 Kevin Johnson and his son, Kevin Jr. (Photo: North Carolina Center on Actual Innocence)
Officer Dominic Mussatti took a statement from Vereen while he was being treated at Duke University Hospital.
Vereen said he had been the first officer to respond to a 911 call, and he noticed a back door to one of the units was kicked in. He pushed on the door, and saw a young Black man, about 18-20 years old with short hair and a white T-shirt, run up and slam the door shut.
By then, a second officer, Corporal Daryl Macaluso had arrived, and Vereen went to the side of the building and told Macaluso to cover the front.
Vereen returned to the back door and entered the unit. He saw the young Black man at the front of the duplex and saw a “second suspect with corn rows or dreads and wearing a black T-shirt” standing in the hallway. That man raised his weapon. Vereen said he saw what appeared to be “brass” being ejected from the pistol as he and the second man exchanged gunfire.
Vereen left the building and radioed that he had been shot. The two men got away, perhaps in a silver, four-door sedan.
On September 24, a confidential informant told the police that he had heard from a woman named “Elwanda” that her boyfriend, “KJ,” had shot the officer.
That night, Vereen looked at two photo arrays. The first included another possible suspect, named Reginald Brown, who went by the nickname “Bobo.” The second included 24-year-old Kevin Johnson.
The first array contained 10 photographs. Vereen looked at the photos and said the men in slots one and six were possible suspects. He looked at the array again, and, according to notes taken by Investigator George Bryant, said of the man in slot one, “I think this is him, wide nose,” adding that Vereen gave a confidence level of 80 percent. The notes did not say which photo was in that position.
A few minutes later, Vereen looked at the second array. He did not make any identifications in the first pass. On the second viewing, according to Bryant’s notes, Vereen said of Johnson’s photo, “Possible, more facial hair, 2-inch dreads,” and gave a confidence level of 75 percent. Johnson was bald in the photo.
At 2:40 a.m. on September 25, the police interviewed Elwanda Robertson. According to one summary of the interview, Robertson said she and Johnson, who was her boyfriend, were together all of September 23, except for a few hours in the middle of the afternoon. She said that Johnson had no involvement in the break-in or the shooting. Robertson said that Johnson had received a very slight bullet wound—a “grazing type injury that looked more like a burn”—about a week earlier.
A summary of the interview by another officer gave a different account, stating that Robertson said she left Johnson in the evening of September 23 and went to the nearby city of Burlington with her friends, Sade and Melody.
On September 25, the police received another tip that said the men involved in the burglary and shooting were Brown, Steven Shealey, and David Williams.
Separately, Vereen wrote up his own report on September 27. In this account, he said that after opening the back door, he saw a young Black man with dreads near the front door. Very quickly, a second young Black man with short hair confronted him and managed to push the door closed. After Vereen kicked the door open, he and this second man exchanged gunfire.
Police collected fingerprints inside the building and ran them through the state’s databases. Williams was found to be the source of one of the fingerprints. Police arrested him in Burlington on September 28, after a 90-minute standoff.
In a recorded interview at the Durham Police Headquarters, Williams was initially uncooperative. But after an investigator told Williams that police didn’t consider him the shooter and Williams then had an unrecorded phone conversation with a second officer, he gave a statement that said he and Johnson broke into the duplex. Williams said that he jumped out of a window after hearing shots, and that he and Johnson escaped in a car, with Williams driving. He also said that Johnson had lost one of his boots in the mud behind the duplex. In the statement, Williams said that the car was Shealey’s, although Shealey did not know how the vehicle was being used. Williams also said that Johnson had used a .357 Magnum in the shooting.
Police had already recovered a size 9.5, right-foot Timberland boot outside the duplex and a .357 revolver in the street. The North Carolina State Bureau of Investigation’s crime laboratory conducted DNA testing on genetic material obtained from the boot, comparing it against Williams, and reported he could not be excluded as a contributor.
Police arrested Robertson on October 2, 2007, and charged her with accessory after the fact to assault with a deadly weapon. The indictment said she helped Johnson dispose of evidence and lied to the police to impede their investigation.
Johnson was arrested on November 27, 2007, and charged with assault with a deadly weapon, assault with a firearm on a law-enforcement officer, and second-degree burglary. In 2008, attempted murder was added to his charges.
Williams had also been charged with assault with a deadly weapon, assault on a law-enforcement officer, and burglary, and was being held in the Durham County Jail on $1 million in bond. On August 12, 2008, his bond was reduced to $5,000, and Williams was released on house arrest pending Johnson’s trial and the resolution of his case.
Johnson’s trial in Durham County Superior Court began on August 23, 2010.
Melody Harris testified that she and Johnson were related, his father and her mother being first cousins. She said that on September 23, at about 10 p.m. or so, she was driving around with Robertson, who received a call from Johnson, asking to be picked up on Stadium Drive, which intersected the street where the break-in occurred. Johnson said he had been shot. Harris was driving, and Robertson and Sade Johnson were also passengers. Harris testified that she overheard Johnson’s conversation with Robertson. “Basically, it was just, you know, ‘I got hit. I believe I shot the police.’”
She testified that Johnson had a small injury on his side, like a burn, and that she tried to buy a first-aid kit at a convenience store, but none were available, so she bought a lottery ticket.
Later, Harris testified, she went to Sade Johnson’s apartment and saw something that appeared to be clothing on a heated grill. Harris’s statement to the police differed from her testimony. In the statement, she said Robertson had found some first-aid supplies at a store and treated Johnson, and that later, when Harris gave Johnson a ride home, he told her what happened during the burglary.
Under cross-examination, Harris gave the wrong name for Johnson’s father. She also testified that Johnson was wearing boots on both feet when she picked him up, and that he was always bald. Johnson’s attorney also tried to suggest through his questioning that Harris had her dates mixed up, that the graze or burn Johnson had on his side that she attempted to treat came from the earlier shooting.
Regarding Harris, a prosecutor would later write in his trial notes, “Terrible witness.”
Mussatti testified about his interview with Vereen at the hospital on the night of the shooting. He said that Vereen was alert and eager to cooperate.
Reading from his notes, Mussatti testified that Vereen told him, “When he opened the door, he saw one of the male suspects, appeared to be 18 or 20 years old. He described [him] as medium brown skin, short hair, and wearing a long white T-shirt and jeans.” After Vereen kicked the door open and announced himself, Mussatti continued, “He said that he saw that same suspect in the front part of the house, ducking. He then saw a second suspect with, which he described as, cornrows or dread locks, and wearing a black T-shirt. He was standing in a hallway directly in front of him. The second suspect raised a weapon. He said he didn’t just hear the sounds, but he saw that the brass was being ejected from the weapon and he knew that he was getting shot at.”
Scott Jones, a firearm and toolmark examiner at the SBI crime laboratory, testified that a copper jacket pulled from a bathroom door and a bullet collected from Vereen’s bulletproof vest were fired from the .357 revolver found outside the building. Jones testified that two other .45-caliber bullets were found inside the duplex, although he was unable to determine whether they came from the same weapon. Jones also testified that a revolver doesn’t eject its casings when fired.
Williams testified that he and Johnson borrowed Shealey’s car on September 23, 2007, to check out a house and look for drugs to steal. He said Johnson drove. He said when the shooting started, he jumped out of the second-floor window and ran to the car. Johnson was already there, in the driver’s seat. (In Williams’s statement to police, Johnson was in the passenger seat.) They drove off, avoiding a roadblock, eventually making their way back to an apartment complex about eight miles away.
Throughout his testimony, Williams consistently called Johnson “Calvin.” He testified that he had not made any deals with the district attorney’s office in exchange for his testimony.
Williams testified that Johnson left behind a Timberland boot. On cross-examination, Williams said his feet were the same size as the boot but that the boot wasn’t his. He first denied knowing about the earlier incident where Johnson was shot but later said he had heard something about it.
Williams also said that Johnson did not have corn rows or braids in his hair. “Do he look like he have [sic] corn rows,” he asked?
Vereen identified Johnson in court as the man who shot him. He testified that he had seen Johnson face to face when Vereen tried to push the door open, and Johnson pushed it closed.
During cross-examination, Vereen said that he never told Mussatti that the man who shot him had corn rows or dreads. He also testified that he had been certain during his viewings of the photo arrays, when he identified Johnson.
“So it’s your testimony that when you viewed the photographs of Mr. Johnson, you didn’t say that first initially ‘no’ and then the second time or third time, ‘possibly more facial hair’ with ‘two inch dreads’ and you were 75 percent sure.”
“No, I never said that Mr. Johnson had dreads, sir. I don’t recall that.”
Vereen was pressed on whether the reports prepared by the other officers were incorrect. “Well, like I said, I’m sticking to my story. I did not say that that individual with dreads actually did the shooting, sir.”
Separately, Vereen testified that the shell casing he saw being ejected could have come from his gun.
Bryant, the investigator with the Durham Police Department who interviewed Williams after his arrest and also reviewed the mugshots used in the photo array, testified as a defense witness.
He said that the photo array contained men who were too old to fit the general description given by Vereen. He also testified that a mixture of DNA consistent with Williams was found on the boot outside the duplex, and that Johnson was excluded as a contributor to the genetic material.
Johnson testified and denied taking part in the burglary or the shooting. He said that Harris was wrong; they were not related. He said he had been bald since around his early 20s. He testified that he had a small tattoo done under his left eye in 2005. (Vereen had not noted that feature in any of his reports.) He also took off his shoe, which was a size 10.5, and showed it to the jury.
Johnson said that he and Williams were not friends but knew each other. Johnson said they had an altercation over drugs, and when he was shot several days before Vereen’s shooting, he believed Williams was involved. He testified that he didn’t mention this to the police who investigated that incident.
In his closing argument, Johnson’s attorney said the shooting of a police officer was a tragic event, but that Johnson didn’t do it. Williams, he said, was the only person connected to the break-in by the evidence, and his testimony against Johnson was filled with contradictions and lies. He said Vereen’s initial description of the men involved in the shooting was the most reliable, and Johnson, with his bald head, wasn’t the man with dreads who fired the weapon.
The prosecutor discounted Vereen’s initial statement and his hesitancy during the photo arrays. Vereen’s written report and his courtroom testimony were paramount, the prosecutor said, and he had clearly identified Johnson as the man who shot him.
The jury began deliberations on August 26, 2010, a Thursday. The next day, Judge Kenneth Titus asked the foreperson if the jury was close to reaching a verdict on any of the charges. The foreperson said they weren’t. Judge Titus then delivered what is called an Allen charge to the jury, telling the members that “it is your duty to do whatever you can to reach a verdict in this case.”
The jury adjourned for the weekend. On Monday, August 30, 2010, the jury convicted Johnson of all charges. He was sentenced to between 24 years and eight months and 30 years and five months in prison.
On September 22, 2010, Williams pled guilty to second-degree burglary. The other charges were dismissed. He received a suspended sentence of 13 to 16 months in prison, with two years of supervised probation.
Johnson appealed, arguing that Judge Titus erred in allowing jurors to review transcripts of the testimony of two witnesses. The North Carolina Court of Appeals affirmed the conviction in 2011.
In 2020, Williams recanted his trial testimony. He said that he and “Bobo” participated in the burglary, and that Bobo shot Vereen. (He said he did not know Bobo’s real name.) Williams said that Johnson had no involvement in the crime. Williams also said that he testified falsely when he said had not made any deal in exchange for his testimony. “The District Attorney’s Office gave me a deal that included dropping some of the charges against me,” Williams said in an affidavit.
Separately, Robertson signed an affidavit in 2021 that said Johnson was at home with her on the evening of September 23, 2007, and she did not go with Melody Harris to pick him up. She said she knew Harris but did not hang out with her.
Johnson, now represented by the North Carolina Center on Actual Innocence, filed a motion for appropriate relief on November 21, 2022.
The motion said that the state concealed its arrangement with Williams, as he testified without immunity to planning and committing a burglary that led to the shooting of a police officer, but only pled guilty to a minor felony and received no active prison sentence.
“Williams’s admission, together with the other evidence, also establishes that the State knew he was testifying falsely and had promised Williams leniency if he testified against Mr. Johnson,” the motion said.
Robertson’s affidavit undermined the testimony of Harris and gave Johnson an alibi, the motion said. Robertson didn’t testify at Johnson’s trial because she had been charged as an accessory to his crimes. (She later pled guilty to a misdemeanor charge of obstruction of justice.)
The motion also said that the photo array used in the case no longer complied with state law. In July 2007, the North Carolina General Assembly passed the Eyewitness Identification Reform Act. It required the fillers in photo arrays and lineups to resemble as much as possible the descriptions provided by witnesses and for the officers involved in the presentation of the photos or lineup to not know the suspect’s identity.
In Johnson’s case, none of the persons in the arrays had cornrows or short dreads. In addition, Bryant, the department’s lead investigator in the shooting, was present when Vereen viewed the array.
In its response, the state said Robertson’s affidavit would not have changed the trial’s result. It also said that Williams’s recantation should be viewed with skepticism and that his claim of a deal with prosecutors was false.
“Even though the more serious charges against Williams were dismissed, it does not mean that there was a deal—it was a matter of the sufficiency of the State’s evidence,” the response said.
Judge Edwin Wilson held an evidentiary hearing on May 30, 2023. An order for Williams’s arrest was issued after he failed to appear. At the hearing, Williams took back his recantation and said he testified truthfully at Johnson’s trial.
Johnson also testified at the hearing, again asserting his claim of innocence. He said Williams had shot up a car he was in a few days before the shooting. Under questioning from Mumma, Johnson said he wouldn’t have participated in a burglary with Williams. “I would have tried to shoot him,” Johnson said. “Get him back.”
After the close of the defense evidence, the state agreed that Johnson should receive a new trial, and Judge Wilson granted the motion from the bench and issued an order on June 6, 2023. After the hearing, the state agreed that Johnson should receive a new trial, and Judge Wilson granted the motion on June 6, 2023.
Johnson was released from prison on June 2, 2023, to the relief of his family, including his son, who was born September 25, 2007, two days after the shooting. “I don’t want to cry,” Kevin Johnson Jr. told the News & Observer of Raleigh. “I don’t know how to show my expression right now. I am just ready to see him.”
The state dismissed the charges on June 27, 2023.
In its motion, the state said that although the state’s evidence at trial appeared strong, “serious issues have now been raised about the credibility of two key witnesses on which the state’s case relies. In the interest of justice, the State cannot in good conscience move forward with a re-prosecution of this case.”
– Ken Otterbourg
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