No new trial in deadly shooting of Modesto ice cream vendor

A judge on Tuesday ruled that there was insufficient evidence to grant a new trial for a man sentenced to life in prison in the shooting of an ice cream vendor during a botched robbery in west Modesto.

Stephen Johnson testified that he didn’t know who shot and killed the ice cream vendor but it wasn’t DeWalter Mitchell. Stanislaus Superior Court Judge Linda McFadden said Johnson’s testimony was not credible, mainly because it was inconsistent with evidence presented at 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.

Warren Yates, a Modesto private investigator, testified Tuesday that he received a letter from Whitfield. He said Whitfield wrote in the letter sent from prison that neither he nor Mitchell had guns when Ham was shot. Yates was hired by Mitchell’s mother to find out who killed the ice cream vendor.

Chief Deputy Public Defender Sonny Sandhu argued that Whitfield’s letter alone would have impacted the decision of one or more jurors and produced a different outcome in the trial.

Whitfield was brought into the courtroom Tuesday morning to testify. But Whitfield refused to answer any questions, invoking his right not to incriminate himself on the witness stand. He is serving a sentence of 13 years eight months in prison after he pleaded no contest to voluntary manslaughter for his role in Ham’s death.

Chief Deputy District Attorney Annette Rees asked the court not to rely on the purported letters from Whitfield. She argued that reply letters from Yates to Whitfield were coercive to elicit responses that would help Mitchell get a new trial. She said there was no new evidence to impeach Whitfield’s testimony at trial.

“Not a single juror would be swayed by this evidence,” the prosecutor told the judge.

Whitfield told his attorney that he wrote and signed the letter to Yates, but Judge McFadden said the letter signature didn’t match other samples of his signature. Nevertheless, the judge said, Whitfield’s letter wasn’t all that different from his testimony in the trial.

Whitfield initially denied all involvement in the shooting to investigators. In the trial, Whitfield said Mitchell shot Ham, but he also limited his own involvement, according to the judge. McFadden said Whitfield’s letter wasn’t really new evidence to consider.

The defense attorney also pointed to Johnson’s testimony as the new evidence needed to grant a second trial.

In a letter to Sandhu, Johnson claimed that DeShawn 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.”

Sandhu argued that Johnson’s claim of a confession was consistent with other evidence, including that Woody lived near the crime scene and resembled Mitchell’s appearance.

“We believe we have met this burden... and we believe Mr. Mitchell is entitled to a new trial,” said Sandhu, Mitchell’s attorney.

The prosecutor argued that Johnson’s testimony was completely unreliable. She said Johnson waited a year after the claimed confession before he told anyone, and he writes a letter to Sandhu shortly after Mitchell is convicted.

Rees argued that Johnson failed to show up to testify for Mitchell’s first new trial motion two years ago. Then, he changed his testimony on the witness stand, saying he couldn’t remember it all.

“Not a single juror would believe anything he would have to say,” Rees told the judge.

Woody testified Monday 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.

The judge said she considered Woody’s testimony credible, noting that Woody didn’t even want the help of an attorney while testifying. Johnson and Whitfield were both assisted by attorneys while on the witness stand.

McFadden denied the defense motion for a new trial and reinstated Mitchell’s sentence of life in prison without the possibility of parole. The judge told Mitchell that he has the right to appeal her ruling.

This story was originally published June 23, 2015 at 3:00 PM with the headline "No new trial in deadly shooting of Modesto ice cream vendor."