People v. Johnson

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CURTIS JOHNSON, Defendant-Appellant.

No. 361267

Court of Appeals of Michigan

December 21, 2023

UNPUBLISHED

Wayne Circuit Court LC No. 19-004594-01-FC

Before: GLEICHER, C.J., and GARRETT and MALDONADO, JJ.

PER CURIAM.

Defendant appeals by right his jury trial convictions of felony murder MCL 750.316(1)(b), first-degree premediated murder, MCL 750.316(1)(a), armed robbery, MCL 750.529, being a felon in possession of a firearm (felon-in-possession), MCL 750.224f and four counts of possessing a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to serve life imprisonment without the possibility of parole for both murder convictions, but it then vacated the premeditated murder conviction and sentence on doublejeopardy grounds. Defendant was also sentenced to 25 to 40 years' imprisonment for armed robbery, two to five years' imprisonment for felon-in-possession, and two years' imprisonment for each felony-firearm count. We affirm.

I. BACKGROUND

This case arises from the murder of a taxi driver. The victim was shot twice in the head during the early morning hours of May 25, 2019. He was discovered lying on the ground outside his taxi, with the pockets of his pants turned inside out. The victim's wallet was never found, suggesting that the motive for the shooting was a robbery. Two witnesses saw a person moving away from the taxi moments after the shooting occurred, but neither could offer more than a generalized physical description. Defendant became a suspect in the shooting because his address remained on the taxi's meter, and records from the taxi company indicated that the victim's last run was in response to a request for service at that address. Additionally, at the time of defendant's arrest, he was carrying the cell phone that was used to request the taxi service on the night in question.

The police executed a search warrant at defendant's residence and discovered a pair of shoes; the left shoe had what was later confirmed to be drop of blood on it. During his interrogation, defendant admitted that the shoes belonged to him, but claimed that the drop of blood was likely left there when he was assaulted earlier in the evening on May 24, 2019. Defendant insisted that he remained at home all night after the assault and specifically denied any knowledge regarding the shooting or reason to be in the area where it occurred. Although most of the evidence submitted for DNA testing contained DNA from too many contributors to allow comparison, an expert testified that there was very strong support to conclude that the blood on defendant's shoe came from the victim.

Defendant was found guilty as described above, and this appeal followed.

II. SPEEDY TRIAL

Defendant argues that his convictions should be reversed on the basis of a speedy trial violation because his jury trial did not commence until nearly 29 months after his May 2019 arrest. We disagree.

Defendant failed to preserve this issue for appellate review because he did not make a formal demand for trial. People v Cain, 238 Mich.App. 95, 111; 605 N.W.2d 28 (1999). Unpreserved claims of constitutional error are reviewed under the plain-error rule.^[1] People v Hughes, 506 Mich. 512, 523; 958 N.W.2d 98 (2020). "To establish entitlement to relief under plainerror review, the defendant must establish that an error occurred, that the error was plain, i.e., clear or obvious, and that the plain error affected substantial rights." People v Burkett, 337 Mich.App. 631, 635; 976 N.W.2d 864 (2021) (quotation marks and citation omitted). "An error affects substantial rights when it impacts the outcome of the lower-court proceedings." Id. (quotation marks and citation omitted). Moreover, reversal based on an unpreserved error "is warranted only when the error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial proceedings independently of the defendant's innocence." Id. (quotation marks and citation omitted).

The right to a speedy trial in criminal prosecutions is guaranteed by both the United States Constitution and 1963 Michigan Constitution. People v Williams, 475 Mich. 245, 261; 716 N.W.2d 208 (2006), citing U.S. Const, Am VI, and Const 1963, art 1, § 20. Michigan courts apply the four- part test from Barker v Wingo, 407 U.S. 514, 530; 92 S.Ct. 2182; 33 L.Ed.2d 101 (1972), to determine whether a defendant's constitutional right to a speedy trial has been violated. Williams, 475 Mich. at 261. Under the Barker test, this Court balances for factors: "(1) the length of delay, (2) the reason for delay, (3) the defendant's assertion of the right, and (4) the prejudice to the defendant." Id. at 261-262. No single factor is "either a necessary or sufficient condition to" a meritorious speedy-trial claim. Barker, 407 U.S. at 533. Rather, courts must "engage in a difficult and sensitive balancing process." Id.

A. LENGTH OF DELAY

When determining the length of the delay for purposes of the first Barker factor, the relevant time period begins at the time of the defendant's arrest. Williams, 475 Mich. at 261. Prejudice is presumed after "a delay of eighteen months or more." Id. at 262. Defendant was arrested on May 29, 2019, and his trial began on October 20, 2021, just shy of 29 months later. A delay of this length is presumptively prejudicial and requires this Court to consider the remaining Barker factors. Id. at 262. The first factor weighs in defendant's favor.

B. REASON FOR DELAY

While the pandemic played a role in the length of the delay, the delay is primarily attributable to the prosecution; therefore, this factor weighs in defendant's favor.

When "assessing the reasons for the delay, this Court must examine whether each period of delay is attributable to the defendant or the prosecution." People v Waclawski, 286 Mich.App. 634, 666; 780 N.W.2d 321 (2009). Delays that are unexplained should be attributed to the prosecution, as well as delays caused by docket congestion. Id. With respect to the latter category, however, "delays inherent in the court system . . . are given a neutral tint and are assigned only minimal weight in determining whether a defendant was denied a speedy trial." Williams, 475 Mich. at 263 (quotation marks and citations omitted).

Before addressing the history of and reason for the various delays in this case, we note that the delays involving pandemic-related closures are not a matter of record. Defendant repeatedly cites press releases from the trial court and other news articles, but defendant is not allowed to expand the record on appeal, People v Morrison, 328 Mich.App. 647, 655; 939 N.W.2d 728 (2019), and this Court has previously indicated that newspaper articles are not an appropriate subject of judicial notice because of hearsay concerns, People v McKinney, 258 Mich.App. 157, 161 n 4; 670 N.W.2d 254 (2003). As such, we cannot rely on any dates identified in defendant's proffered news articles to decide this issue. Conversely, we will take judicial notice of the trial court's press releases pursuant to MRE 201 which permits a court to take judicial notice of an "adjudicative fact," MRE 201(a), as long as it is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned," MRE 201(b). That the court system experienced significant operating difficulties occasioned by the COVID-19 pandemic is generally known throughout Michigan, and the periods during which the trial court was not holding criminal trials can be accurately determined from the court's own press releases, at least to the extent those periods were reported by the trial court. Moreover, we note that this will not be the first time an appellate court takes judicial notice of matters involving court operations. See, e.g., People v Snow, 386 Mich. 586, 589-591; 194 N.W.2d 314 (1972) (rejecting challenge to appellate court's reliance on affidavit regarding disposition of all cases in a single court over 26-month period when same data could have been "judicially noticed under the 'one court of justice' doctrine"); In re Henry, 369 Mich. 347, 363; 119 N.W.2d 671 (1963) (taking judicial notice that trial court had multiple judges).

Although there does not to be any binding caselaw addressing how pandemic-related delays affect speedy-trial issues, this Court has considered the matter in the context of the related 180-day rule set forth in MCL 780.131. People v Witkoski, 341 Mich.App. 54; 988 N.W.2d 790 (2022). In Witkoski, this Court noted that much of the delay in prosecuting the defendant was caused by the suspension of jury trials during the pandemic, which it deemed analogous to the delay caused by a change in docketing system at issue in People v Schinzel (On Remand), 97 Mich.App. 508 512; 296 N.W.2d 85 (1980),^[2] another case involving the 180-day rule. Id. at 63. The significance of this observation and the Witkoski Court's adoption of the Schinzel Court's reasoning is more apparent upon examination of the opinion in Schinzel. In that case, trial delays arose when the trial court adopted a central docketing system for several months only to return to its previous system when the new system proved ineffective. Schinzel, 97 Mich.App. at 512. This Court explained that delays from chronic docket congestion are ordinarily treated as inexcusable, while "[a] delay which results from short-term docket congestion, attributable to exceptional circumstances which hamper the normally efficient...