Smith v. Romanowski

Filing 14

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Granting a Certificate of Appealability with Respect to Petitioner's Third Claim, and Granting Permission for Leave to Appeal In Forma Pauperis. Signed by District Judge Bernard A. Friedman. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEVI SMITH,
Petitioner,

Civil Action No.14-CV-10969
HON. BERNARD A. FRIEDMAN

v.
KENNETH ROMANOWSKI,
Respondent.
_________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, GRANTING A CERTIFICATE OF APPEALABILITY WITH
RESPECT TO PETITIONER’S THIRD CLAIM, AND GRANTING
PERMISSION FOR LEAVE TO APPEAL IN FORMA PAUPERIS
Devi Smith, (“Petitioner”), was convicted in Wayne County Circuit Court of two
counts of first-degree murder, Mich. Comp. Laws. § 750.316(1)(a), two counts of torture, Mich.
Comp. Laws. § 750.85, and possession of a firearm during the commission of a felony, Mich.
Comp. Laws. § 750.227b. Petitioner was sentenced to life imprisonment for the murder
convictions, twenty-three to fifty years for the torture convictions, and a consecutive two-year
term for the firearm conviction.
The amended habeas petition raises three claims: (1) petitioner’s statement to
police should have been suppressed when he read aloud the waiver of rights form incorrectly and
the interrogating officer failed to correct the mistake, (2) the trial court erroneously admitted the
recording of a 911 call made by the victims’ young daughter, and (3) petitioner was denied the
effective assistance of trial and appellate counsel. The petition will be denied because the claims
are without merit. The Court will grant petitioner a certificate of appealability with respect to his

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third claim, deny a certificate of appealability with respect to his other two claims, and grant
leave to proceed in forma pauperis on appeal.
I.

BACKGROUND

This case involves the March 1, 2010, murder of Monica Botello and Percil
Carson at their Detroit home. Petitioner was tried twice. After the first trial, petitioner’s codefendant, Derrick Smith, was convicted of murder, torture, and felony-firearm. The jury was
unable to reach a verdict on the charges against petitioner.
At petitioner’s second trial, evidence was presented that he and Derrick went to
the victims’ residence under the pretense of completing a drug transaction. As the money was
being counted, Derrick and petitioner drew handguns. Petitioner ordered Botello and her two
young daughters into a bathroom at gunpoint. Botello was later taken out of the bathroom, and
the men bound her and Carson’s wrists with duct tape. Carson begged for his life, pleading with
the two men that he had a family. Derrick and petitioner directed Botello and Carson into the
basement, where they were laid across a couch and their mouths duct-taped. Carson was shot
once in the front of the head, and Botello was shot once in the back of the head.
Meanwhile, one of Botello’s daughters in the bathroom, eight-year-old Tayonna,
heard Carson’s pleas, her parents forced into the basement, and gunshots. She called 911 after
Derrick and petitioner left the house. Tayonna described the two perpetrators to the operator and
said a man, who she later identified as petitioner, forced her into the bathroom at gunpoint. The
day after the murders, Tayonna again described the perpetrators. She also later picked petitioner
at a photographic identification procedure. Petitioner refused to participate in a live line-up.

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Another witness, Shantell Crankfield, also picked petitioner out of a photographic
identification array as the man who was with Derrick and Carson at the house on the evening of
the murders. Crankfield left shortly before the incident occurred.
Petitioner was apprehended about six months after the crime. In his statement to
police, he admitted to being in the victims’ house, but he claimed that he did nothing to aid
Derrick, who he claims was solely responsible for binding, robbing, and killing the two victims.
Petitioner’s defense was that Derrick called him and asked him to come to Carson’s house to
facilitate a drug deal. When petitioner saw that Derrick planned to rob Carson, he escorted the
children to the bathroom for their own protection and then left the premises. The prosecutor
relied on Tayonna’s statements and testimony that petitioner was armed with a gun and forced
them into the bathroom to discredit petitioner’s version of events, and she asserted that
petitioner’s conduct at a minimum constituted aiding and abetting Derrick’s crimes.
Based on this evidence, the jury found petitioner guilty of the offenses indicated
above. Following his conviction and sentence, petitioner filed a claim of appeal in the Michigan
Court of Appeals. His appellate brief raised the following claims:
I. [Petitioner] did not voluntarily, knowingly and intelligently
waive his constitutional rights when he did not read the waiver of
right’s form correctly and the interrogator failed to correct him.
II. The trial court admitted irrelevant and prejudicial evidence in
violation of Michigan Rules of Evidence 401 and 403 when it
admitted Tayonna Botello’s 911 call.
The Michigan Court of Appeals affirmed petitioner’s conviction in an
unpublished opinion. People v. Smith, No. 306574 (Mich. Ct. App. Nov. 27, 2012). Petitioner
subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the
same claims as in the Michigan Court of Appeals. The Michigan Supreme Court denied the
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application because it was not persuaded that the questions presented. People v. Smith, 829
N.W.2d 203 (Mich. 2013).
Petitioner then filed his federal habeas petition along with a motion to stay the
petition so he could return to the state court to exhaust a claim of ineffective assistance of
counsel claim. The Court granted petitioner’s motion to stay.
Petitioner then returned to the state trial court and filed a motion for relief from
judgment, raising claims regarding the effectiveness of his trial and appellate counsel. Petitioner
claimed this his trial counsel was ineffective for failing to call two defense witnesses, Jeffery
Haugabook and Nina Funchess, who testified at the first trial. Haugabook testified at the first
trial that Derrick was with someone other than petitioner, a different “young un,” at a Wal-Mart
when the robbery was discussed and planned. Funchess also testified at the first trial that she saw
Derrick both before and after the crimes, but petitioner was not with him.
On September 16, 2014, the trial court denied the motion for relief on the merits,
finding that petitioner’s counsel did not perform deficiently, and that petitioner was not
prejudiced by his counsel’s performance in light of the strength of the evidence indicating his
guilt. See Wayne County Circuit Court Sept. 16, 2014, Opinion and Order. The Court also found
that petitioner failed to demonstrate actual prejudice as required under Michigan Court Rule
6.508(D)(3)(b). Id.
Petitioner then filed an application for leave to appeal in the Michigan Court of
Appeals. The Michigan Court of Appeals denied the application for failure to establish
entitlement to relief under Michigan Court Rule 6.508(D) and for “failure to establish that good
cause should be waived.” People v. Smith, No. 326534 (Mich. Ct. App. June 2, 2015). Petitioner

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applied for leave to appeal this decision in the Michigan Supreme Court, but was also denied
relief under Rule 6.508(D). People v. Smith, 878 N.W.2d 870 (Mich. 2016).
Petitioner thereafter filed an amended petition and motion to life the stay, which
the Court granted. Respondent responded, and the matter is now ready for decision.
II.

STANDARD OF REVIEW

28 U.S.C. § 2254(d)(1) curtails a federal court’s review of constitutional claims
raised by a state prisoner in a habeas action if the claims were adjudicated on the merits by the
state courts. Relief is barred under this section unless the state court adjudication was “contrary
to” or resulted in an “unreasonable application of” clearly established Supreme Court law.
The Michigan Court of Appeals decision is contrary to “clearly established law if
it ‘applies a rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from [this] precedent.’” Mitchell v. Esparza,
540 U.S. 12, 15–16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405–06
(2000)).
“[T]he ‘unreasonable application’ prong of [the statute] permits a federal habeas
court to ‘grant the writ if the state court identifies the correct governing legal principle from [the
Supreme] Court but unreasonably applies that principle to the facts’ of petitioner’s case.”
Wiggins v. Smith, 539 U.S. 510, 520 (2003) quoting Williams, 529 U.S. at 413. “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)).

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Habeas corpus review “is a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error correction through appeal.” Richter,
562 U.S. at 103. To obtain habeas corpus relief, petitioner “must show that the state court’s
ruling on the claim being presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id.
III.

DISCUSSION

A. Admission of Petitioner’s Statement to Police
Petitioner first asserts that his statement to police was erroneously admitted at trial
because he misstated his Miranda rights when he was asked to read the notice of rights form, and
the interrogating officer failed to correct his misstatement. The Michigan Court of Appeals
rejected this claim on the merits, and respondent contends that its decision was not contrary to,
and did not involve an unreasonably application of, clearly established Supreme Court law.
Under clearly established Supreme Court law, a suspect may waive his Miranda
rights provided the waiver is made knowingly and voluntarily. Miranda v. Arizona, 384 U.S.
436, 444 (1966); Moran v. Burbine, 475 U.S. 412, 421 (1986). A waiver is knowing if the
suspect understands that he may “choose not to talk to law enforcement officers, to talk only
with counsel present, or to discontinue talking at any time.” Colorado v. Spring, 479 U.S. 564,
574 (1987). A waiver is voluntary if the suspect’s decision to talk is “the product of a free and
deliberate choice rather than intimidation, coercion, or deception.” Moran, 475 U.S. at 421. A
court assesses whether a waiver is knowing and voluntary “primarily from the perspective of the
police,” asking whether the officers had “reason to believe that [the suspect] misunderstood” his
rights or felt compelled to waive them. See Garner v. Mitchell, 557 F.3d 257, 263 (6th Cir.
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2009). Respondent bears the burden of establishing a valid waiver by the preponderance of the
evidence. See Lego v. Twomey, 404 U.S. 477, 489 (1972).
After reciting the controlling constitutional standard, the Michigan Court of
Appeals rejected petitioner’s claim on merits as follows:
Detective Derryck Thomas testified that defendant was
interviewed once on September 3, 2010. The interrogation video
showed that defendant was given the advice of rights form, and
that he read the first right out loud. Defendant stated, “I have the
right to remain silent, and that I do have the right to answer any
questions put to me.” Thomas then told defendant to initial the
form to indicate that he had read the form. Defendant initialed the
form next to the right he read aloud. Defendant looked at the form
for several more seconds, and then Thomas asked him if he had
read the second right and told him to initial the second right.
Defendant then initialed the form next to the second right. Thomas
told defendant to finish reading the form. After about 30 seconds,
Thomas asked if defendant was stuck. Thomas then read the rest of
the form aloud to defendant and defendant signed the form. Based
on that record, the court did not clearly err in its factual findings.
At the hearing, defendant testified that Thomas told him that he
would only be a witness in the homicide case, and never told him
that he was a suspect. Defendant also testified that Thomas gave
him the advice of rights form, but defendant did not read the rights
to himself or aloud. However, the trial court relied on the
interrogation video for its findings, and did not rely on defendant’s
testimony. “Deference is given to a trial court’s assessment of the
weight of the evidence and the credibility of the witnesses.”
Gipson, 287 Mich. App. at 264.
Based on the trial court’s factual findings, defendant voluntarily,
knowingly, and intelligently waived his Fifth Amendment rights.
Defendant could read, had a high school education, and had
completed some college. Defendant was given his rights, and he
read each right or had the rights read to him. Defendant read the
first right out loud, and stated, “I have the right to remain silent,
and that I do have the right to answer any questions put to me.”
The second portion of defendant’s statement was incorrect.
However, defendant was required to be warned that he had the
right to remain silent, that anything he said could be used against
him in a court of law, that he had the right to the presence of an
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attorney, and that if he could not afford an attorney one would be
appointed for him before any questioning if he so desired.
McBride, 273 Mich. App. at 250. Defendant clearly read “I have
the right to remain silent,” out loud, without mistakes. Therefore,
defendant’s misstatement fails to establish that defendant did not
knowingly waive his rights. Defendant read all his rights or had the
rights read to him, and he acknowledged that he had an opportunity
to read his rights that he understood them. Therefore, defendant
voluntarily, knowingly, and intelligently waived his Fifth
Amendment right after receiving his Miranda warnings, and he is
not entitled to a new trial.
Smith, No. 306574, at *2–3.
28 U.S.C. § 2254(e)(1) states that a state court’s factual determination is
presumed correct, and the petitioner has the burden of rebutting the presumption of correctness
by clear and convincing evidence. Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000). Consequently,
if the state court has based its denial of relief on factual findings made by the state trial court, a
federal court’s review is extremely limited.
Here, the state trial court’s factual findings and the Court of Appeals’s affirmation
are amply supported by the record and have not be rebutted by clear and convincing evidence. In
DATE, an evidentiary hearing on the validity of petitioner’s waiver was held in state court. The
testimony and interrogation video recording presented confirmed that petitioner was properly
informed of his Miranda rights, understood those rights, and voluntarily waived them.
Testimony showed that petitioner was 28 years old, finished high school and
attended a semester of college. The interviewing officer asked him to read one of his rights aloud
to ensure that petitioner could read; petitioner was then given an opportunity to read the other
rights to himself before the officer asked if he understood and waived them. Rule 5 Materials Ex.
6, pp. 13–16.

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The state court found that in the recording, petitioner reviewed the form for two
minutes before waiving his rights and agreeing to talk, and that he acknowledged his opportunity
to read the form and ask questions about it. Id. 65–66. At the hearing, and contrary to the
recording, petitioner testified that he did not read any right aloud, the officer did not read any
rights to him, and he did not read the rights to himself. Id. 52–53. Finally, contrary to petitioner’s
assertion that the officer told him that he was only a witness, Detective Thomas testified that he
told petitioner that petitioner was a suspect. Id. at 22. This false testimony provided an adequate
basis for trial court to discredit petitioner’s testimony.
Indeed, the record shows that petitioner understood his rights. In the recording,
petitioner accurately stated aloud his right to remain silent; there was no confusion regarding his
rights, nor did he ask the officer any questions when prompted. That petitioner omitted two
words while reading aloud does not mean that he misunderstood his rights.
Based on the foregoing, the prosecution presented adequate evidence to support
the trial court’s finding that petitioner’s waiver of his Miranda rights was voluntary and
knowing. Accordingly, this claim was reasonably adjudicated by the state courts, and petitioner
is therefore not entitled to habeas relief regarding this claim.
B. Admission of 911 Call
Petitioner’s second claim asserts that the recording of the 911 call made by
Tayonna Botello was erroneously admitted because it was overly prejudicial. Respondent
contends that the claim is not cognizable on federal habeas review because it involves a question
of state evidentiary law.
It is well established that a federal habeas court will not “reexamine state-court
determinations on state-law questions.” Ege v. Yukins, 485 F.3d 364, 375 (6th Cir. 2007). “The
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standard of review is therefore very deferential on such claims.” Hudson v. Lafler, 421 F. App’x
619, 627 (6th Cir. 2011). An evidentiary ruling may violate due process only where it “is so
egregious that it results in a denial of fundamental fairness.” Bugh v. Mitchell, 329 F.3d 496, 512
(6th Cir. 2003). Whether an error in the admission of evidence “constitutes a denial of
fundamental fairness turns upon whether the evidence is material in the sense of a crucial,
critical[,] highly significant factor.” Brown v. O’Dea, 227 F.3d 642, 645 (6th Cir. 2000).
The state court determined that the 911 call recording was relevant because, as
corroborating evidence, it made it more probable that the homicides occurred as Tayonna
claimed. While Tayonna was obviously upset while reporting the brutal death of her parents,
petitioner fails to show that the tendency of the evidence to cause unfair prejudice rose to the
level of violating fundamental fairness. “[U]nfair prejudice does not mean the damage to a
defendant’s case that results from the legitimate force of the evidence; rather it refers to evidence
which tends to suggest [a] decision on an improper basis.” United States v. Lawson, 535 F.3d
434, 442 (6th Cir. 2008) (internal quotation marks and citation omitted). The 911 tape was
probative of the crime’s circumstances because it corroborated Tayonna’s account, and it showed
that she understood and could articulate what had happened. It was critical to the prosecutor’s
case and highly relevant to a central issue— Tayonna’s credibility.
The tape’s admission did not suggest an improper basis for the jury’s decision.
Therefore, its admission was reasonable and did not result in a denial of fundamental fairness.
Petitioner’s second claim does not provide a basis for granting habeas relief.
C. Ineffective Assistance of Counsel
Petitioner’s third claim asserts that his trial and appellate attorneys provided
ineffective assistance of counsel. Petitioner argues that his trial counsel was ineffective for
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failing to call Jeffrey Haugbook and Nina Funchess as defense witnesses; he alleges that they
gave favorable testimony during petitioner’s first trial. Both witnesses were called by the
prosecution at the first trial and gave testimony implicating Derrick. There, they testified that
they saw Derrick before and after the crime, that another man was with Derrick, and that
petitioner was not with them. Petitioner asserts that his appellate counsel was ineffective for
failing to raise this claim during his direct appeal. Respondent asserts that review of the claim is
barred by petitioner’s procedural default and, alternatively, that the claim is meritless.
Although respondent argues that review of this claim is barred because petitioner
failed to raise it on direct appeal, because petitioner asserts that his appellate counsel was
ineffective for failing to raise the claim during his direct appeal, the Court will examine this
claim on the merits. See Johnson v. Lee, 578 U.S. ___, *5 (2016) (per curiam).
To prevail on his ineffective assistance of counsel claim, petitioner “must show
both that his counsel’s performance was deficient and that the deficient performance prejudiced
the defense.” Hodges v. Colson, 711 F.3d 589, 613 (6th Cir. 2013). To show deficiency,
petitioner must establish that “counsel made errors so serious that [he] was not functioning as the
‘counsel’ guaranteed . . . by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668,
687–88 (1984)). To show prejudice, petitioner must establish that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. The Court can decide the claim on either prong. Id. at 697.
1. Trial Counsel’s Failure to Call Witnesses
When an attorney fails to present evidence, the question is whether the unrevealed
evidence “might well have influenced the jury’s appraisal of [the petitioner’s] culpability” and
whether “the likelihood of a different result if the evidence had gone in is sufficient to undermine
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confidence in the outcome actually reached.” Rompilla v. Beard, 545 U.S. 374, 393 (2005)
(internal quotation marks and citations omitted). Here, the proposed witnesses would have been
presented to suggest that petitioner was not with Derrick at the crime scene. However, because
there is substantial evidence indicating petitioner’s presence at the crime scene, a fairminded
jurist could reasonably find that petitioner fails to demonstrate prejudice under Strickland.
Petitioner’s trial counsel conceded that petitioner was with Derrick at the victims’
house, but argued that he did not aid in the commission of the offenses and left the house before
the murders. Defense counsel was essentially forced to argue this because petitioner conceded to
police that he was present at the house. Rule 5 Materials Ex. 27, p. 147. Additionally, Shantell
Crankerfied testified that when she left the victims’ house shortly before the murders, petitioner
and Derrick were in the house’s living room with Carson. Id. at Ex. 25, p. 18-19. In closing
arguments, trial counsel’s narrative was that petitioner was called to the house to facilitate a drug
deal, and that when it became apparent that Derrick planned to rob Carson, petitioner escorted
the children to the bathroom for safety’s sake and then left. Id. at 42–47.
Contrary to petitioner’s claim, Nina Funchess’s testimony from the first trial was
in fact read into second trial’s record. Rule 5 Materials Ex. 28, pp. 140–192. She testified to
being with Derrick and another man who was not petitioner at a Wal-Mart just before the
murder, and described traveling with Derrick to Chicago after the crime. Id. at 154. Petitioner’s
counsel used this to support his defense that petitioner did not help plan the robbery, but was
only called to the house by Derrick on the pretense of facilitating a drug deal. Id. at Ex. 29, pp.
32 36–37, 58–59. Counsel also insinuated Haugbook was perhaps involved in the plan. Id.
In light of the defense’s theory and the substantial evidence that petitioner was at
the crime scene, and because Funchess’s prior testimony was read at the second trial, trial
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counsel’s decision to not call Funchess or Haugbook was not deficient. Funchess’s prior
testimony contained the facts the defense theory needed, and counsel may have decided not call
Haugbook given his insinuation that Haugbook was involved. Counsel may have reasonably
guessed that Haugbook would defend himself if called, and therefore may not have supported the
defense narrative. Petitioner therefore has failed to demonstrate deficient performance.
Petitioner also fails to demonstrate Strickland prejudice. Calling Haugbook and
Funchess to testify that petitioner was not with Derrick before and after the crime would not
create a reasonable probability of a more favorable outcome. That assertion was already
supported by Funchess’s prior testimony. And their testimony would not have undermined
Tayonna’s testimony that petitioner forced her into the bathroom at gun point. Tayonna’s
testimony undermined petitioner’s argument that he was merely present and not involved in the
crime. Based on all the evidence presented, a fairminded jurist could find that petitioner was not
prejudiced by the absence of the two defense witnesses. See Ballinger v. Prelesnik, 709 F.3d 558,
563 (6th Cir. 2013) (finding that a petitioner could not prejudice from counsel’s failure to call an
alibi witness where two eyewitnesses identified him as the perpetrator).
Because a fairminded jurist could reasonably reject petitioner’s claim, he has
failed to demonstrate entitlement to relief based on his ineffective assistance of counsel claim.
And to the extent § 2254(d) deference does not apply to this claim, the Court finds that petitioner
fails to demonstrate either deficient performance or a reasonable probability of a more favorable
trial result had counsel called these two witnesses at trial.
2. Appellate Counsel’s Failure to Raise Claim on Direct Appeal
Finally, petitioner asserts that his appellate counsel was ineffective for failing to
raise the ineffective assistance of trial counsel claim. “[B]y definition, appellate counsel cannot
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be ineffective for a failure to raise an issue that lacks merit.” Greer v. Mitchell, 264 F.3d 663,
676 (6th Cir. 2001). The Court has already determined that the underlying claim is meritless.
Consequently, this claim is also meritless.
IV. CERTIFICATE OF APPEALABILITY
Before petitioner may appeal this Court’s decision, “a circuit justice or judge”
must issue a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability
may issue “only if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Because the Court has rejected petitioner’s habeas claims on the
merits, to satisfy § 2253(c)(2), petitioner must show “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and citation omitted).
The Court finds that reasonable jurists could debate petitioner’s third claim—i.e.,
ineffective assistance of trial counsel. The Court therefore grants a certificate of appealability
with respect to that claim. Beyond that, however, the Court finds that reasonable jurists would
not debate whether petitioner’s first and second claims merit relief. Accordingly, a certificate of
appealability will not be granted with respect to those claims.
Finally, if petitioner chooses to appeal this decision, he may proceed in forma
pauperis because an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3).
V. CONCLUSION
Accordingly,

IT IS ORDERED that the application for a writ of habeas corpus is denied.

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IT IS FURTHER ORDERED that a certificate of appealability is granted with
respect to the third claim, but denied with respect to the first and second claims.

IT IS FURTHER ORDERED that petitioner is granted leave to appeal in forma
pauperis.
s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated: June 22, 2017
Detroit, Michigan

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