Bullard v. Michigan, State of
Filing
21
OPINION and ORDER Denying the Petition for a Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis 1 . Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEITH WALTER BULLARD,
Petitioner,
v.
Case No. 2:14-CV-12252
HONORABLE DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE
SHANE JACKSON,1
Respondent.
_________________________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA
PAUPERIS
Keith Walter Bullard, (“Petitioner”), confined at the Earnest C. Brooks
Correctional Facility in Muskegon Heights, Michigan, filed a pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he
challenges his conviction and sentence for criminal sexual conduct,
second-degree (person under 13), M.C.L.A. § 750.520c(1)(a).
Respondent filed an answer to the petition. As part of the answer,
respondent requested this Court to dismiss the petition on the ground that
petitioner’s sixth claim, pertaining to the trial judge’s utilization of factors to
1
The Court amends the caption to reflect the current warden of
petitioner’s incarceration.
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increase his minimum sentence that were not submitted to the jury, is
unexhausted. In lieu of dismissing the petition for a writ of habeas corpus,
the Court held the petition in abeyance to allow petitioner to return to the
trial court to exhaust his sixth claim. Rather than returning to the trial
court, petitioner requested that he be allowed to amend his petition to
delete his sixth unexhausted claim and to re-open the petition to the
Court’s active docket. (Dkt. ## 14-16). This Court reopened his habeas
petition and deleted the sixth claim. For the reasons that follow, the
petition for a writ of habeas corpus is DENIED.
I. Background
Petitioner was originally charged with first-degree criminal sexual
conduct (person under the age of 13) and second-degree criminal sexual
conduct (person under the age of 13). Following a jury trial, the first count
was dismissed by the court and the jury convicted petitioner of seconddegree criminal sexual conduct.
The victim was four years old at the time of the offense and will be
referred to as “B.” Her mother Kayla Scherret, age 23, and petitioner Keith
Bullard, age 42, were in a dating relationship in which they lived together
from April 2009 through November, 2009. (Tr. 6/7/2011.pp. 282-284, 291,
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327). Petitioner did not work and watched “B” while her mother worked
milking cows. (Id. at 316-317). Kayla’s mother is Jane Scherret and her
aunts are Janice Dohring and Joanne Kern. (Id. at 286-287). Jane is the
mother of Kevin and Kayla. (Id. at 315). Kayla did laundry for herself and
“B” at her mother’s house. (Id. at 304-306, 311). Dohring’s teen-age
nephew Kevin (Jane’s son), and daughter Elizabeth, occasionally babysits
“B.” (Id. at 314-315, 356).
Kayla had to work Thanksgiving week and planned to have “B”
picked up on Wednesday to stay at “B’s” grandmother’s house through the
weekend. (Id. at 292-293). “B” always sleeps in her bedroom, in her own
bed. (Id. at 285, 294). On Tuesday, November 24, 2009, Kayla had to be
at work. “B” was adamant that Kayla not leave for work, but Kalya left “B”
with petitioner. Janice Dohring sent a text message to Kayla’s phone,
which is left in the apartment when Kayla went to work, to tell her that she
was coming to pick up “B.” Aunt Janice was at the apartment to pick up
“B” about 45 to 60 minutes later. When she arrived she noticed that “B”
was “very nervous, she was very scared, frightened.” Janice testified that
she noticed that things in the home were “out of order.” “B’s” bedding was
on the couch, that “B” was not packed or ready to go, and that “B” was
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“very scared to get near Keith.” Petitioner placed dirty clothes from the
bathroom into plastic bags while Janice got “B” ready to go, without
changing “B’s” clothes. Janice placed the plastic bags of dirty clothes in
the trunk of her car and went to her sister’s Jane’s house so that Jane
could see “B.” (Id. at 296, 319-324). Janice left the plastic bag of dirty
laundry in Jane’s utility room. (Id. at 324). Jane washed the clothing later
that day and threw out the plastic bag. (Tr. 6/8/2011, pp. 415-416). When
Kayla returned home, petitioner told her that her aunt had picked up “B”
earlier that day instead of Wednesday, as Kayla had planned. (Tr.
6/7/2011.p. 298).
“B” spent the night with Janice and her daughter, Elizabeth Dohring.
Janice testified that “B” remained afraid. (Id. at 325-327). Her clothes
were dirty and she smelled. Her underwear appeared dirty and “pee
stained.” (Id. at 345-347). She picked up the clothes that “B” had been
wearing since leaving the apartment and placed them in her hamper,
where they remained until the Friday after Thanksgiving Day. (Id. at 335336). “B” slept with Janice, but had difficulty falling asleep, was frightened,
clingy, and incontinent on and off on Wednesday and throughout
Thanksgiving Day and into Friday. On Friday morning, Janice went to
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work between 7:00 and 8:00 a.m. as a nursing assistant. (Id. at 329-334).
“B” was asleep when Janice left and her daughter Elizabeth (age 13) and
nephew Kevin (age 16) remained home with “B.” (Id. at 334, Tr. 6/8/2011,
p. 372). Kevin watched “Finding Nemo” with “B” around noon while trying
to get “B” down for a nap. “B” was “whiny, crying and scared” and would
not let Kevin “leave her side at all.” (Tr. 6/8/2011, pp. 365-366). While
trying to get her to calm down and nap, “B” told Kevin, “Uncle Kevin, do
you know what Keith did to me...Keith stuck his pee-pee in me.” (Id. at
368). Kevin called his mom, Jane Scherret, who took “B” to the hospital.
(Id. at pp. 369, 407, 408).
After leaving the hospital, Jane Scherret stopped by her sister
Janice’s house for “B’s” toys and a basket of dirty laundry. Janice does
not have a washing machine. The clothes that “B” had on when she left
on Tuesday were among the items to launder. Jane called and informed
the hospital that she had the clothes. She was advised to place them in a
brown paper bag and take them to the hospital. (Id. at 410-414, 498).
Nurse Pamela Lueke performed an initial assessment when “B”
arrived at the hospital for evaluation on Friday. She testified that “B” did
not say much at first and when asked why she was there, she “did say she
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was there because he hurted (sic) my heart.” Lueke further testified that
“B” said “he put his pee-pee in there,” while pointing to her vagina between
her legs “and that he stopped doing it when her aunt was coming to pick
her up.” (Id. at pp. 470-474, 490). A vaginal and rectal smear was
obtained from “B.” (Id. at pp. 480-481).
The Michigan State Police crime lab in Bridgeport conducted DNA
tests on the underpants and procured a DNA sample from petitioner. (Id.
at 525, 539). Sperm cells were found within the sample extracted from the
underwear. (Id. at 545, 549-550). The DNA profile from the skin cell
sample matched “B’s” known DNA profile and the DNA profile from the
sperm cells sample matched petitioner’s. (Id. at 582-583).
The jury found petitioner not guilty of first-degree criminal sexual
conduct, penile-vaginal penetration, but convicted petitioner of seconddegree criminal sexual conduct. Petitioner was sentenced as a fourthfelony habitual offender, Mich. Comp. Laws § 769.12, and is currently
serving a sentence of 14 – 30 years.
Petitioner filed a delayed application for leave to appeal. Petitioner’s
conviction was affirmed on appeal. People v. Bullard, No. 310854, (Mich.
Ct. App. April 26, 2013), lv. den 495 Mich. 913; 840 N.W.2d 357 (2013).
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Petitioner seeks a writ of habeas corpus on the following grounds:
I. In prohibiting admission of defense expert testimony, the trial
court violated the constitutional right to present a defense.
II. The trial court’s improper admission of hearsay evidence
violated due process rights.
III. Violation of Sixth Amendment right to confront witness.
IV. Violation of right to counsel.
V. Denied right to due process to a fair trial by denying motion
to appoint an expert in forensic interviewing.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), imposes the following standard of
review for habeas cases:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless the
adjudication of the claim–
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
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A decision of a state court is “contrary to” clearly established federal
law if the state court arrives at a conclusion opposite to that reached by
the Supreme Court on a question of law or if the state court decides a
case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
An “unreasonable application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the facts of a
prisoner’s case.” Id. at 409. A federal habeas court may not “issue the
writ simply because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 410-11.
The Supreme Court has explained that “[A] federal court’s collateral
review of a state-court decision must be consistent with the respect due
state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322,
340 (2003). The “AEDPA thus imposes a ‘highly deferential standard for
evaluating state-court rulings,’and ‘demands that state-court decisions be
given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010)
((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). “[A] state court’s
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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)(citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In order to obtain
habeas relief in federal court, a state prisoner is required to show that the
state court’s rejection of his claim “was so lacking in justification that there
was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.
Petitioner raised his claims on his direct appeal. The Michigan
Court of Appeals denied petitioner’s application for leave to appeal on
petitioner’s direct appeal in a form order “for lack of merit in the grounds
presented.” The Michigan Supreme Court subsequently denied petitioner
leave to appeal in a standard form order without any extended discussion.
Determining whether a state court’s decision resulted from an
unreasonable legal or factual conclusion, as would warrant federal
habeas relief, does not require that there be an opinion from the state
court that explains the state court’s reasoning. Harrington, 562 U.S. at 98.
“Where a state court’s decision is unaccompanied by an explanation, the
habeas petitioner’s burden still must be met by showing there was no
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reasonable basis for the state court to deny relief.” Id. In fact, when a
habeas petitioner has presented a federal claim to a state court and that
state court has denied relief, “it may be presumed that the state court
adjudicated the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.” Id. at 99. That
presumption may be overcome only when there is a reason to think that
some other explanation for the state court’s decision is more likely. Id. at
99-100.
In the present case, the AEDPA deferential standard of review
applies to petitioner’s claims where the Michigan Court of Appeals
rejected petitioner’s appeal “for lack of merit in the grounds presented”
and the Michigan Supreme Court subsequently denied leave to appeal in
a standard form order, because these orders amounted to a decision on
the merits. See Werth v. Bell, 692 F.3d 486, 492-94 (6th Cir. 2012).
III. Discussion
A. Claim # 1. The right to present a defense through expert
testimony.
Petitioner claims that he should have been permitted to call an
expert witness to testify that the victim’s disclosure and descriptions of the
sexual assault provides a textbook example of potentially tainted
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testimony due to suggestive and coercive interview techniques and that
the sperm could have been transferred by commingling petitioner’s
clothing and the victim’s wet underwear in the clothes hamper.
An accused has the right to confront the prosecution’s witnesses for
the purpose of challenging their testimony, and the right to present his
own witnesses to establish a defense. This right is a fundamental
element of the due process of law. Washington v. Texas, 388 U.S. 14, 19
(1967); see also Crane v. Kentucky, 476 U.S. 683, 690 (1986)(“whether
rooted directly in the Due Process Clause of the Fourteenth Amendment,
or in the Compulsory Process or Confrontation clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants ‘a
meaningful opportunity to present a complete defense’”)(internal citations
omitted). However, an accused in a criminal case does not have an
unfettered right to offer evidence that is incompetent, privileged, or
otherwise inadmissible under the standard rules of evidence. Montana v.
Egelhoff, 518 U.S. 37, 42 (1996). The Supreme Court, in fact, has
indicated its “traditional reluctance to impose constitutional constraints on
ordinary evidentiary rulings by state trial courts.” Crane, 476 U.S. at 689.
The Supreme Court gives trial court judges “wide latitude” to exclude
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evidence that is repetitive, marginally relevant, or that poses a risk of
harassment, prejudice, or confusion of the issues. Id. (citing Delaware v.
Arsdall, 475 U.S. 673, 679 (1986)). Finally, rules that exclude evidence
from criminal trials do not violate the right to present a defense unless
they are “‘arbitrary’ or ‘disproportionate to the purposes they are designed
to serve.’” United States v. Scheffer, 523 U.S. 303, 308 (1998)(quoting
Rock v. Arkansas, 483 U.S. 44, 56 (1987)).
Under the standard of review for habeas cases as enunciated in §
2254(d)(1), it is not enough for a habeas petitioner to show that the state
trial court’s decision to exclude potentially helpful evidence to the defense
was erroneous or incorrect. Instead, a habeas petitioner must show that
the state trial court’s decision to exclude the evidence was “an objectively
unreasonable application of clearly established Supreme Court
precedent.” See Rockwell v. Yukins, 341 F.3d 507, 511-12 (6th Cir.
2003). Furthermore, “the Supreme Court has made it perfectly clear that
the right to present a ‘complete’ defense is not an unlimited right to ride
roughshod over reasonable evidentiary restrictions.” Id. at p. 512.
A federal habeas court will not disturb a state court’s exclusion of
evidence on the ground of relevancy “unless the relevance and probative
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value of such evidence is so apparent and great that excluding the
evidence denies the petitioner the due process of law.” Jones v. Smith,
244 F. Supp. 2d 801, 814 (E.D. Mich. 2003)(internal citations omitted).
“The inquiry in reviewing a claim of improper exclusion of evidence is
whether the evidence was rationally connected to the crime charged and,
if its exclusion was so prejudicial as to deprive the defendant of a
fundamentally fair trial.” Id.
Petitioner contends that where the victim, “B,” did not actually testify
against him, the evidence against him consisted of vague statements
made by her to her Uncle Kevin in an atmosphere where certain family
members had a motive to fabricate charges against him. Petitioner
further contends that because of devastating sperm cell evidence found in
the victim’s underwear, which corroborated the testimony, he only could
counter this evidence with testimony from a defense expert who could
hypothesize that the sperm cells could have been transferred onto the
underwear through contact with another item of clothing. The trial court
heard argument and found that there would have to be “some sort of
scientific basis for her opinion,” before allowing Julie Howenstein to testify
as a defense expert. Howenstein testified that there are three possible
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ways the semen stain could have been placed on the underwear. She
provided two case studies in support of the defense theory that the
semen could have transferred from petitioner’s clothing to the victim’s
underwear through the commingling of garments in a clothing hamper:
one 1996 Canadian case study and one 2001 Croatian case study, citing
three (3) theories of the transfer of trace DNA material.
Howenstein could not produce any studies from the United States.
Howenstein testified that the two studies provide three (3)
possibilities of sperm transfer but there is no conclusive proof as to how
the material actually arrived on the victim’s underwear. Howenstein also
testified that she reviewed Jodi Corsi’s analysis of the DNA on the
underwear and found the analysis to be correct. The trial court excluded
the proposed testimony of defense expert Julie Howenstein, finding that
there was no evidence that the underwear was commingled with any
other garment, finding the testimony irrelevant. (Tr. 6/9/2011, pp. 608,
611-618).
At trial, the defense presented the transfer argument by questioning
the prosecution’s expert in its case-in-chief. The defense cross-examined
extensively the prosecution’s witness, Jodi Corsi, a forensic scientist for
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the Michigan State Police. Corsi testified that finding sperm cells in
underwear did not necessarily mean that a person committed a sexual act
on the person who wore that underwear. (Tr. 6/8/2011, p. 556). Corsi
also testified (consistent with Howenstein’s hypothesis) that it was
possible that a soiled pair of underwear that came into contact with dried
sperm “could then make the sperm cell wet so that it was more easily
transferred.” (Id. at 567). The defense established that there were
numerous ways for the sperm cells to have gotten into the victim’s
underwear. Furthermore, the trial court granted the defense motions for
funds to call a DNA expert to assist in the preparation of petitioner’s
defense. (Tr. 1/10/2011, p. 45)(Up to $ 1,500.00 and to petition the court
in advance if the cost will be more).
The prosecution’s expert witness testified that the presence of
sperm did not conclusively establish that there was contact with the victim
and that sperm could have been transferred from another article of
clothing onto the underwear. Because the proposed testimony of the
defense expert did not differ from the testimony given by the
prosecution’s expert, the proposed testimony would have little, if any,
relevant value. The trial court’s decision to preclude defense counsel
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from calling Julie Howenstein as a defense expert did not violate
petitioner’s right to confront the statements made by the victim to Kevin
Scherret or to present a defense, because the evidence was only
remotely relevant to impeach the victim’s credibility. See Farley v. Lafler,
193 F. App’x 543, 546 (6th Cir. 2006). Although “[t]he Confrontation
Clause places meaningful limits on a trial judge’s ability to exclude
evidence under a state’s rules of evidence, those limits are not relevant
when the information in question has virtually no probative value[,].” Id. at
547.
Finally, the trial court’s exclusion of Howenstein’s testimony was not
so egregious that it effectively denied petitioner a fair trial, in light of the
fact that petitioner was not barred from impeaching the victim’s credibility.
See Fleming v. Metrish, 556 F.3d 520, 535-36 (6th Cir. 2009). Counsel
elicited testimony from the prosecution’s expert witness to the effect that
the sperm could have been placed on the underwear in a number of
ways, including transfer when wet underwear comes in contact with dry
sperm. The defense also elicited testimony from the prosecution’s expert
that the finding of sperm on the underwear is not conclusive evidence of
sexual contact with the individual who wore the underwear. With the
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quantum of evidence on the defense theory in the record, this Court
concludes that petitioner was afforded “a meaningful opportunity to
present a complete defense.” Allen v. Howes, 599 F. Supp. 2d 857, 873
(E.D. Mich. 2009)(citing Crane, 476 U.S. at 690 (citation and internal
quotations omitted)). Petitioner is not entitled to relief on his first claim.
B. Claims ## 2 and 3. The hearsay evidence claim and the
Sixth Amendment right to confront witnesses claim.
Petitioner next contends that the trial court erred in permitting the
introduction of out of court statements made by “B” to Kevin Scherret and
to Nurse Lueke on the ground that such statements were inadmissible
hearsay. Petitioner further contends that such statements did not qualify
as prior consistent statements that would have been admissible pursuant
to M.R.E. 801(d)(1)(b), because they were made three days after the
alleged assault and after the victim had a motive to fabricate her
allegations against petitioner. In his third claim, petitioner alleges that
admission of the statements violate his due process rights under the Sixth
Amendment right to confrontation. The Court will consolidate the claims
because they are interrelated.
In his second claim, petitioner alleges that the trial court violated his
due process rights by admitting hearsay evidence in the form of
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statements made by “B” to Kevin Scherret, while watching “Finding
Nemo,” and to Nurse Lueke at the hospital.
It is “not the province of a federal habeas court to reexamine statecourt determinations on state-court questions.” Estelle v. McGuire, 502
U.S. 62, 67-68 (1991). A federal court is limited in federal habeas review
to deciding whether a state court conviction violates the Constitution,
laws, or treaties of the United States. Id. Thus, errors in the application of
state law, especially rulings regarding the admissibility of evidence, are
usually not questioned by a federal habeas court. Seymour v. Walker,
224 F.3d 542, 552 (6th Cir. 2000); see also Bridinger v. Berghuis, 429 F.
Supp. 2d 903, 908-09 (E.D. Mich. 2006)(federal habeas courts have no
authority to interfere with perceived errors in state law unless the
petitioner is denied fundamental fairness in the trial process).
The admissibility of evidence under Michigan’s hearsay rules is not
cognizable in a habeas corpus proceeding. See Byrd v. Tessmer, 82 F.
App’x 147, 150 (6th Cir. 2003); see also Rhea v. Jones, 622 F. Supp. 2d
562, 589 (W.D. Mich. 2008); Cathron v. Jones, 190 F. Supp. 2d 990, 996
(E.D. Mich. 2002)(petitioner’s claim that state court erred in admitting
hearsay testimony under state evidentiary rule governing declarations
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against penal interest not cognizable in federal habeas review, where the
claim alleged a violation of state law, not a violation of federal
constitutional rights). Therefore, the admission of this evidence in
violation of Michigan’s rules of evidence would not entitle petitioner to
relief. Petitioner’s claim about the admission of statements that the victim
made to Kevin Scherret and Nurse Lueke in violation of Michigan’s
hearsay rules involve at best an error of state law that is not cognizable in
federal habeas review. See Regan v. Hoffner, 209 F. Supp. 2d 703, 715
(E.D. Mich. 2002). Petitioner is not entitled to relief on his second claim.
In his third claim, petitioner contends that the admission of “B’s” outof-court statements to her uncle and to Nurse Lueke, as well as the
hospital records and statements taken at the hospital, violated his right to
confrontation because the victim was not present in court to testify.
Out-of-court statements that are testimonial in nature are barred by
the Sixth Amendment Confrontation Clause unless the witness is
unavailable and the defendant has had a prior opportunity to crossexamine the witness, regardless of whether such statements are deemed
reliable by the court. See Crawford v. Washington, 541 U.S. 36 (2004).
However, the Confrontation Clause is not implicated, and thus does not
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need not be considered, when non-testimonial hearsay is at issue. See
Davis v. Washington, 547 U. S. 813, 823-26 (2006); see also Desai v.
Booker, 538 F.3d 424, 425-26 (6th Cir. 2008). In holding that the Sixth
Amendment right to confrontation does not apply to non-testimonial
statements, the Supreme Court stated:
“The text of the Confrontation Clause reflects this focus [on
testimonial hearsay]. It applies to ‘witnesses’ against the
accused-in other words, those who ‘bear testimony.’ 1 N.
Webster, An American Dictionary of the English Language
(1828). ‘Testimony,’ in turn, is typically ‘a solemn declaration or
affirmation made for the purpose of establishing or proving some
fact.’ Ibid. An accuser who makes a formal statement to
government officers bears testimony in a sense that a person
who makes a casual remark to an acquaintance does not.”
Davis, 547 U.S. at 823-24 (quoting Crawford, 541 U.S. at 51).
“B’s” out-of-court statements were not testimonial and thus their
admission at petitioner’s trial did not violate the Confrontation Clause.
First, “B” was a four year old minor child who did not make these
statements to the police to initiate a criminal investigation but instead made
these statements to her uncle and a nurse.
In Ohio v. Clark, 135 S. Ct. 2173, 2181 (2015), the Supreme Court
held that a three-year-old domestic abuse victim’s statements to teachers
at his preschool identifying defendant, who was his mother’s boyfriend, as
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the person who had caused his injuries were not testimonial. The Court
further found that the Confrontation Clause did not bar the admission of
the statements at defendant’s trial when the victim failed to testify. The
Supreme Court concluded that the primary purpose of the statements
was not to create evidence for the defendant’s prosecution, but rather the
statements occurred in the context of an ongoing emergency involving
suspected child abuse, and were aimed at identifying and ending the
threat. Id. The Supreme Court observed that: “Statements by very young
children will rarely, if ever, implicate the Confrontation Clause.” Id., at
2182. The rationale being that “Few preschool students understand the
details of our criminal justice system.” Id. “Thus, it is extremely unlikely
that a 3–year–old child in L.P.’s position would intend his statements to
be a substitute for trial testimony. On the contrary, a young child in these
circumstances would simply want the abuse to end, would want to protect
other victims, or would have no discernible purpose at all.” Id.
The primary purpose of “B” making these statements was not to
initiate a prosecution, but rather in the context of reporting an ongoing
emergency, namely, petitioner’s continued sexual abuse or to report the
abuse because she simply wanted it to end.
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Secondly, “B’s” out-of-court statements made to her uncle did not
qualify as testimonial statements covered by the Confrontation Clause
because they were remarks made to a relative and not made to law
enforcement. Testimonial statements do not include remarks made to
family members or acquaintances, business records, or statements made
in furtherance of a conspiracy. Crawford, 541 U.S. at 51-52, 56; see also
Desai v. Booker, 538 F.3d at 427; Jackson v. Renico, 179 F. App’x 249,
255 (6th Cir. 2006).
“B’s” statements to Nurse Lueke were non-testimonial because they
were made for the purpose of medical treatment.
In Giles v. California, 554 U.S. 353, 376 (2008), the Supreme Court
suggested, albeit in dicta, that statements made by the victims of
domestic abuse to their physicians in the course of receiving medical
treatment did not qualify as testimonial statements that would be
excluded by the Confrontation Clause. Courts have held that out-of-court
statements made by victims to their doctors are non-testimonial when
they are made for the purpose of diagnosis and treatment, rather than to
inculpate the defendant. See Moses v. Payne, 555 F.3d 742, 755 (9th Cir.
2009); see also U.S. v. Santos, 589 F.3d 759, 763 (5th Cir.
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2009)(statements made for the purposes of obtaining medical treatment
during an ongoing emergency are not testimonial, for Confrontation
Clause purposes); United States v. Peneaux, 432 F.3d 882, 896 (8th Cir.
2005)(where statements are made to a physician seeking to give medical
aid in the form of diagnosis or treatment, they are presumptively
nontestimonial, for purpose of a Confrontation Clause claim).
In United States v. Barker, 820 F.3d 167, 171-72 (5th Cir. 2016), the
Fifth Circuit held that out-of-court statements by a child victim to a sexual
assault nurse examiner were non-testimonial, and therefore, their
admission in a prosecution for possession of child pornography and
attempt to receive child pornography did not violate defendant’s Sixth
Amendment rights under the Confrontation Clause. The Fifth Circuit
concluded that the primary purpose of the conversation between the
nurse and the victim in the emergency room was to medically evaluate
and treat the victim. The victim’s statements pertaining to the
circumstances of abuse were relevant to ensuring she would not be
discharged into the custody of the abuser, and the victim was four and a
half years old. Likewise, in this case, the admission of “B’s” out-of-court
statements to Nurse Lueke did not violate petitioner’s right to
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confrontation. The statements were made for medical treatment.
Any error in the admission of “B’s” out-of-court statements was
harmless error. A Confrontation Clause error is subject to a harmless
error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). The
standard for showing harmless error on collateral review is “considerably
less favorable” to a habeas petitioner than the standard which is applied
on direct review. On direct review, before a federal constitutional error can
be held harmless, the court must be able to declare that the error was
harmless beyond a reasonable doubt. However, the harmless error test
for collateral review is different. A federal court can grant habeas relief
only if the trial error had a substantial and injurious effect or influence upon
the jury’s verdict. Ford v. Curtis, 277 F.3d 806, 809 (6th Cir. 2002)(quoting
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Under this standard, a
habeas petitioner is not entitled to habeas relief unless he can establish
that the trial error resulted in “actual prejudice.” Id. A federal habeas court
can grant habeas relief only if a habeas petitioner carries the burden of
showing that a Confrontation Clause error had a substantial and injurious
effect or influence on the jury’s verdict. Bulls v. Jones, 274 F.3d 329, 335
(6th Cir. 2001).
24
In the present case, the apartment was disorganized with “B’s”
bedding on the couch” when Aunt Janice went to pick “B” up two days
before Thanksgiving. “B” always slept in her own bed in her own
bedroom. “B” was clingy and nervous when Janice arrived and throughout
the days leading up to the statement made to Uncle Kevin. The clothing
that “B” wore to Aunt Janice’s house were taken off and placed in Janice’s
clothing hamper later that night when she gave “B” a bath. Petitioner’s
DNA was found on the underwear that “B” wore to Aunt Janice’s house,
which was later placed in Janice’s clothing hamper.
In light of the significant amount of evidence against petitioner, the
admission of “B’s” out-of-court statements to Kevin Scherret and Nurse
Lueke were harmless error. Petitioner is not entitled to habeas relief on
his third claim.
C. Claim # 4. The substitution of counsel claim.
Petitioner claims that he was denied his Sixth Amendment right to
counsel when the judge refused to substitute counsel. The record reflects
that, unknown to defense counsel, petitioner wrote a letter to the court
complaining about defense counsel’s representation and requesting
substitute counsel. In response, defense counsel filed a motion to
25
withdraw, based on a lack of trust and citing to a breakdown in the
attorney/client relationship. (Tr. 4/13/2011, p. 2). The trial court held an
extensive hearing on defense counsel’s motion to withdraw. Petitioner
indicated that he thought defense counsel’s representation was
inadequate because counsel did not challenge the unsworn testimony of
the victim in his motions, and that the testimony should not have been
considered in binding petitioner over for trial. The trial court judge
explained the bindover procedure, indicating that the weighing of evidence
occurs at the trial stage. (Id. at 6-8). Petitioner continued to express his
dissatisfaction with defense counsel but did not provide an additional basis
for his dissatisfaction. The trial court judge granted the motion to
withdraw, but with the stipulation that counsel would remain as standby
counsel to provide advice as needed during trial. (Id. at 12-13, 43).
On May 2, 2011, one day before trial, petitioner renewed his request
for the appointment of new counsel and trial counsel again filed a motion
to withdraw. The trial court judge stated on the record that an order
allowing the withdraw of counsel had not been entered following the last
hearing. Petitioner was then told that he had the right to be represented or
to waive counsel and represent himself. Petitioner stated numerous times
26
on the record, “I don’t trust him and I don’t want him as my attorney”
during the hearing. The record also reflects that petitioner did not want to
represent himself and wanted to be represented by an attorney. (Tr.
5/2/2011, pp. 3, 7, 8, 11-12, 24-25). The trial court judge denied the
motion to withdraw finding that petitioner chose to be represented by
counsel. Due to petitioner’s strenuous objections, the trial court judge
inquired as to whether petitioner preferred to make his own opening
statement and examine the witnesses at his jury trial, which was
scheduled to begin the following day. Petitioner stated “I can’t represent
myself,” which resulted in the trial court judge making a finding that trial
counsel would represent petitioner the following day at trial. (Id. at 25, 27).
The Sixth Amendment right to the assistance of counsel does not
guarantee a criminal defendant that he or she will be represented by a
particular attorney. Serra v. Michigan Department of Corrections, 4 F.3d
1348, 1351 (6th Cir. 1993)(citing Caplin & Drysdale v. United States, 491
U.S. 617, 624 (1989)). A criminal defendant who has the desire and the
financial means to retain his own counsel “should be afforded a fair
opportunity to secure counsel of his own choice.” Id. (quoting Powell v.
Alabama, 287 U.S. 45, 53 (1932)). Indeed, “[t]he Sixth Amendment
27
guarantees the defendant the right to be represented by an otherwise
qualified attorney whom that defendant can afford to hire, or who is willing
to represent the defendant even though he is without funds.” U.S. v.
Gonzalez-Lopez, 548 U.S. 140, 144 (2006)(quoting Caplin & Drysdale,
491 U.S. at 624-25). However, while a criminal defendant who can afford
his or her own attorney has a right to a chosen attorney, that right is a
qualified right. See Wheat v. United States, 486 U.S. 153, 159 (1988).
Stated differently, the right to counsel of one’s own choice is not absolute.
See Wilson v. Mintzes, 761 F.2d 275, 280 (6th Cir. 1985). “Although a
criminal defendant is entitled to a reasonable opportunity to obtain counsel
of his choice, the exercise of this right must be balanced against the
court’s authority to control its docket.” Lockett v. Arn, 740 F.2d 407, 413
(6th Cir. 1984); see also Gonzalez-Lopez, 548 U.S. at 151-52)(“Nothing
we have said today casts any doubt or places any qualification upon our
previous holdings that limit the right to counsel of choice and recognize the
authority of trial courts to establish criteria for admitting lawyers to argue
before them... We have recognized a trial court’s wide latitude in
balancing the right to counsel of choice against the needs of fairness, and
against the demands of its calendar.”)(internal citations omitted). Finally,
28
the right to counsel of choice may not be used to unreasonably delay a
trial. See Linton v. Perini, 656 F.2d 207, 209 (6th Cir. 1981).
“Because a trial court’s decision on substitution is so fact-specific, it
deserves deference; a reviewing court may overturn it only for an abuse of
discretion.” Martel v. Clair, 565 U.S. 648, 663-64 (2012).
The trial court twice conducted a hearing on petitioner’s request for
substitute counsel and trial counsel’s motion to withdraw. The day before
his jury trial, petitioner stated numerous times that he did not trust his
attorney and that he wanted new counsel. Petitioner did not state any
rational basis for his lack of trust or any rational basis for the appointment
of new trial counsel. The Sixth Amendment, while guaranteeing petitioner
the right to counsel, does not mandate that new trial counsel be appointed
because a defendant dislikes or does not trust his court appointed
counsel. Petitioner is not entitled to habeas relief on his substitution of
counsel claim because “no Supreme Court case has held that ‘the Sixth
Amendment is violated when a defendant is represented by a lawyer free
of actual conflicts of interest, but with whom the defendant refuses to
cooperate because of dislike or distrust.’” Smith v. Adams, 506 F. App’x.
561, 564 (9th Cir. 2013)(quoting Larson v. Palmateer, 515 F.3d 1057,
29
1067 (9th Cir. 2008)(quoting Plumlee v. Masto, 512 F.3d 1204, 1211 (9th
Cir.2008)(en banc)).
Furthermore, the Sixth Circuit has noted that when “the granting of
the defendant’s request [for a continuance to obtain new counsel] would
almost certainly necessitate a last-minute continuance, the trial judge’s
actions are entitled to extraordinary deference.” U.S. v. Whitfield, 259 F.
App’x 830, 834 (6th Cir. 2008)(quoting United States v. Pierce, 60 F.3d
886, 891 (1st Cir.1995)). In the present case, petitioner stated that he did
not trust his court appointed counsel and wanted new counsel to be
appointed. Petitioner’s distrust was based on his belief that defense
counsel’s representation was inadequate because he did not challenge
the unsworn testimony of the victim in his motions, and because the
statements were used in binding petitioner over for trial. (Tr. 4/13/2011,
pp. 6-8). This Court has already found that the statements did not violate
petitioner’s rights under the Confrontation Clause. Petitioner continued to
express his dissatisfaction with defense counsel but did not provide an
additional basis for his dissatisfaction. Petitioner’s bad relationship with
trial counsel “was attributable to their differing opinions as to trial strategy”
as well as petitioner’s “subjective distrust, neither of which is a suitable
30
ground for habeas relief.” Smith, 506 F. App’x at 564. See also United
States v. White, 451 F.2d 1225, 1226 (6th Cir. 1971)(refusal to appoint
substitute counsel on morning of trial when defendant claimed that he
lacked confidence in his court-appointed counsel did not constitute abuse
of discretion). There is “No Supreme Court decision [which] suggests that
a criminal defendant is entitled to a new lawyer simply because the
defendant loses confidence in his appointed attorney.” Clark v. Curtin, No.
13-13616, 2016 WL 1594374, at *5 (E.D. Mich. Apr. 21, 2016). The
record in this case does not demonstrate any specific disagreements
between petitioner and his attorney rising to the level of a conflict sufficient
to justify the substitution of counsel. See United States v. Sullivan, 431
F.3d 976, 981 (6th Cir. 2005). Petitioner was not entitled to substitute
counsel because his complaints against counsel involved differences of
opinion regarding strategy rather than any irreconcilable conflict or total
lack of communication. See e.g. Adams v. Smith, 280 F. Supp. 2d 704,
720 (E.D. Mich. 2003).
Finally, petitioner is unable to show that he was prejudiced by the
failure of the trial court to grant substitute counsel, in light of the fact that
he received effective assistance of counsel at trial. United States v.
31
Vasquez, 560 F.3d 461, 468 (6th Cir. 2009). “The strained relationship”
between petitioner and his attorney was not a “complete breakdown in
communication” that prevented the petitioner from receiving an adequate
defense, in that the record establishes that counsel made an opening
argument, extensively cross-examined the witnesses, and made a closing
argument. Id. As a result, petitioner failed to establish good cause for the
substitution of counsel, where he failed to show that the conflict between
himself and his attorney was so great that it resulted in a total lack of
communication which denied petitioner of an adequate defense. See
United States v. Jennings, 83 F.3d 145, 149 (6th Cir. 1996). Petitioner is
not entitled to relief on his right to substitution of counsel claim.
D. Claim # 5. The expert witness claim.
Petitioner next claims that the trial court denied him his rights to due
process and equal protection of the law when the trial court denied trial
counsel’s motion for funds to appoint a psychologist in forensic
interviewing to assist him in the preparation for trial.
Petitioner sought a psychologist to testify in connection with the
family dynamics and relationships between the family members and
petitioner. The trial court judge denied counsel’s motion for funds and
32
found that a psychologist’s testimony as to false allegations made by child
witnesses would not be of assistance in petitioner’s defense. (Tr.
1/10/2011, pp. 46-47). Defense counsel extensively examined the dislike
of petitioner by certain family members and the closeness of the
relationship between “B” and her grandmother. An expert in forensic
interviewing would not have added to petitioner’s defense.
Furthermore, while the Supreme Court recognizes a criminal
defendant’s limited right to the assistance of an expert witness in raising
an insanity defense, see Ake v. Oklahoma, 470 U.S. 68, 77 (1985), there
is no Supreme Court precedence to support petitioner’s claim that he had
a right to a psychologist in forensic interviewing to prepare for trial or
assist in analyzing issues pertaining to family dynamics. The Supreme
Court has not addressed a defendant’s entitlement to a court-appointed
expert outside the context of an insanity defense. Since its decision in
Ake, the Supreme Court has not taken the opportunity to “determine as a
matter of federal constitutional law what if any showing would have entitled
a defendant to assistance of other types of experts.” Caldwell v.
Mississippi, 472 U.S. 320, 323 n. 1 (1985). The trial court’s denial of funds
to appoint a psychologist in forensic interviewing was not contrary to or an
33
unreasonable application of clearly established Supreme Court precedent.
Petitioner is not entitled to relief on his fifth claim.
IV. Conclusion
For the reasons discussed, the petition for a writ of habeas corpus is
denied.
In order to obtain a certificate of appealability, a prisoner must make
a substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). To demonstrate this denial, the applicant is required to show
that reasonable jurists could debate whether, or 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, 483-84 (2000). When a district court
rejects a habeas petitioner’s constitutional claims on the merits, the
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims to be debatable or wrong.
Id. at 484. “The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rules
Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
This Court denies a certificate of appealability because reasonable
34
jurists would not find this Court’s assessment of the claims to be debatable
or wrong. See Slack v. McDaniel, 529 U.S. at 484. Petitioner may,
however, proceed in forma pauperis on appeal because an appeal could
be taken in good faith. 28 U.S.C. § 1915(a)(3).
V. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a
writ of habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is
DENIED.
IT IS FURTHER ORDERED that the petitioner will be GRANTED
leave to appeal in forma pauperis.
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: May 31, 2018
I hereby certify that a copy of the foregoing document was served upon
counsel of record on May 31, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager
35
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