Susie Conner v. Millicent Warren

Filing

Per Curiam OPINION filed : the district court's judgment is AFFIRMED, decision not for publication pursuant to local rule 206. Damon J. Keith, Boyce F. Martin , Jr. and John M. Rogers, Circuit Judges.

Case: 10-1542

Document: 006111463380

Filed: 10/12/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1070n.06
No. 10-1542
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SUSIE CONNER,
Petitioner-Appellant,
v.
MILLICENT WARREN, Warden,
Respondent-Appellee.

)
)
)
)
)
)
)
)
)
)

FILED
Oct 12, 2012
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN

BEFORE: KEITH, MARTIN, and ROGERS, Circuit Judges.

PER CURIAM. Susie Conner appeals a district court judgment denying her petition for a
writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
A jury found Conner guilty of first-degree premeditated murder, felony murder, and
kidnapping. The trial court merged the murder convictions, vacated the kidnapping conviction, and
sentenced Conner to life in prison without parole. The Michigan Court of Appeals affirmed the trial
court’s judgment, People v. Conner, No. 253179, 2005 WL 562806 (Mich. Ct. App. Mar. 10, 2005),
and the Michigan Supreme Court denied Conner leave to appeal. People v. Conner, 706 N.W.2d
18 (Mich. 2005) (table).
Conner filed a section 2254 petition with the district court arguing: 1) that the trial court
violated her confrontation rights by admitting into evidence the hearsay statements of her former
husband, a non-testifying co-defendant; 2) that the trial court violated her rights by allowing an

Case: 10-1542

Document: 006111463380

Filed: 10/12/2012

Page: 2

No. 10-1542
Conner v. Warren
expert witness to testify concerning the element of premeditation; and 3) that the trial court violated
her rights by allowing the prosecutor to introduce into evidence the results of forensic testing
conducted after the trial commenced. The district court denied the petition, but granted a certificate
of appealability for Conner’s claim that her confrontation rights were violated. We expanded the
certificate of appealability to include Conner’s remaining claims.
The district court’s judgment is reviewed de novo. Tolliver v. Sheets, 594 F.3d 900, 915 (6th
Cir. 2010).
Conner argues that the trial court violated her confrontation rights by allowing her son,
Bruce, to testify concerning statements made to him by Conner’s former husband, Tim, a nontestifying co-defendant, that implicated Conner in the crimes. Tim made the statements to Bruce
shortly after the victim was killed and later when, unbeknownst to Tim, Bruce was wearing a
recording device at the request of police.
The Confrontation Clause prohibits the admission of testimonial statements of a witness who
did not testify at trial unless he was unavailable to testify and the defendant had a prior opportunity
for cross-examination. Davis v. Washington, 547 U.S. 813, 821 (2006). The Confrontation Clause
does not apply, however, to non-testimonial statements. Whorton v. Bockting, 549 U.S. 406, 420
(2007). Because the statements at issue were made by Tim to Bruce, and Tim was unaware that
Bruce was acting in concert with law enforcement, Tim’s statements were not testimonial, and their
admission did not violate the Confrontation Clause. See United States v. Boyd, 640 F.3d 657, 665
(6th Cir.), cert. denied, 132 S. Ct. 271 (2011); United States v. Johnson, 581 F.3d 320, 325 (6th Cir.
2009).
-2-

Case: 10-1542

Document: 006111463380

Filed: 10/12/2012

Page: 3

No. 10-1542
Conner v. Warren
Conner also argues that the trial court violated her rights by permitting a forensic pathologist,
who conducted an autopsy on the victim, to testify concerning the element of premeditation.
Specifically, in response to questions from the prosecutor, the pathologist testified that, if the victim
was intentionally drowned, the perpetrator would have had time to think about his or her decision,
to weigh the pros and cons of the decision, and to reflect on and rethink the decision. This claim is
procedurally defaulted because Conner did not object to the testimony at trial, and the Michigan
Court of Appeals reviewed the claim for plain error. See Taylor v. McKee, 649 F.3d 446, 450–51
(6th Cir. 2011); Conner, 2005 WL 562806, at *2–3. Further, Conner has not demonstrated cause
and prejudice, or a miscarriage of justice, to excuse the procedural default. See Taylor, 649 F.3d at
451.
Finally, Conner argues that the trial court violated her rights by admitting into evidence the
results of laboratory testing, conducted after the trial commenced, that concluded there was adhesive
residue on the victim’s jacket. “A state court’s evidentiary ruling is generally not cognizable in
federal habeas corpus, unless the decision was so fundamentally unfair that it amounts to a due
process violation.” Henness v. Bagley, 644 F.3d 308, 326 (6th Cir. 2011), cert. denied, 132 S. Ct.
1970 (2012). The trial court’s admission of the lab test results did not render Conner’s trial
fundamentally unfair. Conner had the opportunity to conduct independent testing on the jacket at
the state’s expense and the test results were cumulative.
The district court’s judgment is affirmed.

-3-