Modesto man convicted of murder gets another chance at new trial

A 23-year-old Modesto man sentenced to life in prison for a deadly botched robbery has returned to Stanislaus County to seek a new trial.

A jury in September 2012 found DeWalter Mitchell guilty of murder in the shooting of 44-year-old Modesto resident Martin Ham. He was killed while working as an ice-cream vendor.

Mitchell also was convicted of attempted robbery and enhancements of using a gun in the murder and causing death during the failed robbery. The defendant was sentenced two years ago to life in prison without parole.

He is back at the Stanislaus County jail after an appellate court overturned a local judge’s ruling.

The state’s 5th District Court of Appeal said Mitchell deserves another chance at a motion for a new trial. The appellate court has ruled that Stanislaus Superior Court Judge Linda McFadden erred in denying the defense an opportunity to present a witness whose testimony could change the outcome of the trial.

Mitchell is scheduled to return to court June 22. If Judge McFadden hears the testimony and denies the new trial motion again, Mitchell’s conviction will be upheld and he will be returned to prison. If the judge decides the new evidence is convincing, she can reverse the conviction and grant Mitchell a new trial.

In the trial, Chief Deputy District Attorney Annette Rees argued that Mitchell’s intent was to rob Ham, who was drunk at the time and an easy target.

Ham was found, with a gunshot wound, not far from his ice-cream bicycle cart about 4 p.m. Oct. 8, 2011, near North Madison and Linden streets, about two blocks north of Maze Boulevard in west Modesto. He died at a Modesto hospital.

Lavell Whitfield, accused of being Mitchell’s accomplice in the attempted robbery, agreed to a plea deal with the District Attorney’s Office in exchange for his testimony against Mitchell. Whitfield was sentenced to serve 13 years eight months in prison after he pleaded no contest to voluntary manslaughter for his role in the death of the ice-cream vendor.

Whitfield testified that Mitchell confronted Ham and told him to “empty his pockets.” He said Mitchell then brandished a gun. Whitfield didn’t see what happened next, but he said he heard a loud bang and Ham screaming.

At Mitchell’s sentencing April 15, 2013, Chief Deputy Public Defender Sonny Sandhu had one final opportunity to present new evidence he said would have produced a different verdict had the jury heard it. However, the witness with the new information never showed up in court.

Sandhu told Judge McFadden that Stephan Johnson had been subpoenaed to testify in court, but he had no idea where Johnson was. The defense attorney said Johnson heard DeShawn Woody confess to killing the ice-cream vendor, and that he had sent Sandhu a letter describing the confession.

The appellate court’s filed decision included the letter from Johnson to Mitchell’s attorney. “I ask him who shot the ice cream man and all he said that it wasn’t (Mitchell) and that he feels bad that (Mitchell) went to jail for something he and (Whitfield) did by accident,” Johnson wrote about the claimed confession from Woody.

Authorities had tried six times to serve Woody with a subpoena at his home, but they were not able to find him. Sandhu said he obtained a photo of Woody, whose description is similar to Mitchell’s. He said Woody used to live along Spencer Avenue in 2010, not far from the shooting scene, but that he didn’t know for sure whether he lived there when the slaying occurred.

The prosecutor argued that Johnson’s testimony can’t be considered reliable because he did not appear in court even after he was subpoenaed. She said there was plenty of evidence that linked Mitchell to the shooting, including Mitchell’s DNA found on the murder weapon.

The defense attorney argued that the DNA evidence was not conclusive and shows only that Mitchell may have touched the gun at some point but not when. Sandhu also said one of the independent witnesses testified that she saw someone else at the shooting scene, not Mitchell.

Sandhu asked the judge to postpone the sentencing hearing again and issue a bench warrant for Johnson’s arrest, so he could be brought to court to testify.

Judge McFadden denied the request, telling the defense attorney that she didn’t believe Johnson would appear in court. She said the totality of the evidence pointed to his client’s guilt, including a matching shoe print and text messages before the shooting that indicated Mitchell had a gun and was looking to commit a robbery. She said there has to be evidence that supports the claimed confession.

The appellate court, however, determined that Johnson’s testimony would’ve been crucial to a potential new trial. If found credible by Judge McFadden, Johnson’s testimony would directly contradict the strongest evidence against Mitchell – Whitfield’s testimony.

“We are persuaded the trial court abused its discretion in not granting a reasonable continuance after Johnson, a subpoenaed witness, failed to appear at the hearing,” the three-judge appellate court panel wrote.

As of Thursday afternoon, 19-year-old Whitfield remained incarcerated at Calipatria State Prison in Imperial County. There is some indication Whitfield will return to the witness stand June 22 for Mitchell’s hearing. It’s unclear whether his testimony about the deadly robbery will change.

This story was originally published May 21, 2015 at 3:23 PM with the headline "Modesto man convicted of murder gets another chance at new trial."