Opinion
Case No. 00-10495-BC.
June 12, 2003.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Sheldon March, presently confined at the St. Louis Correctional Facility in St. Louis, Michigan, filed through counsel this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner attacks his convictions of one count of assault with intent to commit armed robbery, contrary to Michigan Compiled Laws § 750.89; two counts of assault with intent to commit murder, contrary to Michigan Compiled Laws § 750.83; one count of armed robbery, contrary to Michigan Compiled Laws § 750.83; and two counts of possession of a firearm during the commission of a felony ("felony firearm"), contrary to Michigan Compiled Laws § 750.227b. He was sentenced to concurrent prison terms of thirty to sixty years for his armed robbery and assault convictions, to be served consecutively to two concurrent two-year prison terms for the felony firearm convictions.
The Court concludes that the decision of the Michigan Court of Appeals affirming the petitioner's convictions was neither contrary to, nor an unreasonable application of clearly established federal law. Accordingly, the petition will be denied.
I.
The petitioner's convictions arise from two closely related incidents. As a result of one incident, the petitioner was convicted of assault with intent to rob while armed and felony firearm regarding victim Angela Plunkey and assault with intent to commit murder and armed robbery regarding victim Kathleen Tomczyk. In the second, the petitioner was charged and convicted of assault with intent to commit murder and felony firearm regarding victim Paul Wallace. The petitioner was acquitted of charges of assault with intent to rob while armed and felony firearm regarding Carl Boris in connection with yet a third incident. Trial Tr., vol VI, at 45-49.
The evidence established that the petitioner, Brian Vaughn, and Antwan Thompson (the petitioner's half-brother), went on a crime spree together. The petitioner and Vaughn approached Angie Plunkey and Kathleen Tomczyk while armed and wearing ski masks. These victims were walking toward their car after leaving a wedding reception at the Croatian Club. Thompson stayed in the petitioner's car. The petitioner demanded that the driver, Tomczyk, surrender her purse. Ms. Tomczyk was just entering her car as the petitioner approached her. She immediately closed and locked the door. She refused to hand over her purse and the petitioner shot her through the rolled up driver's side door window. The window glass shattered and Ms. Tomczyk tossed her purse out the window at the robber. While the petitioner was assaulting and robbing Ms. Tomczyk, co-defendant Brian Vaughn assaulted Angie Plunkey, who was entering the car on the passenger side. Vaughn did not obtain anything of value from Plunkey. Both robbers wore ski masks. A partial palm print, later identified as the petitioner's, was found on the driver's side roof of Ms. Tomczyk's car.
The trio then drove away, with the petitioner at the wheel. A witness, Paul Wallace, had observed the attack and attempted to follow the robbers in his car. After the fleeing robbers fired two or three shots at him and his car, Wallace stopped pursuing the robbers and called the police.
Around this same time, Officer David Bender responded to a report of an earlier incident where armed and masked perpetrators had attempted to rob Stefania Teeples and Carl Boris. Teeples had blown her car horn, put her car in reverse, and gunned the motor when the robbers approached, thwarting their efforts to rob her and her cousin, Boris. Teeples saw and recorded the license plate number of the car in which the would-be robbers fled. The license plate number, LMP-19, was assigned to a vehicle registered in the petitioner's name. Officer Bender broadcast a description of the vehicle and performed a LEIN check.
Officer Bender next proceeded to the SunRidge Apartments, the address to which the vehicle was registered. While there, after speaking with a security guard, Officer Bender heard a report concerning the shooting at the Croatian Club. Officer Bender began driving in the direction of the Croatian Club. However, before arriving there, he saw the vehicle in question traveling in the opposite direction towards the SunRidge Apartments. Officer Bender turned and pursued the vehicle, but lost it in the apartment complex. The vehicle was eventually found in the rear of the complex, unoccupied, with its doors open. The vehicle contained clothing, two ski masks, and the petitioner's driver's license.
The petitioner was apprehended based on the license plate report from the earlier, similar assault and attempted robbery and the discovery of the ski masks and his driver's license in the suspect vehicle. He provided police with a detailed alibi which was not supported by any witness at trial. At trial, the most damaging evidence against the petitioner was provided by his half-brother, Antwan Thompson, who had entered into a plea agreement with the prosecution in exchange for his testimony. The jury was fully informed of Thompson's plea bargain. The petitioner's defense counsel cross-examined Thompson aggressively, accusing him of lying about the petitioner to save himself. Defense counsel argued that Thompson had actually committed the crimes that he accused the petitioner of committing. The petitioner testified on his own behalf and denied that he had committed any of the crimes charged. The jury did not believe the petitioner, however, and convicted him of the charges which are the subject of the instant habeas petition.
The petitioner appealed as of right to the Michigan Court of Appeals, which affirmed his convictions and sentence in an unpublished opinion. People v. March, No. 204178, 1999 WL 33447008 (Mich.Ct.App. April 9, 1999) ( per curiam). The Michigan Supreme Court denied the petitioner's delayed application for leave to appeal. People v. March, 461 Mich. 940, 606 N.W.2d 47 (December 28, 1999) (table).
The petitioner filed in this Court on December 28, 2000 an application for a writ of habeas corpus that raises the following claims:
I. WHERE PETITIONER, FOLLOWING THE GIVING OF A POST-ARREST, POST- MIRANDA STATEMENT, CHOSE TO REMAIN SILENT FOR HALF AN HOUR, AND THEN ELECTED TO GIVE ANOTHER STATEMENT, THE PROSECUTOR'S COMMENTS SUGGESTING INCULPATORY MOTIVES FOR SUCH SILENCE WERE AN UNCONSTITUTIONAL ATTACK ON PETITIONER'S RIGHT TO REMAIN SILENT.
II. THE PROSECUTOR'S ATTACK ON PETITIONER'S FAILURE TO PRESENT ALIBI WITNESSES IN SUPPORT OF HIS DEFENSE WAS AN IMPERMISSIBLE ATTEMPT TO SHIFT THE BURDEN OF PROOF TO PETITIONER.
III. WHERE EVIDENCE OF FLIGHT FROM THE POLICE WAS PRESENTED BY THE PROSECUTION, THE TRIAL COURT'S REFUSAL TO INSTRUCT THE JURY THAT FLIGHT MAY BE EQUALLY CONSISTENT WITH INNOCENCE AS IT IS WITH GUILT WAS REVERSIBLE ERROR.
IV. THE TRIAL COURT'S ERRONEOUS INSTRUCTION THAT THE PRESENCE OF PETITIONER'S PALM PRINT PROVED PETITIONER'S INVOLVEMENT IN THE CRIME, ALTHOUGH PERHAPS INADVERTENT, IMPERMISSIBLY INVADED THE PROVINCE OF THE JURY AS FACTFINDER.
V. WHERE THE PROSECUTION WITHHELD EVIDENCE OF AN AUDIOTAPE OF PETITIONER'S SECOND STATEMENT, AND WHERE NO EVIDENCE WAS INTRODUCED WHICH WOULD INDICATE THAT PETITIONER WAS AWARE OF THE RECORDING, THE WITHHOLDING OF THE TAPE UNTIL ITS EXISTENCE WAS DISCOVERED DURING CROSS-EXAMINATION WAS SUFFICIENTLY PREJUDICIAL TO REQUIRE REVERSAL.
VI. PETITIONER'S CONVICTIONS AS AN AIDER AND ABETTOR OF ASSAULT WITH INTENT TO COMMIT ARMED ROBBERY AND FELONY FIREARM INVOLVING ANGELA PLUNKEY ARE NOT SUPPORTED BY CONSTITUTIONALLY SUFFICIENT EVIDENCE.
The respondent, through the Michigan Attorney General's Office, has filed an Answer to the petition and contends that it should be denied because the petitioner's claims lack merit and are largely procedurally defaulted.
II.
As amended, 28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:
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). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct."); see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) ("We give complete deference to state court findings unless they are clearly erroneous.").
The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:
A state-court decision will certainly 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 our cases. . . .
A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent.Williams v. Taylor, 529 U.S. 362, 405, 406 (2000).
With respect to the "unreasonable application" clause of § 2254(d)(1), the Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 409. The Court defined "unreasonable application" as follows:
[A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable. . . .
[A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.Id. at 409, 410, 411. See also Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
A.
The petitioner contends that the prosecutor's references to his silence for half an hour during his post -Miranda interrogation violated his constitutional rights. After being given the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), the petitioner was questioned by Sergeant Warren. The petitioner made an initial statement in response, the accuracy of which was promptly disputed by Sergeant Warren. The petitioner then sat alone for about a half an hour without speaking. "[A]fter the extended period of silence, defendant voluntarily proceeded to make further statements to the officer." People v. March, 1999 WL 33447008, at *3.
The petitioner contends that the prosecutor improperly elicited evidence that he asserted his right to silence upon being questioned by the police. At trial, the prosecutor questioned the petitioner about his decision to stop talking and be silent for about a half an hour during his interrogation. Trial Tr., vol. IV, at 166-68. In closing argument, the prosecutor pointed out that the petitioner's half hour of silence followed his receipt of Miranda warnings and being told of the existence of inculpatory evidence, which included the presence of the petitioner's palm print over the door of Ms. Tomczyk's car. In rebuttal, the prosecutor again referred to the petitioner's lengthy period of silence. The prosecutor maintained that (1) the petitioner spent this period of silence trying to figure out how to explain the contradictions between his initial statement and other evidence, including the physical evidence of his palm print, and (2) argued that the petitioner stopped talking after he was told that anything he said could and would be used against him and that he did not have to say anything and could stop talking at any time. Trial Tr., vol. V, at 218.
The Michigan Court of Appeals addressed this issue as follows:
A prosecutor may not use a defendant's exercise of his Fifth Amendment right to remain silent against him at trial. People v. Bobo, 390 Mich. 355, 359, 212 N.W.2d 190 (1973). However, the Fifth Amendment does not preclude substantive use of evidence concerning a defendant's behavior and demeanor during a custodial interrogation after his valid waiver of the right against compelled self-incrimination and prior to his invoking his right to remain silent. People v. McReavy, 436 Mich. 197, 203, 221-222; 462 N.W.2d 1 (1990). When a defendant speaks after receiving Miranda warnings, any subsequent silence is not automatically construed as an affirmative invocation by the defendant of the right to remain silent. Id. at 211-212, 222.
Here, the record indicates that at some point during his initial statement to police, defendant was given Miranda warnings, but proceeded to speak. There is nothing in the record that would lead to a conclusion that defendant's subsequent silence, where he was "just sittin' there and a lot of things were running through [his] head," amounted to an assertion of his constitutional right to remain silent or a revocation of his earlier waiver of his rights. Indeed, after the extended period of silence, defendant voluntarily proceeded to make further statements to the officer. Looking at the totality of the circumstances, we cannot conclude that the silence was attributable to defendant's invoking his Fifth Amendment privilege or relying on his Miranda right to remain silent. Id. at 201, 211-212. Therefore, because defendant's silence was not a constitutionally protected silence, it was proper for the prosecutor to comment upon this period and to suggest that defendant was not credible and used that time to "think up" a story which would exonerate him from criminal responsibility. This argument comports with defendant's own testimony that he was "just sittin' there and a lot of things were running through [his] head." Accordingly, we conclude that defendant was not denied a fair trial as a result of the prosecutor's comments because they did not impermissibly infringe upon defendant's right to remain silent.People v. March, 1999 WL 33447008, at *3.
A person accused of a crime has the right to remain silent when arrested and faced with accusation, and the arrestee's exercise of that right may not be used as evidence against him. Miranda, 384 U.S. at 467-73. Once the defendant receives Miranda warnings, the use of his post-arrest silence to impeach his exculpatory story given at trial is "fundamentally unfair" and violates the Due Process Clause. Doyle v. Ohio, 426 U.S. 610, 619 (1976). Because the State is required to advise every person who is arrested of his right to remain silent, the reason for an arrestee's post- Miranda silence is "insolubly ambiguous." Id. at 617. Furthermore, implicit in the warnings is an assurance that silence will not carry a penalty. Id. at 618; Greer v. Miller, 483 U.S. 756, 762 (1987). Thus, where the defendant has not made a statement to the police, "[t]he Doyle footnote exception only permits the prosecution to use post-arrest silence to impeach the credibility of the defendant's version of what he did following arrest; the government cannot use the silence to impeach the exculpatory story itself or to draw inferences suggesting the defendant's guilt." Hassine v. Zimmerman, 160 F.3d 941, 949 (3d Cir. 1998).
If, however, the defendant opens the door to government questioning by his own remarks about his post-arrest behavior or defense counsel's questioning, see Doyle, 426 U.S. at 619 n. 11 (discussing the prosecution's permissible use of post-arrest silence "to challenge the defendant's testimony as to his behavior following arrest"), the government may use a defendant's silence for the limited purpose of impeaching his testimony about what he did after his arrest. Furthermore, "when a defendant makes a post- Miranda statement on a particular subject, and then makes a second statement on the same subject at trial, a prosecutor can refer to post-arrest silence to expose any inconsistencies between the two statements." Kibbe v. DuBois, 269 F.3d 26, 37 (1st Cir. 2001). The rule in Doyle simply "does not apply to cross-examination that merely inquires into prior inconsistent statements." Anderson v. Charles, 447 U.S. 404, 408 (1980). "Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent." Anderson, 447 U.S. at 408. This is particularly true when the defendant does not invoke his right to silence, but rather is mute for a brief time between periods of conversation.
In this case, the petitioner received Miranda warnings, waived his rights after hearing those warnings, and made a statement. When confronted with contradictions between his statement and certain evidence, the petitioner stopped talking for a little while, but did not request counsel or ask that questioning cease. After about a half an hour, the petitioner began talking again and made another statement. At trial, the prosecutor questioned the petitioner about this period of silence between his statements. The prosecutor also argued that the period of silence between the petitioner's statements indicated that the petitioner had needed time to think up a story that explained the contradictions between his first statement and the physical evidence with which Sergeant Warren had confronted him.
Neither Doyle nor Anderson bars these comments. Doyle holds that it is fundamentally unfair for the state to induce or encourage silence through Miranda warnings and then argue that this silence shows that the accused is guilty. However, "[w]here the accused initially waives his right to remain silent and agrees to questioning, . . . no such inducement has occurred. If the accused subsequently refuses to answer further questions, the prosecution may note the refusal because it now constitutes part of an otherwise admissible conversation between the police and the accused." United States v. Harris, 956 F.2d 177, 181 (8th Cir. 1992). In the present case, it follows with even greater force that the prosecution was entitled to note the petitioner's period of silence after giving his first statement, because after the period of silence, the petitioner continued to speak to the police.
This Court concludes that the prosecutor did not violate the petitioner's right to due process at trial by referring to the brief period of silence between his two voluntary statements to the police. The Michigan Court of Appeals decision denying this claim was not an unreasonable application of applicable federal constitutional law.
B.
The petitioner contends that he was denied a fundamentally fair trial because of the prosecutor's argument in which he rhetorically asked why the petitioner failed to bring forward as defense witnesses people the petitioner had testified were with him, or he had spoken to, at the time the crimes were committed to support his alibi defense about his he had testified. The Michigan Court of Appeals denied this claim for the following reasons:
Defendant claims that the trial court abused its discretion by denying his motion for a mistrial, which was based on his argument that the prosecutor improperly shifted the burden of proof during rebuttal argument. Defendant contends that the prosecutor's comments about defendant's failure to produce witnesses were impermissible. We disagree. We review a trial court's denial of a motion for a mistrial for an abuse of discretion. An abuse of discretion will be found only where the trial court's denial of the motion has deprived defendant of a fair and impartial trial.
In his closing, defendant reiterated his version of the events on the evening of the crimes, including that he played basketball, went to his mother's apartment, and met up with Antwan Thompson and another person, named J.B., who defendant claims committed the crimes. In rebuttal, after arguing that codefendant offered no assistance to find witnesses who could substantiate some of his testimony, the prosecutor implied that defendant's version of the facts also could not be verified, that the alleged witnesses who could verify defendant's story were absent, and that there was no testimony to support defendant's alleged facts. The prosecutor then argued that defendant and codefendant were being intentionally vague with information. Our review of the record demonstrates that the prosecutor was only attempting to attack defendant's credibility.
Because defendant actually testified at trial, the prosecutor's comments about the identity and lack of testimony of alleged witnesses did not burden defendant's right not to testify, and thus, did not shift the burden of proof. A prosecutor may comment on a defendant's failure to call witnesses to support his defense or alternate theory if he is doing so to test the defendant's credibility. [A] prosecutor is allowed to offer a rhetorical argument regarding a defendant's failure to produce witnesses who would corroborate his story. This argument or comment does not shift the burden of proof.People v. March, 1999 WL 33447008, at *3-4 (internal citations omitted).
The petitioner's arguments that the prosecutor's comments shifted the burden to the petitioner to prove his innocence, which he reasserts on habeas review, misapply the holding of Griffin v. California, 380 U.S. 609 (1965). Griffin held that neither court nor prosecutor may invite the jury to infer guilt from the defendant's decision not to testify. They may not "solemnize the silence of the accused into evidence against him," 380 U.S. at 614, or "suggest to the jury that it may treat the defendant's silence as substantive evidence of guilt." Baxter v. Palmigiano, 425 U.S. 308, 319 (1976) (emphasis added). However, nothing prevents the prosecution from commenting on the failure of the defense to call other witnesses, particularly where the defendant testifies or argues that such witnesses exist and suggests that, had they been called, they could have offered exculpatory testimony. Gall v. Parker, 231 F.3d 265, 311 (6th Cir. 2000). In short, the prosecution is free to comment on the defense's failure to call any witnesses to contradict the government's case, except where the defendant alone has the information to do so. United States v. Snow, 552 F.2d 165, 168 (6th Cir. 1977).
In the present case, the petitioner himself elected to testify and injected the possible existence of exculpatory witnesses into the case by testifying when and where he was with them or spoke to them, how this explained his allegedly innocent presence at the crime scenes, and offered an alternative perpetrator who the petitioner claimed committed the crimes of which he was convicted. In these circumstances, the prosecutor's rhetorical questions and comments about the defense's failure to call any of these alleged witnesses were a permissible attack on the petitioner's credibility and a permissible inferential argument that the prosecution's evidence should be believed. The state prosecutor was not suggesting to the jury that the petitioner was obligated to prove his innocence. Rather, he was arguing that the petitioner's alibi testimony was unsupported and not worthy of belief. Thus, the prosecutor's comments did not shift the burden of proof to the defense and did not violate the petitioner's constitutional rights.
Even if the prosecutor's strategy were open to question, any possible prejudice likely would have been cured by the trial court's instructions regarding the proper burden of proof. Steele v. Taylor, 684 F.2d 1193, 1204-05 (6th Cir. 1982).
The Michigan Court of Appeals decision rejecting this claim was a reasonable application of applicable federal constitutional law.
C.
The petitioner also asserts that he was denied a fair trial when the trial judge refused to instruct the jury that flight from arrest may be as consistent with innocence as it is with guilt. The evidence showed that the perpetrators fled in the petitioner's car from the scene of the Croatian Club shooting of Ms. Tomczyk, drove to the SunRidge Apartments in flight from Officer Bender, "lost" Officer Bender, and abandoned the petitioner's car in the SunRidge Apartments parking lot. Defense counsel requested that the jury be given the standard flight instruction, Michigan Criminal Jury Instructions 2d § 4.4, but the judge declined.
The petitioner also contends that he was denied a fair trial when the trial judge instructed the jury as follows:
Now, the prosecutor has introduced evidence about finger prints and palm prints. You may consider this evidence when you decide whether the prosecutor has proved beyond a reasonable doubt whether the Defendant is the person who committed the alleged crime. However, finger prints prove — finger prints matching the Defendant must have been found in the place where the crime was committed under such circumstances as they could only have been put there when the crime was committed.
Trial Tr., vol. VI, at 26.
Defense counsel did not object to these instructions at trial. The respondent contends that the failure to object constitutes a procedural default. People v. Grant, 445 Mich. 535, 546, 520 N.W.2d 123 (1994). The petitioner has not attempted to demonstrate cause for this procedural default, and the respondent insists that review of this claim is barred by the petitioner's procedural default and failure to show cause for failing to object and prejudice.
The Michigan Court of Appeals denied these claims, stating:
Defendant also argues two errors with regard to the jury instructions. Neither of these issues are preserved because defendant did not object to the instructions as given and thus, our review is limited to whether relief is necessary to avoid manifest injustice.
First, defendant argues that the trial court erred in refusing to give CJI2d 4.4, the standard jury instruction on flight, which provides that a defendant's flight after an offense is equally consistent with innocence as with guilt. Defendant contends that the court's refusal to give the instruction interfered with the jury's right to determine what caused defendant to flee the police and excluded a material issue form their consideration. We disagree. Flight was not a material issue in this case. Neither defense counsel not the prosecution argued that defendant's flight from the police was probative of guilt or innocence. Defendant defended the case by attacking the credibility of the prosecution witness who implicated him, and arguing that he did not participate in the crimes. Thus, although there was evidence that defendant fled the scene, the trial court was under no obligation to include an instruction that did not concern a material issue in the case. Further, even if the failure to give the instruction was error, it was harmless. Without the instruction, the jury was not informed that it could consider defendant's flight as consciousness of guilt. The jury was simply not called upon to weigh the flight evidence one way or the other. More importantly, the instructions, taken as a whole, sufficiently protected defendant's rights, and we find no manifest injustice.
Second, defendant contends that when the trial court misspoke and accidentally inserted the phrase "fingerprints prove" into the standard jury instruction on fingerprint evidence, it confused the jury and essentially instructed them that defendant committed the crime. We disagree. After a thorough review of the instructions, we find no manifest injustice resulting from the trial court's misspeaking. The trial court began to misspeak in the middle of the fingerprint instruction. It then stopped and began to read the remaining portion of the instruction over again, which it did correctly. Even if the instruction was somewhat imperfect, there was no error because the instructions as a whole fairly presented the issues to be tried and sufficiently protected defendant's rights.People v. March, 1999 WL 33447008, at *2.
Even if defaulted, these instructional issues did not infect the trial's fairness, nor do they entitle the petitioner to habeas relief. In the present case, powerful evidence of the petitioner's guilt was presented through the testimony of an accomplice, the fact that the car used by the perpetrators belonged to the petitioner and was returned to the petitioner's apartment complex after the crimes were committed, the discovery of ski masks and the petitioner's driver's license in the getaway car, and proof of the petitioner's palm print over the driver's door of Ms. Tomczyk's car — the very door at which her attacker approached her, demanded her purse, and shot her through the window. As noted by the Michigan Court of Appeals, the prosecution did not argue that the perpetrators' flight from the crime scene was evidence of the petitioner's guilt. Flight was not a material issue in this case. The state court's holding that omission of the standard jury instructions on flight did not deprive the petitioner of a fair trial is not contrary to or an unreasonable application of federal law.
The judge's initial misstatement concerning the significance of finger print or palm print evidence, as noted by the Michigan Court of Appeals, does not rise to the level of Constitutional error. The trial judge corrected this misstatement by reading the instruction properly after a false start. Although the palm print evidence was material, the instruction taken as a whole did not instruct the jury that the mere presence of the petitioner's fingerprints or palm prints at the crime scene proved his guilt. Rather, the instruction, fairly considered, warned the jury to avoid an adverse inference from this evidence unless it could eliminate all innocent explanations.
Any error in declining to give the omitted instruction on flight and the judge's misstatement on fingerprint evidence which he corrected did not have a substantial and injurious effect on the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 630 (1993). As noted by the state court of appeals, the reviewing court must consider the charge to the jury in its entirety. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). To rise to the level of a constitutional violation, the alleged erroneous instruction must so affect the entire trial that a conviction violates due process. It is insufficient that the instructions are undesirable, erroneous, or even universally condemned. Id. at 146.
The petitioner's jury was properly instructed on the elements of the crimes charged, the prosecution's burden of proof, the appropriate criteria by which jury to consider the credibility of evidence, including evidence offered by police and expert witnesses, and the nature of reasonable doubt. The omission of the flight instruction and the judge's initial misstatement about fingerprint evidence, later corrected, simply did not deprive the petitioner of a fair trial. The petitioner's claims attacking the jury instructions do not entitle him to habeas relief.
D.
The petitioner contends that the failure of the police and prosecution to disclose to the defense the existence of the petitioner's tape-recorded exculpatory second statement violated the petitioner's right to a fair trial by depriving him of a potent means by which to cross-examine and impeach Sergeant Warren. The respondent asserts that the petitioner's constitutional rights were not violated and that the Michigan Court of Appeals's denial of this claim was reasonable.
The Michigan Court of Appeals denied this claim with these words:
[D]efendant argues that he was denied a fair trial because neither the prosecutor nor the police disclosed the existence of defendant's tape-recorded exculpatory statement to defense counsel before trial. Defendant contends that he is entitled to a new trial because the nondisclosure deprived him of a powerful tool with which to cross-examine and impeach Sergeant Warren, a crucial witness in the case. We disagree.
A criminal defendant has a due process right to obtain evidence in the prosecutor's possession which is favorable to the defendant and material to guilt or punishment. People v. Stanaway, 446 Mich. 643, 666; 521 N.W.2d 557 (1994). Where, as here, there is no indication that defendant made a discovery request for exculpatory information or where a defendant gives the prosecutor only a general request for all exculpatory information, error requiring reversal occurs only if the omitted evidence was material. People v. Canter, 197 Mich. App. 550, 568-569; 496 N.W.2d 336 (1992). Exculpatory evidence is material if it would raise a reasonable doubt that would not otherwise exist without the evidence. Canter, supra at 569, citing United States v. Agurs, 427 U.S. 97, 112-113; 96 S.Ct. 2392; 49 L.Ed.2d 342 (1976). In determining materiality, "the omission must be evaluated in the context of the entire record." Id. "If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial." Id.
Based on this standard, we conclude that a new trial is not warranted. At trial, both defendant and Sergeant Warren testified extensively regarding the substance of defendant's exculpatory statement during which he denied all criminal responsibility. Because the evidence was before the jury, we do not believe that the production of the non-transcribed tape would have raised a reasonable doubt regarding defendant's guilt. Sergeant Warren did not rely on the tape at all, but only relied on his notes, which were made during the interview with defendant. Moreover, because the substance of defendant's statement was elicited at trial, defense counsel was provided with sufficient opportunity and information to effectively cross-examine Sergeant Warren about the contents of the statement. And, we note that, when defendant learned about the tape during trial, he never requested that it be produced, or that he be granted relief because it was not produced. Defendant has failed to show that the tape contained information material to his case. Further, defendant is not entitled to a remedy for the prosecution's nondisclosure where defendant, having made the statement himself, presumably knowing that it was being taped, had knowledge of the tape independent of discovery. People v. Taylor, 159 Mich. App. 468, 487-488; 406 N.W.2d 859 (1987).People v. March, 1999 WL 33447008, at *5.
In Brady v. Maryland, 373 U.S. 83, 87 (1963) the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." The Supreme Court later ruled that evidence is only "material" for Brady purposes "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). The Bagley doctrine only applies to information "known to the prosecution but unknown to the defense." United States v. Agurs, 427 U.S. 97, 103 (1976). In Kyles v. Whitley, 514 U.S. 419, 436-38 (1995), the Supreme Court ruled that the prosecution has a duty to learn of any exculpatory evidence known to others acting on the government's behalf. However, the prosecutor does not have a duty to provide the defendant with information he already knows, or with reasonable diligence could have obtained. Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000) ("[T]here is no Brady violation if the defendant knew or should have known the essential facts permitting him to take advantage of the information in question, or if the information was available to him from another source.").
The petitioner's Brady claim fails for two reasons. First, the petitioner has not shown that he was unaware either that a tape was made of his statement, or that he was unaware of the statement's contents. It was, after all, the petitioner's own statement which he made to the police. This is not a case where the prosecution failed to reveal exculpatory evidence unknown to the defense, such as the existence of an eyewitness who might have testified favorably to the defense, or the existence of exculpatory physical evidence.
Second, the petitioner has not shown a reasonable probability that the result of his trial would have been different had he been able to use the tape. The petitioner does not allege that he would have been able to impeach Sergeant Warren's testimony about the contents of the petitioner's exculpatory statement with the tape. The petitioner has not alleged that Sergeant Warren's summary of the petitioner's statement was inaccurate, and the petitioner's trial testimony did not contradict Sergeant Warren's summary of the petitioner's statement in any material way. Even now, the petitioner has failed to point to any of the tape's contents to demonstrate how he suffered a deficit in his ability to cross-examine the prosecution witnesses or present his defense. The petitioner made a statement and the contents of the statement were fully disclosed to the petitioner prior to trial. There is no material, exculpatory evidence that was withheld.
Consequently, this Court concludes that the prosecutor's failure to provide the petitioner with the tape recording in question or a transcript of it did not violate the petitioner's constitutional rights and the Michigan Court of Appeals denial of this claim was not an unreasonable application of applicable federal constitutional law.
E.
Finally, the petitioner alleges that his conviction of assault with intent to commit armed robbery against Angela Plunkey and the associated felony firearm charge are not supported by sufficient evidence. The question in a habeas corpus proceeding involving a claim of insufficiency of evidence in a state criminal conviction is whether, after reviewing the evidence in the light most favorable to the government, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); Walker v. Russell, 57 F.3d 472, 475 (6th Cir. 1995). This standard of review recognizes the trier of fact's responsibility to reasonably resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. at 318. The reviewing court does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor has been observed by the finder of fact. Glasser v. United States, 315 U.S. 60, 80 (1942); Marshall v. Lonberger, 459 U.S. 422, 434 (1983); see also United States v. Jackson, 55 F.3d 1219, 1225 (6th Cir. 1995). The habeas court must review all of the evidence in the record and determine whether a reasonable jury could have found guilt beyond a reasonable doubt. "The evidence must afford a substantial basis from which a fact in issue can reasonably be inferred." Spalla v. Foltz, 615 F. Supp. 224, 227 (E.D. Mich. 1985), aff'd, 788 F.2d 400 (6th Cir. 1986). Circumstantial evidence from which a reasonable inference of guilt beyond a reasonable doubt may be drawn is constitutionally sufficient. Ibid. The Jackson standard "must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n. 16.
The elements of assault with intent to commit armed robbery under state law are: "(1) an assault with force and violence; (2) an intent to rob or steal; and (3) the defendant's being armed." People v. Cotton, 191 Mich. App. 377, 391, 478 N.W.2d 681, 688 (1991). A conviction for felony firearm requires proof that the defendant carried or possessed a firearm during the commission or attempted commission of a felony. Mich. Comp. Laws § 750.227b; People v. Davis, 216 Mich. App. 47, 53, 549 N.W.2d 1, 4 (1996). One who procures, counsels, aids, or abets the commission of an offense may be convicted and punished as if he committed the offense directly. Mich. Comp. Laws § 767.39; People v. Turner, 213 Mich. App. 558, 568, 540 N.W.2d 728, 733 (1995). To establish that a defendant aided and abetted a crime, the state must establish that (1) the crime charged was committed by the defendant or some other person, (2) the defendant performed acts in furtherance of, or encouraged or assisted the principal in committing, the crime; and (3) the defendant intended the commission of the crime or knew the principal intended its commission at the time he gave aid or encouragement. Ibid. An aider and abettor's state of mind may be inferred from all the facts and circumstances. Id. at 568-69.
Viewed in a light most favorable to the prosecution, the evidence was more than sufficient to establish that the defendant assisted or encouraged the co-defendant in perpetrating an assault with intent to commit armed robbery against Angela Plunkey. According to the testimony of Antwan Thompson, an accomplice, the petitioner responded to his codefendant's statement "let's get these bitches" by driving speedily toward the victims' car and taking a gun from his codefendant. The petitioner and Vaughn then exited the defendant's vehicle and attacked the two victims as they entered Ms. Tomczyk's car. Brian Vaughn went after the passenger Plunkey and the petitioner went after the driver Ms. Tomczyk. This was a team effort in which two accomplices set out to rob two victims.
The petitioner aided and abetted his confederate in his assault on Ms. Plunkey by carrying out an assault on the driver of the same car and the same time. By driving to the victims' car and intercepting them before they could drive away and by attempting to commit an armed robbery against the driver of the same car at the same time Vaughn assaulted the passenger, the petitioner assisted Vaughn in his attempt to rob the passenger by 1) transporting Vaughn to the crime scene, that is, to the victim's car before they could drive away, 2) providing moral support and encouragement by committing or attempting to commit the same crime himself simultaneously, 3) greatly reducing or eliminating the possibility that the driver would be able to drive off and escape while Vaughn robbed or attempted to rob the passenger, and 4) increasing the likelihood that the passenger would cooperate with Vaughn by virtue of increasing the strength of numbers of the robbers. Thus, there was sufficient evidence to allow a rational jury to conclude that the petitioner was guilty as an aider and abettor of assault with intent to commit armed robbery and felony firearm concerning the victim Angela Plunkey.
This Court concludes that all of the petitioner's convictions are supported by constitutionally sufficient evidence. The Michigan Court of Appeals decision denying this claim was a reasonable application of controlling federal law.
III.
The decision of the Michigan Court of Appeals sustaining the petitioner's convictions and sentence was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d).
Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DENIED.