PEOPLE OF MI V ANTHONY JUNIOR JOHNSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 14, 2004
Plaintiff-Appellee,
v
No. 246937
Wayne Circuit Court
LC No. 02-011051
ANTHONY JUNIOR JOHNSON,
Defendant-Appellant.
Before: Neff, P.J., and Smolenski and Zahra, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of first-degree murder, MCL
750.316, two counts of felonious assault, MCL 750.82, and possession of a firearm during the
commission of a felony, MCL 750.227b. He was sentenced to concurrent prison terms of life
without parole for the murder conviction and two to four years for each of the assault
convictions, and was sentenced to a consecutive two-year term for the felony-firearm conviction.
We reverse and remand.
I
Defendant was charged with murder and two counts of assault with intent to commit
murder following a drive-by shooting in Detroit in which Freddie Bishop was shot and killed and
two companions were injured. Sometime around midnight on August 13, 2002, Bishop and the
companions, Eugene Fisher and James Robinson, were standing at a bus stop when a red dot
from a laser beam was spotted on Bishop’s chest. Seconds later, shots were fired from a passing
car, from which the laser beam was directed, and the three men started running. More shots were
fired. Fisher saw the red dot on the glass of the bus stop, and the glass shattered. Fisher and
Robinson suffered only minor injuries, but Bishop was later found dead on the ground nearby.
The shooting allegedly culminated an ongoing dispute between defendant and Bishop, and their
friends.
Several hours later, the police were called to a firebombing of a house in Detroit, where
defendant lived with his aunt. The police investigation of the firebombing revealed that it may
be connected to the earlier drive-by shooting. After defendant was questioned at the
firebombing, he was arrested in connection with the homicide. Defendant initially denied
involvement in the shooting, telling police that his girlfriend had driven him to his baby’s
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mother’s home that evening. He later gave a statement confessing that he fired the shots at
Bishop and the others earlier in the evening, but that he never intended to hurt anyone.
II
The key issue presented is whether the trial court erred in requiring defendant to choose
between jury instructions on lesser included offenses and an alibi defense on the ground that they
were inconsistent theories. Because there was evidence supporting instructions on the lesser
included offenses as well as the alibi defense, we hold that the limitation imposed by the trial
court was error. Reversal of defendant’s convictions is required because the prosecution has
failed to show that the error was harmless beyond a reasonable doubt.
A
Whether presentation of an alibi defense precludes a defendant from receiving
instructions on inferior offenses is a question of law. This Court reviews de novo questions of
law and claims of instructional error. People v Mendoza, 468 Mich 527, 531; 664 NW2d 685
(2003); People v Kurr, 253 Mich App 317, 327; 654 NW2d 651 (2002). Defendant claims that
he was denied the right to present a defense, a constitutional issue that this Court also reviews de
novo. Id.
B
On the third day of trial, after the prosecution rested, the trial court ruled that pursuant to
People v Cornell, 466 Mich 335; 646 NW2d 127 (2002), defendant was not permitted to have an
instruction on the lesser included offense of involuntary manslaughter1 with regard to the murder
charge if he claimed an alibi defense, i.e., that he was not at the shooting scene, because the
theories were inconsistent. We find the court’s ruling erroneous. Although the court provided
no further explication for its reliance on Cornell, we find no support in Cornell for the court’s
reasoning.
In Cornell, the Court addressed the proper analysis for determining when a lesser
included offense instruction must be given. Id. at 359. The Court held that “a requested
instruction on a necessarily included lesser offense is proper if the charged greater offense
requires the jury to find a disputed factual element that is not part of the lesser included offense
and a rational view of the evidence would support it.” Id. at 357. The Court’s mention of a
lesser included offense instruction vis-à-vis an alibi defense occurred only by way of an
example. Id. at 357 n 11. The Court pointed out that the absence of a disputed issue of fact
between a greater offense and a lesser offense precludes an instruction on the lesser included
offense. As an example, the Court noted that in People v Cargill, a companion case to People v
Kamin, 405 Mich 482; 275 NW2d 777 (1979), the defendant claimed an alibi defense with
1
The court’s ruling also encompassed lesser included offense instructions with regard to the
other charges against defendant, i.e., the two counts of assault with intent to commit murder.
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respect to a charge of armed robbery, and was not entitled to an instruction on the lesser included
offense of unarmed robbery because there was no dispute that the robbery was armed:
Defense counsel requested that the jury be instructed on unarmed robbery, among
other lesser included offenses. The undisputed evidence established that the men
who robbed the store were armed with a sawed-off shotgun and that they took the
money with force or threat of violence. The defendant's defense was alibi. The
only question that the jury was required to resolve was whether defendant was
one of the men present when the crime was committed. It was not required to
resolve a dispute about whether the men were armed. Thus, the factual issue was
the same with respect to both the lesser and greater offenses, and there was "no
evidence which would justify the jury in concluding that the greater offense was
not committed and the lesser included offenses were committed." [Id. at 357
(citation omitted).]
We disagree that Cornell stands for the proposition that a defendant is never entitled to an
instruction on a lesser included offense if his defense is alibi because the theories are
inconsistent, i.e., a defendant is arguing both that he was not at the scene of the crime, and even
if he was, he was not guilty of the offense charged, but only a lesser offense. A defendant may
maintain inconsistent defenses,2 and pre-Cornell decisions hold that, in general, a defense of alibi
does not preclude an instruction on a lesser included offense. “[A]ssertion of an alibi defense
does not deprive a defendant of his right to instruction on appropriate lesser included offenses.”
People v Bryant, 80 Mich App 428, 432; 264 NW2d 13 (1978). The Bryant Court explained:
Although there is merit to the argument that it is inconsistent for a defendant to
both assert that he was not at the scene of the crime and that, if he was, the crime
he committed was a lesser offense than that charged, a defendant “may advance
inconsistent claims and defenses.” People v John Williams, 26 Mich App 218,
222; 182 NW2d 347, 349 (1970).
“A defense of alibi, per se, does not mean that a defendant may not be
convicted of a lesser offense. A jury may disbelieve a defendant’s alibi but
nevertheless find that a disputed element of the principal charge was not proven.”
People v Membres, 34 Mich App 224, 232 n 7, 191 NW2d 66 (1971). [Bryant,
supra at 431-432.]
The discussion in Cornell, supra at 357 n 11, does not change the existing law with
regard to alibi defenses. Under existing law, defendant’s defense of alibi does not preclude his
entitlement to an instruction on the lesser included offense of involuntary manslaughter. The
circumstances in this case are not analogous to those in Kamin, supra, discussed in Cornell. In
this case, although defendant claimed that he was not at the scene of the shooting, that was not
the sole factual dispute for the jury to resolve. Unlike in Kamin, there was a disputed factual
element that was not part of the lesser included offense. As the court instructed the jury, to
2
See MCR 2.111(A)(2)(b); People v Lemons, 454 Mich 234, 245; 562 NW2d 447 (1997).
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establish first-degree murder, the prosecution had to prove that defendant intended to kill Bishop,
that the intent to kill was premeditated, and that the killing was deliberate. However, there was
evidence, which, if believed by the jury, established that the killing was inadvertent. In
defendant’s statement to the police, presented as evidence in the prosecutor’s case-in-chief,
defendant admitted shooting the gun, but stated that he “pointed the gun out the window and
started shooting at them [Bishop and his companions]” and further stated, “I just want to say that
I’m sorry. I was just shooting. I didn’t mean for anyone to get hurt.” Unlike in Kamin, the jury
could have concluded that the greater offense was not committed and the lesser included offense
was committed. Cornell, supra at 357 n 11.
Moreover, we note that the evidence creating the factual dispute concerning whether the
shooting was first-degree murder was presented by the prosecutor, not defendant. Although we
do not find this circumstance determinative, it further supports our conclusion that forcing
defendant to choose between his defense of alibi and a lesser included offense instruction with
regard to the charge of first-degree murder was error.
The court gave defendant a choice of pursuing his alibi defense or receiving the lesser
included offense instructions, which the court indicated were supported by the evidence.
Defendant opted to receive the lesser included offense instructions and thereby had to forego
presenting his defense of alibi, including the presentation of alibi witnesses and introduction of
his first statement to the police in which he denied involvement in the shooting. The trial court
erred in requiring defendant to choose between receiving the lesser included offense instructions
and presenting an alibi defense.
We further conclude that the error requires reversal of defendant’s convictions because
the prosecutor has failed to show that the error was harmless beyond a reasonable doubt. People
v Anderson (After Remand), 446 Mich 392, 405-406; 521 NW2d 538 (1994); Kurr, supra at 327
328. A constitutional error is harmless if it is clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error. People v Mass, 464 Mich 615, 640 n 29;
628 NW2d 540 (2001). The party who benefited from the error must demonstrate that there is no
reasonable possibility that the evidence complained of might have contributed to the conviction.
Anderson, supra at 406; People v Smith (On Remand), 249 Mich App 728, 730; 643 NW2d 607
(2002). The court’s ruling forced defendant to forfeit presentation of a defense in order to
exercise his statutory right to instructions on lesser included offenses. Cornell, supra at 354.
The court’s ruling infringed on his constitutional right to present a defense.
“The right to offer the testimony of witnesses, and to compel their
attendance, if necessary, is in plain terms the right to present a defense, the right
to present the defendant’s version of the facts as well as the prosecution’s to the
jury so it may decide where the truth lies. Just as an accused has the right to
confront the prosecution's witnesses for the purpose of challenging their
testimony, he has the right to present his own witnesses to establish a defense.
This right is a fundamental element of due process of law.” [People v Hayes, 421
Mich 271, 278-279; 364 NW2d 635 (1984), quoting Washington v Texas, 388 US
14, 19; 87 S Ct 1920; 18 L Ed 2d 1019 (1967) and also citing US Const, Ams VI,
XIV; Const 1963, art 1, §§ 17, 20.]
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Plaintiff has failed to show that there is no reasonable possibility that the loss of the alibi
defense did not contribute to the verdict. The evidence against defendant was not overwhelming.
Neither the victims nor the other eyewitnesses could identify the shooter. There were
discrepancies between the laser gun alleged to have been used by defendant and the evidence of
the shooting, as well as other discrepancies that undermined the case against defendant. The
substance of the alibi witnesses’ testimony is unknown. However, a strong alibi would have
enhanced the value of the defense’s efforts to show discrepancies between the gun and the
witnesses’ observations and to disavow defendant’s confession.
Moreover, the damage of the court’s ruling was not only the loss of evidence, but also the
loss of credibility to the defense case caused by a shift in strategy. As a result of the court’s
ruling, defense counsel did not deliver on his promise in his opening statement to produce
evidence that defendant was not the perpetrator. The prosecutor capitalized on the shift in the
defense theory of the case by arguing to the jury that defendant’s defense had changed during the
trial. The existing record does not show that the error did not contribute to the verdict with
regard to the offenses charged, all of which arose from the shooting. Defendant’s convictions
must therefore be reversed.
III
Having decided that reversal of defendant’s convictions is required, we need not decide
the remaining issues.
We note, however, that defendant’s remaining arguments are
unpersuasive.
Reversed and remanded. We do not retain jurisdiction.
/s/ Janet T. Neff
/s/ Michael R. Smolenski
/s/ Brian K. Zahra
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