Phillip Brown v Carol Howes
Filing
109
OPINION and ORDER DENYING re 1 Petition for Writ of Habeas Corpus, GRANTING IN PART CERTIFICATE OF APPEALABILITY & GRANTING PERMISSION TO PROCEED ON APPEAL IN FORMA PAUPERIS. Signed by District Judge Patrick J. Duggan. (MOre)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PHILLIP BROWN,
Petitioner,
Case Number 09-CV-14850
Honorable Patrick J. Duggan
DAVID BERGH,
Respondent.
________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS
CORPUS, GRANTING IN PART AND DENYING IN PART A CERTIFICATE OF
APPEALABILITY, AND GRANTING PERMISSION TO PROCEED ON APPEAL IN
FORMA PAUPERIS
This matter is before the Court on Petitioner Philip Brown’s petition for a writ of habeas
corpus filed under 28 U.S.C. § 2254. On February 10, 2003, following a jury trial in Oakland
County Circuit Court, Petitioner was convicted of first-degree premeditated murder for the death of
Randy Pardy, and felonious assault. Petitioner was sentenced to life in prison for the murder
conviction and 23-to-48 months for the assault conviction.
The petition, along with Petitioner’s numerous supplemental pleadings, raise the following
claims:
I. The court violated Petitioner’s confrontation rights by excluding evidence of three
pending felony charges against the state’s key witness that the jury could have used
to infer bias and motive to fabricate or slant his testimony.
II. The trial court denied Petitioner’s right to be present at a critical stage of trial
when the court offered new unsupported evidence to the deliberating jury during
supplemental instructions.
III. The trial court erred by giving the deliberating jury new unsupported evidence
in the form of a “testimonial statement,” thereby becoming an unsworn witness
against Petitioner and denying him the right to confrontation in his absence.
IV. Petitioner was denied an impartial judge when the trial court gave the
deliberating jury new unsupported evidence not admitted during trial.
V. The trial court violated due process and a fair trial by instructing the jury with a
conclusive mandatory presumption of fact on a contested issue, directing a verdict
on a disputed element.
VI. The trial court violated Petitioner’s right to counsel at a critical stage, where
counsel failed to contest the state’s evidence and waived Petitioner’s right to be
present during the supplemental jury instruction.
VII. Petitioner’s incriminating statement to police should have suppressed because
they were obtained in violation of the right to counsel and without Miranda
warnings.
VIII. The prosecutor engaged in repeated and deliberate acts of misconduct
throughout trial including the presentation of false evidence.
IX. The trial court violated Petitioner’s right to present a defense when it arbitrarily,
mechanically, and disproportionately excluded a relevant and material defense
witness.
X. The trial court lacked jurisdiction to try Petitioner’s case.
XI. Petitioner was not arraigned upon the Criminal Information as required by state
and federal law.
XII. Trial counsel was constitutionally ineffective for failing to object to numerous
instances of prosecutorial misconduct.
XIII. The Michigan Supreme Court’s last reasoned judgment relying upon Michigan
Court Rule 6.502(G) is not applicable under the facts to foreclose federal habeas
review of the claims presented in Petitioner’s first motion for relief from judgment.
XIV. Appellate counsel was ineffective on direct appeal for failing to raise
meritorious claims.
XV. The trial court violated Petitioner’s right to a public trial by conducting a sidebar conference regarding jury instructions outside the presence of Petitioner, the jury,
or the public.
XVI. The trial court erred in instructing the jury on the defenses of self-defense and
imperfect self-defense.
XVII. Petitioner’s confrontation rights were violated by the use of “surrogate”
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testimony by sending a note to the jury indicating that there were no fingerprints
found on the knife.
The Court finds that all of Petitioner’s claims are without merit. Therefore, the petition will
be denied. The Court will, however, grant Petitioner a certificate of appealability with respect to
Claims I, II, III, IV, V, VI, XV, and XVII, but deny a certificate of appealability with respect to his
remaining claims. The Court will also grant Petitioner permission to proceed on appeal in forma
pauperis.
I. Facts and Procedural History
At trial, the evidence indicated that Brian Weigold lived in an apartment at Petitioner’s
house. Weigold worked with Randy Pardy on Pardy’s property repairing a semi-truck.
On April 3, 2002, Pardy’s wife called Randy at Petitioner’s house. Pardy was visiting
Weigold about their work and said he was just leaving. He did not sound upset and did not mention
Petitioner.
A short time later, Weigold called Pardy’s wife and told her there had been an accident. He
did not know if Randy was alright. Pardy’s wife and father arrived at Petitioner’s house and
discovered that Pardy was dead.
Oakland County Sheriff Deputy Sarah Myers arrived at the residence at 6:15 p.m., less than
a minute after she was dispatched. Oxford Police Officer Thaddeus Lambris also arrived at the
scene. Weigold approached the officers, told them that someone had been stabbed, and led them to
a bathroom. The officers found that a bathroom door had been broken open, and inside they found
Randy Pardy lying on the floor. Myers saw a broken-off arrow sticking out of Pardy’s chest. His
clothes were saturated with blood. Pardy was moved to the living room where medical technicians
tried to revive him. The attempts failed, and he was pronounced dead at the scene.
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Blood smears were found throughout the kitchen and bathroom. A bow, a trigger release,
and an arrow were found on the property outside. According to Oakland County Crime Laboratory
specialist Robert Charlton, the pattern of blood drops on the kitchen floor and refrigerator indicted
that the victim was moving backward while he was bleeding. Charlton saw two wounds on the right
side of Pardy’s body, an arrow wound and a stab-type wound. A bloody serrated hunting knife was
found in a trash can in the bathroom. Bloody boot prints made by Pardy’s boots were found on the
bathroom floor and on the inside of the bathroom door.
Weigold testified at trial that he had lived in a pole barn at Pardy’s property, but moved to
an apartment in Petitioner’s house. He identified the bow, trigger release, and arrows as belonging
to Petitioner. Weigold was working on a semi-truck located on Pardy’s property. Petitioner was
unhappy with the payment arrangement between Pardy and Weigold for the work.
On the day of the incident, Pardy came into Petitioner’s house without knocking, as he had
done on previous occassions. As Pardy walked with Weigold towards Weigold’s room, Petitioner
said, “Why don’t you learn to knock like a normal fucking person.” Pardy responded, “Lick my
nuts.” Petitioner slammed his bedroom door shut.
Pardy and Weigold talked briefly in Weigold’s room. According to Weigold, Pardy was
unarmed. Pardy then talked to his wife on his cell phone, telling her that he was leaving. Within
seconds of Pardy leaving the bedroom,Weigold heard him yell, “Oh my God, I’ve been shot.” Pardy
had been walking towards the living room and not towards Petitioner’s bedroom.
Weigold did not hear any altercation before Pardy yelled. Weigold saw Pardy leaning
against the doorway to the kitchen, with an arrow sticking out of his arm. He saw Petitioner was
wearing the bow’s trigger release on his wrist, and then he saw Petitioner run at Pardy and jab at
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him. Pardy ran into the bathroom. Weigold stopped Petitioner and said, “What the fuck are you
doing?” Petitioner then swung a knife at Weigold. Weigold let go of Petitioner, ran out of the house,
and called 9-1-1. Weigold saw Petitioner emerge from the house and throw the bow over a fence.
Petitioner got into a car, and as he drove past Weigold he said, “Keep your fucking mouth shut.”
Weigold ran back into the house and found Pardy lying in the bathroom. Pardy said he had been
stabbed.
Petitioner was arrested in Georgia three days later.
The medical examiner testified that the arrow had penetrated Pardy’s right arm and went
through to his chest. Pardy had also suffered a stab wound on the left side of his abdomen, and
another stab wound to the center of his chest. This second stab wound went between Pardy’s ribs
and into his heart.
Stephen Akers testified for the defense that he had lunch with Petitioner on the day of the
incident. Petitioner’s demeanor was normal. Akers admitted on cross examination that Petitioner
talked about being followed and monitored by the government.
Petitioner testified in his own defense. He said that when Pardy arrived at the house, he
insulted Petitioner and pushed him into a chair, and Weigold laughed. After a verbal altercation in
the living room, Petitioner testified that Pardy grabbed a knife off of a bookcase. Petitioner ran into
the utility room and grabbed his bow. As Pardy approached with the knife, Petitioner shot him and
the knife dropped to the floor. Pardy tried to reach for the knife, but Petitioner beat him to it and
stabbed him in the chest. As Pardy started to fall backward, Petitioner swung again and hit Pardy
in the side. Weigold then grabbed Petitioner and yelled something at him. Petitioner then went to
the bathroom and kicked the door open. Pardy was lying on the floor. Petitioner tried to pull the
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arrow out of Pardy, but it broke. Petitioner then panicked, threw the bow over a fence, and drove
away.
After deliberations, the jury found Petitioner guilty as charged. He was subsequently
sentenced as indicated above.
The procedural history of Petitioner’s pursuit of appellate relief is quite complex. In
summary, though, Petitioner filed an appeal of right in the Michigan Court of Appeals raising six
claims:
I. The trial court erred in excluding evidence that the state’s key witness had a
pending criminal case in which he was facing a significant prison sentence where the
existence of that case was relevant to the witness’ credibility.
II. The trial court erred in permitting an Oakland County Sheriff’s Deputy to testify
as an expert witness.
III. The trial court erred in precluding Defendant from presenting a complete defense
where the court prohibited Defendant from offering a witness that would have
impeached the prosecution’s key witness.
IV. Defendant was denied his rights to due process and a fair trial as a result of the
prosecutor’s misconduct.
V. The trial court erred in permitting testimony that Defendant had admitted to
previous acts of violence, where that statement was made to law enforcement after
Defendant had obtained counsel.
VI. The trial court erred when, in answering a jury question, the court offered
substantive evidence that was not introduced at trial.
On August 19, 2004, the court affirmed Petitioner’s conviction and sentence. People v.
Brown, No. 247313, 2004 WL 1857995 (Mich. Ct. App. Aug. 19, 2004). Petitioner filed an
application for leave to appeal in the Michigan Supreme Court, raising the same claims, but the
Court denied his application on June 28, 2005. People v. Brown, 472 Mich. 937 (2005) (table).
On June 12, 2006, Petitioner filed a motion for relief from judgment in the state trial court
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in which he raised six additional claims:
I. The trial court violated Brown’s rights by excluding him from a critical stage,
without adequate or proper waiver, and that the trial court lost jurisdiction by
Brown’s absence during trial.
II. The trial court violated Brown’s right to an impartial jury and his right
confrontation when it instructed the jury with substantive material evidence not
admitted during trial, during jury deliberations.
III. Trial counsel erred when he waived Brown’s right to be present and failed to
object to a material statement offered for the first time to the deliberating jury.
IV. The prosecutor engaged in misconduct in submitting material to the jury not
supported by evidence.
V. Ineffective assistance of counsel on direct appeal constitutes for failure to raise
grounds under M.C.R. 6.508(D)(3).
VI. Brown was neither arraigned nor entered a plea; the trial court violated Brown’s
rights when it failed to proceed against Brown by presentment of information in open
court; and the lack of proper arraignment deprived the trial court of jurisdiction, and
requires automatic reversal.
The trial court denied the motion on August 10, 2006, and denied reconsideration on March
29, 2007. Petitioner then filed an application for leave to appeal with the Michigan Court of
Appeals, which the court denied. People v. Brown, No. 283419 (Mich. Ct. App. May 12, 2008).
Petitioner then filed an application for leave to appeal that decision with the Michigan Supreme
Court, which the court denied on March 23, 2009. People v. Brown, 483 Mich. 912 (2009) (table).
Meanwhile, on November 4, 2008, Petitioner filed a state habeas action in the Circuit Court
for Manistee County, Michigan, attempting to raise issues challenging his conviction. The Manistee
Circuit Court denied the action on November 14, 2008. Petitioner’s subsequent appeals of those
decisions were rejected by the Michigan Court of Appeals and the Michigan Supreme Court. Brown
v. Dep’t of Corrections, No. 289220 (Mich. Ct. App. Apr. 8, 2009); Brown v. Dep’t of Corrections,
484 Mich. 870 (Aug. 6, 2009) (table).
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On April 20, 2009, Petitioner filed a delayed motion for a new trial in Oakland County
Circuit Court, which the court rejected as improperly filed. The trial court then permitted Petitioner
to file a second successive post-conviction motion, which Petition filed on January 29, 2010. The
state trial court ultimately denied this motion on December 17, 2010. While it appears that Brown
initially appealed from the denial of this motion, he subsequently withdrew that appeal. People v.
Brown, Court of Appeals No. 306587 (Mich. Ct. App. Dec. 16, 2011).
While this motion was pending, Petitioner filed several federal habeas petitions that for
various reasons were dismissed or stayed pending exhaustion of his state court remedies. By order
dated October 7, 2010, the present case was stayed pending resolution of Petitioner’s second attempt
at obtaining state collateral review.
Another motion for relief from judgment was apparently filed
in June 2012, and denied by the trial court on September 19, 2012. The trial court noted that this
motion was a successive motion for relief from judgment under M.C.R. 6.502(G) and found that it
did not fall within one of the exceptions to the bar against successive motions under that rule.
Petitioner did not appeal the denial of this motion.
On September 25, 2012, this Court granted Petitioner’s motion to lift the stay, and ordered
Respondent to file a responsive pleading. A response was filed on Novmeber 21, 2012, and the
Court also granted Petitioner permission to file multiple supplemental briefs. The case is now ready
for decision.
II. Standard of Review
Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas corpus only if
he can show that the state court’s adjudication of his claims on the merits-
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(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).
A decision of a state court is “contrary to” clearly established federal law if the state court
arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the
state court decides a case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S. Ct. 1495, 1519 (2000).
An “unreasonable application” occurs when “a state court decision unreasonably applies the law of
[the Supreme Court] to the facts of a prisoner’s case.” Id. at 409, 120 S. Ct. at 1521. A federal
habeas court may not “issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established federal law erroneously
or incorrectly.” Id. at 411, 120 S. Ct. at 1522.
The Supreme Court has explained that “[a] federal court’s collateral review of a state-court
decision must be consistent with the respect due state courts in our federal system.” Miller-El v.
Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041 (2003). The “AEDPA thus imposes a ‘highly
deferential standard for evaluating state-court rulings,’ and ‘demands that state-court decisions be
given the benefit of the doubt.’” Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (quoting Lindh v.
Murphy, 521 U.S. 320, 333, n.7, 117 S. Ct. 2059, 2066 n.7 (1997); Woodford v. Visciotti, 537 U.S.
19, 24, 123 S. Ct. 357, 360 (2002) (per curiam)). “[A] state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness
of the state court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting
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Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 2149 (2004)). The Supreme Court has
emphasized “that even a strong case for relief does not mean the state court’s contrary conclusion
was unreasonable.” Id. Furthermore, pursuant to § 2254(d), “a habeas court must determine what
arguments or theories supported or . . . could have supported, the state court’s decision; and then it
must ask whether it is possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision” of the Supreme Court. Id. “[I]f this standard is
difficult to meet, that is because it was meant to be.” Harrington, 131 S. Ct. at 786.
Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar federal
courts from relitigating claims that have previously been rejected in the state courts, it preserves the
authority for a federal court to grant habeas relief only “in cases where there is no possibility
fairminded jurists could disagree that the state court’s decision conflicts with” the Supreme Court’s
precedents. Id. Indeed, “Section 2254(d) reflects the view that habeas corpus is a ‘guard against
extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error
correction through appeal.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S. Ct. 2781,
2796 (1979) (Stevens, J., concurring in judgment)). Therefore, in order to obtain habeas relief in
federal court, a state prisoner is required to show that the state court’s rejection of his claim “was
so lacking in justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Id. at 786-787.
III. Analysis
A. Exclusion of Impeachment Evidence
Petitioner’s first claim asserts that the trial court erred in prohibiting him from cross
examining Weigold regarding the fact he was facing criminal sexual conduct charges at the time of
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Petitioner’s trial. Petitioner asserts that he was therefore deprived of the opportunity to suggest
through cross-examination that Weigold had an interest to testify in favor of the prosecution in an
effort to curry favor with the authorities regarding his own case. Respondent asserts that the
Michigan Court of Appeals reasonably rejected this claim during Petitioner’s appeal of right.
The Sixth Amendment guarantees the right of an accused in a state criminal prosecution “to
be confronted with the witnesses against him.” U.S. Const. amend. VI; see also Pointer v. Texas,
380 U.S. 400, 407-08, 85 S. Ct. 1065, 1069 (1965). Cross-examination is a “primary interest
secured” by the Confrontation Clause. Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074,
1076 (1965); Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1110 (1974). In determining
whether the exclusion of evidence or restrictions on cross-examination infringe upon a weighty
interest of the accused, the relevant question is whether the defendant was afforded “‘a meaningful
opportunity to present a complete defense.’” California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct.
2528, 2532 (1984).
In Davis, the Supreme Court examined whether the trial court’s limits on the
cross-examination of a key prosecution witness regarding a prior conviction violated the
Confrontation Clause. The defendant in Davis had been convicted of grand larceny and burglary
following a trial in which the court prohibited defense counsel from questioning a key prosecution
witness, Green, concerning his juvenile record. Green was the sole witness who placed the
defendant at the location where the stolen property was later discovered. At the time of trial and at
the time of the events about which Green testified, Green was on probation by order of a juvenile
court after having been adjudicated a delinquent for burglary. The prosecution moved for a
protective order prohibiting defense counsel from questioning Green regarding his juvenile record.
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In opposing the motion, defense counsel argued that he would not introduce Green’s juvenile record
as a means of impeaching Green’s general character as a truthful person. Rather, he would introduce
such testimony to show that at the time that Green was assisting the police in identifying the
defendant, he was on probation for burglary. Defense counsel would then argue to the jury that
Green acted out of fear or concern that his probation might be in jeopardy. Green, defense counsel
theorized, may have identified defendant as a means of directing suspicion away from himself for
a crime similar to the crimes for which he was on probation or he may have suffered undue pressure
from the police to make an identification or risk possible probation revocation.
Defense counsel therefore sought to establish the existence of possible bias and prejudice,
causing Green to make a faulty identification. The trial court ruled this testimony inadmissible. The
Supreme Court held that the exclusion of such testimony denied petitioner his fundamental
constitutional right to present a defense:
[W]e . . . conclude that the jurors were entitled to have the benefit of the defense
theory before them so that they could make an informed judgement as to the weight
to place on Green’s testimony which provided ‘a crucial link in the proof . . . of
petitioner’s act.’ Douglas v. Alabama, 380 U.S. at 419. The accuracy and
truthfulness of Green’s testimony were key elements in the State’s claim against the
petitioner. . . .
We cannot accept the Alaska Supreme Court’s conclusion that the cross-examination
that was permitted defense counsel was adequate to develop the issue of bias
properly to the jury. While counsel was permitted to ask Green whether he was
biased, counsel was unable to make a record from which to argue why Green might
have been biased or otherwise lacked that degree of impartiality expected of a
witness at trial. On the basis of the limited cross-examination that was permitted, the
jury might well have thought that defense counsel was engaged in a speculative and
baseless line of attack on the credibility of an apparently blameless witness . . . . On
these facts it seems clear to us that to make any such inquiry effective, defense
counsel should have been permitted to expose to the jury the facts from which jurors
. . . could appropriately draw inferences relating to the reliability of the witness.
Petitioner was thus denied the right of effective cross examination which “would be
constitutional error of the first magnitude . . . .”
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Davis, 415 U.S. at 317-18 (1111) (quoting Brookhart v. Janis, 384 U.S. 1, 3, 86 S. Ct. 1245, 1246
(1968)).
Here, the Michigan Court of Appeal decided Petitioner’s claims as follows:
On appeal, defendant argues that the trial court erred in excluding evidence of a
pending criminal sexual conduct (CSC) case against Weigold, the prosecution’s key
witness at trial. Defendant argues that he was denied his constitutional right to
confront Weigold for purposes of testing his credibility. We disagree.
In an offer of proof outside the presence of the jury, Weigold testified that he had
been charged with three counts of CSC involving minors, and had been released on
bond. The case was investigated by the Michigan State Police and there were no
discussions about his cooperation in this case benefitting the CSC case. Also,
Weigold did not know what the sentencing guidelines would be if convicted of the
charged CSC offenses. Weigold did not believe that his cooperation in the instant
case would benefit his CSC case.
We hold that defendant failed to preserve his claim that he had a constitutional right
to cross-examine Weigold about his pending CSC case, inasmuch as defendant did
not object to the evidence on this specific ground. People v. Asevedo, 217 Mich.
App. 393, 398 (1996). Hence, we limit our review of this latter issue to whether
defendant has established a plain error affecting his substantial rights. People v.
Carines, 460 Mich. 750, 763-765 (1999). The right to cross-examine witnesses is not
without limits. People v. Hackett, 421 Mich. 338, 347(1984). A violation of the right
of confrontation will be found when a trial court places limits on cross-examination
that preclude a defendant from placing before the jury facts from which bias,
prejudice, or lack of credibility might be inferred. People v. Cunningham, 215 Mich.
App. 652, 657 (1996); People v. Mumford, 183 Mich. App. 149, 153 (1990). But the
right of confrontation does not include the right to cross-examine a witness on
irrelevant issues and may bow to other legitimate interests of the trial process and
society. People v. Adamski, 198 Mich. App. 133, 138 (1993). “‘Trial judges retain
wide latitude insofar as the Confrontation Clause is concerned to impose reasonable
limits on such cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.’” Id., quoting Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986).
Although a witness’ bias may be induced, consciously or unconsciously, by the
witness’ self-interest in a case, we are not persuaded that the trial court here erred in
excluding defendant’s proffered evidence on the ground that defendant offered only
speculation to support his position that the pending CSC case was probative of
Weigold’s credibility. People v. Layher, 464 Mich. 756, 763 (2001). The threshold
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foundation for admitting such evidence is logical relevance. MRE 401; Layher, supra
at 761. Because there was no evidence to support an inference that Weigold might
color his testimony against defendant because of some expectation, consciously or
unconsciously, that it would benefit him in the unrelated CSC case, there was an
inadequate foundation for defendant to question Weigold about his CSC case in front
of the jury.
Because defendant has not shown that he was denied a reasonable opportunity to test
Weigold’s credibilty with relevant evidence, we find no plain constitutional error.
Defendant’s reliance on United States v. Landerman, 109 F.3d 1053 (5th Cir. 1997),
modified on other grounds 116 F.3d 119 (5th Cir. 1997), is misplaced because, unlike
in Landerman, the evidence concerning Weigold’s pending CSC case did not support
an inference that Weigold had an incentive, consciously or unconsciously, to slant
his testimony in this case.
Brown, 2004 Mich. App. LEXIS 2217, at *1-5.
This Court concludes the decision of the Michigan Court of Appeals on this issue involved
an unreasonable application of the established Supreme Court standard. During defense counsel’s
voir dire examination of Weigold outside the presence of the jury, Weigold testified that his criminal
charges were still pending, but he did not believe or expect that his testimony in Petitioner’s case
would benefit him. From this testimony – which Petitioner no doubt would have liked to dispute
– the state appellate court concluded that there was no basis to suggest that Weigold was biased.
In other words, in the absence of Weigold admitting that he was testifying in accord with the
prosecutor’s theory of the case in the hope of receiving some benefit in his own case, the state
appellate court thought that Petitioner “offered only speculation to support his position that the
pending CSC case was probative of Weigold’s credibility.” Of course, it is the very purpose and
nature of cross examination to show that a witness is being untruthful. The whole point of the
proffered cross examination was to show that Weigold had a motivation to testify in favor of the
prosecution, with or without any promises being made to him. Logically, Weigold’s motivation to
offer testimony he might have thought the prosecutor wanted to hear included a denial that he hoped
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for a benefit. Preventing Petitioner from informing the jury that – despite his denials – Weigold had
a potential bias in favor of the prosecution denied Petitioner his Sixth Amendment right to
confrontation. See Vasquez v. Jones, 486 F.3d 135, 145-146 (6th Cir. 2007) (exclusion of past
criminal history of prosecution witness violated Petitioner’s confrontation rights); Hargrave v.
McKee, 248 F. App’x 718 (6th Cir. 2007) (trial court’s prohibition of evidence that prosecution
witness was diagnosed as a paranoid schizophrenic violated Petitioner’s confrontation rights). The
Michigan Court of Appeals decision to the contrary, resting on the idea that Weigold denied any
expectation of favorable treatment, was objectively unreasonable.
Nevertheless, Petitioner has not demonstrated entitlement to habeas relief based on this
claim. For purposes of federal habeas review, a constitutional error that implicates trial procedures
is considered harmless if it did not have a “substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S. Ct. 1710, 1718
(1993); see also O’Neal v. McAninch, 513 U.S. 432, 445 (1995) (habeas court should grant petition
if it has “grave doubt” about whether trial error had substantial and injurious effect or influence upon
jury’s verdict).
The evidence presented against Petitioner was overwhelming. Petitioner testified at trial and
admitted that he shot the victim with an arrow and stabbed him two times with a hunting knife. His
defense was self-defense. But that claim was contradicted by the physical evidence. The blood
stains in the kitchen indicated that the victim was backing up after he had been struck by the arrow.
Likewise, the bloody footprints on the inside door of the bathroom indicated that the victim was
attempting to barricade himself inside. The angle of the fatal knife wound suggested that the victim
was stabbed in the heart as he lay helpless on the bathroom floor. The multiple wounds caused by
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multiple weapons, inflicted in different parts of the house belie Petitioner’s claim that he acted in
self defense. In particular, the fact that the victim had basically barricaded himself in the bathroom
after being shot with an arrow, but that Petitioner kicked in the door to attack him again, rendered
Petitioner’s self defense claim entirely incredible. Furthermore, after the attack, Petitioner attempted
to dispose of the knife in the bathroom garbage can, threw the bow over a fence, discarded his
bloodly clothing, and fled to Georgia. This is hardly the conduct of a person who was justifiably
forced to kill someone in self defense. In other words, even if Petitioner were allowed to impeach
Weigold with his pending criminal charges, the physical evidence when combined with Petitioner’s
implausible self defense claim would have nevertheless led to his conviction.
The failure to allow cross examination in the topic was harmless for another reason.
Weigold’s contemporaneous statements to the 9-1-1 operator and to the police implicating Petitioner
for the crime occurred at a time before he would have been able to ascertain any interest in slanting
his testimony in favor of a story in which Petitioner was the aggressor. Weigold’s version of events
– with the exception of the use of the bow trigger – were consistent from the moment he spoke with
authorities, and contradicted Petitioner’s claim of self-defense. At the time Weigold made his initial
statements, he could have had no idea how to slant his story in order to curry favor with the
prosecution. Accordingly, even if Petitioner were allowed to cross examine Weigold about his
pending charges, the prosecutor could have easily rehabilitated him with the fact that his story did
not change from the time of the incident.
Petitioner rejoins by asserting that Weigold did not mention the wrist trigger device in his
initial statements to police, and that the use of this device supported the prosecutor’s argument that
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Petitioner premeditated the murder.1 If the victim died as a result of the arrow shot and the
confrontation ended there, this argument might have some traction. But after Petitioner shot the
victim - trigger or not - he twice stabbed the victim with a knife and kicked-in the bathroom door
where the wounded victim had barricaded himself. In this Court’s view, Petitioner’s self defense
claim was a weak one that had no reasonable prospect of success whether or not the cross
examination of Weigold had been permitted.
Petitioner further asserts that Respondent waived any harmless error argument and, citing
Stevens v. Bordenkircher, 746 F.2d 342 (6th Cir. 1984), that the failure to allow cross examination
of a key government witness concerning bias, prejudice, or motive can never be construed
reasonably as harmless error. Both of these assertions are incorrect. Respondent specifically argued
in its Answer that any error was harmless because it did not meet the Brecht standard. See Dkt. 90,
pp. 39-41. Moreover, there is no rule that violations of Davis involving “key government” witnesses
can never be harmless. Stevens, a thirty-year old case, was decided before Delaware v. Van Arsdall,
475 U.S. 673, 106 S. Ct. 1431 (1986), where, rather then set any such bright-line rules, the Supreme
Court held that even on direct review whether such errors are harmless “depends upon a host of
factors, all readily accessible to reviewing courts. These factors include the importance of the
witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence
or absence of evidence corroborating or contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of
1
Oakland County Deputy Robert Charlton described how a trigger release attaches to a
shooter’s wrist and aids him in the drawing and releasing of the bowstring to shoot an arrow.
Trial Tr. 2/3/2003, at 253-54. The prosecutor argued that the extra time required to put on the
trigger release constituted evidence that Petitioner premeditated the shooting.
-17-
the prosecution’s case.” 475 U.S. at 684. Stevens was also decided before Brecht, which also set
forth a more generalized harmless-error standard for determining whether a trial error entitles a
habeas petitioner to relief.
In the light of the overwhelming evidence of Petitioner’s guilt, and the fact that Weigold’s
testimony was corroborative of his statements to police, the Court is not convinced that the exclusion
of the impeachment evidence had a substantial or injurious effect or influence upon the jury’s
verdict. Therefore, habeas relief is not warranted on this claim.
B. Jury Instruction Regarding Absence of Fingerprints on Knife
Petitioner raises a number of claims (II, III, IV, V, VI, XV, and XVII) concerning the trial
court’s response to a jury note indicating that no fingerprints were found on the knife. Petitioner
asserts that the answer amounted to providing the jury with unsworn “surrogate” testimony, violated
his right to be present, violated his right to a public trial, violated his right to confrontation, and that
his counsel was ineffective for failing to object to the answer.
The record shows that after jury deliberations began, the jury sent a note to the trial court
asking whether the prosecution had introduced a “Forensic Report” regarding “Finger prints on
knife.” The judge responded that “A fingerprint report was not introduced into evidence.” After
deliberating for more than three and a half hours, the jury then sent a second note asking whether
there was “Testimony of Sheriff Department? Re: finger prints on knife.” The trial judge wrote
back, “Please rephrase your question, you need to be more specific.” The jury then wrote the
following question to the judge:
Is there any testimony regarding Randy Pardy’s fingerprints on the hunting knife that
was used in the murder? Some of the jurors claim to remember testimony about the
knife, but there is some uncertainty.
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T IV, pp. 32-33. Both the prosecutor and Petitioner’s lawyer suggested outside the presence of the
jury that the judge simply instruct the jury to “use [their] collective memories as to what the
testimony was.” Id. at 33. The judge, however, said he believed he “owe[d] a duty to search the
record as best I can to see if there is some testimony.” Id. The judge then told the jury he “would
have to search the record” to answer the jury’s question. Id. at 35. Proceedings were then adjourned
for the weekend.
On the following Monday morning, court resumed. Petitioner was not present in the
courtroom. After an off-the-record conference, the judge sent the following written instruction to
the jury: “There were no fingerprints found on the knife.” T V, p. 3. The attorneys stipulated to the
contents of the note. Id. An hour later, the jury returned a verdict, finding Petitioner guilty of
first-degree murder and assault with a dangerous weapon.
Petitioner claims that multiple constitutional violations resulted from this series of events.
First, he claims that the instruction amounted to the introduction of unsworn testimony that no
fingerprints were found on the knife, a fact not demonstrated at trial. Petitioner claims that he was
denied his right to be personally present when the events unfolded, and that he was likewise denied
his right to a public trial because much of it happened at an off-the-record side bar. He also alleges
that the new evidence was not subject to cross examination and therefore his confrontation rights
were violated. Finally, he alleges that his counsel was ineffective for allowing the whole transaction
to occur without objection.
The Michigan Court of Appeals denied these claims as follows:
[D]efendant waived any challenge to the trial court’s answer to the jury’s question
about fingerprint evidence by stipulating to the answer. The waiver extinguished any
error. People v. Carter, 462 Mich. 206, 216 (2000). Defendant’s alternative claim of
ineffective assistance of counsel is not properly before us because it is not set forth
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in the statement of the questions presented. M.C.R. 7.212(C)(5); People v. Albers,
258 Mich. App. 578, 584 (2003). In any event, limiting our review to the record, we
find that defendant has not established any entitlement to relief based on ineffective
assistance of counsel. People v. Riley (After Remand), 468 Mich. 135, 139-140
(2003).
Brown, 2004 Mich. App. LEXIS 2217, at *16-17.
With respect to Petitioner’s claim that he was denied his right to be present, a defendant has
a constitutional right to “be present at any stage of the criminal proceeding that is critical to its
outcome if his presence would contribute to the fairness of the procedure.” Kentucky v. Stincer, 482
U.S. 730, 745, 107 S. Ct. 2658, 2667 (1987). This right, however, “is not absolute, but exists only
when ‘his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend
against the charge.” United States v. Henderson, 626 F.3d 326, 343 (6th Cir. 2010) (quoting United
States v. Brika, 416 F.3d 514, 526 (6th Cir. 2005) (quoting Stincer, 482 U.S. at 745). “In other
words, the defendant’s presence is not guaranteed when it would be ‘useless,’ but only ‘to the extent
that a fair and just hearing would be thwarted by his absence.” Id. (quoting Brika, 416 F.3d at 526).
In Buell v. Mitchell, 274 F.3d 337, 364 (6th Cir. 2001), the Sixth Circuit found that a meeting
similar to a bench conference at which the trial judge and counsel discussed the answer to a jury
question was not sufficiently similar to jury instructions such that the Petitioner’s presence was
required where the Petitioner’s counsel agreed to the answer given to the jury. This case is similar
enough to Buell that the state court’s determination that Petitioner’s right to be present was not
violated was not objectively unreasonable. As in Buell, Petitioner’s counsel agreed to the answer
to the note. That is, if the Sixth Circuit could reject Buell’s similar claim, it was not outside the
bounds of plausible outcomes for the state court to reject Petitioner’s similar claim in this case.
With respect to his claim that the bench conference occurred in violation of Petitioner’s right
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to a public trial, this claim is also without merit. Side bar and in camera conferences are a
commonplace occurrence during criminal trials that simply do not implicate the right to a public
trial. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n.25, 102 S. Ct. 2613, 2621
n.25 (1982) (holding that a trial court has traditional authority to conduct in camera conferences);
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 598 n.23, 100 S. Ct. 2814, 2839 n.23 (1980)
(Brennan, J., concurring) (stating that “the presumption of public trials is, of course, not at all
incompatible with reasonable restrictions imposed upon courtroom behavior in the interest of
decorum,” including the exclusion of the public and the press from conferences at the bench and in
chambers where such conferences are distinct from trial proceedings); United States v. Gurney, 558
F.2d 1202, 1210 (5th Cir. 1977) (holding that “bench conferences between judge and counsel outside
of public hearing are an established practice, … and protection of their privacy is generally within
the court’s discretion. . . . Such conferences are an integral part of the internal management of a trial,
and screening them from access by the press is well within a trial judge’s broad discretion.”).
Petitioner’s confrontation claim is likewise without merit. Petitioner’s counsel stipulated
to the note informing the jury that no fingerprints were found on the knife. Recently, in Bullcoming
v. New Mexico, 131 S. Ct. 2705, 2718-2719 (2011), the Supreme Court confirmed that the
Confrontation Clause is not implicated by the introduction of stipulated facts. The fact that the
parties stipulated to the answer also undermines Petitioner’s claim that the trial court was partial,
or instructed the jury with a mandatory presumption of fact.
This leaves the issue of ineffective assistance of counsel. Petitioner asserts that his counsel
should not have stipulated that no fingerprints were found on the knife. Petitioner’s pleadings
include an affidavit from his trial counsel that states that he only stipulated to the note because he
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felt overpowered by the prosecutor and the trial judge.
In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), the United States
Supreme Court set forth a two-prong test for determining whether a habeas petitioner has received
ineffective assistance of counsel. First, a petitioner must prove that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that he or she was not
functioning as counsel as guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.
Ct. at 2064. Second, the petitioner must establish that counsel’s deficient performance prejudiced
the defense. Counsel’s errors must have been so serious that they deprived the petitioner of a fair
trial or appeal. Id.
As to the performance prong, Petitioner must identify acts that were “outside the wide range
of professionally competent assistance” in order to prove deficient performance. Strickland, 466
U.S. at 690, 104 S. Ct. at 2066. The reviewing court’s scrutiny of counsel’s performance is highly
deferential. Id. at 689, 104 S. Ct. at 2065. Counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional judgment.
Id. at 690, 104 S. Ct. at 2066. Petitioner bears the burden of overcoming the presumption that the
challenged actions were sound trial strategy. Id. at 689, 104 S. Ct. at 2065.
To satisfy the prejudice prong under Strickland, Petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable
probability is one that is sufficient to undermine confidence in the outcome. Id. “On balance, the
benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied
-22-
on as having produced a just result.” Id. at 686, 104 S. Ct. at 2064.
Stickland sets forth the standard on direct review. In a federal habeas action, review is more
circumscribed.
The Supreme Court has confirmed that a federal court’s consideration of
ineffective-assistance-of-counsel claims arising from state-criminal proceedings is quite limited on
habeas review due to the deference accorded trial attorneys and state-appellate courts reviewing their
performance. “The standards created by Strickland and [section] 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Harrington, 131 S. Ct. at
788 (internal and end citations omitted). “When [section] 2254(d) applies, the question is not
whether counsel’s actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard. Id. Also, because this claim was
adjudicated on the merits in the state court, the Court’s review of this claim is “limited to the record
that was before the state court.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). Furthermore,
because there is no state court record indicating the reasons for defense counsel’s decision to
stipulate to the note sent to the jury, Petitioner must overcome the strong presumption that counsel
rendered adequate assistance and exercised reasonable professional judgment with decision-making
based on the existing trial record alone. Id.
Petitioner’s ineffective assistance of counsel claim fails because, based on the existing state
court record, a reasonable argument can be made that counsel satisfied Strickland’s deferential
standard. Petitioner bears the burden of rebutting the presumption that trial counsel acted “for
tactical reasons rather than through sheer neglect.” Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct.
1, 5 (2003) (per curiam).
The jury obviously was uncertain whether the victim’s fingerprints were found on the knife.
-23-
In fact, there was no evidence offered at trial indicating whether the knife was analyzed for
fingerprints. The most accurate answer to the jury’s question simply would have stated that there
was no evidence offered on the point. That would leave open the possibility that fingerprints were
present, but not tested for. The answer given, “There were no fingerprints on the knife,” did not
indicate that the victim did not hold the knife. It only indicated that there were no fingerprints.
Of course the other possibility is that the knife was tested and no fingerprints were found,
and neither party bothered to admit evidence regarding this inconclusive fact. One could imagine
that the prosecutor did not offer the evidence because he had Petitioner’s admission that he stabbed
the victim. And one could imagine that defense counsel did not offer the evidence because a
negative test was less helpful than no test being performed at all. Again, because the state court
record does not reveal what occurred or defense counsel’s reasons for his actions, there could be any
host of reasons for agreeing to the answer given to the jury question.
The uncertainty works against Petitioner. Under Strickland, Richter, and Cullen, it is his
burden to overcome the presumption of effective assistance and to do so based on the existing
record. He has not done so. The Strickland Court acknowledged that “[t]here are countless ways
to provide effective assistance in any given case,” and that “[e]ven the best criminal defense
attorneys would not defend a particular client in the same way.” Strickland, 466 U.S. at 689, 104
S. Ct. at 2065. Given the possibility that Petitioner’s counsel stipulated to the answer because he
felt nothing substantial could be gained from an alternate wording that risked a reopening of proofs,
Petitioner has not demonstrated relief with respect to this claim. As the Court stated in Stickland,
“[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
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having produced a just result.” Id. at 686, 104 S. Ct. at 2064. In light of the existing record, the
Court cannot conclude that the state court unreasonably adjudicated this claim.
C. Voluntariness of Statement to Police
Petitioner’s seventh claim asserts that his statements to police at the jail were admitted into
evidence in violation of his Miranda rights when, during cross examination of Petitioner, the
prosecutor asked him about his propensity for violence.
On direct appeal, the Michigan Court of Appeals denied relief with respect to this claim as
follows:
Because defendant denied, on cross-examination by the prosecutor, making a
statement to Sergeant Miller about acting out in a violent manner, and because the
prosecutor did not offer extrinsic evidence of the statement, we find it unnecessary
to address defendant’s claim that the trial court erred in permitting testimony about
the statement. The jury was instructed that the lawyer’s questions to the witnesses
were not evidence. “It is well established that jurors are presumed to follow their
instructions.” Graves, supra.
Brown, 2004 WL 1857995, at *6.
During the prosecutor’s cross examination of Petitioner, the prosecutor asked Petitioner
whether he had a “short fuse.” Petitioner denied that he did. The prosecutor then asked Petitioner
whether he told Detective Miller in the jail that sometimes he acts out violently. Petitioner answered
that he did not. Defense counsel objected, stating that Petitioner had counsel at the time he was in
jail, and that the Detective was prohibited from questioning him about statements he made as the
result of questioning. The prosecutor responded that Petitioner volunteered the statement, and that
it was being used to impeach Petitioner’s testimony that he does not have a short fuse. The question
was allowed, but Petitioner again denied that he made any such statement. T 2/6/03, pp. 177-186.
The prosecutor never offered any testimony from the detective about the statement being made.
-25-
The Fifth Amendment protects a defendant from being “compelled in any criminal case to
be a witness against himself.” U.S. Const. amend. V. Any statements taken in violation of the Fifth
Amendment right against self-incrimination are excluded from the State’s case in chief. See
Miranda v. Arizona, 384 U.S. 436, 462, 86 S. Ct. 1602, 1621 (1966). Additionally, the Supreme
Court has held that after an accused clearly invokes his right to have counsel present during a
custodial interrogation, officers must cease all questioning and may not reinitiate questioning on any
matter until counsel is provided, “unless the accused himself initiates further communications,
exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct.
1880, 1885 (1981). Statements obtained in violation of Miranda may, however, be used at trial to
impeach the defendant’s testimony. See Oregon v. Elstad, 470 U.S. 298, 307, 105 S. Ct. 1285, 1292
(1985). Petitioner’s alleged statements to the Detective were used only to cross-examine Petitioner
regarding his denial that he was a violent person. The statements were used to impeach Petitioner’s
prior testimony. Because the use of the statements for impeachment was permissible, even if the
statements were obtained in violation of Miranda, there was no unreasonable application of federal
law as established by the Supreme Court of the United States.
D. Prosecutorial Misconduct
Petitioner’s eighth claim asserts multiple allegations of prosecutorial misconduct. In his
related twelfth claim, he asserts that his trial counsel was ineffective for failing to object to the
conduct. Specifically, Petitioner claims that the prosecutor expressed a personal belief in his guilt,
shifted the burden of proof, appealed to the jury’s sympathy, misstated the law of self defense, and
stipulated to an unsupported supplemental instruction.
The United States Supreme Court has made clear that prosecutors must “refrain from
-26-
improper methods calculated to produce a wrongful conviction.” Berger v. United States, 295 U.S.
78, 88, 55 S. Ct. 629, 633 (1935). To prevail on a claim of prosecutorial misconduct, a habeas
petitioner must demonstrate that the prosecutor’s conduct or remarks “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo,
416 U.S. 637, 643, 94 S. Ct. 1868, 1874 (1974); Parker v. Matthews, 132 S. Ct. 2148, 2153 (2012)
(confirming that Donnelly is the proper standard).
The Michigan Court of Appeals denied Petitioner relief with respect to these claims as
follows:
Next, defendant argues that he was denied due process and a fair trial as a result of
the prosecutor’s misconduct. We disagree. Although we generally review claims of
prosecutorial misconduct de novo, People v. Abraham, 256 Mich. App. 265, 272
(2003), defendant’s claims that were not preserved with an appropriate objection at
trial are reviewed for plain error affecting defendant’s substantial rights. Carines,
supra. We examine the prosecutor’s remarks in context to determine whether the
defendant was denied a fair and impartial trial. Abraham, supra at 272-273.
We reject defendant’s claim that the prosecutor improperly expressed a personal
opinion with respect to his guilt. Examined in context, the prosecutor’s challenged
opening statement about this case being very simple suggested that the jury would
hear strong evidence about defendant’s guilt.
Also, the prosecutor’s remarks in closing argument about defendant being afforded
his right to a trial did not suggest that the jury suspend its power of judgment in favor
of a prosecutorial belief in defendant’s guilt. Rather, the prosecutor suggested that
the jury find defendant guilty based on the strength of the evidence. A prosecutor is
free to present and argue the evidence and all inferences arising from it as they relate
to the prosecutor’s theory of the case. People v. Bahoda, 448 Mich. 261, 282 (1995).
We conclude that the prosecutor’s remarks were not improper.
Also, we find no basis for relief based on defendant’s challenge to the prosecutor’s
rebuttal remarks about law enforcement officers and the prosecutor’s office doing all
that could be done. The record supports the prosecution’s position on appeal that the
remarks were responsive to defense counsel’s closing argument. In particular,
defense counsel suggested that everyone involved in the investigation was
result-driven to obtain a conviction when he commented in closing argument, “You
know you’ve got to know how the system works. Somebody’s murdered, the cops
-27-
say murder. Somebody’s killed, who did it, they go get the guy. Now their job, the
prosecutor’s, everybody, is let’s get a conviction.” Examined in the context of these
remarks, the prosecutor’s challenged rebuttal remarks did not plainly suggest that the
jury convict defendant based on the prosecutor’s personal belief, but rather once
again asked the jury to decide the case based on the evidence.
Furthermore, even if the prosecutor’s remarks could be considered plain error,
improper prosecutorial remarks which respond to issues raised by defense counsel
do not necessarily require reversal. People v. Jones, 468 Mich. 345, 353 (2003). The
invitation, defense counsel’s conduct, and the proportionality of the response must
be examined to determine if the error affected the fairness of the trial. Id. at 353-354.
Considered in light of defense counsel’s statement in his closing argument, we
cannot say that defendant was prejudiced by the prosecutor’s comments. The
prosecutor merely responded that the governmental units involved in the case did
their jobs and that it was now the jury’s job to decide the outcome of defendant’s
case.
Defendant next argues that the prosecutor committed misconduct in his rebuttal
argument by twice shifting the burden of proof. Having examined the prosecutor’s
challenged remarks in context, we find no plain error warranting relief. The
prosecutor’s argument regarding actions that defense counsel could have taken
before trial were a fair response to defense counsel’s closing argument that
Weigold’s testimony about defendant wearing a trigger release was a “bombshell.”
Jones, supra at 352 n 6. Although a prosecutor’s remarks that tend to shift the burden
of proof to a defendant are improper, once a defendant presents evidence or a theory,
the prosecutor may comment on the weakness of the defendant’s evidence or theory.
People v. Fields, 450 Mich. 94, 115; 538 N.W.2d 356 (1995).
Similarly, the prosecutor’s rebuttal argument about the absence of defense proofs
that Pardy was a violent person were not plainly improper in light of the defense
theory that Pardy was the aggressor and the prosecutor’s acknowledgement in his
rebuttal remarks that the burden was on the prosecution to disprove self-defense. Id.
at 115-116. “When a controversy arises regarding whether the deceased was the
aggressor, a jury’s persuasion may be affected by the character of the deceased
because it will shed light on the probabilities of the deceased’s actions.” People v.
Harris, 458 Mich. 310, 315-316 (1998).
Defendant also argues that the prosecutor made improper appeals to the jury’s
sympathy during his closing and rebuttal arguments. The challenged remarks include
one instance in which defense counsel objected on the ground that the remarks
constituted an appeal to sympathy and the trial court sustained the objection.
Although defense counsel did not request a curative instruction, the trial court later
instructed the jurors that “you may not let sympathy or prejudice influence your
decision.” And jurors are presumed to follow their instructions. People v. Graves,
-28-
458 Mich. 476, 486 (1998). Under these circumstances, we do not find the
challenged remarks so inflammatory as to cause prejudice. Hence, while the record
supports defendant’s claim that the prosecutor made some remarks that may be
characterized as an appeal to the jury’s sympathy, reversal on this ground is not
warranted. People v. Watson, 245 Mich. App. 572, 591-592 (2001).
Defendant further argues that the prosecutor committed misconduct by misstating the
law regarding self-defense when cross-examining him, and later in his rebuttal
closing argument. Because defendant did not object to the prosecutor’s
cross-examination on the ground that the prosecutor misstated the law, we review
this claim for plain error affecting defendant’s substantial rights. People v. Kimble,
470 Mich. 305, 309 (2004); Carines, supra at 763. “A prosecutor’s clear
misstatement of the law that remains uncorrected may deprive a defendant of a fair
trial. However, if the jury is correctly instructed on the law, an erroneous legal
argument made by the prosecutor can potentially be cured.” People v. Grayer, 252
Mich. App. 349, 357 (2002) (citations omitted).
The record does not plainly indicate that the prosecutor expressly misstated the law
during his cross-examination of defendant. To the extent the prosecutor’s questions
could be viewed as misleading with respect to the legal standard for self-defense,
reversal is not warranted because defendant has not shown any error with respect to
the trial court’s jury instructions regarding self-defense, and the court’s instructions
were sufficient to dispel any prejudice. Similarly, any misleading effect of the
prosecutor’s challenged remarks during rebuttal argument, which were objected to
by defense counsel at trial on the ground that they were misleading, was dispelled
by the court’s jury instructions. Hence, reversal on this ground is not warranted.
Grayer, supra.
Also, defendant argues that the cumulative effect of the prosecutor’s misconduct at
trial requires reversal. We disagree. Any errors demonstrated by defendant do not
require reversal. Accordingly, defendant was not denied a fair trial. People v.
Bahoda, 448 Mich. 261, 282 n 64 (1995).
Brown, 2004 WL 1857995, at *9-15.
The Michigan Court of Appeals reviewed each of Petitioner’s claims of prosecutorial
misconduct in light of the record as a whole and, whether the state court reviewed the alleged errors
under an abuse of discretion standard or a plain error standard, it looked first to whether the
complained conduct was improper. If so, the state court next determined whether the improper
conduct rendered Petitioner’s trial unfair. This Court has reviewed the complained-of portions of
-29-
the prosecutor’s conduct, and for the reasons stated by Respondent in its extensive discussion of
these claims, the Court agrees with the state appellate court’s assessment of his claims. Considering
the extensive state court analysis of Petitioner’s prosecutorial misconduct claims, Petitioner fails to
establish that the state court determination rejecting his prosecutorial misconduct claims were
contrary to, or an unreasonable application of, clearly established Supreme Court law. Likewise,
because Petitioner’s prosecutorial misconduct claims are without merit, Petitioner’s trial counsel was
not ineffective for failing to make objections. See Bradley v. Birkett, 192 F. App’x 468, 475 (6th
Cir. 2006). Accordingly, Petitioner is not entitled to habeas relief based on these claims.
E. Exclusion of Defense Witness
Petitioner’s ninth claim asserts that he was denied his right to present a defense when the trial
court prohibited him from calling a witness that had not been listed on his witness list. This claim
was rejected on the merits by the Michigan Court of Appeals during Petitioner’s appeal of right.
Federal law is clear on the right to present a defense. Just as an accused has the right to
confront the prosecution’s witnesses for the purpose of challenging their testimony, he also has the
right to present his own witnesses to establish a defense. This right is a fundamental element of the
due process of law. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923 (1967); Crane v.
Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146-47 (1986). However, an accused in a criminal
case does not have an unfettered right to offer evidence that is incompetent, privileged, or otherwise
inadmissible under the standard rules of evidence. Montana v. Egelhoff, 518 U.S. 37, 42, 116 S. Ct.
2013, 2017 (1996). The Supreme Court gives trial court judges wide latitude to exclude certain
evidence. Id. (quoting Delaware, 475 U.S. at 679). A violation of the right to present a defense is
not established by showing merely that the trial court excluded evidence relevant to a defense.
-30-
Rather, a petitioner must show that the exclusion of evidence “significantly undermined fundamental
elements of the accused’s defense.” United States v. Scheffer, 523 U.S. 303, 315, 118 S. Ct. 1261,
1267-68 (1998).
The Michigan Court of Appeals rejected Petitioner’s claim as follows:
Defendant next argues that the trial court erred by precluding him from calling an
unendorsed witness to impeach Weigold’s testimony. Defendant claims that the trial
court’s ruling deprived him of his due process right to present a defense. But because
defendant has insufficiently briefed the basis of the trial court’s ruling, namely,
defendant’s failure to comply with a pretrial discovery order, we could decline to
address this issue. Kelly, supra. Nevertheless, we find it was within the trial court’s
discretion to deny defendant’s tardy motion to have the unendorsed witness testify.
M.C.R. 6.201(J); People v. Davie (After Remand), 225 Mich. App. 592, 597-598
(1997). After reviewing the record, we find no basis for disturbing the trial court’s
decision.
Having considered defendant’s newly raised claim that he was deprived of his
constitutional right to present a defense, in light of the trial court’s ruling that
defendant’s tardy offer of the unendorsed witness violated the pretrial discovery
order, we find no plain constitutional error. Carines, supra at 763. A defendant’s due
process right to present a defense is not absolute. People v. Hayes, 421 Mich. 271,
279 (1984). “It is well settled that the right to assert a defense may permissibly be
limited by ‘established rules of procedure and evidence designed to assure both
fairness and reliability in the ascertainment of guilt and innocence.’” People v. Toma,
462 Mich. 281, 294 (2000), quoting Chambers v. Mississippi, 410 U.S. 284, 302
(1973).
Brown, 2004 WL 1857995, at *7-9.
Petitioner wished to call an unendorsed witness to testify that Petitioner arrived home on the
day of the incident at 4:30 or 5:00 p.m., rather than at 2:30 p.m., as Weigold testified. The
difference in timing was not particularly relevant because the incident occurred after 5:00 p.m. The
trial court denied the request because the witness had not been endorsed on the defense witness list
as requited by state law and because the proposed testimony involved a collateral issue. Because
the trial court’s decision to not permit the witness that Petitioner wanted to call did not “significantly
-31-
undermined fundamental elements of the accused’s defense,” the Michigan Court of Appeals
rejection of the claim did not involve an unreasonable application of clearly established Supreme
Court law.
F. Jurisdiction of Trial Court
Petitioner’s tenth claim asserts that the trial court lacked jurisdiction to try him, and his
eleventh claim asserts that there were defects during the arraignment that divested the court of
jurisdiction. These claims do not form a cognizable basis for granting habeas relief.
The determination of whether a state court is vested with jurisdiction under state law is a
“function of the state courts, not the federal judiciary.” Wills v. Egeler, 532 F.2d 1058, 1059 (6th
Cir. 1976). It is well-settled that a perceived violation of state law may not provide a basis for
federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 480 (1991) (“[W]e
reemphasize that it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.”). The Court may grant a writ of habeas corpus only on the
ground that the petitioner “is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). A state court’s interpretation of state jurisdictional issues
conclusively establishes jurisdiction for purposes of federal habeas review. See Strunk v. Martin,
27 F. App’x 473, 475 (6th Cir. 2001). Any state-law procedural defect in the state district court
proceedings that affected the jurisdiction of the state circuit to try him does not implicate Petitioner’s
federal constitutional rights.
G. Claims Regarding Procedural Default
Petitioner’s thirteenth claim asserts that the language of the Michgian Supreme Court’s order
denying him relief during his state post-conviction review proceeding forecloses Respondent from
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raising a procedural default defense. His fourteenth claim asserts that the ineffective assistance of
his appellate counsel excuses his failure to raise some of his claims during his direct appeal.
Both of the these claims are in response to Respondent’s argument that the claims raised for
the first time in Petitioner’s motion for relief from judgment in the state trial court are procedurally
barred. The Court, however, has reviewed all of Petitioner’s claims on the merits.
While the procedural default doctrine precludes habeas relief on a defaulted claim, the
procedural default doctrine is not jurisdictional. See Trest v. Cain, 522 U.S. 87, 89, 118 S. Ct. 478,
480 (1997). Thus, while a procedural default issue should ordinarily be resolved first, “judicial
economy sometimes dictates reaching the merits of [a claim or claims] if the merits are easily
resolvable against a petitioner while the procedural bar issues are complicated.” Barrett v. Acevedo,
169 F.3d 1155, 1162 (8th Cir. 1999) (internal citations omitted); see also Lambrix v. Singletary, 520
U.S. 518, 524-25, 117 S. Ct. 1517, 1523 (1997) (noting that procedural default issue should
ordinarily be resolved first, but denying habeas relief on a different basis because resolution of the
default issue would require remand and further judicial proceedings).
Here, in the interests of judicial economy, the Court analyzed all of Petitioner’s claims on
the merits. Accordingly, the resolution of Petitioner’s thirteenth and fourteenth claims, which only
seek to rebut the procedural default defense, have no bearing on the outcome of this case.
H. Self Defense Jury Instruction
Petitioner’s sixteenth claim asserts that the trial court erred in the instructing the jury on self
defense and imperfect self defense. He claims that the instruction incorrectly stated the “deadly
aggressor withdrawal” aspect of self defense and shifted the burden of proof to Petitioner. This
claim was raised in the state courts in Petitioner’s delayed motion for new trial. The trial court
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denied the motion “for lack of merit in the grounds presented” in an opinion and order dated
December 17, 2010.
The trial court instructed the jury on self defense and imperfect self defense as follows:
The defendant claims that he acted in lawful self-defense. A person has the right to
use force , and even take a life, to defend himself under certain circumstances. If a
person acts in lawful self-defense, his actions are excused and he is not guilty of any
crime.
You should consider all of the evidence and use the following rules to decide
whether the defendant acting in lawful self defense. Remember to judge the
defendant’s conduct according to how the circumstances appeared to him at the time
he acted.
First, at the time he acted, the defendant must have honestly and reasonably believed
that he was in danger of being killed of seriously injured. If his belief was honest and
reasonable, he could act immediately to defend himself, even if it turned out later
that he was wrong about how much danger he was in. In deciding if the defendant’s
belief was honest and reasonable, you should consider all of the circumstances as
they appeared to the defendant at the time.
Second , a person may not kill or seriously injure another person just to protect
himself against what seems like a threat of only minor injury. The defendant must
have been afraid of death or serious injury.
When you decide if the defendant was afraid of one or more of these, you should
consider all of the circumstances, the condition of the people involved, including
their relative strength, whether the other person was armed with a dangerous weapon
or had some other means of injuring the defendant, the nature of the other person’s
attack or threat, whether the defendant knew about any previous violent acts or
threats made the other person.
Third, at the time he acted, the defendant must have honestly and reasonably
believed that what he did was immediately necessary. Under the law, a person may
only use as much force as he thinks is necessary at the time to protect himself. When
you decide whether the amount of force used seemed to be necessary, you may
consider whether the defendant knew about any other ways of protecting himself, but
you may also consider how the excitement of the moment affected the choice the
defendant made.
Members of the jury, if a person assaulted the defendant in the defendant’s own
home, or forcibly entered the defendant’s home, the defendant did not have to try to
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retreat or get away. Under those circumstances the defendant could stand his ground
and resist the attack or intrusion with as much force as he honestly and reasonably
believed necessary at the time to protect himself.
If you find that the defendant, Philip Brown, started an assault on Randy Pardy with
a dangerous weapon, defendant cannot claim that he acted in self defense unless he
genuinely stopped his assault and clearly let Randy Pardy know that he wanted to
make peace. Then, if Randy Pardy kept on fighting or started fighting again later, the
defendant had the same right to defend himself as anyone else and could use force
to save himself from immediate physical harm.
The defendant does not have to prove that he acted in defense. Instead, the
prosecutor must prove beyond a reasonable doubt that the defendant did not act in
the defense.
T 2/7/03, pp. 19-21.
To the extent that Petitioner is alleging that the challenged instruction violated Michigan law,
such claims are not cognizable on federal-habeas review. Estelle v. McGuire, 502 U.S. 62, 71-72,
112 S. Ct. 475, 481-482 (1991) (the fact that the instruction was allegedly incorrect under state law
is not a basis for habeas relief). Here, the trial court denied this claim for “lack of merit in the
grounds presented,” essentially rejecting the premise that the instructions were erroneous.
A habeas challenge to a jury instruction requires the petitioner to establish that the jury
charge, considered in the context of the instructions as a whole, “so infected the entire trial that the
resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 400
(1973). To warrant habeas relief, jury instructions must not only have been erroneous, but also,
taken as a whole, so infirm that they rendered the entire trial fundamentally unfair.” Austin v. Bell,
126 F.3d 843, 846-47 (6th Cir. 1997). The category of infractions that can render an entire trial
fundamentally unfair is narrow. Estelle, 502 U.S. at 73. Further, a challenge to a jury instruction
is not to be viewed in “‘artificial isolation,’ but must be considered in the context of the instructions
as a whole and the trial record.” Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147, 94 S. Ct.
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at 400-01).
Petitioner cannot show that the state trial court’s decision denying his jury instruction claim
as without merit was contrary to or an unreasonable application of clearly established Supreme
Court precedent. The state trial court properly instructed the jury on the applicable law based on
the evidence presented. Petitioner has not shown that the trial court undermined his defense by
instructing the jury on “deadly aggressor withdrawal,” nor has he shown that the trial court shifted
the burden of proof. In fact, the trial court repeatedly instructed the jury that the prosecutor must
prove each element of the offense beyond a reasonable doubt and that the defendant was not
required to prove his innocence or do anything. As indicated above, the trial court specifically
instructed the jury that “[t]he defendant does not have to prove that he acted in self-defense,” and
that “[i]nstead, the prosecutor must prove beyond a reasonable doubt that the defendant did not act
in self-defense.”
Further, as the State previously noted, there was overwhelming evidence of guilt against
Petitioner , showing that Petitioner did not act in self defense, but instead planned to attack (and did
attack) Randy Pardy. The jury had the opportunity to listen to and observe Petitioner testify, and
evidently did not find him credible. Evidence also showed that Petitioner had no concern for
Pardy’s well-being and that Petitioner tried to cover up the crime and fled the state afterward.
Petitioner has failed to show that any error in the instructions resulted in a substantial and injurious
effect on the jury’s verdict.
Therefore, Petitioner challenge to the instructions does not reach the high threshold
established by the AEDPA for the granting of habeas relief.
IV. Certificate of Appealability
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Before Petitioner may appeal this decision, a certificate of appealability must issue. See 28
U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 8 U.S.C. §
2253(c)(2). When a district court denies a habeas claim on the merits, the substantial showing
threshold is met if the petitioner demonstrates that reasonable jurists would find the district court’s
assessment of the constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473,
483-84, 120 S. Ct. 1595, 1603-04 (2000). “A petitioner satisfies this standard by demonstrating that
. . . jurists could conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029, 1034 (2003).
While the Court continues to believe that Petitioner is not entitled to a writ of habeas corpus
for the reasons set forth above, the Court believes that the issues related to the exclusion of evidence
regarding Weigold’s pending charges (Claim I) and the trial court’s answer to the jury note (Claims
II, III, IV, V, VI, XV, and XVII) may be “debatable among jurists of reason.” For this reason, the
Court does not believe Petitioner should be denied the opportunity to seek appellate review of these
issues. The Court does not find the remaining issues raised in the petition debatable among jurists
of reason. Finally, the Court will grant Petitioner permission to proceed on appeal in forma
pauperis.
V. Conclusion
For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas corpus is
DENIED and the matter is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is GRANTED with respect
to claims I, II, III, IV, V, VI, XV, and XVII, but DENIED with respect to the remaining claims.
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IT IS FURTHER ORDERED that permission to proceed on appeal in forma pauperis is
GRANTED.
s/Patrick J. Duggan
United States District Judge
Dated: June 12, 2014
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