-1- 

STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

February 7, 2017 

v No. 329356 

Jackson Circuit Court 

BRANDON SCOTT MANN, LC No. 14-005027-FC 

 Defendant-Appellant. 

Before: M.J. KELLY, P.J., and STEPHENS and O’BRIEN, JJ. 

PER CURIAM. 

 Defendant was convicted of second-degree murder, MCL 750.317, felon in possession of 

a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony, MCL 

750.227b following a jury trial.1 The trial court sentenced defendant as a habitual fourth 

offender, MCL 769.12, to serve concurrent terms of imprisonment of 60 to 90 years for the 

murder conviction and five to 20 years for the felon-in-possession conviction. Defendant also 

received a consecutive sentence of two years’ imprisonment for the felony-firearm conviction, 

with credit for 276 days served. Defendant appeals as of right. We affirm. 

I. FACTUAL BACKGROUND 

 Defendant and his significant other, April Miller, visited the home of Clayton Orange, an 

ailing friend of defendant’s family. There, they consumed alcohol and defendant and Orange 

drank alcohol and smoked marijuana. A verbal altercation ensued, the cause of which was 

disputed. Miller left the scene of the argument after it became physical. According to the 

defendant, Orange produced a shotgun and the physical altercation escalated. Defendant, who 

was intoxicated, testified that he subdued Orange admitting to striking him with his fists and 

grabbing him by the neck. He denied strangling Orange. At some point, defendant exited the 

trailer, a gunshot was heard, and Miller observed defendant with a shotgun. Numerous witnesses 

offered testimony regarding events that were observed after defendant exited the trailer. 

Neighbors arrived at the scene after hearing the gunshot, entered the trailer, and discovered 

defendant sitting on the couch with the then deceased Orange. Defendant made incriminating 

 

1

 The jury found defendant not guilty on a charge of felonious assault, MCL 750.82. 
-2- 

statements and confronted the neighbors, who withdrew from the trailer. The police arrived later 

and took defendant into custody. While in custody, defendant made statements to the police that 

were admitted before the jury. Testimony was presented regarding Orange’s physical health, 

susceptibility to injury and complicated prescription drug regimen. The autopsy recorded that 

Orange’s death was caused by strangulation and blunt force trauma to the head. 

 Defendant was convicted and sentenced as described above, and this appeal followed. 

II. EVIDENTIARY HEARING 

 Defendant argues that reversal is required because the trial court decided his motion to 

suppress statements he made to the police without holding an evidentiary hearing. We disagree. 

 A trial court’s decision whether to hold an evidentiary hearing is reviewed for an abuse of 

discretion. People v Unger, 278 Mich App 210, 216; 749 NW2d 272 (2008). However, 

defendant failed to preserve this issue by requesting an evidentiary hearing below or arguing that 

one was necessary; accordingly, our review is for plain error affecting substantial rights. People 

v Carines, 460 Mich 750; 763, 597 NW2d 130 (1999). To meet this standard, a party must 

establish “(1) that the error occurred, (2) that the error was ‘plain,’ (3) that the error affected 

substantial rights, and (4) that the error either resulted in the conviction of an actually innocent 

defendant or seriously affected the fairness, integrity, or public reputation of judicial 

proceedings.” People v Vaughn, 491 Mich 642, 654; 821 NW2d 288 (2012). 

 Our federal and state constitutions both guarantee the right against self-incrimination. 

US Const, Am V; Const 1963, art 1, § 17. Statements made during custodial interrogation are 

inadmissible unless the individual knowingly, intelligently, and voluntarily waived his or her 

rights under the Fifth Amendment. Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 

2d 694 (1966). Whether a suspect validly waived his or her Miranda rights is a question of law 

for the court to determine on the basis of the “the totality of the circumstances surrounding the 

interrogation.” People v Cheatham, 453 Mich 1, 27; 551 NW2d 355 (1996). The relevant 

analysis is bifurcated; the court must determine (1) whether the waiver was voluntary, and (2) 

whether the waiver was knowing and intelligent. People v Daoud, 462 Mich 621, 639; 614 

NW2d 152 (2000). “Whether a statement was voluntary is determined by examining police 

conduct, but the determination whether it was made knowingly and intelligently depends, in part, 

on the defendant’s capacity.” People v Tierney, 266 Mich App 687, 707; 703 NW2d 204 (2005). 

“Intoxication from alcohol or other substances can affect the validity of a waiver of Fifth 

Amendment rights, but is not dispositive.” Id. 

 “[W]hen a defendant contends that statements that had been made were involuntary, the 

trial court must conduct a hearing outside the presence of the jury to determine the issue of 

voluntariness, at which the defendant may take the stand without waiving the right not to testify 

at trial.” People v Manning, 243 Mich App 615, 624-625; 624 NW2d 746 (2000), citing People 

v Walker (On Rehearing), 374 Mich 331, 338; 132 NW2d 87 (1965). In considering whether a 

confession was voluntary, the court should consider all the following circumstances: 

[1] the age of the accused; [2] his lack of education or his intelligence level; [3] 

the extent of his previous experience with the police; [4] the repeated and 

prolonged nature of the questioning; [5] the length of the detention of the accused 
-3- 

before he gave the statement in question; [6] the lack of any advice to the accused 

of his constitutional rights; [7] whether there was an unnecessary delay in 

bringing him before a magistrate before he gave the confession; [8] whether the 

accused was injured, intoxicated or drugged, or in ill health when he gave the 

statement; [9] whether the accused was deprived of food, sleep, or medical 

attention; [10] whether the accused was physically abused; and [11] whether the 

suspect was threatened with abuse. [People v Cipriano, 431 Mich 315, 334; 429 

NW2d 781 (1988) (citations omitted).] 

No single factor is determinative. People v Sexton (After Remand), 461 Mich 746, 753; 609 

NW2d 822 (2000). “The ultimate test of admissibility is whether the totality of the 

circumstances surrounding the making of the confession indicates that it was freely and 

voluntarily made.” Cipriano, 431 Mich at 334. 

 In the instant case, defendant offered his statement to a detective several hours after his 

arrest, and his sole basis for seeking its suppression is that he was intoxicated at the time. It is 

undisputed that he had a .20 blood alcohol level when he was arrested, and a level of .099 when 

interviewed the following morning. 

 A trial court must hold an evidentiary hearing when a defendant moves the court to 

suppress statements he or she made on the ground that the statements were involuntary. Walker, 

374 Mich at 338; Manning, 243 Mich App at 624-625. Defendant does not assert that his 

statements to the detective were involuntary or that there was any police misconduct. Tierney, 

266 Mich App at 707. Instead, defendant’s argument is that his intoxication rendered him 

incapable of giving a knowing and intelligent waiver. Defendant cites no authority that stands 

for the proposition that a court must hold an evidentiary hearing, even when none is requested, to 

decide a motion to suppress a statement on the ground that it was not knowingly and intelligently 

offered. Defendant has thus failed to bring plain error to light. 

 Further, the existing record provides an adequate basis for the trial court’s decision not to 

suppress. The detective who interviewed defendant testified that he waited nine hours after the 

arrest to question defendant because he realized defendant was not in any condition to talk at the 

time of his arrest. The detective further testified that he had no reason to believe that defendant 

was incapable of understanding his rights at the time of the interview. Nothing about 

defendant’s demeanor during the interview—which was recorded and played for the jury—

suggests that defendant was unable to understand his rights or intelligently waive them. In the 

video, defendant appeared alert, did not slur, and spoke in complete coherent sentences in the 

delivery of his explanation of the event to the detective. Further, defendant does not allege any 

other circumstance related to his alcohol consumption that impaired his ability to understand his 

rights or knowingly and intelligently waive them. 

 Moreover, in light of Miller’s and the neighbors’ compelling testimony, defendant cannot 

show that introduction of his statements to the police resulted in the conviction of an innocent 

man, or otherwise seriously affected the fairness, integrity, or public reputation of the trial. See 

Vaughn, 491 Mich at 654. 
-4- 

 For these reasons, we conclude that the trial court’s having decided defendant’s motion to 

suppress without holding an evidentiary hearing was not error requiring reversal. 

III. INSTRUCTION ON THE DUTY TO RETREAT 

 Defendant contends that the trial court erred by declining to sua sponte give jury 

instruction M Crim JI 7.16, which covers the duty to retreat,2 and that his trial attorney was 

ineffective for failing to request that instruction. We address each argument in turn. 

 We review unpreserved claims of instructional error for plain error affecting substantial 

rights. People v Aldrich, 246 Mich App 101, 124-125; 631 NW2d 67 (2001). See also Carines, 

460 Mich at 763. Our Supreme Court has described the necessity of proper jury instructions in 

criminal cases: 

A criminal defendant is entitled to have a properly instructed jury consider the 

evidence against him. When a defendant requests a jury instruction on a theory or 

defense that is supported by the evidence, the trial court must give the instruction. 

However, if an applicable instruction was not given, the defendant bears the 

burden of establishing that the trial court’s failure to give the requested instruction 

resulted in a miscarriage of justice. The defendant’s conviction will not be 

reversed unless, after examining the nature of the error in light of the weight and 

strength of the untainted evidence, it affirmatively appears that it is more probable 

than not that the error was outcome determinative. [People v Riddle, 467 Mich 

116, 124-125; 649 NW2d 30 (2002) (citations omitted).] 

 

2

 M Crim JI 7.16 reads as follows: 

 (1) A person can use deadly force in self-defense only where it is necessary to do so. If 

the defendant could have safely retreated but did not do so, you may consider that fact in 

deciding whether the defendant honestly and reasonably believed [he / she] needed to use deadly 

force in self-defense. 

 (2) However, a person is never required to retreat if attacked in [his / her] own home, nor 

if the person reasonably believes that an attacker is about to use a deadly weapon, nor if the 

person is subject to a sudden, fierce, and violent attack. 

 (3) Further, a person is not required to retreat if the person: 

 (a) has not or is not engaged in the commission of a crime at the 

 time the deadly force is used, and 

 (b) has a legal right to be where the person is at that time, and 

 (c) has an honest and reasonable belief that the use of deadly force 

 is necessary to prevent imminent [death / great bodily harm / 

 sexual assault] of the person or another. 
-5- 

 In the instant case, the trial court did instruct the jury on the use of deadly force in selfdefense, M Crim JI 7.15, and the burden of proof where self-defense is asserted, M Crim JI 7.20. 

Defendant now contends that the trial court should have further instructed the jury on the 

situation where there is no duty to retreat as an alternative to resorting to deadly force in selfdefense. However, defendant fails to show that the duty to retreat was at issue in this case or 

explain why the outcome would be different had the jury been given M Crim JI 7.16 in addition 

to the other instructions on self-defense. 

 We acknowledge that there was testimony that Orange, a man in fragile condition, did 

produce a shotgun. Defendant himself testified that he grabbed the deceased by the throat while 

attempting to subdue him but also testified that he had gained control of the weapon from the 

deceased almost immediately. The undisputed testimony was that strangulation, the alleged 

cause of death, required sustained pressure for three minutes or more. This was not a 

circumstance where the trial court was compelled by the totality of the evidence to sua sponte 

instruct on the duty to retreat. Because the evidence only minimally supported a self-defense 

theory in the first instance, it was not plain error for the trial court to decline sua sponte to add M 

Crim JI 7.16 to the self-defense instructions it did provide. 

 Defense counsel was not ineffective for declining to request the instruction. “Whether a 

person has been denied effective assistance of counsel is a mixed question of fact and 

constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). “To prove 

that defense counsel was not effective, the defendant must show that (1) defense counsel’s 

performance was so deficient that it fell below an objective standard of reasonableness and (2) 

there is a reasonable probability that defense counsel’s deficient performance prejudiced the 

defendant.” People v Heft, 299 Mich App 69, 80-81; 829 NW2d 266 (2012). “The defendant 

was prejudiced if, but for defense counsel’s errors, the result of the proceeding would have been 

different.” Id. at 81. Where there has been no evidentiary hearing in connection with a claim of 

ineffective assistance of counsel, review of the claim is limited to the existing record. People v 

Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007). 

 In this case, because defendant fails to show that the outcome of the trial would have 

been different had the jury been instructed in the matter. The jury heard defendant’s 

incriminating statements to his neighbors, the multiple versions of the offense he gave to a 

cellmate and extensive medical evidence. Given the overwhelming weight of that evidence, we 

must reject his claim of ineffective assistance of counsel. 

IV. SCORING OF THE SENTENCING GUIDELINES 

 Defendant argues that the trial court improperly assessed 50 points for Offense Variable 

7. We disagree. “Under the sentencing guidelines, the circuit court’s factual determinations are 

reviewed for clear error and must be supported by a preponderance of the evidence.” People v 

Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “A finding is clearly erroneous if, after a 

review of the entire record, the appellate court is left with a definite and firm conviction that a 

mistake has been made.” People v Gistover, 189 Mich App 44, 46; 472 NW2d 27 (1991). 

“Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, 

i.e., the application of the facts to the law, is a question of statutory interpretation, which an 

appellate court reviews de novo.” Hardy, 494 Mich at 438. 
-6- 

 OV 7 covers aggravated physical abuse, and, at the time relevant,3

 a score of 50 points 

was prescribed where the “victim was treated with sadism, torture, or excessive brutality or 

conduct designed to substantially increase the fear and anxiety a victim suffered during the 

offense.” MCL 777.37(1)(a). “Torture” for this purpose means “inflicting excruciating pain, as 

punishment or revenge, as a means of getting a confession or information, or for sheer cruelty.” 

People v Glenn, 295 Mich App 529, 533; 814 NW2d 686 (2012), (citation omitted) rev’d on 

other grounds sub nom People v Hardy, 494 Mich 430; 835 NW2d 340 (2013). “Excessive 

brutality” means “savagery or cruelty beyond even the ‘usual’ brutality of a crime.” Glenn, 295 

Mich App at 533. 

 We conclude that the evidence presented at trial supported the score of 50 points. Miller 

testified that defendant accused Orange of raping his mother and punched Orange in the eye so 

forcefully that the blow “instantly turned his skin color.” She further asserted that defendant 

“climbed on top” of Orange and continued to punch him in the face. And, again, the forensic 

pathologist who performed the autopsy concluded that the cause of death was strangulation in 

combination with blunt force trauma to the head, and estimated that it would have taken three 

minutes for Orange to die by strangulation. This evidence supported the conclusion that 

defendant severely beat and then strangled the ailing Orange out of anger, in other words 

inflicted excruciating pain as punishment or revenge. Defendant’s decision to beat Orange 

before finally strangling him also suggests excessive brutality and cruelty beyond the usual 

brutality required to commit murder.4

 

 Defendant also contends that the trial court erred for not having scored the guidelines for 

his felon-in-possession conviction. We disagree. 

 The statutory sentencing guidelines are no longer mandatory, but trial courts must still 

consult the guidelines and take them into account at sentencing. People v Lockridge, 498 Mich 

358, 391; 870 NW2d 502, cert den sub nom Michigan v Lockridge, ___ US ___; 136 S Ct 590; 

193 L Ed 2d 487 (2015). Nevertheless, a sentencing court is “not required to independently 

score the guidelines for and sentence the defendant on each of his concurrent convictions if the 

court properly scored and sentenced the defendant on the conviction with the highest crime 

classification.” People v Lopez, 305 Mich App 686, 690; 854 NW2d 205 (2014). When a court 

imposes several concurrent sentences, it need not score the guidelines for the lower crime-class 

offenses “because MCL 771.14(2)(e) provides that presentence reports and guidelines 

calculations were only required for the highest crime class felony conviction.” Id. at 691 

(internal quotation marks omitted). This is because, with concurrent sentences, the sentence for 

the higher-crime-class offense would “subsume the guidelines range for lower-crime-class 

offenses, and there would be no tangible reason or benefit in establishing guidelines ranges for 

 

3

 MCL 777.37(1) was amended by 2015 PA 137, effective after the trial and sentencing in this 

case. 

4

 Defendant protests that he was not attempting to induce fear or anxiety, but in doing so fails to 

appreciate that OV 7 may be scored for excessive brutality or torture as well as for causing 

increased fear and anxiety in the victim. 
-7- 

the lower-crime-class offenses.” Id. at 691-692. In this case, because felon-in-possession is a 

lower crime-class offense than second-degree murder,5

 and defendant received concurrent 

sentences for those two convictions, the trial court correctly scored the guidelines for the murder 

conviction only. 

V. STANDARD 4 BRIEF 

 Defendant filed a brief in propria persona pursuant to Administrative Order 2004–6, 

Standard 4. In this brief, however, defendant did not offer meaningful argument concerning his 

various claims of error, failed to provide pertinent record citations, and cited no legal authority to 

support any claim of error. Thus, we conclude that defendant abandoned any claim of error 

stated in his brief. See People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004) (an 

appellant’s failure to support assertions of error with meaningful analysis constitutes 

abandonment of the issue); People v Jones (On Rehearing), 201 Mich App 449, 456-457; 506 

NW2d 542 (1993) (a party’s mere assertion that the party’s rights were violated, unaccompanied 

by record citations, cogent argument, or supporting authority, is insufficient to present an issue 

for consideration by this Court). 

 Affirmed. 

/s/ Michael J. Kelly 

/s/ Cynthia Diane Stephens 

/s/ Colleen A. O'Brien 

 

5

 Compare MCL 777.16m (stating that felon-in-possession is a class E felony) with MCL 

777.16p (classifying second-degree murder as a class M2 felony with a maximum penalty of 

imprisonment for life).