Brown v. Vashaw
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying Certificate of Appealability, and Denying Permission to Appeal in Forma Pauperis - Signed by District Judge Nancy G. Edmunds. (LBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MILON JARR BROWN,
Case No. 2:20-cv-11716
Hon. Nancy G. Edmunds
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS,
(2) DENYING CERTIFICATE OF APPEALABILITY, AND (3) DENYING
PERMISSION TO APPEAL IN FORMA PAUPERIS
Milton Jarr Brown (“Petitioner”) filed this petition for a writ of habeas corpus under 28
U.S.C. § 2254. Petitioner, who was a juvenile at the time of the offense, is serving a prison sentence
of 30-to-60 years as well as lesser terms for his Saginaw Circuit Court jury trial conviction of firstdegree murder, MICH. COMP. LAWS § 750.316(1)(b), armed robbery, MICH. COMP. LAWS §
750.529, assault with intent to commit armed robbery, MICH. COMP. LAWS § 750.89, and three
counts of felony-firearm. MICH. COMP. LAWS § 750.227b.
The petition raises four claims: (1) Petitioner’s right to present a defense was violated when
a defense witness was permitted to invoke her Fifth Amendment right against self-incrimination;
(2) witnesses were erroneously allowed to identify Petitioner as the person depicted in security
camera videos; (3) Petitioner’s confrontation rights were violated by the erroneous admission of
hearsay statements as excited utterances; and (4) Petitioner’s trial was rendered fundamentally
unfair by the admission of gruesome autopsy photos. (ECF No. 1, PageID.40-44.)
The Court will deny the petition because the claims are without merit. The Court will also
deny a certificate of appealability and deny permission to appeal in forma pauperis.
The Michigan Court of Appeals summarized the facts surrounding Petitioner’s case:
Defendant’s convictions arise from the June 26, 2016, shooting death of
Cameron Pennywell during the course of a robbery in Saginaw. The prosecution’s
main witness was Daveon Thompson, who testified that he was visiting the
Bridgton Townhomes in his mother’s truck, along with the victim and Amaris
Kinnard, when they encountered defendant. Kinnard passed defendant a book bag
or backpack through an open window. According to Thompson, several minutes
later, at an abandoned house near the Bridgton Townhomes, defendant produced a
gun and accosted Thompson and the victim. Thompson said that defendant
attempted to rob him but found nothing to take, did take some cash and a cell phone
from the victim, and then shot the victim several times; resulting in the latter’s death
shortly thereafter. Surveillance video footage from the Bridgton Townhomes
substantially comported with this account. A paramedic attending to the victim
shortly after the shooting testified that the victim repeatedly volunteered the
apparent name “Cornel,” including as his only reply to several questions put to him
by the paramedic.
People v. Brown, 2019 WL 2146238, at *1 (Mich. Ct. App. May 16, 2019).
Further facts surrounding Petitioner’s trial will be discussed below. Following trial,
Petitioner pursued a direct appeal. The appellate brief filed by Petitioner’s counsel raised three
I. The Confrontation Clause of the Sixth Amendment guarantees criminal
defendants a meaningful opportunity to present a complete defense. Milon Brown
was denied a meaningful opportunity to present a complete defense when a witness
for the defense invoked a specious Fifth Amendment claim against selfincrimination.
II. A witness cannot provide his or her opinion on a matter when the jury is equally
capable of reaching its own conclusion on that same issue because this invades the
province of the jury. The province of the jury was invaded when lay witnesses
provided their opinion that Milon Brown was the person depicted in videos.
III. The excited utterance exception states that hearsay is admissible if it is a
“statement relating to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition.” Inadmissible
hearsay was admitted into the case against Milon Brown under the guise of an
excited utterance when there was time to contrive and misrepresent and this
inadmissible evidence was a key component in convicting Brown.
Petitioner then filed a supplemental pro se appellate brief that raised three additional
IV. Defendant Brown was deprived of a fair trial [when] the trial judge repeatedly
and improperly interjected impartial [sic] comments and question[s]. And where
Judge Janet M. Boes drastically altered trial procedure.
V. Defendant Brown was deprived of a fair trial [from the] trial court decision to
allow the introduction of gruesome crime scene photos and photos of the autopsy
[which] were highly inflammatory and highly prejudicial in violation of the Sixth
and Fourteenth Amendment to the United States Constitution and Article I section
10 and 16 of the Michigan Constitution.
VI. The defendant was deprived of a fair trial where the prosecutor objected to the
admission of a dying declaration of Cameron Pennywell when he made multiple
comments on who killed him.
The Michigan Court of Appeals affirmed in an unpublished opinion, but it vacated
Petitioner’s second-degree murder conviction and one of his felony-firearm convictions on doublejeopardy grounds. Brown, 2019 WL 2146238, at *1. Brown subsequently filed an application for
leave to appeal in the Michigan Supreme Court, raising the same claims he raised in the Michigan
Court of Appeals. The Michigan Supreme Court denied the application by standard form order.
People v. Brown, 934 N.W.2d 246 (Mich. 2019) (Table).
II. Standard of Review
28 U.S.C. § 2254(d) curtails federal habeas review of state convictions for claims
adjudicated on the merits by state courts. A habeas petitioner must demonstrate that the state court
adjudication was “contrary to” or “involved an unreasonable application of” clearly established
Supreme Court law. A decision is “contrary to” clearly established Supreme Court 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. Under this standard, 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. Right to Present a Defense
Petitioner’s first claim asserts that his Sixth Amendment right to present a defense was
violated when the trial court excused defense witness Amaris Kinnard from testifying after she
invoked her Fifth Amendment right against self-incrimination. The prosecutor suggested that
Kinnard may have been involved in the crime, and that the murder weapon may have been inside
the bookbag she gave to Petitioner a few minutes before the crime. Petitioner asserts that he was
deprived of the opportunity to present a counter narrative when he was prevented from presenting
Kinnard’s testimony that there was no firearm in the bag she gave Petitioner.
After reciting the constitutional standard and the facts surrounding the claim, the Michigan
Court of Appeals denied relief as follows:
Defendant argues that the trial court should have undertaken further inquiry
to establish that Kinnard’s invocation of the Fifth Amendment was justified.
Defendant contends that Kinnard’s testimony could have been limited such that she
would not have incriminated herself. He also argues that Kinnard should have been
given “use immunity” to testify so that her testimony could not have been used
against her at her trial. We decline to address the questions posed by defendant,
however, because we conclude that Kinnard would not have provided him with a
To obtain appellate relief, defendant must show that he was denied the right
to present a substantial defense. See People v. Petri, 279 Mich. App. 407, 420; 760
N.W.2d 882 (2008); see also People v. Whitfield, 425 Mich. 116, 124 n 1; 388
N.W.2d 206 (1986) (applying harmless-error review to defendant’s claim that he
was denied the right to present a defense). “A substantial defense is one that could
have affected the outcome of the trial.” People v. Putnam, 309 Mich. App. 240,
248; 870 N.W.2d 593 (2015).
Defendant argues that Kinnard’s testimony would have been critical to the
defense because it would have contradicted the prosecution’s theory that the murder
weapon was in the backpack that Kinnard gave defendant shortly before the
shooting. We conclude that testimony from Kinnard countering any implication
that she provided the murder weapon to defendant would have had little bearing on
the outcome of the case. Thompson testified that defendant produced a gun from
his waistband, and where the gun came from was not a significant factor in the case.
Indeed, in argument the prosecutor emphasized to the jury that it was irrelevant
whether Kinnard gave defendant the weapon. Accordingly, the jury’s determination
whether defendant was the shooter did not depend on whether the jury believed that
Kinnard handed defendant a backpack with a gun concealed inside. Defendant fails
to establish that he was denied his right to present a substantial defense as a
consequence of Kinnard invoking her right against self-incrimination.
Brown, 2019 WL 2146238, at *1-2 (footnote omitted).
The state appellate court found, in essence, that any error in failing to compel Kinnard to
testify was harmless. A violation of the right to present a defense is amenable to harmless error
review. See Fleming v. Metrish, 556 F.3d 520, 536 (6th Cir. 2009); Couturier v. Vasbinder, 385 F.
App’x 509, 517 n.2 (6th Cir. 2010) (applying harmless error analysis to a claim that exclusion of
evidence violated defendant’s right to present a complete defense). On federal habeas review,
harmless error review requires the court to ask whether the alleged error “had substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.
619, 637 (1993).
There is debate whether apart from satisfying the Brecht standard, a habeas petitioner must
also show that the state court unreasonably determined that the alleged error was harmless. Indeed,
rather than assert that Petitioner fails to satisfy the Brecht standard, Respondent asserts that the
state court reasonably determined that the alleged error was harmless under § 2254(d). The Sixth
Circuit, however, recently confirmed that habeas courts need only apply the Brecht standard
because it “‘subsumes’” § 2254(d)’s unreasonableness inquiry. Davenport v. MacLaren, 964 F.3d
448, 454-455 (6th Cir. 2020) (citing Davis v. Ayala, 576 U.S. 257 (2015) and Fry v. Pliler, 551
U.S. 112, 119-20 (2007)). This is in keeping with the Sixth Circuit’s previous statement that
“Brecht is always the test, and there is no reason to ask both whether the state court ‘unreasonably’
applied Chapman under the AEDPA and, further, whether the constitutional error had a
‘substantial and injurious’ effect on the jury’s verdict.” Ruelas v. Wolfenbarger, 580 F.3d 403, 412
(6th Cir. 2009); see also Reiner v. Woods, 955 F.3d 549, 556 (6th Cir. 2020) (“The Supreme Court
and this court have made clear that ‘Brecht is always the test’ for evaluating harmless error on
collateral review, even where AEDPA applies.”)
The sole question here, then, is whether the purported error of failing to compel Kinnard
to testify for the defense “had a substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht, 507 U.S. at 637. In applying this standard, the fact that the evidence was
otherwise sufficient to sustain the convictions is not enough to justify a finding of harmlessness.
Rather, the question is “whether the evidence is so strong that a reviewing court can be assured
that the [alleged trial error] did not affect the jury’s conclusions.” Ruimveld v. Birkett, 404 F.3d
1006, 1017 n.5. (6th Cir. 2005).
Here, though trial counsel failed to make an offer of proof as to Kinnard’s proposed
testimony, Petitioner asserts that she would have testified that there was not a gun in the backpack
she handed to Petitioner minutes before the robbery, and that she was not part of any plan to setup Pennywell and Thompson to be robbed. It is true that the prosecutor suggested to the jury that
Kinnard was involved in the robbery. In closing argument she stated, “So once the white
Expedition arrives in the complex, the defendant obtains the backpack. And what’s in the
backpack? The gun that was used.” (Tr. V, at 41.) That argument was not based on sheer
speculation; it was founded on in inference from the testimony of Demetrice Daniel, who said that
when Petitioner walked past her apartment with the backpack just before the shooting he told her,
“Grams, you don’t want what’s in this bag.” (Tr. III, at 121-122.)
That said, whether Kinnard supplied Petitioner with the weapon was not a material part of
the prosecutor’s theory of guilt. It would be one thing if the identity of the shooter somehow hinged
on possession of the backpack, but Petitioner’s identity as the shooter was shown in a much more
direct way. First and foremost, his identity was established through the surviving
victim/eyewitness Thompson, who had been friends with Petitioner for years. (Tr. III, at 30-31.)
Immediately after the shooting, Thompson ran to Hooper’s nearby apartment, and he told Hooper
that Petitioner shot Pennywell. (Tr. III, at 136-139.)
Mathew Mahoney, a security guard at the adjacent apartment complex, analyzed footage
from the complex’s security cameras. (Tr. II, at 101-102.) He identified Petitioner, Donquavius
White, and Kinnard (persons known to him because of prior contacts over the years) as the three
individuals heading towards the scene just prior to the shooting. (Tr. II, at 110-115.) Detective
Patrick Busch, who was also familiar with Petitioner from prior contacts, also recognized
Petitioner on the same footage. (Tr. IV, at 40-42.)
Then there was the identification testimony of Alizae Vanburen-Buford, who was another
resident of the apartment complex who knew Petitioner for a period of years. She was standing on
the sidewalk outsider her apartment when the shooting occurred. (Tr. III, at 156.) She identified
Petitioner and White as two individuals she saw heading towards the scene just prior to the
shooting. (Tr. III, at 156-164, 167, 170.) She then saw Petitioner arguing with someone in a white
vehicle, Petitioner pulled out a gun, Petitioner shot the victim, the victim ran and fell, and then
Petitioner continued to shoot him. (Id., at 168-170.)
The suggestion that the gun may have originally been supplied by Kinnard, therefore, was
an insignificant part of the prosecutor’s argument as to why the jury should find that Petitioner
was the shooter. In rebuttal argument, she conceded that how Petitioner obtained the gun was
[Defense counsel] says that the government wants to say that the gun was
in the backpack. Well, if the gun wasn’t in the backpack, ladies and gentlemen, then
the defendant had it on him or he got it from Donquavius White. But we know that
he had it on him at the time of the robberies and the shooting.
(Tr. V, at 88.)
On this record, the Court finds that the strength of the evidence presented establishing
Petitioner’s identity as the shooter, which was not based in any material way on evidence that
Kinnard passed him the backpack, assures the Court that any error in failing to compel Kinnard to
testify did not affect the outcome of the trial. Petitioner has therefore failed to show that the alleged
error had a substantial impact or influence on the result of his trial, precluding habeas relief under
B. Admission of Lay Opinion Testimony
Petitioner’s second claim asserts that the trial court erred in allowing Thompson, Mahoney,
and Busch to testify that Petitioner was one of the people depicted on the videos seen headed to
the scene of the shooting. After discussing the standard for the admission of opinion testimony
under Michigan Rule of Evidence 701, the Michigan Court of Appeals found that the testimony
was properly admitted:
In this case, the trial court held an evidentiary hearing to decide whether to
allow the challenged witnesses to offer opinions regarding the identities of the
persons depicted on the surveillance video footage. At the hearing, Thompson
testified that he had known defendant as a friend for a “[c]ouple years,” during
which time he saw him “[a]most every day.” The security guard testified that he
was familiar with defendant as part of the complex’s “no-trespassing list,” having
removed defendant from the premises multiple times. The security guard explained
that he was able to identify defendant because he recognized defendant’s facial
features, physical build, and tendency to walk in “fairly large strides for his size.”
The police detective was also familiar with defendant, having worked “road patrol”
several years earlier in the area where defendant lived. The detective testified that
he sometimes saw defendant “a couple times a shift.”
The detective testified that in reviewing the subject video footage he had no
difficulty recognizing defendant on the basis of facial features, stature, and manner
of walking. Contrary to defendant’s argument, the trial court did not abuse its
discretion in deciding that the witnesses were in better position than the jury to
identify defendant in the surveillance video footage. Thompson was intimately
familiar with defendant, having been friends with him for years. We also note that
Thompson was at the scene and appears in the video footage himself. The security
guard and the detective were also familiar [with] defendant and his unique gait,
which the jury may or may not have had a chance to observe. Further, the court
found that the stills taken from the surveillance footage were not clear and that the
footage itself was “even less clear.” Under those circumstances, the witnesses’
testimony did not invade the province of the jury.
Brown, 2019 WL 2146238, at *3 (footnotes omitted).
Petitioner asserts that the court erred in admitting the identification evidence because the
three witnesses were in no better position than the jury to determine whether Petitioner was one of
the individuals depicted on the videos. Errors in the application of state law, especially rulings
regarding the admissibility of evidence, however, cannot be questioned by a federal habeas court.
Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000). Rather, federal habeas courts “‘must defer
to a state court’s interpretation of its own rules of evidence and procedure’ when assessing a habeas
petition.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005) (quoting Allen v. Morris, 845 F.2d
610, 614 (6th Cir. 1988)). The Michigan Court of Appeals concluded that as a matter of state
evidentiary law the three witnesses’ identification testimony was permissible. This Court sitting in
federal habeas review may not conclude otherwise. See Wainwright v. Goode, 464 U.S. 78, 84
Petitioner argues that beyond violating state evidentiary rules, the identification testimony
“invaded the province of the jury,” which the Court understands to be a reference to his Sixth
Amendment right to a jury trial. There is generally no prohibition, however, on a witness offering
opinion testimony which goes to an ultimate issue in a case. Both the Federal and Michigan Rules
of Evidence permit such testimony. See Fed R. Evid. 704(a); Mich. R. Evid. 704. And there is no
clearly established federal law as determined by the Supreme Court which suggests that the
admission of such evidence violates the Constitution. See Davis v. Trierweiler, 2018 U.S. Dist.
LEXIS 55604, 2018 WL 1586487, *10 (E.D. Mich. March 31, 2018). Petitioner therefore fails to
demonstrate entitlement to habeas relief with respect to his second claim.
C. Admission of Excited Utterance
Petitioner’s third claim asserts that his Sixth Amendment right to confront witnesses was
violated by the admission of Hooper’s testimony that Thompson told him in his apartment that
Petitioner was the shooter. The Michigan Court of Appeals found that the testimony was properly
admitted as an excited utterance under Michigan Rule of Evidence 803(2). Brown, 2019 WL
2146238, at *4.
As with the previous claim, whether the statement was properly admitted as an excited
utterance is a question of state law that cannot form a cognizable basis for granting federal habeas
relief. See Johnson v. Renico, 314 F. Supp. 2d 700, 706 (E.D. Mich. 2004).
Moreover, the admission of Thompson’s statement to Hooper did not contravene clearly
established Supreme Court law. The Confrontation Clause of the Sixth Amendment gives the
accused the right “to be confronted with the witnesses against him.” U.S. Const., Am. VI; Pointer
v. Texas, 380 U.S. 400, 403-405 (1965). The Clause prohibits the admission of an out-of-court
testimonial statement at a criminal trial unless the witness is unavailable to testify and the
defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36,
59 (2004). In Davis v. Washington, 547 U.S, 813 (2006), the Supreme Court decided that the
Confrontation Clause applied only to testimonial hearsay and not to non-testimonial hearsay. Id.
at 823-824; see also Whorton v. Bockting, 549 U.S. 406, 420 (2007); Giles v. California, 554 U.S.
353, 376 (2008).
Admission of Thompson’s statement to Hooper did not violate Petitioner’s confrontation
rights for two reasons. First, the statement was non-testimonial - it was a statement to a family
member who was trying to calm the declarant. Second, because the declarant testified at trial and
was subject to unrestricted cross-examination, Petitioner was able to confront the declarant
regarding his out-of-court statement. See United States v. Owens, 484 U.S. 554, 560 (1988).
Petitioner’s third claim is therefore without merit.
D. Admission of Gruesome Photos
Petitioner’s final claim asserts that his trial was rendered fundamentally unfair by
admission of two autopsy photos. The Michigan Court of Appeals found that the photos were
Defendant characterizes the two autopsy photographs at issue as “gruesome” and
“inflammatory,” but does not otherwise attempt to explain how they might have
distorted the jurors’ judgment. Further, the photographs were relevant to the
testimony describing the various wounds. In light of this cursory argument, given
the deferential principles that govern review of decisions on objections to
photographic evidence, even if we accept at face value defendant’s characterization
of the challenged images as “gruesome,” defendant’s offering of that, without more,
falls short of establishing a basis for concluding that the trial court erred by
admitting the evidence. Accordingly, defendant fails to show that the trial court
abused its discretion in admitting the photographs.
Brown ̧ 2019 WL 2146238, at *4-5.
Fundamental fairness challenges based on the admission of graphic photographs at trial
cannot be supported by clearly established Supreme Court law. See e.g. Franklin v. Bradshaw, 695
F.3d 439, 456-57 (6th Cir. 2012) (state court’s determination that petitioner’s right to fair trial was
not denied by admission of 18 gruesome autopsy photographs of his victims that were shown to
jurors on large projector screen during trial for aggravated arson, aggravated robbery, and
aggravated murder, was not contrary to clearly established federal law). In particular, the
introduction of gruesome photographs of a murder victim does not entitle a petitioner to habeas
relief where there is some legitimate evidentiary purpose for the photographs’ admission. See e.g.,
Biros v. Bagley, 422 F.3d 379, 391 (6th Cir. 2005) (upholding the admission of photographs
depicting a victim’s severed head, severed breast, and severed body parts placed near the victim’s
torso; the photos were highly probative of the prosecutor’s claim that the petitioner beat the victim
severely and meticulously dissected her body); Frazier v. Huffman, 343 F.3d 780, 789 (6th Cir.
2003) (finding acceptable the admission of multiple photographs of the victim used by the coroner
to illustrate the nature of the encounter preceding the victim’s death); Cooey v. Coyle, 289 F.3d
882, 893 (6th Cir. 2002) (observing that “although the photographs were gruesome, they were
The autopsy photographs here were admitted to aid in the understanding of the medical
examiner’s testimony regarding the nature of victim’s gunshot wounds. The testimony and photos
were highly relevant to the issue of cause of death and intent. Because the photographs served a
proper evidentiary purpose, the trial court’s decision to admit them did not render Petitioner’s trial
As none of Petitioner’s habeas claims merit relief, the petition will be denied.
IV. Certificate of Appealability
In order to appeal the Court’s decision, Petitioner must obtain a certificate of appealability.
28 U.S.C. § 2253(c)(2). The applicant is required to show that reasonable jurists could debate
whether 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). A federal district court may grant or deny a certificate of appealability when the
court issues a ruling on the habeas petition. Castro v. United States, 310 F.3d 900, 901 (6th Cir.
2002). Here, jurists of reason would not debate the Court’s conclusion that Petitioner has failed to
demonstrate entitlement to habeas relief with respect to his claims because they are devoid of
merit. Therefore, a certificate of appealability is denied.
Petitioner is denied permission to appeal in forma pauperis because any appeal would be
frivolous. 28 U.S.C. § 1915(a)(3).
Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a writ of habeas
corpus, 2) DENIES a certificate of appealability, and 3) DENIES permission to appeal in forma
s/ Nancy G. Edmunds_____
Hon. Nancy G. Edmunds
United States District Judge
Dated: April 26, 2021
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