Opinion
Civil No. 98-CV-70882-DT.
May 25, 2000.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Bradford King, ("petitioner"), presently confined at the Gus Harrison Correctional Facility in Adrian, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed by Peter Jon Van Hoek of the Michigan State Appellate Defender's Office, petitioner challenges his conviction and sentence on one count of first degree murder, M.C.L.A. 750.316; M.S.A. 28.548, and one count of felony-firearm, M.C.L.A. 750.227b; M.S.A. 28.424(2). For the reasons stated below, petitioner's application for writ of habeas corpus is DENIED.
I. BACKGROUND
Petitioner was charged with shooting and killing his wife Diane King in the driveway of their residence in Fredonia Township, Michigan on February 9, 1991. The murder received substantial publicity because the victim was a popular newscaster for a local television station in nearby Battle Creek, Michigan and petitioner was a former police officer and an instructor in the criminal justice program at Western Michigan University. Petitioner was not charged with this offense until January 31, 1992, almost one year after the shooting. A trial was conducted before the Calhoun County Circuit Court between November 3 and December 14, 1992, after which petitioner was found guilty as charged.
Prior to trial, petitioner filed a motion for change of venue, based upon a survey undertaken at defense counsel's request which found that 94% of the 200 Calhoun County residents polled were aware of the murder. of these respondents, 36% believed that petitioner was responsible for the murder, 1% thought someone else was responsible, and 63% of those surveyed were uncertain. After the survey participants had been informed that petitioner had been charged with this murder, the respondents were asked whether they thought that he was guilty or not guilty. Some 27% thought that he was guilty of the crime with the remainder either stating that petitioner was not guilty or that they were uncertain or did not know. Defense counsel also presented numerous articles written in various media outlets in Western Michigan, including in the Calhoun County area, pertaining to the case. The trial court ruled that an attempt would be made to seat an impartial jury, noting that with the extent of the publicity in this case, a survey conducted in any county in Michigan might yield the same result.
See Calhoun County Event Awareness Study, Conducted for Miller, Johnson, Snell, and Cummisky, July, 1992, attached as part of petitioner's Appendices, Volume I.
Jury selection commenced on November 3, 1992. Prior to selecting the jury, the trial court denied defense counsel's request to delay jury selection until various pre-trial motions were resolved by the court. Petitioner's counsel stated that he was in a dilemma because without the delay of jury selection, he would not know what evidence would be placed before the jury at trial and would therefore be unable to question the jurors as to their various biases.
Jury selection took four days, during which ninety five (95) potential jurors were questioned by the court and counsel. of those 95 veniremen, all but one indicated that they were familiar with the case through the media or other contacts. 38 potential jurors were excused for cause because they had either reached a conclusion that petitioner was guilty, they could not ignore their knowledge of the media reports, or for other biases in the case. Three potential jurors were excused for cause because they had concluded that petitioner was not guilty. Petitioner challenged an additional thirteen potential jurors for cause, but these challenges were denied. Petitioner used all twelve peremptory challenges as allowed for under Michigan law, but indicated at the conclusion of the voir dire that he was not satisfied with the jury. However, all of the jurors ultimately seated indicated under oath to the trial court that they would decide the case based on the evidence presented in court and would follow the court's presumption of innocence. All of the seated jurors denied having an opinion regarding petitioner's guilt. At the close of voir dire, the trial court denied the motion for change of venue. The court also denied petitioner's requests for additional peremptory challenges and for the jury to be sequestered during the trial.
Prior to the beginning of trial, the trial court ruled that evidence that petitioner had engaged in extramarital sexual affairs with several women prior to his death would be inadmissible so long as petitioner did not put his motive into issue. However, in his opening argument, the prosecutor prepared a time line chart of certain critical events in the case. On this chart, the prosecutor listed various references to the petitioner meeting with several women, using the terms "date", "lunch date", or "movie date". The prosecutor also made statements that petitioner went to the home of prosecution witness Julie Cook on the night of December 11, 1991, when his wife and children were out of town, and from there called his wife and told her that he was working late in the office. The prosecutor made further references to petitioner meeting with other women. Petitioner moved for a mistrial, contending that the prosecutor was seeking to circumvent the trial court's ruling that evidence of petitioner's alleged extramarital affairs was inadmissable. The trial court denied the motion, ruling that the prosecutor's references to "dates" was not so blatant so as to grant a mistrial. The trial court ordered that the prosecutor's chart not be used further and ordered it removed from the courtroom. The prosecutor later called Julie Cook, Ann Hill, and Heather Taylor to testify. While none of these witnesses testified that they engaged in sexual relationships with petitioner, they did corroborate the dates, times, and locations of the "dates" referred to on the chart and by the prosecutor in his opening argument.
Throughout trial, various witnesses testified that the victim had received a number of telephone calls at the television station where she worked from a man who indicated that he wanted to meet with her to discuss possible career opportunities for him in journalism. The jury also heard evidence that the victim received at least one letter at her house, with the words in the letters cut out from various magazines or newspapers, stating that the victim "should have gone out to lunch with me." During opening argument, the prosecutor indicated that the victim was frightened by these calls and letters. He also made the following comments:
Now, probably you're all familiar with these types of notes from watching television programs and movies. And the television programs and in the movies these crazed killers send these notes to the victims. But the experts know one thing, experience shows that these notes are either from family members or the defendant himself."
Defense counsel objected to the argument. During a break in opening arguments, defense counsel moved for a mistrial on the basis of these comments, stating that he was never made aware of any potential expert testimony on this subject. The trial court denied the motion for mistrial but ordered the prosecutor not to discuss the matter in front of the jury until a foundation for such testimony could be established. Later, the prosecutor attempted to present testimony from a police officer as an "expert witness" on the probable source of these threatening letters, but the trial court sustained defense counsel's objection to the officer being qualified as an expert witness on the matter.
Later during the trial, the prosecution called Joanne Karaba as a witness. Karaba testified concerning her knowledge of the victim's fears concerning the phone calls and letters. Several times, defense counsel objected to the prosecution's questions as an attempt to elicit hearsay testimony from Karaba. When the prosecutor asked Karaba if the victim had any idea who the caller was on the phone, the trial court sustained defense counsel's objection to this question on the ground that it was hearsay. However, when the prosecutor asked Karaba about the victim's concerns about the letter that she had received, Karaba indicated that at one time the victim said, with respect to the phone calls that she was receiving, that she thought that petitioner was playing a "sick joke" on her. Karaba related that the two of them laughed about this. Defense counsel again moved for a mistrial, but the trial court denied the motion, stating that since Karaba and the victim laughed about their suspicions, the testimony was not sufficiently prejudicial to warrant a mistrial. The trial court instructed the jury to disregard Karaba's testifimony that the victim suspected that petitioner made these phone calls.
Petitioner was convicted of first degree murder and felony-firearm. His conviction was affirmed on appeal. People v. King, 215 Mich. App. 301; 544 N.W.2d 765 (1996); Iv. denied 454 Mich. 865; 560 N.W.2d 634 (1997). Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. PETITIONER'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND AN IMPARTIAL JURY WERE DENIED BY THE TRIAL COURT'S FAILURE TO GRANT A CHANGE OF VENUE; REFUSAL TO DELAY SELECTION OF THE JURY UNTIL ALL PRE-TRIAL MOTIONS IN LIMINE WERE RESOLVED; REFUSED TO GRANT PETITIONER EXTRA PEREMPTORY CHALLENGES; AND REFUSAL TO SEQUESTER THE JURY.
II. PETITIONER WAS DENIED DUE PROCESS WHERE THE PROSECUTION, DESPITE A PRE-TRIAL RULING THAT EVIDENCE OF ALLEGED SEXUAL RELATIONSHIPS BETWEEN PETITIONER AND WOMEN OTHER THAN HIS WIFE WAS INADMISSIBLE, INTENTIONALLY USED ITS OPENING ARGUMENT AND TESTIMONY FROM WITNESSES TO INFER THE EXISTENCE OF SUCH RELATIONSHIPS, AND THE TRIAL COURT REFUSED TO GRANT A MISTRIAL.
III. PETITIONER WAS DENIED DUE PROCESS OF LAW WHERE HIS MOTIONS FOR MISTRIAL WERE DENIED AFTER THE PROSECUTOR ASSERTED BEFORE THE JURY THAT HE WOULD PRESENT EXPERT TESTIMONY TO SHOW THAT THE THREATENING LETTER WAS SENT BY MR. KING, AND NO SUCH EXPERT TESTIMONY WAS AVAILABLE, AND LATER A WITNESS TESTIFIED THAT MRS. KING BELIEVED THAT PETITIONER WAS RESPONSIBLE FOR THE PHONE CALLS, DESPITE THE COURT'S RULING THAT SUCH EVIDENCE WAS INADMISSIBLE.
IV. PETITIONER WAS DENIED DUE PROCESS OF LAW WHERE THE TRIAL COURT FAILED TO CONTROL MEDIA COVERAGE OF THE TRIAL, WHICH INTERFERED WITH THE SEQUESTRATION OF THE WITNESSES, AND FAILED TO FULLY INVESTIGATE AND BAR THE TESTIMONY OF ANY WITNESSES WHO VIOLATED THE SEQUESTRATION ORDER.
II. STANDARD OF REVIEW
The provisions of the Antiterrorism and Effective Death Penalty Act (A.E.D.P.A) govern this case because petitioner filed his habeas application after the effective date of the AEDPA. See Lindh v. Murphy, 521 U.S. 320 (1997). The Act altered the standard of review that a federal court must use when reviewing applications for writs of habeas corpus. 28 U.S.C. § 2254(d) 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); Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
With respect to the "contrary to" clause, there are two situations in which a state court decision will be contrary to clearly established federal law. First, a state court decision will clearly be contrary to the Supreme Court's clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the Supreme Court's cases. Second, a state-court decision would also be contrary to the Supreme Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from the Supreme Court precedent. Williams v. Taylor, 120 S. Ct. 1495, 1519-1520 (2000). On the other hand, a "run-of-the-mill state-court decision" which applied the correct legal rule from the Supreme Court's cases to the facts of a petitioner's cases would not fit comfortably within the "contrary to" clause in § 2254(d)(1). Id. at 1520. These cases should be reviewed under the "unreasonable application" language of § 2254(d)(1).
A federal habeas court making the "unreasonable application" inquiry must ask whether the state court's application of clearly established federal law was objectively unreasonable. Williams v. Taylor, 120 S.Ct. at 1521. Although the term unreasonable is difficult to define, it is a common term in the legal world, and federal judges are familiar with its meaning. An unreasonable application of federal law is different from an incorrect application of federal law. Thus, a federal habeas court may not issue a 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, the application must also be unreasonable. Id. at 1522.
Finally, the term "clearly established federal law" refers to the holdings as opposed to the dicta of the U.S. Supreme Court's decisions at the time of the relevant state court decisions. Williams v. Taylor, 120 S.Ct. at 1523.
A federal court must apply the presumption of correctness to state court findings of fact for habeas corpus purposes unless convincing evidence is offered to rebut this presumption. Warren v. Smith, 161 F.3d 358, 360-361 (6th Cir. 1998); 28 U.S.C. § 2254(e)(1). A state appellate court's findings of fact are also entitled to the presumption of correctness. Martin v. Rose, 744 F.2d 1245, 1252 (6th Cir. 1984); French v. Jones, 41 F. Supp.2d 726 (E.D. Mich. 1999) (Tarnow, J.).
III. DISCUSSION
A. Claim #1. Petitioner was not deprived of a fair trial by pre-trial publicity.
Petitioner first claims that he was denied a fair trial because of the extensive pretrial publicity in this case. The Sixth Amendment guarantees the right to a trial by an impartial jury. Duncan v. Louisiana, 391 U.S. 145, 147-149 (1968). The constitutional standard of fairness requires that a defendant in a criminal case have a panel of impartial, "indifferent" jurors. Irvin v. Dowd, 366 U.S. 717, 722 (1961).
There are two types of prejudice which can arise in cases where jurors are exposed to pre-trial publicity. Prejudice to a defendant can be presumed in cases where the influence of the news media, either in the community at large, or in the courtroom itself, "pervaded the proceedings". Murphy v. Florida, 421 U.S. 794, 798-799 (1975) (internal citations omitted). However, pre-trial publicity, even pervasive adverse publicity, does not inevitably lead to an unfair trial. De Lisle v. Rivers, 161 F.3d 370, 382 (6th Cir. 1998). The "indicia of impartiality" on the part of a jury is disregarded only in those cases `where the general atmosphere in the community or the courtroom is sufficiently inflammatory'. Id. at 382 (quoting Murphy v. Florida, 421 U.S. at 802). The mere prior knowledge of the existence of a case, or familiarity with the issues involved, or even some pre-existing opinion as to the merits of the case, does not in and of itself raise a presumption of a jury taint. De Lisle, 161 F.3d at 382.
A person is not automatically rendered unqualified to serve as a juror merely because he or she has been exposed to media coverage of the charged offense; the issue becomes whether the exposure to media publicity will preclude the individual from returning a verdict based solely on the person's application of the law as stated to the evidence presented. United States v. Hall, 152 F.3d 381, 411 (5th Cir. 1998).
In the present case, petitioner has presented no evidence to the Court showing the type of extensive or inflammatory pre-trial publicity that has been condemned by the U.S. Supreme Court. This Court has reviewed the extensive news articles about the case submitted with the petition. The stories were factual in nature and did not present a bias against petitioner. Some of the stories were, in fact, favorable to petitioner. Several articles at the time of petitioner's arrest indicated that petitioner's four year old son, who was in the victim's car at the time that she was shot, had indicated to investigators that two other men, and not petitioner, had killed his mother. The U.S. Supreme Court has emphasized the negative effect of pre-trial publicity when the publicity amounts to an "out-of-court campaign to convict", reflecting "inflamed public sentiment." De Lisle v. Rivers, 161 F.3d at 385 (quoting Shepherd v. Florida, 341 U.S. 50, 52-53 (1951)). However, coverage that consists of "straight news stories rather than invidious articles which tend to arouse ill will and vindictiveness" are not so troubling. Id. at 385 (quoting Beck v. Washington, 369 U.S. 541, 556 (1962)).
Moreover, with a few exceptions, most of the articles about the murder ended in March of 1992, which was over seven months before petitioner's trial began. After April of 1992, there were only two articles about the case, both of which appeared in the Battle Creek Enquirer and Kalamazoo Gazette on July 18, 1992 and which merely stated that a trial date had been set in the case. Petitioner has presented no evidence to this Court of any articles about the case occurring at the time of the trial. The timing of the publicity is a factor to be considered in determining whether pre-trial publicity is prejudicial to a defendant. Hayton v. Egeler, 405 F. Supp. 1133, 1138 (E.D. Mich. 1975) (Kennedy, J.). Because there is no evidence that there was a flurry of publicity about the case either immediately before or during the trial, petitioner would be unable to show that he had been unduly prejudiced by the earlier publicity. Id. at 1140. Petitioner has failed to present any evidence of any news stories about his case that were unduly inflammatory or vindictive or which demonstrated an "out-of-court campaign" to convict him.
Moreover, there is nothing from the record or the habeas petition to indicate that the courthouse in petitioner's trial was "conducted in a circus atmosphere, due in large part to the intrusion of the press". Murphy v. Florida, 421 U.S. at 799 (quoting Estes v. Texas, 381 U.S. 532 (1965)). Petitioner has presented no evidence to demonstrate that the general atmosphere in the community or courtroom was "sufficiently inflammatory" for either the Michigan courts or the court to disregard the jury's "indicia of impartiality". Murphy v. Florida, 421 U.S. at 802. In this case, there are no allegations made by petitioner that his trial took place under the conditions of "total chaos" that prevailed in cases like Estes or Sheppard. A review of those cases leaves no doubt that it was "that chaos which drove those decisions". DeLisle v. Rivers, 161 F.3d at 384 (citing to Murphy v. Florida, 421 U.S. at 799). Because the record does not indicate that petitioner's trial took part in a "circuslike atmosphere", the court cannot presume prejudice to petitioner's case merely because the jurors were exposed to pre-trial publicity about his case.
Sheppard v. Maxwell, 384 U.S. 333 (1966).
Petitioner has also failed to show actual prejudice to his case from the jurors' exposure to the pre-trial publicity. To demonstrate actual prejudice, petitioner must show that one or more jurors entertained an opinion before trial that petitioner was guilty and that these jurors could not put this prejudice aside and render a verdict based solely upon the evidence. Mills v. Singletary, 63 F.3d 999, 1009 (11th Cir. 1995). The test for whether pre-trial publicity necessitates a change in venue is whether a juror exposed to pre-trial publicity can lay aside his or her impression or opinion and render a verdict based upon the evidence presented in court. Kelly v. Withrow, 822 F. Supp. 416, 427 (W.D. Mich. 1993).
In this case, there is nothing from the record to show that any pre-trial publicity tainted the jury pool where none of the jurors indicated that they had formed an opinion about the case from the stories that they had read or heard about either from the media or from persons in the community. The facts in this case do not even remotely approach those cases where courts have found that extensive pre-trial publicity denied a defendant a fair trial by tainting the jury. In Irvin v. Dowd, 366 U.S. at 728, the U.S. Supreme Court found actual prejudice to a defendant being tried for rape and murder where the rural community where he was being tried had been subjected to a "barrage" of inflammatory publicity immediately prior to trial, including information on the defendant's prior convictions, his confession to twenty four burglaries and six murders, and his unaccepted offer to plead guilty to the murder charge to avoid the death penalty. In finding actual prejudice to the defendant, the U.S. Supreme Court noted that eight of the twelve jurors who actually sat on the case had formed an opinion that the defendant was guilty before the trial began, with some jurors indicating that it would take evidence to overcome that belief. Id.
By contrast, none of the jurors seated here indicated that they had formed any opinion about petitioner's guilt or innocence from the pre-trial publicity. In response to the trial court's voir dire, all of the jurors indicated that they could be fair and impartial and would be willing to find petitioner not guilty if the prosecutor failed to prove guilt beyond a reasonable doubt. A prospective juror's exposure to pre-trial publicity does not merit his or her disqualification, where the juror states unequivocally, as was the case here, that he or she would decide the case on the facts brought out at trial. McQueen v. Scroggy, 99 F.3d 1302, 1319 (6th Cir. 1996). Petitioner has failed to establish actual prejudice on the part of these jurors in light of the fact that all of the jurors seated indicated that they had not formed an opinion about the case from their pre-trial exposure to stories about the case and would base their judgment solely upon the evidence introduced in the trial court. See Gilday v. Callahan, 866 F. Supp. 611, 625 (D. Mass. 1994).
In the present case, the trial court's determination that the jurors' assurances of impartiality were credible is a credibility determination entitled to special deference by a federal habeas court. Patton v. Yount, 467 U.S. 1025, 1038 (1984). A trial court's finding of juror impartiality will be overturned only for manifest error. Id. at 1031; Hill v. Brigano, 199 F.3d 833, 843 (6 th Cir. 1999). Petitioner has offered no evidence to rebut this presumption. Because petitioner has failed to show that there was extensive inflammatory pre-trial publicity about his case or that his jury panel was tainted by such publicity, he has failed to show that the Michigan Court of Appeals' decision affirming his conviction on this claim was an unreasonable application of law or an unreasonable determination of the facts based on the record presented in the trial court.
Petitioner's related claims on this issue must fail also. There is no constitutional right to peremptory challenges. McQueen v. Scroggy, 99 F.3d at 1320-1321. The failure of a state trial court to grant a habeas petitioner additional peremptory challenges is not a constitutional violation where he or she received all of the peremptories that a defendant is entitled to under state law. Bonin v. Vasquez, 794 F. Supp. 957, 975 (C.D. Cal. 1992) (citing to Ross v. Oklahoma, 487 U.S. 81, 89 (1988). Because petitioner received the maximum number of peremptory challenges available to him under Michigan law, he is not entitled to habeas relief on this issue.
Likewise, the trial court's failure to sequester the jury would not entitle petitioner to habeas relief because there is no federal constitutional right to jury sequestration. Powell v. Rose, 581 F. Supp. 60, 63 (M.D. Tenn. 1983). The trial court's failure to sequester the jury here did not deprive petitioner of due process, where the trial court instructed the jury to avoid reading, listening, or watching the media coverage of the case and there was no evidence that the jury had been tainted by the publicity. Lydon v. Kuhlman, 62 F. Supp.2d 974, 979 (E.D.N.Y. 1999).
Petitioner lastly contends that he was deprived of a fair jury because the trial court refused to rule on his pre-trial motions prior to jury selection, thus depriving him of the right to question prospective jurors about possible biases about certain types of evidence that might be introduced against him at trial. The conduct of voir dire is best left to the trial court's sound discretion. Morgan v. Illinois, 504 U.S. 719, 729 (1992). Although the federal constitution requires inquiries into certain biases such as race, Ham v. South Carolina, 409 U.S. 524, 527 (1973), the constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice the veniremen against him. Id. at 527-528; Ristaino v. Ross, 424 U.S. 589, 594 (1976). A state's obligation to defendant to impanel an impartial jury generally can be satisfied by less than an inquiry into the specific prejudice feared by a defendant. Ristaino, 424 U.S. at 594-595; Skaggs v. Parker, 27 F. Supp.2d 952, 978 (W.D. Ky. 1998).
In the present case, petitioner does not complain that the trial court did not permit him to inquire of potential jurors during voir dire about any racial or ethnic biases against petitioner. Petitioner does not even allege that the trial court refused to permit him to ask potential jurors about their feelings or attitudes towards certain evidence that might or might not be introduced into evidence, particularly evidence that petitioner had engaged in extramarital affairs. Instead, petitioner alleges that because the court had not ruled on these pre-trial motions prior to voir dire, petitioner was faced with the choice of either questioning jurors about their attitudes about evidence which might later be ruled inadmissible, or refrain from questioning the jurors about their attitudes on these issues to avoid tainting them with these allegations against petitioner in the event that the evidence was excluded. However, because the trial court did not prevent petitioner from asking these questions on voir dire, petitioner is not entitled to habeas relief on this claim.
B. Claims #2 and #3. Petitioner was not denied a fair trial by prosecutorial misconduct.
Petitioner's next two claims have been consolidated because they both allege instances of prosecutorial misconduct.
A. Standard of Review.
When a petitioner seeking habeas relief makes a claim of prosecutorial misconduct, the reviewing court must consider that the touchstone of due process is the fairness of the trial, not the culpability of the prosecutor. On habeas review, a court's role is to determine whether the conduct was so egregious as to render the entire trial fundamentally unfair. Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355-1356 (6th Cir. 1993). A criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for a prosecutor's statements or conduct must be viewed in context and only in doing so can it be determined whether the prosecutor's conduct affected the fairness of the trial. See United States v. Young, 470 U.S. 1, 11 (1985). Moreover, because this case is a habeas case and is not a direct appeal, the inquiry into this issue is less stringent. Spalla v. Foltz, 615 F. Supp. 224, 227 (E.D. Mich. 1985) (Cohn, J.). In evaluating prosecutorial misconduct in a habeas case, consideration should be given to the degree to which the challenged remarks had a tendency to mislead the jury and to prejudice the accused, whether they were isolated or extensive, whether they were deliberately or accidentally placed before the jury, and, except in the sentencing phase of a capital murder case, the strength of the competent proof against the accused. Serra v. Michigan Department of Corrections, 4 F.3d at 1355-1356.
B. Specific Instances of Misconduct.
1. The prosecutor improperly used his opening argument and the testimony of witnesses to infer that petitioner had been engaged in extramarital relationships after the trial court ruled that such evidence was inadmissible.
Petitioner first contends that the prosecutor attempted to circumvent the trial court's ruling that evidence of petitioner's extramarital affairs was inadmissible by referring to "dates" that petitioner had with several women in his opening argument and later by calling several of these women to testify about meeting with petitioner. As petitioner himself admits, none of these women actually testified that they had a sexual relationship with petitioner. Moreover, the contention that the prosecutor's statements were an improper attempt to use petitioner's involvement in other bad acts as evidence in regards to the offense charged presented a question for state evidentiary rules and therefore could not form a basis for federal habeas relief. See High v. Kemp, 819 F.2d 988, 996 (11th Cir. 1987).
2. Variance between the prosecutor's opening statement and the facts at trial.
Petitioner next alleges that the prosecutor committed misconduct because during opening arguments, the prosecutor indicated that he would be calling an expert witness to prove that the threatening letters in this case had been sent by the petitioner. However, later on, the trial court refused to qualify the prosecutor's witness as an expert and permit him to testify on this issue.
Not every variance between the advanced description of the prosecutor in the opening statement of the summary of the testimony that he or she expects to introduce and the actual presentation constitutes reversible error, when a proper limiting instruction is given. Frazier v. Cupp, 394 U.S. 731, 736 (1969).
In the present case, the prosecutor's brief remark about calling an expert witness to testify that the letters were sent by petitioner was not so substantial as to infect the entire trial, particularly where the trial court told the jury that the opening remarks of the attorneys were not to be considered as evidence and they were only to consider the sworn testimony of the witnesses as evidence, and the trial court later instructed the jury that they were the sole judges of the facts. See Fell v. Rafferty, 736 F. Supp. 623, 633 (D.N.J. 1990).
3. Eliciting inadmissible testimony from Joanne Karuba that petitioner was the person responsible for the phone calls to the victim.
As a related claim, petitioner alleges that the prosecution elicited inadmissible hearsay testimony from Joanne Karuba concerning remarks made by the victim identifying petitioner as the person who had made the phone calls to her. The trial court denied the motion for mistrial on the ground that the victim's statement to Karuba appeared to be an offhand comment and that she did not appear to give any validity to the statement in light of the fact that she and Karuba laughed about it.
In deciding whether prosecutorial misconduct mandates that habeas relief be granted, a federal court must apply the harmless error standard. Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997). Where a prosecutor's conduct does not have a substantial or injurious effect on the outcome of the trial, habeas relief should be denied. See Maurino v. Johnson, ___ F.3d ___, 2000 WL 432804, * 10 (6th Cir. April 24, 2000). In light of the fact that Karuba indicated that the victim and her laughed about the possibility of petitioner being the caller, neither woman appeared to take that possibility seriously. Moreover, the trial court gave a cautionary instruction to the jury that they were to disregard her testimony about the victim's statement that petitioner may have been the caller. Any such testimony by Karuba was harmless error at best.
4. Conclusion
Petitioner was not deprived of a fair trial by prosecutorial misconduct.
4. Claim # 4. Petitioner is not entitled to habeas relief where the trial court failed to exclude the testimony of a witness who had viewed the proceedings of the trial from a television monitor outside the courtroom in violation of the trial court's sequestration order.
Petitioner lastly complains that the trial court refused to exclude the testimony of the victim's mother even though she had watched two days of trial testimony from a monitor outside of the courtroom, in violation of the sequestration order.
A trial court's failure to sequester witnesses does not amount to the deprivation of a constitutional right and therefore cannot form the basis of federal habeas relief. Mathis v. Wainwright, 351 F.2d 489, 489 (5th Cir. 1965); Rock v. Zimmerman, 543 F. Supp. 179, 183 fn. 4 (M.D. Pa. 1982). Moreover, even if the trial court erred in failing to exclude the testimony of the victim's mother, petitioner is unable to demonstrate sufficient prejudice to warrant habeas relief. See Blackmon v. Johnson, 145 F.3d 205, 211 (5th Cir. 1998). Petitioner has failed to point to any instances in the mother's testimony which would demonstrate that her testimony was tainted by her exposure to the courtroom proceedings. A habeas petitioner can show no inkling of prejudice where the critical portions of a witness' testimony come solely from their personal knowledge of the circumstances. See Poyner v. State of Iowa, 990 F.2d 435, 439 (8th Cir. 1993). Because petitioner has failed to show that the mother's testimony was somehow tainted by her exposure to the trial proceedings, he is not entitled to habeas relief on this claim.
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.