Just after about 3:30 a.m. on May 28, 2014, police in Detroit, Michigan, received a call about an armed robbery at a gas station in the Corktown neighborhood, just west of the city’s downtown.
The store’s clerk, Tina Williams, told the police that a man had entered the store a few minutes earlier and asked for help locating the coffee machine. Williams was behind bullet-proof glass, and she said the man acted strangely. She left her booth to help the man, then went back and locked the door behind her. Two women were also in the store.
Williams said she then heard another man’s voice, demanding money. He robbed one of the other women, then began yelling at Williams to give him the money from the register. Williams refused. The man shot at the glass several times and tried to kick the door in.
Williams said she noticed that the man at the coffee station didn’t make any effort to escape and later yelled at Williams to open the door so that the armed man could get the money and leave. Again, Williams refused. The armed man ran out of the gas station. The other man told Williams to call 911, and she said he then left in the same direction as the armed man.
Several hours later, at 8:10 a.m., the police were called to a house on the city’s north side to investigate a reported home invasion. The officers noticed two people inside the house and arrested 22-year-old Darrell Walker and 22-year-old Lafayette Upshaw as they attempted to leave through separate windows. They were each charged with home invasion.
An officer investigating the armed robbery knew Walker and said he recognized him from the store’s surveillance video, based in part on Walker’s clothing and a splint on his left hand. On June 3, 2014, Williams viewed photo arrays that included Walker and Upshaw. She identified Walker as the man at the coffee station and Upshaw as the man who demanded her money and fired the shots inside the convenience store.
Both men were charged, with Upshaw being charged with armed robbery, two assault charges, and two weapons charges.
Upshaw and Walker entered guilty pleas to the home invasion charge and were tried together on the armed robbery charges.
Upshaw had hired Ray Paige as his attorney, but he quickly grew dissatisfied with his representation. (Upshaw’s mother would later file a complaint with the state’s attorney grievance commission that said Paige failed to show up for four hearings.) In mid-September, about two weeks before the start of the trial, Upshaw replaced Paige with Wright Blake.
At a pre-trial hearing on October 2, 2014, before Judge Michael Callahan of Wayne County Circuit Court, Upshaw requested an adjournment to allow Blake time to review his case.
He said: “As you can see, your honor, I have retained a new lawyer because of my insufficient counsel for not showing up and not coming and telling me the information. So, I feel like my lawyer hasn’t, my lawyer hasn’t [seen] the DVD. He hasn’t retained the transcript or anything and I feel like it’s best grounds of adjournment right there, your honor, just to get him caught up on what’s going on with the case [because] I just retained him like a week and a half ago, probably not even that.”
Blake said a delay wasn’t necessary. “He doesn’t feel that we’re quite ready,” Blake said. “I told him that I would bring myself up to speed by the time for the trial date.”
Judge Callahan didn’t grant Upshaw’s request, and the trial began on October 9, 2014.
During jury selection, Blake raised a Batson challenge, asserting that the prosecutor was striking jurors on the basis of their race. At the time, the state had used peremptory challenges to strike eight potential jurors, six of whom were Black. Upshaw and Walker are both Black.
Judge Callahan asked the prosecutor to explain her challenges, one by one. The prosecutor said, “Ms. Stinson, I dismissed recently because she seemed to have very delayed responses to questions as if she really wasn’t focused or paying attention and she’s an older female. As relates to Ms. Williams, Ms. Williams is convicted of a [weapons violation]. Mr. Smith was in seat number 6, I believe.”
Judge Callahan interjected: “He was. He’s the juror with the relatives in prison.”
The prosecutor said: Yes, thank you, Judge. That is correct.”
The prosecutor then explained why she had struck a young woman from the potential jury but never went through the remaining jurors to explain her reasons for striking them.
Judge Callahan denied the Batson challenge.
During the trial, Williams testified about the armed robbery. Walker was clearly identified in the surveillance video as the man at the coffee station, and Williams identified Upshaw as the man with a gun. On the video, this man was wearing a gray hoodie and blue shoes, with a T-shirt over his nose and mouth. Williams testified that the armed robber wore blue shoes and shorts.
The police found several 9 mm shell casings at the crime scene, but they could not lift any fingerprints.
The men had different defenses. Upshaw’s defense was that Williams was mistaken in her identification; Walker claimed to have been a bystander during the robbery.
To establish a connection between the two men, refuting both defenses, the state introduced—over the objection of the defense attorneys—evidence about the home invasion.
The house’s owner was a Detroit police officer, and she testified that when she arrived at her home at about 8:30 a.m., she saw the two men in custody. She testified that the jewelry found on Walker belonged to her.
Neither Walker nor Upshaw testified. Upshaw’s only witness was Jeffrey Haugabook, the manager of Tony’s Bar & Grill in northwest Detroit. He said that Upshaw worked from 9:30 p.m. on May 27 to 3 a.m. on May 28, and that Haugabook then gave him a ride home, dropping Upshaw off around 3:15. Haugabook said that Upshaw was wearing tan Timberlands and that he had never seen him wearing blue or purple gym shoes. He also testified that he did not think Upshaw was the armed man in the video.
The jury convicted Walker and Upshaw of armed robbery on October 16, 2014. Upshaw was also convicted of two weapons charges but acquitted on the assault charges. He received a sentence of 18-40 years in prison related to the armed robbery and a sentence of one to five years for the home invasion conviction. Walker received a sentence of 25-50 years in prison for the armed robbery conviction and one to 15 years for the home invasion conviction.
Upshaw and Walker appealed, with both men claiming that Judge Callahan erred by allowing testimony about the home invasion. Upshaw raised several other claims in his appeal.
He said that Judge Callahan shouldn’t have allowed testimony about his refusal to participate in a live lineup.
He also said that Blake had provided ineffective assistance by failing to investigate potential alibi witnesses, failing to file a notice of an alibi defense, and failing to request an adjournment to properly prepare for trial. As part of this claim, Upshaw submitted his own affidavit that said in part:
“On May 28, 2014, at about 3:30 a.m., a co-worker dropped me off at my home, where my aunt (Crystal Holloway) let me in, and along with my grandmother (Joann [Green]), along with my significant other (Diamond Woods), all heard me preparing a meal in the kitchen of the home before I went to bed. I was never at, or near, the Mobil gas station located at 1920 West Fischer Drive. Neither was I with Darrell Walker in that early morning, until around 7:30-7:45 a.m., due to the fact I caught the bus to go help someone move, and saw him along the bus ride and which we did a criminal act along the way.”
Upshaw later supplemented this claim with notarized, unsworn statements from the aunt and the grandmother.
Green’s statement said in part, “I know [Upshaw] ... could not have been anywhere else, because at between 3:20 and 3:30 he was getting blessed out by me” for waking her up after she fell asleep watching television.
Finally, Upshaw said that Judge Callahan had improperly denied his Batson claim during jury selection, failing to scrutinize the prosecutor’s explanations for striking Black jurors, which were at times inconsistent with her reasons for not striking white jurors.
“The prosecutor’s purported reasons are reminiscent of Goldilocks,” the appeals said. “That is, a juror apparently cannot be too old, or too young, but must be just right, in order for the juror to partake in the juror’s civic duty.”
On May 19, 2016, the Michigan Court of Appeals affirmed the convictions. It said that the documents Upshaw provided to support his alibi claim were “flawed” and “nonsensical.” The ruling also said that although Judge Callahan did not follow the proper procedure in rejecting Upshaw’s Batson motion, it wasn’t clear from the record that Blake articulated the problems with the prosecutor’s jury challenges.
Upshaw then filed a pro se motion for relief from judgment, which said the Court of Appeals had ruled incorrectly on the juror challenges. Judge Callahan had retired, and Judge Wanda Evans denied his motion. The state’s appellate courts denied Upshaw’s request to appeal.
On September 18, 2020, Upshaw filed a petition for a writ of habeas corpus in U.S. District Court for the Eastern District of Michigan. He was now represented by David Moffitt. The petition repeated the claims made in Upshaw’s earlier appeals and said that the appellate rulings were based on a flawed analysis of the case.
The petition said that although the statements from Green and Holloway might have been defective, Upshaw’s affidavit clearly stated the possibility of alibi witnesses.
“No reasonable defense attorney, proceeding to trial on a misidentification defense and knowing, from his client, that there were two potential alibi witnesses, would have failed to at least speak to those witnesses to find out whether they could provide testimony helpful to the defense,” the petition said.
The petition said this alibi evidence was critical in a case built largely around a single “weak” eyewitness identification. Williams had testified that the gunman had a T-shirt over his face, that she never saw his mouth and lips, and saw his eyes and nose for less than 10 seconds. In addition, her identification of Upshaw from a photo array took place six days after the crime.
The petition also said Blake should have agreed with Upshaw to adjourn the case and that Judge Callahan violated Upshaw’s right to a fair trial when he denied the motion to adjourn. The trial took place only four months after Upshaw was charged, the petition said, and Upshaw’s request to change lawyers was reasonable, based on Paige’s inaction.
The petition also reasserted the problems with Judge Callahan’s ruling on the jury strikes and the appellate court’s analysis that determined the challenges did not violate Upshaw’s constitutional rights to an impartial jury. The petition noted that Blake had identified six juror strikes that appeared to be based on race, but Judge Callahan never addressed two of those strikes before making his ruling. In addition, Judge Callahan had supplied the reason for one of the strikes when he asked the prosecutor whether that potential juror had relatives in prison.
On May 2, 2022, Judge Linda Parker ordered an evidentiary hearing, which was held on May 17, 2022. Upshaw, Blake, and Holloway testified.
At the hearing, Upshaw testified that he told Paige at their first meeting that he had three alibi witnesses. Paige made no attempt to contact the women, Upshaw said, so he hired Blake to represent him. The trial was in two weeks, but Blake didn’t meet with him for a week. At that meeting, Upshaw said, he told Blake about the alibi witnesses. Blake took no notes, Upshaw said. The next day, Upshaw testified, Blake returned and said that he had missed the deadline for notifying the state of an alibi defense 10 days before trial.
In her testimony, Holloway testified that when Upshaw came home, he didn’t have any keys, so she had to let him in. Upshaw’s knocking woke up his daughter and his grandmother. Holloway said she observed Upshaw for the next 20-30 minutes tending to his family members.
In his testimony, Blake said he remembered little about the trial. He did not remember when he had been retained, how often he met with Upshaw, his pre-trial preparation, or anything about potential alibi witnesses. He testified that he was “sure” he was adequately prepared.
On July 14, 2022, Judge Parker granted Upshaw’s habeas petition and ordered a new trial. She said in her ruling that Paige and Blake had each provided ineffective assistance of counsel. Both attorneys had failed to properly investigate Upshaw’s alibi. Blake, retained so close to trial, should have asked for an adjournment, Judge Parker said. The customary 10-day alibi notice was not set in stone; a judge could waive it for special circumstances.
She wrote, “The Court’s confidence in Blake’s credibility was seriously diminished, however, by his inconsistent statements and complete lack of preparation—or attempt to prepare—for the evidentiary hearing.”
Separately, Judge Parker wrote that Upshaw’s conviction was irreparably tainted by the problems during jury selection, after Blake raised his Batson challenge. Judge Callahan made several errors at trial, she said, and the Michigan Court of Appeals, in affirming Upshaw’s conviction, was “unreasonable” in its interpretation of the controlling case law.
Judge Parker said that Judge Callahan erred in three ways. First, he provided the prosecutor with the reason for one of her strikes. Second, he never asked the prosecutor to offer a race-neutral explanation for two of her other strikes. Finally, his inquiry into the prosecutor’s explanations was insufficient.
The state appealed. On March 28, 2024, the U.S. Court of Appeals for the Sixth Circuit, affirmed Judge Parker’s ruling on the failings of the trial attorneys and the violation of Upshaw’s rights during jury selection. It said that Judge Callahan’s acted too quickly in denying Blake’s Batson claim, without determining the validity of the prosecutor’s justifications for the jury strikes. (He had said during jury selection: “Well, the Prosecutor has given some explanation other than race being challenged. I don’t think the Batson motion can be sustained. I don’t have any further comments on whether it’s good or bad. That’s the strategy of a trial.”)
The U.S. Supreme Court declined to hear the state’s appeal. Judge Evans granted a motion by prosecutors to dismiss the case on August 23, 2024. Upshaw remained in prison on the conviction for the unrelated home invasion.
– Ken Otterbourg
Posting Date: 04-26-2025
Last Update Date: 04-26-2025
