Introduction
In 1985, I was charged, along with two other guys, of shooting and killing a person in the Nicherson Garding Housing projects in Los Angeles. It was the state's contention, that I and the other two guys were each armed with three different caliber weapons and shot the victim fifteen times.
This shooting was supposed to have taken place in the late night hours of March 1st, or early morning hours of March 2nd, 1985. There were two witnesses for the prosecution that connected me to this crime.
Linda Toliver, whom I had known for no more than two weeks in my entire life, claimed that on March 6th, 1985, I was at her apartment in the Nickerson Garden Housing Projects and admitted to her that I committed this crime.
Thomas Vandiver claims that he witnessed the shooting. Vandiver initially told the police several completely different versions of what he claims to have seen. Including he did not see anything, and someone told him about this. Vandiver also admitted later, at my second penalty trial, that he was high (intoxicated) off of marijuana and alcohol, when he claimed to have witnessed the shooting. [He had earlier lied about this.] At the second penalty trial Vandiver admitted that he had lied about crucial testimony that he had given at my trial.
At one point during the second penalty trial, and in response to a question that he was asked, Vandiver actually admitted that he did not know, if he was telling the truth now [the second penalty trial] or earlier, during my trial.
Both Vandiver and Toliver had been arrested 16 days after the shooting on narcotics charges. They both admitted that they agreed to cooperate with the police only as a result of the narcotics charge, that they were afraid of going to prison for 5 years because of the narcotics charge, [This is what they were told by the police.] and that they would do anything to get out of the trouble that they were in. It was also at this time that Vandiver initially told the police that he did not even know that the victim was dead.
Vandiver personally knew the victim. He claimed to have witnessed the shooting. He also claimed to have overheard my alleged co-defendants and I the next day, discussing the shooting, explaining why it happened and admitting to doing it. [He admitted that he had lied about all of this at my second penalty trial.]
Vandiver lived no more than a 5 minute walk from where the shooting occurred. In spite of this, Vandiver claims that he did not even know that the victim was dead, and found out only as a result of the police telling him 16 days later! Vandiver would have definetely known that, if he was telling the truth about what he claimed to have seen.
Vandiver also testified that I was arrested with him on the narcotics charge. He was positive just as sure about this, as he was that I was one of the people that he saw commit this shooting. It was proven that I was never arrested for, or in connection with that charge.
Vandiver was either lying or mistaken about this, and his identification of me. [It is also important to note that according to where Vandiver claims he was standing, when he supposedly witnessed the shooting, it would not have been possible for him to have seen anything.]
On March 6, 1985, when Linda Toliver claimed that I was at her home in Los Angeles, admitting to committing this crime, I was in San Diego, California, visiting friends, and had been for a couple of days. March 6th is also the birthday of my youngest son and on March 6th, 1985, he turned one year old. Because I was in San Diego, I missed his birthday.
Toliver claimed that when she asked me why did we do this, I responded, "What they did was messed up." Later, at my second penalty trial, the trial judge stated that he was confused by what Toliver claimed I said and then the judge asked, was I talking about my co-defendants and me or my co-defendants and not me.
My Alibi
On the night of the shooting, I had spent most of the day (March 1st) and all night (until the late afternoon of March 2nd) with my then girlfriend Artellia Cannon-Johnson, in Compton, California. Mrs. Cannon-Johnson came by my parents' home and picked me up on March 1st. We visited a friend or cousin of hers named Charley and went to a movie in the Lakewood Mall during the course of the day and evening of March 1st. We did not leave Mrs. Cannon-Johnson's home again until she took me back to my parents' home on March 2nd.
Mrs. Cannon-Johnson, as well as Linda Perkins (whom I was visiting in San Diego) agreed to testify on my behalf. My trial attorney stated that he did not think that they would make good witnesses, because they were heavy-set! He felt that heavy-set women do not make good witnesses, simply because they are heavy-set. They were my most important witnesses and my attorney didn't believe that their testimony was credible.
The Trial
There was no physical evidence, no guns, fingerprints, blood stain clothing, etc.
The trial jury deliberated for almost four full days and requested a complete re-reading of both witnesses' testimony. They returned a verdict of guilty of first degree murder, but found the personal use of the weapons allegation to be not true!
Basically, the jury found me guilty under a theory of aiding and abetting. The same jury could not reach a decision as to penalty and a mistrial was declared. A second penalty jury was sworn in and I was sentenced to life without possible parole.
The California State Penal Code states:
"Every person, not the actual killer, who with intent to kill, aids, abets, counsels, commands, induces, solicits, requests or assists any actor in the commission of murder in the first degree shall be punished by death or life without parole."
Because the jury found that I did not use a weapon in the commission of the crime, they clearly did not consider me to be the actual killer. [Penal Code Section 190.2 (c).]
The trial jury was never instructed on the specific intent needed to convict me under a theory of aiding, abetting, etc. as is required by law. No determination was made to establish in what capacity I was supposed to have assisted in this crime.
Further, at the time that I was tried and convicted, Penal Code Section 190.2 (b) stated:
"Every person, whether or not the actual killer found guilty of [intentionally] aiding and abetting, counseling, commanding, inducing, soliciting, requesting or assisting any actor in the commission of murder in the first degree, shall suffer death or life without parole in any case in which any special circumstance [other than a prior murder conviction] is charged and found true."
The special circumstance in my case is a prior murder conviction. The jury could have only found that my involvement in this case was as an aider, abettor, etc. based on their findings that I did not use a weapon. [i.e. did not shoot the victim as a result, and as a matter of law. I could only be illegally sentenced to 25 years to life, and not the death penalty or life without possible parole. The trial judge was made aware of this, but said that he would deal with it later, and then he never did.
The Testimony of Thomas Vandiver:
The testimony of Thomas Vandiver stated that the shooting was supposed to have occurred between 2:00-6:00 a.m. The lighting in the area was bad. Vandiver testified that he was at least 50 feet away from the shooting when it was supposed to have occurred and that he had drunk only a can of Old English beer, but that he was not high when he supposedly witnessed the shooting and that he had been up for close to twenty-four hours without sleep and that he was very tired.
Vandiver testified to at least three entirely different versions of what he was supposed to have seen, including that he did not see anything and that someone told him about this. One of the versions that Vandiver was supposed to have told the police was, that he saw my two alleged co-defendants and I walk the victim out of the backdoor of an apartment in the projects, out into the gymfields and shoot the victim. Immedidately after the shooting, he claimed that my alleged co-defendants and I walked by Vandiver then testified, that the next day the he overheard me and my alleged co-defendants, discussing the shooting, admitting to doing it, and explaining why it happened.
At my second penalty trial, in front of a different jury, Vandiver admitted that none of this was true. He testified that at least one of my alleged co-defendants was standing at least 30 feet away from the shooting when it occurred. (Which means that we could not have walked the victim out to the gymfield together and within arms distance of one another and shot him; that no one said anything to him after the shooting and that he never overheard any conversation between me and anyone about the shooting; and that he never told the police that he did.)
Vandiver also testified at the second penalty trial that along with the can of Old English beer, he also smoked a joint of marijuana and that he was high of the alcohol and marijuana when he claimed to have witnessed the shooting.
It is important to keep in mind that Vandiver himself testified that he had been up for almost 24 hours without sleep and was tired, when he claims to have witnessed this.
During my trial it was learned that Vandiver had told the police, initially, on the day that he was arrested on drug charges, 16 days after the shooting; that he did not even know that the victim was dead, and found out only as a result of the police telling him at that time. It is impossible to believe, that Vandiver did not think that a person he claims to have witnessed get shot 15 times, was not dead.
It is all the more unbelievable, because Vandiver stayed less than a five minute walk from where the shooting occurred and he knew the victim. Personally, he certainly would have known that the victim was dead, if he would have overheard me and others discussing the shooting as he claimed. And, because Vandiver lived in the projects, he would have heard that the victim was dead, over a two week period.
Vandiver also repeatedly testified, that I was arrested with him on the drug charges that he was arrested for and that he was positive, just as sure about this, as he was that I was one of the people that he saw do this. It was proven that I was never arrested for or in connection with this charge. Vandiver had to be lying or mistaken in his identification of me, as being one of the people that he saw committing this crime.
The prosecution claimed that the reason why Vandiver had lied and testified inconsistently throughout the proceedings, was because he had been threatened and was scared. However, none of the threats were connected to me, at least some of the threats occurred well after Vandiver had lied about certain things, and Vandiver himself testified at a hearing outside of the jury's presence, that the threats did not affect the way that he testified and he told the truth, no matter what.
In spite of this, the judge allowed the prosecution to present the threat's evidence as though it did affect the way that Vandiver testified, as though it [the threats] did and was connected to me, in front of the jury. Clearly, this threat evidence was very prejudicial to me. If the jury believed it, it would explain away all of the lies that Vandiver told and it was not true.
My attorneys were not allowed to bring out any of what Vandiver testified to, at the hearing about threats, because the judge would not allow my attorneys to impeach Vandiver, when we called him back to court as a defense witness to impeach Vandiver. All of what Vandiver testified to at this hearing contradicted his trial testimony in front of the jury. None of this was raised on my appeal. The introduction of the threat testimony was only argued on my appeal in that it was not connected to me.
All of Vandiver's most crucial testimony that he gave at my trial, which connected me to this crime, he later admitted that he had lied about it. Nothing was, or has ever been done about it. It was never challenged by any of my trial attorneys nor was it ever raised on my appeal. The courts have ignored it and have taken the position that the fact that Vandiver lied about all of his crucial testimony was not important to anything. Without the testimony that Vandiver gave at the trial, the state would not have had anything.
The Testimony of Linda Toliver:
This female initially testified at my trial, that she asked me, "Why did you all do this?" and I responded to this by saying what they did was messed up. My attorneys objected to this, and she then changed her testimony and said, that I told them that I did this.
This was all that Toliver testified to. It was clear that Toliver was high off of something, when she testified and it was brought to my trial attorney's attention, that Toliver had been seen in the restroom of the court building on the day that she testified, smoking dope. It was the court stenographer who was supposed to have told my attorney this. My attorneys did make the judge aware of this and absolutely nothing was done. The trial judge did believe that something was wrong with Toliver, because he commented on Toliver's appearance and demeanor later.
As to Toliver's trial testimony, her testimony so confused the judge, that he stated at my second penalty trial, that he was not sure who Toliver's testimony referred to: me and my co-defendants or my co-defendants and not me.
Note:
Toliver also testified that Vandiver did not start to come around her house until after she was released from the hospital. (Toliver was in the hospital when this was supposed to have happened). If this is true, then Vandiver would not have been around Toliver's house until after the shooting incident. Toliver's house was being used to sell narcotics from and Vandiver was working as a lookout for the police. This is the only reason why Vandiver would be at Toliver's. If Vandiver did not start working at Toliver's until after Toliver was released from the hospital, then Vandiver could not have seen anything. Because, as I stated, Toliver was not released until after the shooting.
It is clear that the jury did not believe Vandiver or Toliver. Vandiver testified that he saw me shoot the victim and that Toliver claims that I told her that I did this. In spite of this, the jury found, that I did not use a weapon in the commission of the crime. The jury clearly did not believe or find that I shot the victim. None of this was raised on my appeal.
Toliver testified, that on March 6th 1985, she had this conversation with me. But, on March 6th 1985, I was in San Diego, California, visiting a friend. The people that I was visiting did agree to testify to this on my behalf and came down to the court building during my trial and explained everything to my attorney. How I remembered that it was March 6th is also my youngest son's birthday. In 1985 he had his one year birthday and I was not able to celebrate his birthday with him on March 6th, because I was in San Diego. His mother spoke to my investigator and explained all of this. None of these witnesses were called to court to testify to any of this. I could not have been in Los Angeles at Toliver's house, talking to her and in San Diego at the same time.
How you can help
I am without any legal representation, and outside of my family and a few friends, there is no support. I need a defense attorney, a private investigator, and the funds needed to retain those experts. I also need people who campaign on my behalf, spread the word about my case, and help raise funds.
The legal assistance that I need is to file a habeas petition. I believe that the strongest legal issues are:
(1) Ineffective assistance of trial counsel in trial counsel's failure to call any witnesses to testify on petitioner's behalf.
(2) Trial counsel's failure to allow petitioner to testify in his own behalf.
(3) The trial court abused its discretion in refusing to allow the defense to impeach the State's only eyewitness on evidence that was crucial to petitioner's innocence and that the jury never heard.
(4) Petitioner's sentence of life without possible parole is illegal. It is in violation of the California penal code at the time of petitioner's trial and conviction.
There were also errors in the trial jury being instructed. There was clear Beeman error pursuant 3.01 on aiding and abetting.
There were serious errors in the admission of evidence that was highly prejudicial and not relevant to any material issue.
None of these issues were raised on my appeal. My appeals lawyer did eventually acknowledge the error in not raising the aiding and abetting error, and the trial court's failure to allow the defense to impeach the State's only eyewitness. Other than the aiding and abetting instructions error, the Ninth Circuit Court has never heard any of these issues.
I have not filed a second habeas petition on this because, quite honestly, I am afraid that the court will simply again not treat it fairly, and I will then be forever barred from raising these issues again. I am not an attorney, and I do not believe that I can afford to make a mistake of any kind.
I would also like to challenge my conviction based on my being actually innocent because I am actually innocent.
There was some very credible evidence from one of the prosecution's own witnesses (Ann Trunell) that the victim (Eibert Robinson) in this shooting had money that he had stolen from a guy named Ant, and that Ant was very upset behind it.
The first time that my trial attorneys and I had heard of this was at trial when the prosecution called Trunell to testify. Trunell and Robinson had been together smoking cocaine all that day, and Robinson had a reputation for robbing people and stealing, and was considered scandalous according to Trunell's testimony.
I do not know which of the two legal arguments should be used - or which of the two might be best - or how I can or should frame an actually innocent claim.
Documents:
Defense Closing Arguments
People's Closing Arguments
Sentencing Judgement: Defendant's Statement
Michael Reed Dorrough: Letter From John Yzurdiaga 1992
Michael Reed Dorrough: Declaration of Lionel Perkins (2006)
Michael Reed Dorrough: Declaration of Linda Perkins (2006)
Michael Reed Dorrough - Artellia Cannon Johnson Affidavit (2007)
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