Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  January 24, 2020                                                                Bridget M. McCormack,
                                                                                                Chief Justice

  157936                                                                               David F. Viviano,
                                                                                       Chief Justice Pro Tem

                                                                                     Stephen J. Markman
                                                                                          Brian K. Zahra
  PEOPLE OF THE STATE OF MICHIGAN,                                                  Richard H. Bernstein
            Plaintiff-Appellee,                                                     Elizabeth T. Clement
                                                                                    Megan K. Cavanagh,
                                                                                                     Justices
  v                                                       SC: 157936
                                                          COA: 328759
                                                          Kent CC: 15-000869-FC
  JAMAL DEVONTA BENNETT,
           Defendant-Appellant.

  ___________________________________________/

         On December 11, 2019, the Court heard oral argument on the application for leave
  to appeal the April 17, 2018 judgment of the Court of Appeals. On order of the Court, the
  application is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal, we
  REVERSE the judgment of the Court of Appeals as to its conclusion that defendant failed
  to show that admission of the rap videos was outcome-determinative.

          “[A] defendant has the burden of establishing that it is more probable than not that
  the error in question ‘undermined the reliability of the verdict,’ thereby making the error
  ‘outcome determinative.’ ” People v Snyder, 462 Mich 38, 45 (2000), quoting People v
  Lukity, 460 Mich 484, 495-496 (1999) (brackets omitted). The Court of Appeals here
  concluded that admission of the rap videos was not outcome-determinative because several
  witnesses had identified defendant as the shooter. If defendant’s theory of the case had
  been one of misidentification, then the overwhelming weight of the evidence
  demonstrating that defendant shot the victim may well have compelled the conclusion that
  admission of the rap videos was not outcome-determinative. However, defendant
  advanced a self-defense and a defense-of-others theory, supported largely by Sammie
  Butler-Coleman’s testimony that the victim and another man had been beating defendant’s
  friend at the time defendant fired the fatal shots. Thus, defendant’s state-of-mind, not his
  identity, was the principal question before the jury. And defendant has sustained his burden
  of showing that, viewing the trial as a whole, admission of the rap videos undermined the
  reliability of the verdict. These videos portrayed defendant as a ruthless and menacing
  threat to the community who would shoot upon the least provocation. Further, while other
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evidence in the record discounted defendant’s defense-of-others theory, the prosecutor
relied heavily upon the videos to establish defendant’s state-of-mind and to satisfy the
state’s burden of overcoming defendant’s prima facie claim that he shot in defense of
another. To this point, the prosecutor focused a substantial portion of his closing argument
upon the videos, replaying clips of them and drawing comparisons between the lyrics of
songs in the videos and the shooting. Finally, the trial court’s instruction to the jury that it
could rely upon the videos in assessing defendant’s motive and intent may well have
exacerbated the prejudice caused by admission of the videos.

        For the aforementioned reasons, we VACATE defendant’s convictions and
REMAND this case to the Kent Circuit Court for further proceedings not inconsistent with
this order.




                          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, 2020
        b0121
                                                                              Clerk
