Tackett v. Scutt
Filing
20
OPINION and ORDER Denying the Petition for Writ of Habeas Corpus and Granting in Part a Certificate of Appealability re 1 . Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSHUA JOSEPH TACKETT,
Petitioner,
CASE NO. 12-15637
HONORABLE DENISE PAGE HOOD
v.
DEBRA SCUTT,
Respondent.
___________________________/
OPINION AND ORDER DENYING THE PETITION
FOR WRIT OF HABEAS CORPUS AND GRANTING
IN PART A CERTIFICATE OF APPEALABILITY
This matter is presently before the Court on petitioner Joshua Joseph
Tackett’s habeas corpus petition under 28 U.S.C. § 2254. The petition challenges
Petitioner’s Washtenaw County convictions for two counts of first-degree
(premeditated) murder, Mich. Comp. Laws § 750.316(1)(a), and two counts of
possessing a firearm during the commission of a felony (“felony firearm”), Mich.
Comp. Laws § 750.227b. Petitioner is serving a life sentence for the murder
convictions. He claims in his habeas petition that (1) the evidence was insufficient
to support his murder convictions, (2) the trial court’s jury instructions violated his
constitutional rights, (3) the trial court violated his right to present a defense, (4)
his rights to due process and equal protection of the law were violated because two
more culpable co-defendants were found guilty of the lesser offense of seconddegree murder, (5) his trial attorney was ineffective, and (6) his attorney on direct
appeal was ineffective. The State urges the Court to deny the petition. Because the
Court agrees that Petitioner’s claims do not warrant habeas relief, the denies the
petition.
I. BACKGROUND
Petitioner and his three co-defendants (Paul Copas, Tony Tard, and Sarah
Sykes) were charged with two counts of open murder and two counts of felony
firearm. The charges arose from a shooting at Clint Ousley’s mobile home in
Ypsilanti Township about 11:30 p.m. on July 9, 2006. The shooting resulted in the
deaths of fourteen-year-old Krilissa Feldman and seventeen-year-old Scott Bonar.
Prior to the shooting, Copas, Tard, Sykes, and Krisann Elisson went to
Ousley’s home in Copas’ van. Copas confronted Ousley outside Ousley’s trailer
and called Ousley a bitch; he also made a motion like he was cocking a gun.
Ousley picked up a baseball bat and called for help from two of his friends who
were inside his trailer. Ousley and his friends then argued with Copas and Tard for
a few minutes. Copas and Tard retreated soon afterward and jumped back in their
van. As they drove away, Ousley threw a crowbar into the rear side window of the
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van and knocked out the window. As written by the state court of appeals, later
that evening,
[Tackett, Copas, and Tard left Copas’] house with two assault rifles,
picked up codefendant Sykes and others, and traveled from Ecorse to
Ousley’s trailer home in Ypsilanti. When they were near Ousley’s
trailer, codefendant Tard stopped at a gas station and covered the
license plate, and defendant Tackett moved from the passenger seat to
the rear of the van near the broken window. Defendant Tackett put on
gloves and supplied gloves or socks for the others. Codefendant
Sykes continued to the trailer park. The van pulled over and waited
until a patrol car left the area. As they waited, codefendant Tard said,
“let’s shoot up the trailer,” and defendant Tackett “[went] along with
him.” After the patrol car left the area, the van continued to Ousley’s
trailer and the three men put on hooded sweatshirts. There was
evidence that defendant Tackett shot or attempted to shoot a handgun
while his codefendants fired assault rifles into Ousley’s trailer. After
the shooting, the group drove back to Ecorse where defendant Tackett
attempted to hide the assault rifles in his father’s garage.
People v. Tackett, No. 277549, 2008 WL 4149002, at *9 (Mich. Ct. App. Sept. 9,
2008).
The next day, Petitioner voluntarily reported to the police station, and when
an officer interviewed him, he initially told the officer that he was with his
girlfriend on the night of the shooting. He later changed his story and said that he
was asked to go to the trailer park on the afternoon of the shooting, but that he
declined to go. Petitioner went on to tell the officer that Copas later summoned
him to Copas’ home, and when he got there, he saw Copas and Tard putting
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ammunition in assault weapons. Petitioner also stated that, after observing Copas,
Tard, and Sykes leave with the assault rifles, he went home.
Following an additional investigation, Petitioner and Copas were tried
jointly, but before separate juries, in Washtenaw County Circuit Court. Two key
witnesses were Krisann Ellison and Loni Shalton who were not charged with the
crimes. Ms. Ellison went to Ousley’s trailer in Copas’ van on the afternoon of July
9, 2006, and at trial, she corroborated Ousley’s testimony about the afternoon
incident. She also explained what happened later that day when she, Petitioner,
Copas, Tard, and others went to Ousley’s trailer in Copas’ van.
During the
nighttime incident, she initially did not see any weapons, but later she saw the men
pull out three guns from under a mattress in the van and then go to the back of the
van where they put bullets in the guns. She did not observe the actual shooting
because she had her head down, but she could tell that the shooting came from the
back window of the van.
On cross-examination, Ms. Ellison admitted that she did not mention
Petitioner to the police during an interview and that she probably informed the
police that she did not see who had the guns. She also admitted that she did not
actually see Petitioner pull out a firearm or fire a gun, but she thought that the third
firearm may have been small. She said that she was afraid of all the men and that,
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after the shooting, either Petitioner or Copas threatened to do to her what the men
had done to Ousley if she said anything about the incident.
Loni Shalton was present only during the nighttime incident. She testified
that she saw two long guns in the van on the way to Ousley’s trailer and that Copas
had wanted to drive by the trailer park and shoot into the air. Tard later suggested
shooting up the trailer, and they all agreed to that suggestion. After the group
stopped at a gas station, the men got in the back of the van, and Sykes drove the
van. She (Shalton) then saw three guns, one of which was a small handgun that
Petitioner may have pulled out from somewhere on his clothes. Petitioner also
pulled out gloves. He kept one for himself and handed the other gloves to Copas
and Tard. After Tard said that he was going to shoot up the trailer, they arrived at
the trailer. The men put on hooded sweatshirts and fired their guns out the broken
window of the van. Then they returned to Ecorse where they handed their guns to
a man who lived across the street from Petitioner’s father.
On cross-examination, Ms. Shalton stated that she was not looking at who
was shooting when the guns were fired. She also stated that Petitioner had said his
gun jammed and did not fire. She was unable to say whether Petitioner discharged
his weapon, and she denied hearing Petitioner make any threats.
She was
questioned about her testimony at the preliminary examination where she said that
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she did not see Petitioner point a handgun at anybody outside the van. She then
admitted that she did not see Petitioner shoot anybody.
Petitioner did not testify at trial, and his only witness was Steven Howard,
who testified as an expert in firearms. Mr. Howard maintained that the lead core of
the bullet fragment linked to the handgun supposedly used by Petitioner was badly
oxidized, which meant that it was probably in a moist open-air environment for a
considerable amount of time. His educated guess was that the bullet had been fired
inside the home, because a bullet of that size has little energy.
Petitioner’s defense was that there was no physical evidence connecting him to the
crime, that Ms. Ellison and Ms. Shalton were inconsistent in their testimonies, and
that he did not shoot anybody, intend to commit murder, or aid and abet anyone in
committing the crimes.
On January 26, 2007, both Petitioner and Copas were
found guilty of two counts of first-degree, premeditated murder and two counts of
felony firearm.1
1
At some point, Tard and Sykes pleaded guilty to two counts of felony firearm
and two counts of open murder, which encompasses first‐degree and second‐
degree murder. See People v. Johnson, 427 Mich. 98, 107; 398 N.W.2d 219, 222
(1986) (“Neither statute nor case law requires specification of the degree of
murder at a preliminary examination where open murder is charged in the
information.”)
The “open murder” statute, M.C.L. § 750.318, establishes a procedure
for determining the degree of murder when the information does not
charge the defendant with a specific degree of murder. When a person
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Petitioner moved for a new trial and for a judgment notwithstanding the
verdict (“JNOV”).
Petitioner argued in his JNOV motion that there was
insufficient evidence of premeditation and deliberation to substantiate a firstdegree murder conviction. The trial court disagreed, noting
that the defendants fired numerous times with weapons that included
assault rifles directly into a house trailer from close range. And the
evidence further indicated that they had planned this for some time, at
least during the trip to Ypsilanti and as was testified to, there were
discussions about what they were going to do during that time. . . .
(3/13/07 Sentencing Tr. at 10.)
The trial court denied the JNOV motion after
concluding that “the jury could well have found as they did, premeditation and
deliberation.” Id.
charged with murder is convicted by a jury, M.C.L. § 750.318 requires
the jury to “ascertain in their verdict, whether it be murder of the first
or second degree.” However, when a defendant is “convicted by
confession,” the court must “proceed by examination of witnesses to
determine the degree of the crime” and “render judgment accordingly.”
Id.; People v. Martin, 316 Mich. 669, 671–672, 26 N.W.2d 558 (1947).
The statute does not specify whether the defendant retains any
constitutional rights regarding the hearing, but [the Michigan Court of
Appeals has] held that the degree hearing following a guilty plea is not
a trial, and a defendant who pleads guilty of open murder is no longer
entitled to have a jury determine the degree of murder.
People v. Watkins, 247 Mich. App. 14, 20–21; 634 N.W.2d 370, 376 (2001) (end
citations omitted). The trial judge who presided over Petitioner’s trial held a “degree
hearing” in Tard and Sykes’ cases and found both of them guilty of second‐degree
murder, Mich. Comp. Laws § 750.317.
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Petitioner’s motion for new trial raised five issues regarding the violation of
the trial court’s discovery order, the sufficiency of the evidence, the alleged denial
of the right to confront a witness, the autopsy photographs, and the alleged tainting
of the jury pool. The trial court found no merit in those claims and denied
Petitioner’s motion for new trial. Id. at 10-12. The trial court then sentenced
Petitioner to two concurrent terms of two years in prison for the felony-firearm
convictions, followed by two concurrent terms of life imprisonment for the murder
convictions. Id. at 28-29.
In an appeal as of right, Petitioner argued through counsel that: (1) there
was insufficient evidence to support his murder convictions; (2) defense counsel
was ineffective for failing to (a) elicit further evidence of an intent to destroy
property, (b) object to improper evidence of propensity to commit crimes, and (c)
request a specific jury unanimity instruction; (3) he was denied his constitutional
right to a unanimous verdict; (4) the trial court deprived him of his right to due
process and a fair trial by allowing a prosecution witness to testify, despite the late
provision of discovery material; and (5) the improper admission of photographs
deprived him of a fair trial.
The Michigan Court of Appeals consolidated
Petitioner’s appeal with Copas’ appeal and affirmed both defendants’ convictions.
See People v. Tackett, Nos. 277240, 277547, 2008 WL 4149002 (Mich. Ct. App.
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Sept. 9, 2008). Petitioner raised the same issues in the Michigan Supreme Court,
which denied leave to appeal on January 21, 2009, because it was not persuaded to
review the questions presented to it. See People v. Tackett, 483 Mich. 878; 759
N.W.2d 207 (2009).
Petitioner subsequently filed a motion for relief from judgment in which he
argued through his current attorney that: (1) his murder convictions violated due
process and equal protection of the law because two more culpable co-defendants
were found guilty of second-degree murder; (2) his convictions violate substantive
due process because elements of a statutorily defined offense were found not to
exist as to two co-defendants; (3) the trial court’s explanation of the distinction
between first-degree and second-degree murder violated his right to due process
because the instruction required the jury to reject manslaughter as a lesser offense
before finding guilt on second-degree murder; (4) defense counsel was ineffective
for failing to (a) recall and impeach Ousley, (b) object to the erroneous jury
instructions, (c) move for an adjournment of the trial, and (d) impeach two
prosecution witnesses; and (5) appellate counsel was ineffective for failing to raise
the foregoing issues on direct appeal. The trial court rejected Petitioner’s third
and fourth claims about the jury instructions and trial counsel because Petitioner
had not shown “good cause” under Michigan Court Rule 6.508(D)(3) for failing to
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raise the issues on appeal and “actual prejudice.”
The trial court rejected
Petitioner’s claim about appellate counsel because Petitioner’s underlying claims
about the jury instructions and trial counsel lacked merit.
The trial court addressed the merits of Petitioner’s first and second claims
regarding the disparity in the judgments between the two sets of co-defendants.
The trial court stated that it was unjust and a miscarriage of justice that Petitioner
was convicted and sentenced for first-degree murder, whereas co-defendants Tard
and Sykes were subsequently convicted and sentenced for second-degree murder,
despite the lack of a factual difference in circumstances. The court, nevertheless,
denied Petitioner’s motion for relief from judgment because the court did not
believe it had the power under state law to grant the requested relief. See People v.
Tackett, No. 06-1194 FC (Washtenaw Cty. Cir. Ct. Nov. 5, 2010). Petitioner
appealed the trial court’s decision without success. Both the Michigan Court of
Appeals and the Michigan Supreme Court denied leave to appeal for failure to
establish entitlement to relief under Michigan Court Rule 6.508(D). See People v.
Tackett, No. 305881 (Mich. Ct. App. July 13, 2012); People v. Tackett, 493 Mich.
897; 822 N.W.2d 774 (2012).
On December 22, 2012, Petitioner filed his habeas corpus petition. After the
State filed an answer to the petition, Petitioner moved for a stay until Michigan’s
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appellate courts could decide in an unrelated case whether trial courts may correct
unjust convictions and grant relief from judgment under Mich. Comp. Laws §
770.1. On August 29, 2013, the Court granted Petitioner’s motion for a stay and
closed this case for administrative purposes. See Order, Docket No. 17.
On May 24, 2016, Petitioner moved to lift the stay in this case on the basis
that the authority of trial courts to correct injustice under § 770.1 was not likely to
be resolved by the State’s appellate courts in the near future. On September 28,
2016, the Court granted Petitioner’s motion and re-opened this case. See Order,
Docket No. 19.
As a preliminary matter, the Court addresses the State’s contention that
Petitioner procedurally defaulted his second claim regarding the jury instructions
and portions of his fifth claim regarding trial counsel. Petitioner maintains that his
appellate counsel’s ineffectiveness excuses the alleged procedural defaults.
In the habeas context, a procedural default is “a critical failure to comply
with state procedural law.” Trest v. Cain, 522 U.S. 87, 89 (1997). A procedural
default ordinarily is not a jurisdictional matter, Johnson v. Lee, 136 S. Ct. 1802,
1806 (2016) (citing Trest, 522 U.S. at 89), and “ ‘[j]udicial economy might
counsel’ bypassing a procedural-default question if the merits ‘were easily
resolvable against the habeas petitioner.’ ” Id. (quoting Lambrix v. Singletary, 520
11
U.S. 518, 525 (1997)). Petitioner’s claims do not warrant habeas relief, and the
Court finds it more efficient to address the substantive merits of the claims than to
determine whether the claims are procedurally defaulted. The Court, therefore,
excuses the alleged procedural defaults in this case and proceeds to address
Petitioner’s claims on their merits.
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
requires habeas petitioners who challenge “a matter ‘adjudicated on the merits in
State court’ to show that the relevant state court ‘decision’ (1) ‘was contrary to, or
involved an unreasonable application of, clearly established Federal law,’ or (2)
‘was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceedings.’ ” Wilson v. Sellers, 138 S. Ct. 1188,
1192 (2018) (quoting 28 U.S.C. § 2254(d)). “[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. Rather, that application must also be unreasonable.” Williams v.
Taylor, 529 U.S. 362, 411 (2000). “AEDPA thus imposes a ‘highly deferential
standard for evaluating state-court rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n.
7 (1997), and ‘demands that state-court decisions be given the benefit of the
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doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v.
Lett, 559 U.S. 766, 773 (2010).
“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, 562 U.S. 86, 101 (2011) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 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 103. A state-court’s factual determinations are
presumed correct on federal habeas review, 28 U.S.C. § 2254(e)(1), and review is
“limited to the record that was before the state court.” Cullen v. Pinholster, 563
U.S. 170, 181 (2011).
III. DISCUSSION
A. Sufficiency of the Evidence
Petitioner begins by challenging the sufficiency of the evidence at his trial.
He argues that the evidence failed to show he possessed the intent to kill, which is
an element of first-degree murder. He contends that two factors point to the lack of
premeditation: (1) evidence that the defendants acted recklessly, not deliberately,
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and merely wanted to avenge property destruction (the breaking of the window in
Tard’s van) with property destruction (shooting up Ousley’s trailer); and (2)
evidence that Petitioner did not shoot either one of the victims. The Michigan
Court of Appeals disagreed with Petitioner’s argument and concluded that the
evidence was sufficient to support his murder convictions.
1. Clearly Established Federal Law
The Due Process Clause of the United States Constitution “protects the
accused against conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.” In re Winship,
397 U.S. 358, 364 (1970). Following Winship, the critical inquiry on review of a
challenge to the sufficiency of the evidence supporting a criminal conviction is
whether the record evidence could reasonably support a finding
of guilt beyond a reasonable doubt. But this inquiry does not
require a court to “ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt.” Instead, the relevant question 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. This familiar standard
gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citations and footnote
omitted) (emphases in original).
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Under AEDPA, the Court’s “review of a state-court conviction for
sufficiency of the evidence is very limited.” Thomas v. Stephenson, 898 F.3d 693,
698 (6th Cir. 2018). “Jackson claims face a high bar in federal habeas proceedings
because they are subject to two layers of judicial deference.” Coleman v. Johnson,
566 U.S. 650, 651 (2012) (per curiam).
First, it is the responsibility of the jury to decide what conclusions should be
drawn from the evidence admitted at trial. Id. (quoting Cavazos v. Smith, 565 U.S.
1, 2 (2011) (per curiam)). “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.’”
Id. (quoting Cavazos, 565 U.S. at 2); see also Tanner v. Yukins, 867 F.3d 661, 672
(6th Cir. 2017) (stating that “two layers of deference apply [to a sufficiency-of-theevidence claim], one to the jury verdict, and one to the state appellate court”), cert.
denied, 138 S. Ct. 1283 (2017).
“[T]his standard is difficult to meet,” no doubt, but “that is because it
was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
“[H]abeas corpus is a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error correction
through appeal.” Id. at 102-03 (internal quotation marks and citation
omitted).
Thomas, 898 F.3d at 698.
15
The Jackson “standard must be applied with explicit reference to the
substantive elements of the criminal offense as defined by state law.” Jackson, 443
U.S. at 324 n.16. To establish first-degree premeditated murder in Michigan, “the
prosecution must prove that the defendant intentionally killed the victim and [that]
the act of killing was deliberate and premeditated.” People v. Haywood, 209 Mich.
App. 217, 229; 530 N.W.2d 497, 503 (1995).
“To premeditate is to think about
beforehand; to deliberate is to measure and evaluate the major facets of a choice or
problem.” People v. Morrin, 31 Mich. App. 301, 329; 187 N.W.2d 434, 449
(1971) (internal and end footnotes omitted). “[P]remeditation and deliberation
may be inferred from all the facts and circumstances surrounding the incident,
including the parties’ prior relationship, the actions of the accused both before and
after the crime, and the circumstances of the killing itself.” Haywood, 209 Mich.
App. at 229; 530 N.W.2d at 503 (internal and end citations omitted).
Petitioner was charged with committing murder or intentionally assisting
someone else in committing the murder. Aiding and abetting is “any type of
assistance given to the perpetrator of a crime by words or deeds that are intended to
encourage, support, or incite the commission of that crime.” People v. Moore, 470
Mich. 56, 63; 679 N.W.2d 41, 46 (2004).
To show that an individual aided and abetted the commission of a
crime, the prosecution must establish
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“that (1) the crime charged was committed by the
defendant or some other person, (2) the defendant
performed acts or gave encouragement that assisted the
commission of the crime, and (3) the defendant intended
the commission of the crime or had knowledge that the
principal intended its commission at the time he gave aid
and encouragement.”
People v. Henderson, 306 Mich. App. 1, 10; 854 N.W.2d 234, 241 (2014) (quoting
People v. Carines, 460 Mich. 750, 757-58; 597 N.W.2d 130, 135 (1999)). “Mere
presence, even with knowledge that an offense is about to be committed or is being
committed, is insufficient to show that a person is an aider and abettor.” People v.
Wilson, 196 Mich. App. 604, 614; 493 N.W.2d 471, 476 (1992).
2. Application
As noted above, the evidence established that, on the night of the shooting,
Petitioner, Copas, and Tard left Copas’ home with two assault rifles. They picked
up a few other individuals in Copas’ van and headed toward Ousley’s trailer park,
which was located in a different city. Along the way, Petitioner, Copas, and Tard
moved to the back of the van near the broken window.
Petitioner pulled out a
glove and gave a glove or sock to Copas and Tard. He also helped Copas and Tard
put bullets in guns that they pulled out from under a mattress in the van. When the
group arrived in Ousley’s trailer park, they waited for a patrol car to pass by and
then agreed to shoot up the trailer. Petitioner was observed with a handgun, and
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the physical evidence indicated that assault rifles and possibly a handgun were
fired at Ousley’s trailer. After the shooting, the group returned to Ecorse where
Petitioner assisted the group in disposing of the guns.
The Michigan Court of Appeals reasonably concluded from the evidence
that “Tackett’s conduct before, during, and after the incident was sufficient to
enable the jury to find beyond a reasonable doubt that he was a willing participant
in the commission of the crimes.” Tackett, 2008 WL 4149002, at *9. The Court of
Appeals pointed out that “the use of assault rifles supported an inference that
defendant Tackett possessed an intent to kill, and the drive from Ecorse to
Ypsilanti, along with the delay while waiting for a patrol car to leave the area
immediately before the shooting, permitted an inference that the shooting was
deliberate and premeditated.” Id. The Michigan Court of Appeals also opined that
the evidence and Petitioner’s relationship with the co-defendants involved in the
offense supported an inference that he agreed to participate in the crime.
Even if Petitioner did not cause the victims’ deaths, a rational trier of fact
could have concluded from the evidence that he assisted Copas and Tard in
committing the murders. He armed himself with a gun and possessed gloves or
socks, ostensibly to avoid leaving fingerprints on the guns. He also accompanied
Copas and Tard to Ousley’s trailer and agreed to the plan to shoot up the trailer.
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The jury could have inferred from the fact that the group went to the home of
Petitioner’s father immediately after the shooting and then disposed of the guns
nearby that Petitioner supplied the firearms used in the shooting. The jury also
could have inferred that Petitioner intended to use the weapons to shoot and kill
Ousley and his friends or that he knew Copas and Tard intended to kill the
occupants of the trailer.
A rational juror could have concluded from the evidence taken in the light
most favorable to the prosecution that the prosecution proved the elements of the
crime beyond a reasonable doubt. The Court must defer to the jury’s verdict and to
the state court’s conclusion that there was sufficient evidence of first-degree
murder. Because both the jury’s verdict and the state court’s conclusion were
objectively reasonable, Petitioner has no right to relief on the basis of his claim.
B. The Jury Instructions
Petitioner argues next that the trial court’s charge to the jury violated his
rights to due process and a fair trial because the instructions failed to ensure that
the jury properly applied the law to the facts. Petitioner alleges that (1) the
instructions required the jury to reject manslaughter as a possible verdict before
finding Petitioner guilty of murder and (2) the court failed to read an instruction on
the necessity of a unanimous verdict as to distinct acts.
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The Michigan Court of
Appeals rejected the latter argument on direct appeal, and the state trial court
rejected the former argument during post-conviction proceedings.
1. Clearly Established Law
Trial judges have a duty to give instructions that sufficiently explain the law,
Kelly v. South Carolina, 534 U.S. 246, 256 (2002), but “not every ambiguity,
inconsistency, or deficiency in a jury instruction rises to the level of a due process
violation.” Middleton v. McNeil, 541 U.S. 433, 437 (2004). The only question on
habeas review of a jury instruction is whether the ailing instruction infected the
entire trial, such that the resulting conviction violates due process. Estelle v.
McGuire, 502 U.S. 62, 72 (1991) (citing Cupp v. Naughten, 414 U.S. 141, 147
(1973)).
A reviewing court must judge the disputed instruction in the context of the
trial record and the instructions as a whole. Id.
So, “[t]o 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.’ ” Buell v. Mitchell,
274 F.3d 337, 355 (6th Cir. 2001) (quoting Scott v. Mitchell, 209 F.3d 854, 882
(6th Cir. 2000)). In making that determination, the Court must bear in mind that
the Supreme Court has defined the category of infractions that violate fundamental
fairness very narrowly. McGuire, 502 U.S. at 72-73.
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2. Mitigation to Manslaughter
The trial court initially instructed the jury that, to convict Petitioner of firstdegree, premeditated murder, the jury had to find beyond a reasonable doubt that:
First[,] the defendant caused the death of Krilissa Feldman as to count
one and to Scott Bonar as to count two. Second, that the defendant
intended to kill Krilissa Feldman as to count one and Scott Bonar as to
count two. Third, that this intent to kill was premeditated, that is
thought out beforehand. And fourth, that the killing was deliberate
which means that defendant considered the pros and cons of the
killing, and thought about and chose his actions before he did it. . . .
And fifth, that the killing was not justified, excused, or done under
circumstances that reduce it to a lesser crime.
(1/25/07 Trial Tr. at 235.)
The court went on to explain that the jury could also consider the lesser
charge of second-degree murder. When the court subsequently summarized the
difference between second-degree and first-degree murder, the trial court said:
First degree, premeditated murder requires the victim’s death, that the
death was caused by the defendant, that the death was not justified or
excused or mitigated to manslaughter, and fourth that the defendant
actually intended to kill the victim and the defendant premeditated the
victim’s death, and that the defendant deliberated the victim’s death.
Id. at 236 (emphasis added).
Petitioner contends that the language “mitigated to manslaughter” in the
instruction quoted above was incorrect because mitigation to manslaughter is not a
prerequisite to defeating the crime of first-degree murder. Petitioner also contends
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that it is possible the jury never considered second-degree murder because,
according to him, the trial court instructed the jurors that they should first consider
the primary offense, and if they agreed on the primary offense, they did not have to
consider the lesser offense.
Petitioner’s claim lacks merit because “the fact that the instruction was
allegedly incorrect under state law is not a basis for habeas relief.” McGuire, 502
U.S. at 71-72. The alleged error also did not render the trial fundamentally unfair
or deprive Petitioner of due process because the disputed instruction did not permit
the jury to convict Petitioner of first-degree murder on less evidence than was
necessary.
Also, contrary to Petitioner’s allegation, the trial court did not instruct
the jurors on the order of deliberations, nor tell the jurors that they could avoid
considering lesser offenses if they agreed Petitioner was guilty of first-degree
murder. The trial court made it very clear that the jurors could find Petitioner
guilty of second-degree murder or voluntary manslaughter, and the court explained
the elements of those offenses.
(1/25/07 Trial Tr. at 235-38, 244.)
The
instructions, as a whole, did not deprive Petitioner of a fair trial.
3. Unanimity
Petitioner’s second claim about the jury instructions is that the jurors were
not told that they had to agree on specific theory, namely, whether Petitioner was a
22
principal in the crime and actually shot the victims or whether he aided and abetted
the shooting. The Michigan Court of Appeals rejected this claim on direct appeal
because Petitioner waived review of the claim by affirmatively approving the trial
court’s instructions.
The claim also lacks merit because the trial court did instruct the jurors that
their verdict had to be unanimous, see id. at 242, and the Supreme Court has never
suggested that in returning general verdicts, jurors must agree on a single means of
commission. Schad v. Arizona, 501 U.S. 624, 631 (1991). As explained in McKoy
v. North Carolina, 494 U.S. 433 (1990),
Juries are typically called upon to render unanimous verdicts on the
ultimate issues of a given case. But it is understood that different
jurors may be persuaded by different pieces of evidence, even when
they agree upon the bottom line. Plainly there is no general
requirement that the jury reach agreement on the preliminary factual
issues which underlie the verdict.
Id. at 449 (Blackmun, J., concurring) (footnote omitted).
Simply stated, “juries are not required to agree on the theory of guilt.”
Rogers v. Howe, 64 F. App’x 450, 454 (6th Cir. 2003). “[I]t is acceptable for a
first-degree murder conviction to be based on two alternative theories even if there
is no basis to conclude which one (if only one) the jury used.” Coe v. Bell, 161
F.3d 320, 348 (6th Cir. 1998) (citing Schad, 501 U.S. at 636-37). To conclude,
Petitioner’s claim lacks merit, as “there is no Supreme Court precedent holding
23
that a jury must agree on the factual issues underlying the verdict.” Rodriquez v.
Jones, 625 F. Supp.2d 552, 569 (E.D. Mich. 2009).
C. The Right to Present a Defense
Petitioner asserts that the state trial court violated his right to due process
and to present a defense by reversing its ruling on a discovery issue and then
allowing a prosecution witness to testify despite the prosecution’s late provision of
discovery materials. The discovery evidence in question was a ballistics report
prepared by an expert witness from the Michigan State Police. Petitioner points
out that, at a motion hearing on December 5, 2006, defense counsel requested
discovery, and the trial court ordered the prosecution to produce the ballistics
report no later than January 9, 2007.
The court also threatened to exclude
discovery material if the prosecution did not meet the extended deadline. (12/5/06
Mot. Hr’g Tr. at 5.)
On Tuesday, January 9, 2007, the trial court extended the deadline to no
later than Friday, January 12, 2007. The court once again threatened to exclude
any exhibits not exchanged by the deadline. (1/9/07 Mot. Hr’g at 6-7.)
The ballistics report was finally provided to the parties on January 19, 2007,
which was only three days before the start of Petitioner’s trial. (1/24/07 Trial Tr. at
79-80). Despite the late delivery of the report, the prosecution’s expert witness,
24
Detective Sergeant Jeffrey Amley, was permitted to testify that a .25 caliber bullet
recovered from a heating duct in Ousley’s trailer could have been fired from a
handgun. Id. at 71.
According to Petitioner, the late submission of the ballistics report prevented
his expert witness from performing a test that would have rebutted Detective
Sergeant Amley’s conclusion that white material on the small caliber bullet was
drywall, not the result of oxidation. Test results showing the presence of oxidation
on the bullet would have supported Petitioner’s theory that the bullet was shot into
the trailer long before the fatal shootings for which Petitioner was on trial. The
Michigan Court of Appeals, nevertheless, determined on review of Petitioner’s
claim that the trial court did not abuse its discretion by admitting the untimely
ballistics report and by allowing the prosecution’s expert witness to testify.
Defendants in criminal prosecutions are entitled to “a meaningful
opportunity to present a complete defense.” California v. Trombetta, 467 U.S.
479, 485 (1984). But “[t]here is no general constitutional right to discovery in a
criminal case,” Weatherford v. Bursey, 429 U.S. 545, 559 (1977), and the
contention that the prosecutor violated a discovery order is not a cognizable claim
on habeas corpus review because it involves an issue of state law.
25
Colston v.
Burke, 37 F. App’x 122, 125 (6th Cir. 2002); King v. Trippett, 27 F. App’x 506,
508 (6th Cir. 2001).
The record, moreover, indicates that the prosecution did not act in bad faith
when it failed to comply with trial court’s order for discovery. Detective Sergeant
Amley explained that the delay in submitting his report was due to his having to
wait for evidence from the latent print unit at the Michigan State Police and
because he sent some evidence to the DNA unit for possible examination. (1/24/07
Trial Tr. at 79-80, 104.)
The record also demonstrates that Petitioner had an adequate opportunity to
rebut Detective Sergeant Amley’s conclusions. On cross-examination of Amley,
defense counsel elicited testimony that it was possible the small-caliber bullet
fragment was very old. Counsel also elicited Amley’s testimony that he did not
perform a chemical test on the bullet fragment to determine whether the white
substance on the fragment was drywall or oxidation and that it was possible the
white substance was the result of oxidation. Id. at 88-93, 124, 131.
Petitioner was able to rebut Amley’s testimony and defend himself in an
additional manner: he produced his own expert witness. Although the defense
expert witness did not have sufficient time to perform a microscopic test on the
bullet fragment in question, see 1/25/07 Trial Tr. at 151, he opined that the white
26
material on the fragment was the result of oxidation. Id. at 150. As explained by
the Michigan Court of Appeals, the defense expert
was able to ascertain from examining the .25-caliber bullet that it was
fired “[m]onths and months, if not years,” before it was collected as
evidence. He had no hesitation about the bullet’s age and explained
that the difference between the recovered bullet and a recently fired
bulled was like “the difference between day and night.” He also
opined that a .25-caliber bullet did not have the velocity to enter the
heater duct if shot from outside the trailer.
Tackett, 2008 WL 4149002, at *11.
The Michigan Court of Appeals concluded that, “[t]hrough this testimony,
defendant Tackett plainly was able to present his defense that the .25-caliber bullet
derived from a prior incident.” Id. This Court agrees and concludes that the
alleged violation of the trial court’s discovery order did not violate Petitioner’s
constitutional right to present a defense.
D. The Disparate Treatment
Petitioner’s fourth claim concerns the disparity between his convictions and
sentence and the convictions and sentence of Tard and Sykes. All four defendants
(Petitioner, Copas, Tard, and Sykes) were charged with open murder, but Petitioner
and Copas were found guilty of first-degree murder following a jury trial, whereas
the same circuit court judge who presided over their trial determined that Tard and
Sykes were guilty of second-degree murder. Petitioner maintains that to convict
27
him of a more serious offense and to punish him with a harsher sentence than his
co-defendants for the same actions and under the same legal theory and set of facts
is legally indefensible and a violation of his right to due process and equal
protection of the laws.2
The problem with Petitioner’s argument is that “[i]nconsistency in a verdict
is not a sufficient reason for setting it aside.” Harris v. Rivera, 454 U.S. 339, 345
(1981); accord United States v. Powell, 469 U.S. 57, 69 (1984) (concluding that
there was no reason to vacate the defendant’s conviction merely because the
verdicts could not rationally be reconciled); Dunn v. United States, 284 U.S. 390,
393 (1932) (stating that “[c]onsistency in the verdict is not necessary.”) The
evidence in Petitioner’s case was sufficient to support the jury’s conclusion that he
was guilty of first-degree murder, and the Constitution did not prohibit the trial
court from being lenient in Tard and Sykes’ case. Rivera, 454 U.S. at 348.
Petitioner relies on Griffith v. Kentucky, 479 U.S. 314, 323 (1987), for the
principle that similarly situated defendants must be treated the same. The issue in
Giffith, however, was whether the Supreme Court’s decision in Batson v. Kentucky,
First‐degree premeditated murder carries a mandatory penalty of life
2
imprisonment without the possibility of parole, Mich. Comp. Laws §
750.316(1)(a), but “[s]econd‐degree murder is punishable by imprisonment for
any term of years or life, with the possibility of parole.” People v. Wesley, 421
Mich. 375, 412; 365 N.W.2d 692, 709 (1984) (emphases in original).
28
476 U.S. 79 (1986), applied to cases “pending on direct state or federal review or
not yet final when Batson was decided.” Id. at 316. The Supreme Court did not
address the issue of inconsistent verdicts.
Petitioner also relies on Bunker v. Jabe, 995 F.2d 1066, 1993 WL
206533(6th Cir. 1993), a per curiam decision in which the Sixth Circuit granted
habeas relief because it had previously granted relief to the petitioner’s codefendant on the basis of an unconstitutional jury instruction.
Bunker’s appeal
presented the Sixth Circuit “with the idiosyncratic situation in which the timing of
a case announcing a new rule of retroactivity threaten[ed] to subject two
codefendants in a case arising from the same facts to different legal standards.”
Id., 1993 WL 206533 at *1. According to the Sixth Circuit, the principle that like
cases be treated alike fell “within the spirit, if not the letter, of the law of the case
doctrine, one example of which is the influence of a prior ruling ‘of the same court
. . . acting within the framework of single case or closely related cases.’ ” Id., at
*2 (quoting 18 Charles A. Wright, et al., Federal Practice and Procedure § 4478
(1981)). The Sixth Circuit stated that it felt “constrained on this record to hold that
the jury instruction in [Booker’s] case be viewed as it was in [his co-defendant’s]
case.” Id. The Sixth Circuit reversed the District Court’s denial of the writ and
remanded the case to the District Court with instructions to issue a writ of habeas
29
corpus, directing the State of Michigan to discharge Bunker or to give him a new
trial.
Bunker is a circuit court case that was decided before AEDPA was enacted.
Under AEDPA, this Court may grant habeas relief only if the state court’s decision
was contrary to, or an unreasonable application of, Supreme Court precedent, 28
U.S.C. § 2254(d)(1), and, as pointed out above, the Supreme Court has not held
that inconsistent verdicts are a basis for granting habeas relief.
Bunker, moreover, is distinguishable because the two co-defendants in that
case were tried jointly before the same jury. Petitioner was not tried with Tard or
Sykes, and even assuming that his convictions and sentence were inconsistent with
their convictions and sentence, this does not mean that the jury did not think he
was guilty of first-degree murder or that he lacked the specific intent to kill the
victims. “Powell teaches that the inconsistent verdicts are viewed completely
separately, and that no conclusion may be drawn from comparing the two.” Mapes
v. Coyle, 171 F.3d 408, 420 (6th Cir. 1999). With a few exceptions not relevant
here, “once the jury has heard the evidence and the case has been submitted, the
litigants must accept the jury’s collective judgment.” Powell, 469 U.S. at 67.
“While symmetry of results may be intellectually satisfying, it is not required.”
Standefer v. United States, 447 U.S. 10, 25 (1980). The Court concludes that
30
Petitioner’s claim “is not a proper ground for habeas relief because inconsistent
verdicts do not require reversal of a conviction.” Grace v. Gidley, No. 17-1840,
2018 WL 3583182, at *2 (6th Cir. Feb. 12, 2018) (unpublished).
E. Trial Counsel
Petitioner claims that his trial attorney’s acts and omissions violated his
constitutional right to effective assistance of counsel. Petitioner raised his first
four claims about trial counsel during post-conviction proceedings. The state trial
court rejected the claims on state collateral review because Petitioner had failed to
show “good cause” for not raising the claims on direct appeal and “actual
prejudice” as a result of the alleged irregularities. The trial court also found no
merit in the claims. The Michigan Court of Appeals adjudicated Petitioner’s fifth
and sixth claims about trial counsel on the merits during the direct appeal and
concluded that trial counsel was not ineffective.
To succeed on his claims here, Petitioner must show “that counsel’s
performance was deficient” and “that the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The deficientperformance prong “requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
31
Amendment.” Id. Petitioner must demonstrate that “counsel’s representation fell
below an objective standard of reasonableness.” Id. at 688.
The “prejudice” prong “requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Id. at 687. A defendant must demonstrate “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.
“The standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Richter,
562 U.S. at 105 (internal and end citations omitted). “When § 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.
1. Failure to Recall and Impeach Ousley
Petitioner alleges that Clint Ousley is a child rapist, thief, and drug addict
and that his trial attorney should have brought these matters to the attention of the
jurors so that they could assess Ousley’s credibility as to how many gunshots and
guns he heard during the shooting and whether his home had previously been shot
32
up. Petitioner asserts that these facts were critical to his defense that the small
bullet found in Ousley’s residence was there before the night in question.
Petitioner also contends that Ousley must have known of an unrelated
warrant for criminal sexual conduct before he testified at Petitioner’s trial because
his alleged victim reported the sexual assault two months before Petitioner’s trial.
As additional support for the contention that Ousley was aware of pending charges
against him before Petitioner’s trial, Petitioner contends that Ousley was able to
acquire a significant bond rather quickly after he was arrested, and he was docile at
Petitioner’s trial, but arrogant at Petitioner’s preliminary examination.
The record confirms that Ousley was arrested on a warrant for criminal
sexual conduct after he testified at Petitioner’s trial. (1/24/07 Trial Tr. at 5-6.) But,
as the Michigan Court of Appeals noted when co-defendant Copas raised this issue
on direct appeal, there is no
support for his claim that Ousley was aware of the unrelated warrant
before he testified in this case, let alone that there was any
arrangement whereby Ousley would receive leniency in that case in
exchange for his testimony in this case. The mere fact that Ousley’s
preliminary examination may have differed in some respects from his
trial testimony does not support such an inference. Rather, the
inconsistencies presented defense counsel with an opportunity to
impeach Ousley, which he did. Defendant has failed to show that
defense counsel’s performance with respect to Ousley fell below an
objective standard of reasonableness.
33
In addition, the principal evidence implicating defendants Copas and
Tackett at trial came from two eyewitnesses who were in the van with
the defendants during the shooting.
Tackett, 2008 WL 4149002, at *3.
The Michigan Court of Appeals concluded that, because Ousley did not
provide critical evidence implicating Copas, there was no reasonable probability
that further impeachment of Ousley would have changed the jury’s verdict. The
same is true of Petitioner’s case. Ousley testified that he did not see Petitioner
during the incident with Copas on the afternoon of the shootings and that he had no
conflicts with him. (1/23/07 Trial Tr. at 34-35.) He claimed that, even though he
may have heard two assault rifles, he did not see who was shooting the guns. Id. at
40-42.
Ousley also admitted that he was the oldest person in the trailer during the
shooting, that some people were smoking marijuana at the time, and that even
though he was only eighteen years old, he had impregnated Sykes and had a son by
another woman. Id. at 47-51. Given this unfavorable picture of Ousley and the
fact that he did not implicate Petitioner in the shootings, there is not a reasonable
probability that the outcome of the trial would have been different if defense
counsel had recalled Ousley and attempted to impeach Ousley with his arrest for
criminal sexual conduct or his involvement in any other criminal activity.
34
Petitioner has failed to show that counsel’s allegedly deficient performance
prejudiced the defense.
2. Failure to Object to the Jury Instructions
Petitioner contends that trial counsel should have objected to the erroneous
jury instructions on unanimity and intent to commit murder. The trial court’s
summary of the elements of first-degree murder did not violate Petitioner’s right to
due process, see supra, section II.B.2, and in Michigan, trial courts are not required
to instruct juries that they must agree unanimously on whether the defendant
committed the crime as a principal or as an aider and abettor if there was sufficient
evidence to support both theories of guilt. People v. Smielewski, 235 Mich. App.
196, 208-09; 596 N.W.2d 636, 642 (1999). There was sufficient evidence that
Petitioner committed first-degree murder either as a principal or as an aider and
abettor, and an objection to the instruction on unanimity would have lacked merit.
“Omitting meritless arguments is neither professionally unreasonable nor
prejudicial.” Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013).
3. Failure to Move for an Adjournment
Petitioner maintains that his trial attorney should have moved to adjourn the
trial when his expert witness testified that, if the prosecutor gave him enough time,
he could prove that the small bullet in evidence was oxidized and had been fired
35
long before the night in question. The prosecution’s expert witness, however,
conceded that it was possible the white substance on the bullet was the result of
oxidation and not drywall.
The defense expert witness, moreover, testified that the bullet was old and
that it did not have sufficient velocity to penetrate the trailer and enter the heating
duct where it was found.
The defense witness’s testimony was sufficient to
establish Petitioner’s defense that the .25-caliber bullet was fired during a previous
incident. Defense counsel, therefore, was not ineffective for failing to request an
adjournment of the trial so that his witness could perform a chemical test to prove
that the white substance on the bullet was the result of oxidation and not drywall.
It is also unlikely that the trial court would have granted an adjournment
midway through trial if defense counsel had requested an adjournment. The trial
court indicated at the pretrial motion hearing on January 9, 2007, that it did not
intend to adjourn the trial at the last minute as a result of failed discovery. (1/9/07
Mot. Hr’g at 7.) In light of this remark, a request for an adjournment mid-trial
would have been futile. Trial counsel was not ineffective for failing to make the
request. See Altman v. Winn, 644 F. App’x 637, 644 (6th Cir.) (stating that “the
failure to make futile objections does not constitute ineffective assistance”), cert.
denied sub nom. Altman v. Brewer, 137 S. Ct. 76 (2016).
36
4. Failure to Impeach Two Witnesses
Petitioner asserts that trial counsel should have questioned prosecution
witnesses Frederick Steglich and Pete Wisniewski about their use of drugs and rum
on the night in question. According to Petitioner, this information might have lead
the jury to question the witnesses’ ability to recall the events at Ousley’s trailer.
Steglich testified on cross-examination by Petitioner’s attorney that he had
never seen or heard of Petitioner before the preliminary examination. (1/23/07
Trial Tr. at 162-63.) Wisniewski also testified on cross-examination by defense
counsel that he did not see Petitioner on July 9, 2006, and did not know him or
remember his face. Id. at 177-78. Wisniewski further admitted that he had been
drunk and did not remember much from that day. Id. at 176. Because neither man
implicated Petitioner in the crime and because one of them admitted to being drunk
on the day in question, defense counsel’s failure to cross-examine the men about
their use of drugs and alcohol did not amount to ineffective assistance.
5. Failure to Elicit Further Evidence of Intent to Destroy Property
Petitioner asserts that intent was the core issue in his case and that defense
counsel should have elicited additional testimony from Deputy Sheriff Lisa Farst
and from Detective Sergeant Jeffrey Amley to establish that the defendants merely
intended to destroy the trailer. Petitioner contends that effective cross examination
37
would have revealed, as it did at Tard and Sykes’ degree hearing, that only Ousley
was present outside the trailer, that the window shades to the trailer were closed,
that the people inside the trailer were quiet and not visible from the outside, and
that many of the bullets traveled at an upward trajectory.
Most of this evidence was elicited at Petitioner’s trial. As the Michigan
Court of Appeals explained on direct appeal when Copas raised the same issue,
[t]he record discloses that defense counsel questioned Deputy Farst
about her observations at Ousley’s trailer. Farst testified that she went
to Ousley’s trailer at approximately 11:00 p.m. because of a noise
complaint. Farst described what she observed when she arrived,
including that “[t]he lights were on inside the trailer,” “[n]o one was
outside or around” and, as she pulled up, Ousley “came out.” She
further testified that she saw nothing unusual at the trailer, saw no
other individuals other than Ousley, and did not recall if there were
any vehicles parked outside. In addition, the jury saw a video
recording made from the deputy’s patrol car showing the conditions at
the trailer five minutes before the shooting. In addition, evidence that
the blinds were closed at the time of the shooting was presented
through the ballistics expert, and no one disputed that the blinds were
closed. Although Farst did not testify using the precise words she
allegedly used at the degree hearing for codefendants Tard and Sykes,
her observations were presented to the jury. Thus, there is no basis
for concluding that defense counsel was ineffective for not further
questioning Farst about her observations, or that his failure to do so
was prejudicial.
Likewise, defendant Copas has not established that defense counsel’s
questioning of Detective Amley denied him a substantial defense.
Defendant Copas’s suggestion that further questioning would have
established that the bullets were fired at an upward trajectory and in a
manner intended to miss people is not supported by the record. First,
defendant Copas ignores that two individuals inside the trailer were
38
shot and killed by bullets fired from the van, thereby establishing that
the bullets traveled at a trajectory suitable to strike people inside the
trailer. Second, at least 15 bullets were fired along the front of the
trailer and were concentrated in the area of the bay window, which
was the area of illumination. Third, two assault rifles were used
during the episode. Furthermore, as plaintiff points out, although the
ballistics report showed that numerous bullets traveled through the
trailer in an upward trajectory, it also revealed that bullets traveled
within normal height ranges to strike individuals. In light of this
evidence, there is no reasonable probability that further questioning on
this subject would have affected the jury’s verdict.
Tackett, 2008 WL 4149002, at *2-*3 (end citation and footnote omitted).3
These same facts apply to Petitioner’s case, and for the reasons given by the
Michigan Court of Appeals, counsel’s cross-examinations of Deputy Fast and
Detective Sergeant Amley did not fall below an objective standard of
reasonableness.
Any deficiencies in defense counsel’s cross-examinations of
Deputy Fast and Detective Sergeant Amley also did not prejudice Petitioner
because Loni Shalton indirectly supported the defense theory on intent by
testifying that the group had agreed to shoot up the trailer. (1/25/07 Trial Tr. at
67.)
Trial counsel was not constitutionally ineffective for failing to elicit
additional evidence of intent to destroy property.
6. Failure to Object to Testimony about a Warrant
The Michigan Court of Appeals stated that its analysis of Copas’s claim was
3
equally applicable to Petitioner’s claim and that Petitioner was not denied the
effective assistance of counsel. Tackett, 2008 WL 4149002, at *10.
39
Petitioner’s final claim about trial counsel is that counsel did not object to
irrelevant and prejudicial evidence that he had an outstanding warrant in
Washtenaw County. Evidence of the outstanding warrant came to light when the
prosecutor asked an officer about the circumstances of his contact with Petitioner
on July 10, 2006. The officer stated that Petitioner voluntarily reported to the
police at the Ecorse Police Department and was then taken into custody and
escorted to the Washtenaw County Sheriff’s Department because he had an
outstanding warrant and was wanted for questioning regarding the shootings.
(1/23/07 Trial Tr. at 96-97.)
The reference to the warrant was a fleeting comment in a long trial, and the
basis for the warrant was never disclosed to the jury. Because objecting to the
comment would have drawn more attention to it, defense counsel was not
ineffective for failing to object to the testimony. A strategic decision not to object
to testimony for fear of focusing undue attention on damaging remarks is
reasonable. Cobb v. Perini, 832 F .2d 342, 347-48 (6th Cir. 1987).
F. Appellate Counsel
In his sixth and final claim, Petitioner alleges that his appellate attorney was
ineffective on direct appeal. Petitioner contends that his appellate attorney should
have raised his sufficiency-of-the-evidence claim on appeal in the same manner as
40
Petitioner presented it in his habeas petition by referring to the transcripts for Tard
and Sykes’ degree-hearing. Petitioner also contends that appellate counsel should
have raised his first four claims about trial counsel and one of his claims about the
jury instructions on direct appeal. According to Petitioner, appellate counsel’s
ineffectiveness justifies reinstatement of the appeal of right and also excuses any
procedural defaults stemming from ineffective representation.
An appellate attorney is not required to raise every non-frivolous claim
suggested by his or her client on direct appeal if counsel decides, as a matter of
professional judgment, not to raise the claim. Jones v. Barnes, 463 U.S. 745, 751
(1983). “In fact, the process of winnowing out weaker arguments on appeal is the
hallmark of effective appellate advocacy.” Monzo v. Edwards, 281 F.3d 568, 579
(6th Cir. 2002) (quotation marks and citations omitted). To prevail on his claim
about appellate counsel, Petitioner must demonstrate (1) that his appellate attorney
acted unreasonably in failing to discover and raise nonfrivolous issues on appeal
and (2) there is a reasonable probability the defendant would have prevailed on
appeal if his attorney had raised the issues. Smith v. Robbins, 528 U.S. 259, 285
(2000) (citing Strickland, 466 U.S. at 687-91, 694).
The arguments that appellate counsel did not make on direct appeal lack
merit for the reasons given in the discussion above. “[B]y definition, appellate
41
counsel cannot be ineffective for a failure to raise an issue that lacks merit.” Greer
v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001).
The trial court, moreover,
concluded on state collateral review that appellate counsel was not ineffective for
failing to raise certain issues.
This conclusion is objectively reasonable and
entitled to deference on habeas review.
The Court, therefore, concludes that
Petitioner’s claim about appellate counsel does not warrant habeas relief.
IV. CONCLUSION AND ORDER
The state courts’ adjudication of Petitioner’s claims on the merits did not
result in decisions that were contrary to Supreme Court precedent, an unreasonable
application of Supreme Court precedent, or an unreasonable determination of the
facts. The state-court decisions also were not so lacking in justification that there
was an error beyond any possibility for fairminded disagreement. As for the
claims that were not adjudicated on the merits, Petitioner has failed to show that he
is in custody in violation of his constitutional rights. The Court, therefore, denies
the petition for a writ of habeas corpus.
Before Petitioner may appeal the Court’s decision, a certificate of
appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b)(1).
A certificate of appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.”
42
28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Reasonable jurists could conclude that Petitioner’s first, fourth, and sixth
claims regarding the sufficiency of the evidence, the disparate verdict in Tard and
Sykes’ case, and appellate counsel deserve encouragement to proceed further. The
Court, therefore, grants a certificate of appealability on those issues. The Court
declines to grant a certificate of appealability on claims two, three, and five
regarding the jury instructions, the discovery dispute, and trial counsel, because
reasonable jurists could not disagree with the Court’s resolution of those claims.
Nor could they conclude that those issues deserve encouragement to proceed
further.
s/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: November 29, 2018
43
I hereby certify that a copy of the foregoing document was served upon
counsel of record on November 29, 2018, by electronic and/or ordinary
mail.
s/LaShawn R. Saulsberry
Case Manager
44
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