Brooks v. Jackson
Filing
16
OPINION and ORDER Denying the Habeas Corpus Petition re 1 , Granting in Part and Denying in Part A Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Denise Page Hood. (LSau)
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.823
Page 1 of 28
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TAVARES BROOKS,
Petitioner,
v.
Case No. 2:17-cv-10628
Honorable Denise Page Hood
SHANE JACKSON,
Respondent.
________________________________/
OPINION AND ORDER
DENYING THE HABEAS CORPUS PETITION,
GRANTING IN PART AND DENYING IN PART
A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Tavares Brooks filed a pro se application for the writ of habeas
corpus under 28 U.S.C. § 2254. The habeas petition challenges Petitioner’s statecourt convictions for first-degree, premeditated murder, Mich. Comp. Laws §
750.316(1)(a), felon in possession of a firearm, Mich. Comp. Laws § 750.224f,
carrying a dangerous weapon with unlawful intent, Mich. Comp. Laws § 750.226,
and three counts of possessing a firearm during the commission of a felony, Mich.
Comp. Laws § 750.227b. Petitioner argues as grounds for relief that: (1) he was
denied due process and a fair trial by a detective’s hearsay testimony; (2) he was
denied his constitutional right to effective assistance of counsel by his trial attorney’s
failure to investigate and present an alibi defense; (3) his right of confrontation was
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.824
Page 2 of 28
violated by the admission of the dying victim’s statement to his mother that “TJ”
shot him; (4) he was convicted on the basis of insufficient evidence in violation of
his right to due process; and (5) the prosecution failed to investigate, disclose, and
analyze physical evidence. The State argues in an answer to the habeas petition that
Petitioner’s first claim is not cognizable on habeas review and that the state court’s
adjudication of Petitioner’s other claims was not objectively unreasonable. Having
reviewed the pleadings and record, the Court agrees that Petitioner’s claims do not
warrant habeas relief.
I. BACKGROUND
The charges against Petitioner arose from the fatal shooting of Dion Jacobs in
Saginaw, Michigan about 8:00 p.m. on October 11, 2012. Petitioner was tried before
a jury in Saginaw County Circuit Court. The evidence at trial established that Jacobs
was shot
six times with a 9 mm semiautomatic pistol, killing him, after Jacobs
and Aaron Johnson stole $2,000 to $3,000 worth of marijuana from
defendant. Right after he was shot, Jacobs collapsed onto the kitchen
steps of his mother’s home. She testified that when he was asked who
shot him, he replied “TJ.” While subsequently being treated by
emergency personnel, Jacobs was pronounced dead. Johnson testified
that Jacobs always referred to defendant as “TJ.”
People v. Brooks, No. 318995, 2015 WL 1314407, at *1 (Mich. Ct. App. Mar. 24,
2015).
2
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.825
Page 3 of 28
On September 3, 2013, the jury found Petitioner guilty, as charged, of firstdegree, premeditated murder, felon in possession of a firearm, carrying a dangerous
weapon with unlawful intent, and three counts of felony-firearm. On October 14,
2013, the trial court sentenced Petitioner to two years in prison for the three felonyfirearm convictions, followed by life imprisonment for the murder conviction and
concurrent sentences of five to ten years in prison for the felon-in-possession and
carrying-a-dangerous-weapon convictions.
Petitioner raised his habeas claims in an appeal of right. The Michigan Court
of Appeals affirmed his convictions, see id., and on November 24, 2015, the
Michigan Supreme Court denied leave to appeal. See People v. Brooks, 498 Mich.
921; 871 N.W.2d 181 (2015).
In 2015, Petitioner filed a federal habeas corpus petition, which this Court
dismissed without prejudice so that Petitioner could pursue post-conviction remedies
in state court. See Brooks v. Haas, No. 2:15-cv-14470 (E.D. Mich. July 29, 2016).
Petitioner apparently did not pursue additional state remedies after the Court
dismissed his first petition. On February 27, 2017, he returned to federal court and
commenced this action. The case was randomly assigned to another judge in this
District, but later reassigned to this Court as a companion to Petitioner’s previous
case. The State filed an answer to the petition, and Petitioner filed a reply.
3
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.826
Page 4 of 28
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
requires federal 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 proceeding.” 28 U.S.C. § 2254(d).
Deciding whether a state court’s decision “involved” an unreasonable
application of federal law or “was based on” an unreasonable
determination of fact requires the federal habeas court to “train its
attention on the particular reasons—both legal and factual—why state
courts rejected a state prisoner’s federal claims,” Hittson v. Chatman,
576 U.S. ––––, ––––, 135 S .Ct. 2126, 2126, 192 L.Ed.2d 887 (2015)
(GINSBURG, J., concurring in denial of certiorari), and to give
appropriate deference to that decision, Harrington v. Richter, 562 U.S.
86, 101–102, 131 S. Ct. 770, 178 L.Ed.2d 624 (2011).
Wilson v. Sellers, 138 S. Ct. 1188, 1191-92 (2018).
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, 405-406 (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.
4
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.827
Page 5 of 28
“[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.” Id. at 411. “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 doubt,’
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v. Lett, 559
U.S. 766, 773 (2010). 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.” Richter, 562 U.S. at 103.
A state-court’s factual determinations are presumed correct on federal habeas review
unless the petitioner rebuts this presumption with clear and convincing evidence, 28
U.S.C. § 2254(e)(2); Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998), and
habeas review is “limited to the record that was before the state court.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
III. DISCUSSION
A. Djuana Gilmore’s Statement to a Police Officer
Petitioner alleges that he was denied due process and a fair trial by retired
detective Joseph Grigg’s testimony about Djuana Gilmore’s comments to Grigg
5
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.828
Page 6 of 28
during Grigg’s investigation of the case. The prosecutor attempted to elicit the
disputed testimony on re-direct examination of Griggs because defense counsel had
asked Grigg on cross-examination about his investigation of the case. Defense
counsel objected on the basis that the testimony would be hearsay. The trial court
overruled the objection because defense counsel had opened the door to the
testimony during his cross-examination of Grigg. Grigg was then permitted to
testify that Gilmore had informed him that she rode with Jacobs to a neighborhood
store on the night of the robbery, that Petitioner and Aaron Johnson subsequently
left that location, and that Jacobs then got in Johnson’s car and followed Petitioner
and Johnson to where they were going. See 8/29/13 Trial Tr. at 94-97, ECF No. 79, PageID. 404-405.
The Michigan Court of Appeals adjudicated Petitioner’s claim on the merits
during the direct appeal, and it agreed with the trial court’s ruling that Petitioner had
opened the door to testimony about Gilmore’s comments to Detective Grigg. The
Court of Appeals opined that Grigg’s testimony on re-direct examination by the
prosecutor was directly responsive to defense counsel’s questions on crossexamination.
The Court of Appeals also concluded that the admission of Gilmore’s
comments to Detective Grigg did not violate Petitioner’s rights under the
Confrontation Clause. The Court of Appeals stated that Gilmore’s statement was
6
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.829
Page 7 of 28
properly admitted to bolster or attack credibility and to rebut defense counsel’s
implication that Johnson was lying about the robbery and his previous relationship
with Petitioner.
Petitioner argues that Gilmore’s statement to Detective Grigg was
inadmissible hearsay for which there was no exception. Petitioner also maintains
that the state courts’ conclusion -- that he opened the door to the testimony -- was an
unreasonable determination of the facts, because defense counsel had questioned
Grigg about his interview with the victim’s mother (Dionna Leonard), not Ms.
Gilmore.
Finally, Petitioner contends that Detective Grigg’s hearsay testimony
violated his right of confrontation and rendered his trial fundamentally unfair.
1. Clearly Established Federal Law
Petitioner’s contention that Officer Grigg’s hearsay testimony was
inadmissible under state law lacks merit because “federal habeas corpus relief does
not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). “To the
extent that any testimony and comments violated Michigan’s rules of evidence, such
errors are not cognizable on federal habeas review.” Hall v. Vasbinder, 563 F.3d
222, 239 (6th Cir. 2009). A claim that evidence was improperly admitted is not part
of a federal court’s review of a state conviction because, “[i]n conducting habeas
review, a federal court is limited to deciding whether a conviction violated the
7
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.830
Page 8 of 28
Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S.
62, 67–68 (1991).
Petitioner’s contention that the state courts made an unreasonable
determination of the facts when they concluded that he opened the door to the
hearsay testimony also lacks merit. Defense counsel asked Detective Grigg on
cross-examination whether Gilmore knew Petitioner before the shooting.
See
8/29/13 Trial Tr. at 91-93, ECF No. 7-9, PageID. 403-404. This question opened
the door to the prosecutor’s questions about Detective Grigg’s investigation and
what Gilmore had told him about Petitioner, Jacobs, and Johnson. The state courts
did not make an unreasonable determination of the facts when they reached the same
conclusion.
Petitioner’s final argument is that Detective Grigg’s testimony violated his
right of confrontation. This is a cognizable issue on habeas review, because the
Sixth Amendment guarantees the accused in criminal cases “the right . . . to be
confronted with the witnesses against him.” U.S. CONST. amend. VI. The right is
“applicable to the States through the Fourteenth Amendment,” Idaho v. Wright, 497
U.S. 805, 813 (1990), and it bars “admission of testimonial statements of a witness
who did not appear at trial unless he [or she] was unavailable to testify, and the
defendant had a prior opportunity for cross-examination.” Davis v. Washington, 547
U.S. 813, 821 (2006) (quoting Crawford v. Washington,541 U.S. 36, 53-54 (2004)).
8
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.831
Page 9 of 28
A statement to the police during an interrogation is considered testimonial if there is
no ongoing emergency and “the primary purpose of the interrogation is to establish
or prove past events potentially relevant to later criminal prosecution.” Id. at 822.
2. Application
Gilmore’s remarks to Detective Grigg were testimonial because they were
made during Grigg’s investigation of Jacobs’ murder, there was no ongoing
emergency, and Gilmore could have anticipated that her statements would be used
during the criminal prosecution of Petitioner. Although Gilmore was listed as a trial
witness, she moved to Chicago, and shortly before the trial commenced, she decided
not to attend the trial due to health issues related to her pregnancy. See 8/28/13 Trial
Tr. at 3-15, ECF No. 7-7, PageID. 317-320. Petitioner, nevertheless, had a prior
opportunity to cross-examine Gilmore at his preliminary examination. See 2/12/13
Prelim. Examination Tr., ECF No. 7-3, PageID. 175-178. Under Crawford and
Davis, Gilmore’s testimonial statements to Detective Grigg were admissible at trial
because she was unavailable at trial and because Petitioner had a prior opportunity
to cross-examine her.
Petitioner maintains that he lacked a prior opportunity to cross-examine Ms.
Gilmore at his preliminary examination because her interview with Detective Grigg
was not addressed at the examination.
“[T]here is some question whether a
preliminary hearing necessarily offers an adequate prior opportunity for cross9
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.832
Page 10 of 28
examination for Confrontation Clause purposes.” Al–Timimi v. Jackson, 379 F.
App’x, 435, 437 (6th Cir. 2010) (citing Vasquez v. Jones, 496 F.3d 564, 577 (6th
Cir. 2007). But “[i]f there is room for reasonable debate on the issue, the state court’s
decision to align itself with one side of the argument is necessarily beyond this
court’s power to remedy under § 2254, even if it turns out to be wrong.” Williams
v. Bauman, 759 F.3d 630, 636 (6th Cir. 2014) (citing White v. Woodall, 572 U.S.
415 (2014)). “Crawford does not mandate that the cross-examination be effective
or skillfully performed,” and the quality of Petitioner’s cross-examination of
Gilmore at the preliminary examination is not implicated by Crawford so long as his
opportunity to cross-examine her was adequate. Strayhorn v. Booker, 718 F. Supp.
2d 846, 853 (E.D. Mich. 2010) (citing Glenn v. Dallman, 635 F. 2d 1183, 1187 (6th
Cir. 1980)).
Petitioner’s trial attorney had an opportunity to cross-examine Gilmore at his
preliminary examination, and he took advantage of that opportunity to question her.
Although the degree of cross-examination may have been limited in scope, the
opportunity to cross-examine Gilmore existed even if defense counsel did not fully
cross-examine her.
The Court therefore concludes that Petitioner’s right of
confrontation was not violated by Detective Grigg’s testimony about Gilmore’s
comments to him, and the state court’s rejection of Petitioner’s claim was not
objectively unreasonable.
10
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.833
Page 11 of 28
Petitioner’s constitutional claim lacks merit for an additional reason: “The
[Confrontation] Clause . . . does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter asserted,” Crawford, 541
U.S. at 59 n.9, and the Michigan Court of Appeals determined that the prosecution
used Gilmore’s comment for impeachment purposes. The Court of Appeals noted
that:
the prosecution premised much of its case on Johnson’s testimony that
he and Jacobs stole marijuana from defendant, and thus provided
defendant with the motive to kill Jacobs. On cross-examination,
defense counsel challenged whether Gilmore knew defendant prior to
the shooting, to attack Johnson’s testimony that he and Jacobs had
known defendant for years, and that Jacobs helped carry out the
robbery. In response, the prosecution elicited information regarding
Gilmore’s comment that she, Johnson and Jacobs were all present
immediately prior to the robbery. The prosecution did not ask this
question to prove that Gilmore was present prior to the robbery but to
rebut the implication that Johnson was lying about the robbery and his
previous relationship with defendant. . . . [T]he prosecution offered
Gilmore’s statement for the purpose of bolstering or attacking
credibility.
Brooks, 2015 WL 1314407, at *6.
Because Gilmore’s statement to Detective Gilmore was admitted for the nonhearsay purpose of bolstering Johnson’s testimony and rebutting Petitioner’s
defense, it raises no Confrontation Clause concerns. See Adams v. Holland, 168 F.
App’x 17, 20 (6th Cir. 2005). Petitioner is not entitled to relief on his claim.
11
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.834
Page 12 of 28
B. Trial Counsel
Petitioner alleges next that his trial attorney was ineffective for failing to
investigate and present an alibi defense. Petitioner asserts that his attorney should
have produced his sister, Karla Brooks, and his girlfriend, Demita Burnett, as
witnesses because both women could have testified that he and Ms. Burnett were at
Ms. Brooks’ home at the time of the murder. Petitioner alleges that he informed his
trial attorney of these facts, but his attorney totally disregarded the potentially
favorable evidence.
Petitioner further alleges that the state appellate court’s
rejection of his claim was contrary to Strickland and was based on an unreasonable
determination of the facts.
1. Clearly Established Federal Law
To prevail on his claim, Petitioner must show that his trial “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
Amendment.” Id. “[T]he defendant must show 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.
12
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.835
Page 13 of 28
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).
Petitioner’s claim is that his trial attorney failed to investigate and present an
alibi defense. Attorneys have “a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations unnecessary.” Strickland,
466 U.S. at 691. “This duty includes the obligation to investigate all witnesses who
may have information concerning his or her client’s guilt or innocence.” Towns v.
Smith, 395 F.3d 251, 258 (6th Cir. 2005).
“[T]he failure to call a known alibi witness generally would constitute
ineffective assistance of counsel.” Bigelow v. Williams, 367 F.3d 562, 570 (6th Cir.
2004). “But Strickland specifically commands that a court ‘must indulge [the]
strong presumption’ that counsel ‘made all significant decisions in the exercise of
reasonable professional judgment.’ ”
Pinholster, 563 U.S. at 196 (quoting
Strickland, 466 U.S. at 689-90); see also Cathron v. Jones, 77 F. App’x 835, 841
(6th Cir. 2003) (noting that, under Strickland, the court was required to “presume
that decisions of what evidence to present and whether to call or question witnesses
13
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.836
Page 14 of 28
are matters of trial strategy”) (citing Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir.
2002)).
2. Application
a. Demita Burnett
Both Ms. Brooks and Ms. Burnett initially were listed as witnesses in the case.
See 8/27/13 Trial Tr. at 14, ECF No. 7-5, PageID. 261.1 The record indicates that
defense counsel wanted to produce Ms. Burnett as a defense witness to show that
Aaron Johnson had talked to Burnett about trying to help the person who killed
Jacobs. Because Johnson had already testified at trial that he would not do anything
to help Jacobs’ killer, defense counsel maintained that Burnett’s testimony would
show that Johnson had made prior inconsistent statements. The prosecutor objected
because defense counsel had not laid a proper foundation as to what Johnson may
have said to Burnett. Defense counsel then agreed to call Johnson as a witness to
establish a foundation for Burnett’s anticipated testimony. See 8/29/13 Trial Tr. at
101-104, ECF No. 7-9, PageID 406-407.
Defense counsel called Johnson as a witness and elicited Johnson’s testimony
about his contacts with Burnett. See id. at 117-121, ECF No. 410-411. But when
The court reporter typed “Cara (phonetic) Brooks” in the transcript of trial, but
because Petitioner claims that defense counsel should have called his sister Karla,
and because “Cara” sounds much like “Karla,” the Court believes the potential
witness was Petitioner’s sister, Karla Brooks.
1
14
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.837
Page 15 of 28
defense counsel subsequently attempted to call Ms. Burnett as a witness, the
prosecutor objected once again. See id. at 126, PageID. 412. A bench conference
followed, and defense counsel then rested his case without producing Ms. Burnett.
Id.
It is not clear from the record why defense counsel did not use Burnett to
establish an alibi defense in addition to, or instead of, trying to use her to show an
inconsistency in Johnson’s testimony. One reason for not using Burnett as an alibi
witness may be that Petitioner did not testify in his own defense to establish an alibi.
In any event, “the absence of evidence cannot overcome the ‘strong presumption
that counsel’s conduct [fell] within the wide range of reasonable professional
assistance.’ ” Burt v. Titlow, 571 U.S. 12, 23 (2013) (quoting Strickland, 466 U.S.
at 689).
Petitioner, moreover, has not presented an affidavit from Burnett establishing
what she would have said if she had testified. Without any evidence that Burnett
would have offered specific favorable testimony to support an alibi defense,
Petitioner cannot show that he was prejudiced by his trial attorney’s failure to
produce Burnett. Tinsley v. Million, 399 F.3d 796, 810 (6th Cir. 2005).
b. Karla Brooks
Petitioner did attach his sister Karla’s affidavit to his habeas petition. She
implies in her affidavit that Petitioner and Burnett were present when she arrived
15
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.838
Page 16 of 28
home at 7:30 p.m. on the night of the murder. She goes on to say that Petitioner and
Burnett left her home at 9:00 p.m. that night. She also states in the affidavit that
“[i]t was discussed with defence attorney . . . that I was to be called
upon as a witness. I was present throughout the trial proceedings with
the intent to testify.
Pet., ECF No. 1, PageID. 47.
Defense counsel initially placed Ms. Brooks on his witness list and then
withdrew her name on the first day of trial. See 8/27/13 Trial Tr. at 4-6, ECF No. 75, PageID. 259. Defense counsel did not provide a reason for his decision, but if he
knew what Ms. Brooks would say at trial and whether or not she would be a credible
witness, the Court may presume “that counsel’s decision to omit [her] testimony was
trial strategy.” Cathron, 77 F. App’x at 841-42. It is also reasonable to assume that
the jury would have found Ms. Brooks’ credibility questionable due to her close
relationship with Petitioner and because she had a personal stake in exonerating
Petitioner. Yancey v. Haas, 742 F. App’x 980, 984 (6th Cir. 2018) (citing Ballinger
v. Prelesnik, 709 F.3d 558, 563 (6th Cir. 2013), and McCray v. Vasbinder, 499 F.3d
568, 573 (6th Cir. 2007)). Petitioner has failed to show that counsel’s decision not
to produce Ms. Brooks as a witness constituted ineffective assistance.
c. Defense Counsel’s Alternative Approach
Despite defense counsel’s failure to call alibi witnesses, he vigorously
advocated the theory that Petitioner was not the shooter by
16
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.839
Page 17 of 28
using cross-examination to undermine the prosecution’s case. Defense
counsel stringently cross-examined Johnson, drastically impeaching his
credibility. Defense counsel highlighted numerous inconsistencies in
Johnson’s testimony and managed to elicit statements from Johnson
admitting that he had lied to police about possessing a firearm.
Similarly, defense counsel elicited an acknowledgment that police
found no physical evidence linking defendant to the crime scene, and
that police failed to investigate several questionable aspects of
Johnson’s testimony.
Brooks, 2015 WL 1314407, at *9.
The Court of Appeals concluded that, “[b]ecause defense counsel adequately
presented the defense that police misidentified defendant as the shooter, defendant
was not deprived of this defense by counsel’s decision not to call his alibi witnesses.”
Id. This Court agrees. Although alibi witnesses may have facilitated Petitioner’s
efforts to undermine the state’s case, there are
“countless ways to provide effective assistance in any given case. Even
the best criminal defense attorneys would not defend a particular client
in the same way.” Rare are the situations in which the “wide latitude
counsel must have in making tactical decisions” will be limited to any
one technique or approach.
Richter, 562 U.S. at 106 (quoting Strickland, 466 U.S. at 689). “To support a defense
argument that the prosecution has not proved its case it sometimes is better to try to
cast pervasive suspicion of doubt than to strive to prove a certainty that exonerates.”
Id. at 109.
Petitioner’s trial attorney attempted to show that the prosecution had not met
its burden of proof in part because Aaron Johnson was not a credible witness and
17
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.840
Page 18 of 28
because Dion Jacobs may not have been referring to Petitioner when he informed
his mother that “TJ” shot him. Because this was a reasonable trial strategy,
Petitioner has failed to show that defense counsel was ineffective.
The state appellate court’s rejection of Petitioner’s claim was not contrary to,
or an unreasonable application of, Strickland or Richter. And given the deference
due to the state court’s decision under both Strickland and AEDPA, the Court
concludes that Petitioner is not entitled to relief on his claim.
C. The Victim’s Identifying Statement to His Mother
Petitioner contends that Jacobs’ statement to his mother that “TJ” shot him,
see 8/28/13 Trial Tr. at 130-132, ECF No. 7-7, PageID. 348-349, violated his right
of confrontation because he was unable to cross-examine Jacobs. The Michigan
Court of Appeals opined on review of this claim that Jacobs’ statement was hearsay,
but that the hearsay was admissible under an exception to the hearsay rule for dying
declarations. The Court of Appeals also concluded that Jacobs’ statement did not
violate Petitioner’s right of confrontation.
The only question here is whether Petitioner’s right of confrontation was
violated, because any violation of the Michigan Rules of Evidence on hearsay would
not be a basis for habeas corpus relief. McGuire, 502 U.S. at 67-68; Hall, 563 F.3d
at 239.
Petitioner’s constitutional claim lacks merit, however, because only
testimonial statements cause a declarant to be a witness within the meaning of the
18
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.841
Page 19 of 28
Confrontation Clause, Davis, 547 U.S. at 821, and a witness’s statement to a relative
or acquaintance is not a testimonial statement. See Crawford, 541 U.S. at 51 (stating
that “[a]n 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”); United States v. Boyd, 640 F.3d 657, 665 (6th Cir. 2011) (noting that
“statements made to friends and acquaintances are non-testimonial”); United States
v Lee, 374 F.3d 637, 645 (8th Cir. 2004) (concluding that the declarant’s statement
to his mother did “not implicate the core concerns of the confrontation clause”). The
Supreme Court, moreover,
has refrained from ruling on the status of dying declarations under the
Confrontation Clause. In Crawford and again in Giles v. California,
554 U.S. 353, 128 S. Ct. 2678, 171 L.Ed.2d 488 (2008), the Supreme
Court hinted that dying declarations may fall within an exception to the
constitutional bar against testimonial hearsay. See Crawford, 541 U.S.
at 56 n. 6, 124 S. Ct. 1354 (“Although many dying declarations may
not be testimonial, there is authority for admitting even those that
clearly are . . . . We need not decide in this case whether the Sixth
Amendment incorporates an exception for testimonial dying
declarations.”); Giles, 554 U.S. at 358, 128 S. Ct. 2678 (recognizing
dying declarations as one of “two forms of testimonial statements ...
admitted at common law even though they were unconfronted”).
Walker v. Harry, 462 F. App’x 543, 545–46 (6th Cir. 2012). The state appellate
court’s rejection of Petitioner’s claim, therefore, does not offend clearly established
Supreme Court precedent, see id. at 546, and Petitioner is not entitled to relief on his
claim.
19
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.842
Page 20 of 28
D. Sufficiency of the Evidence
Petitioner claims that he was convicted on insufficient evidence in violation
of his right to due process. Petitioner contends that there was insufficient evidence
that he committed and premeditated the murder.
To support this contention,
Petitioner alleges that dying declarations, such as Jacobs’ comment to his mother
that “TJ” shot him, are unreliable, and that Aaron Johnson’s testimony was not
credible because of the many discrepancies in his testimony. The Michigan Court
of Appeals disagreed with Petitioner’s argument and concluded that the facts were
more than sufficient to establish Petitioner’s guilt.
1. Clearly Established Federal Law
The Supreme Court has held “that the Due Process Clause [of the Fourteenth
Amendment] 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
20
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.843
Page 21 of 28
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).
“Circumstantial evidence may support a
conviction, and such evidence need not remove every reasonable hypothesis except
that of guilt.” Apanovitch v. Houk, 466 F.3d 460, 488 (6th Cir. 2006) (internal and
end citations omitted).
Under AEDPA, a habeas 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), because Jackson claims are “subject to two layers of judicial
deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). First, it
is the jury’s responsibility to decide what conclusions should be drawn from the
evidence admitted at trial. Johnson, 566 U.S. at 651. And second, a federal habeas
court may overturn a state court decision rejecting a sufficiency of the evidence
challenge only if the state court decision was objectively unreasonable. Id.; see also
Tanner v. Yukins, 867 F.3d 661, 672 (6th Cir. 2017) (stating that “two layers of
deference apply [to a sufficiency-of-the-evidence claim], one to the jury verdict, and
one to the state appellate court”), cert. denied, 138 S. Ct. 1283 (2018).
The Jackson “standard must be applied with explicit reference to the
substantive elements of the criminal offense as defined by state law.” Jackson, 443
21
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.844
Page 22 of 28
U.S. at 324 n. 16. “To establish first-degree premeditated murder, 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. Plummer, 229 Mich. App. 293, 300, 581 N.W.2d 753 (1998)
(quotation marks and citation omitted).
“Premeditation and
deliberation may be inferred from all the facts and circumstances, but
the inferences must have support in the record and cannot be arrived at
by mere speculation.” Id. at 301, 581 N.W.2d 753. “Though not
exclusive, factors that may be considered to establish premeditation
include the following: (1) the previous relationship between the
defendant and the victim; (2) the defendant’s actions before and after
the crime; and (3) the circumstances of the killing itself, including the
weapon used and the location of the wounds inflicted.” Id. at 300, 581
N.W.2d 753.
People v. Bass, 317 Mich. App. 241, 266; 893 N.W.2d 140, 157 (2016).
2. Application
Petitioner asserts that there was insufficient evidence pointing to him as the
perpetrator of the murder. “The identity of a defendant as the perpetrator of the
crimes charged is an element of the offense and must be proved beyond a reasonable
doubt.” Byrd v. Tessmer, 82 F. App’x 147, 150 (6th Cir. 2003) (citing People v.
Turrell, 25 Mich. App. 646; 181 N.W.2d 655, 656 (1970)). But “[i]f the evidence
at trial was sufficient to permit jurors to find beyond a reasonable doubt that the man
seated at the defense table was the same person referred to in the account of the
22
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.845
Page 23 of 28
offense, then there is no reason to overturn the jury’s conviction based on the
government’s alleged failure to prove identity.” United States v. Thomas, 763 F.3d
689, 694 (7th Cir. 2014).
The Michigan Court of Appeals correctly pointed out on review of Petitioner’s
claim that,
immediately after being shot Jacobs identified the perpetrator as “TJ.”
The medical examiner established that Jacobs was shot in the front of
his body, indicating that he was in a position to positively identify his
assailant. Furthermore, because Jacobs was fatally wounded and
actively dying, he had no reason to lie about defendant’s identity.
Similarly, considering that Jacobs’ mother testified that she had never
met anyone named “TJ,” it was reasonable for the jury to conclude that
she was being truthful about Jacobs’ last words; Jacobs’ dying
declaration was credible, direct evidence that “TJ” was the shooter.
In addition, the prosecution presented sufficient circumstantial
evidence to establish that defendant was the “TJ” Jacobs identified.
Johnson testified that he, Jacobs, and defendant had known each other
for 18 years, and that he and Jacobs had always referred to defendant
as TJ. He testified that he stole roughly $2,000 of marijuana from
defendant, and Jacobs helped him do so, which would explain
defendant’s motive for killing Jacobs. “In cases in which the proofs are
circumstantial, evidence of motive is particularly relevant.” People v.
Unger, 278 Mich. App 210, 223; 749 NW2d 272 (2008).
Brooks, 2015 WL 1314407, at *1-*2.
Although Petitioner contends that there was a lack of evidence connecting him
to the robbery and murder, the Michigan Court of Appeals noted that
the evidence established that Jacobs and Johnson were good friends,
that defendant had known Jacobs and Johnson for many years, and that
all three men lived in the same area. It was reasonable for the jury to
23
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.846
Page 24 of 28
infer that defendant could have easily discovered that Jacobs helped
Johnson commit the robbery.
Id. at *2.
A rational juror could have concluded from the evidence, as accurately
summarized by the Court of Appeals, that Petitioner shot Jacobs. A rational
juror also could have concluded from the use of a gun and the firing of ten
gunshots, including one to Jacobs’ chest, that the murder was premeditated.
Petitioner’s argument is primarily an attack on Johnson’s credibility, but
[a] reviewing court does not reweigh the evidence or redetermine the
credibility of the witnesses whose demeanor has been observed by the
trial court. Marshall v. Lonberger, 459 U.S. 422, 434, 103 S. Ct. 843,
74 L.Ed.2d 646 (1983). It is the province of the factfinder to weigh the
probative value of the evidence and resolve any conflicts in testimony.
Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992). An assessment of
the credibility of witnesses is generally beyond the scope of federal
habeas review of sufficiency of evidence claims. Gall v. Parker, 231
F.3d 265, 286 (6th Cir. 2000). The mere existence of sufficient
evidence to convict therefore defeats a petitioner’s claim. Ibid.
Matthews v. Abramajtys, 319 F.3d 780, 788–89 (6th Cir. 2003). Further, as the
Michigan Court of Appeals pointed out,
when considered in conjunction with the prosecution’s corroborating
evidence, [Johnson] was not so impeached as to warrant wholesale
disbelief of his testimony. Items generally associated with drug dealing
were found at defendant’s apartment, including a box for a digital scale,
plastic baggies, $6,000 in cash rolls, and a handwritten ledger. In
addition, the prosecution introduced a receipt, supporting Johnson’s
assertion that he had sent his baby’s mother to a motel on the night of
the robbery after defendant came to his house and pounded on the door.
Finally, Jacobs’ girlfriend, Djuana Gilmore, had said she was present
when Jacobs and Johnson discussed a plan to take TJ’s property.
24
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.847
Page 25 of 28
Brooks, 2015 WL 1314407, at *2.
The state appellate court’s determination of the facts is supported by the
record, and its conclusion -- that the prosecution presented sufficient, credible
evidence to establish that Petitioner murdered Jacobs -- is not contrary to, or an
unreasonable application of, Jackson. Petitioner has no right to relief on his
challenge to the sufficiency of the evidence.
E. The Alleged Failure to Investigate, Disclose, and Analyze Evidence
In his fifth and final claim, Petitioner alleges that the prosecution failed to
investigate, disclose, and analyze physical evidence. Petitioner contends that the
prosecutor had a duty to inquire about, and discover, information regarding: the
Instagram postings made by “Stack-A-Grip,” which was one of Petitioner’s
nicknames, see 8/28/13 Trial Tr. at 71, 76, 103-104, ECF No. 7-7, PageID. 334,
335, 342; whether Johnson was admitted to the hospital and had surgery at the time
of the incidents in question, as he claimed at trial, see id. at 72-74, PageID. 334; and
whether Johnson’s brain tumor was the reason for inconsistencies in his testimony,
as the prosecutor claimed in his rebuttal argument, see 8/30/13 Trial Tr. at 49-50,
ECF No. 7-11, PageID. 456.
Petitioner relies on Brady v. Maryland, 373 U.S. 83 (1963), in which the
Supreme Court held that “suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is material, either
25
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.848
Page 26 of 28
to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Id. at 87. A true Brady claim has three components:
The evidence at issue must be favorable to the accused, either because
it is exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued.
Strickler v. Greene, 527 U.S. 263, 281–82 (1999)).
Even if the evidence at issue would have been favorable to the defense,
Petitioner has failed to show that the prosecution suppressed the evidence. Johnson
testified at the preliminary examination about his hospitalization and about “Stacka-Grip” being Petitioner’s signature or street name.
See 2/12/13 Prelim.
Examination Tr. at 56, 65-68, ECF No. 7-3, PageID. 199, 208-211.
Because
Petitioner should have known the essential facts permitting him to take advantage of
any exculpatory information about Johnson’s hospitalization or Johnson’s belief that
Petitioner was known as “Stack-a-Grip,” there was no Brady violation. Coe v. Bell,
161 F.3d 320, 344 (6th Cir. 1998).
Further, the essence of Petitioner’s claim is that the prosecution’s
investigation was inadequate.
The Due Process Clause of the Fourteenth
Amendment does not require the police to use a particular investigatory tool.
Arizona v. Youngblood, 488 U.S. 51, 58-59 (1988). Nor does the prosecution have
26
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.849
Page 27 of 28
a constitutional duty to discover evidence that might conceivably aid the defense in
the preparation of its case. Williams v. Wolff, 473 F.2d 1049, 1054 (8th Cir. 1973).
Defense counsel, moreover, used the absence of certain evidence as part of
the defense by suggesting that the police investigation had been inadequate and that
the prosecution had failed to prove its case. See, e.g., 8/29/13 Trial Tr. at 37, ECF
No. 7-9, PageID. 390 (defense counsel’s cross-examination of Detective Allen
Rabideau as to whether casings found at the crime scene were subjected to
fingerprint or DNA analysis); id. at 84-91, PageID. 402-403 (defense counsel’s
cross-examination of Detective Grigg regarding the lack of physical evidence
linking Petitioner to the crime and Grigg’s failure to investigate the posting made by
“Stack-a-Grip” on Johnson’s Instagram account). As a result, no prejudice ensued
from the alleged suppression of evidence.
The Michigan Court of Appeals concluded on review of Petitioner’s claim
that he had failed to establish a Brady violation. This conclusion was objectively
reasonable, and Petitioner has no right to habeas relief on his claim.
IV. CONCLUSION
The state appellate court’s rejection of Petitioner’s claims was not contrary to
Supreme Court precedent, an unreasonable application of Supreme Court precedent,
or an unreasonable determination of the facts. The state court’s decision also was
not so lacking in justification that there was an error beyond any possibility for
27
Case 2:17-cv-10628-DPH-SDD ECF No. 16 filed 04/17/20
PageID.850
Page 28 of 28
fairminded disagreement. The Court, therefore, denies the petition for writ of habeas
corpus.
The Court nevertheless grants a certificate of appealability on Petitioner’s
fourth claim regarding the sufficiency of the evidence, because reasonable jurists
could disagree with the Court’s resolution of that claim or conclude that the issue
deserves encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322,
327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The Court declines
to issue a certificate of appealability on Petitioner’s remaining claims. Petitioner
may proceed in forma pauperis on appeal if he appeals this decision because an
appeal could be taken in good faith. 28 U.S.C. §1915(a)(3).
Dated: April 17, 2020
s/Denise Page Hood
Chief Judge, United States District Court
28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?