Harris v. Tribley

Filing 6

OPINION AND ORDER Denying Habeas Corpus Peetition and Declining to Issue a Certificate of Appealability Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DERONE HILL HARRIS,
Petitioner,
v.

CASE NO. 10-15088
HONORABLE VICTORIA A. ROBERTS

LINDA TRIBLEY,
Respondent.
___________________________/
OPINION AND ORDER
DENYING THE HABEAS CORPUS PETITION, AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
On December 22, 2010, petitioner Derone Hill Harris filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. The habeas petition challenges Petitioner’s
convictions for two counts of assault with intent to do great bodily harm less than
murder, one count of retaliating against a witness, and one count of possession of a
firearm during the commission of a felony (felony firearm). Petitioner alleges that (1) the
exclusion of a res gestae witness at trial deprived him of a fair trial, (2) trial counsel was
ineffective for failing to seek an adjournment of the trial after he learned about the res
gestae witness, (3) the prosecutor presented insufficient evidence to support the assault
convictions, and (4) the prosecutor’s closing arguments deprived him of a fair trial.
Respondent Linda Tribley argues in an answer to the petition that Petitioner’s
fourth claim is procedurally defaulted and that Petitioner’s remaining claims lack merit.
Procedural default is not a jurisdictional limitation, Pudelski v. Wilson, 576 F.3d 595, 606
(6th Cir. 2009), and the Court finds it more efficient to address the merits of Petitioner’s

fourth claim than to analyze whether the claim is procedurally defaulted. The Court
therefore excuses the alleged procedural default and proceeds to address the
substantive merits of Petitioner’s claims.
I. BACKGROUND
Petitioner was charged with felony firearm, retaliating against a witness, and two
counts of assault with intent to commit murder. The charges arose from a shooting on
Brentwood Street in Detroit on February 18, 2007.
Evidence showed that Petitioner believed the shooting victim, 21 year old Robert
Johnson, to be a snitch. Trial evidence established that at the beginning of this chain of
events, Javare Goods fired a gun at Robert Johnson’s car. Goods was arrested.
Robert Johnson testified at Goods’ preliminary examination, which Petitioner attended.
Goods was Petitioner’s friend, and at Goods’ preliminary examination, Petitioner glared
at Robert Johnson. Derek Harris was familiar to Robert Johnson as someone who hung
out with his own younger brother.
On the day of the shooting, Robert Johnson saw Petitioner at a gas station.
Petitioner called Robert Johnson a “snitch,” and said “how you going to snitch on
somebody that supposed to be your boy?” Robert went home and told his mother what
had happened.
About twenty-five minutes later, Robert left home with his mother. As they drove
slowly down Brentwood Street, they saw the Harris brothers and Deshawn Hardwick
standing in the driveway of the Harris brothers’ house. Derek Harris was holding an
assault rifle at his side. Deshawn Hardwick was holding a small gun, and Petitioner was
holding a nine-millimeter handgun. Mrs. Johnson heard the three men call her son a
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racial epithet and say, “Shoot.” She saw both Derek Harris and Petitioner fire at the car
where she and Robert were seated. Several gunshots hit the car, and one gunshot
grazed Robert’s back. The gunshots had two different sounds.
After the shooting, the three gunmen ran toward the back of the house, and
Robert Johnson left the area. Mrs. Johnson, however, got out of the car and yelled,
“Y’all shot my car. Y’all hurt my son.” Javare Goods’ father, who was a state trooper,
was behind Robert’s car at the time, and he took Mrs. Johnson to the hospital to see
whether Robert was there.
Robert, however, went to the police station after the shooting. He tried to tell the
police what had happened, but the officers would not let him talk. They said he was too
“hyper” and that he should take care of an outstanding arrest warrant for loitering before
returning to the precinct. Consequently, Robert did not make a report. Several officers
looked at his car, however, and although they initially put handcuffs on him, they
released him about twenty minutes later.
On February 27, 2007, Police Officer Edward Sumler was investigating another
matter when he learned from Robert Johnson that there had been an incident about two
and a half weeks earlier. Officer Sumler then looked at Robert’s vehicle and noticed
what appeared to be more than ten bullet holes inside and outside his car. He detained
a juvenile by the name of Hardwick, and, later in the investigative process, he was given
the names Derone and Derek.
On May 18, 2007, Deshawn Hardwick’s brother Devin called Robert Johnson a
“snitch.” Robert then hit Devin Hardwick with his car and served several months in jail
for his conduct. On October 19, 2007, after his release from jail, he provided the police
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with a written statement about the shooting that occurred on February 18, 2007. He
named Petitioner, Derek Harris, and Deshawn Hardwick as being involved in the
shooting. Deshawn Hardwick later pleaded guilty for his role in the shooting.
Neither Petitioner nor his brother testified or presented witnesses at trial.
Petitioner’s defense was that he was entitled to an acquittal because Robert Johnson
was “untrustworthy, incredible, unreliable, a convict, and a flat out liar,” someone who
would “do anything and say anything to protect his interests.” (Trial Tr. Vol. II, 49, Jan.
30, 2008.)
On January 30, 2008, the jury acquitted Petitioner of assault with intent to commit
murder and found him guilty on two counts of the lesser offense of assault with intent to
do great bodily harm less than murder, MICH. COMP. LAWS § 750.84. The jury also found
Petitioner guilty, as charged, on one count of retaliating against a witness, MICH. COMP.
LAWS § 750.122(8), and one count of felony firearm, MICH. COMP. LAWS § 750.227b.
Petitioner filed a motion for new trial. He alleged that the prosecution failed to
notify the defense team that state trooper Thomas Goods was directly behind Robert
and Rosalind Johnson’s car at the shooting on February 18, 2007. The trial court
denied the motion.
The trial court sentenced Petitioner as a habitual offender to two years in prison
for the felony firearm conviction, followed by concurrent terms of four to fifteen years in
prison for the assault and retaliation convictions. The Michigan Court of Appeals
affirmed Petitioner’s convictions in an unpublished, per curiam opinion, see People v.
Harris, No. 284645, 2009 WL 2426310 (Mich. Ct. App. Aug. 6, 2009), and on January
27, 2010, the Michigan Supreme Court denied leave to appeal because it was not
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persuaded to review the issues. See People v. Harris, 485 Mich. 1052 (2010) (table).
Petitioner filed his habeas corpus petition through counsel on December 22, 2010.
II. STANDARD OF REVIEW
“The statutory authority of federal courts to issue habeas corpus relief for
persons in state custody is provided by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter,
__ U.S. __, __, 131 S. Ct. 770, 783 (2011). Pursuant to § 2254, the Court may not
grant a state prisoner’s application for the writ of habeas corpus unless the state court’s
adjudication of the prisoner’s claims on the merits
(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).
Under the “contrary to” clause [of § 2254(d)(1)], a federal habeas court
may grant the writ 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. Under the “unreasonable application”
clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O’Connor, J., opinion of the Court for
Part II).
“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
5

court’s decision.” Richter, 131 S. Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)). “[E]ven a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75
(2003)). To obtain a writ of habeas corpus from a federal court, a state prisoner must
show that the state court’s ruling on his or her 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 786-87.
III. DISCUSSION
A. The Exclusion of a Witness
Petitioner claims that the trial court erroneously denied his motion for new trial,
which was based on the prosecution’s alleged failure to discover and disclose a res
gestae witness. The witness was Michigan State Trooper Thomas Goods, who took
Rosalind Johnson to the hospital after the shooting on February 18, 2007. Petitioner
claims that the prosecution had a duty to investigate the facts and reveal all relevant
evidence, including the fact that Trooper Goods was behind the complaining witnesses
at the crime scene. Petitioner contends that the prosecutor’s failure to inform him about
Trooper Goods deprived him of due process and his right to present a complete
defense to the crimes. The Michigan Court of Appeals found no merit in Petitioner’s
claim.
1. Clearly Established Federal Law
“Under Brady [v. Maryland, 373 U.S. 83 (1963)], the State violates a defendant’s
right to due process if it withholds evidence that is favorable to the defense and material

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to the defendant’s guilt or punishment.” Smith v. Cain, __ U.S. __, __, 132 S. Ct. 627,
630 (2012). But Petitioner bears the burden of showing that the prosecution
suppressed evidence. Bell v. Howes, 703 F.3d 848, 853 (6th Cir. 2012) (citing United
States v. Warshak, 631 F.3d 266, 300 (6th Cir. 2010)), cert. denied, __ S. Ct. __, No.
12-9585, 2013 WL 1346367 (U.S. June 3, 2013). To state a true Brady violation, he
must demonstrate that (1) the evidence at issue was favorable to him, either because it
was exculpatory or impeaching, (2) the State suppressed the evidence, either willfully or
inadvertently, and (3) prejudice ensued. Strickler v. Greene, 527 U.S. 263, 281-82
(1999). “So long as favorable evidence could very well affect the jury’s decision,
prosecutors must disclose it. And when they fail to do so, courts have a duty to order a
retrial, allowing a jury to consider the previously concealed evidence.” United States v.
Tavera, __ F.3d __, __, No. 11-6175, 2013 WL 3064599, at *1 (6th Cir. June 20, 2013).
2. Application
At trial, Rosalind Johnson testified that she called Trooper Goods on her cell
phone before leaving home on the night of the shooting. According to her, Trooper
Goods followed her and Robert when they left home, and he was directly behind the
Johnsons’ vehicle when the defendants fired at them. Trooper Goods took her to the
hospital to look for Robert. (Trial Tr. Vol. I, 200-02, 214, Jan. 29, 2008.) She thought
that she had mentioned Trooper Goods to the police when she gave a statement; (id. at
208-09), but at the hearing on Petitioner’s motion for new trial, she admitted that, before
trial, she never told the prosecutor or the officer in charge of the case about Trooper
Goods. She further admitted that the first time she talked about Trooper Goods was at
trial in response to one of the defense attorney’s question. (Mot. Hr’g, 12-13, Feb. 27,
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2008.)
The officer in charge of the case, Joseph Rocha, testified at the post-conviction
hearing that neither Mrs. Johnson, nor anyone else, told him that Trooper Goods may
have been at the scene of the crime. (Evidentiary Hr’g 4, 6-7, Feb. 29, 2008.) Officer
Rocha was familiar with Trooper Goods due to an unrelated matter, and because
Trooper Goods did not respond to the messages that Officer Rocha left for him, Rocha
had the impression that Goods was evading him. (Id. at 9.)
The prosecutor made an offer of proof at the hearing and stated that, although
Mrs. Johnson had given her a first name and some information about a state trooper,
that information pertained to Trooper Goods’ gift of money or a car to Robert Johnson
after Javare Goods shot up Robert’s car. The prosecutor had no memory of anybody
saying that Trooper Goods was at the crime scene on February 18, 2007. In fact, she
claimed to have been just as surprised as anyone else at trial when Mrs. Johnson
testified that Trooper Goods had been there.
The prosecutor explained at the hearing that Trooper Goods was facing criminal
charges on an unrelated matter and was entitled to invoke his Fifth Amendment rights in
Petitioner’s case for dereliction of duty at the scene of the crime. (Id. at 12-13, 17-18,
20-21, 23.) Counsel for Derek Harris conceded at the evidentiary hearing that he and
counsel for Petitioner had failed to establish that the prosecutor knew, prior to Mrs.
Johnson’s testimony at trial, that Trooper Goods was present at the crime scene. (Id. at
31.)
The trial court ruled that the attorneys knew something about Trooper Goods, but
that neither side knew Goods was an eyewitness to the crime and that Goods’ presence
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at the scene was a surprise to everyone. The trial court concluded that there was no
misconduct on the part of the police or the prosecution. And, because Trooper Goods
was facing criminal charges and was not being cooperative, the trial court opined that
the result of the proceeding would not have been different if Goods had testified.
Accordingly, the trial court denied Petitioner’s motion for new trial. (Id. at 37-38.) The
Michigan Court of Appeals subsequently held that the trial court did not abuse its
discretion by denying the motion.
The state appellate court’s decision was objectively reasonable because the
record indicates that, prior to trial, the prosecutor, her predecessor, and the police knew
nothing about Trooper Goods being at the crime scene. Thus, Petitioner has failed to
show that the prosecutor suppressed evidence.
Petitioner also has not demonstrated that the evidence at issue was favorable to
him and that prejudice ensued as a result of the exclusion of Trooper Goods as a
witness. It is mere speculation that Trooper Goods would have testified in Petitioner’s
favor or would have had anything significant to say in an interview with defense counsel.
It is just as likely that Goods would have refused to testify or would have confirmed what
Robert and Rosalind Johnson observed.
Furthermore, Petitioner and his attorney became aware at trial that Trooper
Goods was present at the crime scene. Brady generally applies only to a complete
failure to disclose, not to delayed disclosure of exculpatory information. United States v.
Davis, 306 F.3d 398, 421 (6th Cir. 2002). “If previously undisclosed evidence is
disclosed, as here, during trial, no Brady violation occurs unless the defendant has been
prejudiced by the delay in disclosure.” United States v. Word, 806 F.2d 658, 665 (6th
9

Cir. 1986). Because it is not known whether Trooper Goods would have helped the
defense, Petitioner has not demonstrated that he was prejudiced by the delay in
disclosing information about Trooper Goods being at the scene of the crime.
For these reasons, the Court finds that Petitioner failed to allege a true Brady
claim; he has no right to relief on this claim.
B. Trial Counsel
In a related claim, Petitioner alleges that his trial attorney should have requested
a continuance when he discovered that Trooper Goods followed the complaining
witnesses to the crime scene. Petitioner asserts that, not requesting a continuance
amounted to ineffective assistance, because his attorney could have interviewed
Trooper Goods during an adjournment in the trial to determine what Trooper Goods
may or may not have seen. Petitioner contends that his attorney might have been able
to obtain exculpatory information from Trooper Goods, and even if the information
obtained were harmful to his case, he could have formulated a different or more
complete defense.
The Michigan Court of Appeals concluded that Petitioner did not preserve his
claim for appellate review, because he did not move for a new trial based on effective
assistance of counsel, nor request an evidentiary hearing on his claim. Nevertheless,
the Court of Appeals concluded that Petitioner’s claim lacked merit because he could
not overcome the presumption that counsel’s decision to proceed with trial was a matter
of sound trial strategy.
1. Clearly Established Federal Law
To prevail on his trial counsel claim, Petitioner must show that his attorney’s
10

“performance was deficient” and “that the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The “deficient
performance” prong “requires showing that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. “Judicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689.
To demonstrate that counsel’s performance prejudiced the defense, Petitioner
must show “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. “This does
not require a showing that counsel’s actions ‘more likely than not altered the outcome,’”
but “[t]he likelihood of a different result must be substantial, not just conceivable.”
Richter, 131 S. Ct. at 792 (quoting Strickland, 466 U.S. at 693).
2. Application
The record indicates that trial counsel made a strategic decision not to request a
continuance. Instead, he chose to attack Trooper Goods’ character and Robert
Johnson’s credibility by claiming that Goods paid Robert Johnson not to proceed with
the trial against Trooper Goods’ son, Javare Goods. (Trial Tr. Vol. II, 48, Jan. 30,
2008.) Trial counsel also pointed out that Robert Johnson had given inconsistent
testimony by testifying on direct examination that the Goods family gave him money for
the damage done to his car, but testifying on cross-examination that the family gave him
another car as compensation. (Id. at 48-49.) Additionally, trial counsel pointed out that
Robert Johnson never mentioned anything about Trooper Goods being behind him at
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the shooting. According to trial counsel, Robert failed to mention that fact at the
preliminary examination, in his statement to the police, and at trial. (Id. at 55.) In light
of the manner in which trial counsel used the information about Trooper Goods, the
Michigan Court of Appeals reasonably concluded that Petitioner had not overcome the
presumption that counsel’s decision to proceed with trial was a matter of sound trial
strategy.
Even if trial counsel had requested and been given a continuance, it is mere
speculation that Trooper Goods’ observations or lack of them would have helped
Petitioner formulate a better defense. Thus, Petitioner has failed to show that his
attorney’s failure to seek a continuance of trial to interview Trooper Goods prejudiced
him. And because the possibility existed that Trooper Goods would have refused to
testify on grounds that he might incriminate himself,1 the state appellate court’s decision
that trial counsel was not ineffective was objectively reasonable.
C. The Sufficiency of the Evidence
The third habeas claim alleges that the evidence at trial was insufficient to
support Petitioner’s convictions for assault with intent to do great bodily harm less than
murder. Petitioner points out there was no physical evidence linking him to the crime,
and although Robert Johnson was struck with a bullet, the bullet merely grazed his
back, leaving little or no mark on his body. Petitioner argues that the lack of a serious
or permanent injury is an indication that he lacked the necessary intent to be found
1

Trooper Goods may have been guilty of dereliction of duty at the crime scene.
And, as noted above, there also was some indication at trial that he may have engaged
in illegal activity by giving money or a car to Robert Johnson to prevent Robert from
testifying in Javare Goods’ criminal case.
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guilty of assault with intent to do great bodily harm less than murder. Petitioner also
contends that the complaining witnesses were not credible. The Michigan Court of
Appeals rejected Petitioner’s claim and concluded that the prosecution presented
sufficient evidence for a rational trier of fact to conclude that Petitioner committed two
counts of assault with intent to do great bodily harm less than murder.
1. Clearly Established Supreme Court Precedent
The relevant question on habeas corpus review of a sufficiency-of-the-evidence
claim is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)) (emphasis in original). This
standard “must be applied with explicit reference to the substantive elements of the
criminal offense as defined by state law.” Id. at 324 n.16.
“Jackson claims face a high bar in federal habeas proceedings because
they are subject to two layers of judicial deference. First, on direct appeal,
“it is the responsibility of the jury — not the court — to decide what
conclusions should be drawn from evidence admitted at trial. . . . And
second, on habeas review, “a federal court may not overturn a state court
decision rejecting a sufficiency of the evidence challenge simply because
the federal court disagrees with the state court. The federal court instead
may do so only if the state court decision was ‘objectively unreasonable.’ ”
Ibid. (quoting Renico v. Lett, 559 U. S. __, __, 130 S. Ct. 1855, 1862, 176
L. Ed. 2d 678 (2010)).
Coleman v. Johnson, __ U.S. __, __, 132 S. Ct. 2060, 2062 (2012) (per curiam).
2. Application
In Michigan, “[t]he elements of assault with intent to do great bodily harm less
than murder are: ‘(1) an attempt or threat with force or violence to do corporal harm to
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another (an assault), and (2) an intent to do great bodily harm less than murder.’”
People v. Brown, 267 Mich. App. 141, 147 (2005) (footnote and emphasis omitted)
(quoting People v. Parcha, 227 Mich. App. 236, 239 (1997)). “The intentional discharge
of a firearm at someone within range is an assault,” People v. Johnson, 54 Mich. App.
303, 304 (1974), and the Michigan Court of Appeals “has defined the intent to do great
bodily harm as ‘an intent to do serious injury of an aggravated nature.’” Brown, 267
Mich. App. at 147 (quoting People v. Mitchell, 149 Mich. App. 36, 39 (1986) (citing
People v. Ochotski, 115 Mich. 601, 608 (1898)).
Both Robert and Rosalind Johnson recognized Petitioner on the night of the
crime, and both testified that Petitioner was armed with a gun that night. According to
Mrs. Johnson, Petitioner and his companions used a racial slur when they saw her and
Robert and said, “Shoot.” Then, according to her, both Petitioner and his brother raised
their guns and fired them at her and her son.
Robert heard seven or eight gunshots from what appeared to be two different
guns. One of the gunshots grazed Robert, and several other gunshots struck his car.
Robert could distinguish the sound of two different guns. The fact that Robert was not
seriously hurt and that most of the bullets missed the victims does not negate the intent
element; actual physical injury is not required for the elements of the crime to be
established. People v. Harrington, 194 Mich. App. 424, 430 (1992). Physical evidence
also is not required to sustain a conviction, Davis, 306 F.3d at 409, and “[a]n
assessment of the credibility of witnesses is generally beyond the scope of federal
habeas review of sufficiency of evidence claims.” Matthews v. Abramajtys, 319 F.3d
780, 788-89 (6th Cir. 2003) (citing Gall v. Parker, 231 F.3d 265, 286 (6th Cir. 2000)).
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In conclusion, a rational juror could have inferred from the evidence that
Petitioner assaulted the complaining witnesses and intended to do great bodily harm.
Thus, there was sufficient evidence to support Petitioner’s convictions for assault with
intent to do great bodily harm less than murder. The state appellate court’s
determination that the evidence was sufficient to sustain Petitioner’s convictions was not
contrary to, or an unreasonable application of, Jackson.
D. The Prosecutor
The final habeas claim alleges that the prosecutor’s closing arguments deprived
Petitioner of his right to a fair trial. Specifically, Petitioner argues that the prosecutor
vouched for the credibility of the complaining witnesses and violated his rights under the
Fifth Amendment by directing the jury’s attention to his failure to testify. Petitioner also
alleges that his trial attorney was ineffective for failing to object to one of the
prosecutor’s remarks.
The Michigan Court of Appeals reviewed Petitioner’s prosecutorial misconduct
claim for “plain error” because Petitioner did not preserve his claim for appellate review
by objecting at trial to the alleged misconduct. The Court of Appeals went on to
conclude that the prosecutor’s conduct was not improper and that Petitioner could not
demonstrate plain error affecting his substantial rights.
“Claims of prosecutorial misconduct are reviewed deferentially on habeas
review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004). A reviewing court may
grant relief only when the prosecutor infringes on specific provisions of the Bill of Rights
or infects the trial with such unfairness as to make the resulting conviction a denial of
due process. Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). To prevail on his
15

claim, Petitioner must show that the prosecutor’s arguments were so egregious “as to
render the entire trial fundamentally unfair.” Cook v. Bordenkircher, 602 F.2d 117, 119
(6th Cir. 1979). Federal courts in this Circuit
apply a “two-part test to determine whether the state court reasonably
applied the federal standard in holding that prosecutorial misconduct did
not render [the petitioner’s] trial fundamentally unfair.” Irick v. Bell, 565
F.3d 315, 324 (6th Cir. 2009). [Courts] first determine whether the
prosecution’s conduct was improper. Id. Second, [courts] determine
whether that improper conduct was flagrant by considering four factors:
“(1) whether the evidence against the defendant was strong; (2) whether
the conduct of the prosecution tended to mislead the jury or prejudice the
defendant; (3) whether the conduct or remarks were isolated or extensive;
and (4) whether the remarks were made deliberately or accidentally.” Id.
(internal quotation marks omitted).
Wogenstahl v. Mitchell, 668 F.3d 307, 328 (6th Cir.), cert. denied, __ U.S. __, 133 S. Ct.
311 (2012).
1. Vouching
Petitioner claims that the prosecutor vouched for Rosalind Johnson’s credibility
during closing arguments. Petitioner maintains that the comments were prejudicial and
deprived him of a fair trial. The Michigan Court of Appeals disagreed and concluded
that the prosecutor did not commit misconduct by commenting on Mrs. Johnson’s
credibility.
A prosecutor engages in improper vouching
“when a prosecutor supports the credibility of a witness by indicating a
personal belief in the witness’s credibility thereby placing the prestige of
the [prosecutor] behind that witness.” [United States v. Francis, 170 F.3d
546, 550 (6th Cir. 1999)]. This generally involves either blunt comments
asserting personal belief, or comments that imply special knowledge of
facts not before the jury or the credibility or truthfulness of the witness. Id.
United States v. Reid, 625 F.3d 977, 982 (6th Cir. 2010).
At Petitioner’s trial, the prosecutor said:
16

I am going to suggest to you, ladies and gentleman, that just
because somebody may not have a big formal education and understand
a lot of flowery language, that it doesn’t make them dumb. It doesn’t make
them, not know who shot at them.
Some of the smartest people around can’t read and write, and
anybody, even a dog knows when they are being kicked on purpose or
tripped over accidentally. So don’t let somebody put in your mind that
because Miss Johnson might not be sophisticated, she doesn’t know who
shot at her, or that she doesn’t deserve justice because somebody shot at
her. Keep that in mind.
(Trial Tr. Vol. II, 15-16, Jan. 30, 2008.)
Petitioner claims that the jury could have inferred from these remarks that
everything Rosalind Johnson said was true because the prosecutor was insisting that
Rosalind Johnson should be believed, no matter how unsophisticated she might appear.
The prosecutor, however, did not indicate a personal belief in Mrs. Johnson’s credibility.
Nor did the prosecutor imply that she had special knowledge about Mrs. Johnson. She
was merely saying that even an unsophisticated and uneducated person deserves
justice and is capable of knowing what happened. Thus, the prosecutor’s comments
were proper.
Even if the remarks were improper, they were not flagrant. The evidence against
Petitioner was strong, and the trial court instructed the jurors at the beginning and at the
end of the trial that the attorneys’ arguments were not evidence, but were meant to help
the jurors understand the evidence and each side’s theories. The trial court also
explained to the jurors how to evaluate the credibility of witnesses, and the court stated
that the jurors could reject some or all of what the witnesses said. (Trial Tr. Vol. I, 5457, Jan. 29, 2008; Trial Tr. Vol. II, 70-74, Jan. 30, 2008.) Therefore, Petitioner has no
right to relief on his claim that the prosecutor vouched for Rosalind Johnson’s credibility.
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2. Commenting on Petitioner’s Failure to Testify
Petitioner asserts that the prosecutor violated his rights under the Fifth
Amendment by commenting on his decision not to testify. The Michigan Court of
Appeals concluded on review of this claim that Petitioner had failed to demonstrate that
the prosecutor engaged in misconduct and that the alleged misconduct affected the
outcome of the case.
“[A] criminal defendant has an ‘absolute right not to testify.’” Salinas v. Texas, __
U.S. __, __. 113 S. Ct. 2174, 2179 (2013) (quoting Turner v. United States, 396 U.S.
398, 433 (1970) (Black, J., dissenting)). And “the Fifth Amendment, in its direct
application to the Federal Government and in its bearing on the States by reason of the
Fourteenth Amendment, forbids either comment by the prosecution on the accused’s
silence or instructions by the court that such silence is evidence of guilt.” Griffin v.
California, 380 U.S. 609, 615 (1965). This rule “applies to indirect as well as direct
comments on the failure to testify.” Raper v. Mintzes, 706 F.2d 161, 164 (6th Cir. 1983).
At issue here is the prosecutor’s comment during her rebuttal argument that
“every one of you knows that today is the date for [the defendants] to step up to the
plate and be accountable for their behavior . . . .” (Trial Tr. Vol. II, 64, Sept. 30, 2008.)
Petitioner claims that, because only he and his co-defendant could have refuted the
complaining witnesses’ version of what happened, the jury could have interpreted the
prosecutor’s comment to be a reference to his and his co-defendant’s failure to testify at
trial. Petitioner contends that the remark was an attempt to persuade the jury to convict
him on the basis that his silence at trial was an admission of guilt.
The prosecutor made a similar remark during her initial closing argument, saying,
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Today is the day. Today is the day for these two men to take
responsibility for their behavior. That’s what this is about. And that’s up to
you now to do that.
(Id. at 28.) Those remarks were prefaced by references to Deshawn Hardwick, who
pleaded guilty for his participation in the shooting incident, and Robert Johnson, who
went to jail as a result of hitting Deshawn’s brother with his car. The prosecutor was
saying that both Deshawn and Robert took responsibility for their conduct and that the
defendants, likewise, should take responsibility for their behavior.
At no time did the prosecutor mention Petitioner’s silence or failure to testify.
The Court disagrees with Petitioner’s contention that the jury would reasonably infer
from the prosecutor’s remarks that Petitioner’s failure to testify was an admission of
guilt. The prosecutor was arguing that the defendants should be held accountable for
their crimes.
Furthermore, defense counsel informed the jurors that Petitioner did not have to
testify or do anything (id. at 44), and the trial court instructed the jurors at the beginning
of the trial that the defendants were presumed innocent and were not required to testify,
prove their innocence, produce evidence, or do anything. (Trial Tr. Vol. I, 33-34, 54,
Jan. 29, 2008.) At the close of the trial, the court charged the jurors not to let their
verdict be affected by the fact that the defendants did not testify. The court explained
that each defendant had the absolute right not to testify. (Trial Tr. Vol. II, 75-76, Jan.
30, 2008.) “[J]uries are presumed to follow their instructions.” Richardson v. Marsh,
481 U.S. 200, 211 (1987).
To conclude, Petitioner’s Fifth Amendment right not to have the prosecutor
comment on his silence was not violated, and the state appellate court’s decision on
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Petitioner’s claim was objectively reasonable. Consequently, Petitioner is not entitled to
habeas relief on the basis of the prosecutor’s comment about it being time for Petitioner
to “step up to the plate.”
3. Trial Counsel’s Failure to Object
Petitioner argues that his trial attorney was ineffective for failing to object to the
prosecutor’s comment that “today is the date for them to step up to the plate and be
accountable for their behavior.” The Michigan Court of Appeals determined that an
objection to the prosecutor’s argument would have been overruled because the
prosecutor did not commit misconduct. The Court of Appeals concluded that
Petitioner’s ineffective-assistance-of-counsel claim lacked merit.
This Court agrees with the Michigan Court of Appeals. The prosecutor did not
comment on Petitioner’s silence or failure to testify. It follows that defense counsel was
not ineffective for failing to object to the prosecutor’s comment. An attorney is not
ineffective for failing to make a meritless objection. Hoffner v. Bradshaw, 622 F.3d 487,
509 (6th Cir. 2010).
IV. CONCLUSION
The state appellate court’s adjudication of Petitioner’s claims did not result in a
decision that was contrary to Supreme Court precedent, an unreasonable application of,
Supreme Court precedent, or an unreasonable determination of the facts. Accordingly,
the petition for a writ of habeas corpus [dkt. #1] is DENIED.
The Court declines to issue a certificate of appealability; reasonable jurists would
not disagree with the Court’s resolution of Petitioner’s constitutional claims, nor

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conclude that the issues presented are adequate to deserve encouragement to proceed
further. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
IT IS ORDERED.

s/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: July 12, 2013
The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
July 12, 2013.
s/Linda Vertriest
Deputy Clerk

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