People v. Brown, 327734
| Decision Date | 13 April 2017 |
| Docket Number | No. 327736,No. 327734,No. 327814,327734,327736,327814 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LORENZO LAMONT BROWN, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TERI BERNARD JOHNSON, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. WADDELL POOLE BURNEY, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court
Wayne Circuit Court
AFTER REMAND
Before: WILDER, P.J., and CAVANAGH and SERVITTO, JJ.
Defendants Lorenzo Brown, Teri Johnson, and Waddell Burney were tried jointly, before a single jury. The jury convicted defendant Brown of assault with intent to commit murder, MCL 750.83; carrying a weapon with unlawful intent, MCL 750.226; felon in possession of a firearm, MCL 750.224f; and possession of a firearm during commission of a felony, second offense ("felony-firearm"), MCL 750.227b. The jury convicted defendant Johnson of one count each of assault with intent to do great bodily harm less than murder, MCL 750.84; carrying a weapon with unlawful intent; felon in possession of a firearm; and felony-firearm, second offense. It convicted Burney of assault with intent to do great bodily harm less than murder; carrying a weapon with unlawful intent; and felony-firearm, first offense. The trial court sentenced Brown as a fourth-offense habitual offender, MCL 769.12, to concurrent prison terms of 500 to 749 months for the assault with intent to commit murder conviction, and 5 to 10 years each for the carrying a weapon with unlawful intent and felon-in-possession convictions, to be served consecutive to a five-year term of imprisonment for the felony-firearm conviction. The court sentenced Johnson as a fourth-offense habitual offender to concurrent prison terms of 150 to 300 months for the assault with intent to do great bodily harm conviction, 5 to 10 years each for the carrying a weapon with unlawful intent conviction, and the felon in possession conviction, to be served consecutive to a five-year term of imprisonment for the felony-firearm, second offense, conviction. Finally, the court sentenced Burney to concurrent prison terms of 6 to 10 years for the assault conviction and 10 to 60 months for the carrying a weapon with unlawful intent conviction, to be served consecutive to a two-year term of imprisonment for the felony-firearm conviction. All three defendants appealed as of right and in each case, while retaining jurisdiction, we remanded for the trial court to make appropriate findings of fact, on the record, as to the extent of the closure of the court and to make findings as to the four requirements for the closure of a court as set forth in People v Kline, 197 Mich App 165, 169; 494 NW2d 756 (1992). We held Brown's sentencing issues in abeyance pending the proceedings on remand and rejected defendants' remaining claims of error.1 We now affirm the convictions, but remand defendant Brown's sentencing issues for proceedings not inconsistent with this opinion.
As we noted in our prior opinion, during trial, witness Demond Davis became emotional during cross-examination by Burney's counsel and left the witness stand without permission. Demond informed the trial court that he felt intimidated by defendants' supporters among the courtroom spectators and also stated that he was fearful because people he believed were associated with defendants were parking outside his house, calling him, and following him. As we stated:
After Demond resumed testifying, Burney's counsel stated for the record that courtroom deputies had removed spectators, including Burney's mother, from the courtroom. All three defendants later moved for a mistrial, arguing that their right to a public trial had been violated. The trial court denied the motion, stating thatit had exercised its discretion to remove spectators "because two very threatened witnesses testified, and one was indeed the victim of the crime."[People v Brown, unpublished opinion per curiam of the Court of Appeals, issued November 29, 2016 (Docket No.'s 327734, 327736, and 327814), slip op. at page 2].
All three defendants argued on appeal that the trial court violated their right to a public trial by removing spectators from the courtroom. Because it was not clear from the record whether the closure was partial or total and because the trial court did not satisfy the four requirements set forth in Kline, 197 Mich App 169, we remanded the matter to the trial court to make the appropriate findings. This case now returns to us following a hearing held by the trial court on remand.
At the remand hearing, several witnesses testified concerning the closure of the court during defendants' trial on April 30, 2015. Ms. Casper, the prosecutor who represented the people at the trial, testified that prior to trial and after the preliminary examination, one of the testifying witnesses (Demond's uncle) was the victim of a shooting. Based upon recorded jail telephone calls, she believes that the shooting was related to the case. Another witness did not want to testify, expressing "concern" because she knew defendants and their friends. Ms. Casper testified that Demond was concerned about testifying as well and claimed that acquaintances of at least one of the defendants were hanging around his home. As to what transpired during trial with relation to Demond, Ms. Casper testified that he was being cross-examined by one of defendant's counsel when a few people walked into the courtroom and sat in the gallery area behind defendants. Demond looked into the gallery behind where defendants were seated and suddenly ran off the stand. According to Ms. Casper, the judge immediately had the jury taken out of the courtroom and almost simultaneously, deputies removed people from the gallery area behind defendants. She did not recall anyone that had sat on the prosecution's side of the gallery being escorted out or removed from the courtroom. Ms. Casper was permitted to speak to Demond after he left the stand and, as he cried, he told her that he was terrified of one of the men who had walked in and sat behind the defense table, who he identified as "Nate." Ms. Casper recognized Nate's name from calls that had been placed from the jail during which intimidation of the prosecution's witnesses had been discussed. Demond eventually agreed to go back to the stand and testify for his brother, Jamil, who had been shot by defendants.
Ms. Casper testified that the court recessed for lunch to allow things to calm down and when the trial resumed Demond returned to the witness stand to testify, although he was still visibly upset and crying. According to Ms. Casper, the courtroom was not closed when the trial resumed. Ms. Casper testified that the deputies were given a description of the individuals who had come in when Demond ran off the witness stand to keep them out of the courtroom. Ms. Casper testified that this case stood out to her because she had such a difficult time with the witness issues and she was trying the case by herself, with no second chair. Due to the witness difficulties, her colleagues were continuously coming in to check on her, and officers were checking in as well. Ms. Casper testified that she kept her eye on the gallery at all times due to threats to the witnesses and had the court been closed, she would have noticed an absence of people in the gallery. Her recollection is that there were always a couple of people in the gallery, some of whom she did not know, and that the courtroom thus could not have been completely closed. She further recalled the name of a specific civilian who had tried to come in thecourtroom to watch the testimony, but whom the judge made leave in case he had to be recalled as a witness, again indicating to her that the courtroom had not been completely closed.
Ms. Casper further testified that one of the defendant's mothers was one of the persons initially escorted out of the courtroom, but that she was allowed to return at some point. Ms. Casper testified that when Nate and others entered the courtroom, they sat in the mother's vicinity, behind defendants, and at the point when Demond rushed off the witness stand; no one was entirely sure why he had suddenly become so upset. Thus, they felt it was best to escort everyone that had been in the direction in which Demond had looked out of the courtroom until the matter was sorted out.
Defendant Brown testified at the hearing that his mother and several more of his family members were present at his trial on April 30, 2015. Brown testified that at some point during the morning his family was escorted out of the courtroom, though they had done nothing to disrupt the courtroom and that he did not see them in the afternoon when his trial resumed. Brown testified that when his trial resumed the next day, his family members were present in the courtroom. Brown's trial attorney, David Cripps, testified that after Demond ran off the stand, he believes the trial court issued an order closing the courtroom to the public for the day.
Defendant Johnson likewise testified that during his trial on April 30, 2015, his family members and friends were escorted out of the courtroom. He did not see them when the trial resumed that afternoon. Rhonda Johnson, defendant Johnson's sister, testified that she was present for her brother's trial on April 30, 2015, and when a witness walked off the stand, she and the rest of the people in the gallery on the defendant's side were escorted out of the courtroom by a deputy. She testified that she was not allowed back in to the courtroom that day, but did come back on later days. Johnson's trial counsel, Arnold Weiner, testified that when a witness unexpectedly left the stand, he recalls that the trial judge adjourned the matter for a period of time, but could not recall if the courtroom was cleared of the...
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