Opinion
Case No. 00-CV-10049-BC
October 12, 2001
OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS
Petitioner, Jerome Dowe, a state prisoner currently confined at the St. Louis Correctional Facility in St. Louis, Michigan, has filed through counsel a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and 2241, alleging that he is incarcerated in violation of his constitutional rights. Petitioner challenges his 1996 convictions for first-degree murder and possession of a firearm in the commission of a felony, contending that there was insufficient evidence upon which to base the convictions. The Court will deny the petition because the conviction did not abridge any of his rights established under the Constitution or laws of the United States.
I.
In 1995, petitioner was charged with first-degree felony murder, first-degree premeditated murder, and possession of a firearm in the commission of a felony (felony-firearm). On May 28, 1996, petitioner was convicted by a jury of second-degree murder, Mich. Comp. Laws § 750.317, first-degree premeditated murder, Mich. Comp. Laws § 750.316(1)(a) and felony-firearm, Mich. Comp. Laws § 750.226b. The convictions arose from the fatal shooting of petitioner's former employer, Douglas Farquhar, at his place of business (Trailer Services) in Detroit, Michigan.
The disputed issue at trial was whether the petitioner was in fact involved in the homicide at all. He claimed to be at home in bed at the time of the shooting. The prosecution offered testimony from two witnesses who arguably placed petitioner at the scene near the time of the shooting. The petitioner disputed the substance and accuracy of the testimony of these two witnesses.
The trial court sentenced petitioner to a term of twenty-five to fifty years in prison for the second-degree murder conviction. The trial court then vacated that sentence and sentenced petitioner to life in prison for first-degree premeditated murder. Petitioner was also sentenced to a consecutive term of two years for the felony-firearm conviction.
The Michigan Court of Appeals affirmed petitioner's first-degree murder and felony-firearm convictions and vacated his second-degree murder conviction on double jeopardy grounds. See People v. Dowe, No. 197258 (Mich.Ct.App. May 19, 1998). The Michigan Supreme Court denied petitioner's subsequent application for leave to appeal because it was "not persuaded that the question presented should be reviewed . . . ." People v. Dowe, No. 112443 (Mich.Sup.Ct. Jan. 26, 1999).
On January 25, 2000, petitioner filed the pending habeas corpus petition through counsel. He alleges that the evidence was insufficient to convict him of first-degree premeditated murder. Respondent urges the Court to dismiss the habeas petition for lack of merit.
II.
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, govern this case because petitioner filed this habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:
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) (1996).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court undertook a detailed analysis of the correct standard of review under the AEDPA. According to the Supreme Court:
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 the by 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 if the state court arrives at a conclusion opposite to 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 principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 412-13 (O'Connor, J., delivering the opinion of the Court on this issue).
In evaluating a state court decision under the "unreasonable application" clause, the Supreme Court further stated that a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. "Under § 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because the 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.
The Supreme Court also clarified that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States," refers only to "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id. at 412. In determining what constitutes clearly established federal law, therefore, a federal habeas court is restricted to pertinent United States Supreme Court precedent.
Lastly, § 2254(e)(1) requires that this Court presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
III.
The only question before this Court is whether the evidence presented at trial was constitutionally sufficient to sustain petitioner's first-degree murder conviction. Petitioner alleges that there was no physical evidence linking him to the crime and no confession. He contends that the identification of him by two witnesses was inadequate and did not justify the conviction, and that the prosecution piled one unjustified inference on another to achieve a conviction.
The Supreme Court has held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). After Winship, the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is
whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citation and footnote omitted) (emphasis in original). Moreover, federal habeas courts must give deferential review to state court decisions on sufficiency of the evidence claims. Gomez v. Acevedo, 106 F.3d 192, 199 (7th Cir. 1997), vacated on other grounds, 522 U.S. 801 (1997).
The Jackson "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n. 16. Jurors in Michigan "can convict [a defendant] of murder only when they are convinced beyond a reasonable doubt that (1) the defendant intended (actually or impliedly) to kill and (2) circumstances of justification, excuse or mitigation do not exist." People v. Morrin, 31 Mich. App. 301, 323, 187 N.W.2d 434, 445 (1971) (emphasis in original). First-degree premeditated murder requires a finding that the defendant committed a homicide with premeditation and deliberation. Id. at 328, 187 N.W.2d at 448-49. "To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem." Id. at 329, 187 N.W.2d at 449. "While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a `second look.'" Id. at 330, 187 N.W.2d at 449.
One who procures, counsels, aids, or abets the commission of an offense may be convicted and punished as if he directly committed the offense. Mich. Comp. Laws § 767.39. To establish aiding and abetting, the prosecutor must show that (1) the defendant or another person committed the crime charged, (2) the defendant encouraged or assisted the principal in committing the crime, and (3) the defendant intended the commission of the crime or knew that the principal intended its commission at the time he gave aid and encouragement . People v. Turner, 213 Mich. App. 558, 568, 540 N.W.2d 728, 733-34 (1995). "An aider and abettor's state of mind may be inferred from all the facts and circumstances." Id. at 567, 540 N.W.2d at 734.
There was evidence presented at trial that petitioner was admitted to a hospital the day before the shooting and released at 2:00 a.m. on the day of the shooting. He informed the police that he spent the rest of the day at home in bed. See Tr. V at 53, 66.
The Michigan Court of Appeals summarized its view of the testimony in a manner similar to that advocated by the state in the case now before the Court.
Two witnesses, Johnny Fox and Anthony Lee, testified that they saw [petitioner] and another man sitting in either a gray or silver Pontiac Grand Prix parked near the victim's business, Trailer Services. The parties stipulated that [petitioner] owned a "bright silver metallic" Grand Prix at the time. Fox testified that he saw [petitioner] and the driver exit Trailer Services and speed away minutes before Fox discovered the victim inside, suffering from three gunshot wounds: one to his head, one to his chest, and a near-contact gunshot wound to his right hand. The medical examiner testified that it was possible, although not probable, that the bullet that struck the victim's chest first passed through his hand. At the time of the shooting, except for [petitioner] and the driver of the Grand Prix, the victim was the only person known to have been in the building. Moreover, [petitioner] had recently been fired from Trailer Services, and he told a Trailer Services manager immediately thereafter that "[Farquhar's] day is coming."Dowe, Mich. Ct. App. No. 197258, at 2.
There also was evidence that petitioner filed for unemployment benefits after being fired. A few weeks before the murder, Douglas Farquhar informed the Michigan Employment Security Commission that petitioner was not laid off as petitioner indicated, but that he was terminated for excessive absenteeism. Tr. II at 162-70.
Petitioner points out that he was fired two months before the shooting, whereas another former employee of Trailer Services (Dan Brennan) argued with Douglas Farquhar on the day of the shooting and was ushered out of the building by Farquhar. See Tr. II at 145-57. Brennan, however, did not appear to be upset when he was ushered out of the building; he left without an argument. See id. at 146-47. Moreover, Brennan was not identified as the person who exited Trailer Services shortly before Farquhar was discovered with three gunshot wounds.
The briefs submitted by each of the parties in this Court demonstrate a fundamental disagreement as to the nature of the testimony of two eye witnesses, Johnny Fox and Anthony Lee. The state's brief states quite clearly that at trial the two eyewitnesses testified that they saw the defendant parked in a car in front of the scene of the crime, and also that he remained there except for a short time when he left to get a sandwich.
Petitioner's brief presents a strikingly different account of the witnesses' testimony. According to petitioner, one witness never identified him as one of the men in the suspicious gray car, and the other witness' identification was inconclusive at best. After a close examination of the transcript of the entire testimony of both witnesses, the Court concludes that each side has either misrepresented or misinterpreted testimony to some degree.
The state's assertion that two eyewitnesses testified to seeing petitioner sitting in the suspicious gray car is not fully supported by the record. According to testimony, Johnny Fox had a close encounter with petitioner at a local store just hours before the crime. Tr. III at 64. At that time he noticed that petitioner had a "money-colored" outfit on. Tr. III at 68. On cross-examination Fox admitted that the factor upon which he based his earlier-stated belief — that petitioner was the man in the silver car— was the fact that petitioner and the assailant in the car had on similar color shirts. Tr. III at 130. Nowhere on the record does Fox make a claim of a direct identification except at the police lineup, where there is a dispute on whether or not he was identifying petitioner as the man in the store, or as the man he saw in the grey car at the scene of the crime. Tr. VI at 118-119. It is thus inaccurate and misleading for the state to claim in its brief that two eyewitnesses identified petitioner as man in the suspicious gray car at the scene of the crime, especially in light of the testimony of the witnesses viewed in its entirety. It appears that the state likewise advanced this claim in the Michigan Court of Appeals, and that it was accepted by that court.
However, petitioner also overstates his case by implying that neither eyewitness gave a reliable identification of him as being the man in the suspicious gray car at the scene of the crime.
Anthony Lee not only testified that he was able to see petitioner in the car, Tr. IV at 14, he was also able to pick him out of a photograph show-up, Tr. IV at 24, and a police lineup. Tr. IV at 30. Although Lee's identification at the lineup was not definitive, Tr. IV at 31, at the very least it was fairly reliable, convincing, and a rational trier of fact could rely on it in coming to a decision about petitioner's guilt.
Likewise, petitioner points out that Johnny Fox did not identify him in a photo show-up, and at the lineup, all he could say was that petitioner looked like the person whom he saw in the store shortly before the shooting. See Tr. III at 103, 106-07. Although this is true, Fox testified on direct examination that he later concluded that the man he saw in the store appeared to be the same man that he observed sitting in a car outside Trailer Services and the same man that later exited Trailer Services in a hurry and sped off, and he identified petitioner at trial as that person, see id. at 61-86, 98-111, although the force of that testimony was undercut by the cross-examination.
Petitioner also notes that Anthony Lee identified petitioner at the line-up as "the closest to the person that [he] saw in the car" near Trailer Services. See Tr. IV at 40. Lee, however, identified petitioner before trial in a photo array and at trial as the man he saw in the car by Trailer Services. See id. at 23-32. The jury could have construed his comment at the lineup to mean that petitioner was the man he saw in the car.
The court of appeals concluded that the evidence was sufficient for a rational trier of fact to find petitioner guilty of first-degree murder either as the principal or as an aider and abettor. Although the court of appeals did not cite the Supreme Court's decision in Jackson, it used the same standard. The court's conclusion was an objectively reasonable application of Jackson because: (1) the prosecutor established a motive for the killing; (2) petitioner stated to a co-worker after being fired that Farquhar's time was coming; and (3) the weapon used and the nature of the injuries suggested an intent to kill. There also was circumstantial evidence from which the jury could have reasonably inferred that the person the two witnesses observed in the silver car outside Farquhar's business was the petitioner. Thus, the record contains circumstantial evidence that petitioner waited until Douglas Farquhar was alone in his business and then shot Farquhar or aided and abetted the unidentified driver of the car in shooting Farquhar.
IV.
The nature and quality of the briefing in this case causes the Court great concern that the parties would abandon their fidelity to the record in the name of advocacy. The state's need to exaggerate and misrepresent the record causes the Court to doubt the state's confidence in the strength of the conviction it defends in this Court. As for petitioner and his attorney, overstating his case does nothing to advance the cause of justice.
This Court has independently reviewed the record, however, and cannot find that the state court's determination of the facts was "unreasonable." The Court finds that the state court's adjudication of petitioner's claim on the merits was a reasonable application of clearly established federal law as established by the Supreme Court.
Accordingly, it is ORDERED that the petition for writ of habeas corpus is DENIED.