Avery v. State
| Decision Date | 02 March 2023 |
| Docket Number | 359535 |
| Parties | CHAMAR AVERY, Plaintiff-Appellant, v. STATE OF MICHIGAN, Defendant-Appellee |
| Court | Court of Appeal of Michigan — District of US |
Court of Claims LC No. 17-000245-MZ
Before: JANSEN, P.J., and REDFORD and YATES, JJ.
Plaintiff Chamar Avery, appeals by right the Court of Claims verdict of no cause of action respecting his Wrongful Imprisonment Compensation Act (WICA), MCL 691.1751 et seq. claim. We affirm.
Following a trial in 2000, a jury convicted plaintiff of second-degree murder related to the January 15, 2000 robbery and murder of Geoffrey Stanca. The trial court sentenced plaintiff to 20-50 years' imprisonment. Plaintiff appealed and this Court remanded for a Ginther[1] hearing at which the trial court heard testimony and arguments and held that plaintiff's trial counsel provided him effective assistance. This Court affirmed his conviction and sentence.[2] Our Supreme Court denied leave to appeal.[3] After plaintiff exhausted his appeals, in 2004 he petitioned the United States District Court for the Western District of Michigan for a writ of habeas corpus on grounds that his trial counsel provided him ineffective assistance. The federal court granted plaintiff's petition on the ground that plaintiff's trial counsel provided ineffective assistance by not investigating and presenting an alibi defense at his criminal trial. The federal court entered a writ of habeas corpus and instructed the State of Michigan to release plaintiff from custody and afford him a new trial.[4] The Department of Corrections released plaintiff and the prosecution never retried him for the Stanca murder. Plaintiff filed his WICA complaint in 2017 claiming wrongful incarceration entitling him to statutory compensation of $382,859.10 for 2,795 days' time served, plus attorney fees and costs.
The trial court conducted a bench trial at which plaintiff testified that he did not participate in the Stanca murder with Recho Burns and Terrance Holmes, but had been with Lavelle Crimes, Damar Crimes, and Darius Boyd the afternoon and night of January 15, 2000, when the Stanca murder occurred. Lavelle and Damar testified on behalf of plaintiff similar to their testimonies at plaintiff's 2001 Ginther hearing. Lavelle testified that he worked on plaintiff's car at Crimes Towing, and that his brother Damar came to the shop, and plaintiff left with him and returned later after he completed plaintiff's auto repairs. Damar testified that he and plaintiff walked to Boyd's house where they stayed until they received a call from Lavelle regarding the completed repairs. He testified that he and plaintiff walked back to the shop, picked up plaintiff's car, then drove to a female friend's house, and later back to Boyd's house where plaintiff left him.
Defendant called Jacklyn Barker who testified that, on January 15, 2000, she heard a car arrive in front of her house so she went to the door, looked out its windows and saw a car parked the wrong way on her one-way street. She turned away briefly but heard a gunshot and turned back to see the car door opening and three men get out one by one. One of them pushed a body out to the ground. Two of them ran off in the same direction and one ran the opposite way. She did not recognize plaintiff at first. He started toward Central at the end of her street, but he then turned around and kneeled down by the rear passenger back door tire area and seemed to pick something up. When he kneeled down, he looked in the direction of Barker's door where she stood, paused and retrieved something, then turned and ran toward Central. When Barker saw plaintiff look at her house, she recognized him because she saw his face and knew him from the neighborhood. Barker testified that she also recognized the other two men as Holmes and Burns.
Barker admitted on cross-examination that she did not inform the police and that later she did not pick out plaintiff in a line-up or photo identifications. She explained that she had been afraid. Plaintiff's counsel cross-examined Barker regarding her preliminary examination and trial testimony. Barker acknowledged some discrepancies and did not deny her preliminary examination or trial testimonies, and testified as she had done in both of those instances that she saw plaintiff and recognized him as one of the perpetrators of the Stanca murder. On further direct examination, Barker testified that she had no doubt in her mind that she saw plaintiff outside her house on January 15, 2000.
Defendant called Holmes to testify. Holmes affirmed that on November 8, 2000, he pleaded guilty to Stanca's murder. The defense had the transcript of Holmes's plea testimony marked as Defense Exhibit B and announced that defendant would seek admission of the exhibit under MRE 801(d)(1)(a). Plaintiff's counsel stated that she had no objection. The trial court, therefore, admitted the transcript of Holmes's previous testimony.
Holmes denied that he previously stated that Burns shot and killed Stanca but agreed that he testified under oath at his plea hearing. Defense counsel had Holmes review the transcript of his plea hearing where the court asked him what happened and he answered that Burns "got in the car, shot him in the head." Holmes affirmed that he testified in November of 2000 when he pleaded guilty to armed robbery. He admitted that he testified that, on the night of January 15, 2000, near the location of 7733 Dayton Street in Detroit, he, Burns, and plaintiff were together. He affirmed that he testified that he, Burns, and plaintiff arranged to rob Stanca, the pizza delivery man. After feigning lack of memory, Holmes reviewed the transcript of his plea testimony and affirmed that he testified that plaintiff was in the car with Burns. After reviewing his testimony regarding running to Central Street, Holmes testified: During cross-examination, Holmes denied killing Stanca, denied involvement with the people who killed him, denied being on Dayton Street on January 15, 2000, and denied being with plaintiff or even seeing him that day. On further direct examination, Holmes affirmed that at the plea hearing the court asked if he had been promised anything or been forced to plead guilty, and he answered no. Holmes also affirmed that, when asked by the court whether he pleaded guilty freely and voluntarily, he answered yes. Defense counsel asked Holmes regarding his plea testimony which asked with whom he had been, to which he had answered Burns and plaintiff; and when asked what the three of them did, he had answered, "Went to rob the pizza man." When later asked if he remembered apologizing to the victim's family, he affirmed that he remembered.
The trial court asked Holmes how at the time of his plea hearing he could testify in such great detail regarding the plan to set up the robbery and the details of Stanca's murder. Holmes stated that he heard the story on the streets and repeated it for his plea deal. On further crossexamination, plaintiff's counsel sought to develop how Holmes knew the details of the crime, but Holmes denied hearing the details of the crime in the neighborhood and only that he heard that Stanca had been shot in an apparent robbery.
The trial court issued a written opinion and order in which it stated its findings of fact and conclusions of law. The trial court explained the applicable law regarding WICA claims, including that plaintiff must prove by clear and convincing evidence that he did not commit the crimes for which he was imprisoned. The trial court found that plaintiff proved by clear and convincing evidence that he was convicted of second-degree murder and sentenced to life imprisonment for which he served eight years of the sentence. The court also found that plaintiff proved by clear and convincing evidence that his conviction was vacated and he had not been retried by the prosecution. The trial court, however, found that plaintiff failed to meet his burden of proving by clear and convincing evidence that he did not perpetrate the crime and was not an accomplice or accessory to the acts that were the basis of his conviction. The trial court explained that it came to its conclusion for two reasons: (1) Barker testified credibly to seeing plaintiff's face at the crime scene on the night of the January 15, 2000, and nothing indicated any motive for her to accuse plaintiff or lie about his being there; and (2) Holmes testified under oath in great detail at his plea hearing without leading questions that he, plaintiff, and Burns, pursuant to an elaborate plan, committed the robbery and killing of Stanca, fled the scene, then met to split the money. The trial court found that Holmes's plea hearing testimony supported the proposition that plaintiff perpetrated the crime. The trial court explained further that the other witnesses' testimonies did not tip the scales toward clear and convincing evidence that plaintiff did not perpetrate the crime. The court, therefore, concluded that clear and convincing evidence did not establish that plaintiff did not perpetrate the crime because the court was in no way left "with 'a clear conviction, without hesitancy, of the truth' that plaintiff did not perpetrate the crime." Accordingly, the trial court ordered entry of a judgment of no cause of action and dismissed plaintiff's case with prejudice. Plaintiff now appeals.
Issues regarding statutory interpretation present questions of law that this Court reviews de novo. Buhl v City of Oak Park, 507 Mich. 236, 242; 968 N.W.2d 348 (2021). We also review de novo the WICA's compensation provisions. Ricks v State, 507 Mich. 387, 396...
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