Opinion
Civil No. 02-CV-74805-DT.
July 10, 2003.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Petitioner Teon Mitchell, (Petitioner), is a state inmate at the Saginaw Correctional Facility in Freeland, Michigan. Petitioner was convicted of two counts of armed robbery, Mich. Comp. Laws § 750.529; three counts of assault with intent to commit armed robbery, Mich.Comp. Laws § 750.89; one count of assault with intent to commit murder, Mich. Comp. Laws § 750.83; one count of assault with intent to do great bodily harm less than murder, Mich. Comp. Laws § 750.84, one count of possession of a firearm in the commission of a felony, Mich. Comp. Laws § 750.227b; one count of possession of a firearm by a felon, Mich. Comp. Laws § 750.224(f); and being a second felony habitual offender, Mich. Comp. Laws § 769.10. Petitioner was sentenced to six concurrent terms of twenty to fifty years, a concurrent term of seven to fifteen years, a concurrent term of three to seven and one-half years, and a consecutive two-year term. Petitioner has filed a pro se petition for writ of habeas corpus, claiming that he is incarcerated in violation of his constitutional rights and presenting a single claim for relief. Respondent, through the Attorney General's Office, filed a response, arguing that petitioner's claim lacks merit. For the reasons which follow, the petition will be denied.
II. Procedural History
Petitioner was convicted of the above offenses following a jury trial in the Genesee County Circuit Court. Petitioner filed an appeal of right to the Michigan Court of Appeals, presenting the claim that he raises in the instant petition. The Michigan Court of Appeals affirmed petitioner's conviction and sentence. People v. Mitchell, No. 213400 (Mich.Ct.App. May 11, 2001) (unpublished). Petitioner filed a delayed application for leave to appeal with the Michigan Supreme Court, in which he raised the identical claim that he raised on his appeal of right. The Michigan Supreme Court denied leave to appeal. People v. Mitchell, 465 Mich. 918 (2001).
Petitioner has now filed an application for writ of habeas corpus, in which he seeks relief on the following ground:
I. Defendant-Appellant Teon Mitchell was deprived of his Fifth Amendment right to silence and his Fourteenth Amendment right to due process when the trial court allowed the prosecutor, in his case in chief, to elicit as substantive evidence of guilt the fact that Mr. Mitchell declined to answer when a police officer asked him about the shooting.
III. Facts
The material facts leading to petitioners s conviction as gleaned from the record follow:On September 3, 1997, a man later identified as petitioner entered a gas station in Flint, Michigan between 11:30 and 11:40 a.m. while brandishing a firearm and demanding money from the gas station attendant and four persons who were eating lunch in a back room of the gas station. The attendant and one of the men gave their assailant money. Another man, Ron Ferris, Sr., pulled out a .38 revolver and fired a single gunshot, striking the left side of the robber's chest. The robber fired two gunshots from his own gun, before fleeing the scene in an automobile.
Flint police officers were dispatched to the scene of the robbery and shooting at 11:42 a.m. and arrived at the gas station two minutes later. Officers were told that the suspect had fled the area in a smoke gray Pontiac Bonneville with license plate number NP 3083. Another police officer, Karl Petrich, overheard radio traffic about the robbery and shooting and had proceeded to the area to attempt to locate the suspect's vehicle, when he heard radio traffic that a gunshot victim had arrived at McLaren Hospital, which was within a mile and a half of the shooting. Officer Petrich went to McLaren Hospital to see if this shooting victim was related to the robbery and shooting. Officer Petrich arrived at the hospital between 11:52 and 11:55 a.m.
Upon arriving at the hospital, Officer Petrich went to the emergency room and was permitted to speak with petitioner, who was being treated for two gunshot wounds to the right chest and to the arm. Petitioner told Officer Petrich twice that his name was Teon Williams, before giving Officer Petrich his correct name. When Officer Petrich asked petitioner who shot him, petitioner replied that he did not want to answer any of Petrich's questions.
Two days after the shooting, police conducted a photographic lineup, in which all but one of the robbery victims participated. None of the victims could identify petitioner from this photo array as being the suspect. On October 15, 1997, the same victims participated in a physical lineup. Only one of the victims said that she thought that petitioner was the suspect, and even she was unsure of the identification, although she said that petitioner's face and "mouth shape" were similar to the suspect's. Another victim said that petitioner looked similar to the suspect but refused to make a positive identification. However, at the preliminary examination and again at trial, all four victims positively identified petitioner as being the robber. Three of the victims acknowledged that petitioner looked considerably heavier than the robber, 25 to 30 pounds by one victim's estimate. Another one of the victims testified that the suspect looked a "lot meaner and rougher" and perhaps bigger than petitioner. Another witness who was outside of the gas station pumping gasoline on the day of the robbery positively identified petitioner at trial, even though she had told police on the day of the robbery that she could not describe the robber's face because her head was down.
Testimony at trial established that either $65.00 or $70.00 to $80.00 dollars was taken from one victim and either $256.00 or $261.00 was taken from another victim. At the hospital, police discovered $311.26 in petitioner's clothing.
Police later received information that the driver of the Pontiac Bonneville that was identified as the getaway car may have been a friend of petitioner's. Police ultimately located a Pontiac Bonneville which matched the description of the getaway vehicle at the home of Yasmin Monique Walker. Walker was married to one of petitioner's friends. It was later determined that Walker's sister was the title owner of this Pontiac Bonneville. Police testified that this Bonneville's license plate number was NPW 803, which similar to the plate number of NP 3083 that had been given by witnesses at the crime scene. Petitioner's mother testified that she remembered petitioner leaving the house on the morning of September 3rd in a "dark color", "medium size car", that was possibly an Oldsmobile or a Pontiac.
Petitioner testified in his defense that he received the two gunshot wounds in a drive by shooting. Petitioner denied committing the crimes in question.
IV. Analysis A. Standard of Review
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254 (d); Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. An "unreasonable application" occurs when the state court identifies the correct legal principle from a Supreme Court's decision but unreasonably applies that principle to the facts of the prisoner's case. Williams v. Taylor, 529 U.S. 362, 412-413 (2000). A federal habeas court may not find a state adjudication to be "unreasonable" "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 411.
B. Use of Petitioner's Prearrest Silence
Over defense objection, Officer Petrich was permitted to testify that petitioner refused to answer any questions when he was asked by Officer Petrich at the hospital who had shot him. Petitioner contends that the prosecution's use of his prearrest silence as substantive evidence of his guilt violated his Fifth and Fourteenth Amendment rights. The Michigan Court of Appeals rejected petitioner's claim, finding that the use of petitioner's prearrest silence as substantive evidence of his guilt did not violate petitioner's constitutional rights. People v. Mitchell, Slip. Op. at * 1-2.
Petitioner is not entitled to habeas relief for several reasons. First, it is unclear that "clearly established federal law" prohibits the use of a criminal defendant's prearrest silence as substantive evidence of guilt. In Jenkins v. Anderson, 447 U.S. 231, 238-239 (1980), the United States Supreme Court held that the Fifth Amendment, as applied to the states through the Fourteenth Amendment, is not violated by the use of a defendant's prearrest silence to impeach that defendant's credibility, since the "impeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial." Id. However, the Supreme Court indicated that their decision in Jenkins did not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment. Id. at 236, n. 2.
The Court of Appeals for the Sixth Circuit, however, has held that the use of a defendant's prearrest silence as substantive evidence of guilt violates the Fifth Amendment privilege against self-incrimination. Combs v. Coyle, 205 F.3d 269, 283 (6th Cir. 2000). However, the Sixth Circuit acknowledged that the Supreme Court in Jenkins never addressed the issue of whether the use of prearrest silence as substantive evidence violated the Fifth Amendment. Id. at 281. The Sixth Circuit further noted that the federal circuits that had considered the issue were "equally divided" over whether a defendant's prearrest silence could be used as substantive evidence of guilt. Id. at 282 (collecting cases). This court notes that another judge in this district has held that a criminal defendant's prearrest silence is not afforded "conclusive protection." Martin v. Jabe, 747 F. Supp. 1227, 1233 (E.D. Mich. 1989).
A habeas court may only look at the holdings of the United States Supreme Court as they existed at the time of the relevant state court decision to determine whether the state court decision was contrary to, or an unreasonable application of, clearly established federal law. Mitzel v. Tate, 267 F.3d 524, 530-531 (6th Cir. 2001). A habeas court cannot look to the decisions of this circuit, or other courts of appeals, when deciding whether a state court's decision was contrary to, or an unreasonable application of, clearly established federal law. Id.
Here, the United States Supreme Court has not spoken dispositively on the issue of whether the use of a criminal defendant's prearrest silence as substantive evidence violates the Fifth or Fourteenth Amendments. The Supreme Court's failure to rule on this issue, coupled with the "disagreement and confusion" among the federal courts concerning the resolution of this issue, precludes this court from finding that the Michigan Court of Appeals' decision was an unreasonable application of clearly established federal law, where clearly established Supreme Court precedent on the issue of using prearrest silence as substantive evidence of guilt did not, and does not, exist. See Worden v. McLemore, 200 F. Supp.2d 746, 752-53 (E.D. Mich. 2002).
Second, it is unclear whether the prosecutor sought to use petitioner's prearrest silence as substantive evidence of guilt or as impeachment evidence. Unlike the petitioner in Combs, petitioner chose to testify and advance a defense that he was shot during a drive-by shooting and not while participating in an armed robbery. When viewed in the overall context, the question about petitioner's silence appears to have been used by the prosecutor to cast doubt on petitioner's defense and not to intimate his guilt. See Seymour v. Walker, 224 F.3d 542, 560 (6th Cir. 2000); See also Adams v. Phillips, 2002 WL 551040, * 7 (E.D. Mich. April 8, 2002) (prosecutor did not use petitioner's prearrest silence as substantive evidence of guilt, where the questions were an attempt to cast doubt on petitioner's anticipated defense).
Finally, any error in permitting testimony of petitioner's prearrest silence was harmless. For purposes of determining whether federal habeas relief must be granted to a state prisoner on the ground of federal constitutional error, the appropriate harmless error standard to apply is whether the error had a substantial and injurious effect or influence in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). The Brecht harmless error standard applies even if a federal habeas court is the first court to review the case for harmless error, as is the case here. Gilliam v. Mitchell, 179 F.3d 990, 995 (6th Cir. 1999).
In this case, the use of petitioner's prearrest silence as substantive evidence of guilt was harmless error at best. First, the prosecutor elicited only a single reference to petitioner's silence from Officer Petrich (T. II. at p. 473), which was later referred to again by petitioner's counsel on cross-examination. ( Id. at p. 488). The prosecutor presented no additional testimony on this issue. Secondly, this prearrest silence did not establish any of the elements of the crimes. Finally, there was compelling evidence of petitioner's guilt. Five persons identified petitioner at his trial as being the perpetrator of these crimes. Although there was a discrepancy by the witnesses about how many shots one of the victims fired at the perpetrator, there was testimony that the perpetrator of this crime was shot. Petitioner was discovered several minutes after the robbery occurred at a hospital only one and a half miles from the robbery scene suffering from two gunshot wounds. Doctors at McLaren Hospital removed one of the bullets from petitioner and testified that the bullet was fired from a gun which had the same gross characteristics as the victim's .38 caliber revolver. Police recovered $311.26 dollars from petitioner's clothing at the hospital, which corresponded almost identically to the amounts of money that two of the victims claimed had been taken from them. Finally, the Pontiac Bonneville that was used during the getaway was similar in appearance and had a similar license plate number to a vehicle that was located at the home of the wife of petitioner's friend.
The prosecutor's reference to petitioner's prearrest silence in this case was harmless, in light of the fact that the references to petitioner's silence were brief, petitioner's prearrest silence did not directly establish an element of the charged offenses, and there was sufficient evidence to sustain petitioner's convictions. See Fencl v. Abrahamson, 841 F.2d 760, 767-69 (7th Cir. 1988); See also Brecht v. Abrahamson, 507 U.S. at 638-639 (state's improper use of defendant's post- Miranda silence to impeach his credibility did not have substantial and injurious effect or influence on jury's verdict, where state's reference to the petitioner's silence comprised only 2 pages of a 900 page transcript and the state's evidence of guilt, if not overwhelming, was "weighty").
V. Conclusion
For the reasons stated above, the petition for writ of habeas corpus is DENIED and the matter is DISMISSED.