Witness says convicted man not responsible for deadly Modesto shooting

Stephen Johnson says he doesn’t know who shot and killed an ice cream vendor during a botched robbery in west Modesto. But he says he knows it wasn’t Dee Walter Mitchell, who was sentenced to life in prison in the case.

Johnson testified Monday afternoon in a hearing for Mitchell. An appellate court says Mitchell, who had been serving his prison sentence, deserves another chance at a motion for a new trial.

A jury in September 2012 found Mitchell guilty of murder in the October 2011 shooting of 44-year-old Modesto resident Martin Ham. Lavell Whitfield, who said he was Mitchell’s accomplice in the attempted robbery, agreed to a plea deal with the prosecutor in exchange for his testimony against Mitchell.

The state’s 5th District Court of Appeal ruled that the defense should get an opportunity to present a witness whose testimony could change the outcome of the trial.

If Stanislaus Superior Court Judge Linda McFadden denies the new trial motion at the conclusion of this hearing, Mitchell’s conviction will be upheld and the 22-year-old man 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.

Johnson entered the courtroom Monday wearing a black-and-gray jail inmate jumpsuit, along with shackles on his wrists and ankles. He’s currently awaiting prosecution on assault and street gang participation charges.

On the witness stand, Johnson said he spoke to an acquaintance, Deshawn Woody, at a party sometime in October 2011. “He needed bullets for a gun ... a .380 (caliber gun),” Johnson testified.

A .380-caliber shell casing was found at the crime scene. The bullet shell matched the type that could be fired from a gun recovered by investigators.

Johnson testified that he brought Woody about 15 bullets. He claims Whitfield was also at this party. Johnson also said Woody and Whitfield split the bullets, and he saw Woody load his gun with the ammunition.

Ham was found 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.

Johnson testified that he later spoke to Woody by phone. “We talked, but he never said he did it.” Johnson also said Woody was crying, saying he had messed up. But Johnson testified they didn’t speak about Mitchell’s case.

A few moments later, Johnson changed his story on the witness stand. He said he couldn’t remember it all initially, but now he remembered what he wrote in a letter to Mitchell’s attorney. Johnson testified that everything he wrote in the letter was accurate.

In the letter, Johnson claimed that Woody confessed to him about the deadly shooting. Johnson wrote: “I ask him who shot the ice cream man and all he said was that it wasn’t (Mitchell) and that he feels bad that (Mitchell) went to jail for something he and (Whitfield) did by accident.”

Johnson testified that he has known Mitchell for about 12 years, but he waited for about a year before he wrote to the defense attorney about the alleged confession. He also failed to appear in court for Mitchell’s first new trial motion hearing two years ago, because Johnson says he didn’t have transportation to the courthouse.

Woody also testified Monday. He said he doesn’t recall asking Johnson for .380-caliber bullets or having any conversation about the ice cream vendor’s death. Woody also said he doesn’t recall telling anyone that Mitchell wasn’t wasn’t responsible for the murder, and that he didn’t shoot the ice cream vendor.

Testimony in Mitchell’s hearing will continue Tuesday. It’s possible Whitfield will testify in the hearing.

This story was originally published June 22, 2015 at 5:53 PM with the headline "Witness says convicted man not responsible for deadly Modesto shooting."