PEOPLE v. DAVENPORT, 488 Mich. 1054 (2011)

No. 141832.Supreme Court of Michigan.
March 9, 2011.

Appeal from the Court of Appeals No. 287767.

Reconsideration Denied.

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 vol 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.