McGee v. Winn
Filing
12
MEMORANDUM OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Granting Permission to Appeal In Forma Pauperis. Signed by District Judge Arthur J. Tarnow. (CPic)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EVELLIS McGEE,
Petitioner,
Case No. 2:17-cv-13017
Hon. Arthur J. Tarnow
v.
THOMAS WINN,
Respondent.
_______________________________/
OPINION AND ORDER DENYING (1) PETITION FOR WRIT OF HABEAS
CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3)
GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS
Michigan prisoner Evellis McGee filed this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in the Saginaw
Circuit Court of second-degree murder, MICH. COMP. LAWS § 750.317, carrying a firearm
with unlawful intent, MICH. COMP. LAWS § 750.226, assault with the intent to commit
murder, MICH. COMP. LAWS § 750.83, and three counts of possession of a firearm when
committing a felony (felony-firearm). MICH. COMP. LAWS § 750.227b. Petitioner was
sentenced to concurrent prison terms of 36-to-60 years for the murder and assault
convictions, 3-to-5 years for the carrying a firearm conviction, and consecutive 2-year terms
for the felony-firearm convictions.
The petition raises five claims: (1) insufficient evidence was presented at trial to
sustain Petitioner’s convictions, (2) the jury’s verdict went against the great weight of the
evidence, (3) Petitioner’s trial was improperly joined with his co-defendants, (4) the trial
McGee v. Winn, Case No. 17-13017
court erred in admitting gang evidence, and (5) the trial court erroneously instructed the jury
on aiding and abetting and mutual combatants.
The Court will deny the petition because the claims are without merit. The Court will
also deny Petitioner a certificate of appealability, but it will grant him permission to proceed
on appeal in forma pauperis.
I. Background
This Court recites verbatim the relevant facts relied upon by the Michigan Court of
Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1).
See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
These cases arise out of a May 23, 2013 shooting that occurred shortly
before 6:00 p.m. in the parking lot of Saginaw’s Florence Event Hall, where
Saginaw High School students had gathered with friends and family for an
informal pre-prom party. The prosecution theorized that animosity between
those associated with Sheridan Park neighborhood and those associated with
Saginaw’s east side precipitated the shooting. Evidence indicated that
defendants Thomas and McGee were from the east side, while defendant
Clark, Keon Bowens, a fourth defendant who was acquitted of all charges, and
Anterio Patton, the presumed target of the shooting, were from Sheridan Park.
Pamela Jordan reported that, shortly before the shooting began,
Thomas, McGee, and several other young men approached Patton, Clark,
Bowens, and others gathered around the black Caprice that Patton had driven
to the pre-prom party. The witness recounted that Thomas’s group approached
Patton’s group as if “they were wanting trouble.” After she had taken a picture
of Patton and his date and was walking away, she heard someone from
Thomas’s group said to someone in Patton’s group, “I heard you was looking
for me. I got nine rounds for you.” Malik Jordan testified that the men by the
Caprice were flashing weapons and gang signs, while Trenika Shivers,
Patton’s aunt, said she saw McGee standing beside Thomas, and saw Thomas
flash his gun. Shivers opined that Thomas’s was not an aggressive move, nor
2
McGee v. Winn, Case No. 17-13017
was it much noticed by Patton’s group. According to Malik, Thomas pulled his
gun, held it by his side, and started to back up. Shaquana Reid indicated that
McGee was at Thomas’s side, acting as if he were about to draw his gun.
Several witnesses testified to a sense that something was going to
happen. Tangela Owens said she was walking around taking pictures when her
daughter, Tonquinisha “Ne-Ne” McKinley, approached her and told her they
had to leave because something was “getting ready to go down.” Pamela
Jordan said that, just after she heard the threatening words spoken toward
Patton’s group, her son, Malik, approached her and said, “mom, it’s about to
be some stuff,” and
began pushing her along, away from the area where the black Caprice was
parked. Trenika Shivers said she sensed there was about to be a fight and
started to get in the Caprice to drive it out of the way when defendant Clark
pushed her all the way in the car and said, “ma, get out the way.” According
to Malik Jordan, after Thomas pulled his weapon, held it by his side, and
started backing up, defendant Clark emerged from the Caprice and started
shooting. Marguerie Johnson recalled that she was standing by defendants
Thomas and McGee when the shooting started, and she saw them shooting
back in the direction of Patton and defendant Clark. Several witnesses said that
it sounded like shots were coming from everywhere. A firearms expert from
the Michigan State Police testified that police recovered 36 cartridge casings
fired from five semiautomatic weapons. Ne-Ne McKinley was fatally shot in
the face, while three other innocent bystanders were wounded.
People v. McGee, 2016 WL 4645822, at *1–2 (Mich. Ct. App. Sept. 6, 2016).
Following his conviction and sentence, Petitioner filed an appeal of right. His
appellate counsel filed a brief on appeal that raised the following six claims:
I. Whether Defendant-Appellant is entitled to entry of a judgment of acquittal
on all charges?
II. Whether Defendant-Appellant is entitled to a new trial as a verdict was
against the great weight of the evidence?
3
McGee v. Winn, Case No. 17-13017
III. Whether Defendant-Appellant was denied a fair trial where he was
required to be tried not only in the same trial, but by the same jury, with other
defendants that had antagonistic defenses?
IV. Whether Defendant-Appellant was denied a fair trial by the introduction
of irrelevant and prejudicial exhibits then invading the province of the jury
when asking witnesses what they see in the exhibits?
V. Whether Defendant-Appellant was denied a fair trial when the court
improperly instructed the jury, including instructions on aiding and abetting,
and mutual combatants?
VI. Whether Defendant-Appellant is entitled to be resentenced, have his
judgment of sentence and presentence report corrected?
The Michigan Court of Appeals affirmed Petitioner’s conviction in an unpublished
opinion. Id.
Petitioner did not file an application for leave to appeal in the Michigan Supreme. See
Dkt. 8-24 (Affidavit of Michigan Supreme Court Clerk).
II. Standard of Review
28 U.S.C. § 2254(d) 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
4
McGee v. Winn, Case No. 17-13017
(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.
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. “[A] state court's determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)). Therefore, 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.” Id. at 103.
5
McGee v. Winn, Case No. 17-13017
III. Discussion
A. Procedural Default
Respondent contends that all of Petitioner’s claims are procedurally defaulted because
of his failure to file an application for leave to appeal in the Michigan Supreme Court and
his inability to now do so. Respondent did not raise this defense in its initial pleading, instead
choosing to argue that Petitioner’s claims were merely unexhausted and that the petition
should be dismissed without prejudice for Petitioner to exhaust his claims. See Dkt. 7
(Respondent’s Motion to Dismiss). Petitioner asserts that he was unable to file for review in
the Michigan Supreme Court because his legal documents were stolen from his prison cell.
See Dkt. 1, at 5.
Under the procedural default doctrine, a federal habeas court will not review a
question of federal law if a state court’s decision rests on procedural state law ground that
is independent of the federal question and is adequate to support the judgment. See Coleman
v. Thompson, 501 U.S. 722, 729 (1991). However, procedural default is not a jurisdictional
bar to review of a habeas petition on the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997).
Additionally, “federal courts are not required to address a procedural-default issue before
deciding against the petitioner on the merits.” Hudson v. Jones, 351 F. 3d 212, 215 (6th Cir.
2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)).
The Court deems it more efficient to proceed directly to the merits here because the
claims are more easily resolved on that basis and because Respondent arguably waived his
6
McGee v. Winn, Case No. 17-13017
procedural default defense by failing to raise it in his initial pleading. See Trest v. Cain, 522
U.S. 87, 89 (1997).
B. Sufficiency of the Evidence
Petitioner first asserts that there was constitutionally insufficient evidence presented
at trial to prove beyond a reasonable doubt that he committed any act that caused the death
of the victim, that he aided or abetted the person who killed the victim, or that he had an
unlawful intent while carrying his firearm.
After reciting the constitutional standard and the elements of the offenses, the
Michigan Court of Appeals rejected Petitioner’s claim on the merits as follows:
[D]efendants Thomas and McGee contend that they did not “cause”
McKinley’s death because theirs was not the bullet that killed her. However,
defendants were prosecuted under an aiding and abetting theory, conviction
under which required the prosecution to prove that,
(1) the crime charged was committed by the defendant or some
other person; (2) the defendant performed acts or gave
encouragement that assisted the commission of the crime; and
(3) the defendant intended the commission of the crime or had
knowledge that the principal intended its commission at the time
that [the defendant] gave aid and encouragement. [People v.
Robinson, 475 Mich. 1, 6 (2006) (quotation marks and citations
omitted).]
It is undisputed that a bullet from someone’s gun killed McKinley, thus
satisfying the first element of the aiding and abetting theory. The actions of
Thomas and McGee described above assisted the commission of the crime by
creating or contributing to the tensions that erupted in gunfire, thus satisfying
the second element. From these same actions, a jury could reasonably infer
that defendants Thomas and McGee acted “in wanton and wilful disregard of
7
McGee v. Winn, Case No. 17-13017
the likelihood that the natural tendency of such behavior is to cause death or
great bodily
harm[,]” Goecke, 457 Mich. at 464, thus satisfying the third element of aiding
and abetting. Accordingly, viewed in a light most favorable to the prosecution,
Ericksen, 288 Mich. at 196, the evidence was sufficient to allow a rational trier
of fact to conclude beyond a reasonable doubt that defendants Thomas and
McGee committed second-degree murder under an aiding and abetting theory.
*
*
*
Viewing the evidence in the light most favorable to the prosecution,
Ericksen, 288 Mich. App. at 196, and resolving all conflicts in favor of the
prosecution, Unger, 278 Mich. App. at 222, the evidence is sufficient to allow
a rational trier of fact to conclude beyond a reasonable doubt that Thomas and
McGee assaulted Patton with the intent to murder. It is undisputed that Thomas
and McGee assaulted Patton by firing their weapons at him. Witnesses testified
that defendants Thomas and McGee fired their weapons in the direction of
Patton. Marguerie Johnson said that Patton appeared to be the target because
“he was the only one over in that direction and had the music and all that stuff
playing.” Pamela Jordan testified that, although she did not see who spoke
them, the threatening words were spoken “towards” Patton. In addition, the
prosecution contends that the number of cartridge cases found at the scene
further supports the assault with intent to murder convictions because a jury
could reasonably infer that Thomas, McGee, and the other defendants intended
to kill when they repeatedly pulled the triggers on their guns. Further, had the
assault of Thomas and McGee on Patton been successful, there can be no
doubt that the result would have been murder. This evidence, the evidence
presented of rival gang affiliations, and the reasonable inferences that may be
drawn from all of the evidence, Ericksen, 288 Mich. App. at 196, are sufficient
to support the jury’s conviction of Thomas and McGee for assault with intent
to kill.
*
*
*
Viewed in the light most favorable to the prosecution, Ericksen, 288
Mich. App. at 196, the evidence is sufficient to allow a rational trier of fact to
conclude beyond a reasonable doubt that McGee carried a firearm from one
location to another, having at the time the intent of using it unlawfully against
Clark or his associates. Mitchell, 301 Mich. App. at 293. Even if McGee
8
McGee v. Winn, Case No. 17-13017
elected to take a gun to the pre-prom party as protection, once at the pre-prom
event he left one location in the parking lot, with the gun, to go to another
location in the parking lot and confront Patton and his armed group. McGee
stood by Thomas while Thomas flashed his gun and pulled his weapon,
McGee or someone else in his group uttered a challenge that concluded with
“I got nine rounds for you,” and McGee appeared poised to pull his own
weapon. He eventually did draw and fire his weapon toward Patton and Clark.
That McGee appeared to fire back instead of fire first does not weigh against
a finding that, when he approached the Patton/Clark group, he
did so with the fully formed intent of using his weapon unlawfully against
them.
McGee, 2016 WL 4645822, at *7-11.
This decision did not involve an unreasonable application of the clearly established
Supreme Court standard. In reviewing the sufficiency of the evidence, “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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The reviewing court may not
“reweigh the evidence, reevaluate the credibility of witnesses, or substitute [its] judgment for
that of the jury.” Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). “[E]ven were [the
court] to conclude that a rational trier of fact could not have found a petitioner guilty beyond
a reasonable doubt, on habeas review, [the court] must still defer to the state appellate court’s
sufficiency determination as long as it is not unreasonable.” Id.; see 28 U.S.C. § 2254(d)(2).
The evidence presented at trial, viewed most favorably to the prosecution, indicated
that Petitioner and Thomas were as responsible as the opposing group of men for engaging
in the mutual gunfight that left Tonquinisha McKinley dead. Multiple eyewitnesses testified
9
McGee v. Winn, Case No. 17-13017
to seeing the escalating tensions which resulted in the gunfight, including Pamela Jordan,
Malik Jordan, Trenika Shivers, Shaquina Reid, Tangela Owens, and Marguerie Johnson.
Witnesses testified that Petitioner and Thomas approached Patton’s vehicle, Thomas
drew a handgun, and one of the two men said that they had “nine rounds” for Patton. Dkt.
8-8, at 172, 176-77; Dkt. 8-9, at 208. Witnesses testified to then seeing Clark and Bowens
fire their pistols towards Petitioner and Thomas. Dkt. 8-9, 46, 71. Petitioner and Thomas
returned fire, resulting in a prolonged gunfight in which McKinely was shot in the face and
killed. Dkt. 8-7, 46; Dkt. 8-8, 121; Dkt. 8-10, 172; Dkt. 8-11, 83-84. The evidence indicated
that five different pistols left 36 spent casings at the scene. Dkt. 8-12, at 161-165, 186.
The evidence viewed through the Jackson lens thus established that Petitioner was
guilty of second-degree murder under an aiding and abetting theory. Petitioner may not have
fired the first shot or the fatal shot, but a rationale fact-finder could conclude beyond a
reasonable doubt that by threatening Patton’s group, and then participating in the gunfight,
Petitioner committed an act that aided in the murder of McKinley and caused her death.
Furthermore, the jury could have determined based on the evidence presented that Petitioner
either intended to kill someone by engaging in the gunfight or at a minimum that he knew
that death or great bodily harm was likely to result from his participation. See People v.
Djordjevic, 230 Mich. App. 459, 462 (1998) (“Malice may be inferred from evidence that
a defendant intentionally set in motion a force likely to cause death or great bodily hear.”).
10
McGee v. Winn, Case No. 17-13017
Finally, Petitioner’s claim that there was insufficient evidence that he had an unlawful
intent while carrying a firearm is baseless. The jury could infer beyond a reasonable doubt
based on the eyewitness testimony that Petitioner and Thomas intended from the start of the
encounter to engage in a gunfight with Patton’s group.
The decision of the Michigan Court of Appeals rejecting Petitioner’s sufficiency of
the evidence claim “was [not] so insupportable as to fall below the threshold of bare
rationality.” See Coleman, 566 U.S. at 656.
C. Great Weight of the Evidence
Petitioner next asserts that he is entitled to a new trial because “the great weight of the
evidence” ran contrary to the jury’s guilty verdict.
It is well-established that habeas review is not available to correct errors of state law.
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Where the evidence is sufficient as a matter
of due process under Jackson, a claim that the verdict was against the weight of the evidence
presents a state law issue which is not cognizable on habeas review. A federal habeas court
has no power to grant relief on the ground that a state conviction is against the great weight
of the evidence. Cukaj v. Warren, 305 F. Supp. 2d 789, 796 (E.D. Mich. 2004); Dell v.
Straub, 194 F. Supp. 2d 629, 648 (E.D. Mich. 2002). Habeas relief is thus not warranted on
such a basis. The claim is not cognizable.
11
McGee v. Winn, Case No. 17-13017
D. Joint Trial
Petitioner’s third claim asserts that his trial was improperly tried together with his codefendants.
Improper joinder does not by itself, however, violate the federal constitution. In
United States v. Lane, 474 U.S. 438, 446, n. 8 (1986), the Supreme Court suggested that
misjoinder could rise “to the level of a constitutional violation only if it results in prejudice
so great as to deny a defendant his Fifth Amendment right to a fair trial.” Id. The Sixth
Circuit has nevertheless noted that this language in Lane is simply dicta and thus not clearly
established federal law. See Mayfield v. Morrow, 528 F. App’x. 538, 541-42 (6th Cir. 2013).
Indeed, joint trials play a vital role in the criminal justice system. Richardson v. Marsh, 481
U.S. 200, 209 (1987). Joint trials generally serve the interests of justice by avoiding
inconsistent jury verdicts and facilitating the efficiency and fairness of the criminal justice
system. Id. at 209-10. Other than cases in which a co-defendant’s statement is admitted and
implicates a defendant, as in Bruton v. United States, 391 U.S. 123, 137 (1968), the Supreme
Court has left the matter of severance to state law and the trial judge’s discretion.
Here, Petitioner does not assert that any statements made by his co-defendants were
improperly admitted against him. Instead, Petitioner merely asserts that separate trials were
mandated because the defenses presented at the single trial were antagonistic and mutually
irreconcilable. That assertion is false. As the Michigan Court of Appeals found:
12
McGee v. Winn, Case No. 17-13017
Notwithstanding defendants’ assertions to the contrary, the jury did not have
to disbelieve one defendant in order to believe another. Id. Michigan State
Police scene reconstruction and firearms reports confirmed that there were at
least five shooters, and witnesses testified that shots were coming from
everywhere. Photographs taken by attendees at the pre-prom party show a
number of people around the black Caprice, the area from whence Malik
Jordan said the initial shots came. Under these circumstances, Clark’s assertion
that he did not have a weapon would not necessarily undermine McGee and
Thomas’s assertions that they fired their guns in self defense. The jury could
reasonably believe that Clark did not have a weapon and that McGee fired
toward someone near the black Caprice other than Clark or Bowens in
self-defense. Therefore, because defendants failed to demonstrate that their
defenses were mutually exclusive under Hana, the trial court did not abuse its
discretion by denying defendants’ motions for severance pursuant to MCR
6.121(C). In addition, because defendants did not meet the standard for
separate trials, they also did not meet the standard for separate juries. Hana,
447 Mich. at 351 (stating that “[t]he use of separate juries is a partial form of
severance to be evaluated under the standard, set forth above, applicable to
motions for separate trials”).
Further, the gravamen of defendants’ argument for severance under
subsection (D), which permits severance “to promote fairness to the parties
and a fair determination of the guilt or innocence of one or more of the
defendants,” was that consolidation would be inherently prejudicial because
the defenses of the codefendants were antagonistic and mutually exclusive.
However, because subsection (C) did not mandate separate trials, the
prosecution intended to call the same witnesses against each defendant, and the
record indicates that some witnesses were reluctant to testify at one trial, let
alone four, the interests of justice and judicial economy weighed in favor of a
single trial.
Defendants having failed to show that separate trials were necessary,
reversal is precluded “absent any significant indication on appeal that the
requisite prejudice in fact occurred at trial.” Hana, 447 Mich. at 347.
Defendants identify no such prejudice. In fact, the record shows that the trial
was devoid of the reciprocal finger pointing predicted by defendants in their
motions for separate trials. McGee testified that he recognized the person
shooting at him from the direction of the black Caprice, but asserted that it was
not Clark, while Trenika Shivers testified that Clark did not have a gun and
13
McGee v. Winn, Case No. 17-13017
that he ran away when the shooting began. Thus, defendants having shown no
prejudice arising from their joint trial, reversal is precluded. Id.
McGee, 2016 WL 4645822, at *4-5.
As reasonably concluded by the state appellate court, Petitioner failed to demonstrate
how he was unfairly prejudiced by the joint trial. He does not point to the existence of any
prejudicial “spillover” evidence that would not have been presented at a separate trial. In any
event, even the existence of “spillover” prejudice is not sufficient under the court rules or the
constitution to warrant severance. Rather, a defendant “must point to specific ‘substantial,’
‘undue,’ or ‘compelling’ prejudice.” United States v. Fields, 763 F.3d 443, 457 (6th Cir.
2014). Petitioner has failed to do so here. Accordingly, the claim was reasonably rejected by
the Michigan Court of Appeals.
E. Admissibility of Evidence
Petitioner’s fourth claim asserts that the trial court erred in allowing admission of
overly prejudicial exhibits. Petitioner contends that the trial court erred in allowing
introduction into evidence of numerous photographs of various persons displaying gang signs
because the prejudicial effect of the evidence outweighed its probative value. Petitioner also
asserts that it was error to allow witnesses to give their opinion testimony that the hand signs
were gang signs. Finally, he asserts that the trial court erroneously allowed admission of a
Facebook posting purportedly made by Thomas admitting responsibility for the victim’s
death.
14
McGee v. Winn, Case No. 17-13017
The Michigan Court of Appeals reasonably rejected these claims. With respect to the
Facebook evidence, the Court of Appeals stated as follows:
The improper admission of evidence may deprive a defendant of due
process if it “infused the trial with unfairness.” Estelle v. McGuire, 502 U.S.
62, 75(1991), quotation marks and citation omitted). The trial court may only
admit relevant evidence, MRE 402, and the “requirement of authentication or
identification is a condition precedent to admissibility,” MRE 901(a). The
authentication requirement “is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims.” MRE 901(a).
One way of authenticating evidence is by the testimony of a witness with
knowledge of the evidence, MRE 901(b)(1). “ ‘It is axiomatic that proposed
evidence…need [not] be free of weakness or doubt. It need only meet the
minimum requirements for admissibility.’” People v. McDade, 301 Mich. App.
343, 353 (2013), quoting People v. Berkey, 437 Mich. 40, 52 (1991).
In the instant case, Raven Howard had personal experience with
Thomas’s Facebook page, and testified that the evidence at issue undoubtedly
was what the prosecution said it was, i.e., a screen shot from defendant
Thomas’s Facebook page. MRE 901(b)(1). Although Howard speculated that
Thomas’s Facebook account could have been hacked and the comment posted
by someone posing as Thomas, her speculation was unsupported by even the
least hint of evidence. Thus, given Howard’s firm identification of the exhibit
as a screen shot from Thomas’s page based on her personal knowledge of and
experience with the page, and the absence of any evidence suggesting that
Thomas’s page had in fact been hacked, MRE 901(b)(1) was satisfied, and the
minimum requirements for admissibility were met. McDade, 301 Mich. App.
at 353. In addition, the posting was relevant because it referred to the shooting
shortly after it happened, MRE 402, and it was not hearsay because it was a
party admission, MRE 801(d)(2). Therefore, the trial court did not abuse its
discretion by admitting the page and comment into evidence.
McGee, 2016 WL 4645822, at *6.
This decision was not contrary to, nor did it involve an unreasonable application of,
clearly established Supreme Court law. Unless a violation of a state’s evidentiary rule results
15
McGee v. Winn, Case No. 17-13017
in the denial of fundamental fairness, an issue concerning the admissibility of evidence does
not rise to the level of a constitutional violation. See Cooper v. Sowders, 837 F.2d 284, 286
(6th Cir. 1988); Coy v. Renico, 414 F. Supp. 2d 744, 756 (E.D. Mich. 2006). As the Sixth
Circuit has noted, “[e]rrors by a state court in the admission of evidence are not cognizable
in habeas proceedings unless they so perniciously affect the prosecution of a criminal case
as to deny the defendant the fundamental right to a fair trial.” Kelly v. Withrow, 25 F.3d 363,
370 (6th Cir. 1994).
Petitioner cannot demonstrate that the admission of the Facebook evidence violated
his federal constitutional rights or rendered his trial fundamentally unfair. The evidence was
primarily offered against co-defendant Thomas. Thomas’ Facebook post does not refer to
Petitioner at all. It was not used by the prosecutor to suggest Petitioner’s guilt. The allegation
is without merit.
Next, with respect to the gang sign evidence, the Michigan Court of Appeals found
as follows:
Defendants Thomas and McGee contend that the trial court abused its
discretion when it overruled objections to the introduction into evidence of
numerous photographs of various persons displaying alleged gang signs
because the prejudicial effect of the evidence far outweighed its probative
value. Defendant Clark contends that Detective Matthew Gerow’s testimony
regarding gang signs was highly prejudicial because the prosecution’s
evidence did not show the type of gang activity that would justify introducing
evidence from a purported
expert on gang culture. We disagree.
*
*
16
*
McGee v. Winn, Case No. 17-13017
The prosecutor explained that the evidence at issue went to motive only,
and our review of the record confirms that the prosecutor used the photographs
to put forward a theory of motive, not to attempt to establish bad character or
guilt by association. In addition, because the evidence indicated a connection
between gang affiliation and the charged crimes, it paved the way for proper
admission of the testimony of Detective Gerow. People v. Bynum, 496 Mich.
610, 626-627 (2014) (stating that, where there is fact evidence that a crime is
gang related, expert testimony is admissible for an appropriate purpose, such
as to elucidate motive). Further, the record shows that, although Detective
Gerow testified to the significance of the hand gestures displayed in the
photographs, he did not testify that defendants’ alleged participation in the
pre-prom shooting was behavior “in conformity with characteristic traits
commonly associated with gang members.” Bynum, 496 Mich. at 627. Based
on the foregoing, we conclude that the trial court did not abuse its discretion
by admitting the photographs at issue because they were relevant to show
motive, and the prosecutor and the trial court restricted their use to showing
motive. We also conclude that defendant Clark’s challenge fails because the
prosecution introduced sufficient evidence that the charged crimes were
gang-related to allow Detective Gerow to testify about gang signs.
* * *
Defendant McGee next contends that the trial court abused its discretion
when it overruled objections to the testimony of witnesses about what they saw
in the photographs, arguing that such testimony encroached upon the jury’s
fact-finding role. Again, we disagree.
Lay witnesses may testify in the form of opinions or inferences as long
as they are rationally based on the perception of the witness and helpful to the
determination of a fact in issue. MRE 701. Here, the prosecuting attorney
presented witnesses with photographs of groups of people that included
defendants and asked whether those depicted were making gestures with their
hands and, if so, whether they knew what the gestures meant. The witnesses’
opinions did not go to whether those depicted were members of rival gangs,
or to whether gang rivalry was at the root of the shooting, but only to what
they saw in front of them and any personal knowledge they may have had with
respect to what they saw. Most significantly, the trial court properly instructed
the jury on its responsibility to determine the facts of the case, to weigh and
decide what each piece of evidence meant and to assess the credibility of all
the witnesses, including witnesses from law enforcement. The jurors are
17
McGee v. Winn, Case No. 17-13017
presumed to have followed the court’s instructions and, accordingly, to have
exercised their proper role as fact-finders, making their own determinations
about the significance of the photographs, and accepting or rejecting the
witnesses’ testimony as they saw fit. People v. Graves, 458 Mich. 476, 486
(1998), citing Hana, 447 Mich. at 351. For these reasons, we find that the trial
court did not abuse its discretion by allowing witnesses to testify to what they
saw in the prosecution’s photographic evidence.
McGee, 2016 WL 4645822, at *6-8.
This decision was reasonable. Evidence of gang affiliation, although prejudicial to a
defendant, can be sufficiently probative to warrant admission. United States v. Williams, 158
F. App’x. 651, 653-54 (6th Cir. 2005). The Sixth Circuit has held that evidence of gang
affiliation is admissible to show participation in a drug conspiracy, id., to establish a
defendant’s opportunity to commit a crime, United States v. Johnson, 102 F.3d 214, 221 (6th
Cir. 1996), or where the interrelationship between people is central to the case. United States
v. Gibbs, 182 F.3d 408, 430 (6th Cir. 1999). Gang evidence is generally inadmissible where
there is no connection between the evidence and the charged offense. See United States v.
Newsom, 452 F.3d 593, 604 (6th Cir. 2006) (holding the danger of unfair prejudice
substantially outweighed the probative value of gang tattoo evidence where the charge was
felon in possession of a firearm).
Here, the prosecutor asserted that the motive for the shootout was the animosity the
two groups of men had for each other due to their affiliation with different areas in Saginaw
– one group was from the Sheridan Park neighborhood and the other group belonged to
Saginaw’s eastside. Evidence regarding the hand signs flashed between the individuals
18
McGee v. Winn, Case No. 17-13017
provided context to the jury for the shooting, and it explained a motive for the sudden violent
confrontation. Admission of this evidence did not render Petitioner’s trial fundamentally
unfair.
Petitioner’s evidentiary claims are therefore without merit.
F. Jury Instructions
Petitioner’s final claim challenges the jury instructions regarding mutual combatants,
and he argues that the instruction on aiding and abetting was not warranted by the evidence
presented at trial.
The Michigan Court of Appeals found that the instruction on mutual combatants was
correct as a matter of state law, and that the trial court properly instructed the jury on an
aiding and abetting theory of guilt because sufficient evidence supporting that theory of guilt
was presented at trial:
[D]efendant McGee argues that the trial court erred in providing a
nonstandard instruction derived from Riddle but stressing mutual combat
instead of the “sudden, violent, and fierce attack” which both claim the
evidence more accurately reflects. We review claims of instructional error de
novo, examining the instructions as a whole to determine whether any error
occurred. People v. Kowalski, 489 Mich. 488, 501 (2011). We review a trial
court’s determination whether a jury instruction is applicable to the facts of the
case for an abuse of discretion. People v. Dobek, 274 Mich. App. 58, 82
(2007).
A mutual combatant is one who is a willing participant in a physical
altercation, what at common law was called a “sudden affray” or “chance
medley.” Riddle, 467 Mich. at 120. Mutual combat is not a mere fistfight, but
“usually arises when the parties are armed with deadly weapons and mutually
agree or intend to fight with them.” 40 CJS Homicide § 206. p 658. The
19
McGee v. Winn, Case No. 17-13017
mutual intent and willingness to fight may be manifested by the acts and
conduct of the parties leading up to the altercation, and it is immaterial who
fires first. Id.
We first find that the trial court did not abuse its discretion by granting
the prosecutor’s request for a mutual combat instruction. As already described,
witnesses testified that defendants Thomas and McGee and several
companions intentionally confronted Patton, defendant Clark and their
associates; one witness testified that they approached “as if they wanted
trouble.” Both sides were flashing guns and posturing, someone in Thomas’s
group spoke threatening words to someone in Patton’s group, and several
people discerned that something bad was about to happen and began to leave
the area. A jury could reasonably infer from this testimony that defendants
were signaling their mutual intent and willingness to engage in a physical
altercation. Therefore, the trial court was required to give the mutual combat
instruction requested by the prosecution. People v. Mills, 450 Mich. 61, 81
(1995) (“A trial court is required to give a requested instruction, except where
the theory is not supported by the evidence.”).
*
*
*
Defendant McGee also contends that the trial court abused its discretion
by granting the prosecution’s request for an instruction on aiding and abetting.
However, our finding that the evidence is sufficient to support defendant’s
conviction for second-degree murder under an
aiding and abetting theory necessarily implies that the instruction was proper.
Therefore, defendant’s claim that the evidence did not support an instruction
on aiding and abetting fails.
McGee, 2016 WL 4645822, at *11-12.
Typically, a claim that a trial court gave an improper jury instruction is not cognizable
on habeas review. Instead, Petitioner must show that the erroneous instruction so infected the
entire trial that the resulting conviction violates due process. Henderson v. Kibbe, 431 U.S.
145, 155 (1977); see also Estelle, 502 U.S. at 75 (erroneous jury instructions may not serve
20
McGee v. Winn, Case No. 17-13017
as the basis for habeas relief unless they have so infused the trial with unfairness as to deny
due process of law); Rashad v. Lafler, 675 F.3d 564, 569 (6th Cir. 2012) (same). If Petitioner
fails to meet this burden, he fails to show that the jury instructions were contrary to federal
law. Id.
With respect to the mutual combat instruction, the Michigan Court of Appeals found
that the instruction was a correct statement of Michigan law. A state court’s interpretation
of state law, including one announced on direct appeal of the challenged conviction, binds
a federal court sitting in habeas corpus. Stumpf v. Robinson, 722 F.3d 739, 746 n.6 (6th Cir.
2013) (quoting Bradshaw v. Richey, 546 U.S. 74, 76 (2005)).
With respect to the aiding and abetting instruction, Petitioner does not assert that the
instruction misstated the law. Rather, he asserts that the instruction was not warranted
because the facts of the case did support a conviction on a theory of aiding and abetting.
Again, though, the Michigan Court of Appeals noted that sufficient evidence was presented
at trial to sustain Petitioner’s convictions under an aiding and abetting theory. It follows a
fortiori that a jury instruction on that theory of guilt was warranted. See Sims v. Rivard, 2015
U.S. Dist. LEXIS 173389, *14-15 (E.D. Mich. Dec. 31, 2015).
Accordingly, as none of Petitioner’s claims have merit, the petition will be denied.
IV. Conclusion
Before Petitioner may appeal this Court’s dispositive decision, a certificate of
appealability must issue. See 28 U.S.C. ‘ 2253(c)(1)(A); Fed. R. App. P. 22(b). A certificate
21
McGee v. Winn, Case No. 17-13017
of appealability may issue “only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. ‘ 2253(c)(2). When a court rejects a habeas claim on the
merits, the substantial showing threshold is met if Petitioner demonstrates that reasonable
jurists would find the district court’s assessment of the constitutional claim debatable or
wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this
standard by demonstrating that . . . jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). In applying that standard, a district court may not conduct a full merits review, but
must limit its examination to a threshold inquiry into the underlying merit of Petitioner’s
claims. Id. at 336-37. “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.
Petitioner has not demonstrated a substantial showing of the denial of a constitutional
right with respect to his claims. A reasonable jurists would not debate whether the Court
correctly denied relief. Accordingly, a certificate of appealability will be denied.
The Court will, however, grant Petitioner permission to proceed on appeal in forma
pauperis because an appeal could be taken in good faith. See Foster v. Ludwick, 208 F. Supp.
2d 750, 764 (E.D. Mich. 2002); 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a).
22
McGee v. Winn, Case No. 17-13017
V. Order
Accordingly, it is ORDERED that the petition for writ of habeas corpus is DENIED.
It is further ORDERED that a certificate of appealability is DENIED.
It is further ORDERED that permission to proceed in forma pauperis on appeal is
GRANTED.
S/Arthur J. Tarnow
Arthur J. Tarnow
United States District Court
Dated: November 26, 2018
23
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?