People v Johnson

545 N.W.2d 637, 451 Mich. 115
CourtMichigan Supreme Court
DecidedApril 2, 1996
DocketDocket 102949
StatusPublished
Cited by106 cases

This text of 545 N.W.2d 637 (People v Johnson) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v Johnson, 545 N.W.2d 637, 451 Mich. 115 (Mich. 1996).

Opinions

Per Curiam.

The defendant was convicted of second-degree murder and felony-firearm, and as an habitual [117]*117offender. However, the Court of Appeals set aside the convictions and ordered a new trial on the ground that he was denied effective assistance of trial counsel. We affirm.

i

Daryl Smith1 was fatally shot in April 1989, outside Big Art’s Paradise Lounge in Pontiac. This was part of a larger affray that included the defendant’s father, Johnnie Johnson, Sr., fatally shooting a man named Gary Moses.2

The defense theory was that Mr. Smith was himself shooting at the fleeing defendant, and was shot by an unknown person. The tavern owner’s testimony supported this defense. The contrary evidence included the testimony of a woman who said that she actually saw the defendant shoot Mr. Smith.

At the conclusion of a jury trial, the defendant was convicted of second-degree murder3 and possession of a firearm during the commission of that felony.4 He later pleaded guilty as an habitual (third) offender.5 He was sentenced to a term of life in prison, and a consecutive two-year term for felony-firearm.

[118]*118After sentencing, the defendant filed several motions in circuit court. These included a motion for a new trial and a motion for an evidentiary hearing with regard to several named persons who were said to be eyewitnesses who could testify regarding the defendant’s innocence, though they had not been called to testify at trial. The defendant’s motion was later supported with affidavits from six individuals, each of whom swore that he personally witnessed the entire episode and that the defendant did not shoot a gun at any time.

The motions were denied by the circuit court in December 1990. Applying a four-part test,6 the circuit court concluded that “[t]he new evidence is cumulative since Defendant presented eyewitnesses at trial who testified as to his innocence and including the new evidence upon retrial will probably not cause a different result.” The court also said that the defendant “failed to show why his trial counsel could not, using due diligence, have discovered and produced the six alleged eyewitnesses at trial.”

Before addressing the merits, the Court of Appeals remanded this case to the circuit court for an evidentiary hearing with regard to the proposed witnesses. The ensuing testimony was summarized in the circuit court’s findings:

[119]*119This matter is before the Court pursuant to an order of the Court of Appeals dated July 2, 1993. Having reviewed. Defendant’s proposed findings of fact and People’s proposed findings of the trial court and having conducted an evidentiary hearing, the Court makes the following determinations.
Dwayne Carrol, Dwight Carrol, Jesse Roberson III, and Rodney Akins all testified that they were present during the shooting, that Defendant did not shoot the victim, and that they informed trial attorney, Darryl Mitchell, that Defendant was not involved in the shooting. Dwight Carrol was called as a witness to testify on behalf of Defendant at the trial. Clovell Grandberry testified that he did not see the whole event and that he did not tell anyone about what he did see. Robert E. Taylor testified that Defendant did not participate in the shooting but did not tell the police. Attorney Mitchell testified that he did not specifically remember speaking with the above named individuals but that he might have. Mitchell further testified that he heard from many people at the time of trial but could not indicate what they told him or who they were. Detective Nolan [Gotschell], the Officer in charge of the case, testified that he was not aware of these witnesses before or during the trial.
The Court finds that four of the six witnesses were known to the defense before and during trial. The Court further finds that the other two witnesses, who did not contact Attorney Mitchell, were known by the other four witnesses and could have been produced for trial. Based upon the testimony heard at the Evidentiary Hearing, the Court finds that the evidence is not newly discovered evidence and that a new trial should not be granted.

Following those proceedings on remand, the Court of Appeals reversed the defendant’s convictions.7 The Court of Appeals explained that the failure to call [120]*120these known exculpatory witnesses8 was a denial of effective assistance:9

In his supplemental brief, defendant effectively concedes that based on the court’s findings, he is not entitled to a new trial based on newly discovered evidence. Defendant argues, however, that he is entitled to a new trial because justice was not done, MCL 770.1; MSA 28.1098, and because he was denied a fair trial due to ineffective assistance of counsel.
Counsel offered no explanation for failing to call the witnesses. The prosecutor reasons that the only explanation is that the witnesses did not tell defense counsel about their “alleged observations.” This is pure speculation. Counsel conceded that he might have spoken to the witnesses and that he heard from many people but could not say who they were or what they told him. In the face of the witnesses’ direct testimony that they spoke to defense counsel, we will not assume, based on counsel’s equivocal testimony, that defense counsel was not informed of these witnesses or their alleged observations. Moreover, the prosecutor’s conclusion is inconsistent with the court’s implied finding that at least four of the witnesses contacted trial counsel. We conclude that counsel’s failure to call these witnesses fell below an objective standard of reasonableness. People v Pickens, 446 Mich 298, 303; 521 NW2d 797 (1994).
While the witnesses’ testimony may have been cumulative of Art Adams’ and defendant’s father’s testimony, in the face of the confusion at the scene, the conflicting testimony, the character of the evidence that defendant killed Smith, and [121]*121the other possible sources of the fatal bullet, the jury may indeed have been persuaded by the additional evidence. Counsel’s representation deprived defendant of a fair trial. Id. at 303.

In dissent, Judge Mackenzie said that the testimony would have been cumulative of the testimony of Arthur M. Adams (the tavern owner) and of the defendant’s father, both of whom said that the defendant did not shoot Mr. Smith. She further said that the defendant “has not demonstrated that the witnesses’ testimony would have resulted in a different verdict, or that their absence at trial prejudiced him.” Slip op, p 1.

The prosecutor has applied to this Court for leave to appeal.

n

In People v Pickens, supra, we adopted the standard stated in Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984):

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient.

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Cite This Page — Counsel Stack

Bluebook (online)
545 N.W.2d 637, 451 Mich. 115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-johnson-mich-1996.