Opinion
Case No. 99-CV-72649-DT
May 8, 2001
AMENDED OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
On April 27, 2001, the court entered an "Opinion and Order Denying Petition for Writ of Habeas Corpus." One page of the order was inadvertently omitted. This "Amended Opinion and Order" corrects that deficiency.
Petitioner Curtis Bernard Harris, a state prisoner presently confined at the Cotton Correctional Facility in Jackson, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of first-degree felony murder and possession of a firearm during the commission of a felony following a jury trial in the Wayne County Circuit Court in 1977. He was sentenced to life imprisonment without the possibility of parole on the murder conviction and a consecutive term of two years imprisonment on the firearm conviction.
In his pleadings, Petitioner raises claims concerning the jury voir dire, the cross-examination of prosecution witnesses, the admission of hearsay testimony, and the jury instructions. For the reasons stated below, the petition for writ of habeas corpus is denied.
I. Factual Background
Petitioner's convictions stem from the robbery and murder of cab driver Rufus Lee Sizemore in Inkster, Michigan on January 18, 1977. The Michigan Court of Appeals described the relevant facts as follows:
In the early morning hours of January 18, 1977, Rufus Lee Sizemore, a cab driver, was murdered in the parking lot of the Whitney Young Apartments located in Inkster, Michigan. At approximately 1:45 a.m., Sizemore picked up two passengers at Metro Airport. The passengers, a man and a woman, initially entered another cab and requested a ride to Inkster, but were told that they had to ride in Sizemore's cab because his was the first in line at the taxi stand. Another cab driver, Troy Adkins, opened the door of Sizemore's cab for the passengers. Sizemore then entered his cab and departed. Six hours later, police officers discovered Sizemore's body slumped over the steering wheel of his cab in the parking lot of the Whitney Young Apartments. He died from a single gunshot wound to the head. At trial, Adkins stated that he was "80 percent positive" that defendant was the male passenger, but acknowledged that he did not identify defendant at the preliminary examination.
In exchange for the dismissal of murder charges against her, Lucinda Selma, a prostitute, testified against defendant. According to Selma, defendant and David Garrison picked her up at approximately 1:00 a.m. and drove her to Metro Airport under the pretext that they knew a man who desired her services but wished to be discrete. Garrison dropped defendant and Selma off at the airport and they entered the lobby. After a few minutes, defendant and Selma left the lobby and entered a taxi cab that was waiting in front of the building. Upon being told that they would have to ride in the first cab in the line at the taxi stand, defendant and Selma entered Sizemore's cab and defendant instructed Sizemore to drive them to the Whitney Young Apartments. Sizemore drove defendant and Selma to their requested destination and stopped the car at the rear of the complex. According to Selma, she had just begun to leave the cab when she heard a gunshot and then defendant pulled her back into the car. Selma observed defendant bend forward into the front seat and retrieve a small coin purse. After leaving the cab, they met Garrison, who was waiting nearby, and he drove them from the complex. They eventually picked up Debra Wyatt and spent the next day in a motel room.People v. Harris, No. 185525, *1-2 (Mich.Ct.App. Aug. 1, 1997) (unpublished).
At the close of trial, the jury found Petitioner guilty of first-degree felony murder and possession of a firearm during the commission of a felony. The trial court subsequently sentenced him to consecutive terms of life imprisonment without the possibility of parole and two years imprisonment for those offenses.
II. Procedural History
Following his convictions and sentencing, Petitioner spent almost 18 years attempting to obtain the assistance of legal counsel to pursue his appeal as of right in the state courts. The procedural history of that litigation is not relevant to the instant petition. The Michigan Supreme Court ultimately ordered the Michigan Court of Appeals to reinstate Petitioner's appeal and consider the case as on leave granted on June 25, 1996.
Petitioner, through legal counsel, filed a brief on appeal with the Michigan Court of Appeals on July 3, 1996, raising six issues, including the five contained in the present petition. The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished, per curiam decision. People v. Harris, No. 185525 (Mich.Ct.App. Aug. 1, 1997). Petitioner filed an application for leave to appeal with the Michigan Supreme Court raising the same issues, which was denied because the Court was not persuaded that the questions presented should be reviewed. People v. Harris, No. 110332 (Mich. June 29, 1998)
Petitioner, through legal counsel, filed the present petition for a writ of habeas corpus on May 28, 1999, asserting the following claims as grounds for relief:
I. The state trial court's rulings and instructions so undermined the defense attacks on the credibility of Lucinda Selma that Petitioner was denied his rights to confrontation and to a fair trial.
II. Petitioner was denied his due process rights to a fair and impartial jury by the state trial court's cursory and inadequate voir dire, and its refusal to ask questions critical to the defense.
III. Petitioner was denied his due process right to a fair jury trial by the inadequate, confusing, and unbalanced instructions given to the jury.
IV. The state trial court's interference with the cross-examination of key prosecution witnesses and its overall display of partiality toward the prosecution violated Petitioner's rights to a fair trial and to confrontation.
V. Petitioner was denied his rights to confrontation and to a fair trial by the introduction of hearsay testimony of witness Debra Wyatt.
Respondent filed an answer to the petition on June 1, 2000, asserting that it should be dismissed for lack of merit. Oral argument was held on this case on January 12, 2001.
III. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), 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, ___ U.S. ___, 120 S.Ct. 1495 (2000), the United States 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 1523 (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 1522. "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.
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 1523. 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. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
IV. Analysis
A. Jury Voir Dire Claim
Petitioner claims that he is entitled to habeas relief because the trial court failed to ask requested questions concerning Lucinda Selma's testimony, the presumption of innocence, and Petitioner's right not to testify during the jury voir dire. State trial courts are granted wide discretion in asking voir dire questions. See Mu'Min v. Virginia, 500 U.S. 415, 424-27 (1991); Daniels v. Burke, 83 F.3d 760, 766 (6th Cir. 1996). The Constitution does not necessarily entitle a defendant to have questions posed during voir dire specifically directed to matters that might conceivably prejudice prospective jurors against him. See Ristaino v. Ross, 424 U.S. 589, 594 (1976). The state's obligation to impanel an impartial jury may be satisfied by less than a specific inquiry into a specific prejudice feared by the defendant. Id. at 595; Ham v. South Carolina, 409 U.S. 524, 527-28 (1973).
In this case, the Michigan Court of Appeals concluded that the trial court did not abuse its discretion in conducting the voir dire because the court's questions were sufficient to allow counsel to intelligently challenge jurors for cause and to exercise peremptory challenges and the court adequately instructed the jurors about relevant legal principles. Harris, supra, slip op. at 3.
The Michigan Court of Appeals' decision in this regard is consistent with federal law and constitutes a reasonable application of that law. The trial court acted within its discretion in refusing to question prospective jurors about their ability to weigh Selma's testimony carefully. The trial court was not required to make this specific inquiry given that it questioned the jurors about their ability to decide the case based upon the evidence presented and in accordance with the court's instructions. See Trial Tr., Vol. I, pp. 28, 33-34, 41-44, 50-97. Moreover, the trial court instructed the jurors that Selma was a co-defendant who cooperated with the prosecution in exchange for the dismissal of the charges against her and asked them if they would be able to judge her testimony fairly. Id. at 25-26. Petitioner has not shown that he was denied a fair and impartial jury by the trial court's actions.
The trial court also acted within its discretion in refusing to ask prospective jurors whether they understood that the law does not require a criminal defendant to prove his innocence. The trial court specifically instructed the jurors about the presumption of innocence and informed them that the prosecution bears the burden of proving a defendant's guilt beyond a reasonable doubt. Id. at 23-25. The court also asked the jurors if they could follow the law in rendering their verdict. Id. at 28-34. Further inquiry during jury voir dire was not constitutionally required to protect Petitioner's right to a fair trial and impartial jury.
Lastly, Petitioner's claim that the trial court failed to sufficiently question prospective jurors about his possible decision not to testify in his own defense is belied by the record. The record reveals that the trial court informed the jurors that Petitioner is presumed innocent and that they may not judge him based upon the fact that he may not testify at trial. In response to defense counsel's request, the trial court also asked prospective jurors if they would be prejudiced against Petitioner if he failed to testify. The jurors responded in the negative. Id. at 36-38. The record thus demonstrates that the trial court sufficiently questioned and instructed jurors about Petitioner's decision not to testify at trial. Petitioner is not entitled to relief on this claim.
B. Hearsay Testimony Claim
Petitioner also claims that he is entitled to habeas relief because the trial court allowed the admission of a portion of Debra Wyatt's preliminary examination testimony in which she relates the substance of a conversation among Petitioner, Lucinda Selma, and David Garrison describing the murder. Wyatt testified that she heard that Garrison drove Petitioner and Selma to the airport, that Petitioner and Selma got into a cab, that Garrison followed them to the apartments, that the cab driver had been shot after struggling with Selma, and that $200 to $300 had been taken. She did not know which of three individuals had made these statements. She also testified that Garrison had stated that he had lent his gun to Petitioner, and that Petitioner had not said anything about the gun. See Prelim. Exam. Tr., pp. 41-54. Wyatt was 16 years old at the time and admitted using heroin while at the motel with Petitioner, Selma, and Garrison following the murder. Id. at 61-65.
It is well-settled that alleged trial court errors in the application of state procedure or evidentiary law, particularly regarding the admissibility of evidence, are generally not cognizable as grounds for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984); Serra v. Michigan Dept. of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993); see also Olsen v. McFaul, 843 F.2d 918, 933 (6th Cir. 1988) (such claims are almost always rejected as grounds for granting a writ of habeas corpus). Questions concerning the admissibility of evidence are properly left to the sound discretion of the trial court. Oliphant v. Koehler, . 594 F.2d 547, 555 (6th Cir. 1979). Only where admission of the disputed evidence rendered the trial "so fundamentally unfair as to constitute a denial of federal rights" may it provide grounds for granting a writ of habeas corpus. Clemmons v. Sowders, 34 F.3d 352, 356 (6th Cir. 1994).
Petitioner asserts that admission of Wyatt's testimony concerning the discussion at the motel violated his right of confrontation. The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." U.S. Const. amend. VI. The Sixth Amendment protections are not so broad, however, as to exclude the admission of certain hearsay statements against a criminal defendant despite his or her inability to confront the declarant at trial. See Maryland V. Craig, 497 U.S. 836, 847-48 (1990). The Confrontation Clause does not prevent hearsay from being admitted into evidence at trial when the declarant is unavailable to testify at trial and the statement: (1) falls within a firmly rooted exception to the hearsay rule, or (2) contains particularized guarantees of trustworthiness such that adversarial testing would be expected to add little, if anything, to the statement's reliability. Lilly v. Virginia, 527 U.S. 116, 124 (1999) (citing Ohio v. Roberts, 448 U.S. 56, 66 (1980)); see also Byrd v. Collins, 209 F.3d 486, 528 (6th Cir. 2000); Bruton v. Phillips, 64 F. Supp.2d 669, 678 (E.D. Mich. 1999).
Petitioner does not object to the admission of Wyatt's preliminary examination testimony generally. Former testimony of an unavailable witness is a firmly rooted hearsay exception. See Mich. R. Evid. 804(b) (1); Fed.R.Evid. 804(b)(1); United States v. Reed, 227 F.3d 763, 769 (7th Cir. 2000); United States v. McKeeve, 131 F.3d 1, 9 (1st Cir. 1997); Ecker v. Scott, 69 F.3d 69, 71 (5th Cir. 1995) Because Wyatt was unavailable to testify at trial and Petitioner had the opportunity to fully cross-examine Wyatt at the preliminary examination, the admission of her preliminary examination testimony did not violate Petitioner's right of confrontation. See Roberts, 448 U.S. at 70-73; Mancusi v. Stubbs, 408 U.S. 204, 216 (1972).
In this case, the Michigan Court of Appeals concluded that the disputed testimony did not prejudice Petitioner, stating in relevant part:
The trial court permitted the reading of Wyatt's testimony from the preliminary examination upon
finding that the prosecutor exercised due diligence in attempting to produce Wyatt to testify at trial. The court also refused to strike the portion of the testimony in which Wyatt related the conversation at the motel. The testimony does not reflect which statements were made by defendant, and Wyatt did not detail the circumstances surrounding the making of the statements. Wyatt repeatedly stated that, other than a comment by Garrison about a gun, she could not remember who said what during the conversation. Defendant argues that reversal is required because this testimony was improperly admitted hearsay. We disagree. While the statements may have been hearsay, they, for the most part, simply corroborated Selma's testimony and other testimony that placed defendant in the victim's cab. Wyatt's testimony never did identify defendant as the shooter. In our opinion, the testimony regarding the conversation at the motel was cumulative to other competent evidence and did not prejudice defendant's trial.Harris, supra, slip op. at 3.
The Michigan Court of Appeals did not address whether admission of Wyatt's testimony about the motel room conversation constituted a denial of Petitioner's federal rights. Accordingly, this court must conduct an independent review of the state court's decision. See, e.g., Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000); Morse v. Trippett, 102 F. Supp.2d 392, 402 (E.D. Mich. 2000). This independent review requires the federal court to "review the record and applicable law to determine whether the state court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented." Harris, 212 F.3d at 943. This independent review "is not a full, de novo review of the claims, but remains deferential because the court cannot grant relief unless the state court's result is not in keeping with the strictures of the AEDPA." Id.
This court concludes that Petitioner's rights under the Confrontation Clause were not violated by the admission of Wyatt's testimony concerning the motel room conversation. There are three possible sources for the challenged statements — Petitioner, Selma, and Garrison. Any statements made by Petitioner are admissions by a party opponent, not hearsay, and their use as substantive evidence at trial does not pose a Confrontation Clause problem. See Mich. R. Evid. 801(d)(2)(A); Fed.R.Evid. 801(d)(2)(A); United States v. Dixon, 132 F.3d 192, 198 (5th Cir. 1997).
Additionally, Petitioner's constitutional rights were not violated by the admission of any statements made by Selma. The Confrontation Clause is not violated when a declarant who made challenged hearsay statements testifies at trial and is available for the defendant to confront. See Nelson v. O'Neil, 402 U.S. 622, 626-27, 629-30 (1971); California v. Green, 399 U.S. 149, 161 (1970) ("none of our decisions interpreting the Confrontation Clause requires excluding the out-of-court statements of a witness who is available and testifying at trial"). In this case, Selma testified at trial and Petitioner had the opportunity to cross-examine her about statements she may have made at the motel, as well as her involvement in the events at issue. Accordingly, the admission of Selma's statements, whether or not those statements are deemed hearsay, did not violate the Confrontation Clause.
Selma's statements could also be considered adoptive admissions, not hearsay, or fall within the penal interest exception to the hearsay rule, such that there admission did not violate the Confrontation Clause. See discussion infra regarding Garrison's statements.
Lastly, the admission of any statements attributed to Garrison, including the statement that he loaned his gun to Petitioner, did not violate Petitioner's right of confrontation. Although the trial court did not specify a reason for allowing the statements to be admitted, the statements could have been properly admitted as adoptive admissions, which are not hearsay. See Mich. R. Evid. 801(d)(2)(B); Fed.R.Evid. 801(d)(2)(B) Adoptive admissions do not violate the Confrontation Clause because if the defendant accepts the out-of-court statements as his own, cross-examination of the declarant concerning the hearsay statements becomes "unnecessary and irrelevant." United States v. Jinadu, 98 F.3d 239, 245 (6th Cir. 1996) (citing Poole v. Perini, 659 F.2d 730 (6th Cir. 1981)). An adoptive admission "avoids the confrontation problem because the words of the hearsay become the words of the defendant." Poole, 659 F.2d at 733.
When a statement is offered as an adoptive admission, the primary inquiry is whether the statement is such that, under the circumstances, an innocent person would normally be induced to respond, and whether there are sufficient foundational facts from which the jury could infer that the defendant heard, understood, and acquiesced in the statement. See Neuman v. Rivers, 125 F.3d 315, 320 (6th Cir. 1997). Adoption of the statement can be manifested by any appropriate means, such as language, conduct, or silence. Id.
In this case, Wyatt testified that Petitioner was present during the discussion of the robbery and murder at the motel room. Petitioner did not deny or object to any statements made by Garrison, including the statement that Garrison loaned his gun — the murder weapon — to Petitioner. An innocent person would have been induced to respond to such a statement given that it implies that Petitioner was the person who shot and killed Rufus Sizemore. The fact that Petitioner may have used heroin while at the motel does not mean that he would have allowed Garrison (or Selma) to make statements to Wyatt inculpating him in a robbery and murder without objection. Any statements made by Garrison were thus admissible against Petitioner as adoptive admissions and did not result in a Confrontation Clause violation. See Neuman, 125 F.3d at 320.
Additionally, Garrison's statements could also have been admitted as statements against a party made by a co-conspirator during the course and in furtherance of a conspiracy. See Mich. R. Evid. 801(d)(2)(E); Fed.R.Evid. 801(d)(2)(E). A statement is "in furtherance of" a conspiracy if it is intended to promote the objectives of the conspiracy, but it need not actually advance the conspiracy. United States v. Hitow, 889 F.2d 1573, 1581 (6th Cir. 1989). Statements identifying the participants and their roles in the conspiracy, United States v. Clark, 18 F.3d 1337, 1342 (6th Cir. 1994), statements updating a conspirator on the progress or activities of a coconspirator, or statements intended to gain the trust and assurance of co-conspirators, United States v. Rios, 842 F.2d 868, 874 (6th Cir. 1988), may all be in furtherance of a conspiracy.
In this case, there was evidence at trial that Petitioner, Garrison, and/or Selma conspired to commit a robbery and murder. The discussion at the motel occurred very shortly after the robbery and murder were committed. The conversation reviewed the participants' activities and may have been intended to maintain their trust of one another, particularly since they had not yet fled the area. See, e.g., United States v. Brown, 221 F.3d 1336, 2000 WL 876382, at *8 (6th Cir. 2000) (unpublished) (testimony regarding discussions that took place within a few days of murder were in furtherance of the conspiracy in that they kept co-conspirators abreast of the conspiracy's activities). Thus, Garrison's statements were arguably admissible against Petitioner as co-conspirator's statements, such that their use at trial did not violate the Confrontation Clause.
Furthermore, even if Garrison's statements constituted hearsay, Petitioner was not denied his right of confrontation. First, the statements were likely admissible as statements against penal interest. See Mich. R. Evid. 804(b)(3); Fed.R.Evid. 804(b)(3). The statements overheard by Wyatt concerning the robbery and shooting of Rufus Sizemore, including Garrison's statement that he gave Petitioner his gun, clearly constitute statements which at the time of their making so far tended to subject Garrison to criminal liability that a reasonable person in Garrison's position would not have made the statements unless he believed them to be true. Id.
Although the statements against interest exception may not be a firmly-rooted exception to the hearsay rule, see Lilly, 527 U.S. at 134 (plurality opinion stating that accomplice's confessions that inculpates a criminal defendant are not within a firmly rooted exception to the hearsay rule), the statements at issue here bear particularized guarantees of trustworthiness which render them admissible under the totality of the circumstances. Garrison made the statements to friends and personal acquaintances prior to arrest, not law enforcement officers during an interrogation. See Bruton, 64 F. Supp.2d at 680. The statements were made to others allegedly involved in the crime shortly after its commission. And any statements attributable to Garrison inculpated himself, as well as Petitioner. Id. at 681 (citing United States v. York, 933 F.2d 1343, 1363 (7th Cir. 1991)). Thus, the court concludes that Garrison's statements bear adequate indicia of reliability to justify their admission into evidence at trial and did not result in a violation of Petitioner's Sixth Amendment rights.
Second, although Garrison did not testify at Petitioner's trial, Garrison did testify at Petitioner's preliminary examination. In fact, defense counsel specifically questioned Garrison about the motel room conversation, and Garrison denied participating in such a conversation. See Prelim. Exam. Tr., pp. 85-86. Because Garrison was charged with murder at the time of Petitioner's trial and presumably would have invoked his Fifth Amendment privilege against self-incrimination, Petitioner could have had Garrison deemed unavailable, see United States v. Bourjaily, 781 F.2d 539, 544 (6th Cir. 1986) (stating that a witness is not available for cross-examination when he or she refuses to testify), accord Latine v. Mann, 25 F.3d 1162 (2nd Cir. 1994) (declarant unavailable when he invoked his Fifth Amendment privilege), and had Garrisons s preliminary examination testimony admitted into evidence under the former testimony exception to the hearsay rule. See discussion supra at n. 1. Petitioner, however, did not do so. The Sixth Amendment is not violated when a defendant chooses not to exercise his right to confront. See United States v. Green, 178 F.3d 1099, 1109 (10th Cir. 1999) (Confrontation Clause was not violated when defendant failed to call witness to challenge alleged hearsay testimony of police officer). Petitioner has not established that his Sixth Amendment rights were violated by the admission of Debra Wyatt's preliminary examination testimony at trial. He is thus not entitled to habeas relief on this claim.
C. Confrontation Claim — Cross-Examination of Witnesses
Petitioner also claims that he is entitled to habeas relief because the trial court limited and/or interfered with defense counsel's cross-examinations of Lucinda Selma and Troy Adkins. The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to confront the witnesses against him. "The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." Davis v. Alaska, 415 U.S. 308, 315 (1973). "Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness's story to test the witness's perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit the witness." Id. at 314.
The right of cross-examination, however, is not absolute. "[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. VanArsdall, 475 U.S. 673, 679 (1986); see also Norris v. Schotten, 146 F.3d 314, 329-30 (6th Cir. 1998).
The Michigan Court of Appeals considered this claim as follows:
The scope of cross-examination is a matter left to the discretion of the trial court, with due regard for a defendant's constitutional rights. People v. Blunt, 189 Mich. app 643, 651; 473 N.W.2d 792 (1991). A defendant does not have a constitutional right to admit all relevant evidence or to cross-examine on any subject, and the trial judge may impose reasonable limits on cross-examination to accommodate legitimate interests so long as the defendant is provided a reasonable opportunity to test the truth of a witness' testimony. People v. Adamski, 198 Mich. App. 133, 138; 497 N.W.2d 546 (1993). We review the trial court's control over cross-examination for an abuse of discretion. Blunt, supra at 651.
Upon review of the record, we find that the trial court did not abuse its discretion or infringe on defendant's right of confrontation in controlling his cross-examination of Selma and Adkins. The trial court properly limited repetitive questions and restricted defendant's questioning on marginally relevant matters. Adamski, supra at 138. Defendant was afforded a reasonable opportunity to test the witnesses' credibility and introduce facts from which the jury might infer bias and prejudice. People v. Cunningham, 215 Mich. App. 652, 657; 546 N.W.2d 715 (1996). Nor do we think that the trial court's questions and comments made before the jury indicate a piercing of the veil of impartiality. People v. Paquette, 214 Mich. App. 336, 340; 543 N.W.2d 342 (1995).Harris, slip op. at 2.
For the reasons discussed below, this Court finds that the Michigan Court of Appeals' determination in this regard is consistent with federal law and constitutes a reasonable application of that law.
1. Heroin Addiction
Petitioner first claims that he was denied his right of confrontation because the trial court refused to allow him to question Selma about her alleged heroin addiction. The record, however, reveals that the trial court allowed defense counsel to ask Selma whether she was addicted to heroin and to question her about her heroin use near the time of the murder. The following exchange occurred during the cross-examination of Selma at trial:
Q. Are you a heroin addict?
A. No.
Q. Have you been convicted of addiction of heroin?
[Prosecutor]: Objection, your Honor.
The Court: Just a moment. She has answered the question.
[Prosecutor] I think counsel knows that is improper, your Honor. There are limited purposes for that type of line of questioning.
The Court: I can't understand. She's answered the question. She has answered also that she had never been convicted of a felony. Now, she's answered it.
[Prosecutor], if he has — come up here, gentlemen. (Whereupon an off-the-record discussion was held.)
Q. Miss Selma, you testified on direct examination that you were using heroin on January 18th, is that correct?
A. That is correct.
Q. On how many occasions on January 18th did you use heroin?
A. About three times.
Q. About three times. And did you use heroin on January 17th?
A. Yeah.
Q. On how many occasions did you use heroin on January 17th?
A. Once.
Q. And did you use it on January 18th?
[Prosecutor]: I am going to object to that, your Honor. I fail to see how that is material.
The Court: I will sustain the objection.
[Defense]: Your Honor, counsel brought it out. I think he brought it out on direct examination.
The Court: I know, but what you are doing counsel is doing exactly what I suggested is improper. Now, you indicated on the day before and on that day and she has used it. She has testified that she is not addicted. You may proceed.
Trial Tr., Vol. II, pp. 59-60.
Given the record, this court concludes that defense counsel was allowed sufficient inquiry into Selma's heroin usage near the time of the murder to test her credibility, motivations, and recall of events. Petitioner has not established that the trial court violated his constitutional rights in restricting further inquiry into this subject matter.
2. Impeachment with Prior Statement
Petitioner also claims that the trial court improperly limited defense counsel's impeachment of Selma with her police statement. The record, however, reveals only that the trial court sustained several objections to the vagueness of defense counsel's questions while still permitting his attempts to impeach. The following exchange from counsel's attempted impeachment of Selma with prior statements will illustrate:
Q. Now, were there any other differences in your statement, or any differences between your original statement and the — your testimony here in court?
[Prosecutor]: I am going to object to that, your Honor. That is a vague question.
The Court: That is an improper manner for cross-examination.
[Defense]: I don't think it improper, your Honor.
The Court: I just said it is improper counsel. Do you want to argue with me?
[Defense]: No, no.
The Court: Well, then the proper way is read the question and answer and ask her if she made that statement at that time. There is no general statement like that. It is absolutely improper, it is a matter of law.
[Defense]: Thank you, your Honor.
Q. In the statement that you originally gave the police, you did not mention that David Garrison picked you up at the apartment?
[Prosecutor]: I am going to object, your Honor. That is improper. He is trying to show prior inconsistent statements. There has to be an affirmative statement of some kind.
The Court: That is right. She first has to testify, counsel. You can't proceed on cross-examination to show any difference unless there is testimony and then the statements.
[Defense]: Your Honor, I can ask her if she ever made a contrary statement and I am asking her.
The Court: It was too general in the manner you asked the first one and on this one also, she hasn't made any statement yet on the stand. Now, proceed with your questioning first and the proceed with the statement.
Q. When you gave your original statement to the police, did you tell the police that David Garrison was waiting in the parking lot to pick you up?
A. No.
Q. When you gave your statement to the police —
[Prosecutor]: Your Honor, I am going to object, object once again.
The Court: I am going to sustain the objection. Put your objection on the record, [Prosecutor].
[Prosecutor] Your Honor, I think the proper foundation for prior inconsistent statements is to have the witness testify first in court, and then to confront the witness with an affirmative statement to the contrary. I think it absolutely improper to bring up the fact that some statement failed to mention a particular detail.
The Court: I have already ruled that way. [Defense], ask her questions to cross-examine.
[Defense]: Your Honor, she made a written statement.
The Court: Well, show it to her, but first you have to ask her.
[Defense]: Your Honor, she has not stated she does not recall.
The Court: You didn't ask her anything. Ask her the question you want and then confront her with it. Didn't you hear counsel's objection?
[Defense]: I think counsel's objection is ill-founded.
The Court: No, it indicated in the manner you are trying to show inconsistent statements. As her a question first, or a series of questions, and then confront her with the statement and let her read it and then ask her about them.
Q. Did you tell Det. Buckley —
[Prosecutor]: I don't think you quite understand.
[Defense]: Your Honor, this is the way that I understand this to be done. She made a prior statement to Det. Buckley —
The Court: Well, first you ask her the question now, and continue with that. Did you understand what the Court's ruling was?
[Defense]: I don't know what question you are talking about, Judge Wise.
The Court: You want to ask her something relative to prior statements.
[Defense] That is correct.
The Court: Ask her the questions and then see what her answers are and then ask her were the statements —
[Defense]: That is what I am trying to do.
The Court: You are going backwards. You are asking the question did she give a statement, that is what you are asking. Now, just cross-examine her. You are asking her questions now, and then you may proceed on the other.
Trial Tr., Vol. III., pp. 42-46.
Significantly, the record also reveals that the trial court allowed defense counsel to impeach Selma with her prior police statement when counsel did so properly. See, e.g., Trial Tr., Vol. III, pp. 39-42, 46-48. Petitioner has not established that the trial court erred in restricting defense counsel's method of impeachment or otherwise violated his right of confrontation.
3. The Shooting of Selma's Husband
Petitioner next claims that the trial court erred in refusing to allow defense counsel to question Selma about shooting her husband in an unrelated incident. This claim is without merit. First, such evidence was likely inadmissible under state law. See Mich. R. Evid. 608, 609. Second, defense counsel was allowed to question Selma about her familiarity with guns and the fact that she had fired a gun on previous occasions. See Trial Tr., Vol. III, pp. 38-39. Petitioner has not established that the trial court improperly prohibited defense counsel from questioning Selma about these matters or that he was denied his right of confrontation.
4. Selma's Sexual Relationship with Garrison
Petitioner next claims that the trial court violated his right of confrontation by limiting defense counsel's questions concerning Selma's sexual relationship with Garrison. This claim is also without merit. Defense counsel did ask Selma whether she had sexual relations with Garrison and she replied in the affirmative. See Trial Tr., Vol. III, p. 55-56. Although the prosecution objected to this line of inquiry and the court sustained the objection, neither the question nor the answer were stricken from the record. Defense counsel argued that Selma and Garrison had sexual relations in opening and closing arguments. See Trial Tr., vol. I., pp. 104-05, vol. V, p. 49. Petitioner has not established that the trial court violated his right of confrontation by restricting inquiry into Selma and Garrison's sexual relationship.
5. Cross-Examination of Troy Adkins
Lastly, Petitioner claims that the trial court improperly limited defense counsel's cross-examination of cab driver Troy Adkins. The following exchanges occurred at trial:
Q. Did you ever make a statement that you could not identify, or that you did not see the man that got into your cab in court, did you ever make that statement?
A. I testified I couldn't definitely identify the man, yes.
Q. Now I am going to direct your attention to February 2 of 1977. Do you recall that day?
A. That is right.
Q. Do you recall being put under oath on that day?
A. I do.
The Court: What page, counsel?
[Defense]: I am referring to page 18, your Honor, of the preliminary examination.
Q. Do you remember being asked this question —
[Prosecutor]: I am going to object, your Honor. I think proper foundation is to show the witness the transcript first.
[Defense]: The Court just directed me to read the question.
The Court: Just a moment. He is entitled to read the portion you want him to read to himself to see if that refreshes his memory. Then you may ask him the question.
(Whereupon a document was handed to the witness.)
* * *
Q. Now, Mr. Adkins, on that day, on that February 2nd, which was just a few weeks after this tragic incident, when you were asked to identify the people that you saw get into the car —
The Court: Counsel, just a moment. He did read what you want to cross-examine him about. Now, just ask him the question, was that question asked and did he make that answer. I don't think you have to make a statement as to what the situation is about.
* * *
Q. On that day when you were on the stand, Lucinda Selma was sitting in court?
A. That is right, she was.
Q. This man, Curtis Harris, was also sitting in court?
A. That is right.
Q. Now do you remember being asked this question and do you remember giving this answer: "And the two people that you helped in the cab, are they here today?" Do you remember being asked that question?
A. I do.
Q. And do you remember giving this answer, "I see one of them." Do you remember that?
A. Yes.
Q. Do you remember being asked this question, "And which one do you see?" And your answer, "That's the female."
A. That is right.
Q. And then you pointed to Lucinda Selma. Do you remember this, "What do you remember about the other person with her?" Your answer, "I don't know. He had his jacket, he had it turned up over his face. I couldn't — it was dark, but it wasn't too light and I couldn't exactly see too much about him." Do you remember giving him that answer?
A. I gave that statement — the coat was turned up partially over his face.
Q. Now, Mr. Troy Adkins, on that day when you were in court, although you were asked, you did not identify Curtis Harris, did you?
A. Not positive identification.
Q. You did not identify him at all.
[Prosecutor]: Objection. He is arguing with the witness and badgering him now, your Honor.
The Court: Let him answer the question, and I don't quite appreciate the manner in which you ask the questions, counsel. It is a question of fact for the jury. You may call it to their attention in the manner in which you cross-examine. Don't badger any witness.
[Defense]: I am not trying to badger him.
The Court: Just proceed and ask him the questions. You didn't identify the defendant, did you?
A. I didn't make definite identification, no.
[Defense]: Your Honor, this witness is playing with words.
[Prosecutor] I am going to ask that be stricken.
[Defense]: He is saying he did not make definite, your Honor, identification, not make any identification.
[Prosecutor]: I am going to object, your Honor. He is testifying now.
The Court: May I say this to you, the witness is on the stand testifying. He has a right to testify as to what he saw and what he remembers. Whether it is different than what it was, this is for the jury to determine as to what they believe. This is a question of fact for the jury.
[Defense]: Thank you, Judge.
Q. Mr. Troy Adkins, on February 2nd did you state on the record out loud, that people could hear you —
The Court: Now, just a moment. I don't like the manner in which you are proceeding, counsel, because it is argumentative. Just read the questions and answers and ask him if those were the questions asked and did he make those answers, and if it is different than what he is testifying now, that is it.
* * *
Q. Now, did you find any place where you said Curtis Harris —
[Prosecutor]: I am going to object to that, your Honor. That is improper.
The Court: That is an improper manner to proceed. I will sustain the objection. You may ask the questions and ask did he make those answers, and you may proceed.
* * *
The Court: You may cross-examine to your heart's content. I am not limiting you at all, and you may use that if you wish to try and impeach him. Is that what you are trying to do?
[Defense]: Yes, sir.
* * *
The Court: Read the question and answer. Let me point something out to you about the examination testimony. It is for the jury to determine that, and the testimony from the witness stands. It is for them to determine what they believe and what the situation is. They are entitled to all of it. That is the reason you can't give your interpretation of what is on the transcript.
* * *
Q. Mr. Troy Adkins, do you remember being asked this question, "Are the people here in court today?"
A. I do.
The Court: That is the question?
[Defense]: That is the question.
A. I do.
Q. And your answer, "I see only one of them," is that correct?
[Prosecutor]: No, that was not the answer. I object.
[Defense]: "I see one of them."
The Court: Then counsel's position is well taken because you said, "I see only one of them" and that wasn't the answer, it was, "I see one of them."
[Defense]: I stand corrected, your Honor.
Q. Your answer was, "I see one of them." And the question, "And which one do you see?" The answer was, "The female." Is that right?
A. That is correct.
Q. Now, at any time did you say, "I see another man, but I'm not positive?"
[Prosecutor]: I am going to object, your Honor. That is improper impeachment.
The Court: That is improper and I will tell the jury to absolutely disregard it. You may use the transcript to cross-examine and use the transcript to try and impeach. You have a right to do that, but you can't ask him something that is not on the record. All right. Is that all you wish?
Q. Mr. Adkins, was your memory better on February 2nd, or is it — which was what, three weeks or two weeks after this shooting, or is it better today six — five or six months after the shooting?
A. I'd say it's practically the same.
Trial Tr., Vol. I. pp. 139-48.
The record thus indicates that the trial court sustained objections to defense counsel's impeachment of Adkins concerning his identification testimony based upon the form of the questions, not their substance. Further, defense counsel was able to elicit that Adkins failed to identify Petitioner at the preliminary examination and that his identification at trial was less than one hundred percent positive. Id. at 149. Petitioner has not shown that the trial court erred in sustaining the prosecution's objections, improperly instructed counsel as to the proper manner in which to proceed, or otherwise violated Petitioner' s constitutional rights with respect to the cross-examination of Troy Adkins.
Accordingly, for the reasons stated, the court concludes that the Michigan Court of Appeals' decision that Petitioner's constitutional rights were not violated during the cross-examination of Lucinda Selma and Troy Adkins is neither contrary to established federal law nor an unreasonable application thereof. Petitioner is not entitled to habeas relief on these Confrontation Clause claims.
D. Jury Instruction Claims
Petitioner next claims that he is entitled to habeas relief because the trial court failed to properly instruct the jury on accomplice testimony and related issues, the dismissal of Selma's charges, armed robbery, manslaughter, attempt, aiding and abetting, felony firearm, and the nolle prosequi order.
In order for habeas relief to be warranted on the basis of an improper jury instruction, a petitioner must show that the challenged instruction was so infirm that it rendered the trial fundamentally unfair. Estelle v. McGuire, 502 U.S. 62, 72 (1991). The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is a heavy one. The question in such a collateral proceeding is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," not merely whether "the instruction is undesirable, erroneous, or even universally condemned." Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)); Austin v. Bell, 126 F.3d 843, 846 (6th Cir. 1997). If an instruction is ambiguous and not necessarily erroneous, it violates the Constitution only if there is a reasonable likelihood that the jury has applied the instruction improperly. Binder v. Stegall, 198 F.3d 177, 179 (6th Cir. 1999). A jury instruction is not to be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial court record. Grant v. Rivers, 920 F. Supp. 769, 784 (E.D. Mich. 1996).
1. Accomplice Testimony and Related Instructions
Petitioner claims that the trial court erred in failing to include certain portions of the Michigan Criminal Jury Instructions on accomplice testimony, impeachment by prior inconsistent statements, conflicts in testimony, and false testimony in the instructions given to his jury. Petitioner relatedly claims that the trial court should have specifically instructed the jury that charges against Selma could be reinstated if the prosecution was not satisfied with her testimony. The trial court instructed the jury on Selma's testimony, in part, as follows:
In this case, ladies and gentlemen of the jury, I wish to caution you concerning the testimony of the witness Lucinda Selma. First, you must decide whether or not Miss Selma herself had a part in the commission of the crime with which the defendant is charged. Although Miss Selma did not admit it herself, although she did not admit her own involvement, other evidence could lead you to believe otherwise.
A person who knowingly or voluntarily cooperates or aids another in the commission of a crime is called an accomplice. An accomplice is someone who knowingly, voluntarily, and purposely joins with another in performing an illegal act.
You must first determine whether Miss Selma is an accomplice. If after considering all the evidence you conclude that she did not participate in the crime, then you should consider her testimony the same as any other witness. But if you conclude that she did act as an accomplice, then you must consider the testimony in light of the following instructions:
You should examine an accomplice's testimony closely and accept it only with caution and care.
You may consider whether the testimony is supported in whole or in part by other evidence or circumstances, because if it is so supported it may be more dependable. However, an accomplice witness may properly be used by the prosecution, and you may convict upon that testimony alone if you believe that testimony and if it proves the guilt of the defendant beyond a reasonable doubt.
In deciding whether or not you believe the witness Lucinda Selma, and if you find her to be an accomplice, you should be guided by the following considerations:
You may consider whether there has been any reward or inducement offered which may have caused her to testify falsely. . . .
Trial Tr., Vol. VI, pp. 11-13. The trial court then went on to read the nolle prosequi order, discussed infra.
The Michigan Court of Appeals determined that Petitioner was not denied a fair trial by these jury instructions, stating in relevant part: "The court adequately informed the jurors that they should carefully consider and weigh Selma's testimony in light of the consideration she received for testifying against defendant. People v. McCoy, 392 Mich. 231, 236-237; 220 N.W.2d 456 (1974)." Harris, slip op. at 2.
The Michigan Court of Appeals' decision is neither contrary to federal law nor an unreasonable application of that law. The jury was well aware of Selma's interest in cooperating with the authorities and her incentive to testify against Petitioner to avoid prosecution for the robbery and murder at issue. The jury was clearly instructed that charges against Selma had been dismissed in exchange for her testimony and that they should evaluate her testimony accordingly. Further, the trial court informed the jurors that the dismissal of the charges was not a finality during jury voir dire. See Trial Tr., Vol. I, pp. 34-35. The fact that the trial court may have omitted applicable standard jury instructions or more fully explained these matters does not render the given instructions fundamentally unfair.
Moreover, defense counsel fully attacked Selma's credibility during opening and closing statements, and indicated that the prosecution could reinstate charges against Selma if she failed to testify against Petitioner. See Trial Tr., Vol. I, p. 109, Vol. V, pp. 47-48. The trial court was not required to provide additional instructions from the Michigan Criminal Jury Instructions or to specifically instruct the jury that Selma's charges could be reinstated in order to satisfy due process. Petitioner is not entitled to relief on this claim.
2. Premeditated Murder and Armed Robbery Instructions
Petitioner also complains because the trial court initially instructed the jury on both premeditated and felony murder and failed to instruct the jury on armed robbery. Following an in-chambers conference, however, the trial court informed the jurors that premeditated murder was not an issue in the case and correctly defined the elements of armed robbery. See Trial Tr., Vol. VI, pp. 16, 19-20, 25-27.
The Michigan Court of Appeals concluded while the instructions were not ideal, they sufficiently presented the issues to be tried and protected Petitioner's rights. Harris, slip op. at 2. The Court of Appeals' determination in this regard is consistent with federal law and constitutes a reasonable application of that law. The trial court ultimately instructed the jury on the elements of the charged offenses of felony murder and armed robbery. Petitioner has not established that the jury was confused by the trial court's instructions or that he was denied a fair trial. Petitioner is not entitled to habeas relief on this claim.
3. Felony Firearm Instruction
Petitioner next claims that the trial court failed to sufficiently instruct the jury on the elements of the felony firearm offense. The trial court instructed the jury:
Now, ladies and gentlemen of the jury, there is a second count in the Information and the statute on that count is as follows: A person who carries, or has in his possession a firearm at the time he commits, or attempts to commit a felony, is guilty of a felony.
Trial Tr., Vol. V, pp. 22-23. The Michigan Court of Appeals concluded that the trial court adequately instructed the jury regarding the elements of felony firearm by reading the statute. Harris, slip op. at 2. The Michigan Court of Appeals' determination in this regard is reasonable and consistent with federal law. The statute informed the jury of the requisite elements. In addition, the trial court instructed the jury that the prosecution bears the burden of proving guilt of the charged offenses beyond a reasonable doubt. Petitioner has not shown how the jury may have been confused by the reading of the statute. He is not entitled to habeas relief on this claim.
4. Attempt, Aiding and Abetting, and Manslaughter Instructions
Petitioner asserts that the trial court failed to fully instruct the jury on attempt, aiding and abetting, and manslaughter. With respect to attempt and aiding and abetting, the trial court informed the jury that to be guilty of first-degree felony murder, the prosecution must prove that Petitioner was "committing, or attempting to commit, or assisting another in the commission of, the crime of robbery armed." See Trial Tr., Vol. VI, p. 19. The trial court also read the state statute which abolished the distinction between an accessory and a principal. Id. at 22. In instructing the jury on manslaughter, the trial court informed the jury that the prosecution must prove that a death occurred, that Petitioner caused the death, that Petitioner acted without lawful justification or excuse, and that Petitioner intended to kill or created a very high degree of risk of death with knowledge of the probable consequences of his actions. The trial court did not instruct the jury on heat of passion or provocation. Id. at 21-22.
The Michigan Court of Appeals concluded that any error in failing to fully instruct the jury on aiding and abetting and manslaughter was harmless, stating:
Given that this case turned on the jury's evaluation of Selma's credibility and she clearly testified that defendant shot and robbed the victim, the court's incomplete instructions on aiding and abetting and manslaughter were not prejudicial. People v. Woods, 416 Mich. 581, 600-601; 331 N.W.2d 707 (1982).Harris, slip op. at 2. The Court of Appeals' decision is neither contrary to federal law nor an unreasonable application of that law.
The evidence presented at trial indicated that the victim was robbed and killed. Attempt was not an issue. Accordingly, it cannot be said that the trial court erred in failing to provide additional instructions on attempt. Similarly, although the trial court noted that Petitioner could be found guilty of the charged offenses as a principal or as an aider and abettor, the evidence, namely Selma's testimony, indicated that Petitioner acted as a principal. Neither the prosecution nor the defense claimed that Petitioner aided and abetted the crimes charged. The prosecution argued that Petitioner was the robber and the shooter, while the defense argued that Selma was the shooter and Garrison was the robber. Given these circumstances, Petitioner has not shown that the failure to fully define attempt or aiding and abetting resulted in a federal due process violation.
It is undisputed that the trial court failed to instruct the jury on the heat of passion and provocation elements of manslaughter. However, even assuming that the trial court's failure to properly instruct the jury on manslaughter was an error of constitutional magnitude, such error was harmless. For purposes of federal habeas review, a constitutional error that implicates trial procedures is considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Gilliam v. Mitchell, 179 F.3d 990, 995 (6th Cir. 1999) (harmless error standard announced in Brecht applies even if a federal habeas court is the first to review for harmless error); see also O'Neal v. McAninch, 513 U.S. 432, 445 (1995) (habeas court should grant petition if it has "grave doubt" about whether trial error had substantial and injurious effect or influence upon the jury's verdict).
In this case, neither the prosecution nor the defense claimed that Petitioner was guilty of manslaughter. The prosecution argued, and Selma testified, that Petitioner shot and robbed the victim. Petitioner's defense at trial was to attack Selma's credibility and to argue that she and Garrison were responsible for the robbery and murder. Petitioner has not shown that the trial court's incomplete jury instructions had a substantial or injurious effect or influence upon the jury's verdict. He is not entitled to habeas relief on this claim.
5. Nolle Prosegui Order
Petitioner claims that the trial court, while instructing the jury on the evaluation of Lucinda Selma's testimony, violated his right to a fair trial and improperly bolstered her credibility by reading the text of the nolle prosequi order that had dismissed the charges against Selma. The trial court instructed the jury, in relevant part, as follows:
You may consider whether there has been any reward or inducement offered which may have caused [Selma] to testify falsely. And in this regard, ladies and gentlemen of the jury, may I read to you the order in this case that was filed and signed by the chief judge of this court. It is an order of nolle prossing the case of Lucinda Selma on March 10, 1977. Present was the Honorable James N. Canham, Circuit Judge. The order reads as follows:
Good and sufficient reasons having been entered upon the records of this Court by the assistant prosecutor for not proceeding further with prosecution among which it appears that
I. The defendant, Lucinda Selma, has agreed to become a prosecution witness and testify against the individuals responsible for the planning and execution of the robbery-murder that is the subject matter of the case at bar.
II. As an indication of Ms. Selma's willingness to cooperate with the prosecution, she made a video-taped confession on Tuesday, March 29, 1977 and implicated a Curtis Bernard Harris and a David Garrison as the parties responsible for the above mentioned robbery-murder.
III. The prosecution has no reason to believe Lucinda Selma was the shooter in the above mentioned case.
It is ordered that a nolle prosequi of the above entitled cause be, and the same is, hereby entered;
It is further ordered, that the bail bonds heretofore filed in such case be, and the same are, hereby cancelled and the particular person released and discharged.
That is signed by James N. Canham, Circuit Judge.
You may consider whether there have been any rewards or inducements offered, which may have caused her to testify falsely, if that is the situation.
Trial Tr., Vol. VI, pp. 13-14.
The Michigan Court of Appeals concluded that the trial court's action did not require reversal, stating:
While the trial court's action was not ideal, we do not think defendant was denied a fair trial. Selma testified at trial that she was originally charged in this crime but that those charges were dropped in exchange for her testimony. In addition, the trial court informed the jury that the instructions were not to be considered evidence. Furthermore, the order was read in the context of elaborating on the instruction that the jury was to consider "any inducement offered which may have caused [Selina] to testify falsely." The jury was also instructed that if it believed Selma was an accomplice it must examine her "testimony closely and accept it only with caution and care." We find no error requiring reversal.Harris, slip op. at 3.
Because the Michigan Court of Appeals did not clearly address whether the trial court's reading of the nolle prosequi order violated Petitioner's federal rights, this court must conduct an independent review of the state court's decision. See, e.g., Harris, 212 F.3d at 943.
Upon review, this court concludes that the Michigan Court of Appeals' decision on this issue is neither contrary to established United States Supreme Court precedent nor an unreasonable application of federal law. The court agrees that reading the text of the nolle prosequi order during final jury instructions was "not ideal," i.e., it should not have occurred, it nonetheless did not render Petitioner's trial fundamentally unfair.
The Constitution guarantees every criminal defendant the right to have a jury determine whether he or she is guilty of a charged offense, and to have the trial before an impartial judge and jury. See United States v. Gaudin, 515 U.S. 506, 522-23 (1995). A trial judge must scrupulously avoid expressing or implying his or her opinion on the merits of the case or the weight of particular evidence, lest the jury substitute the trial judge's opinion for its own. See United States v. Hickman, 592 F.2d 931, 933 (6th Cir. 1979); accord United States v. Chanthadara, 230 F.3d 1237, 1248 (10th Cir. 2000) (citing cases). A trial judge's comments on the credibility of witness testimony or the defense theory may invade the province of the jury and violate a criminal defendant's right to a fair trial. Anderson v. Warden, 696 F.2d 296, 301 (4th Cir. 1982) (habeas relief granted where trial court held alibi witnesses for perjury, admonished witnesses in front of jury, and told jurors that witnesses lied in initial testimony but were truthful in subsequent testimony); cf. Chanthadara, 230 F.3d at 1250-51 (judge's characterization of defense as "smoke screen," reported in newspaper and seen by six jurors, prejudiced defendant but was harmless); United States v. Fuller, 162 F.3d 256, 259 (4th Cir. 1998) (trial judge's statement that he did not accept defendant's testimony was "most troubling," but harmless).
In this case, however, the trial judge did not comment directly upon the credibility of Selma's testimony. The judge did not express anything resembling a personal belief as to either Selma's testimony or Petitioner's guilt or innocence. The trial judge did not imply that other evidence existed which supported a finding of guilt. The text of the nolle prosequi order reflected nothing extraneous, that is nothing more than the prosecution's theory of the case. It reiterates information, presented from the point of view of the prosecution and derived from Selma's testimony, which had been already placed before the jury, without objection, since before the trial itself began, i.e. since during the jury voir dire, See Trial Tr., Vol. I, pp. 25.
First, and most importantly, the order spells out the possibility of "rewards and inducements" for Selma's testimony. She had faced charges that are now to be dismissed; she had been on a bond that is now to be discharged. The order indicates that Selma "agreed to become a prosecution witness;" the court raised that point as well during voir dire, both counsel talked about it in their opening statements and she said exactly that during her testimony. See Trial Tr., Vol. II, pp. 52-53; Vol. III, pp. 54-56.
The order indicates that her testimony would be "against" those persons "thought responsible for the crime," in other words, those whom the prosecution had charged. It should not be a surprise to find that a case has been undertaken against those persons whom the prosecution "thought" to be "responsible for the crime." The order indicates that Selma had "implicated" Petitioner and Garrison in statements to police; there is no dispute that that is what she did. She was subjected to extensive cross examination about her statements to the investigators. See, e.g., Trial Tr., Vol. II, pp. 41-42. The order indicates that Selma was "not believed to be the shooter." Such was exactly the prosecution's theory, clearly explained and argued at trial, although disputed by the defendant's theory.
The court concludes that the trial court did not improperly vouch for Selma's credibility or otherwise interfere with the jury's function at trial. Cf. Hartey v. Vaughn, 186 F.3d 367, 371-72 (3rd Cir. 1999); United States v. Roberts, 618 F.2d 530, 536-37 (9th Cir. 1980).
It must again be emphasized, as it was by the Michigan Court of Appeals, that the nolle prosequi order was read to the jury as part of the trial court's "accomplice testimony" instruction, which informed the jury that it should be especially critical of Selma's testimony due to her possible criminal involvement and probable inducements. The trial court neither directed the jurors to accept the prosecution's theory nor indicate that they should find Selma's testimony credible.
It appears that the trial court also may have thought that reading the order could help to clarify Selma's legal situation. The record shows that defense counsel commented upon Selma's deal and highlighted the supposed effect of the nolle prosequi order in his opening and closing comments, triggering objections from the prosecutor. Some of defense counsel's statements were cast so as to allege an ability on the part of the prosecutor to dismiss and reinstate Selma's charges on a mere whim. Petitioner's defense attorney, for example, said in his opening statement that the prosecution "hold[s] the threat of the reinstatement of the charges over the witness's head." See Trial Tr., Vol. I, p. 110. Although cautioned at the commencement of trial, the defense attorney again leveled the charge in his closing argument. He said that the dismissal "did not prevent and will not prevent and does not prevent the prosecutor from reinstating the case against her if they become unhappy with her testimony." See Trial Tr., Vol. V, p. 48. The inaccuracy of the statements required a counter argument by the prosecution, to the effect that good cause (a "good showing") was needed, that a court's order was the device to either dismiss or to reinstate, and that the witness was entitled to representation by her own counsel. See Trial Tr., Vol. I, pp. 109-11; Vol. V, p. 66.
Further, it appears from the record, Trial Tr., Vol. V, pp. 7-10, that in the midst of a contested jury charge discussion on accomplice testimony, the court clearly alerted the attorneys that the nolle prosequi order would be read. There was no indication at that point, or elsewhere, of the source of the idea to read the order, nor was there any objection recorded from either side. Final arguments ensued. Only after the instructions was there an objection recorded by the defense, in which the defense attorney suggests that the "body of the order of immunity [sic] . . . covered matters which were not in evidence." Trial Tr., Vol. V, p. 30. The absence of timely objection diminishes the probability of finding trial court error in this instruction. See U.S. v. Hook, 781 F.2d 1166, 1172-1173 (6th Cir. 1986) ("An improper jury instruction will rarely justify reversal of a criminal conviction when no objection has been made at trial. . . .") (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)).
Defense counsel had objected to the omission of some paragraphs from a standard version of the instruction.
Lastly, this court finds that the trial court's jury instructions as a whole cured any possible prejudice to Petitioner caused by the inclusion of the text of nolle prosequi order. See, e.g., Fuller, 162 F.3d at 260. The trial court specifically instructed the jurors that they were to determine the facts and assess witness credibility, that the trial court's comments and instructions were not evidence, and that jurors should disregard any perceived opinion of the court. See Trial Tr., Vol. VI, pp. 3-6, 23-24. Importantly, the trial court instructed the jury to view Selma's testimony with care and caution. Id. at 11-14. Jurors are presumed to follow the court's instructions. See United States v. Powell, 469 U.S. 57, 66 (1984) ("Jurors . . . take an oath to follow the law as charged, and they are expected to follow it.").
Given the trial court's instructions as a whole and the context in which the nolle prosequi order was read to the jury, it cannot be said that Petitioner was denied a fundamentally fair trial. Petitioner thus is not entitled to habeas relief based upon the trial court's reading of the nolle prosequi order during final jury instructions.
V. Conclusion
For the reasons stated, the court concludes that Petitioner is not entitled to habeas relief on the claims presented.
Accordingly;
IT IS ORDERED that the petition for writ of habeas corpus is DENIED.