Opinion
Docket No. 146652. COA No. 306868.
2013-07-3
PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Ervine Lee DAVENPORT, Defendant–Appellant.
Prior report: Mich.App., 2012 WL 6217134.
Order
On order of the Court, the application for leave to appeal the December 13, 2012 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. While the Court of Appeals erroneously failed to consider defendant's claim in light of the United States Supreme Court decision in Holbrook v. Flynn, 475 U.S. 560, 570, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986) (“the question must be not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether ‘an unacceptable risk is presented of impermissible factors coming into play’ ”), citing Estelle v. Williams, 425 U.S. 501, 505, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), the error was harmless under the facts of this case. Given the substantial evidence of guilt presented at trial, we cannot conclude that there was an unacceptable risk of impermissible factors coming into play.