Wayne Young v. Jan Trombley

Filing

OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 206. Martha Craig Daughtrey (AUTHORING), Karen Nelson Moore and Jane Branstetter Stranch, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0575n.06
09-1552
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
WAYNE YOUNG,
Petitioner-Appellant,
v.
JAN TROMBLEY,
Respondent-Appellee.

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Aug 16, 2011
LEONARD GREEN, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN

Before: DAUGHTREY, MOORE, and STRANCH, Circuit Judges.

MARTHA CRAIG DAUGHTREY, Circuit Judge.

Petitioner Wayne Young, a

Michigan state prisoner, appeals the district court’s denial of his petition for a writ of habeas
corpus. Limited by a certificate of appealability, Young can raise only two issues before
us: whether he was deprived of his right to a fair trial by the state trial judge’s failure (1) to
give a special cautionary instruction on accomplice testimony and ( 2) to declare a mistrial
after dismissing one of the jurors prior to deliberations. Given our scope of review in
habeas cases, we conclude that the district court did not err in denying relief. The state
trial court’s extensive instructions on witness credibility, although not specifically aimed at
accomplice testimony, were constitutionally adequate to protect Young’s right to a fair trial,
and the court’s denial of a mistrial did not result in error, constitutional or otherwise, in view
of the instructions given the remaining members of the panel concerning the dismissed
juror.

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FACTUAL AND PROCEDURAL BACKGROUND

Young was charged with two counts of second-degree murder, one count of assault
with intent to commit armed robbery, one count of possession of a firearm during the
commission of a felony, and one count of possession of a firearm by a person convicted
of a felony. Over the course of two days of trial, the prosecution introduced evidence
against Young that the Michigan Supreme Court summarized as follows:

[Young] shot and killed two people in an execution-style slaying while robbing
a drug house in Detroit. Among other evidence of guilt, the prosecution
presented testimony from two witnesses whom [Young] now claims were his
accomplices, Michael Martin and Eugene Lawrence.
Martin testified that [Young] came to his house and asked him for a gun to
rob someone. Martin had no gun. [Young] then spoke on the telephone to
Martin’s brother-in-law, Lawrence. Martin did not hear their conversation.
Martin then drove [Young] to Lawrence’s house. After they arrived, [Young]
and Lawrence spoke in a back room away from Martin, who again could not
hear their conversation.
Lawrence testified that during this conversation, [Young] asked him for a gun
because some man had threatened him. [Young] did not mention to
Lawrence any plan to rob a drug house. Lawrence did furnish a gun to
[Young]. Martin and [Young] then drove back to Martin’s home. Martin went
inside his home while [Young] walked off in the direction of a nearby drug
house.
[Young] later telephoned Martin, stating that he was planning to rob a drug
house. Martin hung up. Later that day, [Young] visited Martin’s home and
admitted that he had shot the two victims in the head. After [Young] left,
Martin contacted Lawrence. Martin and Lawrence then went to [Young]’s
home. [Young] told them that he was angry because he had killed the
victims for only six rocks of crack cocaine. [Young] called an unknown
person and directed him to tell Martin where to find the gun. [Young]

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eventually directed Martin and Lawrence to a field near Martin’s home where
Martin found the gun.[1]
The police questioned Martin twice. During the second interview, he
disclosed what had happened. The police then retrieved the murder
weapon. Martin and Lawrence were never charged with a crime in
connection with the murders.
In addition to the testimony of Martin and Lawrence, the prosecution
presented other evidence of [Young]’s guilt. One witness testified that
[Young] had also asked him for a gun. Another witness, Ronald Mathis, had
seen [Young] in the drug house just before the murders occurred. At that
time, [Young] offered to sell Mathis a gun. Mathis then left the premises.
Upon his return approximately fifteen minutes later, Mathis discovered the
victims’ bodies and noted that [Young] was gone. Finally, a cigarette butt
recovered at the murder scene contained deoxyribonucleic acid (DNA)
material that matched [Young]’s DNA.

People v. Young, 693 N.W.2d 801, 803-04 (Mich. 2005).

The jury found the petitioner guilty of the charged offenses, and the trial court
sentenced Young to concurrent prison terms of 45 to 70 years for the second-degree
murders, 40 to 60 years for the assault, and two to five years for the felon-in-possession
conviction. The court also sentenced Young to a mandatory consecutive two-year prison
term for the felony-firearm conviction.

Young’s attempts to overturn his convictions through the direct-appeal process were
unsuccessful, as was his effort to challenge the jury verdicts through a collateral attack
launched in accordance with state procedures. He then filed a petition for a writ of habeas

1

The Michigan Supreme Court’s summary of the trial testimony suggests that Young told
Martin where to find the gun. In actuality, Martin’s testimony indicates that the unnamed person on
the phone directed Martin and Lawrence to the field where the gun was found.
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corpus with the federal district court, raising the same nine constitutional claims he put
before the Michigan Court of Appeals and the Michigan Supreme Court. The district court
found each allegation of error to be without merit and denied the petition. See Young v.
Trombley, No. 06-CV-10977, 2009 WL 909563 (E.D. Mich. Mar. 31, 2009). The court did,
however, grant Young a certificate of appealability on two of the nine issues as making “a
substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and we
agreed to review both issues.

DISCUSSION

When “reviewing a district court’s denial of a petition for a writ of habeas corpus, this
Court reviews findings of facts for clear error and questions of law de novo.” Stone v.
Moore, 644 F.3d 342, 345 (6th Cir. 2011) (citing (Haliym v. Mitchell, 492 F.3d 680, 689 (6th
Cir. 2007)). Because Young’s request for habeas relief is governed by the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L.No. 104-132, 110
Stat. 1214 (1996), see Lindh v. Murphy, 521 U.S. 320, 336 (1997), a federal court may not
grant the writ unless the state court adjudication on the merits either:

(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).
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As explained by the United States Supreme Court in Williams v. Taylor, 529 U.S.
362, 412-13 (2000):

Under the “contrary to” clause, a federal habeas court may grant the writ if the
state court arrives at a conclusion opposite to that reached by this Court on
a question of law or if the state court decides a case differently than this Court
has on a set of materially indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.

In deciding whether a state court ruling involved an “unreasonable application” of federal
law, we do not judge whether the state court decision was erroneous or incorrect. Rather,
a federal court may issue a writ of habeas corpus only if the state court’s application of
clearly-established federal law was objectively unreasonable. See id. at 409-11.

Lack of Jury Instruction on Evaluation of Accomplice Testimony

Young contends that he was denied due process of law by the trial court’s failure to
give a cautionary instruction to the jury regarding the unreliability of accomplice testimony.
He concedes that his trial counsel failed both to request such an instruction and to object
to the instructions that were given by the trial judge. In the face of the state’s claim that
such failures constitute a procedural default of the issue, the petitioner nevertheless argues
that not insisting upon the instruction amounted to ineffective assistance of counsel and that
such deficient representation by his lawyer excused his failure to comply with any state
contemporaneous-objection rule.
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Ordinarily, we would address the procedural-default issue at the outset of our
analysis. In Arias v. Hudson, 589 F.3d 315, 316 (6th Cir. 2009), however, we skipped the
procedural-default discussion and reviewed the petitioner’s claim on the merits because it
“present[ed] a more straightforward ground for decision.” In this case, consideration of
Young’s ineffective-assistance-of-counsel justification for his procedural default requires us
to determine whether trial counsel’s performance could be termed deficient because an
objection to the lack of an accomplice-testimony instruction would have been sustained had
it been raised in a timely manner. See Strickland v. Washington, 466 U.S. 668, 687 (1984)
(to establish ineffective assistance of counsel, petitioner must show both deficient
representation and prejudice therefrom). Because that inquiry necessitates delving into the
actual merits of the claim, it makes sense here, as it did in Arias, to consider those merits
in the first instance.

In support of his allegation that the trial court erred in failing to give, sua sponte, a
cautionary instruction on accomplice testimony, Young cites the case of People v. McCoy,
220 N.W.2d 456 (Mich. 1974), overruled in People v. Young, 693 N.W.2d 801 (Mich. 2005).
In McCoy, the Michigan Supreme Court was presented with a situation in which the
defendant offered an alibi defense that was countered by the prosecution’s presentation of
testimony by McCoy’s accomplice in crime. Recognizing the credibility dilemma facing the
finders-of-fact, the trial court in that case offered an instruction directing the jury to treat alibi
testimony with skepticism. As noted by the state supreme court, however, “[t]estimony of
the comparable witness on the prosecution’s side was not limited by any such cautionary
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instructions.” Id. at 459. Thus, although the state court recognized that “a general
instruction may[ ] conceivably substitute for a special cautionary instruction, it is error to give
only selective cautionary instructions.

Defendant has the right to have a balanced

presentation made to the jury.” Id. (emphasis added). The court then announced that, after
the release of the McCoy decision, “it will be deemed reversible error . . . to fail upon
request to give a cautionary instruction concerning accomplice testimony and, if the issue
is closely drawn, it may be reversible error to fail to give such a cautionary instruction even
in the absence of a request to charge.” Id. at 460.

There are myriad reasons why the holding in McCoy is not applicable to Young’s
situation so as to justify the grant of a writ of habeas corpus.

Perhaps the most

straightforward of them is simply that, even if Lawrence and Martin were to be considered
accomplices of Young – a characterization that we find extremely doubtful – neither the
United States Supreme Court nor this court has “requir[ed] accomplice instructions as a
general matter.” Scott v. Mitchell, 209 F.3d 854, 883 (6th Cir. 2000). Instead, the Supreme
Court has consistently held that the only question to be answered in a habeas challenge to
a jury instruction is “whether the ailing instruction [or the omission of a requested instruction]
by itself so infected the entire trial that the resulting conviction violates due process.” Cupp
v. Naughten, 414 U.S. 141, 147 (1973). Furthermore, that instruction, or the absence of an
instruction, “must be considered in the context of the instructions as a whole and the trial
record.” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (citing Cupp, 414 U.S. at 147).

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As a result, when presented in United States v. Carr, 5 F.3d 986, 992 (6th Cir. 1993),
with a challenge to a district court’s failure to instruct the jury specifically “regarding the
inherently questionable credibility of those witnesses who had earlier pled guilty to related
charges,” we noted:

The court’s instruction adequately informed the jury regarding the credibility
of witness testimony, and so we are not troubled simply because the court
chose not to explicitly highlight the credibility problems inhering in accomplice
testimony. The instructions alerted the jury to the various considerations that
it should take into account in weighing testimony, and it had an ample basis
for rejecting the testimony of the accomplice witnesses if it had chosen to do
so.

Similarly, in Goff v. Bagley, 601 F.3d 445 (6th Cir. 2010), another habeas petitioner
argued, as does Young, “that the trial court erred in failing to give a specific instruction to
the jury regarding the credibility of testimony by accomplices and informants and that . . .
counsel was ineffective for failing to raise this issue . . . .” Id. at 469. Relying upon Carr and
Scott, the Goff majority found that the instructions given in that case “adequately informed
the jury regarding the credibility of witness testimony” and “alerted the jury to the various
considerations that it should take into account in weighing testimony.” Id. at 470 (internal
quotation marks omitted). Those instructions, in pertinent part, provided:

You are the sole judges of the facts and the credibility of the witnesses and
the weight of the evidence. To weigh the evidence you must consider the
credibility of the witnesses. You will apply the tests of truthfulness which you
apply in your daily lives. These tests include the appearance of each witness
upon the stand, their manner of testifying, the reasonableness of their
testimony, the opportunity they had to see, hear, and know the things
concerning which they testified about, their accuracy of memory, their
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frankness or lack of it, their intelligence, their interest and bias, if any, together
with all the facts and circumstances surrounding their testimony. Applying
these tests you will assign to the testimony of each witness such weight as
you deem proper.
You are not required to believe the testimony of any witness simply because
he or she was under oath. You may believe or disbelieve all or any part of the
testimony of any witness. It is your province to determine what testimony is
worthy of belief and what testimony is not worthy of belief.

Id. at 470 (emphasis in original). Because those instructions thus satisfied the criteria set
out in Scott, we concluded that “the failure to give a specific accomplice instruction did not
violate Goff’s constitutional rights.” Id.

The jury instructions given at Young’s trial contained the same directives as did the
charge approved in Goff. Specifically, the trial judge informed Young’s jury, in part:

As I said before, it is your job to decide what the facts of this case are, and
you must decide which witnesses you believe, and how important you think
their testimony is. You don’t have to accept or reject everything a witness
said. You are free to believe all, none or a part of a person’s testimony.
In deciding which testimony you believe, you should rely on your own
common sense and everyday experience. However, in deciding whether you
believe a witness’ testimony, you must set aside any bias or prejudice you
may have based on race, gender or national origin of a witness.
There is no fixed set of rules for judging whether you believe a witness, but
it may help you to think about these questions:

Was the witness able to see or hear clearly?
How long was the witness watching or listening?
Was anything else going on that may have distracted the
witness?
Did the witness seem to have a good memory?
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How did the witness look and act while testifying?
Did the witness seem to be making an honest effort to tell you
the truth, or did the witness seem to evade the questions or
argue with the lawyers?
Does the witness’[s] age and maturity affect how you judge his
or her testimony?
Does the witness have any bias, prejudice or any personal
interest in how the case is decided?
Have there been any promises, threats, suggestions or other
influences that affect how the witness testified?
In general, does the witness have any special reason to tell the
truth, or any special reason to lie?
All in all, how reasonable does the witness’[s] testimony seem
when you think about all the other evidence in the case?
Sometimes the testimony of different witnesses will not agree, and you must
decide which testimony you accept.
You should think about whether the disagreement involves something
important or not, and whether you think someone is lying or simply mistaken.
People see and hear things differently, and witnesses may testify honestly but
simply be wrong about what they thought they saw or remembered.
It is also a good idea to think about what testimony agrees best with the other
evidence in the case.
However, you may conclude that a witness deliberately lied about something
that is important to how you decide the case. If so, you may choose not to
accept anything that witness said.
On the other hand, if you think the witness lied about some things but told the
truth about others, you may simply accept the part you think is true and ignore
the rest.

Because the totality of this “instruction both informs the jury regarding credibility and
alerts the jury to what is properly considered when determining credibility,” “the failure to
give a specific accomplice instruction [also] did not violate [Young’s] constitutional rights.”

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Goff, 601 F.3d at 470. Consequently, the Michigan state courts’ determinations consistent
with such a conclusion cannot be considered unreasonable.

Effect Upon Jury of Dismissal of Venire Member

Young also contends that his conviction resulted from a verdict rendered by a tainted
jury. Without dispute, the Sixth Amendment to the United States Constitution guarantees
a criminal defendant an impartial jury to rule upon the question of guilt or innocence. See
Duncan v. Louisiana, 391 U.S. 145, 147-49 (1968). “The question of whether a trial court
has seated a fair and impartial jury is a factual one, involving an assessment of credibility.”
Gall v. Parker, 231 F.3d 265, 308 (6th Cir. 2000) (citing Patton v. Yount, 467 U.S. 1025,
1038 (1984)), overruled on other grounds in Bowling v. Parker, 344 F.3d 487 (6th Cir.
2003). “On habeas review, this court inquires ‘whether there is fair support in the record for
the state courts’ conclusion that the jurors [ ] would be impartial.’” Id. (citations omitted).
In this case, the record contains such support for the conclusion that improper influences
did not taint Young’s jury and, therefore, that the state court determinations on this issue
were not unreasonable.

Following a day of voir dire, the trial judge swore in a jury that included Juror Number
1, “a social worker for Detroit public schools.” Like the others who were accepted by the
defense and the prosecution to serve on the jury, Juror Number 1 did not indicate to the
court that he had any connection with the defendant or with any of the witnesses scheduled

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to appear at trial. On the second day of actual testimony, however, witness Ronald Mathis
told the jury that one of the murder victims was his friend, Marquees Conley, known to him
as “Crip” “[b]ecause [Conley] was handicapped, crippled.” During the first recess that
followed Mathis’s testimony, the trial judge announced, “[W]e have received a note from one
of the jurors, juror in seat no. 1, who states that he believes he knows one of the victims,
Conley.” The juror was then brought into open court and questioned by the trial judge and
by the attorneys. According to the juror, when the list of possible witnesses was originally
read during voir dire, Conley’s name “just was a name at that point. It was a name.”
However, when Mathis further identified Conley as being “handicapped, crippled,” the juror
realized that Conley could well be a former student he had counseled seven years earlier.
Even though Juror Number 1 had seen Conley during those counseling sessions for 30
minutes a day at least once a week, he was adamant that his prior interactions with Conley
would not interfere with his “ability to be fair and unbiased in judging [the] case.” Juror
Number 1 also related that other jurors had seen him writing a note to the court and had
asked him about it. He “told them [he] thought [he] knew one of the victims,” but discussed
nothing further about the matter with any juror.

At the conclusion of the questioning, the trial judge sent Juror Number 1 back into
the jury room with the directive not to discuss with the other jurors “any personal things
about that, anything that you learned outside of this courtroom.” However, believing “that
the process ha[d] been tainted” by the juror’s relationship with the victim, defense counsel
nevertheless moved for a mistrial. The trial judge denied that motion, but acceded to the
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prosecution’s suggestion that Juror Number 1 be dismissed and that the rest of the jury be
questioned “to find out what taint the jury has had.”

Over defense counsel’s renewed motion for a mistrial due to a belief that the jury was
irreparably tainted, the trial judge engaged in the following questioning of the remaining 13
jurors:

All right. Members of the jury, at this point as you can see an additional juror
has been excused, and I am going to ask you a couple questions about that.
Is there anyone on this panel who feels that this has changed their ability to
be fair and impartial in any way? All right.
There are certain things that the court has previously instructed you on, and
one of them is that you must not let sympathy or bias affect your judgment of
the case in any way.
Is there anyone who feels that they have heard any more information than
was given to you during this trial about this case? All right.
***
Members of the jury, information has been given to you that you may have
heard that juror in seat no. 1 may know one of the people involved in the
case. Is there anyone on this panel who heard anything more than that?
Anything else, whatsoever? Please raise your hand if there is anything else
you heard.
Is there anyone who heard anything more specific than that?
Thinking about it yourselves, individually, is there anyone on the panel that
may be affected by that in any way?
Is there anyone who doesn’t have total confidence in their ability to be fair and
impartial in judging the facts of this case? Thank you.

At the conclusion of the questioning, the trial court noted that Juror Number 1 had
been dismissed and that, “by all indications[,] there has been no prejudice of the rest of the

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panel.” “A trial judge’s finding on the impartiality of a juror or jury is a factual finding,
presumed correct under § 2254 review unless [the petitioner] proves otherwise by
convincing evidence.” Gall, 231 F.3d at 334 (citations omitted). Because the record
contains no evidence or other indication that any member of the jury was influenced by the
fact that a dismissed juror might have previously known one of the victims, the district court
appropriately denied habeas relief on this ground as well.

CONCLUSION

The Michigan state courts determined that Young was not prejudiced either by the
failure of the trial court to offer a cautionary instruction regarding accomplice testimony or
by the dismissal of a juror who claimed that he might have known one of the murder victims
seven years prior to trial. Those conclusions were neither unreasonable applications of law
nor unreasonable determinations of facts. As a result, we AFFIRM the judgment of the
district court denying habeas relief to the petitioner.

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