People Of Mi V Johnny Wayne Davis, 20220421

Background

In 2015 three men (Armstead, Kelly, Davis) forced entry into a motel room; Armstead brutally beat and strangled Eleanor Blevins while the victim’s 911 call and motel surveillance recorded the attack.
Surveillance showed Davis remained in the room, blocked the doorway, wiped the door handle with the victim’s wig, and left carrying bags of the victim’s belongings.
In 2016 Davis was convicted by a jury of second-degree murder, first-degree home invasion, and torture; he was sentenced as a third-offense habitual offender to long consecutive and concurrent terms.
This Court previously affirmed convictions on direct appeal. Davis later filed a motion for relief from judgment (2019), asserting multiple claims (ineffective assistance, judicial misconduct, sentencing errors, newly discovered evidence).
The trial court denied relief; on delayed leave this Court reviewed and affirmed, rejecting Davis’s claims as lacking merit or prejudice.

Issues

Issue	People’s Position	Davis’s Position	Held
1) Ineffective assistance — failure to retain forensic pathology expert	Counsel’s decision not to call an expert was reasonable trial strategy; no proof an expert would have testified favorably.	Counsel should have retained an expert to challenge cause/timing of death and EMS/police handling.	Denied — speculative affidavit from appellate counsel insufficient; no evidence an expert would have helped; no prejudice shown.
2) Ineffective assistance — failure to object to officer identifying Davis in surveillance video	Officer had familiarity (5–10 contacts) and identification did not affect outcome because Davis admitted presence and was on video.	Officer’s lay identification invaded the jury’s province and should have been excluded.	Denied — opinion identification was permissible under MRE 701 where witness is in better position; even if objection plausible, no reasonable probability of different outcome.
3) Failure to request accessory-after-the-fact instruction as lesser included	Accessory-after-the-fact is not a necessarily included lesser offense of aiding/abetting or of the substantive charges; instruction would be futile.	Counsel should have requested accessory-after-the-fact as a lesser offense of aiding/abetting.	Denied — Michigan precedent holds aiding/abetting is a theory, not a separate substantive lesser offense; accessory-after-the-fact not included in the charged offenses.
4) Judicial misconduct — trial judge’s questioning of Davis and counsel’s failure to object	Many questions were clarifying; judge gave curative instructions; evidence of guilt was strong.	Judge’s persistent, skeptical questioning pierced judicial impartiality; counsel should have objected.	Denied — some questioning was improper but curative instructions and strong evidence defeated prejudice; counsel’s failure to object was deficient but not prejudicial.
5) Habitual-offender notice (proof of service)	Failure to file proof of service harmless where defendant had actual notice on the record (felony information, preliminary exam).	Lack of proof of service violated notice requirements; resentencing required.	Denied — actual notice shown at preliminary exam and by filed charging document; no prejudice.
6) Sentencing — OV scoring (OV2, OV5, OV7) and resentencing	OV2 erroneously scored (bare hands not a lethal weapon); OV5 and OV7 were properly scored on the record; even correcting OV2 would not change guidelines range.	OV2, OV5, OV7 were improperly scored, requiring resentencing.	Denied resentencing — OV2 should be 0 (error conceded), but OV5 (serious psychological injury) and OV7 (excessive brutality) supported by testimony and video; corrected score does not change grid placement.
7) Newly discovered evidence / actual innocence — Armstead’s affidavit absolving Davis	Armstead’s affidavit is unreliable, largely contradicted by video and 911 call; not newly discovered in a meaningful way.	Armstead’s affidavit establishes duress and excuses Davis; warrants new trial and supports actual innocence.	Denied — affidavit is not credible nor likely to produce acquittal; evidence was not newly material; actual innocence standard not met.
8) Ineffective assistance of appellate counsel	Appellate counsel not ineffective for omitting futile claims; failure to raise judge-questioning claim was not prejudicial.	Appellate counsel omitted meritorious claims, so Davis is entitled to relief.	Denied — most claims were meritless or nonprejudicial; no reasonable probability appeal would have succeeded if raised.

Key Cases Cited

People v Nix, 301 Mich. App. 195 (ineffective assistance standard: deficient performance + prejudice)
People v Payne, 285 Mich. App. 181 (trial strategy presumption; heavy burden to show counsel ineffective)
People v Fomby, 300 Mich. App. 46 (lay-witness identification: witness must be in better position than jury)
United States v LaPierre, 998 F.2d 1460 (9th Cir.) (illustrations when lay identification by witness is permissible)
People v Perry, 460 Mich. 55 (accessory after the fact not a lesser-included offense of aiding/abetting or murder)
People v Calloway, 500 Mich. 180 (definition and scoring guidance for OV 5: serious psychological injury)
People v Hutcheson, 308 Mich. App. 10 (bare hands are not a potentially lethal weapon for OV 2)
People v Rosa, 322 Mich. App. 726 (OV 7 excessive brutality: savagery/cruelty beyond usual brutality)
People v Cress, 468 Mich. 678 (newly discovered evidence/new trial factors)
People v Stevens, 498 Mich. 162 (when judicial questioning becomes improper and how to assess bias)
People v Hardy, 494 Mich. 430 (standard of review for scoring: factual findings clear error; legal application de novo)