Order                                                                                        Michigan Supreme Court
                                                                                                   Lansing, Michigan

  March 9, 2011                                                                                        Robert P. Young, Jr.,
                                                                                                                 Chief Justice

  141832                                                                                               Michael F. Cavanagh
                                                                                                             Marilyn Kelly
                                                                                                       Stephen J. Markman
                                                                                                       Diane M. Hathaway
                                                                                                           Mary Beth Kelly
  PEOPLE OF THE STATE OF MICHIGAN,                                                                         Brian K. Zahra,
            Plaintiff-Appellee,                                                                                       Justices

  v                                                                 SC: 141832
                                                                    COA: 287767
                                                                    Kalamazoo CC: 2007-000165-FC
  ERVINE LEE DAVENPORT,
            Defendant-Appellant.

  _________________________________________/

          On order of the Court, the application for leave to appeal the August 5, 2010
  judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in
  lieu of granting leave to appeal, we REVERSE the Court of Appeals order denying the
  defendant’s motion to remand for an evidentiary hearing. The defendant should have
  been permitted to develop the record on the issue of whether his shackling during trial
  prejudiced his defense. See Rhoden v Rowland, 10 F3d 1457, 1460 (CA 9, 1993). We
  also REVERSE the Court of Appeals determination that the defendant did not preserve
  the issue of whether his shackling during trial constituted a due process violation, because
  defense counsel requested that both of defendant’s hands be unshackled to avoid the
  prejudice that would result if the jury saw the shackles, and the circuit court denied her
  request. See Fast Air, Inc v Knight, 235 Mich App 541, 549 (1999); trial transcript
  Volume I, p 113. If it is determined that the jury saw the defendant’s shackles, the circuit
  court shall determine whether the prosecution can demonstrate beyond a reasonable
  doubt that the shackling error did not contribute to the verdict against the defendant.
  Deck v Missouri, 544 US 622, 635; 125 S Ct 2007; 161 L Ed 2d 953 (2005). We
  REMAND this case to the circuit court for further proceedings consistent with this order.
  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.

         We do not retain jurisdiction.




                           I, Corbin R. Davis, 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.
                           March 9, 2011                       _________________________________________
           p0302                                                               Clerk
