Johnson v. Johnson
| Decision Date | 09 April 1974 |
| Docket Number | No. G-229-72 C.A.,G-229-72 C.A. |
| Parties | Robert Edward JOHNSON and Aaron Gilleylen, Petitioners, v. Perry M. JOHNSON, Warden, Southern Michigan Prison, Respondent. |
| Court | U.S. District Court — Western District of Michigan |
Murphy & Neff, Grand Rapids, Mich., for petitioners; William B. Murphy, Grand Rapids, Mich., of counsel.
Frank J. Kelley, Atty. Gen., Lansing, Mich., for respondent.
Petitioners Edward Johnson and Aaron Gilleylen have filed a Joint Application for a Writ of Habeas Corpus seeking release from prison. The application was originally and properly filed in the United States District Court for the Eastern District of Michigan, but was transferred to the Western District since an evidentiary hearing appeared necessary and the witnesses were located in Grand Rapids.
Both petitioners were charged with carrying concealed weapons without a license, M.S.A. Sec. 28.424, M.C.L.A. Sec. 750.227, and with armed robbery, M.S.A. Sec. 28.797, M.C.L.A. Sec. 750.529. Petitioners were jointly tried and convicted by a jury on the concealed weapons charge in March 1969. They were jointly tried and convicted by a jury on the armed robbery charge in May 1969. Sentences of two to five and ten to twenty years were imposed. On appeal, the Michigan Court of Appeals affirmed both convictions, 31 Mich.App. 416, 188 N.W.2d 131 (1971). The petitioners filed a Delayed Application for Leave to Appeal to the Supreme Court of Michigan, which was denied. The petitioners have exhausted their state remedies and are properly before this court.
Petitioners challenge the validity of their custody under both convictions on a variety of grounds. An evidentiary hearing was held on November 1, 1973. The following constitutes the court's conclusions on the Application for a Writ of Habeas Corpus relative to the petitioners' imprisonment on the charge of armed robbery. The issues raised by the petitioners' Application relative to the concealed weapons charge are the subject of a separate order and opinion.
Petitioners normally reside in Cleveland, Ohio. On the evening of November 8, 1968, the petitioners were arrested in Grand Rapids, Michigan, for carrying concealed weapons, were placed in jail, and have not since been released. While in jail, the Grand Rapids police identified Johnson's fingerprints as those found on the cashbox of the Fairview Pharmacy, located in Walker, Michigan, shortly after the store had been robbed by four men on the night of October 10, 1968. Subsequently, the Michigan State Police said that the fingerprints did not match. Meanwhile, however, the Grand Rapids police placed Johnson and Gilleylen in at least two line-ups before witnesses to the Fairview robbery. At the first line-up, held on November 14, 1968, allegedly without benefit of counsel, some witnesses identified Johnson and some identified Gilleylen —none identified both—as having been among the robbers. A warrant was issued on November 15, they were arrested on November 16, and arraigned on November 18. Subsequently, on December 18, 1968, a second line-up was held. On May 5 and 6, 1969, the petitioners were tried. The only evidence against them was the identifications made by the witnesses to the robbery. Except for one witness who testified that he had never been to a line-up relative to the robbery, all the witnesses testified that they had picked one or the other of the petitioners out of a police line-up. The witnesses also gave in-court identifications. The defense counsel objected to none of this.
The petitioners' only defense was an alibi. They asserted that on the day of the robbery they were with friends in Cleveland watching the World Series. However, only one witness, Johnson's girlfriend, testified for the defense even though several others had been subpoenaed. These other witnesses, all from Cleveland, were present on the first day of the trial, May 5, but were not called to testify. At the close of the first day of trial, the judge noted that the subpoenas would extend to a second day, and specifically informed those under subpoena that they would be required to return at 9:00 A.M. the next day. Trial Tr. at 151-152. However, on the morning of May 6 it appeared that all the petitioners' alibi witnesses except Johnson's girlfriend had returned to Cleveland. While there is no direct evidence in the record as to why the crucial witnesses did not appear, there is indirect evidence that the witnesses thought they had been released by the defense attorney. After talking with their witnesses back in Cleveland, the petitioners charged that their defense attorney had allowed the witnesses to go. However, the attorney denied this and the judge accepted his denial. Id. at 164-167. Although there may be any one of a number of reasons why these witnesses skipped, the whole episode may have been an unfortunate misunderstanding. At any rate, Johnson's girlfriend having testified that Johnson was in Cleveland on October 10, the defense counsel attempted to rest his case. Id. at 168. Subsequently, the defense counsel informed the court:
Id. at 170.
The Court denied the motion. Id. at 170-171. During the closing arguments, the prosecutor told the jury:
Id. at 180.
The Michigan Court of Appeals stated that the petitioners' requested continuance to recall the missing out-of-state witnesses would have resulted in an unreasonable delay of the trial, and held that the trial judge did not abuse his discretion in denying the motion. Furthermore, on review of all the circumstances the Court of Appeals found that the trial court's refusal to delay the trial had not resulted in injustice. 188 N.W. 2d at 136.
The issue before this court on the petitioners' Application for a Writ of Habeas Corpus is whether the petitioners were unconstitutionally deprived of their rights to have compulsory process for obtaining witnesses in their favor and to have a fair trial within the meaning of the Sixth and Fourteenth Amendments to the United States Constitution.1
The Fourteenth Amendment's grant of a right to due process of law guarantees at a minimum a fair trial in every criminal prosecution. The Supreme Court has been unanimous in its conclusion that the right to a fair trial encompasses the right of a criminal defendant to present the testimony of witnesses in his own behalf. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), and Harlan, J., concurring, Id., 388 U.S. at 23. In the Washington case, the Supreme Court made the Sixth Amendment's right of each criminal defendant to compulsory process for obtaining witnesses on his own behalf binding upon the states. The Court said:
388 U.S. at 19.
In the absence of a guilty plea, a fair trial is an absolute requisite of due process. However, in particular cases, individual elements of the ideal model of the fair criminal trial are subject to qualifications by competing constitutional provisions and by concessions to practicality made necessary by the complexity of the criminal process and by the fallibility of men and institutions. Thus, the Sixth Amendment's right of compulsory process must give way to the subpoenaed witness' personal Fifth Amendment right against self-incrimination. When a witness sought by a defendant is in a foreign country, totally beyond the reach of the court's process, or cannot be found, the defendant cannot successfully claim a Sixth Amendment right not to be tried at all. See United States v. Murphy, 413 F.2d 1129, 1139 (6th Cir. 1969). Where witnesses are difficult to obtain, the defendant's Sixth Amendment right to a speedy trial and the prosecution's similar interest must be taken into...
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