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154128 - People v Justly Ernest Johnson

The People of the State of Michigan,
 
David A. McCreedy
 
Plaintiff-Appellee,
 
v
(Appeal from Ct of Appeals)
 
 
(Wayne – Edwards, P.)
 
Justly Ernest Johnson,
 
Imran Javed Syed
 
Defendant-Appellant.
 

Summary

Defendants Johnson and Scott were convicted of first-degree felony murder for shooting a woman as she sat in her van with her children. At trial, two young men who were out in the neighborhood and admitted drinking alcohol and smoking marijuana identified defendants as the perpetrators. One of the young men testified that, before the shooting, defendants told him that they planned to “hit a lick,” i.e., commit a robbery. This young man also testified that, after the shooting, he saw both defendants with long guns wrapped in sheets and that Johnson told him that Scott “shot the lady.” The other young man testified that, after the shooting, he saw Scott hand his girlfriend a long object that was wrapped in clothing, and that the next day Johnson came to his home and told him that he had “hit a lick,” “messed up,” and “had to shoot somebody.” There was no other evidence linking defendants to the shooting. Their convictions were affirmed on direct appeal. Over the years, defendant Johnson has unsuccessfully sought relief from judgment on the basis of “new evidence,” including the recantation of the two key trial witnesses. The Michigan Innocence Clinic became involved and contacted Charmous Skinner, Jr., the victim’s son, who said that he was never contacted by anyone after the murder, but believed he could identify the shooter. When shown a photo lineup with defendants’ photos, he said that the shooter was not in the lineup. This testimony and other evidence were presented at an evidentiary hearing, after which the trial court denied Johnson’s successive motion for relief from judgment and Scott’s first motion, finding Skinner’s testimony unreliable. The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has granted leave to appeal in both cases and ordered that they be submitted together. The Court will address: (1) whether the trial court abused its discretion by declining to grant Johnson or Scott a new trial on grounds of newly discovered evidence, in light of Skinner’s testimony at the evidentiary hearing; (2) whether, even if Johnson’s previous claims of new evidence are barred under MCR 6.508(D)(2), the evidence on which those claims were based must still be considered in determining if the new evidence from Skinner makes a different result probable on retrial, see People v Cress, 468 Mich 678, 692 (2003); and (3) whether trial counsel for Johnson or Scott rendered constitutionally ineffective assistance by failing to interview Skinner or call him as a witness at trial.