People v. Fisher
| Decision Date | 03 March 2022 |
| Docket Number | 353601 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DIA KENATA-FRANKLIN FISHER, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court LC No. 18-007305-01-FC
Before: Gleicher, P.J., and K. F. Kelly and Ronayne Krause JJ.
Defendant appeals as of right his bench trial convictions for assault with intent to do great bodily harm, MCL 750.84, discharge of a firearm in a building causing serious impairment, MCL 750.234b(4), discharge of a firearm in a building causing injury, MCL 750.234b(3), and three counts of possession of a firearm during the commission of a felony (felony-firearm) MCL 750.227b. Defendant was sentenced to 19 months to 10 years' imprisonment for assault with intent to do great bodily harm, 57 months to 20 years' imprisonment for discharge of a firearm in a building causing serious impairment, 43 months to 15 years' imprisonment for discharge of a firearm in a building causing injury, and two years' imprisonment for each felony-firearm conviction. We affirm.
On September 2, 2018, defendant shot his brother, Eric Johnson, at a marijuana dispensary where Johnson worked. Two of defendant's cousins, Leon and Nathaniel Barnett, [1] were present at the time. The only eyewitnesses who testified at the bench trial were defendant and Johnson, but the parties stipulated to admit the testimony provided by the Barnetts at the preliminary examination. Although there is no dispute that defendant shot Johnson twice-once in the foot and once in the back-the witnesses all provided somewhat conflicting details of the context of the gunshots.
Leon and Johnson both worked at the dispensary, and both were working at approximately 5:00 p.m. on the day of the shooting. Nathaniel and defendant attended a birthday party for Nathaniel earlier in the afternoon. Nathaniel and defendant then went to the dispensary. According to defendant, Nathaniel asked defendant for a ride to the dispensary because Leon had a birthday gift for Nathaniel. According to Nathaniel, he and defendant traveled separately but arrived at the same time. Defendant entered the dispensary. Nathaniel testified that he remained outside; however, the other witnesses all testified that Nathaniel entered with defendant. There were no security cameras in the dispensary.
According to Leon, defendant and Nathaniel entered the shop, whereupon defendant and Johnson began arguing. Leon opined that neither defendant nor Johnson knew that the other would be there. Leon did not know who started the argument, but he opined that it had been "just petty bickering." However, Leon testified that "it got physical fast," and although he did not initially believe the fight would exceed "rassling, like kind of tussling," he then saw defendant holding a gun. He clarified that there were no punches thrown, but rather they grabbed each other. He further testified that both defendant and Johnson were "going for the handgun," whereupon Leon ducked and began yelling for defendant and Johnson to stop. He explained that he tried to break them up, but "didn't really want to get in between them." Leon testified that defendant and Johnson never separated until the incident ended. Leon denied hearing any gunshots, which he admitted might have been because he was yelling, but also because "it happened so fast." However, at some point, he saw defendant run out of the dispensary, and he saw Johnson lying on the ground on his back, with blood coming out of his back.
Nathaniel denied observing the events that transpired inside the shop, although he testified that he heard an argument, to which he paid little attention, followed by "tussling" or "bumping around" and "banging into walls." Nathaniel heard two or three gunshots, followed by seeing defendant run out of the dispensary. According to Nathaniel, he then went inside and discovered Johnson lying on his side. However, elsewhere in his testimony, Nathaniel referred to Johnson lying on his back, and at another point Nathaniel testified that Johnson was laying on his stomach and Nathaniel had to prevent Johnson from trying to turn onto his side.
According to Johnson, when defendant entered with Nathaniel, Johnson approached Nathaniel and gave him a high-five, then asked "why did you bring 'Mr. Steal your shoes,' referring to my brother [defendant]." Johnson explained that approximately three months previously, defendant had stolen Johnson's gym shoes. In response to Johnson's comment, defendant yelled "What up, what up" several times and approached Johnson, which Johnson interpreted as a challenge. Johnson then "felt a blow to my foot" and fell to the ground, following which he felt "a twist in my spine." Johnson testified that he was shot twice, in close enough succession to be described as "a blink." However, upon further examination, Johnson clarified that he fell onto defendant after being shot in the foot, and defendant "pushed me off with his hands," apparently contemporaneously with shooting Johnson in the back. Immediately thereafter, defendant, who had not fallen, stepped over Johnson's body and left. Johnson specifically and repeatedly denied that any kind of fight or tussling occurred. Johnson denied ever carrying a gun, but then conceded that he had carried a gun while working at the store. Johnson denied having ever threatened defendant. Johnson also emphasized that he never confronted defendant at the dispensary, but rather, he confronted Nathaniel for having brought defendant.
According to defendant, he entered the dispensary with Nathaniel, gave Leon a high-five, and joked with the two of them about Nathaniel's birthday. A few minutes later, Johnson emerged from another room, approached quickly, "and said something like, 'This the bitch ass Chrysler worker that stole my shoes.'" Defendant "felt like that was a problem," and noted that he had not seen Johnson since kicking Johnson out of his house. Defendant explained that there was "bad blood" between himself and Johnson, arising out of defendant having permitted Johnson to stay in his house. Defendant explained that Johnson would get mad "for the littlest things," was "too wild in my house," and was kicked out for threatening defendant and defendant's girlfriend. At that time, Johnson took defendant's phone, broke defendant's window, "and kind of messed up my house." Because of that, and because Johnson had left some of his clothing at defendant's house, defendant took Johnson's shoes. Johnson had also tried to take defendant's gun away from him. Defendant emphasized that Johnson would be "cool" one minute, "and next minute he flips out," so "you cannot trust him." Defendant knew Johnson to have a gun, but defendant never permitted Johnson to bring the gun into his house.
Defendant testified that he tried to back away and leave, while he and Leon told Johnson to "chill out." However, defendant took out his gun because Johnson "wouldn't let it go." Defendant emphasized that he kept his gun pointed down, and he pulled it out in part because he feared Johnson might have taken it out of his pocket otherwise. Defendant also noted that Johnson had his hands behind his back, where defendant could not see them. Johnson then headbutted defendant into a wall and knocked him to the floor, where Johnson placed him in a headlock. Defendant explained that he has asthma and was having difficulty breathing, so he shot Johnson in the foot. However, Johnson just kept squeezing defendant tighter, and defendant "felt like I had to do something to get him off me." According to defendant, "I still had my gun in my left hand, and I shot him and that is when he jumped off me, and I ran out the door." Defendant explained that Johnson had been on top of him at the time, that Johnson "is a big person," that it "only takes one arm to put someone in a headlock," and Johnson was trying to take the gun. Defendant attempted to clarify on cross examination that Johnson "just flew off all into his body clear up off me" and did "not like a jump and get up and got on his legs and fell down," but was cut off by the prosecutor.[2] Defendant believed he fired his gun a total of four times.
After the shooting, Leon attempted to call 911, but found that he had no signal on his phone. He flagged down an ambulance that happened to be driving by, and the EMTs took Johnson to the hospital. Johnson was found to have a bullet lodged in his spine, and as a result of his injuries, his lower body was paralyzed. It is not disputed that Johnson had been shot in his back, not in his front. Later that day, defendant returned to the scene and turned himself in.
At the conclusion of the bench trial, the trial court observed that "everyone agrees and it was testified to that there was a physical altercation between the brothers, the victim, Eric Johnson, and the Defendant, Dia Fisher." The trial court opined that the Barnetts likely knew more about what occurred than they were willing to disclose. The trial court summarized the evidence as Johnson having been minding his own business when defendant came into Johnson's workplace "and forever altered the course of his life." Although the trial court never actually made a credibility pronouncement in so many words, it obviously found defendant not credible, describing defendant's version of events as "well planned out" and a "well-prepared story." The trial court believed the evidence did not show that defendant intended to kill Johnson. However, it concluded that defendant did not act in self-defense, holding:
The Court concludes that [defendant] is [sic] did not act in self-defense as the degree of force he used and [sic] was not immediate necessary in...
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