Opinion
Case Number 99-10450-BC.
January 7, 2003
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Christopher Poremba, a state inmate at the Saginaw Correctional Facility in Freeland, Michigan, has filed this pro se application for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction for second-degree murder, Mich. Comp.
Laws § 750.317, and possession of a firearm in the commission of a felony, Mich. Comp. Laws § 750.227b (felony firearm). The petitioner asserts that his convictions are tainted by evidential and instructional error, and that the record does not contain sufficient evidence to support his convictions. He argues, therefore, that his rights under the Due Process Clause have been abridged, and that the Michigan Department of Corrections is detaining him in violation of the Constitution of the United States. The Court disagrees, and will deny the petition.
I.
The petitioner's convictions arise from the shooting death of Eric Lucia, the petitioner's roommate, on September 18, 1995. During the early morning hours on that date, the petitioner's and Lucia's argument escalated into a scuffle and fight which ended when the petitioner fatally shot Lucia. The petitioner pleaded self-defense at trial, but he was convicted as charged.
The trial testimony disclosed that on the evening of September 17, 1995, Eric Lucia, Rick Goforth, and Melanie Hirth drove to the home shared by the petitioner and Lucia. Hirth testified that when they arrived, the petitioner was in the living room drinking soda and vodka and watching television. Hirth decided to leave. She went to the kitchen to tell Goforth she was leaving and the two apparently had a heated exchange. Hirth then left the house.
As Hirth was walking to her car, the petitioner followed her and asked her what was wrong. The petitioner and Hirth got into her car. Hirth began crying and the petitioner put his arm around her, attempting to console her. Hirth testified that the petitioner also told her that she should not hang around with Goforth, Lucia, and their friends. Shortly thereafter, Lucia and Goforth came out of the house. They asked the petitioner to get out of Hirth's car, which he did and returned to the house. Lucia and Goforth entered the car. The men apologized for the words that had been exchanged earlier. Hirth testified that she told the men that the petitioner had said she should not spend time with them anymore. She testified that, in response, Lucia said he would put the petitioner through a window. Hirth then left and Lucia and Goforth returned to the house.
Lucia and Goforth then confronted the petitioner about what he had said to Hirth. Lucia and the petitioner began arguing. Lucia complained about the petitioner's behavior around women, accusing him of making people uncomfortable. Lucia accused the petitioner of previously making a pass at the their friend Dave Krainiak's girlfriend. At that point, Krainiak telephoned. Lucia got on the phone and told Krainiak to come over and beat up the petitioner as retribution for the petitioner's behavior. The petitioner then got on the phone and apologized to Krainiak, telling Krainiak he had not known the woman was Krainiak's girlfriend. Lucia tried to grab the phone from the petitioner, but Goforth held him back. After Lucia repeatedly tried to get the phone from the petitioner, the petitioner pulled out a gun. Lucia demanded that the petitioner give him the phone. A struggle then ensued, moving from the kitchen to the living room. The petitioner then shot Lucia, killing him.
Krainiak testified that on the night of the shooting, he telephoned the petitioner's house. He heard the argument between the petitioner and Lucia, and, at one point, heard the petitioner say, "Don't make me shoot you. I'll shoot you." Tr., 6/6/96, at 152-55.
Police Officer Steve Bachand testified that when he responded to the scene of the shooting, the petitioner was applying pressure to Lucia's wound. He questioned the petitioner. The petitioner told him that he had pulled the gun out in hopes of scaring Lucia.
Officer Bachand testified that the petitioner then reported to him that he pulled the trigger when Lucia lunged at the petitioner again. Detective-sergeant Richard Fetner was the officer in charge of the case. He testified that, after advising the petitioner of his constitutional rights, he took a statement from the petitioner in which the petitioner stated that shortly after Lucia started the argument with him, the petitioner went to the bathroom to get his gun, which he put in the waistband of his pants. He said when they were arguing Lucia repeatedly threatened to "kick his ass." Tr., 6/7/01, at 25. The petitioner also told the detective that, when he shot Lucia, Lucia's left hand was on the petitioner's right shoulder and his right hand was on the petitioner's collar bone. The petitioner further stated that Lucia was not choking him.
The petitioner testified in his own defense, stating that shortly after he comforted Hirth in her car and returned to the house, Lucia and Goforth began verbally abusing him. He testified that Lucia threatened, "You're getting your ass kicked tonight, I'm kicking your ass tonight." Tr., 6/10/96, at 32. The petitioner further testified that while Lucia was on the telephone with Dave Krainiak, the petitioner went to his bedroom and got his gun. When the petitioner returned to the kitchen, Lucia resumed yelling at him. Lucia then threw the phone on the floor and grabbed the petitioner. Goforth got between the two men and restrained Lucia.
The petitioner backed away, took out his gun, which, he testified, had the safety on, and warned Lucia to stay back. Lucia pushed Goforth aside and approached the petitioner. The petitioner testified that Lucia grabbed him by the shoulder with one hand against his throat. As the two struggled, the petitioner claimed, Lucia's hand was blocking his windpipe. The petitioner testified that when he realized he was unable to breathe he shot Lucia.
Following the a jury trial in Wayne County Circuit Court, the petitioner was sentenced on July 3, 1996 to fifteen to thirty years imprisonment for the second-degree murder conviction and two years imprisonment for the felony firearm conviction, to be served consecutively. The petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claims:
I. The trial court erred in denying defendant's motion for directed verdict of acquittal based on insufficient evidence, and defendant's alternative motion for new trial based on great weight of evidence, where the evidence established self defense, or at a minimum established a lack of malice.
II. The trial court erred in permitting the prosecution to introduce in its case-in-chief irrelevant and unfairly prejudicial character evidence where defendant did not place his character in issue.
III. The trial court erred in refusing to admit into evidence the written statement of witness Melanie Hirth as a prior inconsistent statement pursuant to Michigan Rule of Evidence 613(b).
IV. The revised reasonable doubt instruction, C.J.I.2d 3.2, violates due process in that it fails to adequately convey to the jury the degree of proof required in a criminal case.
V. Defendant's sentence of 15 to 30 years for second degree murder is disproportionate to the seriousness of the offense.
VI. The instant case should be remanded to a different judge for retrial or resentencing where the trial judge stated on the record his belief that the case should have been charged as first degree murder.
The Michigan Court of Appeals affirmed the petitioner's conviction and sentence. People v. Poremba, No. 197911 (Mich.Ct.App. Nov. 21, 1997).
The petitioner then filed an application for leave to appeal in the Michigan Supreme Court, presenting the following claims:
I. Where the evidence in this second degree murder case established self defense as a matter of law, the decision of the Court of Appeals upholding the denial of defendant's motion for directed verdict of acquittal, and defendant's alternative motion for new trial based on great weight of the evidence, is clearly erroneous and will cause material injustice.
II. Where the evidence in this self-defense/second-degree murder case completely failed to establish malice, and the opinion of the Court of Appeals did not address, but implicitly rejected defendant's issue that the highest supportable verdict was manslaughter, the decision of the Court of Appeals is clearly erroneous and will cause material injustice, and further it conflicts with the Court of Appeals' decision in People v. Neal, 201 Mich. App. 650 (1993).
III. Where the prosecution introduced in its case-in-chief irrelevant and unfairly prejudicial character evidence against defendant, the most damaging of which the Court of Appeals found to have been improperly admitted, the decision of the Court of Appeals, finding any such error to be harmless, is clearly erroneous and will cause material injustice.
IV. Where the trial court refused to admit into evidence the written statement of key witness Melanie Hirth as a prior inconsistent statement pursuant to Michigan Rule of Evidence 613(b), the decision of the Court of Appeals, which did not address but implicitly rejected defendant's issue that this refusal was error, is clearly erroneous and will cause material injustice.
V. The constitutionality of the revised reasonable doubt instruction, CJI 2d 3.2, which violates due process in that it fails to adequately convey to the jury the degree of proof required in a criminal case, involves legal principles of major significance to the jurisprudence of Michigan.
VI. The decision of the Court of Appeals upholding defendant's sentence of 15 to 30 years for second degree murder as proportionate to the seriousness of the offense is clearly erroneous and will cause material injustice.
VII. The instant case should be remanded to a different judge for retrial or resentencing where the trial judge stated on the record his belief that the case should have been charges as first degree murder.
On December 8, 1998, the Michigan Supreme Court issued an order denying leave to appeal. People v. Poremba, No. 111625 (Mich. Dec. 8, 1998). The petitioner filed a motion for reconsideration of the Michigan Supreme Court's order, which was also denied. People v. Poremba, No. 111625 (Mich. Sept. 29, 1999).
On November 22, 1999, the petitioner filed the pending petition for a writ of habeas corpus presenting the claims enumerated as I through V in his application for leave to appeal to the Michigan Supreme Court.
II.
Initially, the respondent argues that the petition should be dismissed because the petitioner did not exhaust his state court remedies by fairly presenting his federal claim that the trial court erred in permitting the prosecution to submit evidence regarding petitioner's character to the Michigan state courts.
The doctrine of exhaustion of state remedies requires state prisoners to fairly present their claims to the state courts before raising those claims in a federal habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A) (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), cert. denied, 532 U.S. 958 (2001). In Michigan, this means that petitioners must raise their claims before both the Michigan Court of Appeals and the Michigan Supreme Court before raising them on habeas review. Mohn v. Bock, 208 F. Supp.2d 796, 800 (E.D.Mich. 2002). As stated in Anderson v. Harless, 459 U.S. 4, 6 (1982), "[i]t is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made" (citations omitted). A claim is "fairly presented" to the state courts if it "(1) relie[s] upon federal cases employing constitutional analysis; (2) relie[s] upon state cases employing federal constitutional analysis; (3) phras[es] the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) allege[s] facts well within the mainstream of constitutional law." McMeans, 228 F.3d at 681.
This Court finds that the petitioner fairly presented his claim that the trial court incorrectly admitted character evidence to the state court as a federal constitutional violation. Although the respondent is correct that the petitioner framed this claim primarily as a state law issue in his submissions to the Michigan Court of Appeals and Michigan Supreme Court, the petitioner phrased his claims in terms of constitutional law in his briefs to both courts and argued that he was deprived of a fundamentally fair trial as a result of the evidentiary errors. Although petitioner's arguments to the state courts in support of his constitutional claims were somewhat conclusory, they were sufficient to provide the state courts "a full and fair opportunity to rule on petitioner's [constitutional] claims." Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). The petitioner, therefore, properly exhausted his state court remedies.
III.
The petitioner's claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA). This Act altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the Act, April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336 (1997). Because the petitioner's application was filed after that date, the provisions of the AEDPA, including the amended standard of review, apply to this case.
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, 405-06 (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, 410-11. See also Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
A.
The petitioner first argues that the trial court erred in denying his motion for a directed verdict because the evidence presented supported a finding of self defense as a matter of law, and because the prosecutor presented insufficient evidence to support a finding that petitioner acted with malice, a necessary element of second-degree murder under state law.
There is no question that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). But the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 (1979). [T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 318-19 (internal citation and footnote omitted). This "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n. 16. Pursuant to 28 U.S.C. § 2254(d)(1), then, this Court must determine whether the state court's application of the Jackson standard was contrary to or an unreasonable application of Supreme Court precedent.
The state court of appeals conducted a thorough analysis of the evidence in the record, and concluded that there was sufficient proof of guilt on each of the elements. The court stated:
Defendant argues on appeal that the trial court erred in denying his motion for a directed verdict because the evidence presented at trial was insufficient to support his conviction and that a new trial is warranted because the jury's finding that defendant did not shoot Eric, defendant's roommate, in self-defense was against the great weight of the evidence. We disagree. In determining whether the prosecution has introduced sufficient evidence to avoid a directed verdict, this Court must consider all of the evidence presented by the prosecution up to the time the motion is made, view the evidence in the light most favorable to the prosecution, and determine whether a rational trier of fact could find that the essential elements of the charged crime were proven beyond a reasonable doubt. People v. Jolly, 442 Mich. 458, 466; 502 N.W.2d 177 (1993).
A new trial may be granted if a verdict is against the great weight of the evidence. MCR 2.611(A)(1)(e); People v. Herbert, 444 Mich. 466, 477; 511 N.W.2d 654 (1993). The test is whether the verdict is against the overwhelming weight of the evidence. People v. Timmons, 300 Mich. 653, 659; 2 N.W.2d 804 (1942). Determining whether a verdict is against the great weight of the evidence requires review of the whole body of proofs. Herbert, supra at 475. Although not capable of doing so when reviewing a motion for a directed verdict, when considering a motion for new trial based on a claim that the verdict is against the great weight of the evidence, the trial court can act as the "thirteenth juror" and evaluate the credibility of the testifying witnesses. Id. at 476-477. On appeal, this Court reviews the trial court's grant or denial of the motion for new trial based upon a claim that the verdict is against the great weight of the evidence for an abuse of discretion and gives substantial deference to the trial court's opportunity to hear the witnesses and its unique ability to assess the credibility of the witnesses. Id. This Court must analyze the record on appeal in detail. Arrington v Detroit Osteopathic Hosp (On Remand), 196 Mich. App. 544, 560; 493 N.W.2d 492 (1992).
To establish the crime of second-degree murder, it must be shown that the defendant caused the death of the victim and that the killing was done with malice and without justification. People v. Kemp, 202 Mich. App. 318, 323; 508 N.W.2d 184 (1993). Malice is the intent to kill, the intent to do great bodily harm, or the intent to create a high risk of death or great bodily harm with knowledge that death or great bodily harm will be the probable result. Id. Malice may be inferred from the facts and circumstances of the killing. Id.
The killing of another in self-defense is justifiable homicide if the defendant honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm. People v. Heflin, 434 Mich. 482, 502; 456 N.W.2d 10 (1990). A defendant's honest belief in danger must also be a reasonable belief, id. at 502-503, measured by the circumstances as they appeared to the defendant rather than as they actually existed. People v. Green, 113 Mich. App. 699, 704; 318 N.W.2d 547 (1982). A defendant is not entitled to use any more force than is necessary to defend himself. Kemp, supra at 323. If a defendant introduces evidence of self-defense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense. People v. Fortson, 202 Mich. App. 13, 20; 507 N.W.2d 763 (1993).
Defendant first argues that the evidence was insufficient to convict him of either the charged offense of second-degree murder or the lesser offense of voluntary manslaughter because he acted in self-defense. We disagree. In the present case there is ample evidence from which the jury could conclude that the prosecution had met its burden of excluding the possibility that defendant acted in self-defense.
Viewing the evidence in the light most favorable to the prosecution, the jury could have reasonably concluded that defendant did not honestly and reasonably believe that his life was in imminent danger or that there was a threat of serious bodily harm. The evidence is conflicting with respect to whether defendant was actually being choked by his roommate at the time he pulled the trigger. Defendant testified that he could not breath[e] and Eric's thumb was pushing on his windpipe at the time he pulled the trigger. However, an investigating officer, who took a statement from defendant, testified that defendant told him that Eric was not choking him. This officer also testified that when defendant assumed the role of Eric to demonstrate Eric's hold on him, defendant's left hand was on the officer's right shoulder and defendant's right hand was near the neck with the thumb down at the officer's collar bone. Moreover, in defendant's own statement, defendant simply stated that Eric came back at him, pinned him against the wall, and out of fear, defendant raised the gun and pulled the trigger. Defendant made no mention of being choked.
Finally, Rick, an eyewitness, testified that Eric had one hand on defendant's shoulder and one hand on defendant's neck. During the prosecution's case in chief, Rick demonstrated the hold, which the prosecutor described for the record as "indicating with your right hand on my right shoulder with the thumb over in the neck tie or throat area."
The evidence is conflicting with respect to whether Eric was actually choking defendant or simply had his hands near or around defendant's neck. Because these facts bear upon whether defendant reasonably and honestly believed that his life was in imminent danger at the time he pulled the trigger, whether defendant was acting in self-defense was properly left to the jury to determine.
Assessing the credibility of the testifying witnesses is a matter for the trier of fact. This Court will not resolve it anew. People v. Vaughn, 186 Mich. App. 376, 380; 465 N.W.2d 365 (1990).
Additional facts compel this Court to conclude that there was sufficient evidence to support the jury's finding that defendant was not acting in self- defense. It should be noted that defendant and Eric were of comparable size. Defendant is 5'11" and weighed 165 pounds. Eric was 5'9" and although he weighed two hundred pounds, the medical examiner described him as having a heavy, as opposed to muscular, build. There is no significant size differential which might suggest a severe intimidation factor in this case. The jury could have reasonably inferred from this evidence that defendant did not have a reasonable belief that his life was in danger.
Evidence of the events that preceded the actual shooting also had bearing upon whether defendant, at the time of the shooting, reasonably believed that his life was in imminent danger. Rick, who was present during the altercation, intervened the first time Eric attempted to physically attack defendant. Rick is 6'1" tall and weighed two hundred pounds. There was testimony as to his muscular build. When Eric attacked defendant the second time, Rick was in the process of intervening again, however, defendant fired the shot which eliminated the need to intervene. Considering Rick's prior conduct, the jury could have reasonably found that defendant's belief that his life was in imminent danger was unreasonable.
The fact that Rick had intervened was also relevant to whether the force used by defendant was immediately necessary. To be lawful self-defense, the action taken must appear at the time to be immediately necessary. People v. Deason, 148 Mich. App. 27, 31; 384 N.W.2d 72 (1985). Rick had protected defendant on one occasion. It would have been reasonable for defendant to believe that Rick would intervene, if necessary, again. The jury could have properly found that defendant used an unreasonable amount of force in light of the existing circumstances.
When reviewing the evidence in the light most favorable to the prosecution, we conclude that sufficient evidence was presented for the jury to find that the prosecution had met its burden of excluding the possibility that defendant had not acted in self-defense. Furthermore, based on the evidence discussed above, defendant cannot sustain his assertion that his conviction is against the great weight of the evidence. People v. Poremba, No. 197911, 1997 WL 33330967, at *1-3 (Mich.Ct.App. Nov. 21, 1997) (unpublished opinion).
The Court finds that this well-reasoned disposition of the petitioner's claims was neither contrary to, nor an unreasonable application of clearly established federal law. The court of appeals cited case law that plainly incorporated the Jackson standard, and thoroughly explained, upon review of the testimony and evidence presented below, why a rational trier of fact could have found the defendant guilty of second-degree murder. No relief will therefore be granted on this claim.
B.
The petitioner also challenges certain evidentiary rulings made by the trial court. The petitioner argues that the trial court erred in permitting the prosecutor to present evidence regarding petitioner's character. He also contends that the trial court erred in excluding witness Melanie Hirth's prior inconsistent statement.
It is well settled that alleged trial court errors in the application of state procedure or evidentiary law, particularly regarding the admissibility of evidence, are generally not cognizable as grounds for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984); Serra v. Michigan Dep't. of Corr., 4 F.3d 1348, 1354 (6th Cir. 1993). "Errors by a state court in the admission of evidence are not cognizable in habeas corpus proceedings unless they so perniciously affect the prosecution of a criminal case as to deny the defendant the fundamental right to a fair trial." Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir. 1994).
Although the Michigan Court of Appeals denied the petitioner's claim that the trial court erred in refusing to admit witness Melanie Hirth's prior inconsistent statement, the state court failed to offer any explanation of its decision denying petitioner's claim. "Where a state court, although deciding a claim, does not offer some explanation of its decision, a federal court must conduct an independent review of the state court's decision. This independent review requires the federal court to `review the record and applicable law to determine whether the state court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented.'" Morse v. Trippett, 102 F. Supp.2d 392, 402 (E.D.Mich. 2000) (quoting Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000)).
Because the state courts failed to offer any explanation for its ruling denying petitioner's claim regarding Melanie Hirth's statement, this Court will proceed with an independent review of this claim. Id.
Melanie Hirth gave police a signed statement immediately after the shooting. The petitioner's counsel attempted to introduce that statement during trial as a prior inconsistent statement. In the statement, Hirth stated that after Lucia said that he was going to put petitioner through a window, she tried to pacify Lucia by telling him that the petitioner did not really mean what he said.
At trial, Hirth denied having said that to Lucia. Although the trial court did not admit Hirth's written statement into evidence, the petitioner's counsel was permitted to cross-examine Hirth about the statement at length. Counsel was even permitted to read verbatim from the statement and to show Hirth the statement. Thus, although the trial court for some reason declined to receive the written statement into evidence, the petitioner's attorney was permitted to fully explore the statement with Ms. Hirth. The record does not allow a conclusion that the petitioner's trial was rendered fundamentally unfair as a result of the trial court's erroneous exclusion of the written statement when the jury was permitted to hear the substance of that very statement read verbatim into the record.
Next, the petitioner argues that he is entitled to habeas corpus relief because the trial court erred in permitting the prosecution to introduce evidence regarding his character. The Michigan Court of Appeals, the last state court to issue a reasoned opinion, addressed that issue in some detail:
Defendant also raises two evidentiary issues on appeal. Defendant argues that the trial court erred in admitting improper character evidence and excluding the written statement given by a witness to the police. The decision to admit or exclude evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. People v. Lugo, 214 Mich. App. 699, 709; 542 N.W.2d 921 (1995). An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say there was no excuse or justification for the ruling made. People v. McAlister, 203 Mich. App. 495, 505; 513 N.W.2d 431 (1994).
At the time of trial, several witnesses testified that defendant, on the night in question and as a matter of habit, was drinking vodka straight from the bottle. Testimony was also elicited regarding defendant's repeated attempts to make advances upon his roommates' female friends and the fact that defendant repeatedly watched the martial arts movie, The Crow. With respect to testimony regarding defendant's conduct on the night of the shooting, including testimony regarding the verbal argument over defendant's attempt to make a pass at Cathy the week before which preceded the actual shooting, we find that the trial court did not abuse its discretion in admitting this evidence. It is essential that the prosecution be able to give the jury a complete presentation of the full context in which disputed events occurred. People v. Sholl, 453 Mich. 730, 741-742; 556 N.W.2d 851 (1996).
The trial court may have abused its discretion when it admitted evidence of defendant's propensities other than on the night in question, including his drinking, womanizing, and his obsession with the movie, The Crow. Such evidence was offered solely for the purposes of establishing that defendant was a man of bad character who acted in conformity with that character on the night of the shooting. Where evidence is offered solely to show the criminal propensity of an individual to establish that he acted in conformity therewith its admission is precluded. MRE 404(b)(1); People v. VanderVliet, 444 Mich. 52, 64-65; 508 N.W.2d 114 (1993).
While it does appear that the prejudicial value of the character evidence substantially outweighed its probative value, MRE 403, the error, if any, was harmless. There is not a reasonable probability that the error affected the outcome of the trial. People v. Hubbard, 209 Mich. App. 234, 243; 530 N.W.2d 130 (1995); MCL 769.26; MSA 28.1096. People v. Poremba, 1997 WL 33330967, at *3-4.
This analysis was not contrary to or an unreasonable application of federal law, with respect to the constitutional aspect of the evidentiary error. Admission of the disputed evidence amounts to a constitutional violation only if the error could not have "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
Although references to the petitioner's past habits of drinking, womanizing and viewing of the movie The Crow likely violated Michigan Rule of Evidence 404(b), as the state court of appeals observed, none of them bears directly on the petitioner's propensity to respond violently when confronted, which was the central issue in the case. The Court finds that any error in admitting this evidence did not have a substantial and injurious effect on the jury's verdict.
C.
Finally, the petitioner alleges that the trial court's reasonable doubt instruction failed to convey correctly the degree of proof required in a criminal case. The following is the reasonable doubt instruction to which petitioner objects:
A reasonable doubt is a fair, honest doubt growing out of the evidence or lack of evidence. It is not an imaginary or possible doubt but a doubt based on reason and common sense. A reasonable doubt is just that. A doubt that is reasonable after a careful and considered examination of the facts and circumstances of this case.
Tr., 6/10/96, at 208.
The Michigan Court of Appeals rejected petitioner's claim in two conclusory sentences:
Next defendant contends that the trial court erred when it charged the jury using the reasonable doubt instruction found in the standard criminal jury instructions, CJI2d 3.2(3). In People v. Hubbard, (after remand), 217 Mich. App. 459, 487; 552 N.W.2d 593 [sic] (1996), this Court considered this precise issue and found the reasonable doubt instruction to be satisfactory.People v. Poremba, 1997 WL 33330967, at *4.
An erroneous jury instruction warrants habeas corpus relief only where the instruction "`so infected the entire trial that the resulting conviction violates due process.'" Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). "[I]t must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some [constitutional] right." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). The jury instruction "`may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147). The court must "inquire `whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Ibid. (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).
When the state has accused an individual of violating its criminal laws and seeks to punish him, "the Due Process Clause of the Fourteenth Amendment `protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Cage v. Louisiana, 498 U.S. 39, 39 (1990) (quoting Winship, 397 U.S. at 364). See also Jackson, 443 U.S. at 315-316. "This reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. Among other things, it is a prime instrument for reducing the risk of convictions resting on factual error." Cage, 498 U.S. at 89-90.
The state's jury instruction conveys very little information to jurors as to the constituencies of reasonable doubt, which is the key component of the state's burden of proof. Rather, it directs the jury to the nature of the evidence, tells them to use their common sense, and then, in a grand display of circularity, "explains" that a "reasonable doubt" is "[a] doubt that is reasonable."
The Sixth Circuit has held that this instruction does not violate the Due Process Clause. See Binder v. Stegall, 198 F.3d 177 (6th Cir. 1999). There, the court observed that there are no "magic words" that must be used to define the state's burden of proof. Id. at 179. Rather, the instruction will be found wanting only if it "lead[s] the jury to convict on a lesser showing than `reasonable doubt'," provided that the instruction, "when taken as a whole, adequately conveys the `concept' of reasonable doubt." Ibid. There are other formulations of the reasonable doubt instruction in use which convey to the jury the gravity of its task and the heavy burden the state must carry in order to punish the accused.
As noted above, these serve to reduce the risk of erroneous convictions, and they can be especially illuminating when considering evidence in close cases such as the one now before the Court. For instance, in federal trials in this Circuit, jurors generally are told: "A reasonable doubt is a doubt based on reason and common sense. It may arise from the evidence, the lack of evidence, or the nature of the evidence. Proof beyond a reasonable doubt means proof which is so convincing that you would not hesitate to rely and act on it in making the most important decisions in your own lives." Sixth Circuit Pattern Criminal Jury Instructions § 1.03. The classic formulation is the one approved in Commonwealth v. Webster, 59 Mass. 295, 320 (1850), which states:
[W]hat is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. The burden of proof is upon the prosecutor. All the presumptions of law independent of evidence are in favor of innocence; and every person is presumed to be innocent until he is proved guilty. If upon such proof there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal. For it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary; but the evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt.
This formulation has been characterized as "probably the most satisfactory definition ever given to the words `reasonable doubt' in any case known to criminal jurisprudence." Victor v. Nebraska, 511 U.S. 1, 6 (1994) (quoting People v. Strong, 30 Cal. 151, 155 (1866)).
Other courts have found that the term "reasonable doubt" is self-defining, and urge trial courts to give no explanatory instruction. See, e.g., United States v. Walton, 207 F.3d 694, 696 (4th Cir. 2000) ("There is no constitutional requirement to define reasonable doubt to a jury."); United States v. Thomas, 774 F.2d 807, 811-12 (7th Cir. 1985) ("We have repeatedly admonished district courts not to define `reasonable doubt' . . . because often the definition engenders more confusion than does the term itself." (quoting United States v. Martin-Trigona, 684 F.2d 485, 493 (7th Cir. 1982)).
This Court believes that Michigan's standard jury instruction purporting to define reasonable doubt does little to convey any meaning of the concept. However, since no definition is required by the Constitution, the instruction by itself does not lessen the State's burden, and constrained to follow the holding in Binder, the Court finds that the petitioner's argument does not warrant habeas relief.
IV.
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 as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d). The petitioner therefore is not "in custody in violation of the Constitution or laws or treaties of the United States," 28 U.S.C. § 2254(a), and the petition cannot be granted.
Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DENIED.