Man gets 33 years in death of 7-year-old
Girl was shot while riding in back of mom’s car in 2020
A man who fatally shot a Portsmouth 7-year-old in December 2020 as she rode in the back of her mother’s car was sentenced Thursday to 33 years in prison.
The term issued to Avery Setzer by Portsmouth Circuit Judge Kenneth Melvin was 10 years more than the maximum recommended by state sentencing guidelines. The guidelines suggest a punishment range based on the circumstances of a crime as well as the defendant’s background.
Setzer, 26, was found guilty of second-degree murder, illegal use of a firearm, and two other related charges at the end of a trial in February. The jury acquitted him of the more serious charge of first-degree murder as well as multiple attempted murder and gun charges related to the three other people in the car with the girl, Mylani Everett.
Special prosecutor Michael Rosenberg asked Melvin to issue the maximum sentence allowed under the law, which was 58 years. Defense attorney Nathan Chapman asked for a term at the low end of the sentencing guidelines, which suggested at least 14 years.
“This was a 7-year-old child,” Rosenberg said to the judge. “He deserves no mercy.”
Chapman, however, continued to question whether his client was responsible for Mylani’s death. The defense lawyer said multiple people from the car Setzer was in, as well as at least one other car, fired weapons that day. Setzer told police he fired two shots and had aimed his gun upward, not at the mother’s car.
The shooting happened three days before Christmas. Mylani’s mother, Phyllis Everett, told jurors she’d gone shopping with Mylani and her older sister that day, then went to pick up her boyfriend. A man Everett and her boyfriend knew was following in another car.
Everett testified she was driving on Truxton Avenue near Portsmouth Boulevard about 2:15 p.m. when she saw a gold Acura pull up next to her and heard the friend behind her honking. Next, she saw a person in the Acura’s passenger seat aim a gun at her car. The car driven by her friend also was struck by the gunfire. Footage from two nearby doorbell cameras indicated more than a dozen bullets were fired.
Mylani died two days later, on Christmas Eve, after being removed from life support. An autopsy was conducted two days after that, on what would have been her 8th birthday, and showed she died from a gunshot to the head.
Montel Tillery, who was given immunity from prosecution in exchange for his cooperation, told jurors he was the driver of the Acura and that Setzer was in the front passenger seat. Two other men in the Acura also were charged, but prosecutors later withdrew those charges.