Opinion
Civil No. 99-CV-71547-DT.
January 6, 2000.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Floyd E. Elliott ("petitioner"), presently confined at the Carson City Corrrectional Facility in Carson City, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his conviction on one count of second degree murder, M.C.L.A. 750.317; M.S.A. 28.549. For the reasons stated below, petitioner's application for writ of habeas corpus is DENIED.
I. BACKGROUND
Petitioner was charged with co-defendant Leroy Boyer with two counts of breaking and entering an occupied dwelling and felony murder, arising from the assault of Helen Schaefer on April 26, 1992 in Kinde, Michigan. Following a jury trial, petitioner was convicted of the two breaking and entering counts and the lesser offense of second degree murder. Petitioner challenges only the second degree murder conviction in his habeas petition.
The evidence at trial established that the victim was an eighty eight (88) year old woman who was living alone at the time of the assault. Two witnesses, Carol Roberts Damrow, a neighbor who came by the victim's house every day to take care of her, and her daughter, Ann Katherine Borthwick, testified that prior to the assault, the victim was a healthy woman who had no difficulties eating, chewing, or swallowing. Borthwick indicated that her mother never had any problems falling down and was very lively for her age. When Damrow saw the victim on April 25, 1992, she appeared to be in good condition.
Petitioner and Boyer broke into the victim's house in the early morning hours of April 26, 1992. According to Boyer, petitioner discovered the victim asleep in her bedroom. When she woke up and asked him what he was doing there, petitioner told her to shut up. Boyer immediately fled down the stairs but could hear petitioner hitting the victim. Boyer did not see petitioner hit the victim, however back at foyer's house, petitioner told foyer that "he beat the shit out of her".
When the victim was discovered by Damrow the next morning, she was taken to Huron Memorial Hospital, where the treating physician and nurse noted that the victim had multiple bruises on her face, her eyes were swollen shut, and she had bruising on her neck. The victim also had a fracture to the left mandible or jaw. After initial treatment, the victim was referred to an a maxillofacial surgeon in Saginaw, Dr. Theodore Brian Hennig.
Dr. Hennig treated the victim at St. Luke's Hospital in Saginaw, Michigan on April 26, 1992. Dr. Hennig indicated that the victim's jaw had been broken in two places. Dr. Hennig wired the victim's jaw shut in order to immobilize the jaw to allow the bones to heal. Dr. Hennig indicated that because of the victim's age, she needed to have her jaw wired shut for about six weeks, which would be about twice the time that a much younger person would need to have their jaw wired shut for the bones to heal. Because the victim had her jaw wired shut, she would be unable to eat solid food and would have to eat a liquid diet. However, Dr. Hennig indicated that he had never seen people with wired jaws have any swallowing problems.
The victim remained at St. Luke's Hospital for two and a half weeks, after which she was transferred to the Faith Medical Center Nursing Home. Dr. Hennig indicated that his main concern during his treatment of the victim involved her ability to obtain nourishment due to her jaw being wired shut; however, some of those concerns were allayed when he was informed that the victim was being fed with a nasal gastric feeding tube to the stomach.
When the victim's jaw was unwired on June 15, 1992, the fractures appeared to have healed very well to Dr. Hennig and her jaw seemed to be functioning well.
Dr. Tac Hong Chung was the victim's treating physician at the Faith Medical Center Nursing Home and later at the River District Hospital. Dr. Chung first saw the victim at the Faith Medical Center Nursing Home on May 27, 1992, at which time she had several bruises and her jaw had been wired shut. On May 27, 1992, the victim was unable to move her jaw and was unable to eat as a result. The victim was being fed through a nasal gastric tube to the stomach. However, the victim pulled the tube out on at least one occasion. Nurses tried to feed her a liquid diet orally, which Dr. Chung indicated was successful to a degree.
On June 28, 1992, the victim was admitted to the River District Hospital because she had pneumonia. According to Dr. Chung, the victim was confused, disoriented, and cachetic, or malnourished and emaciated. Prior to her admission to the hospital, the victim had poor oral intake and also had difficulty breathing. Dr. Chung felt that the victim very likely had aspiration pneumonia, which occurs when a patient's stomach contents are aspirated into the lungs. Dr. Chung admitted that one could not directly see aspiration pneumonia from clinical x-rays but could only speculate as to this condition after seeing the x-rays and reviewing the other clinical information. The victim, however, had difficulty breathing and swallowing at the time and was coughing up a lot of bronchial secretions. The victim was having difficulty swallowing the secretions from her stomach and had a choking spell. Dr. Chung was able to observe her choking on these secretions by watching the victim's neck.
Dr. Chung last saw the victim on the morning of July 5, 1992. At the time of his last examination, the victim actually appeared to be improving. Later that morning, however, a nurse from the hospital contacted Dr. Chung and informed him that the victim had developed a sudden coughing spell with a large amount of liquid, had vomited, and died.
Subsequent to the victim's death, Dr. Chung prepared a death certificate. Dr. Chung listed the immediate cause of death as brain death. The other causes of death were asphyxia, aspiration pneumonia, dysphagia (difficulty swallowing), and bulbar disorder (a neurological disorder related to the inability to swallow). Dr. Chung said that it was possible that the dysphagia could have been caused by the jaw problem. Dr. Chung also indicated that it was possible that the aspiration pneumonia was also related to the fractured mandible. Dr. Chung indicated that the brain death came from asphyxia, which in turn came from the victim choking. Dr. Chung said that the asphyxia could have been the result of vomiting or choking or other secretions. Dr. Chung concluded that the jaw problem "could have" resulted in the victim's death.
On cross-examination, Dr. Chung admitted that it was possible that the victim could have choked even without the jaw trauma. Although state law requires a doctor to refer any patient who the doctor suspects may have died from an assault to the medical examiner, Dr. Chung never referred the victim to the medical examiner, thus no autopsy was ever performed. Dr. Chung further acknowledged that he did not make any references to a broken jaw on the victim's death certificate even though the law required him to list any injury which caused death. Dr. Chung lastly acknowledged that through her course of treatment, he had been concerned that the victim might not have been receiving adequate nourishment.
The defense called a forensic pathologist, Dr. Kanu Virani to testify. Dr. Virani indicated that neither asphyxia or aspiration pneumonia can be diagnosed without an autopsy. Dr. Virani further indicated that without an autopsy, one cannot say that the victim's death was the result of a complication from the broken jaw.
The Michigan Court of Appeals affirmed petitioner's conviction, indicating that the question of the proximate cause of the victim's death was properly left to the jury. People v. Elliot, 176749 (Mich.Ct.App. March 21, 1997); lv. den. 456 Mich. 952 (1998). Petitioner now seeks habeas relief from this court on the following ground:
I. Was the evidence legally insufficient to support a causal relationship between the assault and the death of the victim?
II. STANDARD OF REVIEW
28 U.S.C. § 2254 (d) provides:
(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 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).
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a writ of habeas corpus may issue on the ground that a state court decision was an unreasonable application of clearly established Federal law if the unreasonableness of the state court's application of clearly established precedent is not debatable among reasonable jurists, and the unreasonableness of the application will not be debatable if it is so offensive to the precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes. Tucker v. Prelesnik, 181 F.3d 747, 753 (6th Cir. 1999).
III. DISCUSSION
I. There was sufficient evidence presented for a rational trier of fact to determine that a causal connection existed between the assault upon the victim and the victim's death.
Petitioner contends that the evidence presented at trial was insufficient to establish a causal connection between his assault upon the victim, in which her jaw was broken, and her death.
A. Standard of Review
A writ of habeas corpus may be granted if the court concludes that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). In the aftermath of the passage of the AEDPA, some courts have indicated that the question of whether the evidence was presented was sufficient to support the conviction is no longer reviewed de novo. The question instead is whether the state appellate court's conclusion that sufficient evidence was presented amounted to an unreasonable application of the Jackson v. Virginia standard to the facts of the case. Gomez v. Acevedo, 106 F.3d 192, 200 (7th Cir. 1997); vacated on other grds 118 S.Ct. 37 (1997); Brazzell v. Smith, 1999 WL 1204795, *6 (6th Cir. December 7, 1999). But cf. Warren v. Smith, 161 F.3d 358, 360-62 (6th Cir. 1998) (analyzing a sufficiency-of-the-evidence claim much like federal courts did before the AEDPA was enacted).
2. Michigan law on causation
To warrant a conviction of homicide, death must be the natural and probable consequence of the unlawful act and not the result of an independent intervening cause in which the accused did not participate and which he could not foresee. People v. Clark, 171 Mich. App. 656, 659, 431 N.W.2d 88 (1988). Causation in criminal cases is a question of fact for the jury. Id. The prosecution does not need to prove that the defendant's conduct was "the" proximate cause of death, but only "a" proximate cause of death. People v. Tims, 449 Mich. 83, 95-96; 534 N.W.2d 675 (1995). A decedent's intervening act will break an established chain of causation only if it constitutes the sole cause of death. People v. Bailey, 451 Mich. 657, 677; 549 N.W.2d 325 (1996). The prosecution can prove the element of proximate cause beyond a reasonable doubt where nonfatal wounds "cause death indirectly through a chain of natural effects and causes unchanged by human action". People v. Thomas, 85 Mich. App. 618, 627; 270 N.W.2d 665 (1978).
The trial court gave the jury an instruction on causation which accurately reflected Michigan law on the issue of causation:
There may be more than one cause of death. It is not enough that the defendant's act made it possible for the death to occur. In order to find that the death of Helen Schaefer was caused by the defendant, you must find beyond a reasonable doubt that the death was the natural or necessary result of the defendant's actions. If the defendant unlawfully injured Helen Schaefer and started a series of events that naturally or necessarily resulted in her death, it is no defense that the injury was not the only cause of death, that Helen Schaefer was an elderly woman or that the immediate cause of death was medical treatment. It is a defense, however, if the medical treatment was grossly erroneous or grossly unskillful and the injury might not have caused the death if Helen Schaefer had not received such treatment. (Vol. VI, pp. 1183-1184).
In the present case, a chronological review of the events as they unfolded clearly allowed a jury to infer that the assault upon the victim contributed to her death:
April 25, 1992. Carol Roberts Damrow saw the victim and she appeared to be in good health.
April 26, 1992. The victim is assaulted by petitioner. The victim is taken later that morning to the hospital, where it is discovered that her jaw is broken in two places. Later that day, the victim's jaw is wired shut.
May 27, 1992. Dr. Chung sees the victim at Faith Medical Center. The victim's jaw is wired shut and she was being fed through a nasal gastric tube to her stomach. Dr. Chung indicates that he received information from nurses that the victim removed the tube several times.
June 15, 1992. The victim's jaw is unwired.
June 28, 1992. The victim is taken from the nursing home to the River District Hospital, where she is admitted because she was confused, disoriented, and cachetic. At the time of her admission, the victim is having trouble breathing and swallowing.
July 5, 1992. The victim dies after having a coughing spell and vomiting.
In reviewing a sufficiency of evidence claim, this court must, as it has done in the past, draw all available inferences and resolve all credibility issues in favor of the jury's verdict. Spalla v. Foltz, 615 F. Supp. 224, 227 (E.D. Mich. 1985). In the present case, petitioner assaulted an 88 year old woman, beating her bad enough to cause her jaw to break in two places. Doctors had to wire the victim's jaw shut to allow it to heal. Because of her advanced age, the doctors had to keep the victim's jaw wired for six weeks, which was roughly twice the time that a younger person's jaw would be wired shut. Because her jaw was wired shut, the victim was unable to eat sold food and could only eat a liquid diet. Because the doctors had concern about the victim getting enough nourishment, a nasal gastric tube was placed into her stomach. By the time of her arrival at the River District Hospital on June 28, 1992, the victim was emaciated and malnourished and had difficulties swallowing and breathing. The victim ultimately died seven days later after a choking spell. The victim's condition at the time of her final admission to the hospital was clearly in direct contrast to her condition only two months earlier, where she was in good physical condition prior to the assault. The jury could clearly infer from the layperson's testimony as well as the testimony of all the doctors that petitioner's assault set into motion a chain of events which lead to the death of the victim. It does not matter that a younger person may have been able to survive the initial assault or the subsequent medical treatment, because petitioner "takes the victim" as he found her, which in this case was an eighty eight year old woman. People v. McKenzie, 206 Mich. App. 425, 431; 522 N.W.2d 661 (1994). Moreover, without some evidence in the record of an independent cause which could have triggered the victim's rapid decline in health and ultimate death only two months after the assault, the "mere speculative possibility" that the victim's death was unrelated to the assault would not prevent a rational juror from concluding beyond a reasonable doubt that the two were related. See Bishop v. Kelso, 914 F.2d 1468, 1472 (11th Cir. 1990).
The court concludes that the evidence presented at trial was sufficient to permit a rational trier of fact to conclude that petitioner's assault was a cause of the victim's death. Because the Michigan Court of Appeals accurately summarized the facts in this case and made a reasoned decision in applying the `no rational trier of fact' standard, the state court's decision was neither contrary to, or an unreasonable application of existing federal law as determined by the U.S. Supreme Court. Welch v. Burke, 49 F. Supp.2d 992, 1000 (E.D. Mich. 1999). Petitioner has failed to show that he is entitled to habeas relief from this court.
HON. AVERN COHN UNITED STATES DISTRICT COURT
DATED: January 6, 2000