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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

December 1, 2016 

v No. 327063 

Wayne Circuit Court 

HAROLD LAMONT WALKER, LC No. 14-007222-01-FH 

 Defendant-Appellant. 

Before: FORT HOOD, P.J., and GLEICHER and O’BRIEN, JJ. 

PER CURIAM. 

 Defendant, Harold Lamont Walker, was convicted by a jury of felon in possession of a 

firearm (felon-in-possession), MCL 750.224f, carrying a concealed weapon (CCW), MCL 

750.227, and third-offense possession of a firearm during the commission of a felony (felonyfirearm), MCL 750.227b, and sentenced as a fourth-offense habitual offender, MCL 769.12, to 

concurrent prison terms of 46 months to 75 years for the felon-in-possession and CCW 

convictions, each of which was to be served consecutive to a prison term of ten years for the 

third-offense felony-firearm conviction. He appeals as of right his March 12, 2015 judgment of 

sentence. We affirm defendant’s convictions and sentences but remand this matter to the trial 

court for the ministerial task of correcting an error in the March 12 judgment of sentence. 

I. FACTUAL & PROCEDURAL BACKGROUND 

 Defendant’s convictions arise out of his possession of a firearm in Detroit on August 14, 

2014. While on routine patrol, law enforcement observed three men and one woman standing 

near a vehicle, drinking beer, and listening to loud music. As the officers approached the four 

individuals, defendant quickly left the group, ran to the front of the home, and clutched his right 

side with a hand over his pocket as though he were attempting to conceal a firearm. Three police 

officers testified that, after unsuccessfully attempting to enter the home, defendant removed a 

firearm from his person and discarded it in a bush. One of the officers specifically testified that 

the firearm was a revolver. The police recovered a loaded revolver from that bush shortly 

thereafter. Defendant was charged with, and eventually convicted of, the crimes set forth above. 

Defendant denied ever possessing a firearm; instead, his defense at trial was that he discarded a 

beer bottle, not a firearm, in the bush. 
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II. ARGUMENTS ON APPEAL 

 Defendant raises a variety of arguments on appeal. First, he argues that reversal is 

required because the prosecutor impermissibly argued facts not in evidence. Second, he argues 

that reversal is required because the trial court’s “deadlock” instruction coerced a guilty verdict. 

Third, he argues that resentencing is required because the trial court erred in scoring offense 

variable (OV) 19 at ten points. Fourth, defendant argues that reversal is required because the 

prosecution presented insufficient evidence to support the jury’s verdict. Fifth, defendant argues 

that a remand is necessary to correct his judgment of sentence because it incorrectly indicates 

that his sentence for the felony-firearm conviction runs consecutive to both his felon-inpossession and CCW convictions. We will address each individually below. 

 Defendant also raises several other arguments in a pro se supplemental brief filed 

pursuant to Supreme Court Administrative Order No. 2004-6, Standard 4. First, defendant 

argues that reversal is required because the trial court demonstrated a bias against him 

throughout the trial in this matter. Second, defendant argues that reversal is required because his 

trial counsel failed to call material witnesses, failed to object to various impermissible statements 

made by the prosecutor during trial, and failed to adequately investigate his case. We will 

address these arguments individually below as well. 

A. PROSECUTORIAL MISCONDUCT 

 Defendant argues that he was deprived of his constitutional right to due process and a fair 

trial by the prosecutor’s comments on a defense witness’s credibility during rebuttal argument. 

Specifically, defendant takes issue with the prosecutor’s statement that Darryl Williams would 

not “get any type of additional time for having this gun.” This argument was made in response 

to defendant’s theory that Williams was the individual who threw the firearm in the bush. 

Indeed, Williams was called as a defense witness at trial and testified that he, not defendant, was 

the person who threw the firearm in the bush. According to defendant, the prosecutor’s 

argument in this regard constituted an impermissible claim by the prosecutor that she had special 

knowledge of the witness’s truthfulness. 

 “[A] prosecutor is free to argue the evidence and any reasonable inferences that may arise 

from the evidence.” People v Callon, 256 Mich App 312, 330; 662 NW2d 501 (2003). 

However, a prosecutor is not permitted to make statements of fact to the jury that are not 

supported by the evidence. People v Stanaway, 446 Mich 643, 686; 521 NW2d 557 (1994). 

Nevertheless, even if a prosecutor argues facts not supported by the evidence, it is well 

established that jurors are presumed to follow their instructions, and instructions are presumed to 

cure most errors. People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). 

 Here, the prosecutor’s comment at issue, i.e., that the witness would not “get any type of 

additional time for having this gun,” was not supported by any evidence presented at trial. Thus, 

we agree with defendant to the extent that he claims the remark was improper. We disagree, 

however, that this comment, alone, requires reversal under the facts and circumstances of this 

case. Defense counsel immediately objected to this improper remark, the prosecutor did not 

pursue that argument any further, and the trial court instructed the jury that the lawyers’ 

statements were not evidence immediately after the prosecutor completed his rebuttal argument. 
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As indicated above, it is well established that jurors are presumed to follow their instructions, 

and instructions are presumed to cure most errors. Abraham, 256 Mich App at 279. To the 

extent defendant claims that the trial court’s instructions were insufficient in this regard, there is 

nothing in the record that supports that assertion. Indeed, as indicated above, the improper 

remark was made during the prosecutor’s rebuttal argument, and the trial court gave its jury 

instructions just minutes later. Accordingly, we conclude that defendant was not deprived of his 

constitutional right to due process and a fair trial. 

B. JURY INSTRUCTIONS 

 Defendant also argues that the trial court erred in giving a “deadlock” jury instruction that 

was materially different than the instruction set forth in M Crim JI 3.12. Specifically, defendant 

takes issue with the trial court’s decision to tell the jury, in response to a note indicating that 

there would not be “an agreement with more time,” that “that’s not the way this works,” that they 

would “come back in one hour and resume . . . deliberations,” and, twice, that “if there’s 

someone among you who’s failing to follow the instructions or there’s someone who’s refusing 

to participate in the process, you can send us a notice and let us know and we can address that.” 

Defendant claims that this instruction was impermissibly coercive rather than encouraging and 

respectful of the jurors’ beliefs. 

 When a jury indicates that it is unable to reach a verdict, the trial court may give 

supplemental jury instructions and direct the jury to continue deliberations. People v Hardin, 

421 Mich 296, 316; 365 NW2d 101 (1984). A proper supplemental instruction facilitates 

continued deliberation while avoiding coercion. People v Sullivan, 392 Mich 324, 334; 220 

NW2d 441 (1974). However, if the supplemental instruction would force a juror to surrender an 

honest conviction, the instruction is impermissibly coercive. Id. To determine whether a given 

instruction is impermissibly coercive, we look to whether the instruction has “an undue tendency 

of coercion—e.g., could the instruction given cause a juror to abandon his conscientious dissent 

and defer to the majority solely for the sake of reaching agreement?” Hardin, 421 Mich at 314. 

The instruction “must be examined in the factual context in which it is given” to determine 

whether there was a coercive effect on the jury. Id. at 315. Additional language will “rarely” be 

considered a substantial departure if it “contains ‘no pressure, threats, embarrassing assertions, or 

other wording that would cause this Court to feel that it constituted coercion.’ ” Id. (citation 

omitted). 

 In this case, the context around the trial court’s “instruction” at issue cannot be 

overlooked. Deliberations began at 11:19 a.m. At 12:36 p.m., the jury sent a note, which stated 

as follows: “We are hung, and I don’t believe there will be an agreement with more time.” The 

trial court respondent as follows: 

 Well, that’s not the way this works. Your [sic] all heard a full day of 

testimony, and you deliberated for what an hour and fifteen minutes, and now you 

just give up. That’s not the way it works, I’m sending you all to lunch, maybe 

what you need is some nourishment, other than candy, to help you all, you know, 

have clear heads and review the evidence that you heard. 
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 Now, if there’s someone among you who’s failing to follow the 

instructions or there’s someone who’s refusing to participate in the process, you 

can send us a note and let us know that and we can address that, but at this point 

I’m not inclined to end your deliberations at this point because you had a full day 

of testimony and you’ve only been at this, discussing it, for one hour. 

 So, I’m going to send you to lunch, maybe sometime apart will help you 

all to think about things, and then you’ll come back in one hour and resume your 

deliberations. If you have any questions, if there is anything that you don’t 

understand or need clarification on send a note. And again, if there’s one among 

you or two among you, three among you, who are refusing to follow instructions 

or participate in the process you can let us know that, too. 

 Remember you are not to discuss this case, when you are anywhere other 

than in the jury room cause you’re still a juror. So even if you go to lunch 

together some of you, you can not [sic] discuss this case cause you can only 

discuss it when you’re all together and when you’re in the jury room. 

The jury was excused at 12:41 p.m., resumed deliberations at 1:40 p.m., and reached a verdict at 

3:07 p.m. 

 We discern nothing impermissibly coercive about these comments by the trial court. The 

trial court did not require that the jury deliberate for an unreasonable length of time or in 

unreasonable intervals. Rather, the trial court informed the jury that it had not deliberated long 

enough in light of the amount of evidence that was presented in this three-day trial, which 

included one full day of testimony. Although it is true that the trial court departed from the 

standard “deadlock” jury instruction, the trial court’s comments, when reviewed in context, were 

not coercive as defendant claims. While, in our view, giving the standard instruction would have 

been more favorable, we simply cannot conclude that these comments coerced the jury as 

opposed to stressed to the jury the importance of engaging in full-fledged deliberation. Hardin, 

421 Mich at 321. Accordingly, we conclude that reversal is not required based on these 

comments. 

 While we appreciate the concerns raised by our dissenting colleague, we do not agree that 

reversal is required here. Our dissenting colleague opines that, by indicating that it would 

“address” jurors “who are refusing to follow instructions or participate in the process,” the trial 

court essentially “threatened that it would separately ‘address’ dissenting jurors if informed of 

their identities[.]” We cannot agree. In our view, the trial court’s statement that it would 

“address” jurors “who are refusing to follow instructions or participate in the process” reflects its 

intent to address jurors who were refusing to meaningfully participate in deliberations, not its 

intent to shame those with conflicting views. In short, while the standard instruction would have 

been more favorable, we are not willing to conclude that the trial court’s failure to utilize it under 

the facts and circumstances of this case coerced a verdict. 
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C. OV 19 SCORING 

 Defendant argues on appeal that resentencing is required because the trial court’s tenpoint score for OV 19 was not supported by a preponderance of the evidence. Specifically, 

defendant claims that his refusal to provide his name upon arrest, alone, cannot support a tenpoint score for OV 19. 

 OV 19 addresses the interference with the administration of justice. The trial court must 

score 10 points if “[t]he offender otherwise interfered with or attempted to interfere with the 

administration of justice.” MCL 777.49(c). In scoring OV 19, a court may consider the 

defendant’s conduct after the completion of the sentencing offense. People v Smith, 488 Mich 

193, 200; 793 NW2d 666 (2010). A defendant interferes with the administration of justice by 

“oppos[ing] so as to hamper, hinder, or obstruct the act or process of administering judgment of 

individuals or causes by judicial process.” People v Hershey, 303 Mich App 330, 343; 844 

NW2d 127 (2013). 

 In this case, the record does not support defendant’s claim that the scoring OV 19 was 

based entirely on his refusal to provide a name. Rather, the scoring of OV 19 was based on the 

evidence that Williams, the only witness corroborating defendant’s defense, likely lied on behalf 

of defendant. As the trial court explained, “they trumped up that phony, bogus testimony” and it 

was not “a coincidence that low-and-behold after that young man spent some time in the Wayne 

County Jail, all of a sudden he decided he wanted to come to court and tell a ridiculous version 

of events.” The record supports this conclusion. Williams only admitted to placing the firearm 

in the bush after his incarceration with defendant, and this testimony directly contradicted that of 

the officers. Williams admitted that he looked to defendant as a “role model,” that he has a 

longstanding relationship with defendant, and that he and defendant were housed together in jail. 

This Court has previously recognized that defendant’s conduct of “instructing a victim or witness 

to not reveal or disclose a defendant’s conduct” is sufficient to support a ten-point score for OV 

19. See Hershey, 303 Mich App at 343. Accordingly we also conclude that the defendant’s 

conduct in this case, which was based on circumstantial evidence provided by Williams, was 

sufficient to support scoring OV 19 at ten points, and defendant does not challenge the trial 

court’s reliance on judicially found facts in scoring this, or other, OVs. See, e.g., People v 

Biddles, ___ Mich App ___, ___; ___ NW2d ___ (2016); slip op 4-11. 

D. SUFFICIENCY OF THE EVIDENCE 

 Defendant additionally argues that the evidence presented by the prosecution was 

insufficient to support his felony-firearm conviction. Specifically, defendant claims that the 

Legislature did not intend that a felony-firearm conviction be based on a felon-in-possession 

conviction. As defendant acknowledges, however, both this Court, see People v Dillard, 246 

Mich App 163; 631 NW2d 755 (2001), and our Supreme Court, People v Calloway, 469 Mich 

448; 671 NW2d 733 (2003), have rejected this position, and we are bound by those decisions. 

People v Strickland, 293 Mich App 393, 402; 810 NW2d 660 (2011); see also MCR 7.215(J)(1). 

While defendant claims that we are no longer required to follow these decisions in light of our 

Supreme Court’s decision in People v Bobby Smith, 478 Mich 292; 733 NW2d 351 (2007), we 

have consistently held otherwise. See, e.g., People v James, unpublished opinion per curiam of 

the Court of Appeals, issued June 14, 2016 (Docket No. 326393), p 4. 
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E. CONSECUTIVE NATURE OF SENTENCES 

 On appeal, defendant additionally argues that the sentence for his felony-firearm 

conviction should run consecutive to his felon-in-possession conviction only, not his CCW 

conviction, and the prosecution concedes the same on appeal. We agree. Accordingly, we 

remand this matter for the ministerial task of correcting the judgment of sentence in this regard. 

See, e.g., People v Taybron, 486 Mich 899; 780 NW2d 795 (2010). 

F. JUDICIAL BIAS 

 In his Standard 4 brief, defendant argues that he was deprived of his constitutional right 

to a fair trial because the trial court demonstrated a bias against him throughout the trial and in 

front of the jury. Specifically, defendant claims that he was deprived of his constitutional right 

to a fair trial when the trial court directly questioned Williams, when the trial court commented 

that defense counsel mischaracterized a witness’s testimony, when the trial court allegedly 

interfered with defense counsel’s cross-examination of two other witnesses, and when the trial 

court overruled defense counsel’s objections. 

 “The question whether judicial misconduct denied defendant a fair trial is a question of 

constitutional law that this Court reviews de novo.” People v Stevens, 498 Mich 162, 168; 869 

NW2d 233 (2015). However, because defendant did not object to the challenged questions, 

comments, or behavior in the trial court, these issues are unpreserved and reviewed for plain 

error affecting substantial rights. People v Sardy, 216 Mich App 111, 117-118; 549 NW2d 23 

(1996). In determining whether a trial judge’s conduct deprives defendant of a fair trial, this 

Court considers whether the “trial judge’s conduct pierces the veil of judicial impartiality.” 

Stevens, 498 Mich at 170. “A judge’s conduct pierces this veil and violates the constitutional 

guarantee of a fair trial when, considering the totality of the circumstances, it is reasonably likely 

that the judge’s conduct improperly influenced the jury by creating the appearance of advocacy 

or partiality against a party.” Id. at 171. This is a fact-specific inquiry, and this Court considers 

“cumulative effect” of any errors. Id. at 171-172. A single instance of misconduct generally 

does not create an appearance that the trial judge is biased unless the instance is “so egregious 

that it pierces the veil of impartiality.” Id. at 171. In evaluating the totality of the circumstances, 

this Court should consider a “variety of factors,” including, but not limited to following: the 

nature of the conduct, the tone and demeanor of the trial court throughout the proceedings, the 

scope of the judicial conduct in the context of the length and complexity of the trial, the extent to 

which the court’s conduct was directed at one side more than the other, and the presence of any 

curative instructions. Id. at 172. A defendant must overcome a heavy presumption of judicial 

impartiality when claiming judicial bias. People v Jackson, 292 Mich App 583, 598; 808 NW2d 

541 (2011). 

 With respect to the trial court’s questioning of Williams, the record does not reflect 

judicial impartiality as defendant suggests. After the parties’ questioned Williams, the trial court 

briefly questioned Williams regarding his testimony that he, not defendant, threw the firearm in 

the bush: 

The Court: So that day you didn’t tell anybody that was your gun, right? 
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Witness: No, ma’am. 

The Court: Because you were scared? 

Witness: Yes, ma’am. 

The Court: You kept it to yourself? 

Witness: Yes, ma’am. 

The Court: So . . . I’m sure you must have been shocked when you found 

out you were getting subpoenaed to come to court right? 

Witness: Yes, ma’am. I didn’t know what it was for. 

The Court: Because you never told anybody that that was your gun? 

Witness: Yes, ma’am. But neither Neff or Chandra held . . . guns. 

The Court: Hold on, I didn’t ask you, remember what I said, you can’t 

just say what you wanna say, all right. You have to answer the questions that are 

asked, and I didn’t ask you about Chandra or Neff or anybody, okay. 

Witness: Yes, ma’am. 

The Court: I just asked if you ever told anybody that that was your gun

that was in those bushes, and your answer to that was no, you never told anybody, 

right? 

Witness: Yes, ma’am. 

The Court: Okay. 

 This questioning does not reflect, as defendant suggests, that “the defense was fighting 

two prosecutors.” Rather, it reflects appropriate questioning by the trial court to “produce fuller 

and more exact testimony or elicit relevant information.” Stevens, 498 Mich at 173; see also 

MRE 614(b). The questions asked by the trial court were material to questions of fact at issue, 

i.e., whether defendant possessed a firearm, limited in scope, and posed in a neutral manner. The 

fact that this questioning may have been detrimental to defendant’s case, alone, does not render 

the questioning itself improper. People v Davis, 216 Mich App 47, 52; 549 NW2d 1 (1996). 

Furthermore, the trial court properly instructed the jury that its questions were not evidence and 

that it should not consider the trial court’s opinion of guilt or innocence. “[T]he presence of a 

curative instruction does tend to cut against a finding of judicial bias.” Stevens, 498 Mich at 190 

(citation and internal quotation marks omitted). Accordingly, we discern no error requiring relief 

with respect to the trial court’s questioning of Williams. 

 With respect to the trial court’s comment that defense counsel was mischaracterizing 

testimony, the record does not reflect judicial impartiality as defendant suggests. Sergeant 
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Matthew Gnatek testified that he observed defendant “run away from a parked car . . . .” 

Defendant claims that the following exchange, which occurred based on defense counsel’s crossexamination, between defendant and the trial court reflected a bias against him: 

Defense Counsel: And you observed my client, sprint away from the 

group up to the porch? 

The Court: That’s a mischaracterization, he never said sprint, never. 

Defense Counsel: He said fast sprint, Judge. 

The Court: No, he didn’t. He said run, he didn’t say sprint. 

Defense Counsel: Okay, your Honor, that was . . . I heard sprint. 

The Court: Well . . . we’re not gonna argue. I have ruled. 

 Defense Counsel: I understand, I’ll move on. 

 Applying the rules cited above to this case, it is apparent that the trial court’s comments 

were not improper. While admittedly critical, the trial court’s comments did not pierce the veil 

of judicial impartiality. Jackson, 292 Mich App at 598. Instead, the trial court attempted to 

correct what it believed was a mischaracterization of the witness’s testimony. Indeed, the trial 

court was correct in its belief that Sergeant Gnatek testified that defendant ran away from the 

parked vehicle. While it is also true that Gnatek later agreed that defendant’s pace was that of a 

sprint as well, we do not view this statement, alone, as reflecting a “deep-seated favoritism or 

antagonism” so as to deprive defendant of a fair trial. Id. (citation and internal quotation marks 

omitted). Furthermore, as indicated above, the trial court’s subsequent instructions 

presumptively cured any error, Stevens, 498 Mich at 190, and defendant makes little to no effort 

to overcome this presumption. Accordingly, we discern no error requiring relief with respect to 

the trial court’s comments to defense counsel. 

 With respect to the trial court’s alleged interference with defense counsel’s crossexamination of two other witnesses, the record does not reflect judicial impartiality as defendant 

suggests. Defendant cites the following exchanges to support his claim: 

Defense Counsel: Okay, and then he goes to retrieve the weapon?

Witness: He went to retrieve it, correct.

Defense Counsel: And you observed him retrieve it?

Witness: Yes. 

Defense Counsel: How long did it take him to search for the weapon in 

the bush?

Witness: Seconds, he just went in and came right out. 
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The Court: Anything else? 

Defense Counsel: Just one moment, your Honor. 

Defense Counsel: Was there anything else on the porch? 

Witness: Not that I recall, just the railings. 

Defense Counsel: Do you recall there being chairs, or other beer bottles? 

Witness: I don’t recall, no. 

Defense Counsel: And you said that your supervisor, Officer Gnatek? 

Witness: Sergeant Gnatek. 

Defense Counsel: Excuse me, Sergeant Gnatek, he alerted you that client 

had thrown a weapon? 

Witness: He yelled it out. 

Defense Counsel: Okay, but . . . you didn’t see it first, what came first 

Officer Gnatek alerting you that a weapon had been thrown or you observing 

that? 

Witness: I observed it first. 

Defense Counsel: Okay. 

Witness: So when he yelled it out, I was like, okay. 

Defense Counsel: Just one moment, your Honor. 

Defense Counsel: Officer Marek, you said you don’t know if the front 

door, if you recall it was open? 

Witness: It was closed, I don’t know if it was locked or not, but it was 

closed, it was a screen door and a regular door. 

Defense Counsel: Okay. 

Defense counsel: Nothing further, your Honor. 

* * * 

Defense Counsel: And the reason I ask that, Sergeant Jackson, is within 

those ten lines that I just read to you, I counted three probably’s and four 

maybe’s.
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The Court: Is that an argument or a question, I mean what’s the point?

Defense Counsel: The questions are coming, your Honor. 

The Court: Move on.

Defense Counsel: Just a couple . . . .

The Court: I don’t think it’s inconsistent, so you can move on.

Defense Counsel: Okay, thank you, your honor. 

After additional brief testimony, the witness was excused. 

 Here, it is apparent that the alleged interference was not improper. It is well-established 

that the trial court has the inherit authority to control the proceedings before it. People v Conley, 

270 Mich App 301, 307; 715 NW2d 377 (2006). The record reflects several separate and brief 

comments by the trial court in an attempt to prevent the wasting of time and resources. Defense 

counsel was permitted to question the witness exhaustively, and the trial court’s brief 

interjections were nothing more than ordinary. The trial court asked defense counsel whether he 

had concluded his examination and prohibited defense counsel from impermissibly arguing with 

the witness. These comments were well within the trial court’s discretion. See MRE 611(a); see 

also People v Sexton, 250 Mich App 211, 221; 646 NW2d 875 (2002). Furthermore, as indicated 

above, the trial court’s subsequent instructions presumptively cured any error, Stevens, 498 Mich 

at 190, and defendant makes little to no effort to overcome this presumption. Accordingly, we 

discern no error requiring relief with respect to the trial court’s alleged interference. 

 With respect to the trial court’s decision to overrule defense counsel’s objection, the 

record does not reflect judicial impartiality as defendant suggests. Defendant claims that the 

only reason the trial court overruled defense counsel’s objection to the prosecutor’s crossexamination of Williams was “to help [the] prosecution make [the] defense sole witness look 

unreliable, an[d] like a harden criminal in the eyes of the jury.” Defendant provides no factual or 

legal background for this position; thus, it is abandoned. Jackson, 292 Mich App at 598. Indeed, 

defendant has not argued, much less persuasively argued, that the trial court’s legal basis for 

overruling the objection was improper. Furthermore, as indicated above, the trial court’s 

subsequent instructions presumptively cured any error, Stevens, 498 Mich at 190, and defendant 

makes little to no effort to overcome this presumption. Accordingly, we discern no error 

requiring relief with respect to the trial court’s alleged interference. 

G. INEFFECTIVE ASSISTANCE 

 In his Standard 4 brief, defendant also argues that he was deprived of his constitutional 

right to the effective assistance of counsel. Because defendant did not raise this argument below, 

our review of this issue is limited to mistakes apparent on the record. People v Heft, 299 Mich 

App 69, 80; 829 NW2d 266 (2012). “To demonstrate ineffective assistance of counsel, a 

defendant must show that his or her attorney’s performance fell below an objective standard of 

reasonableness under prevailing professional norms and that this performance caused him or her 

prejudice.” People v Nix, 301 Mich App 195, 207; 836 NW2d 224 (2013) (citation omitted). 
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“To demonstrate prejudice, a defendant must show the probability that, but for counsel’s errors, 

the result of the proceedings would have been different.” Id. “A defendant must meet a heavy 

burden to overcome the presumption that counsel employed effective trial strategy.” People v 

Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009). 

 On appeal, defendant argues that counsel’s performance constituted ineffective assistance 

because he failed to call material witnesses, eyewitnesses, and experts. Decisions about what 

arguments to make, what evidence to present, and whether to call witnesses are matters of trial 

strategy, People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999), and “this Court will not 

second-guess defense counsel’s judgment on matters of trial strategy,” People v Benton, 294 

Mich App 191, 203; 817 NW2d 599 (2011). 

 With respect to defendant’s argument that defense counsel failed to call material 

witnesses, defendant claims that defense counsel should have called his girlfriend as a character 

witness, two eyewitnesses, and a fingerprint expert. First, with respect to defendant’s girlfriend, 

defense counsel’s decision not to call her was the product of reasonable trial strategy in light of 

the fact that presenting character testimony would have opened the door to defendant’s prior 

convictions, which included other instances of felony-firearm. Rockey, 237 Mich App at 76. 

Defendant, in hindsight, merely suggests his girlfriend’s testimony could have proved favorable, 

but that speculation is insufficient to warrant reversal. Accordingly, we conclude that defense 

counsel’s performance did not fall below prevailing norms. 

 With respect to the two eyewitnesses, defendant claims they could have provided 

testimony regarding his distaste for firearms and the fact that he threw a beer, not a firearm, in 

the bush. There is nothing in the record that supports this claim, and it is defendant’s, not our, 

burden to support his appellate claims. Payne, 285 Mich App at 190. Furthermore, the jury was 

presented with, and rejected, defendant’s beer-bottle theory, and there is nothing in the record to 

suggest additional testimony of this nature would have made any difference. We would be 

remiss not to also mention that defendant’s prior convictions, including convictions involving 

firearms, undermine his claim that he dislikes weapons. Accordingly, we conclude that defense 

counsel’s performance did not fall below prevailing norms. 

 Finally, with respect to the fingerprint expert, defendant claims that, had a fingerprint 

expert determined that his fingerprints were not on the firearm that was found in the bush, the 

jury would have not convicted him. Again, however, defendant has failed to provide any factual 

support for his claim. Payne, 285 Mich App at 190. Indeed, it is equally likely that his 

fingerprints were all over the firearm based on the record before us. Defense counsel’s decision 

to argue that the prosecution failed to test the gun for fingerprints, as opposed to testing it for 

fingerprints, was less risky. In fact, defense counsel was thus permitted to argue that the 

prosecution’s failure to test for fingerprints would have “clear[ed] up any doubt,” “but they 

didn’t do that.” The fact that it proved unsuccessful, alone, does not render counsel’s assistance 

ineffective. Heft, 299 Mich App at 84. Accordingly, we conclude that defense counsel’s 

performance did not fall below prevailing norms. 

 Defendant also argues that counsel’s performance constituted ineffective assistance 

because he failed to object to improper comments made by the prosecutor regarding what 

Williams had to lose. Prosecutors have great latitude when arguing at trial. People v Fyda, 288 
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Mich App 446, 461; 793 NW2d 712 (2010). Prosecutors may argue the evidence and all 

reasonable inferences that arise from the evidence as it relates to their theory of the case, and 

they need not state their inferences in the blandest possible language. People v Dobek, 274 Mich 

App 58, 66; 732 NW2d 546 (2007). Further, an otherwise improper remark might not warrant 

reversal if the prosecutor is responding to the defense counsel’s argument. Id. at 64. 

 In this case, it is apparent that the prosecutor’s argument was not improper. During trial, 

Williams stated, for the first time, that he, not defendant, threw the firearm into the bush earlier 

in the day. The prosecutor argued that, because Williams would be incarcerated for at least five 

years, he had nothing to lose by testifying that he possessed the firearm. This argument was 

made in response to the defense’s theory that Williams, not defendant, possessed the firearm and 

was made in hopes of convincing the jury that Williams’s testimony was untrue. Given its 

responsive nature and the fact that it was supported by the evidence, we discern no impropriety 

with respect to the prosecutor’s argument, and defense counsel cannot be faulted for failing to 

make a meritless objection. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). 

 Lastly, defendant raises a cursory claim regarding defense counsel’s alleged failure to 

investigate, but this argument is abandoned. “An appellant may not merely announce his 

position and leave it to this Court to discover and rationalize the basis for his claims, nor may he 

give only cursory treatment with little or no citation of supporting authority.” People v Kelly, 

231 Mich App 627, 640-641; 588 NW2d 480 (1998). “The failure to brief the merits of an 

allegation of error constitutes an abandonment of the issue.” People v McPherson, 263 Mich 

App 124, 136; 687 NW2d 370 (2004). Furthermore, this claim is not supported by the record. 

H. TRIAL COURT’S BEHAVIOR 

 Despite our conclusions above, i.e., that defendant is not entitled to reversal or 

resentencing, we do feel it briefly necessary to express our concern with comments made by the 

trial court at times during this case. As identified by our dissenting colleague, the trial court 

made several comments that, in our view, were certainly inappropriate. We are most troubled by 

the trial court’s behavior at sentencing, which included name calling, taunting, and other 

inappropriate innuendos. Nevertheless, we ultimately believe that defendant’s convictions and 

sentences should stand.

III. CONCLUSION 

 Accordingly, we affirm defendant’s convictions and sentences but remand for the 

ministerial task of correcting the judgment of sentence to reflect that defendant’s felony-firearm 

conviction is to be served consecutive to his felon-in-possession conviction, not his CCW 

conviction. We do not retain jurisdiction. 

/s/ Karen M. Fort Hood 

/s/ Colleen A. O’Brien