Dameko Vesey v. Greg McQuiggin

Filing

OPINION filed : AFFIRMED, decision not for publication. Alice M. Batchelder, Damon J. Keith (AUTHORING), and Jane Branstetter Stranch, Circuit Judges. [13-1262, 13-1273]

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0792n.06
Nos. 13-1262/1273
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DENNIS VESEY,
Petitioners-Appellant,
v.
GREG MCQUIGGIN,
Respondent-Appellee,
AND
DAMEKO VESEY,
Petitioner-Appellant,
v.
DEBRA SCUTT,
Respondent-Appellee.

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FILED
Oct 20, 2014
DEBORAH S. HUNT, Clerk

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

OPINION

BEFORE: KEITH, BATCHELDER, and STRANCH, Circuit Judges.
DAMON J. KEITH, Circuit Judge. In this habeas appeal, Petitioners Dameko Dwayne
Vesey and Dennis Wayne Vesey challenge their convictions of first-degree felony murder,
conspiracy to commit armed robbery, and conspiracy to commit first-degree home invasion. The
sole issue on appeal is whether the state court denied Petitioners their constitutional right to
present a complete defense in excluding evidence tending to establish third-party guilt. The

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district court denied Petitioners’ writ of habeas corpus. Because we cannot conclude that any
errors in the state court ruling rise to the level required by 28 U.S.C. § 2254, we AFFIRM.
I.
On April 5, 2003, at the Harris Park Apartments located on South Harris Road in
Ypsilanti, Michigan, Taurus Hill, his girlfriend Tayquelea Roberson, and their infant son, Taurus
Hill, Jr., were murdered. Hill and Roberson were shot to death; a wounded Hill fell on top of
Hill Jr., suffocating him to death.
Petitioners Dameko and Dennis Vesey were charged with the murders and tried jointly.
Petitioners’ cousin, Michael McGaha, was a co-defendant but was acquitted on all counts by a
separate jury. Both Petitioners were found guilty of three counts of first-degree felony murder,
conspiracy to commit armed robbery, and conspiracy to commit first-degree home invasion.
Dennis Vesey was also found guilty of felon in possession of a firearm and felony firearm.
Dennis Vesey was sentenced to mandatory life without parole on each of the first-degree murder
convictions, 20 to 30 years for conspiracy to commit armed robbery and conspiracy to commit
home invasion, 40 to 90 months for felon in possession of a firearm and two years for felony
firearm. Dameko Vesey was sentenced to life in prison without parole on each of the felony
murder convictions, 15 to 30 years imprisonment on the conspiracy to commit armed robbery
conviction and 13 to 20 years on the conspiracy to commit first-degree home invasion
conviction. The following facts underlie these convictions.
Tyranique Hill
Three other minor children were in the home at the time of the murders: Hill’s daughter,
nine-year-old Tyranique Hill; Roberson’s daughter, Dakaisia Roberson; and Roberson’s niece,
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Jasmine Harris. Tyranique testified during trial that, on the night of the murders, she, Dakaisia,
and Jasmine were in the living room watching television when a man, whom she had never seen
before, came to visit her father. The man had a conversation with Hill at the kitchen table.
Shortly after the first man left, an unidentified man knocked on the door. Some period of
time thereafter, there was a third knock on the door. Hill looked out the window, indicated that
he knew one of the visitors, and opened the door. Per Tyranique, two males entered the
apartment; one was standing by the door and the other was fighting with Hill. Tyranique
testified that the man fighting with Hill was wearing a mask. The three children fled the living
room into bedrooms. From the bedroom, Tyranique heard multiple gunshots. She then peered
into the other room and witnessed one of the assailants—described as the “skinny one”—
pointing a gun at Roberson.
Tyranique testified that after hearing the gunshots she heard footsteps walking towards
the room in which Roberson and Hill, Jr. were located. She heard Roberson “swearing to God
on her life . . . [t]hat there wasn’t any money.” Tyranique stated that she recognized one of the
voices in the room in which Roberson was present as belonging to the first man who visited her
father that night. She then heard a gunshot from the same room. Sequentially, Tyranique heard
footsteps move towards the kitchen, running water, and then the door close. After the men left,
Tyranique, Dakaisia and Jasmine fled the apartment. Tyranique told a detective at the police
station that morning that she saw two cars—one described as white and “long like her dad’s car”
and the second, “cute, a nice car,” playing loud rap music—leave the adjacent trailer park and
come into her parking lot.

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A year after the murders, Tyranique, when presented a photo array, identified Dameko
Vesey as the first man who came to the door that night and sat at the kitchen table with her
father. At trial, Tyranique identified co-defendant Michael McGaha as the man who sat with
Hill at the table. When interviewed by police, Dakaisia and Jasmine provided similar details
about the entry of the masked men.
Nerissa Pittman
The state called Nerissa Pittman as its primary witness in the case.

Pittman was

originally charged as an accomplice, and eventually pleaded guilty to second-degree murder and
agreed to testify against the defendants. Pittman also lived in the Harris Park Apartments in
April, 2003. Pittman testified that she knew Hill: twice, she engaged in sexual relations with him
at a hotel. During one such encounter, Hill told Pittman to count some of his money for him,
which she did.

Pittman testified that she then told Darius Frazier, another neighbor, that

“someone has some money and they don’t know what to do with it.” She averred that she did
not say Hill’s name nor could she remember if she indicated to Frazier that it was Hill to whom
she was referring.
A few days later, Pittman, Frazier, and Dennis Vesey congregated in Frazier’s mother’s
apartment, where Pittman observed guns in Frazier’s bedroom. Pittman testified that she saw
Frazier hand two guns to Dennis Vesey, Frazier’s cousin. Dennis Vesey then left the apartment
with the firearms. Pittman later saw Dennis Vesey in a champagne-colored SUV.
Pittman testified that, on the night of April 4, 2003, she called Dennis Vesey to secure
marijuana. After arranging the transaction, she went to Dennis Vesey’s SUV, which she again
described as champagne-colored. Pittman testified that Dameko Vesey and McGaha were in the
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car with Dennis Vesey. Dennis asked Pittman to knock on Roberson and Hill’s door for him,
while Dennis Vesey and McGaha waited nearby with firearms. Pittman stated that when she
knocked on the door, Hill answered and the Veseys and McGaha rushed the door, gaining access
to the apartment.
Pittman ventured to the back of the apartment where she retrieved an unidentified amount
of ecstasy.

While inside, she witnessed McGaha pointing a gun at Roberson; Roberson

responded that “this is all we have.” Pittman then testified that she heard two gunshots from the
front room and saw Hill lying on the floor. After she left the apartment, she heard two more
gunshots.
Pittman testified that the Veseys and McGaha were not wearing masks the night of the
murders. Officers interviewed Pittman twice after the murders and she lied to them both times
because she was “afraid of telling the truth at that time” and “didn’t want to have nothing to do
with it.” Pittman also lied to the prosecutor when first questioned incident to a subpoena.
Pittman recanted after she was incarcerated.
Joyce Jordan
Joyce Jordan, also a resident at the apartment complex, testified that on the evening of
April 4, 2003, she saw Hill, Roberson, and Dennis Vesey, whom she also knows as “Juan,”
arguing outside her window. Joyce observed Dennis Vesey go to his truck, which she described
as a silver Envoy or Yukon, reach under the seat, and grab a firearm. Joyce testified that she saw
one or two other passengers in the SUV, one of whom she believed to be Dameko Vesey. At this
point, Dennis, Dameko, and another passenger stood for a minute until Pittman walked past.
Pittman proceeded toward the back of the building; the Veseys followed her. Joyce testified that
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minutes after she lost sight of the men, she heard a gunshot. She then saw the silver SUV and a
brownish-colored car with a light tan stripe pull out of the parking lot.
Joyce testified that she had taken four shots of tequila that night. Joyce did not call 911
because it was “none of my business. I live there I didn’t care.” Joyce also admitted that when
the police officers first contacted her, she lied because she “wanted nothing to do” with the case.
On cross examination at trial, Joyce stated “I still haven’t said a lot of things that I know. It’s
none of your business.”1
Joyce said she did not remember being shown a photo array that next morning. Joyce
testified that Detective Ralph did show her pictures when she arrived at the station on the
evening of April 6, 2003. Detective Ralph testified that Joyce identified the photographs of three
men as those she saw outside her apartment: Swanson, Byers, and Ricardo Pickens aka “Duan
Mason.” As for her identification of the Veseys, at trial, Joyce was shown a transcript of her
testimony from the preliminary examination, which reflected that she testified that she picked out
“Juan’s” photograph the morning of the shooting. Joyce admitted that, to her recollection, she
never picked out Dameko Vesey in any of the photos or gave a physical description of the
passenger who was with “Juan.”
Tanet Jordan
Tanet Jordan, Joyce’s daughter and also a resident of the apartment complex, testified
that on the night of April 4, 2003, she heard Pittman and multiple unidentified men arguing in
the apartment complex. She then observed Dennis Vesey—whom she knows as “Juan”—drive
1

Joyce also had a phone call with the prosecutor during which she stated, “you guys don’t know the half of
it. You think you got everyone that was there but you don’t. You got what you want. You got Nerissa. You got
them other guys but you didn’t get them all.” At trial, Joyce maintained that she has “always said that.” Per Joyce,
there were other people around the night of the incident but she did not know if they were involved or not.
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his tan or silver SUV into the complex and congregate with various people. Dennis Vesey began
arguing with Hill, although Tanet stated that she could not hear the contents of the exchange.
She then observed Hill return to his own apartment. Thereafter, she witnessed Dennis Vesey and
Pittman conversing near the back of the building. Ten minutes later, Tanet heard gunshots, at
which point she observed Pittman flee the scene into a separate apartment.
During the investigation, Tanet was also called to a photo array, where she identified
photos of Antone Swanson and Tomicko Byers as present at the scene just prior to the shooting.
Tanet testified that she could not remember if “Juan’s” photograph was amongst those provided
in the photo array. She also stated that while she did tell one of the detectives that she saw two
men run past her window that night, she did not know the identity of those individuals.
At trial, Tanet also testified that, earlier that night, she saw a man by the name of Maurice
Robinson2 talking to “Juan” near the time of the shooting. She had plans to meet Robinson for
breakfast that morning, but he called her at 6:00 a.m., before the police arrived, to cancel.
However, the rest of Tanet’s proposed testimony regarding Robinson was excluded. According
to Tanet, during this phone call, Robinson indicated to her that he had knowledge of the crimes
and that he spent the night riding around with “Juan.” Robinson denied making the statement
out of the presence of the jury and denied even knowing Tanet.

Because of the denial,

Petitioners’ counsel requested that Tanet be allowed to testify to the alleged statements from
Robinson for impeachment purposes. The trial court denied this request, concluding that Tanet’s
testimony would be inadmissible hearsay. The district court denied habeas relief as to this
2

Petitioner disputes whether the proper Maurice Robinson was secured at trial. Petitioner’s concern, raised
in the context of an ineffective-assistance-of-counsel claim, was denied on direct appeal and on federal habeas
review. This issue was not certified for appeal to this Court.
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evidence on the basis that Robinson’s statement “did not exculpate Petitioner [Dameko Vesey]
or the other defendants, did not necessarily inculpate Robinson in the murders, and potentially
inculpated Dennis Vesey given the trial testimony that he was also known as ‘Juan.’”
Tiffany Juneau
Other excluded testimony comes from Tiffany Juneau. On April 15, 2003, Juneau spoke
to Antone Swanson while they were both in the Washtenaw County Jail. Per Juneau, Swanson
told her that he chauffeured the murderers to the scene and back, although he refused to provide
names.

Juneau then relayed this information to Washtenaw County detectives in a letter.

Petitioners contended that the third-party culpability exception for hearsay applied to the
statements allegedly made by Swanson to Juneau. The trial court arranged for Juneau to be
transported from Louisiana to Michigan to testify as to the contents of her letter. Swanson was
brought to court and testified outside of the presence of the jury; he denied both making the
statement to Juneau or even knowing Juneau.
The defense contended that the statements should be admitted “because the defense is
third party culpability and the inference the jury could draw is that others had the motive and
opportunity and, in fact, even made admissions to involvement. And, therefore, makes the
defense theory more likely true. It becomes . . . an issue of simple relevance.” The trial court
rejected this argument, concluding that Juneau’s proposed testimony was inadmissible hearsay.
The Michigan Court of Appeals affirmed the exclusion of this testimony, concluding that as the
statement was made to a jail inmate and it did not involve a statement to police, it did not serve
to inculpate Swanson or exculpate defendants. Per the court, “[t]he vague statement does not, in
any manner, exculpate defendants as it neither confirms nor denies their involvement in the
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crimes. Further, there is no corroboration regarding the existence or content of the alleged
statement to Juneau given Swanson’s absolute denial that it occurred.” People v. Vesey, 266617,
2008 WL 723918 at *8 (Mich. Ct. App. Mar. 18, 2008). The district court also denied habeas
relief as to Juneau’s testimony, concluding that the Michigan Court of Appeals’ decision was
neither contrary to Supreme Court precedent nor an unreasonable application thereof.
II.
We review the District Court’s decision to deny the writ of habeas corpus de novo.
Ruimveld v. Burkett, 404 F.3d 1006, 1010 (6th Cir. 2005). Because Petitioners appeal from a
state court proceeding, their petitions are subject to the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) and the “Supreme Court opinions interpreting it.” Jones v.
Bagley, 696 F.3d 475, 482 (6th Cir. 2012). The AEDPA standard is “highly deferential.” Cullen
v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
The deferential standard is formidable. Under the AEDPA, we may not grant a habeas
petition unless the last reasoned state court decision “(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); O’Neal v. Bagley, 743 F.3d 1010, 1020 (6th Cir. 2013).
A state court decision is contrary to clearly established federal law if the state court
applies a rule that contradicts the governing law set forth by the United States Supreme Court.
Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision will also be contrary to
clearly established federal law if the state court confronts a set of facts that are materially
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indistinguishable from a decision of the United States Supreme Court and nevertheless arrives at
a result different from that decision. Id. at 406. Such a decision unreasonably applies federal
law if the state court identifies the correct governing legal principle from the Supreme Court’s
decisions but unreasonably applies that principle to the facts. Id. at 407-08. A federal court
making the “unreasonable application” inquiry should ask whether the state court’s application
of clearly established federal law was “objectively unreasonable.” Id. at 409. To obtain relief,
“a habeas petitioner must show that the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Jones,
696 F.3d at 483 (internal quotations and citations omitted).
III.
Petitioners claim that the decision of the trial court to exclude third-party culpability
evidence from Tiffany Juneau (testifying as to Antone Swanson’s statements) and Tanet Jordan
(testifying as to Maurice Robinson’s statements) deprived them of their constitutional right to
present a complete defense. According to Petitioners, the decision of the Michigan Court of
Appeals to affirm the exclusion of the evidence on hearsay grounds and as bereft of reliability
was an unreasonable application of, and was contrary to, clearly established federal law. We
disagree.
The right to present a meaningful and complete criminal defense is a well-established and
fundamental element of due process. See Holmes v. South Carolina, 547 U.S. 319, 324 (2006);
Chambers v. Mississippi, 410 U.S. 284, 302 (1973); Washington v. Texas, 388 U.S. 14, 19-20
(1967). Of course, this right is not absolute. In presenting a defense, the defendant “must
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comply with established rules of procedure and evidence designed to assure both fairness and
reliability.” Chambers, 410 U.S. at 302. Generally, the defendant may not offer testimony that is
“otherwise inadmissible under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 410
(1988).

Nevertheless, and, as relevant here, the Supreme Court has held that “where

constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule
may not be applied mechanistically to defeat the ends of justice.” Chambers, 410 U.S. at 302.
A defendant may circumvent a state hearsay rule when certain necessary predicate
circumstances—such as those articulated in Chambers—are present. The Court held that where
the contested testimony was “critical” to the defense, where the testimony “bore persuasive
assurance of trustworthiness,” and where the testimony directly affected the ascertainment of the
defendant’s guilt, an exception must be made. Id.
As to Juneau’s testimony regarding Swanson’s statements, the Michigan Court of
Appeals held that Chambers did not require admission of the testimony it considered to be
hearsay because it was not inculpatory to Swanson or exculpatory to the Petitioners and because
the testimony was not corroborated. Petitioners are correct in asserting that Swanson’s statement
was inculpatory, as least insofar as it constituted an admission to aiding and abetting the
murders. See, e.g., People v. Davenport, 332 N.W.2d 443, 445 (Mich. App. Ct. 1982) (driver of
car liable as aider and abettor). The statement was also inconsistent with the prosecution theory
that Dennis Vesey drove the Petitioners to the scene of the crime, and it arguably had some
support from Joyce and Tanet Jordan who identified Swanson as being at the scene. However,
the evidence was not exculpatory toward Petitioners, or corroborated, to the same degree as the
evidence in Chambers. In Chambers, a third party provided a written confession for murder,
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fully exculpating the defendant. 410 U.S. at 297, 300-01. Additionally, the testimony regarding
Swanson did not contain the same degree of reliability as the admitted statements in Chambers.
There, in addition to making an inculpatory statement, the third party made three other
independent admissions that he committed the murder before eventually recanting.
Chambers, 410 U.S. at 300-02.

See

The state court’s holding that Chambers did not compel

inclusion of this testimony was not an unreasonable application of Supreme Court precedent.
As to Maurice Robinson’s purported statement that he spent the night driving around
with “Juan” and his knowledge of the crimes, the Michigan Court of Appeals used similar
reasoning.

Here, too, the testimony did not bear such assurances of trustworthiness that

exclusion of it was unreasonable under Chambers. Additionally, it is not clear that this evidence
would have been exculpatory because other testimony indicated that Dennis Vesey was also
known by the name “Juan.” Thus, although Petitioners otherwise presented a possibility for
third-party guilt, the state court’s decision was not contrary to or an unreasonable application of
federal law. Accordingly, we AFFIRM.

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