Clarke v. Stovall
Filing
57
OPINION and ORDER Denying 41 Amended Petition for Writ of Habeas Corpus, 1 Petition for Writ of Habeas Corpus; Denying a Certificate of Appealability, but Granting Leave to Proceed in forma pauperis on Appeal. Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TINA MARIE CLARKE,
Petitioner,
v.
CASE NO. 05-60151
HON. JOHN CORBETT O’MEARA
MILLICENT WARREN,
Respondent.
_______________________________/
OPINION AND ORDER
DENYING PETITION FOR WRIT OF HABEAS CORPUS,
DENYING A CERTIFICATE OF APPEALABILITY, BUT
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
This matter is pending before the Court on petitioner Tina Marie Clarke’s
application for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is
challenging her state convictions for murder, conspiracy, armed robbery, and two
firearm offenses. Having reviewed the pleadings and record, the Court concludes that
Petitioner is not entitled to habeas corpus relief. Accordingly, the habeas petition and
amended petition will be denied.
I. Background
A. The Facts
Petitioner was charged in Genesee County, Michigan with armed robbery,
conspiracy to commit armed robbery, felon in possession of a firearm, possession of a
firearm during the commission of a felony (felony firearm), and two counts of firstdegree (felony) murder. The charges arose from the robbery and fatal shooting of two
brothers, John and Kim Crider, in Grand Blanc Township late on January 24, 2001, or
early on January 25, 2001. The testimony at trial established that, on the night in
question, Jerry Boroff (“Pops”) drove Petitioner to her cousin’s home. Kevin Debus and
Harry Trombley rode along. Petitioner acquired a gun from her cousin after informing
him that she was being harassed and needed protection from someone who had
assaulted her two weeks earlier. Patricia Plummer subsequently joined Petitioner,
“Pops,” Debus, and Trombley. The five of them went to a Meijers store, because
Plummer wanted to help a friend who was having car trouble in the parking lot and
Petitioner wanted to buy bullets for her gun.
Next, the group went to a convenience store on Maple Road in Grand Blanc
Township. Patricia Plummer talked to Kim Crider outside the store. She then invited
Petitioner to go with her to Crider’s home next door to make some money. Petitioner
and Plummer went inside Crider’s house while Pops, Harry Trombley, and Kevin Debus
waited in the van at a nearby car wash. There were four men inside the Crider
residence: Kim Crider, John Crider, Randy Crider, and John Sanborn, who was a friend
of the Crider brothers. One of the men had a wad of money.
Petitioner and Plummer later rejoined “Pops,” Trombley, and Debus, and the
group went to a house on Pringle Street in Flint where four of them lived. On the ride
there, Petitioner and Plummer talked about going back to Kim Crider’s house on Maple
Road and robbing the men. After they arrived at the Pringle Street house, Petitioner
and Plummer changed into black clothes. Kevin Debus then drove the two women back
to the house on Maple Road. He waited in the van while Petitioner and Plummer went
inside the house. The man with the wad of money had already left. Only Kim and John
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Crider were there. Both men were shot more than once. Petitioner and Plummer then
exited the house and were driven back to the Pringle Street house by Kevin Debus.
Meanwhile, about midnight, John Crider went to his neighbor John Cardinal’s
house where Cardinal and Arnis Davidsons were watching television. John Crider had
been shot and was bleeding, and he said that his brother was dead next door. When
the police arrived, John Crider informed one of the officers that two white females on
foot had shot him. Kim Crider died that same day. John Crider survived for two weeks
and then died. Both men died from gunshot wounds.
Petitioner sold her gun to Emmanuel Williams (“T”), who had possession of the
gun when the police stopped him while driving on January 25, 2001. Petitioner became
a suspect and was arrested after the police talked to “T.”
Detective Donald Elford interrogated Petitioner on January 26, 2001. Petitioner
informed Detective Elford that she acquired the gun to shoot David Smith, and that she
subsequently accompanied Patricia Plummer to the victims’ home where there were
four men. One of the men showed her a wad of cash, and on the way back to Pringle
Street, Plummer mentioned that she wanted to go back and rob the men. After they put
on black clothes, Kevin Debus took them back to the house. The loaded gun was in her
pocket when she and Plummer went inside the house. Only two men were there; the
man with the wad of cash had left. She handed the gun to Plummer because she did
not have the courage to “do it.” Plummer then shot both men. They cut up one victim’s
wallet and disposed of it.
Petitioner also admitted to Elford that she sold the gun to “T” after the incident.
She claimed that she and Plummer had intended to commit only a robbery and to
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acquire money, but she also admitted that Plummer had said she wanted to go in and
shoot everybody.
Nineteen minutes after the interview with Detective Elford, Petitioner asked to
speak with him again. She then described where she hid a needle, which she and
Plummer had intended to use to poison the man in the hospital, if necessary, to prevent
him from identifying them.
B. The Trial, Sentence, Direct Appeal, and Initial Habeas Petition
Petitioner was tried jointly with Patricia Plummer and Kevin Debus, but each
defendant had a separate jury. Randy Crider and John Sanborn identified Petitioner
and Patricia Plummer at trial as the two women who had been at Kim Crider’s house the
night of January 24, 2001. Randy Crider testified that one of the women had asked for
money in return for drugs and the other woman had asked for money in return for sex.
He recalled taking $39 out of his pocket to help pay for the beer that Kim had bought,
but he claimed that he put the money back in his pocket when Kim declined the offer of
money. He also testified that the women were still there when he left the house with
John Sanborn about 11:30 p.m. He later learned that his brothers had been shot.
On September 24, 2001, Petitioner’s jury found her guilty, as charged, of: two
counts of felony murder, Mich. Comp. Laws § 750.316(1)(b); conspiracy to commit
armed robbery, Mich. Comp. Laws § 750.157a and Mich. Comp. Laws § 750.529;
armed robbery, Mich. Comp. Laws § 750.529; felon in possession of a firearm, Mich.
Comp. Laws § 750.224f; and felony firearm, Mich. Comp. Laws § 750.227b. The trial
court sentenced Petitioner to: life imprisonment for the two murders, the armed
robbery, and the conspiracy; thirty-eight months (three years, two months) to ninety
4
months (seven and a half years) for the felon-in-possession conviction; and a
consecutive term of two years for the felony firearm conviction.
In an appeal of right, Petitioner alleged that (1) there was insufficient evidence to
sustain her murder convictions, (2) the prosecutor engaged in misconduct, (3) the trial
court misstated the law, and (4) trial counsel was ineffective for failing to insure that the
jury was properly instructed. The Michigan Court of Appeals affirmed Petitioner’s
convictions in an unpublished opinion, see People v. Clarke, No. 238359 (Mich. Ct. App.
Sept. 16, 2003), and on March 30, 2004, the Michigan Supreme Court denied leave to
appeal. See People v. Clarke, 469 Mich. 1026; 679 N.W.2d 60 (2004) (table).
Petitioner filed her federal habeas corpus petition in this Court on June 29, 2005.
She alleged that (1) there was insufficient evidence to sustain the jury’s verdict on firstdegree murder, (2) the prosecutor committed misconduct, and (3) the jury instructions
were inaccurate and confusing. After the State filed a responsive pleading, Petitioner
moved to hold her case in abeyance so that she could exhaust state court remedies for
several new claims. On September 1, 2006, the Court granted Petitioner’s motion and
closed her case for administrative purposes.
C. The State Collateral Proceedings and Second Habeas Petition
Petitioner subsequently filed a motion for relief from judgment in which she
alleged that (1) the state district court abused its discretion in binding her over to circuit
court, (2) certain jurors were biased or prejudiced against her, (3) the trial court gave
improper jury instructions, (4) she was entitled to a separate trial, (5) trial counsel was
ineffective, and (6) the prosecutor failed to produce all endorsed witnesses. The trial
court denied Petitioner’s motion in a reasoned opinion, and the Michigan Court of
5
Appeals denied leave to appeal because Petitioner had failed to establish entitlement to
relief under Michigan Court Rule 6.508(D). See People v. Clarke, No. 282375 (Mich.
Ct. App. Apr. 15, 2008). On October 27, 2008, the Michigan Supreme Court denied
leave to appeal for the same reason. See People v. Clarke, 482 Mich. 1032; 769
N.W.2d 193 (2008).
On March 20, 2009, Petitioner filed another federal habeas corpus petition in this
District. She alleged that the trial court abused its discretion when ruling on her motion
for relief from judgment, the pathologist gave perjured testimony, and both trial and
appellate counsel were ineffective. The Clerk of Court randomly assigned the 2009
habeas petition to another judge in this District, who reassigned the petition to this Court
as a companion to Petitioner’s 2005 case. This Court treated the 2009 petition as an
amended petition and then re-opened this case and closed the 2009 case.
Respondent has filed answers to the habeas petitions, and the case is now ready
to be adjudicated. Although Respondent contends that Petitioner failed to comply with
the Court’s deadline for re-opening her case, the Court will excuse any procedural
errors and address the substantive merits of Petitioner’s claims.
II. STANDARD OF REVIEW
State prisoners are entitled to the writ of habeas corpus only if the state court’s
adjudication of their claims on the merits
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceedings.
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28 U.S.C. § 2254(d).
A state court’s decision 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, 40506 (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. Rather, that application must
also be unreasonable.” Id. at 411. “[W]here factual findings are challenged, the habeas
petitioner has the burden of rebutting, by clear and convincing evidence, the
presumption that the state court’s factual findings are correct.” Goodwin v. Johnson,
632 F.3d 301, 308 (6th Cir. 2011) (citing 28 U.S.C. § 2254(e)(1) and Landrum v.
Mitchell, 625 F.3d 905, 914 (6th Cir. 2010)).
“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, __ U.S. __, __, 131 S. Ct. 770, 786 (2011). To
obtain a writ of habeas corpus from a federal court, a petitioner must show that the state
court’s decision “was so lacking in justification” that it resulted in “an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 786-87.
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III. Discussion
A. Sufficiency of the Evidence
The first habeas claim alleges that the evidence was insufficient to sustain the
jury’s verdict on the first-degree murder charges. Petitioner concedes that she
conspired to rob the victims, but she denies conspiring or intending to murder anyone.
She also claims that she abandoned the intent to commit a robbery after she arrived at
the victims’ home and discovered that the man or men with the money had left the
premises. She maintains that Patricia Plummer shot John and Kim Crider.
1. Clearly Established Law
The Michigan Court of Appeals reviewed Petitioner’s claim in the appeal of right
and concluded that the evidence was sufficient to support the jury’s verdict on the felony
murder charges. The relevant question on habeas corpus review of a sufficiency-of-theevidence claim 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 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, 319 (1979) (internal citation omitted) (emphasis in
original). This standard “must be applied with explicit reference to the substantive
elements of the criminal offense as defined by state law.” Id. at 324 n.16.
In Michigan, the elements of felony murder are (1) the killing of a human being,
(2) with malice, (3) while committing, attempting to commit, or assisting in the
commission of specified felonies. People v. Carines, 460 Mich. 750, 758-759; 597
8
N.W.2d 130, 136 (1999) (quoting People v. Turner, 213 Mich. App. 558, 566; 540
N.W.2d 728, 732 (1995)). Malice is defined as the intent to kill, the intent to do great
bodily harm, or the intent to create a very high risk of death or great bodily harm with
knowledge that death or great bodily harm was the probable result. Id., 460 Mich. at
759; 597 N.W.2d at 136.
A jury can properly infer malice from evidence that a defendant
intentionally set in motion a force likely to cause death or great bodily
harm. Thus, whenever a killing occurs in the perpetration or attempted
perpetration of an inherently dangerous felony, in order to establish malice
the jury may consider the “nature of the underlying felony and the
circumstances surrounding its commission.” If the jury concludes that
malice existed, they can find murder and, if they determine that the murder
occurred in the perpetration or attempted perpetration of one of the
enumerated felonies, by statute the murder would become first-degree
murder.
People v. Aaron, 409 Mich. 672, 729-30; 299 N.W.2d 304, 327 (1980) (internal citations
omitted).
The underlying felony in this case was armed robbery, which is one of the
felonies enumerated in the felony murder statute. See Mich. Comp. Laws § 750.316(1)(
b). At the time of Petitioner’s trial in 2001, the elements of armed robbery were: “‘(1) an
assault, (2) a felonious taking of property from the victim’s presence or person, (3) while
the defendant is armed with a weapon described in the statute.’” People v. Carines,
460 Mich. at 757; 597 N.W.2d at 135 (quoting People v. Turner, 213 Mich. App. at 569;
540 N.W.2d at 734).1
1
The armed robbery statute was amended in 2004. People v. Chambers, 277
Mich. App. 1, 7; 742 N.W.2d 610, 614 (2007).
[A] prosecutor must now prove, in order to establish the elements of
armed robbery, that (1) the defendant, in the course of committing a
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The prosecution must prove the following elements to establish that the
defendant is guilty under an aiding and abetting theory:
“(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 the aid and
encouragement.”
People v. Robinson, 475 Mich. 1, 6; 715 N.W.2d 44, 47-48 (2006) (quoting People v.
Moore, 470 Mich. 56, 67-68; 679 N.W.2d 41, 49 (2004) (quoting People v. Carines, 460
Mich. at 768; 597 N.W.2d at 141). “Abandonment is an affirmative defense, and the
burden is on the defendant to establish by a preponderance of the evidence voluntary
and complete abandonment of a criminal purpose.” People v. Cross, 187 Mich. App.
204, 206; 466 N.W.2d 368, 369 (1991).
2. Application
It is undisputed that John and Kim Crider were shot and killed. Petitioner also
does not dispute that she conspired to commit a robbery. The issues are whether
Petitioner shot the Criders or whether she aided and abetted Patricia Plummer in
shooting the Criders during an armed robbery or attempt to commit a robbery and, if so,
larceny of any money or other property that may be the subject of a
larceny, used force or violence against any person who was present or
assaulted or put the person in fear, and (2) the defendant, in the course of
committing the larceny, either possessed a dangerous weapon,
possessed an article used or fashioned in a manner to lead any person
present to reasonably believe that the article was a dangerous weapon, or
represented orally or otherwise that he or she was in possession of a
dangerous weapon.
Id., 277 Mich. App. at 7; 742 N.W.2d at 614 (footnote omitted).
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whether she had the requisite state of mind.
Petitioner’s statement to the police and the other evidence in the case
established that Petitioner
went to the victims’ house with the intention of robbing the victims. [She]
changed into dark clothes in preparation for the robbery, separately
procured a gun and ammunition, brought the loaded gun to the victims’
house where she knew they were home, and provided Patricia Plummer
with the loaded weapon knowing that Plummer wanted and planned to
shoot the victims.
People v. Clarke, Mich. Ct. App. No. 238359, at 3. There was additional evidence that
bullets removed from the deceased victims and found at the crime scene were fired by
the same gun, that Petitioner’s gun was used to shoot the Criders, and that Petitioner or
Patricia Plummer took one victim’s wallet.
The jury could have concluded from the evidence that Petitioner shot the Criders
or that she aided and abetted Patricia Plummer in shooting the Criders during an armed
robbery or attempt to commit a robbery. By taking a loaded gun to the Crider residence
and intending to commit a robbery, Petitioner set in motion a force likely to cause death
or great bodily harm. At a minimum, the jury could have concluded that Petitioner
intended to create a very high risk of death or great bodily harm with knowledge that
death or great bodily harm was the probable result. In the alternative, the jury could
have concluded that Petitioner aided and abetted Patricia Plummer, knowing that
Plummer intended to kill, to do great bodily harm, or to create a high risk of death or
great bodily harm. Even though Petitioner informed the police that she did not have the
courage to do the shooting, she handed the loaded gun to Plummer, knowing that
Plummer wanted to shoot the victims. She has failed to show that she voluntarily and
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completely abandoned her criminal purpose.
The evidence taken in the light most favorable to the prosecution was sufficient
for the jury to conclude beyond a reasonable doubt that Petitioner was guilty of felony
murder. Therefore, the state court’s conclusion – that the evidence was sufficient – was
objectively reasonable, and Petitioner has no right to relief on the basis of her challenge
to the sufficiency of the evidence.
B. The Prosecutor
The second habeas claim alleges prosecutorial misconduct. Petitioner contends
that the prosecutor vouched for his witnesses, denigrated Petitioner and her attorney,
appealed to the juror’s civic duty and sympathy for the victim, argued facts not in
evidence, inaccurately characterized the evidence, and misrepresented the law.
The Michigan Court of Appeals reviewed most of Petitioner’s claims for “plain
error” because she did not make a contemporaneous objection at trial. The Court of
Appeals concluded that
the prosecutor did not mischaracterize the facts of the case or attempt to
mislead the jury during closing arguments. The prosecutor did not
introduce any facts not in evidence during his closing arguments. The
prosecutor did not make an improper “civic duty” argument to the jury or
improperly attempt to inflame their passions. The prosecutor did not
denigrate defense counsel in his rebuttal. The trial judge's instructions
cured any misstatements of the law, or appeals to the sympathies of the
jury by the prosecutor.
Clarke, Mich. Ct. App. No. 238359, at 6. The Court of Appeals found no prosecutorial
misconduct that amounted to plain error or deprived Petitioner of substantial rights.
1. Clearly Established Law
“Claims of prosecutorial misconduct are reviewed deferentially on habeas
12
review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v.
Parker, 344 F.3d 487, 512 (6th Cir. 2003)). To prevail on her claim, Petitioner must
demonstrate that the prosecutor’s remarks infected the trial with such unfairness “as to
make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974).
Courts in this Circuit employ a two-prong test for determining whether
prosecutorial misconduct rendered a trial fundamentally unfair. Slagle v. Bagley, 457
F.3d 501, 515 (6th Cir. 2006) (citing United States v. Carter, 236 F.3d 777, 783 (6th Cir.
2001)). First, a court asks whether the prosecutor’s conduct or remarks were improper.
Id. at 516. Second, if the conduct or remarks were improper, a reviewing court must
consider the following four factors to determine “whether the improper acts were so
flagrant as to warrant reversal: (1) whether the evidence against the defendant was
strong, (2) whether the conduct of the prosecution tended to mislead the jury or
prejudice the defendant; (3) whether the conduct or remarks were isolated or extensive;
and (4) whether the remarks were made deliberately or accidentally.” Id.
Claims of prosecutorial misconduct also are subject to harmless-error analysis.
Mason v. Mitchell, 320 F.3d 604, 635 (6th Cir. 2003). An error is harmless unless it had
a “‘substantial and injurious effect or influence in determining the jury's verdict.’” Brecht
v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S.
750, 776 (1946)).
2. Comments on the Evidence
Petitioner contends that the prosecutor misstated the evidence during closing
arguments when he said that (1) Petitioner took a wallet from Kim Crider after she shot
13
him several times (Tr. Sept. 21, 2001, at 89), (2) that Petitioner acquired a gun from her
cousin by manipulating him into thinking that she was in danger (id. at 91), and (3) that
John Crider’s last words were, “Honey, you didn’t mean to do that, did you?” (Id. at 96.)
Petitioner claims that there was no evidence that she took Kim Crider’s wallet or that
she did the actual shooting or that she manipulated her cousin. She also maintains
that, because John Crider spoke to other people after he was shot, the prosecutor was
incorrect about Crider’s last words. The Michigan Court of Appeals determined that the
alleged errors were not reversible error and that they did not affect Petitioner’s
substantial rights.
Prosecutors may not misstate the evidence, United States v. Carter, 236 F.3d
777, 784 (6th Cir. 2001), or argue facts not in evidence, Abela v. Martin, 380 F.3d 915,
929 (6th Cir. 2004), but they have “‘leeway to argue reasonable inferences from the
evidence’ during closing arguments.” United States v. Crosgrove, 637 F.3d 646, 664
(6th Cir. 2011) (quoting Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000)). Petitioner’s
jury could have inferred that Petitioner took a wallet from Kim Crider after she or Patricia
Plummer shot him because she mentioned something about cutting up and disposing of
a wallet when she talked to Detective Donald Elford. (Tr. Sept. 18, 2001, at 26-27.)
There also was evidence that Petitioner acquired a gun from her cousin after
informing her cousin that she needed protection. Even though there was no evidence
that she manipulated her cousin to acquire the gun,2 and even if the prosecutor was
2
There was testimony that David Smith and some unidentified girls severely
assaulted Petitioner about two weeks before the murder and that Petitioner acquired the
14
incorrect about the content of John Crider’s last words, the prosecutor’s comments were
isolated remarks in a lengthy trial. The trial court, moreover, instructed the jury that the
attorneys’ arguments were not evidence. The trial court also charged the jurors to
consider only the admissible evidence, which consisted of the sworn testimony, the
exhibits, and anything else that the court told them to consider as evidence. (Tr. Sept.
21, 2001, at 127.) A trial court generally can correct improprieties in a prosecutor’s
closing argument “by instructing the jury that closing arguments are not evidence.”
United States v. Crosgrove, 637 F.3d at 664 (citing United States v. Emuegbunam, 268
F.3d 377, 406 (6th Cir. 2001)) The Court therefore concludes that even though the
prosecutor may have misstated some evidence, the prosecutor’s conduct was not
flagrant.
3. Sympathy for the Victim and Appeal to the Jury’s Emotions
Petitioner alleges that the prosecutor evoked sympathy for the victims by stating
in his closing argument that Kim Crider would have been a quadriplegic if he had
survived. As for John Crider, the prosecutor stated that he “hung in there for almost two
weeks,” despite three surgeries, a tube in his wind pipe, a ventilator, and a colostomy
bag. (Tr. Sept. 21, 2001, at 97.) The prosecutor also said that, “thankfully,” John
Sanborn and Randy Crider were not present when the defendants returned to the
victims’ home because, “otherwise, they would be dead too.” (Id. at 100.)
The Michigan Court of Appeals reviewed this claim and found no merit in it. The
Court of Appeals stated that the prosecutor permissibly commented on the evidence,
gun for protection against further assaults.
15
accurately described the heinous nature of the shootings, and did not ask the jury to
suspend its judgment or to decide the case on the basis of sympathy. The Court of
Appeals also stated that the prosecutor’s lone suggestion that there could have been
more victims did not amount to misconduct.
A prosecutor may not make closing remarks that are wholly irrelevant to any
facts or issues in the case in order to arouse the jury’s passions or prejudice. Viereck v.
United States, 318 U.S. 236, 247-48 (1943). “[A] prosecutor illicitly incites the passions
and prejudices of the jury when he calls on the jury’s emotions and fears – rather than
the evidence – to decide the case.” Johnson v. Bell, 525 F.3d 466, 484 (6th Cir. 2008)
(internal and end citations omitted), cert. denied, __ U.S. __, 129 S. Ct. 1668 (2009).
“Closing arguments that encourage juror identification with crime victims are improper.”
Id.
The disputed remarks about Kim and John Crider’s physical injuries were based
on the evidence, and the comments about John Sanborn and Randy Crider were
reasonable inferences from the evidence. Therefore, the remarks were proper.
4. Vouching
Petitioner claims that the prosecutor vouched for his theory of the case when he
stated during closing arguments that Petitioner incriminated herself during her
statement to the police. (Tr. Sept. 21, 2001, at 102.) The Michigan Court of Appeals
determined that there was no reversible misconduct, because the prosecutor neither
argued facts not in evidence, nor improperly vouched for the credibility of the detective
who interrogated Petitioner. According to the Court of Appeals, the prosecutor argued
that the detective was worthy of belief based on the evidence and reasonable
16
inferences drawn from the evidence.
The United States Court of Appeals for the Sixth Circuit has stated that
“[i]mproper vouching occurs when a prosecutor supports the credibility of
a witness by indicating a personal belief in the witness’s credibility thereby
placing the prestige of the [prosecutor’s office] behind that witness.”
[United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999)]. This
generally involves either blunt comments asserting personal belief, or
comments that imply special knowledge of facts not before the jury or the
credibility or truthfulness of the witness. Id.
United States v. Reid, 625 F.3d 977, 982 (6th Cir. 2010). “An improper statement of
personal belief, moreover, “is not per se reversible error.” Instead, the improper
statement must be “flagrant enough to ‘warrant reversal.’” United States v. Henry, 545
F.3d 367, 380 (6th Cir. 2008)).
The prosecutor did not express a personal belief in the credibility of the detective
who interrogated Petitioner. He was merely saying that, during the interrogation,
Petitioner had admitted to being an aider and abettor by blaming the shooting on
Patricia Plummer. The comment did not amount to improper vouching.
5. Statement of the Law
Petitioner maintains that the prosecutor misstated the law on felony murder by
suggesting that the jury could find Petitioner guilty of felony murder if she intended to
rob the victims. Petitioner also faults the prosecutor for saying that she was guilty of
premeditated murder. The Michigan Court of Appeals determined that the prosecutor’s
statements were not a clear misstatement of the law and that any suspect articulation
was corrected by the trial court’s proper instructions to the jury.
To be found guilty of felony murder, the prosecutor must show that the defendant
intended to do more than commit the underlying felony. People v. Aaron, 409 Mich. at
17
727-30; 299 N.W.2d at 326-27. The requisite malice is the intent to kill, the intent to do
great bodily harm, or the wanton and willful disregard of the likelihood that the natural
tendency of the defendant's behavior is to cause death or great bodily harm. Id., 409
Mich. at 728; 299 N.W.2d at 326.
The prosecutor did say that, “just by committing the robbery . . . that is felony
murder.” (Tr. Sept. 21, 2001, at 108.) However, the gist of his argument was that, by
creating a dangerous situation in which two men were killed, Petitioner was guilty of
felony murder. This was consistent with People v. Aaron, in which the Michigan
Supreme Court stated that,
[a] jury can properly infer malice from evidence that a defendant
intentionally set in motion a force likely to cause death or great bodily
harm. Thus, whenever a killing occurs in the perpetration or attempted
perpetration of an inherently dangerous felony, in order to establish malice
the jury may consider the “nature of the underlying felony and the
circumstances surrounding its commission.” If the jury concludes that
malice existed, they can find murder and, if they determine that the murder
occurred in the perpetration or attempted perpetration of one of the
enumerated felonies, by statute the murder would become first-degree
murder.
Id., 409 Mich. at 729-30; 299 N.W.2d at 327.
The trial court, moreover, instructed the jurors to follow the court’s instructions
and to ignore the attorneys’ arguments and use the law given to them by the court if the
attorneys said something different about the law in their arguments. (Tr. Sept. 21, 2001,
at 125.) Because the trial court correctly instructed the jury on felony murder and did
not give the jury the option of finding Petitioner guilty of premeditated murder, the
prosecutor’s alleged misstatements were harmless.
6. Civic Duty
18
The prosecutor stated in his closing argument that Petitioner murdered the
victims in cold blood and that it was now time for justice and to find Petitioner guilty.
The prosecutor went on to say that Petitioner murdered two people and that she should
be held accountable. (Id. at 110.) Petitioner alleges that this was an appeal to the jury
to do its civic duty. The Michigan Court of Appeals disagreed and concluded that,
because the prosecutor did not make a civic duty argument, there was no misconduct.
“Unless calculated to incite the passions and prejudices of the jurors, appeals to
the jury to act as the community conscience are not per se impermissible.” United
States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991). The type of appeal that the
Sixth Circuit has considered improper is one where the prosecutor urges the jury to
convict the defendant in order to send a message to other potential criminals in the
community. United States v. Ghazaleh, 58 F.3d 240, 246 (6th Cir. 1995) (citing United
States v. Johnson, 968 F.2d 768 (8th Cir. 1992), and United States v. Solivan, 937 F.2d
at 1146).
The prosecutor in this case did not urge the jury to send a message to potential
criminals. He merely exhorted the jury to hold Petitioner accountable and to find
Petitioner guilty based on the evidence. It was not improper to urge jurors to fulfill their
societal duty, Byrd v. Collins, 209 F.3d at 538-39, or “to remind the jury that there is a
general ‘community or societal need to convict guilty people.’” Reed v. United States,
133 F. App’x 204, 209 (6th Cir. 2005) (quoting Solivan, 937 F.2d at 1155). Therefore,
the argument was proper.
7. Denigrating Petitioner and Defense Counsel
Petitioner claims that the prosecutor denigrated her and her attorney by stating in
19
his rebuttal argument that defense counsel’s closing argument had consisted of fashion
statements, football games, and the fact that Petitioner was assaulted two weeks before
the murders. (Tr. Sept. 21, 2001, at 110.) The Michigan Court of Appeals determined
that the prosecutor’s comments were proper. According to the Court of Appeals, the
prosecutor did not denigrate the credibility of defense counsel, nor suggest that defense
counsel was intentionally trying to mislead the jury. The Court of Appeals opined that
the prosecutor was merely rebutting defense counsel’s arguments and that the rebuttal
was not misconduct.
Prosecutors may not make personal attacks on opposing counsel, United States
v. Carter, 236 F.3d at 784 (citing United States v. Young, 470 U.S. 1, 9 & n. 7 (1985),
and United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996)), but the disputed
remarks in this case were a response to defense counsel’s closing argument, not a
personal attack on defense counsel. Prosecutors ordinarily are “entitled to wide latitude
in rebuttal argument and may fairly respond to arguments made by defense counsel.”
Angel v. Overton, 682 F.2d 605, 607-08 (6th Cir. 1982) (citing Donnelly v.
DeChristoforo, 416 U.S. at 637). The issues raised in defense counsel’s closing
argument were “fair game for the prosecution on rebuttal.” United States v. Sarmiento,
744 F.2d 755, 765 (11th Cir. 1984).
8. Conclusion
The prosecutor’s comments during closing arguments were either proper or not
“so egregious as to render the trial fundamentally unfair,” Angel, 682 F.2d at 608,
particularly under the “‘stringent standards applicable on habeas review.’” Durr v.
Mitchell, 487 F.3d 423, 441 (6th Cir. 2007) (quoting Byrd v. Collins, 209 F.3d at 539).
20
The Court therefore declines to issue the writ of habeas corpus on the basis of
Petitioner’s prosecutorial-misconduct claim.
C. The Jury Instructions
The third habeas claim alleges that the trial court gave inaccurate and confusing
jury instructions. The Michigan Court of Appeals concluded on review of this claim that
the trial court properly instructed the jury on the elements and requisite intent of the
charged offenses. The Court of Appeals stated that, although the trial court’s
instructions were somewhat imperfect, they fairly presented the issues to be tried and
sufficiently protected Petitioner’s rights.
The question on habeas corpus review of jury instructions is whether the
instructions violated some right guaranteed to the defendant by the Fourteenth
Amendment or infected the entire trial to such an extent that the resulting conviction
violates due process. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). A jury
instruction
“may not be judged in artificial isolation,” but must be considered in the
context of the instructions as a whole and the trial record. Cupp v.
Naughten, supra, 414 U.S., at 147, 94 S. Ct., at 400-01. In addition, in
reviewing an ambiguous instruction . . . , [courts] inquire “whether there is
a reasonable likelihood that the jury has applied the challenged instruction
in a way” that violates the Constitution. Boyde v. California, 494 U.S. 370,
380, 110 S. Ct. 1190, 1198, 108 L. Ed.2d 316 (1990).
Estelle v. McGuire, 502 U.S. 62, 72 (1991).
1. Armed Robbery
Petitioner contends that the trial court erred by failing to read an element of
armed robbery, namely, the intent to permanently deprive the victim of property.
Petitioner alleges that this was particularly significant because armed robbery was the
21
predicate felony for the felony murder charge.
“Armed robbery is a specific intent crime for which the prosecutor must establish
that the defendant intended to permanently deprive the owner of property.” People v.
King, 210 Mich. App. 425, 428; 534 N.W.2d 534, 536 (1995). “Because of the difficulty
of proving an actor's state of mind, minimal circumstantial evidence is sufficient.”
People v. McRunels, 237 Mich. App. 168, 181; 603 N.W.2d 95, 102 (1999) (citing
People v. Bowers, 136 Mich. App. 284, 297; 356 N.W.2d 618, 624 (1984).
The trial court did not instruct Petitioner’s jury that, in order to convict Petitioner
guilty of armed robbery, the jury had to find that Petitioner intended to permanently
deprive the victims of money or property. However, Petitioner went to the victims’ home
armed with a weapon, and her purpose was to take money from the victims who were
shot and killed during the incident. It was obvious from the evidence that she intended
to permanently deprive the victims of money. The Court therefore finds that the error in
the jury instruction could not have had a substantial and injurious effect of influence on
the jury’s verdict and was harmless. Brecht v. Abrahamson, 507 U.S. at 623; see also
Neder v. United States, 527 U.S. 1, 8-10 (1999) (concluding that a jury instruction which
omits an element of the offense is subject to harmless-error review).
2. Aiding and Abetting
Petitioner faults the trial court for not specifying the crimes to which the aiding
and abetting statute applied. The court merely referred to “the crime” or “the offense”
when instructing on aiding and abetting. (Tr. Sept. 21, 2001, at 138-40.)
Nevertheless, “[t]he aiding and abetting statute neither expressly nor impliedly
limits the persons or crimes encompassed by its terms.” People v. Moore, 470 Mich. at
22
68; 679 N.W.2d at 49. The prosecuting attorney used the aiding and abetting theory in
connection with the murder charge by stressing that it did not matter who the shooter
was. (Tr. Sept. 21, 2001, at 103-06.) The jury also could have logically applied the
theory to the armed robbery and felony firearm counts. Thus, there is not a reasonable
likelihood that the jury applied the challenged instruction in a way that violates the
Constitution.
Petitioner also contends that the trial court failed to instruct the jurors that aiding
and abetting is a specific intent crime. Aiding and abetting, however, “is not a separate
substantive offense. Rather, ‘being an aider and abettor is simply a theory of
prosecution’ that permits the imposition of vicarious liability for accomplices.”
People v. Robinson, 475 Mich. at 6; 715 N.W.2d at 47 (footnote omitted).
The trial court, moreover, informed the jury that Petitioner was charged with
committing the offense itself or “intentionally assisting someone else in committing it.”
(Tr. Sept. 21, 2001, at 138-39.) The court also said that
anyone who intentionally assists someone else in committing a crime is as
guilty as the person who directly commits it, and can be convicted of that
crime as an aider and abetter.
Now, to prove this kind of charge, the prosecutor must prove
certain things to you beyond a reasonable doubt.
....
[T]hird, that the defendant must have intended the commission of
the crime alleged, or must have know that the other person intended to its
commission at the time of giving the assistance.
It doesn’t matter how much help, advice, or encouragement the
defendant . . . gave . . . . However, you must decide whether this
defendant intended to help another commit the crime . . . .
23
(Id. at 139.) These instructions adequately informed the jury that aiding and abetting
required a specific intent.
3. Felony Murder
Petitioner claims that the trial court gave an incorrect instruction on the intent
needed to be found guilty of felony murder. As noted above, the mens rea needed to
be found guilty of felony murder is the intent to kill, the intent to do great bodily harm, or
the intent to create a very high risk of death or great bodily harm with knowledge that
death or great bodily harm was the probable result. Carines, 460 Mich. at 759; 597
N.W.2d at 136.
At one point during the jury instructions, the trial court stated that the specific
intent needed for felony murder was the intent to kill or the intent to commit armed
robbery. (Tr. Sept. 21, 2001, at 152.) The trial court subsequently stated that the
requisite intent was the intent to kill or to knowingly create a very high risk of death or
great bodily harm. (Id. at 154.) Although neither one of these instructions was
completely accurate, the trial court read a correct statement of the law when it explained
the elements of felony murder. The court twice stated that, to prove first-degree
murder, the prosecutor had to prove that Petitioner had one of three states of mind: the
intent to kill, the intent to do great bodily harm, or the intent to knowingly create a very
high risk of death or great bodily harm knowing that death or such harm would be the
likely result of her actions. (Tr. Sept. 21, 2001, at 142.) Because the court correctly
defined the mens rea required for felony murder, Petitioner is not entitled to habeas
corpus relief.
4. Second-Degree Murder
24
The trial court instructed the jury on second-degree murder as a lesser-included
offense of first-degree murder. Petitioner claims that the trial court erroneously stated
that second-degree murder was a specific intent crime.
The trial court implied that second-degree murder was a specific-intent crime
when the court said: “Now, some of these charges we call crimes of specific intent.
The second-degree murder, the armed robbery, the conspiracy to commit armed
robbery, the felony firearm, . . . .” (Id. at 150-51.) “Second-degree murder is not a
specific-intent crime since it does not require intent to kill, but rather, only wanton and
wilful disregard of the likelihood that the natural tendency of the person's behavior is to
cause death or great bodily harm must be shown.” People v. England, 164 Mich. App.
370, 375; 416 N.W.2d 425, 427 (1987) (citing People v. Langworthy, 416 Mich. 630,
651; 331 N.W.2d 171 (1982)). Nevertheless, when the trial court explained the
elements of second-degree murder, the court correctly stated that the state of mind
required for second-degree murder was the intent to kill, the intent to do great bodily
harm, or the intent to create a very high risk of death or great bodily harm, knowing that
death or such harm would be the likely result of her actions. (Tr. Sept. 21, 2001, at
143.) Thus, the jury was correctly instructed on second-degree murder.
The Court agrees with the Michigan Court of Appeals that, overall, the trial court
properly instructed the jury on the elements of the charged offenses. Thus, Petitioner
has no right to relief on the basis of the trial court’s jury instructions.
D. The Trial Court’s Alleged Abuse of Discretion on Collateral Review
The fourth habeas claim alleges that the trial court abused its discretion when it
denied Petitioner’s motion to amend her motion for relief from judgment. Petitioner
25
asserts that the trial court improperly construed her motion to amend as a successive
motion for relief from judgment.
The fifth habeas claim alleges that the trial court abused its discretion when
denying Petitioner’s motion for relief from judgment, motion to amend, and motion for
reconsideration. Petitioner claims that she established “good cause” and “actual
prejudice” in compliance with Michigan Court Rule (D)(3)(a) and (b).
These claims lack merit because they allege violations of state law. “Issues of
state law cannot form the basis for habeas relief.“ Landrum v. Mitchell, 625 F.3d at 913
(citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990), and Estelle v. McGuire, 502 U.S. at
67). Nor may habeas relief be granted “for alleged deficiencies in a state’s postconviction procedures because such claims relate to a state civil matter, not to the
custody of a defendant.” Roe v. Baker, 316 F.3d 557, 571 (6th Cir. 2002) (citing Kirby v.
Dutton, 794 F.2d 245, 247 (6th Cir. 1986)). “In conducting habeas review, a federal
court is limited to deciding whether a conviction violated the Constitution, laws, or
treaties of the United States.” Estelle v. McGuire, 502 U.S. at 68 (citing 28 U.S.C. §
2241 and Rose v. Hodges, 423 U.S. 19, 21 (1975) (per curiam)). Because Petitioner’s
fourth and fifth claims allege mere violations of state law and irregularities in postconviction procedures, they are not cognizable on habeas corpus review.
E. The Pathologist
The sixth habeas claim alleges that the State’s pathologist, Dr. Rachiel Land,
perjured herself and testified beyond her level of expertise. Dr. Land performed the
autopsy on Kim Crider, and Petitioner alleges that, after her trial, the Genesee County
prosecutor informed her that Dr. Land’s testimony was not complete and could be
26
considered misleading. The prosecutor reached this conclusion after learning that Dr.
Land did not locate the bullet in Kim Crider’s spine; her assistant found the bullet. See
Pet. for Writ of Habeas Corpus, Ex. A. Petitioner claims that Dr. Land’s testimony
violated her rights to due process and a fair trial, as well as, Michigan Rule of Evidence
702, which states that an expert witness must be qualified by knowledge, skill,
experience, or training.
The alleged violation of Michigan Rule of Evidence 702 is not a basis for habeas
corpus relief. See Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A federal court may not
issue the writ [of habeas corpus] on the basis of a perceived error of state law.”). And
although Petitioner alleges that Dr. Land falsely claimed to have found the bullet in Kim
Crider, this was a minor point, because the parties did not dispute the cause or manner
of death. The main issues on the murder counts were whether Petitioner was the
shooter or aided and abetted the shooter and whether she had the requisite intent. The
alleged perjury on a minor issue could not have a “‘substantial and injurious effect or
influence in determining the jury's verdict,’” and was harmless. Brecht v. Abrahamson,
507 U.S. at 623.
Furthermore, the information about Dr. Land came to light after Petitioner’s trial.
Therefore, it cannot be said that the prosecution knowingly used perjured testimony. Cf.
King v. Trippett, 192 F.3d 517, 522-23 (6th Cir. 1999) (stating that, “[t]o be entitled to
habeas relief, petitioner must show that the prosecution knowingly used perjured
testimony”) (citing Burks v. Egeler, 512 F.2d 221, 224 (6th Cir. 1975); Norris v.
Schotten, 146 F.3d 314, 331 (6th Cir. 1998)). The Court declines issue the writ on the
basis of Petitioner’s claim about Dr. Land’s testimony.
27
F. Trial Counsel
Petitioner alleges that her trial attorney provided ineffective assistance and
thereby violated her rights under the Sixth Amendment to the United States
Constitution. Specifically, Petitioner alleges that trial counsel failed to: give an opening
statement; run a lien on the co-defendants; object to the admission of a prior felony;
cross-examine 60% of the witnesses; call witnesses in her defense; request Detective
Elford’s personal file; move for a competency hearing on “Pops;” object to prejudicial
comments by the prosecutor; file a pretrial motion for discovery; call an expert witness
on Post-Traumatic Stress Disorder; impeach the witnesses; move for a Walker hearing;
object to police misconduct; investigate and utilize the court-appointed investigator;
order a pretrial forensics evaluation; obtain hospital records and the criminal complaint
involving David Smith; impeach Dr. Rachiel Land for lack of qualifications; and arrange
for a DNA test to prove that she did not have sex with the victims. The trial court
determined that trial counsel’s representation did not fall below an objective standard of
reasonableness and that the result of the proceedings would not have been different in
the absence of the alleged errors.
1. Clearly Established Federal Law
The Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984),
is clearly established federal law. Cullen v. Pinholster, __ U.S. __, __, 131 S. Ct. 1388,
1403 (2011). Under Strickland, an attorney is constitutionally ineffective if “counsel’s
performance was deficient” and “the deficient performance prejudiced the defense.”
Strickland, 466 U.S. at 687. To establish deficient performance, a habeas petitioner
must show “that counsel made errors so serious that counsel was not functioning as the
28
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. “Judicial scrutiny of
counsel’s performance must be highly deferential.” Id. at 689.
To demonstrate that counsel’s performance prejudiced the defense, a habeas
petitioner must show “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. “This does
not require a showing that counsel’s actions ‘more likely than not altered the outcome,’”
but “[t]he likelihood of a different result must be substantial, not just conceivable.”
Harrington v. Richter, 131 S. Ct. at 792 (quoting Strickland, 466 U.S. at 693). “The
standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when
the two apply in tandem, review is ‘doubly’ so.” Id. at 788 (internal and end citations
omitted).
2. Application
a. Failure to Give an Opening Statement
Petitioner alleges that trial counsel should have given an opening statement, but
“[a]n attorney's decision not to make an opening statement ‘is ordinarily a mere matter
of trial tactics and . . . will not constitute . . . a claim of ineffective assistance of
counsel.’” Millender v. Adams, 376 F.3d at 525 (quoting Millender v. Adams, 187 F.
Supp. 2d 852, 870 (E. D. Mich. 2002) (quoting United States v. Rodriguez-Ramirez, 777
F.2d 454, 457 (9th Cir. 1985)). Furthermore, the purpose of an opening statement is “to
state what evidence will be presented, to make it easier for the jurors to understand
what is to follow, and to relate parts of the evidence and testimony to the whole . . . .”
United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J., concurring). Because
defense counsel did not present any evidence, it was appropriate not to give an opening
29
statement.
b. Failure to Run a Lien on the Co-Defendant
Petitioner claims that trial counsel should have run a lien on co-defendant Kevin
Debus and impeached him with a prior conviction. Petitioner has not explained what a
lien check would have revealed, and she has not demonstrated that the evidence would
have been admissible under Michigan Rule of Evidence 404(b)(1), which generally
prohibits the admission of evidence pertaining to other crimes, wrongs, or acts. And
because Petitioner was tried jointly with Debus, counsel for Debus in all likelihood would
have objected to any attempt to impeach Debus with a prior conviction. Trial counsel
was not ineffective for failing to run a lien on Debus.
c. Failure to Object to the Admission of a Prior Felony
Petitioner claims that trial counsel was ineffective for not objecting to evidence of
her prior conviction for unarmed robbery. This claims lacks merit because Petitioner
was charged with being a felon in possession of a firearm. The parties stipulated that
Petitioner had a prior conviction and was ineligible to possess a firearm. It was
reasonable trial strategy to stipulate to this fact, because the jurors were not told the
nature of the prior conviction, and the stipulation prevented the prosecutor from
revealing the nature of the conviction.
d. Failure to Cross-Examine Witnesses
Petitioner alleges that trial counsel was ineffective for failing to cross-examine
more than 60% of the witnesses who testified. Petitioner contends that the failure to
cross examine witnesses was indicative of poor preparation and unreasonable
30
representation.
“A number of courts, including [the United States Court of Appeals for the Sixth
Circuit], have found deficient performance where . . . counsel failed to challenge the
credibility of the prosecution's key witness.” Higgins v. Renico, 470 F.3d 624, 633 (6th
Cir. 2006) (collecting cases). The failure to cross-examine witnesses also can
constitute ineffective assistance when counsel fails to bring up “glaringly obvious
grounds for impeachment.” United States v. Munoz, 605 F.3d 359, 381 n.18 (6th Cir.
2010) (citing Higgins v. Renico, 470 F.3d at 632, and Reynoso v. Giurbino, 462 F.3d
1099, 1114 (9th Cir. 2006)).
Petitioner’s attorney cross-examined all the important witnesses. He waived
cross-examination of a few witnesses, but those witnesses were minor witnesses, who
were cross-examined by at least one other defense attorney. And even though
Petitioner claims that trial counsel failed to elicit testimony regarding motive, bias,
credibility, and other matters, she has not alleged any specific examples where the
failure to elicit information would have made a difference in the outcome of the trial.
The Court concludes that trial counsel’s apparent strategy did not amount to deficient
performance and the deficient performance did not prejudice the defense.
e. Failure to Call Witnesses
Petitioner claims that trial counsel was ineffective for failing to call Jamie
McTaggert and Tina Persail as witnesses in her behalf. Petitioner contends that these
witnesses would have refuted James Regal’s testimony. Regal, however, did not testify
in front of Petitioner’s jury. Thus, it was not ineffective assistance to refrain from calling
McTaggert and Persail.
31
Petitioner asserts that trial counsel also should have called Michigan State
Trooper David Stokes as a witness to refute testimony regarding John Crider’s dying
declaration to Trooper Stokes that the suspects were two white females. It is plausible
that Trooper Stokes would have confirmed, rather than denied, what John Crider said to
him, because both Arnis Davidsons and Police Officer Debra Lintz testified that John
Crider told the responding officers that two women shot him. (Tr. Sept. 7, 2001, at 23,
30, and 33.) The content of Crider’s dying declaration was not particularly prejudicial in
any event, because his description of the suspects was so general.
f. Failure to Request Detective Elford’s File
Petitioner states that, before the crimes in question occurred, she filed a criminal
complaint against David Smith for beating, raping, and kidnapping her. She spoke to
Detective Elford at the time, and she now claims that trial counsel should have
requested Detective Elford’s file on David Smith. According to Plaintiff, Smith was an
undercover informant for Detective Elford, and Elford’s file could have been inspected to
see if Smith was receiving favors from the police.
David Smith did not testify at Petitioner’s trial, and the incident between him and
Petitioner was not related to the crimes for which Petitioner was charged. Therefore,
whether he was receiving favors from the police was inconsequential, and trial counsel
was not ineffective for failing to request Detective Elford’s file on David Smith.
g. Failure to Move for a Competency Hearing
Petitioner claims that trial counsel should have requested a competency hearing
for “Pops”, who testified for the prosecution. There is no evidence in the record that
“Pops” was incompetent, and his testimony was somewhat favorable to Petitioner,
32
because he claimed to have heard Petitioner and Patricia Plummer discussing a person
named Rob, as opposed to a “robbery.” (Tr. Sept. 12, 2001, at 169-70.) Trial counsel,
therefore, was not ineffective for failing to request a competency hearing on Pops.
h. Failure to Object to the Prosecutor’s Comments
Petitioner maintains that trial counsel should have objected to the prosecutor’s
comments that Petitioner was a prostitute and that this case was about sex for hire.
Petitioner also objects to the prosecutor’s remark that Petitioner cut Kim Crider’s wallet
off his dead body.
There was no direct evidence that Petitioner was a prostitute, but there was
evidence that she and Patricia Plummer went to the victims’ home to “turn tricks” or
earn money by engaging in sex with the victims. (Id. at 69, 118.) There was additional
evidence suggesting that Petitioner disposed of a victim’s wallet. (Tr. Sept. 18, 2001, at
26-27.) Consequently, trial counsel, was not ineffective for failing to object to the
prosecutor’s remarks.
i. Failure to Move for Discovery
Petitioner contends that trial counsel should have moved for discovery and the
prosecutor should have shared information with trial counsel. Trial counsel did not
complain about not having received a discovery packet from the prosecutor, and
Petitioner has not shown how she was prejudiced from any lack of discovery.
Therefore, trial counsel was not ineffective for failing to file a motion for discovery.
j. Failure to Call an Expert Witness
Petitioner alleges that trial counsel should have called an expert witness on Post-
33
Traumatic Stress Disorder because she was abducted and raped two weeks before the
crimes in this case and was emotionally distressed. If Petitioner is claiming that her
emotional distress caused her to commit the crimes or prevented her from forming the
necessary intent to commit the charged crimes, the evidence at trial belies her claim.
The evidence established that Petitioner was capable of planning and carrying out the
crimes. Therefore, an expert witness would have had difficulty establishing that
Petitioner’s alleged disorder somehow excused or reduced her criminal responsibility.
Trial counsel was not ineffective for failing to call an expert witness.
k. Failure to Impeach Witnesses
Petitioner states that trial counsel failed to impeach the trial witnesses, but she
has not alleged any specific questions that counsel could have asked to impeach
particular witnesses. Thus, this claim lacks merit.
l. Failure to Object to Police Misconduct and Move for a Hearing
Petitioner claims that trial counsel should have objected to police misconduct and
moved to suppress her statement to the police. Petitioner contends that her statement
was involuntary because she was suffering from Post-Traumatic Stress Disorder and
was “high” on drugs. She further alleges that Detective Elford threatened her during the
interrogation and ignored her request to call her parents.
Detective Elford testified at trial that he advised Petitioner of her constitutional
right to remain silent, her right to an attorney, and her right to stop the interrogation.
Detective Elford also testified that Petitioner had said she was willing to waive her rights
and talk to him. The interview lasted only an hour and twelve minutes, and it was taperecorded. According to Detective Elford, Petitioner was able to communicate, and there
34
was nothing hindering her ability to understand or communicate. (Id. at 15-17, 33.) The
detailed and coherent account that Petitioner gave of the events before, during, and
after the shooting supports the conclusion that Petitioner was not incapacitated by drugs
or stress.
Nineteen minutes after the initial interview, Petitioner asked to speak with
Detective Elford again. At that time, she informed him that she had hid a needle in case
she and Plummer had to poison the surviving victim to prevent him from identifying
them. (Id. at 33-34.) This is additional evidence that Petitioner was coherent and that
her statement to Elford was made voluntarily. Because there is no evidence that the
police mistreated Petitioner or that her statement to the police was coerced, defense
counsel was not ineffective for failing to move for suppression of the statement.
m. Failure to Properly Utilize the Court-Appointed Investigator
Petitioner claims that trial counsel was ineffective for failing to properly utilize the
private investigator, which the trial court appointed. According to Petitioner, trial
counsel and the investigator could have checked on the victims’ and co-defendants’
criminal history, investigated the crime scene, talked to witnesses, and investigated the
kidnapping, rape, and beating that Petitioner suffered two weeks before the crime.
Petitioner asserts that defense counsel should have had her evaluated to determine her
mental status and should have obtained her hospital records to verify the seriousness of
her injuries and prove that she did not receive any psychiatric evaluations after the
kidnapping, rape, and beating.
As previously noted, David Smith’s alleged assault on Petitioner was unrelated to
the crimes for which Petitioner was charged, and her alleged stress disorder did not
35
excuse her criminal conduct. Petitioner also has not shown how an investigation into
any of the matters that she mentions would have made a difference in the outcome of
the trial. Thus, trial counsel’s alleged deficiencies did not prejudice the defense.
n. Failure to Impeach Rachel Land for Lack of Qualifications
Petitioner contends that trial counsel should have impeached pathologist Rachiel
Land with her lack of qualifications as an expert witness. Dr. Land, however, claimed at
trial that she had performed hundreds of autopsies. The trial court was familiar with Dr.
Land and did not hesitate to qualify her as an expert witness. Furthermore, the
allegation that Dr. Land might have given misleading testimony about discovering the
bullet in Kim Crider’s spine did not come to light until after Petitioner’s trial. For these
reasons, defense counsel was not ineffective for attempting to impeach Dr. Land
regarding her qualifications.
o. Failure to perform a DNA Test on Petitioner
Petitioner alleges that trial counsel should have performed a DNA test on her to
prove that she did not have sex with the victims. Petitioner was not charged with a sex
crime, and whether she engaged in sex with the victims was irrelevant to the charges
against her. Therefore, defense counsel was not ineffective for failing to have a DNA
test performed on Petitioner.
p. Cumulative Effect of Errors
Petitioner’s final claim about trial counsel is that the cumulative effect of his
errors deprived Petitioner of a fair trial. This claim lacks merit because “[t]he Supreme
Court has not held that distinct constitutional claims can be cumulated to grant habeas
36
relief.” Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002). Constitutional errors that
would not individually support habeas relief simply cannot be cumulated to support
habeas relief. Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005) (citing Scott v. Elo,
302 F.3d 598, 607 (6th Cir. 2002), and Lorraine v. Coyle, 291 F.3d at 447).
For all the reasons given above, the Court finds that trial counsel’s performance
was not deficient, and the alleged deficiencies did not prejudice the defense. Petitioner
therefore has no right to relief on the basis of her claims about trial counsel.
G. Appellate Counsel
Petitioner’s eighth and final claim alleges that her appellate attorney was
ineffective. Specifically, Petitioner contends that appellate counsel failed to
communicate with her, forfeited her right to oral arguments by filing an untimely brief,
provided inadequate help with her supplemental brief, did not provide her with a copy of
her trial transcripts, and failed to include her pro se issues in his appellate brief.
To prevail on her claim, Petitioner must demonstrate that her attorney’s
performance was deficient and that the deficient performance prejudiced the defense.
Strickland, 466 U.S. at 687; Smith v. Robbins, 528 U.S. 259, 285 (2000) (stating that the
proper standard for evaluating the petitioner’s claim about appellate counsel is that
enunciated in Strickland).
“Oral argument on appeal is not required by the Constitution in all cases; nor is it
necessarily essential to a fair hearing. This is particularly true when ‘legal arguments
only are involved, and the material issues have been briefed.’” United States v. Birtle,
792 F.2d 846, 848 (9th Cir. 1986) (citations omitted).
Petitioner’s attorney raised several issues and sub-issues on appeal, and he
37
briefed the issues thoroughly. Petitioner has not complained about the quality of her
attorney’s brief. Thus, Petitioner was not prejudiced by the submission of her case on
the briefs and by her attorney’s failure to appear at oral arguments.
Petitioner was not entitled to a personal copy of the transcript of trial for appeal
purposes because she was represented by counsel on appeal. Gay v. Watkins, 579 F.
Supp. 1019, 1022 (E.D. Pa. 1984). And she was not entitled to compel her attorney to
raise all nonfrivolous claims on appeal if counsel, as a matter of professional judgment,
elected not to raise the claims. Jones v. Barnes, 463 U.S. 745, 751 (1983). In fact, “the
process of winnowing out weaker arguments on appeal and focusing on those more
likely to prevail . . . is the hallmark of effective appellate advocacy.” O’Sullivan v.
Boerckel, 526 U.S. 838, 858 (1999) (quotation marks and end citations omitted).
The Court has found no merit in the claims that counsel did not raise on direct
appeal. Appellate counsel appears to have made an objectively reasonable decision
not to raise those claims, and there is not a reasonable probability that, but for appellate
counsel’s failure to raise the claims, Petitioner would have prevailed on appeal. The
Court therefore concludes that appellate counsel was not constitutionally ineffective.
IV. CONCLUSION
The state courts’ adjudications of Petitioner’s claims did not result in decisions
that were contrary to Supreme Court precedent, an unreasonable application of
Supreme Court precedent, or an unreasonable determination of the facts. Accordingly,
the petition for a writ of habeas corpus [Dkt. #1] and the amended petition [Dkt. #41] are
DENIED.
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It is further ORDERED that a certificate of appealability is DENIED because
reasonable jurists would not debate the Court’s assessment of Petitioner’s claims, or
conclude that the issues deserve encouragement to proceed further. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Petitioner nevertheless may proceed in forma
pauperis on appeal if she appeals this decision because she was permitted to proceed
in forma pauperis in the District Court. Fed. R. App. P. 24(a)(3).
s/John Corbett O’Meara
United States District Judge
Date: June 29, 2011
I hereby certify that a copy of the foregoing document was served upon the
parties of record on this date, June 29, 2011, using the ECF system and/or ordinary
mail.
s/William Barkholz
Case Manager
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