Opinion
Case Number 00-10410-BC
January 6, 2004
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS
This matter is before the Court on the report of Magistrate Judge Charles E. Binder, to whom this matter had been referred pursuant to E.D. Mich. LR 72.1(d) for general case management, recommending that this petition for the writ of habeas corpus, filed through counsel pursuant to 28 U.S.C. § 2254, be denied for lack of merit. The petitioner, who is presently on parole, filed objections through counsel. After conducting a de novo review of the report, the petitioner's objections thereto, and the other materials on file, the Court concludes, with one exception that does not alter the result, that the magistrate judge correctly determined the issues and correctly applied the governing law. The Court believes that the petitioner is not entitled to relief on the claims advanced and therefore will adopt the recommendation and deny the petition.
I.
The petitioner was charged with being a prisoner in possession of contraband, contrary to Mich. Comp. Laws § 800.281(4). Succinctly stated, the trial evidence disclosed that the Michigan State Police discovered marijuana hidden behind a wall plate in a bathroom at the Michigan Department of Corrections's Camp Lehman facility where the petitioner was then incarcerated. One of the petitioner's jobs as a camp inmate was to clean the bathroom in which the contraband was discovered. The marijuana in question was found in two plastic baggies, and each one contained several pieces of white paper folded into packets. The petitioner's fingerprints (as well as other unidentified prints) were detected on one of the folded papers and on one of the baggies.
The magistrate judge provided a detailed account of the trial evidence in his report. No specific objection was tendered to the magistrate judge's summation of the relevant facts, and the Court will adopt it as its own.
The petitioner raised three claims in his petition for the writ of habeas corpus. First, he states that his right to a fair trial guaranteed by the Due Process Clause was violated when the prosecutor elicited evidence from the petitioner while testifying that the petitioner has used cocaine in the past. The trial court had ruled previously that such testimony was inadmissible. Second, the petitioner argues that the evidence was insufficient to support his conviction because there was no information offered as to when the fingerprints were deposited and there was an innocent explanation for the fingerprints readily apparent in the record. He insists that evidence of the fingerprints alone is constitutionally insufficient to support a verdict of guilt. Third, the petitioner maintains that the trial court should have granted his motion for a new trial when the petitioner discovered evidence after the verdict that had a bearing on the identity of the true owner of the marijuana.
Each of these claims was addressed on direct appeal and rejected by the state court of appeals. People v. Klueger, No. 207752, 1999 WL 33441150 (Mich.Ct.App. June 22, 1999) (per curiam). The Michigan Supreme Court denied review. People v. Klueger, 461 Mich. 952, 607 N.W.2d 725 (2000) (Table). The habeas petition was timely.
The petitioner's objections to the magistrate judge's Report and Recommendation do not assert any new information or specific challenges to the magistrate judge's conclusions on the second and third issues. This Court has carefully considered the magistrate judge's treatment of those issues and concludes that he has applied the governing law correctly to the facts disclosed by the record. The Court, therefore, will adopt the Report and Recommendation as to those claims.
As to the claim of prosecutorial misconduct, the Court believes that the magistrate judge correctly identified the governing law. Prosecutorial misconduct will form the basis for a new trial, and habeas relief, only if the relevant misstatements were so egregious so as to render the entire trial fundamentally unfair based on the totality of the circumstances. Donnelly v. DeChristoforo, 416 U.S. 637, 643-45 (1974). See also Caldwell v. Russell, 181 F.3d 731, 736 (6th Cir. 1999). In deciding whether prosecutor misconduct warrants habeas corpus relief, the court must first decide whether the prosecutor's comments were improper and then determine whether the remarks were sufficiently flagrant by considering four factors: (1) the likelihood that the statements would prejudice the defendant or mislead the jury; (2) whether the remarks were isolated or part of a pattern; (3) whether the prosecutor's statements were deliberately or accidentally presented to the jury; and (4) whether the other evidence against the defendant was substantial. Gall v. Parker, 231 F.3d 265, 311 (6th Cir. 2000), overruled on other grounds by, Bowling v. Parker, 344 F.3d 487, 501 n. 3 (6th Cir. 2003), (citing United States v. Carroll, 26 F.3d 1380, 1385-87 (6th Cir. 1994)).
The magistrate judge suggested that none of the prosecution's questioning was improper. This Court cannot accept that finding. The leading Supreme Court case on prosecutorial misconduct, Donnelly v. DeChristoforo, made clear that federal courts do not have omnibus supervisory authority over the manner in which state courts conduct their trials and prosecuting attorneys present their cases for conviction. See 416 U.S. at 642-43. As a result, prosecutorial misconduct will usually only be found when the prosecution either implicates a specific trial right of the accused enshrined in the Bill of Rights or manipulates or misstates material evidence. See Darden v. Wainwright, 477 U.S. 168, 181-82 (1986); see also Donnelly, 416 U.S. at 643. However, in this case, the state trial judge had issued a prior ruling declaring evidence of the petitioner's prior cocaine "problem" off limits. The state appellate court excused the prosecutor's foray into this forbidden zone as warranted by the petitioner's responses to questions on cross-examination, but the record plainly indicates otherwise. The Michigan Court of Appeals has condemned similar tactics in the past. See People v. Leo, 188 Mich. App. 417, 422, 470 N.W.2d 423, 425 (1991) (holding that "[a] prosecutor cannot elicit a denial during the cross-examination of a defense witness and use such denial to inject a new issue into the case," and reversing conviction where defendant moves prior to trial to exclude evidence).:
Thus, the Court disagrees with the conclusion of the Michigan Court of Appeals and the magistrate judge that no inappropriate questioning occurred. As the trial judge noted, the questions about the petitioner's prior familiarity with the packets in question were fair game. The follow-up questions regarding drug use, however, cannot be justified by anything other than the prosecutor's desire, conscious or not, to evade the spirit of the trial court's ruling forbidding the introduction of evidence of prior drug use. Although the petitioner did volunteer that he had used similar packets "in the streets" for "drugs," Trial Tr., vol. II, at 118-22, he certainly did not through these truthful and responsive answers "open the door" to the follow-up questions regarding the type of drug used (cocaine) and to introduction of evidence that he had been a regular cocaine user before being sent to prison, contrary to the state court of appeals' suggestion.
Nonetheless, the Court agrees with the magistrate judge's conclusion that the four-part test for prosecutorial misconduct counsels against granting relief. First, although evidence that the defendant was a past cocaine user was likely prejudicial, as it allowed the jury to draw an inference that past misconduct made the misconduct at issue more likely, that prejudice was presumably cured by the instruction directing the jury to disregard the petitioner's answers regarding cocaine use and not to consider those statements in their deliberations. See Donnelly, 416 U.S. at 644 (finding curative instruction to be sufficient to cure any prejudicial effect of an allegedly inappropriate prosecutorial comment where "the judge directed the jury's attention to the remark particularly challenged here . . . and admonished the jury to ignore it"). Absent contrary evidence, this Court presumes that juries follow the instructions that they are given in this regard. See Romano v. Oklahoma, 512 U.S. 1, 13(1994).
Second, the objectionable exchange constituted two brief questions and answers out of a multi-day trial. The Court finds that the prosecutor's comments were isolated, and not part of a pattern of improper remarks. Moreover, the trial judge issued a curative instruction shortly thereafter, and the matter did not reappear in the remainder of the proofs or the parties' closing arguments. The petitioner attempts to bolster his showing under the second factor by pointing to other, unrelated prosecutorial misconduct in closing argument, but the Michigan Court of Appeals enforced a procedural default against another misconduct claim challenging the prosecution's closing argument because defense counsel did not contemporaneously object. The Court agrees with the magistrate judge that the inquiry of whether the misconduct in question was "isolated" cannot be supported by separate acts of misconduct not fairly presented to the Michigan state courts for their review. Cf. Lorraine v. Coyle, 291 F.3d 416, 426 (6th Cir. 2002) (holding that ineffective assistance of counsel claim was not exhausted when different theories were advanced in the state courts than on habeas review).
The third factor — whether the prosecutor's statements were deliberately or accidentally presented to the jury — is inconclusive. The Court assumes that a prosecutor has volitional control over the questions being asked in a cross-examination, and that the inquiry into the petitioner's familiarity with white folding papers was therefore, in at least some respect, intentional. The Court also concludes that the follow-up questions regarding the petitioner's drug use were asked when the prosecution knew, or should have known, that it was treading into forbidden territory. On the other hand, the record does not appear to indicate that the prosecution had any idea that it would be so successful in eliciting testimony regarding the petitioner's proficiency in folding white papers containing drugs. Shortly after reveling in its good fortune over the course of a brief follow-up exchange, the prosecution then dropped the subject and moved on, perhaps conscious that it was treading on dangerous ground. Also relevant is the defense counsel's failure to object at the time the subject of the petitioner's past drug use appeared likely to be mentioned. Given the likelihood that a contemporaneous objection could have simply further focused the jury's attention on the exchange, the Court cannot fault defense counsel for waiting until the questioning was concluded and then requesting a curative instruction. Nonetheless, the absence of a contemporaneous reminder from defense counsel to the prosecution about the scope of the questioning makes it difficult to conclude that the prosecutor was proceeding with deliberate indifference to the pretrial orders of the trial court.
The fourth factor, the magistrate judge correctly concluded, weighs in favor of the petitioner. The evidence against him was certainly not strong, although in light of the fact that his fingerprints were found both on the plastic baggie and the white folding papers inside, along with the petitioner's admission that he was proficient at folding such white papers and the demonstration at trial that others unfamiliar with them would have trouble doing so, it cannot be characterized as flimsy or insubstantial. Still, if the other factors weighed in the petitioner's favor, the fourth factor would not preclude relief.
Nevertheless, that is not the case here. Two factors favor the respondent, one is inconclusive, and one favors the petitioner. Under these circumstances, the Court agrees with the magistrate judge that the decision of the Michigan Court of Appeals finding no actionable prosecutorial misconduct on the record was neither contrary to, nor an unreasonable application of Supreme Court precedent.
Finally, this Court is mindful that the Supreme Court has declined to hold that similar "bad acts" evidence is so extremely unfair that its admission violates fundamental conceptions of justice. See Dowling v. United States, 493 U.S. 342, 352-53 (1990). Such matters are more appropriately addressed in codes of evidence and civil procedure than under the Due Process Clause. Id. at 352. Although the Sixth Circuit has suggested that due process is violated whenever the State seeks to introduce evidence that is not rationally connected to the crimes charged, see Manning v. Rose, 507 F.2d 889, 894-95 (6th Cir. 1974), this rule is not grounded in any particular Supreme Court precedent, is not binding on Michigan courts, and is not a proper basis on which to provide habeas relief. See 28 U.S.C. § 2254(d)(1).
The magistrate judge correctly determined that the decision of the state appellate courts affirming the petitioner's conviction was neither contrary to, nor an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States. See id.
Accordingly, it is ORDERED that the Report is ADOPTED IN PART and the
Recommendation is ADOPTED.
It is further ORDERED that the petition for a writ of habeas corpus is DENIED.