Opinion
Civil Action No.: 98-CV-74255-DT
September 5, 2000
OPINION
Petitioner, Ronald Baran ("petitioner"), presently confined at the Thumb Correctional Facility in Lapeer, Michigan, has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is confined in violation of his constitutional rights. In his application, Petitioner challenges his bench trial conviction on two counts of first-degree criminal sexual conduct, Michigan Compiled Laws § 750.520b(1)(c), and one count of first-degree home invasion. Petitioner was sentenced to concurrent sentences of fifteen to twenty-five years for the criminal sexual conduct convictions and five to twenty years for home invasions
Background
Petitioner was initially charged with four counts of first-degree criminal sexual conduct, one count of home invasion, and one count of felonious assault. Petitioner was convicted of two counts of first-degree criminal sexual and home invasion. Petitioner was found not guilty of felonious assault. Petitioner was tried before a judge after he waived his right to a jury trial
The complainant, Debra Matykowski, testified that she and Petitioner had lived together from about June of 1994 until November of 1994. They had talked of marrying, but did not. The complainant testified that Petitioner sexually assaulted her on December 15, 1994, The complainant testified that, when she returned from work at about 10:30 a.m. that day, the back door of her home had been broken into. The complainant called Petitioner on the phone and accused him of breaking in the back door. Petitioner denied it.
Later that evening the complainant was at home; lying down on the couch. The complainant testified that Petitioner kicked in the front door and entered her home without her permission, and that Petitioner then grabbed her around her throat and began threatening her. Petitioner asserted that he loved the complainant and that she would marry him, or he would shoot or kill her. (Trial Tr. at 24-25). Petitioner never brandished a gun. However, the complainant testified that Petitioner did hold a steak knife to her neck and repeated his threats to kill her if she would not marry him or have sex with him. ( Id. at 26). Complainant responded by telling Petitioner that he was " nuts." ( Id. at 13).
At some point Petitioner took his pants down. He repeated his threats to kill the complainant if she did not have intercourse with him or perform oral sex upon him. After struggling together on the couch, the complainant and Petitioner fell to the living room floor where complainant saw the knife on the floor. ( Id. at 14).
Petitioner then pulled and pushed the complainant into her bedroom. The complainant did not want to go there with Petitioner, but she did not resist forcefully out of fear. Complainant's two-year- old daughter, who had been in the living room observing the scene and crying, followed Petitioner and complainant into the bedroom.
Once in the bedroom, Petitioner threw the complainant on the bed, and announced that he was going to try to impregnate her. ( Id. at 16). Complainant's daughter was sitting on a pillow by complainant's head at this time. ( Id. at 29). Petitioner next put his fingers and then his penis in complainant's vagina without her consent, ejaculating shortly thereafter. ( Id. at 16-17). Petitioner got up and left. Complainant put on her coat and her daughter's coat, and went to her mother's house which was about twenty houses down the street. Complainant left her home so quickly that she neglected to put on her shoes. ( Id. at 18). Complainant called 911 to report the incident and waited for the police at her mother's house.
Complainant's mother, Dorothy Matykowski, testified that her daughter, complainant Debra Matykowski, came to her home with her two-year-old daughter the night of the incident. Both the complainant and her young daughter were crying. Dorothy Matykowski testified that her daughter appeared to be upset and scared. Complainant told her mother that Petitioner had raped her. Over a defense hearsay objection, the trial court admitted this testimony, finding that the prosecution had established an adequate foundation for admitting the statement as an excited utterance.
Sergeant Kevin Kemp testified that he took the incident report concerning the assault from Debra Matykowski. Sergeant Kemp also observed that the front door of the complainant's borne was damaged. The lock was broken and the door appeared to have been smashed in and splintered.
The defense stipulated to admission of the complainant's medical records pertaining to the alleged assault.
Petitioner testified that he went to the complainant's home on December 15, 1994 and that they had consensual sex in her bedroom. Petitioner denied kicking in the door to gain entry. He said the door was open and he simply walked in. Petitioner testified that be came to the complainant's house to demand an explanation of why she had rejected his marriage proposal. According to Petitioner, the complainant told him to leave because she was tired and did not want to discuss the matter at that time. Petitioner refused to leave. Petitioner further testified that he then began to try to "play kissy face" with complainant. ( Id. at 65). Petitioner testified that complainant repeatedly told him she did not want to kiss him, that she was tired and wanted him to leave, and that she wanted to go to sleep.
Petitioner testified that the complainant nonetheless agreed, only minutes later, to go to her bedroom with him where they had consensual sexual intercourse while complainant's two-year-old child sat on the bed next to them, awake and watching television. When asked how he determined that the complainant consented to have sex with him, Petitoner stated that she said, "If I give you what you want, will you leave me alone?' ( Id. at 66). Petitioner interpreted this to mean that complainant agreed to have sex with him. Asked if he had placed a knife to the complainant's throat and threatened to kill her if she refused to marry him, Petitioner replied that he never had a knife. Asked if he had choked the complainant with his hands, Petitioner replied that he never hurt her. Asked if he ever told the complainant he would shoot her, Petitioner replied that he had not and did not have a gun.
Petitioner stated that a television was on in the bedroom and that he changed the station to Channel 56, the local public television station, so the child could watch "Barney and Friends" or "Sesame Street" while he and the complainant had sex. (Trial Tr. at 66-67).
Defense counsel argued that the medical evidence did not support the complainant's testimony that a knife had been held to her throat and that Petitioner had choked her with his hands about her neck. Defense counsel also noted that no weapon had been admitted in evidence and that it was undisputed that about a month before the alleged incident Petitioner and the complainant had applied for a marriage license.
The trial judge found that the complainant's testimony was "wholly credible, and worthy of belief, and (the) testimony of the defendant to be wholly incredible, self serving, and not at all worthy of belief," ( Id. at 89). The judge noted that the complainant's medical records indicated that she had linear abrasions on the right side of her neck that were consistent with some sort of assault and a Two-centimeter linear abrasion on her left foot, ( Id. at 84). The judge found that the prosecution had proven Petitioner guilty beyond a reasonable doubt of two counts of first-degree criminal sexual conduct and one count of first-degree home invasion. Petitioner was found not guilty of felonious assault. The trial judge sentenced Petitioner to prison terms of fifteen to twenty-five years on the first-degree criminal sexual conduct convictions and five to twenty years for home invasion, all sentences to be served concurrently.
The Michigan Court of Appeals affirmed the judgment and convictions on all counts. People v. Banan, No. 186838 (Mich.Ct.App. Oct. 3, 1997) (per curiam). The Michigan Supreme Court denied Petitioner's delayed application for leave to appeal. People v. Baron, 459 Mich. 853 (1998). On October 2, 1998, Petitioner filed an application for a writ of habeas corpus raising the following claims:
I. PETITIONER WAS DENIED A FAIR TRIAL AND HIS CONSTITUTIONAL RIGHT OF CONFRONTATION WHERE THE TRIAL COURT WENT BEYOND MERELY USING GENERAL KNOWLEDGE BUT USED SPECIALIZED KNOWLEDGE TO INTERPRET MEDICAL RECORDS ON ITS OWN, WITHOUT ANY EXPERT TESTIMONY.
II. PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL, WHERE COUNSEL STIPULATED TO ADMISSION OF THE COMPLAINANT'S MEDICAL RECORDS AND MADE THEM THE CORNERSTONE OF THE DEFENSE, APPARENTLY OBLIVIOUS TO THE FACT THAT THE COURT MIGHT INTERPRET THOSE RECORDS AS CORROBORATING THE COMPLAINANT'S VERSION OF THE CLAIMED ASSAULT.
III. PETITIONER'S CONVICTION SHOULD BE REVERSED, WHERE THE TRIAL COURT'S VERDICTS WERE INCONSISTENT WITH ITS FINDINGS OF FACT, IN VIOLATION OF DUE PROCESS OF LAW.
IV. PETITIONER WAS DENIED A FAIR TRIAL, WHERE THE COURT ADMITTED, OVER OBJECTION, HEARSAY TESTIMONY OF THE COMPLAINANT'S MOTHER AS TO WHAT HER DAUGHTER TOLD HER, BUT THAT HEARSAY WAS INADMISSIBLE UNDER THE EXCITED UTTERANCE EXCEPTION TO THE HEARSAY RULE.
V. PETITIONER'S WAIVER OF HIS RIGHT TO TRIAL BY JURY WAS INVALID, WHERE THE WAIVER WAS MADE BEFORE DEFENSE COUNSEL HAD LOOKED AT ANY DISCOVERY IN THE CASE, AND WHERE THE TRIAL COURT FAILED TO ADVISE PETITIONER THAT BY WAIVING A JURY TRIAL HE WAS GIVING UP THE RIGHT TO NOT BE CONVICTED UNLESS A JURY OF 12 DECIDED HE WAS GUILTY.
For the reasons stated below, the petition for a writ of habeas corpus shall be denied.
Discussion
Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Actor 1996, Pub.L. No 104-132, 110 Stat. 1214 (Apr. 24, 1996) ("AEDPA"). govern this case because Petitioner filed his habeas corpus petition after the effective date of the Act. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d (1997).
The AEDPA altered the standard of review that a federal court must use when reviewing applications for writs of habeas corpus.
As amended, 28 U.S.C. § 2254 (d) provides that:
(d) 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 he 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. Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
The United States Supreme Court has recently addressed the question of the proper interpretation of the amendments to the habeas corpus statute concerning entitlement to relief. The Supreme Court has stated: "In sum, § 2254(d)(1) places a view constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 120 S.Ct. 1495, 1523, 146 L.ed.2d 389 (2000). The Supreme Court summarized the standard of review as follows:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . .clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States" Under the "contrary to" clause, a federal habeas court may grant the writ it' the state court arrives at a conclusion opposite that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 1523.
"[A] federal habeas making the "unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable" Id. at 1521. The reviewing court should not inquire whether all reasonable jurists would agree that the state court's decision was reasonable or unreasonable. The reviewing court must be aware that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 1522 (emphasis in original). "[A] state court's application of federal law is unreasonable and a writ may issue only if reasonable jurists would find it so arbitrary, unsupported or offensive to existing precedent as to fall outside the realm of plausible credible outcomes." Barker v. Yukins, 199 F.3d 867, 872 (6th Cir. 1999), cert. denied, 120 S.Ct. 2658 (2000).
The federal court reviewing a habeas petition must apply the presumption of correctness to evidence-supported factual determinations made by a state court. West v. Seabold, 73 F.3d 81, 83 (6th Cir), cert. denied, 518 U.S. 1027, 116 S.Ct. 2569, 135 L.Ed 2d 1086 (1996); Lundy v. Campbell, 888 F.2d 467, 469 (6th Cir. 1989), cert. denied, 495 U.S. 950, 110 S.Ct. 2212, 109 L.Ed.2d 538 (1990). This presumption may only be overcome by the presentation of clear and convincing evidence by the Petitioner. 28 U.S.C. § 2254 (e)(1).
Trial Court Findings
Petitioner first claims that he was denied a fair trial because the trial court, acting as finder of fact, improperly used specialized knowledge to interpret the complainant's medical records without expert testimony. This Court disagrees.
Petitioner has submitted a transcribed copy of complainant's emergency room medical record report. The report states in pertinent part that: "There is some erythema and a linear abrasion on the right side of the neck. Both are consistent with the time of the assault. There is also a small, one to two cm superficial linear abrasion on the dorsal aspect of the left foot. It too appears to be consistent with the time of the assault. . . . Wet mount of vaginal discharge showed 0-1 nonmobile sperm per high power field. There was one mobile sperm noted." (Med. Report at 1), In her findings of fact, the trial judge stated that the medical records indicated that the complainant had "some linear abrasions" on her neck and a two-centimeter linear abrasion on her left foot, both of which were consistent with the time of the assault. (Tr. at 84).
The complainant testified that Petitioner grabbed her around the throat with his hands, held a knife to her throat, and threatened her during the assault. The complainant also testified that Petitioner and she struggled on the couch and wound up on the floor and that he later threw her down on the bed after pulling and pushing her to the bedroom. Thus, the complainant testified that there was physical contact between Petitioner and herself that could have accounted for the abrasions described in the medical report.
When a factfinder relies on evidence outside the record, the defendant is denied his constitutional right to confront all witnesses against him and to get all of the evidence on the record and subject it to impeachment and argument. People v. Ramsey. 385 Mich. 221. 224-25 (1971): Hughes v. Borg, 898 F.2d 695, 700 (9th Cir. 1990). However, there is no evidence in the record that the trial judge did such in the instant case. In fact, the trial judge merely restated the findings of the medical report, which was part of the record evidence in the instant case, and required no specialized knowledge to comprehend. Therefore, this Court finds that Petitioner's claim that his right to confrontation was violated by reliance on specialized knowledge or evidence outside the record has no merit.
Furthermore, "[s]ection 2254(d)(2) prohibits the grant of a writ of habeas corpus unless the adjudication of the claim resulted in a decision based on an unreasonable determination of the facts." Evans v. Rogerson, 77 F. Supp.2d 1014, 1020 (S.D. Iowa 1999). Moreover, under § 2254(e)(1), a factual determination made by a state court shall be presumed to he correct. This presumption may only be overcome by the production of clear and convincing evidence by the Petitioner.
In the present case the medical evidence indicated that, shortly after the time of the assault, the complainant had an abrasion and redness on her neck and an abrasion on her left foot, and both mobile and immobile sperm in her vaginal secretions. The complainant testified that during the assault Petitioner grabbed by the neck with his hands while in an agitated state and held a steak knife to her neck. The complainant also testified that Petitioner put his fingers and penis in her vagina, had sexual intercourse with her, and ejaculated.
Petitioner has failed to show that the trial judge made an unreasonable determination of the facts in reaching her verdict that Petitioner was guilty of two counts of criminal sexual conduct. On the contrary, the trial judge's findings were strongly supported by the record. Any claim by Petitioner that his convictions result from an unreasonable determination of the facts has no merit.
Ineffective Assistance of Counsel
Petitioner claims that trial counsel was ineffective for stipulating to the admission of complainant's medical records and making them the cornerstone of his case. This Court finds that this claim has no merit.
In order to establish ineffective assistance of counsel, Petitioner must show "that counsel's performance was deficient . . . [and] that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct 2052, 2064, 80 L.Ed.2d 674 (1984); accord O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). In determining whether counsel's performance was deficient,
[t]he court must . . . determine whether, in light of' all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. . . . At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.
Therefore, judicial scrutiny of counsel's performance must be "highly deferential." Id. at 689, 104 S.Ct. at 2065. One's defense is prejudiced only if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
A successful ineffective assistance of counsel claim requires proof that counsel's performance was deficient and that counsel's "errors deprived [Petitioner] of a fair trial." Precin v. United States, 23 F.3d 1215, 1218 (7th Cir. 1994). The court must assess the ineffective assistance claim in relation to the evidence of Petitioner's guilt. "[A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. . . . [A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. a: 695-96, 104 S.Ct. at 2069. A petitioner will be generally be unable demonstrate that any errors by counsel prejudiced his defense where "there is strong evidence of a petitioner's guilt and a lack of evidence to support his claim." Rust v, Zent, 17 F.3d 155, 161-62 (6th Cir. 1994).
This Court finds that it was not attorney error to stipulate to the admission of complainant's medical records and to argue that the slight nature of complainant's physical injuries was in contradiction to her testimony that a knife was held to her throat, that she was choked, and that she and Petitioner struggled and fell to the floor once. Petitioner has failed to identify the basis upon which counsel should have objected to the admission of the medical report. Clearly the medical report was relevant evidence.
If Petitioner believes that no foundation was established to support the "accuracy" or trustworthiness of the medical records, such "deficiency" could have been cured by the testimony of the medical records custodian. Furthermore, the records could have been admitted pursuant to Michigan Rules of Evidence 803(4) and 803(6). It is not attorney error to stipulate to the admission of evidence if the attorney does not believe that he or she has a basis for objecting to its admission. Therefore, stipulating to the admission of the report was not error, and Petitioner's ineffective assistance of counsel claim is denied.
Petitioner argues that, "[d]uring trial, rather than at least requiring the custodian of the records to testify, defense counsel stipulated to the admission of 3 pages of medical records from Detroit Receiving Hospital into evidence." (Pet. at 2).
Errors in the application of state law, particularly with regard to the admissibility of evidence, are usually not cognizable in a federal habeas proceeding, unless the admission or the exclusion of evidence constitutes a denial of fundamental fairness or a fundamental constitutional guarantee. Fuson v. Jago, 773 F.2d 55 (6th Cir. 1985), cert. denied sub nom. Sieter v, Fuson 478 U.S. 1020, 106 S.Ct. 3334, 92 L.Ed.2d 739 (1986); Walker v. Engle, 703 F.2d 959 (6th Cir. 1983).
Inconsistent Verdicts
Petitioner contends that his convictions must be reversed because the trial judge's findings of fact and verdicts are inconsistent. This Court disagrees.
The only inconsistency between the trial court's findings of fact and the verdicts rendered is that the trial judge found complainant's testimony to be wholly credibleand Petitioner's testimony to be "wholly incredible, self serving, and not at all worthy of belief," yet acquitted Petitioner of felonious assault, despite complainant's testimony that Petitioner threatened her with a steak knife that he held to her throat. Petitioner argues that, if the trial judge really meant what she said about the relative credibility of' complainant's and Petitioner's testimonies, the judge should have convicted him of felonious assault, as well as home invasion and first degree criminal sexual conduct. However, the subsidiary conclusion that the judge's decision not to convict Petitioner of felonious assault entitles him to relief from his other convictions is mistaken.
For a conviction to be lawful, the prosecution is required to produce sufficient evidence for a reasonable fact finder to find proof beyond a reasonable doubt of every element of the crimes charged. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Comer, 93 F.3d 1271, 1275 (6th Cir. 1996). There is no federal constitutional requirement that, in a criminal case charging more than one offense, every statement of the trial judge must be consistent with each of the verdicts rendered. Harris v. Rivera, 454 U.S. 339, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981).
Petitioner was convicted of first-degree criminal sexual conduct and first-degree home invasion, The home invasion statute, Michigan Compiled Laws § 750.110a, provides as follows:
A person who breaks and enters a dwelling with intent to commit a felony, larceny, or assault in the dwelling, or a person who enters a dwelling without permission with intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a felony, larceny, or assault is guilty of home invasion in the first degree if at any time while the person is entering, present in, or exiting the dwelling either of the following circumstances exists:
(a) The person is armed with a dangerous weapon.
(b) Another person is lawfully present in the dwelling.
MICH.COMP.LAWS § 750.110a(2).
Sufficient evidence was produced to prove beyond a reasonable doubt that Petitioner broke into complainant's home by kicking open a door, that the home was occupied and the occupant was actually present, and that after Petitioner did so, he committed the felony of criminal sexual conduct therein.
The elements of' first-degree criminal sexual conduct are (1) engaging in non-consensual sexual penetration of another human being, (2) under circumstances involving the commission of any other felony, Michigan Compiled Laws § 750.520b(1)(c), or (3) where the actor causes personal injury to the victim and force or coercion is used to accomplish the sexual penetration, Michigan Compiled Laws § 750.520b(1)(f). Sufficient evidence was produced to find Petitioner guilty beyond a reasonable doubt of both engaging in non-consensual sexual penetration of complainant under circumstances involving commission of the other felony of home invasion and through use of force and coercion while causing injury to the victim.
Second, Petitioner is not entitled to relief from his first degree criminal sexual conduct conviction and/or his home invasion conviction simply because the trial judge could have also convicted him of felonious assault, but did not. The fact that the trial judge acquitted Petitioner of felonious assault does not indicate in any way that the trial judge's guilty verdicts were arbitrary, capricious, or not supported by sufficient evidence,
Petitioner's acquittal of felonious assault merely demonstrates that the trial judge found that there was a reasonable doubt whether Petitioner, in fact, had used a knife to threaten and/or assault complainant. Petitioner's claim that the inconsistency between the trial judge's statements that she found Petitioner's testimony wholly incredible and complainant's testimony wholly credible, yet acquitted Petitioner of felonious assault despite complainant's testimony that Petitioner assaulted her with a knife does not entitle Petitioner to habeas relief from his convictions, Therefore, this claim is denied.
Excited Utterance
Petitioner claims that he was denied a fair trial by the trial court's admission, as an excited utterance, complainant's statement to her mother that Petitioner had just raped her. This Court disagrees.
Errors in the application of state law, particularly with regard to the admissibility of evidence, are usually not cognizable in a federal habeas proceeding, unless the admission or the exclusion of evidence constitutes a denial of fundamental fairness or a fundamental constitutional guarantee. Pusan v. Jago, 773 F.2d 55 (6th Cir. 1985), cert. denied sub nom. Setter v. Pusan 478 U.S. 1020, 106 S.Ct. 3334, 92 L.Ed.2d 739 (1986); Walker v. Engle, 703 F.2d 959 (6th Cir. 1983).
Petitioner claims that admission of this hearsay declaration by complainant violated his right to confrontation. A defendant in a criminal trial has the right to confront the witnesses against him. U.S. CONST. amend. VI. A primary interest secured by the Confrontation Clause is the right of cross-examination. Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).
The Sixth Amendment protections are not so broad, however, as to exclude the admission of certain hearsay statements against an accused, despite his inability to confront the declarant at trial. Certain types of hearsay are admissible even if the declarant is unavailable and the statement bears adequate indicia of reliability. Latine v. Mann, 25 F.3d 1162 (2d Cir. 1994), cert. denied, 514 U.S. 1006, 115 S.Ct. 1319, 131 L.Ed.2d 200 (1995). Hearsay evidence from an unavailable declarant is admissible at trial if the statement falls within a firmly rooted exception to the hearsay rule or is supported by particularized guarantees of trustworthiness. United States v. Curro, 4 F.3d 436 (6th Cir. 1993). An out of court statement is presumptively reliable if it falls within a firmly rooted exception to the hearsay rule. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). Evidence admitted under such a firmly rooted exception to the hearsay rule is presumed to be so trustworthy that adversarial testing would add little to its reliability. Idaho v. Wright, 4497 U.S. 805, 821, 110 S.Ct. 3139, 3149, 111 L.Ed.2d 638 (1990).
The trial court admitted complainant's out-of-court statement to her mother that Petitioner had raped her under the excited utterance exception to the hearsay rule. Federal Rule of Evidence 803(2) and its sister counterpart, Michigan Rule of Evidence 803 (2), recognize an excited utterance as an exception to the hearsay rule. The excited utterance exception is a firmly rooted exception to the hear say rule. Webb v. Lane, 922 F.2d 390, 393 (7th Cir. 1991); People of the Territory of Guam v. Ignacio, 10 F.3d 608, 615 (9th Cir. 1993); United States v. Jackson, 88 F.3d 845, 847 (10th Cir. 1996). Three elements are necessary for snout of court statement to qualify as an excited utterance:
(1) there must be an event startling enough to cause nervous excitement;
(2) the statement must be made before there is time to contrive or misrepresent;
(3) the statement must be made while the declarant is under the stress of the excitement.Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1057 (6th Cir. 1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 980, 79 L.Ed.2d 217 (1984).
This Court concludes from its review of the evidence that the trial court did not err in finding that the statement made by complainant to her mother that Petitioner raped her, made very shortly after the assault was admissible as an excited utterance. Complainant testified that Petitioner had broken into her home, grabbed her by the throat, threatened to kill her if she did not marry him and/or have sex with him, and forced non-consensual sexual penetration upon her while her two-year-old child was awake in the same bed. This Court concludes that complainant's testimony provided evidence that she had been subjected to an event startling enough to cause nervous excitement.
Complainant and her mother both testified as to the time that complainant came to her mother's house and made the statement. Complainant testified that she hurriedly walked to her mother's house down the street immediately after Petitioner left her house, so hurriedly that she forgot to put on shoes in December. Complainant's mother testified that her daughter (complainant) and her two-year-old granddaughter were both crying when they came inside her house. The statement was made shortly after the time of the sexual assault, and, in this Court's opinion, was made before there was time "to contrive or misrepresent."
The foregoing constitutes substantial evidence to conclude that the statement was made while the declarant was still under the stress of the excitement. The trial court's admission under the excited utterance exception of complainant's out-or-court declaration to her mother that Petitioner raped her was a reasonable application of state evidentiary law and the federal constitutional law of confrontation.
Because the excited utterance exception is recognized as a firmly rooted exception to the hearsay rule, the admission of this out-or-court statement did not violate Petitioners right of confrontation. Therefore, this claim is denied. Waiver of Jury Trial
Additionally, this Court notes that complainant was available as a witness and defense counsel did try to challenge her credibility, although he did not question about her out-of-court statement to her mother.
Petitioner claims that waiver of his right to a jury trial was invalid because it was made before defense counsel examined the relevant discovery materials and because Petitioner was not informed on the record that a Michigan jury could only convict lain, upon a unanimous finding that he was guilty and that he had a right to participate in the selection of the jury. This Court disagrees.
"Trial by jury is fundamental to American criminal jurisprudence" United States v. Martin, 704 F.2d 267, 271 (6th Cir. 1983) (citing Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444. 1447, 20 L.Ed.2d 491 (1968)). The right of every defendant to trial by jury in criminal prosecutions is guaranteed by the Sixth Amendment. Nevertheless, the right to a jury trial may be constitutionally waived by a criminal defendant where the waiver is voluntary, knowing, and intelligent. Adams v. United States ex rel. McCann, 317 U.S. 269, 280, 63 S.Ct. 236, 87 L.Ed.2d 268 (1942); Martin, 704 F.2d at 271. For a criminal defendant's waiver to be voluntary, knowing, and intelligent, he must have some understanding of the nature of the jury trial right. However, a defendant need not have a technical knowledge of the jury trial right for his waiver to be effective. United States v. Sammons, 918 F.2d 592, 596 (6th Cir. 1990). cert. denied, 510 U.S. 841, 114 S.Ct. 126, 126 L.Ed.2d 90 (1993).
Further, in Martin, the court stated that an on-the-record colloquy with the defendant prior to acceptance of his waiver is not constitutionally required and it expressly declined to adopt mandatory supervisory rules requiring trial courts to personally interrogate defendants prior to accepting a jury trial waiver. Martin, 704 F.2d at 275. To obtain habeas relief, Petitioner has the burden of showing that his waiver was not personally, intelligently, voluntarily, and knowingly made. Adams, 317 U.S. at 281, 63 S.Ct. at 242. In Adams, the Supreme Court stated that:
[A] determination of guilt by a court after waiver of jury trial could not be set aside and anew trial ordered except upon a plain showing that such waiver was not freely and intelligently made. If the result of an adjudicatory process is not to be set at naught, it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation, but as demonstrable reality. Simply because a result that was insistently invited, namely, a verdict by a court without a jury, disappointed the hopes of the accused, ought not to be sufficient for rejecting it.Id.
On March 17, 1995, Petitioner, represented by attorney Robert Slameka, appeared before Honorable Karen M. Fort Hood in the Recorder's Court for the City of Detroit. Attorney Slameka was Petitioner's third attorney. Attorney Slameka informed the court that Petitioner had indicated to him that he wanted to have a waiver trial before the court. The following colloquy then took place:
THE COURT: All right. Mr. Baran, you understand that you have a constitutional right to have a trial by jury?
DEFENDANT BARAN: Yes.
THE COURT: Do you understand that means you have a right to have 12 people from the community hear the evidence and then have them decide whether you're guilty or innocent?
DEFENDANT BARAN: Yes, ma'am.
THE COURT: Do you understand if you give up that right, a judge will decide whether you're guilty or innocent instead of a jury?
DEFENDANT BARAN: Yes.
THE COURT: Are you making this decision voluntarily, of your own free will, without any threats or promises?
DEFENDANT BARAN: Yes, I am.
THE COURT: Is this your signature on this Waiver of Trial by Jury from here in my hand?
DEFENDANT BARAN: Yes, it is.
THE COURT: Very good. The court will find the waiver of jury trial is made knowingly and voluntarily and we will proceed to the final conference and we will schedule this matter for a half-day waiver trial, eight witnesses for the People, three for the defense. Trial will commence on April 27th at 9:00 a.m. before this court.
MR. SLAMEKA: Thank you, Your Honor.
(3/17/95 Hr'g Tr. at 3-4).
The question of whether Petitioner and trial counsel had discussed the matter of Petitioner's right to a jury trial was addressed at Petitioner's sentencing hearing, when the following colloquy took place:
DEFENDANT BARAN: I don't think it was — I was really tried fairly. My attorney my children got for me has never seen me once. Never — he came and gave me the discovery and that was it. He never came and talked about the case, not once. My children talked to him on the phone. When I asked him during — when I was in the bullpen for the trial, I asked him, I said how come you didn't see me? He said, well, how come nobody came and seen [sic] me, if you know what I'm talking about. I had another $2,500.00 that was owed to him. He's never even talked to me about this case. He just kept saying — I asked for a jury trial twice.
MR. SLAMEKA: I think that we should be honest.
DEFENDANT BARAN: Yes, we are being honest.
MR. SLAMEKA: We brought him overhere especially for a pretrial and your clerk was nice enough, with the consideration of the officers, to place me in your jury room. We sat there —
DEFENDANT BARAN: Right.
MR. SLAMEKA: Excuse me.
THE COURT: Let him talk.
MR. SLAMEKA: We sat there and talked about this case exclusively and extensively. I did not have the benefit of the discovery at that time. if you remember, I was the third lawyer. I then got all of the discovery and spoke to him again end showed him here's all the discovery. Do you know what his response is to me? He said I already know all this stuff. Notwithstanding, I gave him all of the discovery. I talked to him about a bench trial versus a jury trial. I talked to his family about a bench trial versus a jury trial, He's been around the block once. I'm not accusing him of anything else other than being around the block once. He's a knowledgeable man. He knows whether he wants a bench or a jury trial. I can't twist his arm. We collectively decided to have a bench trial. I didn't twist his hand, I couldn't He's a bigger man that I am. I would never do that to anybody. So for him to say, if you will, that I coerced or convinced him to have a bench trial is inaccurate. For him to say I spoke to him only once is totally inaccurate.
THE COURT: Well, let me just say tint's the purpose of the appellate court and if Mr. — you will have right to appeal. if there's nothing else, I'm getting ready to sentence Mr. Daran.
DEFENDANT BARAN: Um —
THE COURT: Is there anything else prior to being sentenced, sir?
DEFENDANT BARAN: Just that I can't say what I have written to say.
THE COURT: All right. Very good.
DEFENDANT BARAN: Um, I still maintain my innocence.
(Sentencing Tr. at 16-18).
The court then sentenced Petitioner to concurrent sentences of fifteen to twenty-five years for first degree criminal sexual conduct and five to twenty years for home invasion.
The Michigan Court of Appeals denied Petitioner's claim that his waiver of his right to a jury trial was involuntary, finding that Petitioner's waiver of his right to a jury trial was voluntary and valid. The Michigan Court of Appeals found that (1) Petitioner met with his attorney before waiving his right to a jury trial, (2) Petitioner's suggestion that his waiver was not valid because trial counsel had not yet seen the discovery was unpersuasive, and (3) the failure of the trial court to inform him that a jury verdict would have to be unanimous did not render his waiver unknowing and thereby involuntary, citing the Michigan case of People v. James (after remand), 192 Mich. App. 568, 570-71 (1992). for this last points
This Court cannot conclude that the Michigan Court of Appeals's decision constituted an unreasonable application of clearly established federal law. A review of the record demonstrates that Petitioner waived his right to a jury trial both orally in open court and in writing. The fact that Petitioner executed a written waiver, while not dispostive, is probative of' the voluntariness of the waiver. United States v. Robinson, 8 F.3d 418, 421-22 (7th Cir. 1993). Petitioner stated in open court that his waiver was made voluntarily of his own free will and was not induced by threats or promises. Petitioner has not alleged, or produced evidence showing, that his waiver was induced by coercion, or by threats or promises. Thus, it is undisputed that Petitioner's waiver was voluntary.
Furthermore, the record before the Michigan Court of Appeals included evidence that Petitioner had consulted with his attorney before waiving his right to a jury trial and that this consultation had included a discussion of' the merits of this waiver.
Review of the record also shows that the trial judge informed Petitioner of his constitutional right to a jury trial, that a trial by jury would involve having twelve members of the community hear the evidence and decide whether he was guilty or innocent, and that, if he waived this right, a judge would decide whether he was guilty or innocent. "[W]hether there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case" Adams, 317 US, at 278, 63 S.Ct. at 241. This Court concludes from its review of the record that Petitioner's waiver of his jury trial right was valid.
It is undisputed that Petitioner consulted with his attorney before waiving this right. It is also undisputed that Petitioner was informed by the trial judge that he had a constitutional right to a jury trial, that the jury would be composed of twelve community members who would decide his guilt or innocence, and that, if he waived his right to a jury trial, a judge would decide his guilt or innocence. It is also undisputed that petitioner asserted that his waiver was not the product of threats or promises and that he had signed a Waiver of Trial by Jury form before waiving this right before the trial judge.
Based on the foregoing review of the record, this Court concludes that Petitioner's waiver of his right to a jury trial was voluntary, knowing, and intelligent under the standard set forth by the United States Supreme Court. The Michigan Court of Appeals decision denying Petitioner's challenge to the voluntariness of his jury trial waiver was a reasonable application of clearly established federal law as determined by the United States Supreme Court. Therefore, petitioner's challenge to his jury trial waiver is denied.
Conclusion
Petitioner has not shown that his convictions resulted from an adjudication that was contrary to, or involved an unreasonable application of, clearly established federal law as established by the Supreme Court of the United States, or resulted from a decision based on an unreasonable determination of the facts in light of the evidence. Accordingly, Petitioner's habeas corpus petition shall be denied.