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155198 - People v Harold Lamont Walker

The People of the State of Michigan,

 

Jonathan Mycek

 

Plaintiff-Appellee,

 

v

(Appeal from Ct of Appeals)

 

 

(Wayne – Lillard, Q.)

 

Harold Lamont Walker,

 

Adrienne Young

 

Defendant-Appellant.

 

Summary

Police officers saw defendant, a felon, pull a gun out of his pocket and throw it into some bushes. At trial on weapons charges, defendant testified that what he threw was a beer bottle, and a defense witness testified that the gun belonged to him, not defendant, and that he had hidden it in the bushes, where it was found, before defendant arrived. A jury convicted defendant of being a felon in possession of a firearm, carrying a concealed weapon (CCW), and possession of a firearm during commission of a felony, third offense. The trial judge sentenced defendant as a habitual-fourth offender to serve concurrent prison terms of 46 months to 75 years for felon-in-possession and CCW, both consecutive to the mandatory 10-year sentence for felony-firearm, third-offense. The judge assigned 15 points to OV 19 (interference with administration of justice) based on her belief that defendant committed perjury when he testified on his own behalf at trial, and that defendant had prevailed upon the defense witness to fabricate his testimony. The judge did not articulate any specific facts to support those beliefs. The judge also provoked an exchange with defendant at sentencing in which the judge, among other things, repeatedly called the defendant a clown. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has directed oral argument on defendant’s application for leave to appeal to address:  (1) whether the defendant is entitled to a new trial based on the trial judge’s comments to the jury in lieu of the standard “deadlocked jury” instruction, M  Crim JI 3.12; (2) whether Offense Variable 19 (OV 19), MCL 777.49, was improperly assigned 10 points for interference with the administration of justice, see People v Hardy, 494 Mich 430, 438 (2013), and People v Adams, 430 Mich 679, 689 (1988); (3) if OV 19 was misscored, whether the defendant is entitled to resentencing before a different judge based on the judge’s verbal exchange with the defendant at sentencing; and (4) whether he is entitled to resentencing irrespective of the scoring of Offense Variable 19, MCL 777.49.  See, e.g., People v Pennington, 323 Mich App 452 (2018).​