Johnson v. Hofbauer
| Decision Date | 18 June 2001 |
| Docket Number | No. CIV.99-CV-75467-DT.,CIV.99-CV-75467-DT. |
| Citation | 159 F.Supp.2d 582 |
| Parties | David L. JOHNSON, Inmate No. 155428, Petitioner, v. Jerry HOFBAUER, Respondent, |
| Court | U.S. District Court — Eastern District of Michigan |
David Johnson, Jackson, MI, pro se.
Laura G. Moody, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, for Jerry Hofbauer, respondents.
David L. Johns, ("petitioner"), presently confined at the Marquette Branch Prison in Marquette, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction of one count of second degree murder, M.C.L.A. 750.317; M.S.A. 28.549, and one count of possession of a firearm in the commission of a felony. M.C.L.A. 750.227b; M.S.A. 28.424(2). For the reasons stated below, the petition for writ of habeas corpus is DENIED.
Petitioner was charged with first degree murder and felony-firearm for the shooting death of Michael Groce in Battle Creek, Michigan on November 9, 1994. Following a jury trial in the Calhoun County Circuit Court, petitioner was found guilty of the lesser offense of second degree murder and guilty of the felony-firearm charge.
Keith Cork testified that he was at 25 Blenken Court in Battle Creek, Michigan on the night of the shooting. Present at the house were James Dickerson, Dickerson's girlfriend Rosemarie Ware, and petitioner. Cork indicated that Dickerson and Willie Shavers lived at this residence. (Trial Transcript, hereinafter "T"., 03/15/95, pp. 51-55). Later in the evening, the victim Michael Groce arrived at the house with Phyllis Brown. Although Cork did not see a weapon in Groce's possession, Cork testified that Groce always acted like he had one. (Id. at p. 56). Cork also testified that Groce was known to carry a .9 millimeter gun and claimed to be "strapped" all the time. (Id. at pp. 72, 125). Cork believed that Groce had a firearm in his possession the night of the shooting. (Id. at p. 124).
After Brown went to a back bedroom of the residence, petitioner told her several times that she would have to leave. (Id. at pp. 60, 115, 119-123). Groce became upset at petitioner's requests to Brown that she leave. Petitioner ultimately told Groce that he would have to leave the house also. (Id. at pp. 63, 69, 72). Brown and Groce finally left. Cork also left the house, returning twenty minutes later with an AK-47 assault rifle and a banana clip. (Id. at p. 64). Cork put the gun on the bed, leaving the clip next to it. When Cork went back to the front room of the house, the victim was outside trying to come in. James Dickerson was outside, asking the victim to leave. (Id. at p. 67). Petitioner was inside the house at the time. The victim was telling petitioner to "bring his ass outside". (Id. at p. 68). The persons inside of the house became afraid that Groce would get inside of the house and ran to the back. Petitioner went to bedroom and grabbed the assault rifle. (Id. at p. 69). Cork went into the bathroom, where he heard some shots. Cork testified that the shots were all fired in quick succession. (Id. at pp. 73, 78). Cork left the house. He never saw the assault rifle in petitioner's hands, nor did he ever see his rifle again. (Id. at pp. 75, 77).
At trial, Cork claimed that the AK-47 was a semi-automatic weapon. (Id. at p. 77). However, defense counsel impeached Cork with his testimony from the preliminary examination, in which Cork testified that he thought that the rifle was an automatic weapon. (Id. at p. 88). Cork further acknowledged that he had never actually fired the weapon. (Id. at p. 92). Cork, in fact, admitted that he had seen Steven Armstrong shoot the rifle, and it fired one shot right after another. (Id. at p. 94).
Alvin LeBlanc was present with Keith Cork on the night of the shooting. His testimony mirrored Cork's in most respects. (T., 03/16/95, pp. 5-21). Like Cork, LeBlanc heard Groce return to the house, knock on the door, and ask petitioner to come outside. (Id. at p. 22). James Dickerson went outside before petitioner did. LeBlanc heard arguing, followed by gunshots. (Id. at p. 25). LeBlanc could not see either Dickerson or petitioner prior to the shooting, but heard some gunshots go off very quickly. (Id. at pp. 27-28). LeBlanc was able to see a car outside turning in circles. (Id. at p. 30). Although LeBlanc did not see Groce in possession of a firearm, he testified that Groce kept his hand in his coat pocket. (Id. at p. 33). LeBlanc had seen Groce with a weapon before, and thought that he might have had a firearm in his pocket on the night of the shooting. (Id. at pp. 57-58). LeBlanc further admitted that he was concerned that Groce had returned to the house to shoot someone. (Id. at pp. 59, 65-66). LeBlanc did not know the difference between automatic and semi-automatic weapons. (Id. at p. 88).
Dr. Laurence Simson testified that he performed the autopsy on the victim. The victim died as the result of multiple gunshot wounds, including wounds to the front side of the head, to the neck, to the chest, to the torso, to the right thigh, and to the left leg. (Id. at pp. 101-113). The victim had a blood alcohol content of .16 and significant amounts of cocaine and other drugs in his blood and urine. (Id. at p. 112).
Rosemarie Ware's testimony was consistent in many respects to the testimony of Cork and LeBlanc. When Brown and Groce left the house the first time, Groce threatened petitioner. The victim returned and tried to force his way into the house. (Id. at pp. 129-130). While the victim was attempting to get into the house, he was telling petitioner that "his ass was his" and appeared in a rage. (Id. at p. 168). Petitioner retrieved the gun that Cork had brought to the house while the victim was outside. Although Ware did not see the victim with a gun, he had his hand in his coat pocket as though he had something there. Ware believed that it was a gun. (Id. at pp. 137, 158, 176). After petitioner retrieved the gun, he went outside. Ware heard shots, occurring "right behind each other". (Id. at p. 138).
James Arthur Dickerson testified that he lived at 25 Blenken Court in Battle Creek, Michigan on November 9, 1994 with Willie Shavers. Dickerson testified that petitioner did not live at this house (Id. at p. 179), although he later testified on cross-examination that petitioner occasionally spent nights at the house. (Id. at pp. 226-227). Dickerson testified that there had been an argument between petitioner and the victim three days previous to the shooting, in which harsh words had been exchanged. (Id. at p. 184). On November 9, 1994, Dickerson, Brown, and Groce had been smoking crack cocaine. (Id. at p. 186). Petitioner asked Brown to leave the house several times. Groce told petitioner not to say anything to her and had his hand in his pocket. (Id. at p. 189). Brown and Groce left, with Groce telling petitioner that he would be back. (Id. at p. 192). Petitioner told Groce that if he came back again, he would hit him in his head and knock his "ass" down. Petitioner also told Groce to be prepared to fight if he returned. (Id. at p. 194).
When the victim returned to the house, he tried to get back inside. Dickerson forced Groce out the door and went after him, closing the door behind him. (Id. at p. 198). Groce had been drinking and was yelling. Groce told Dickerson that he wanted to kick the petitioner's "ass". (Id. at p. 199). Although Dickerson did not see a gun, Groce still had his hand in his pocket. Groce also threatened to shoot Dickerson because he was in his way. (Id. at p. 201). At this point, petitioner came out onto the porch with an AK-47. Petitioner told Dickerson to get out of his way twice. Dickerson tried to stop petitioner from shooting the victim. (Id. at pp. 202-204). The victim got into his car, which was still running. (Id. at p. 204). As the car was backing away in reverse towards Blenken Court, petitioner began shooting. (Id. at pp. 209-211). As the car was pulling out onto Blenken Court, it hit a curb, spun out of control, and hit the front porch of the house. (Id. at pp. 212-214). Petitioner was shooting the entire time that the car was moving. Dickerson estimated that twenty five to thirty shots were fired. (Id. at p. 214).
On cross-examination, Dickerson indicated that he was aware that Groce carried a gun. Defense counsel also impeached Dickerson with a statement he made to the police three days after the shooting, in which he told the police that before petitioner began firing the assault rifle, the victim had pulled out a gat (gun), only after which petitioner began firing. Dickerson further acknowledged that he had told the police that the victim had a .9 millimeter gun in his possession. (Id. at pp. 254-255, 258). Dickerson, however, attempted to explain this inconsistency by stating that he had only assumed that the victim had a gun in his possession. (Id. at p. 258).
In response to a question from the trial court, Dickerson testified that the AK-47 was a semi-automatic, as opposed to an automatic weapon. Dickerson based this conclusion on his observations of the weapon being fired on the night in question. In response to a follow-up question, Dickerson acknowledged that "semi-automatic" meant that one would have to pull the trigger at each round. (Id. at pp. 277-278). When Dickerson was later recalled, he testified that he had told petitioner that Groce had shot up a place where he lived sometime around the end of October 1994. (T., 03/17/95, p. 85). Dickerson also testified that petitioner had been using alcohol and cocaine on the night in question. (Id. at p. 89).
Officer ...
To continue reading
Request your trial
-
Hayes v. Horton
...was no evidence or testimony that the victim was armed, disproving Petitioner's self-defense claim. See, e.g. , Johnson v. Hofbauer , 159 F. Supp. 2d 582, 597 (E.D. Mich. 2001) (sufficient evidence demonstrated that the defendant did not act in self-defense, because the defendant had begun ......
-
Dell v. Straub
...not ineffective assistance of counsel simply because in retrospect better tactics may have been available. Johnson v. Hofbauer, 159 F.Supp.2d 582, 607 (E.D.Mich.2001) (Tarnow, J.) (internal citations Petitioner has failed to show that he was prejudiced by the alleged deficiencies in counsel......
-
Williams v. Jones
...a matter of seconds, minutes, or hours, depending upon the totality of the circumstances surrounding the killing." Johnson v. Hofbauer, 159 F.Supp.2d 582, 596 (E.D.Mich.2001) (citing People v. Berthiaume, 59 Mich.App. 451, 456, 229 N.W.2d 497 In the present case, the court of appeals pointe......
-
Fields v. Bergh
...acquittal on that charge." Daniels v. Burke, 83 F.3d 760, 765 n. 4 (6th Cir. 1996) (citing cases); see also Johnson v. Hofbauer, 159 F. Supp. 2d 582, 596 (E.D. Mich. 2001), but cf. Williams v. Jones, 231 F. Supp. 2d 586, 593-94 (E.D. Mich. 2002) (relying upon double jeopardy case of Pricev.......