PEOPLE OF MI V JOHNNIE LEE BURKETT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 16, 2010
Plaintiff-Appellee,
V
No. 295101
Oakland Circuit Court
LC No. 2009-225617-FC
JOHNNIE LEE BURKETT,
Defendant-Appellant.
Before: SERVITTO, P.J., and ZAHRA and DONOFRIO, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of two counts of assault with
intent to commit murder, MCL 750.83, and two counts of possession of a firearm during the
commission of a felony (felony firearm), MCL 750.227b. Because sufficient evidence supports
defendant’s convictions and defendant was not denied the effective assistance of counsel at trial,
we affirm.
This case arises from a shooting that occurred on April 26, 2006, on Florence Street in
Pontiac, Michigan. On the date in question, Robert Geter dropped his girlfriend, Angelina
Parker, off at her friend Jimela’s house on Florence Street. Robert Geter left for about an hour
and a half. During that time, Parker smoked marijuana with Jimela.1 When Robert Geter
returned to Jimela’s house, he brought his brother, Arthur Geter. Arthur Geter remained in the
car. Robert Geter confronted Parker, believing that she had spent time with another man,
defendant, who is also known as “Red.” Robert Geter said that he did not know defendant’s
name but he had seen him with Parker on one prior occasion. Parker denied seeing defendant.
Robert Geter left Jimela’s house and headed across the street to another house where a
person named “D.A.” resided. Parker followed. When they crossed the street, they found both
D.A. and defendant sitting outside D.A.’s house. Robert Geter started an argument with
defendant that lasted about five minutes. Parker attempted to calm down Robert Geter. She was
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Parker testified that in approximately an hour and a half she and Jimela shared a “blunt” which
is a cigarillo casing filled with marijuana instead of tobacco.
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able to coax him back across the street toward where Robert Geter’s car was parked in front of
Jimela’s house. Arthur Geter was still sitting in the car. Robert Geter and Parker argued as they
stood outside near the car. Robert Geter continued to accuse Parker of having some kind of
relationship with defendant. Parker continued to deny it.
As the argument continued on the street, Parker saw defendant emerge from an apartment
building across the street a few doors down from D.A.’s house with a black handgun in his hand.
Defendant walked over to Robert Geter. Arthur Geter believed defendant drove up to the house
in a gold Grand Prix, got out of the car, and then approached Robert Geter on foot. Arthur Geter
did not initially see that defendant had a gun. Parker did see the gun, and afraid of it, walked
away from the car and approached the sidewalk near Jimela’s porch. Arthur Geter stated that
defendant said, “I’m tired of this shit, this is the second time you tried to play me.” Arthur Geter
then saw the gun as defendant shot at Robert Geter. Robert Geter testified that he was shot in the
chest. Neither Robert Geter nor Arthur Geter had weapons. Parker saw defendant fire his gun
and also heard a gunshot. Robert Geter began running down the street away from defendant.
Parker did not know if Robert Geter had been shot. Parker, hysterical, ran into Jimela’s house.
Parker heard additional gunshots.
Arthur Geter ran away from the scene as defendant continued shooting. Arthur Geter
was shot in the back of his right leg and heard a total of about five shots. Arthur Geter called
911 as he was leaving the scene. Police picked up Arthur Geter on the next street over and took
him to the hospital. Parker remained in Jimela’s house until she was sure defendant was gone.
Parker thought Robert Geter had been shot but she was not sure. Parker left Jimela’s house and
drove around trying to find Robert Geter. When she could not find him, she drove to the police
station and reported to police that her boyfriend had been shot on Florence Street.
Lieutenant Josephine Fagan of the Pontiac Police Department testified that she spoke to
Parker during the early evening of the day of the shooting. Parker was crying and very upset.
Parker admitted that she did have contact with defendant, whom she identified as “Red,” earlier
in the day. Defendant had given her his phone number on a small piece of paper. Later, Robert
Geter confronted her about seeing defendant, and at that point she gave him the piece of paper
and Robert Geter put it in his pocket. Fagan searched Robert Geter’s clothing and found the
piece of paper in a pocket. Fagan also testified that Parker stated that she saw defendant shoot
Robert Geter when she was still outside, then after she ran into the house she saw defendant
shoot Arthur Geter as she watched out the window.
On the day after the shooting, police prepared a photo array including six pictures.
Parker chose defendant as the shooter. That same day, police visited Robert Geter at the hospital
where they found him responsive. Police showed Robert Geter the photo array and he selected
defendant. Robert Geter signed his name by defendant’s picture. Two days after the shooting,
police showed the same photo array to Arthur Geter. Arthur Geter also selected defendant as the
shooter and indicated the identification by circling the picture and signing his name by
defendant’s photo.
By the time of trial, Parker, Robert Geter, and Arthur Geter were reluctant to testify.
Parker and Arthur Geter testified under subpoena. Parker testified that she did not want to testify
because she was scared and did not want to “snitch.” Arthur Geter did not remember telling
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police defendant was the shooter and stated that he told police that he was not sure about his
identification of defendant in the photo array and that he signed the picture only because he
“looked at it.” Robert Geter provided minimal testimony before declaring that defendant was not
the shooter and refusing to further testify. The trial court declared Robert Geter a hostile witness
and ordered him to testify. Robert Geter continued to refuse to testify and the trial court held
him in contempt, sentenced him to 91 days in jail, and fined him $7,500. Robert Geter’s
preliminary examination testimony was then read to the jury.
Defendant’s theory of the case was that he was not the shooter and that he was
mistakenly identified as the shooter as a result of a series of errant witness identifications and
police coercion of the witnesses. After the close of proofs, the jury convicted defendant as
charged. The trial court sentenced defendant to 210 months to 40 years in prison for the assault
with intent to murder convictions, consecutive to two two-year terms for the felony firearm
convictions. Defendant now appeals as of right.
Defendant first argues that this Court must vacate defendant’s convictions because the
prosecution’s evidence of his identity as the shooter was legally insufficient. Defendant
specifically asserts that the prosecution only presented one eyewitness, Parker, who testified at
trial that defendant was the shooter and that her testimony was both coerced and incredible, and
she admitted to smoking marijuana on the day of the shooting. Defendant asserts that police
coerced the photo array identifications because police told the witnesses who to choose. Further,
Parker was high on marijuana, Arthur Geter was drunk, and Robert Geter was heavily medicated
at the hospital when they identified defendant as the shooter. In light of all this, defendant
contends that Parker’s trial testimony alone is insufficient to prove beyond a reasonable doubt
that defendant was the shooter.
We review a challenge to the sufficiency of evidence de novo. People v Cline, 276 Mich
App 634, 642; 741 NW2d 563 (2007). We must “‘view the evidence in a light most favorable to
the prosecution and determine if any rational trier of fact could find that the essential elements of
the crime were proven beyond a reasonable doubt.’” Id., quoting People v Wolfe, 440 Mich 508,
515; 489 NW2d 748, amended 441 Mich 1201 (1992). When reviewing a sufficiency of
evidence claim, all conflicts in the evidence must be resolved in favor of the prosecution. People
v McRunels, 237 Mich App 168, 181; 603 NW2d 95 (1999). It is solely the trier of fact’s role to
weigh the evidence and judge the credibility of witnesses. Wolfe, 440 Mich at 514. Therefore,
“[i]t is for the trier of fact, not the appellate court, to determine what inferences may be fairly
drawn from the evidence and to determine the weight to be accorded those inferences.” People v
Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).
A conviction of assault with intent to commit murder requires proof of the following
elements: “(1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make
the killing murder.” People v Brown, 267 Mich App 141, 147; 703 NW2d 230 (2005) (internal
quotations and citations omitted). “The elements of felony-firearm are that the defendant
possessed a firearm during the commission of, or the attempt to commit, a felony.” People v
Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). But defendant’s brief on appeal does not
make issue of the individual elements of the convicted offenses, but rather challenges the
credibility of the witnesses and their identification of defendant as the shooter.
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Identity is an essential element in a criminal prosecution. People v Oliphant, 399 Mich
472, 489; 250 NW2d 443 (1976). The prosecution, to justify a conviction, must prove the
identity of the defendant as the perpetrator of the charged offense beyond a reasonable doubt.
See People v Kern, 6 Mich App 406, 409-410; 149 NW2d 216 (1967). Positive identification by
a witness may be sufficient to support a conviction of a crime. See People v Davis, 241 Mich
App 697, 700; 617 NW2d 381 (2000). Questions concerning the credibility of the identification
testimony are for the trier of fact to resolve, and this Court will not resolve them anew. Id.
In this case, there was ample evidence to enable the jury to find that defendant was the
shooter. At trial, Parker specifically testified that as she saw the shooting occur and as she was
watching the shooting on Florence she felt confident that she would be able to recognize
defendant. She then pointed to defendant in the courtroom and identified him as the shooter.
Parker affirmed at trial that there was no doubt in her mind that defendant was the person who
committed the shootings on Florence Street on the date in question. The prosecution also
presented evidence that only one day after the shooting Parker picked defendant out of a photo
array by initialing his picture. Parker stated that she selected defendant from the array because
he was the person she saw commit the crimes. Additionally, Parker testified at trial that she also
positively identified defendant as the shooter at the preliminary examination.
Defendant asserts that Parker’s testimony should not be believed because she was
pressured by police during the identification and because she had been smoking marijuana on the
day of the shooting. But Parker specifically testified at trial that while police were present as she
reviewed the photo array, police did not tell her who to select and did not in any way suggest
who might be the shooter. She stated that she selected defendant because he was the perpetrator.
Detective Darren McAllister also testified that he merely presented Parker with the photo array
and that she selected defendant as the perpetrator. He stated that he did not tell her who to pick
and did not influence her selection in any way. With regard to Parker’s marijuana use on the
date of the shooting, Parker testified at trial that although she did use marijuana that day, she was
confident she could see what was happening during the incident and she has a good memory of
it.
There were conflicts in the evidence because Robert Geter and Arthur Geter changed
their testimony between the preliminary examination testimony and testimony at trial. With
regard to their identifications of defendant in the photo array, McAllister testified that he
presented the photo array to Arthur Geter and asked him to if he recognized anyone pictured as
the shooter. In doing so he did not indicate that Parker had already selected someone from the
array and did not suggest any of the photos to Arthur Geter. McAllister testified that after
reviewing the photos, Arthur Geter selected defendant’s picture and circled it and also signed his
name next to it. At trial, Arthur Geter acknowledged that he had been presented the photo array
by police and admitted to signing his name on the array. But, he also testified that McAllister
told him someone had already selected defendant and that McAllister actually circled
defendant’s picture and then told him to sign it.
McAllister testified that he went to see Robert Geter at Royal Oak Beaumont Hospital to
show him the photo array and found him to be very responsive. McAllister testified that he
presented the photo array to Robert Geter and asked him to if he recognized anyone pictured as
the shooter. In doing so he did not indicate that anyone had already selected someone from the
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array and did not suggest any of the photos to Robert Geter. After reviewing the photos, Robert
Geter selected defendant’s picture and attempted to circle it and he also attempted to sign his
name next to it. In Robert Geter’s preliminary examination testimony that was read at trial, he
indicated that he did not recall a police officer visiting him at the hospital.
Defendant’s argument regarding the disparities in testimony is unpersuasive. Generally,
conflicting testimony and witness credibility are issues for the trier of fact. Wolfe, 440 Mich at
514. Here, the jury apparently credited Parker’s testimony and McAllister’s testimony with
regard to defendant’s identification as the shooter both at the scene and in the photo array.
Furthermore, all conflicts in the evidence must be resolved on appeal in favor of the prosecution.
McRunels, 237 Mich App at 181. Accordingly, we conclude that there was sufficient evidence
for a trier of fact to conclude beyond a reasonable doubt that defendant possessed a gun and shot
Robert Geter and Arthur Geter.
Next, defendant argues that he was denied his constitutional right to effective assistance
of counsel when his attorney intentionally injected highly inflammatory evidence that a witness
was afraid to testify at trial when there was absolutely no indication that defendant or anyone
acting on his behalf had caused her fear. Defendant specifically asserts that there was no
strategic reason for defense counsel eliciting testimony from Parker that she had been offered a
bribe by someone to not appear to testify against defendant because it painted defendant as a bad
person and opened the door to further exploration of the testimony by the prosecutor.
Because no Ginther2 hearing was held, review is limited to errors apparent on the record.
People v Riley (After Remand), 468 Mich 135, 139; 659 NW2d 611 (2003); People v Jordan,
275 Mich App 659, 667; 739 NW2d 706 (2007). The determination whether a defendant has
been deprived of the effective assistance of counsel presents a mixed question of fact and
constitutional law. People v Dendel, 481 Mich 114, 124; 748 NW2d 859 (2008), amended 481
Mich 1201 (2008). A court must first find the facts and then decide whether those facts
constitute a violation of the defendant’s constitutional right to the effective assistance of counsel.
Id. Effective assistance of counsel is presumed and the defendant bears a heavy burden of
proving otherwise. People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002). To establish
ineffective assistance of counsel, a defendant must show that counsel’s performance fell below
objective standards of reasonableness, and that there is a reasonable probability that, but for
counsel’s errors, the result of the proceedings would have been different. People v Frazier, 478
Mich 231, 243; 733 NW2d 713 (2007).
Here, the record shows that defense counsel questioned Parker about whether someone
had offered her money ($500) in exchange for her not to appear for trial. In particular, defense
counsel was attempting to assert that Parker may have contacted one of defendant’s family
members through a third party and suggested that in exchange for money she would not show up
at trial. Parker testified that though someone did call her, it was not at her request and in fact she
People v Ginther, 390 Mich 436, 442-443; 212 NW2d 922 (1973).
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did not know the person who offered her the money. She also testified that she did not need any
money because she was going into the army. It seems defense counsel was attempting to
impeach Parker’s credibility or insinuate that she had a monetary reason to lie during her
testimony. This was a legitimate trial strategy. Decisions regarding what evidence to present
and whether to call or question witnesses are presumed to be matters of trial strategy. People v
Dixon, 263 Mich 393, 398; 688 NW2d 308 (2008).
At the end of the line of questioning by defense counsel with regard to Parker’s
reluctance to testify at trial, Parker volunteered that she never asked for money not to testify and
that she did not want to testify because she was “scared.” Defense counsel then stopped the line
of questioning. On redirect, the prosecutor asked Parker follow-up questions with regard to the
offer of money not to testify as well as her fear about testifying. Parker explained that since the
shooting, she had seen defendant once as she was driving with Jimela and defendant pointed at
Parker. Parker explained that she did not want to testify because “you don’t snitch on somebody.
It was just – you know, I mean, you probably don’t understand, but I don’t know, it’s a hood
thing.”
Clearly, it was defense counsel’s strategy to attempt to impeach Parker, an eyewitness
and possibly the most important witness in the case. A defense counsel possesses “wide
discretion in matters of trial strategy.” People v Odom, 276 Mich App 407, 415; 740 NW2d 557
(2007). On this record, attempting to create an inference that Parker had a reason to lie was a
legitimate trial strategy considering the importance of this witness and the fact that she stated
that she was offered money not to testify. Dixon, 263 Mich at 398. We cannot fault defense
counsel for Parker’s volunteered and unexpected answer about being “scared” to testify or the
resulting questioning by the prosecutor because counsel’s strategy was a valid one. We may not
“substitute our judgment for that of counsel on matters of trial strategy, nor will we use the
benefit of hindsight when assessing counsel’s competence.” People v Payne, 285 Mich App
181, 190; 774 NW2d 714 (2009) (internal quotation omitted). In any event, even if we were to
consider this error, considering the plethora of evidence against defendant, he has not shown that
there is a reasonable probability that, but for counsel’s error, the result of the proceedings would
have been different. Frazier, 478 Mich at 243.
Finally, defendant argues that he was denied the effective assistance of counsel at trial
when his counsel failed, midtrial, to move to suppress Parker’s identification of defendant when
Parker testified at trial that she was coerced to identify defendant at the initial photo lineup and
had previously identified someone else. Defendant asserts that prior to trial there was no
indication that Parker’s identification of defendant in the photo array had been coerced by being
threatened to be charged as an accessory by police, or that she had been told who to identify as
the perpetrator by police. However, because this information that Parker’s identification of
defendant to police was coerced and suggestive came out at trial, defense counsel should have
immediately made a motion to suppress Parker’s in-court identification of defendant.
Defendant’s argument is not supported by the record. Parker consistently identified
defendant as the shooter, at the photo array, at the preliminary examination, and also at trial.
Parker also testified that she was sure of the identification and that no one told her what to say or
made inappropriate suggestions regarding the identification. McAllister also testified that Parker
identified defendant as the shooter at the photo array and stated that he did not prompt her in any
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manner during the process. Defendant points to nowhere in the record where Parker identified
someone other than defendant as the shooter. Instead, defendant mischaracterizes Parker’s trial
testimony describing her first encounter with police when she went to the police station on the
day of the shooting. Parker testified that at that time she thought the police did not believe her
story about the shooting. She testified that police stated that if she did not tell the truth that she
could be charged as an accessory to the crime. Lieutenant Brian Flye testified that during the
initial meeting with Parker at the police station, he never told her that he did not believe her story
and never threatened her that she could be charged as an accessory to this crime. Flye further
testified that he never heard another police officer say Parker was lying or threaten her with
prosecution. Fagan, another officer present, similarly testified. Because defendant has not
supported his argument with a factual predicate, any motion made by defense counsel in support
of the argument would have been meritless. A failure to pursue a meritless objection does not
constitute ineffective assistance of counsel. See People v Rodriguez, 212 Mich App 351, 356;
538 NW2d 42 (1995).
Affirmed.
/s/ Deborah A. Servitto
/s/ Brian K. Zahra
/s/ Pat M. Donofrio
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