                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                       UNPUBLISHED
                                                       April 13, 2017
              Plaintiff-Appellee,

v                                                      No. 327734
                                                       Wayne Circuit Court
LORENZO LAMONT BROWN,                                  LC No. 14-011033-01-FC

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                      No. 327736
                                                       Wayne Circuit Court
TERI BERNARD JOHNSON,                                  LC No. 15-000469-01-FC

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                      No. 327814
                                                       Wayne Circuit Court
WADDELL POOLE BURNEY,                                  LC No. 14-011033-02-FC

              Defendant-Appellant.


                                     AFTER REMAND

Before: WILDER, P.J., and CAVANAGH and SERVITTO, JJ.

PER CURIAM.



                                          -1-
        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 that



1
 People v Brown, unpublished opinion per curiam of the Court of Appeals, issued November 29,
2016 (Docket No.’s 327734, 327736, and 327814).


                                                -2-
       it 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 the


                                                -3-
courtroom 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 public at any time.
        Evan Callahan, trial counsel for defendant Burney, testified that when Demond left the
witness stand during his testimony, Burney’s mother was escorted out of the courtroom.
Callahan objected to her removal and asked that she be allowed back in, and he believes she was
thereafter allowed to stay in the courtroom. Callahan could not recall if the courtroom was
ultimately cleared.
        After the witnesses concluded testifying, the trial judge referred back to the trial
transcript and indicated that he had stated that he was leaving the court closed until Demond had
finished testifying, indicating that his closure was clearly just a partial closing. The trial judge
stated that his reason for the closure was for the protection of the witness as well as for the
efficient running of the trial, given that the jury had witnessed everything that the judge, the
lawyers, and the defendants had observed.
        The hearing record satisfactorily establishes that the closure in this case was partial,
rather than total. “A partial closure occurs where the public is only partially excluded, such as
when family members or the press are allowed to remain, or when the closure order is narrowly
tailored to specific needs.” People v Kline, 197 Mich App 165, 170 n 2; 494 NW2d 756
(1992)(internal citation omitted). It appears undisputed that only those associated with
defendants were cleared from the courtroom. Moreover, the courtroom was cleared of those

                                                -4-
associated with defendants only during Demond’s testimony. While Rhonda Johnson testified
that after Demond testified she was not allowed back in the courtroom, there is no indication that
she attempted to go back into the courtroom and was denied entry. And, there was testimony
that at least one defendant’s mother was allowed back into the court later in the day and that one
witness came back into the courtroom but was asked to leave because he may have been
potentially recalled as a witness. The above testimony, as well as the trial judge’s statement that
he only partially closed the courtroom, is sufficient to establish that the court room was only
partially closed.
        The articulated reasons for the closure, for the safety of the testifying witness and
efficient running of the trial, were substantial enough to justify the partial closure. Demond was
clearly shaken by the appearance of a person in the gallery—to the extent that he disrupted the
trial. He expressed concern for his safety and Ms. Casper recognized the name of the person
who caused Demond fear as a person who had been named or involved in recorded jailhouse
threats toward Demond and other prosecution witnesses.
        At the conclusion of the evidentiary hearing, the trial court specifically addressed the four
factors applicable to the closure of court proceedings set forth in Kline, 197 Mich App at 169.
As to the first factor, that the closure need address an overriding interest that is likely to be
prejudiced, the trial court again indicated that the safety of a witness was at stake and required
the partial closure. We agree that this interest was sufficient to justify the partial closure.
        The second Kline factor requires that the closure be no broader than necessary. Id. We
agree with the trial court that the closure of the court only while the one witness was testifying
was limited and thus not broader than necessary to protect the safety of the testifying witness.
With respect to the third factor, the consideration of any reasonable alternatives to the partial
closure, the trial judge admitted that he struggled with that factor. He stated that the partial
closure was actually begun by deputies trying to control people coming in and out of the
courtroom when Demond “astonishingly” just got up and left the stand. The trial judge stated
that his concern was that the jury was sheltered from any interaction between witnesses, the
deputies, and spectators, so that no prejudice to the defendants occurred and he saw no real
alternative but to partially close the courtroom, given that the fear from the witness was
happening ten feet away from the jury. Given the unpredictable nature of this occurrence, the
speed at which it occurred, and Demond’s continued expression of fear, we find that the trial
court’s determination of no reasonable alternative to a partial closure of the courtroom was
sound. Finally, we find that the trial court’s articulation on the record of its findings is adequate
to support its partial closure of the courtroom, thus satisfying the fourth Kline requirement. Id.
       As we have held that the closing of the courtroom was partial and did not violate any of
the defendants’ rights to a public trial, we now address defendant Brown’s sentencing issues
(Docket No. 327734), which we had held in abeyance pending resolution of the remand
proceeding.
       Brown raised two sentencing issues on appeal. First, he claims that he should not have
been sentenced as a habitual offender because the information containing the notice of habitual
offender enhancement was not timely filed. We disagree.
       MCR 6.112 provides, in pertinent part:

                                                -5-
               (B) Use of Information or Indictment. A prosecution must be based on
       an information or an indictment. Unless the defendant is a fugitive from justice,
       the prosecutor may not file an information until the defendant has had or waives a
       preliminary examination. An indictment is returned and filed without a
       preliminary examination. When this occurs, the indictment shall commence
       judicial proceedings.

                                             ***

              (F) Notice of Intent to Seek Enhanced Sentence. A notice of intent to
       seek an enhanced sentence pursuant to MCL 769.13 must list the prior
       convictions that may be relied upon for purposes of sentence enhancement. The
       notice must be filed within 21 days after the defendant’s arraignment on the
       information charging the underlying offense or, if arraignment is waived or
       eliminated as allowed under MCR 6.113(E), within 21 days after the filing of the
       information charging the underlying offense.

              (G) Harmless Error. Absent a timely objection and a showing of
       prejudice, a court may not dismiss an information or reverse a conviction because
       of an untimely filing or because of an incorrectly cited statute or a variance
       between the information and proof regarding time, place, the manner in which the
       offense was committed, or other factual detail relating to the alleged offense.

Brown’s preliminary examination was held on December 19, 2014, following which Brown was
bound over for trial. He was arraigned in circuit court on December 26, 2014. At that time, he
waived reading of the information. The information in the lower court file is dated December 6,
2014, but Brown’s circuit court arraignment took place on December 26, 2014. It appears that
the information was prepared on December 6, but not filed until after the preliminary
examination. The information contained the required notice of intent to seek an enhanced
sentence and listed Brown’s prior convictions (for attempted receiving or concealing stolen
property, attempted first-degree home invasion, and two counts of delivery of less than 50 grams
of cocaine). Brown thus fails to establish any noncompliance with MCR 6.112.

        Defendant Brown’s second sentencing issue is his claim that the trial court improperly
engaged in judicial fact-finding to score the sentencing guideline offense variables, thereby
increasing his guidelines range, in violation of his rights under the Sixth Amendment. In People
v Lockridge, 498 Mich 358, 364; 870 NW2d 502 (2015), our Supreme Court held that “the rule
from Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extended
by Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), applies to
Michigan’s sentencing guidelines and renders them constitutionally deficient” because of “the
extent to which the guidelines require judicial fact-finding beyond the facts admitted by the
defendant or found by the jury to score offense variables that mandatorily increase the floor of
the guidelines minimum sentence range . . . .” To remedy this violation, the Court severed MCL
769.34(2) to the extent that it makes a sentencing guidelines range based on judge-found facts
mandatory, and held that a guidelines range calculated in violation of Apprendi and Alleyne is
advisory only. Lockridge, 498 Mich at 364-365. In Lockridge, the Court explained that if the
facts “admitted by a defendant or found by the jury verdict were insufficient to assess the

                                              -6-
minimum number of OV points necessary for the defendant’s score to fall in the cell of the
sentencing grid under which he or she was sentenced[,] . . . an unconstitutional constraint [will
have] actually impaired the defendant’s Sixth Amendment right.” Id. at 395. The Court further
held that “in cases in which a defendant’s minimum sentence was established by application of
the sentencing guidelines in a manner that violated the Sixth Amendment, the case should be
remanded to the trial court to determine whether that court would have imposed a materially
different sentence but for the constitutional error. Id. at 397. This remand procedure was
modeled on the procedure adopted in United States v Crosby, 397 F3d 103 (CA 2, 2005), cert
den 549 US 915; 127 S Ct 260; 166 L Ed 2d 202 (2006). Lockridge, 498 Mich at 395-396.

        Lockridge involved an unpreserved error subject to review for plain error affecting
substantial rights, whereas Brown preserved his claims of error under Alleyne. Following
Lockridge, this Court has held that a preserved Alleyne/Lockridge error must be reviewed to
determine if it qualifies as harmless beyond a reasonable doubt. People v Stokes, 312 Mich App
181, 198; 877 NW2d 181 (2015), appeal held in abeyance ___ Mich ___; 878 NW2d 886 (2016);
People v Terrell, 312 Mich App 450, 464; 879 NW2d 294 (2015), appeal held in abeyance 878
Mich 480; ___ NW2d ___ (2016). This Court further held that in order to determine whether the
error was harmless, a Crosby remand is appropriate, even in the absence of evidence that judicial
fact-finding increased the minimum sentence, if the trial court’s use of the sentencing guidelines
was mandatory at the time of sentencing. Terrell, 312 Mich App at 466-467.

      Brown argues that the trial court’s scores for offense variable (OV) 1, OV 2, OV 3, OV 4,
OV 6, OV 7, and OV 19 were not based on facts that he admitted or that were found by the jury.

        The trial court scored the sentencing guidelines for armed robbery, a class A offense.
MCL 777.16y. Brown received a total of 175 offense variable points, placing him in OV Level
VI (100 or more points), which combined with his placement in Prior Record Variable Level E,
resulted in a sentencing guidelines range of 225 to 375 months or life. MCL 777.62. Because
Brown was sentenced as a fourth-offense habitual offender, MCL 769.12, the upper limit of the
guidelines range was increased by 100 percent, MCL 777.21(3)(c), resulting in an enhanced
guidelines range of 225 to 750 months. MCL 777.62. The trial court sentenced defendant within
that range to a minimum term of 500 to 749 months.

       At defendant’s sentencing, when asked about challenges to the scoring of offense
variables, defendant’s attorney expressly stated that he agreed with the scoring of OV’s 1, 2, 3
and 4. This express approval waived review of this issue with respect to those variables. A
waiver extinguishes any error, leaving no error to review. People v Vaughn, 491 Mich 642, 663;
821 NW2d 288 (2012).2



2
  OV’s 1 and 2 were also supported by the jury’s verdict and did not require judicial fact-finding.
OV 1 concerns aggravated use of weapon. The prosecutor’s sole theory was that defendants
fired guns at Dismuke and wounded him. There was no basis for the jury to convict Brown
unless it found that defendants discharged one or more firearms. OV 2 concerns the lethal
potential of a weapon possessed or used. Brown’s convictions of carrying a weapon with


                                                -7-
        Offense variable 6 (offender’s intent to kill or injure) was scored at 50 points, which is
the proper score where “[t]he offender had premeditated intent to kill or the killing was
committed while committing or attempting to commit” any of the felonies enumerated in the
statute, none of which are applicable here. MCL 777.36(1)(a). Although an intent to commit
murder is a necessary element of defendant’s conviction for assault with intent to commit murder
(MCL 750.83), that statute does not require a premeditated intent to kill. Accordingly, OV 6 was
not based on any finding inherent in the jury’s verdict.

        The court assessed 50 points for OV 7 (aggravated physical abuse). This score is
properly assigned where “[a] victim was treated with sadism, torture, excessive brutality or
similarly egregious conduct designed to substantially increase the fear and anxiety a victim
suffered.” MCL 777.37(1)(a). No such finding is inherent in the jury’s verdict. Similarly, the
trial court scored 10 points for OV 19 on the basis that Brown “interfered with or attempted to
interfere with the administration of justice,” but no such finding was implied by the jury’s
verdict. MCL 777.49(c).

        The total sum of preserved, appealable OV point challenges that were dependent on
judicial fact-finding is 110 points. Without these points, defendant’s total OV score would be 65
points, placing him in OV Level IV (60-79 points), which combined with Brown’s placement in
PRV Level E, would result in an enhanced minimum sentence range of 135 to 450 months.
MCL 777.62; MCL 777.21(3)(c). Brown has thus demonstrated that an unconstitutional
constraint actually impaired his Sixth Amendment rights. Lockridge, 498 Mich at 395. Because
Brown was sentenced before Lockridge was decided, and his placement in OV Level VI cannot
be sustained on the basis of facts admitted by Brown or necessarily found by the jury, remand is
warranted to determine if the sentencing error is harmless. Stokes, 312 Mich App at 198.

        The prosecutor argues that the Supreme Court in Lockridge did not “strip[] away the trial
court’s power to score the guidelines based on judicial fact finding.” The prosecutor relies on
this footnote from Lockridge:

       Our holding today does nothing to undercut the requirement that the highest
       number of points possible must be assessed for all OVs, whether using judge-
       found facts or not. See MCL 777.21(1)(a) (directing that the offense variables
       applicable to the offense category at issue be scored); see also, e.g., MCL
       777.31(1) (directing that the “highest number of points” possible be scored); MCL
       777.32(1) (same); etc. [Id. 498 Mich at 392 n 28 (emphasis in original).]

This footnote relates to this paragraph from the Court’s opinion:

              Accordingly, we sever MCL 769.34(2) to the extent that it is mandatory
       and strike down the requirement of a “substantial and compelling reason” to
       depart from the guidelines range in MCL 769.34(3). When a defendant’s
       sentence is calculated using a guidelines minimum sentence range in which OV's

unlawful intent, felon in possession of a firearm, and felony-firearm demonstrate that the jury
found beyond a reasonable doubt that Brown was in possession of a firearm.


                                               -8-
       have been scored on the basis of facts not admitted by the defendant or found
       beyond a reasonable doubt by the jury, the sentencing court may exercise its
       discretion to depart from that guidelines range without articulating substantial and
       compelling reasons for doing so. A sentence that departs from the applicable
       guidelines range will be reviewed by an appellate court for reasonableness.
       Booker, 543 US at 261, 125 S Ct 738. Resentencing will be required when a
       sentence is determined to be unreasonable. Because sentencing courts will
       hereafter not be bound by the applicable sentencing guidelines range, this remedy
       cures the Sixth Amendment flaw in our guidelines scheme by removing the
       unconstitutional constraint on the court’s discretion. Sentencing courts must,
       however, continue to consult the applicable guidelines range and take it into
       account when imposing a sentence. Further, sentencing courts must justify the
       sentence imposed in order to facilitate appellate review. People v Coles, 417
       Mich 523, 549; 339 NW2d 440 (1983), overruled in part on other grounds by
       People v Milbourn, 435 Mich 630, 644; 461 NW2d 1 (1990). [Lockridge, 498
       Mich at 391-392.]

        Although the prosecutor is correct that courts may score the guidelines on the basis of
judge-found facts, the prosecutor ignores that such scoring is permitted only so long as the
guidelines are deemed advisory, and that the guidelines were mandatory at the time Brown was
sentenced. It is the mandatory application of the guidelines, not judicial fact-finding, which
establishes the unconstitutional constraint on the trial court’s discretion. Consequently, this case
should be remanded to the trial court for reconsideration of Brown’s sentences in accordance
with Lockridge.

        On remand, the trial court should determine whether it would have imposed a materially
different sentence but for the unconstitutional constraint on its discretion because of the
mandatory application of the guidelines at the time of Brown’s original sentencing. Lockridge,
498 Mich at 397. The trial court should follow the procedure described in Lockridge. Brown
must be given the option of promptly notifying the trial judge that resentencing will not be
sought. If notification is not received in a timely manner, the trial court shall continue with the
proceeding. If the trial court determines that it would have imposed the same sentences absent
the unconstitutional constraint on its discretion, it may reaffirm the original sentences. If,
however, the court determines that it would not have imposed the same sentences absent the
unconstitutional constraint on its discretion, it should resentence Brown. Id. at 396-399.

       Affirmed, but defendant Brown’s sentencing issues are remanded to the trial court for
proceedings not inconsistent with this opinion. We do not retain jurisdiction.



                                                             /s/ Kurtis T. Wilder
                                                             /s/ Mark J. Cavanagh
                                                             /s/ Deborah A. Servitto




                                                -9-
