Background
In November 2018, Oakland County’s Fugitive Apprehension Team tracked Davonte Burkett—then an absconder from parole—to a Pontiac residence. With the homeowner’s consent, officers entered and found Burkett standing with his legs against a bed in a bedroom belonging to resident John Fulbright. When a deputy lifted the mattress, he discovered a handgun underneath. DNA processing, completed years later, excluded Fulbright as a contributor and concluded it was approximately 6.27 sextillion times more likely that Burkett was among the contributors than four unrelated strangers.
Burkett was charged in May 2022 with felon-in-possession under MCL 750.224f and felony-firearm (third offense) under MCL 750.227b. The case was repeatedly delayed by defense counsel adjournments and, beginning in late 2023, by competency proceedings—Burkett was eventually declared incompetent in a separate case before being found competent and stipulating to competency in this matter. Trial finally commenced in June 2024, twenty-five months after charging, and a jury convicted him on both counts. The trial court sentenced him as a fourth-offense habitual offender to 3–40 years on the felon-in-possession count and a consecutive 10 years on the felony-firearm count.
Post-trial, Burkett moved for acquittal or a new trial on multiple grounds. The trial court held a limited Ginther hearing on one claim—whether trial counsel was ineffective for failing to impeach Deputy Janczarek with his documented history of making false statements in unrelated cases—and ultimately denied relief. Burkett appealed by right.
The Court’s Holding
The Court of Appeals affirmed on all issues. On ineffective assistance, the court agreed that trial counsel’s failure to impeach Deputy Janczarek—who had twice been found to have made false statements in unrelated proceedings and whose testimony placed Burkett in constructive possession of the gun—fell below an objective standard of reasonableness. Defense counsel could and should have pursued impeachment alongside his “others had access” theory, as the two strategies were not mutually exclusive. However, because a second officer, Deputy Wilson, gave substantially the same proximity testimony without any documented credibility problems, and because the DNA evidence was powerful and independent, Burkett could not establish a reasonable probability of a different outcome. Prejudice was therefore not shown, and the claim failed.
The court rejected Burkett’s remaining ineffective-assistance claims: his Fourth Amendment suppression argument was meritless because, as a mere visitor to the residence, he lacked standing to challenge the search of another person’s bedroom; his claim that counsel failed to interview potential witnesses was too speculative to establish prejudice; and his competency claim failed because he stipulated to competency, counsel observed no concerning conduct at trial, and Burkett identified no specific mental-health condition undermining that finding.
On sufficiency of the evidence, the court held the DNA evidence—combined with Burkett’s physical proximity to the hidden firearm and the exclusion of the bedroom’s owner as a contributor—was sufficient for a rational jury to find constructive possession beyond a reasonable doubt. The court also rejected Burkett’s speedy trial claim, finding that while the 25-month delay triggered a presumption of prejudice, the reasons for delay were overwhelmingly attributable to defense-side adjournments and competency proceedings, and Burkett suffered no cognizable prejudice to his defense. Finally, the court found no prosecutorial misconduct in the prosecutor’s closing-argument inference that Burkett hid the gun when officers arrived, as that inference was reasonably supported by the evidence.
Key Takeaways
- A defendant who is merely present as a visitor in another person’s home lacks Fourth Amendment standing to challenge a search of that home, even if incriminating evidence is found there; overnight guests may assert the right, but transient visitors may not.
- Trial counsel performs deficiently by failing to impeach a central prosecution witness with documented prior false statements, particularly where impeachment would reinforce rather than contradict the defense’s own theory of the case—but that deficiency alone does not warrant relief absent a showing that the outcome would likely have differed.
- Delays caused by defense counsel adjournments, counsel withdrawal, and competency proceedings are attributed to the defendant for speedy trial purposes and will not support a constitutional violation claim even when the total delay exceeds the 18-month presumptive-prejudice threshold.
- Strong DNA evidence linking a defendant to a concealed firearm, especially where the legitimate occupant of the space is excluded as a contributor, is sufficient to support a constructive possession conviction even without proof of actual physical handling.
Why It Matters
This decision illustrates the high bar defendants face when arguing ineffective assistance of counsel in cases anchored by forensic evidence. Even where an appellate court expressly finds counsel’s performance deficient—here, the failure to use documented prior perjury to impeach a police officer—the conviction will stand if independent evidence, such as DNA, adequately supports the verdict. Defense practitioners should note the court’s pointed observation that multiple non-exclusive theories of defense can and should be pursued simultaneously, and that labeling a tactical choice “strategy” does not shield it from scrutiny.
The case also serves as a practical reminder on speedy trial analysis: delays generated by defense-side requests—including competency evaluations—are charged against the defendant when applying the Barker v. Wingo balancing test, and incarceration on an unrelated charge during the delay undercuts any claim of personal prejudice from pretrial detention. Prosecutors litigating speedy trial motions in cases with complex pretrial histories should carefully document the source of each adjournment.