
-1-
Testimony by police officers who responded to the crime scene established that Kenon’s
body was found in the street in front of defendant’s house; he was still alive and being comforted
by Tyrone’s girlfriend Shanetta. Unfortunately, Kenon died soon thereafter despite police efforts
to save his life. The police found a broken ax handle in the street near Kenon’s body. Police
officers testified that defendant’s house, where he lived with his parents and two brothers
Thomas and Tommy, Jr., had a front porch, and the home was located a short distance from the
street. Two bullet casings were discovered on the front porch, and two casings were found in
defendant’s living room. There was a gunshot strike mark on a front porch beam. The splintered
beam was near the two bullet casings on the front porch, and an officer opined that the strike
mark revealed that the bullet was going in the direction of the street. Police also found a live
bullet resting in the living room. A work-related box cutter was discovered on Kenon. The
pathologist testified that Kenon was struck by three bullets, including two to the chest, which
caused Kenon’s death. The pathologist opined that Kenon was not shot at close range.
Kenon’s brother Tyrone testified that he, Kenon, Billy, and Shanetta drove to defendant’s
house because Kenon wanted to “talk” to defendant’s brother Thomas about the earlier incident
at the restaurant. The altercation at the restaurant resulted in the police arresting Kenon’s
brother Jerome on an outstanding warrant; Jerome was not at the scene of the subsequent
shooting.2 Kenon, who himself was not at Wendy’s when that fight erupted, was upset and
angry with Thomas over Jerome’s arrest. According to Tyrone, who was at the shooting scene,
defendant’s family, including defendant but not Thomas, was on the front porch when Tyrone,
Kenon, and the others arrived at defendant’s home shortly before the shooting started. Tyrone
maintained that Thomas was inside the home. Tyrone testified that when they drove up in front
of defendant’s house, Kenon exited the car and stood in front of the car, yelling for Thomas to
come outside. Tyrone, Billy, and Shanetta exited the car and just stood nearby. Tyrone asserted
that Kenon was carrying a stick but did not have a gun. He further stated that defendant’s
family, including defendant, ran into the family home as Kenon remained in front of his car,
calling out for Thomas. At this point, defendant came back outside and started shooting in
Kenon’s direction, striking Kenon. Tyrone insisted that Kenon was standing in front of the car
and in the street when defendant started shooting, and that Kenon had not approached
defendant’s house. Tyrone observed that defendant and his family quickly drove away from the
scene in separate vehicles after the shooting while Kenon lay dying in the street.
Kenon’s cousin, Billy, testified consistent with the testimony given by Tyrone; however,
Billy maintained that Kenon was not carrying any stick at the crime scene. On crossexamination, Billy conceded that at the preliminary examination, he stated that Kenon was
holding an aluminum stick. Billy testified that he heard three to four shots ring out, and that
defendant was standing in the doorway of the house leading out to the porch as he discharged his
weapon. He claimed that Kenon was not mad and simply wanted to talk to Thomas. Shanetta
held and cared for Kenon after the shooting while Billy and Tyrone ran for assistance.
(…continued)
court to take a recess and place certain family members in custody for contempt during
sentencing.
2
No one else was arrested at the restaurant.
-2-
Shanetta’s testimony varied with that given by Tyrone and Billy, in that she indicated that
when they first arrived at defendant’s house in Kenon’s vehicle, defendant and his mother had
just pulled up to the house in front of them and were running to the home. Shanetta asserted that
defendant ran into the house and then came out shooting. She maintained that defendant’s
family was on the porch when the shooting started. Shanetta acknowledged that Kenon was
waiving a stick, and that he was angry, hollering, and screaming. She insisted that neither she,
Tyrone, Billy, nor Kenon, were carrying firearms. Shanetta testified, consistent with the
testimony of Billy and Tyrone, that Kenon did not make any threats to Thomas or the Ivey
family. She stated that Thomas and Kenon had been friends.
Defendant made a statement to police, claiming that he was on the front porch when he
heard gunshots, and he then started screaming, “they are shooting.” According to defendant, he
ran inside the house, grabbed a .22 rifle, and started shooting while exiting the house. Defendant
admitted that he did not actually see Kenon or the others with a gun, but he heard a gunshot.
Defendant stated that he shot three times because he was scared.
Thomas testified that prior to the shooting, there had been run-ins between himself and
Tyrone, in which Tyrone indicated, “snitches got popped.” According to Thomas, the reference
that snitches could get shot was made by Tyrone in a belief that Thomas had told Tyrone’s
landlord that Tyrone was selling narcotics out of a rental unit. Thomas denied ever telling the
landlord that Tyrone was selling drugs.3 Thomas testified that after the Wendy’s altercation but
before the shooting, there was an incident in which Jerome’s girlfriend pointed a shotgun at
Thomas. Additionally, there was a prior incident in which Tyrone was holding a shotgun in
Thomas’ presence, although no direct threat was made by Tyrone.
Thomas claimed that just before the shooting, his mother and defendant pulled up to the
family home with Kenon’s car following close behind at a high rate of speed. Thomas testified
that defendant ran into the house yelling that they are shooting at “us.” Thomas heard two
gunshots as defendant was running to the house, and he indicated that, while the sound of
gunshots was common in the neighborhood, he was concerned because the shooting sounded like
it was coming from the front of his house. He testified that Kenon exited his vehicle and started
screaming and cussing, and that his mother, appearing confused as to what was going on, stood
for a short time near her car before running into the family home. Thomas believed that Kenon
wanted to fight, and he thought that Kenon had a gun. Thomas maintained that Kenon yelled at
him that he was going to “beat his ass.” Kenon had something in his hand according to Thomas;
however, he could not say that Kenon had a gun, and Thomas told police that he did not see a
firearm. He testified that defendant ran out of the house shooting in Kenon’s direction, although
at that point in time Thomas believed that the Ivey family was safely inside the family home.
Defendant’s mother testified that Kenon’s vehicle pulled up fast right beside her vehicle,
and that defendant ran from her car to the house. She did not know what was going on, and she
heard Kenon yell to Thomas to “bring his mother f****** ass outside cause he was going to kill
3
There was also unclear and scant evidence regarding a “lawsuit” between Jerome and an Ivey
family relative that created further tension between the families.
-3-
him . . . .” Defendant’s mother further testified that Kenon was carrying a short little silver gun,
and that Tyrone also had a gun. She asserted that someone shot in the direction of her home,
striking a porch beam.
Defendant was charged with second-degree murder, MCL 750.317, felony-firearm, and
two counts of assault with intent to commit murder, MCL 750.83. The jury convicted defendant
on the lesser offenses of voluntary manslaughter and felonious assault, along with the felonyfirearm conviction.
II. SENTENCING
The minimum sentencing guidelines range was 36 to 71 months’ imprisonment for
manslaughter; however, the trial court departed upward by sentencing defendant to a 10 to 15
year prison term. The full extent of the trial court’s reasoning for departing from the guidelines
was stated as follows:
I still think the appropriate thing for me to do based on the conviction in
this case is to sentence Mr. Ivey to the maximum time that I can sentence him to
as [it] relates to the manslaughter. That was always my intent. I kept an open
mind as I listened to what everybody had to say, but that still remains my intent.
That is going to be a sentence above the guidelines because the guidelines
do not adequately at all, in my view, encompass what happened in this case. Yes,
I think the jury took into consideration everything that the lawyers said, as I
started to say earlier and in reducing this from a murder in the second degree to a
manslaughter conviction.
Yes, the deceased, some of his family members went over to the house.
What happened after that was strictly within the purview of Mr. Ivey and he could
have stopped it at any time and I did not believe, quite frankly, as I don’t think the
jury did, the rendition of some of his witnesses.
Other than I must say his brother was . . . a pleasant surprise so it is for
that reason and for those reasons I’m going to sentence Mr. Ivey as follows. On
Count I, the manslaughter conviction, you’re to be committed to the Michigan
Department of Corrections for no less than ten years and no more than fifteen
years.
III. ANALYSIS
A. Appellate Arguments
On appeal, defendant argues that the trial court abused its discretion in sentencing him
outside the guidelines. Defendant maintains that the trial court improperly treated him as if he
had committed second-degree murder despite the jury’s verdict to the contrary. Defendant
further argues that the sentence was excessively severe and violated the principle of
proportionality. Defendant states that the reasons given for departure are already embodied in
the guidelines under offense variable six (OV 6). We note that defendant fails to make any
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reference to, or argument under, MCL 769.34, or any case law post-legislative sentencing
guidelines despite the fact that the legislative guidelines control being that the crime was
committed after January 1, 1999. See MCL 769.34(1) & (2).
The prosecutor argues that where there is record support that a greater offense has been
committed by a defendant than that for which he was convicted, a sentencing court may take that
into consideration as an aggravating factor. The prosecutor maintains that here, there was a
preponderance of evidence supporting a finding of second-degree murder; therefore, the trial
court did not err in departing upward from the guidelines.
B. MCL 769.34 and Departure from the Sentencing Guidelines
MCL 769.34(2) provides that for any felonies committed after January 1, 1999, the
minimum sentence imposed by a court “shall be within the appropriate sentence range,” except
as otherwise provided in § 34. MCL 769.34(3) further provides that “[a] court may depart from
the appropriate sentence range established under the sentencing guidelines set forth in chapter
XVII if the court has a substantial and compelling reason for that departure and states on the
record the reasons for departure.” Finally, MCL 769.34(3)(b) provides that “[t]he court shall not
base a departure on an offense characteristic or offender characteristic already taken into account
in determining the appropriate sentence range unless the court finds from the facts contained in
the court record, including the presentence investigation report, that the characteristic has been
given inadequate or disproportionate weight.”
C. Standard of Review
With respect to this Court’s standard of review, our Supreme Court recently ruled in
People v Babcock, 469 Mich 247, 270; 666 NW2d 231 (2003), that the following “abuse of
discretion” standard applies to sentencing decisions:
Accordingly, the Court of Appeals must determine, upon a review of the
record, whether the trial court had a substantial and compelling reason to depart
from the guidelines, recognizing that the trial court was in the better position to
make such a determination and giving this determination appropriate deference.
The deference that is due is an acknowledgment of the trial court’s extensive
knowledge of the facts and that court’s direct familiarity with the circumstances
of the offender. The Court of Appeals is to conduct the thorough review required
by MCL 769.34(11),4 honoring the prohibition against departures not grounded in
a substantial and compelling reason. MCL 769.34(3). In doing so, however, the
Court must proceed with a caution grounded in the inherent limitations of the
appellate perspective.
4
MCL 769.34(11) provides that “[i]f, upon a review of the record, the court of appeals finds the
trial court did not have a substantial and compelling reason for departing from the appropriate
sentence range, the court shall remand the matter to the sentencing judge or another trial court
judge for resentencing under this chapter.”
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D. Discussion and Conclusion
The trial court found that a departure was proper because defendant could have stopped
from shooting the victim. Our Supreme Court, however, has clearly articulated that a substantial
and compelling reason for departure must be objective and verifiable. Babcock, supra at 257258, citing People v Fields, 448 Mich 58, 62; 528 NW2d 176 (1995). The phrase “objective and
verifiable” means that the factors to be considered by the trial court in determining substantial
and compelling reasons must be actions and occurrences which are external to the minds of the
judge, defendant, and others involved in making the decision, and must be capable of being
confirmed. People v Abramski, 257 Mich App 71, 74; 665 NW2d 501 (2003); People v Arcos,
206 Mich App 374, 376; 522 NW2d 655 (1994); People v Windall Hill, 192 Mich App 102, 112;
480 NW2d 913 (1991). According to Random House Webster’s College Dictionary (2001),
“objective” means “not influenced by personal feelings or prejudice; unbiased[.]”
Taking into consideration these definitions, we conclude that the trial court’s reasoning
that defendant could have stopped from shooting the victim is subject to dispute and not
objective and verifiable. There was testimony that the victim was in a frenzy, voicing threats,
and was carrying a weapon. Additionally, there was evidence that shots were fired near
defendant’s home on the victim’s arrival to the home, and that defendant ran toward his house,
yelling that he was being shot at. Therefore, the trial court’s reasoning is not objective and
verifiable under the factual circumstances as presented through trial testimony. Rather, the
conclusion reflected the trial court’s subjective interpretation of disputable and conflicting
evidence and delved into defendant’s mens rea. We cannot say that the trial court’s reason for
departure represented an action and occurrence external to the minds of the judge, defendant, and
others, capable of being confirmed.
On remand, the trial court has the discretion to sentence defendant within the guidelines
or to depart from the guidelines provided that the court enunciate substantial and compelling
reasons on the record supporting the departure that are objective and verifiable, and which
comply with the requirements of MCL 769.34.
We affirm defendant’s conviction, but reverse and remand for resentencing. We do not
retain jurisdiction.
/s/ Karen M. Fort Hood
/s/ William B. Murphy
/s/ Janet T. Neff
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