Opinion
Case No.: 99-CV-72037-DT
May 5, 2000.
OPINION
Petitioner Donnell Latron Thomas has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is incarcerated in violation of his constitutional rights. Petitioner has also filed a motion for oral argument regarding his petition. Petitioner challenges his state court convictions for manslaughter, felony firearm, and carrying a concealed weapon. Petitioner is currently incarcerated in the Greensville Correctional Facility in Jarrat, Virginia. For the reasons set forth below, petitioner's petition for a writ of habeas corpus, as well as his motion for oral argument, shall be denied.
This motion was attached to petitioner's "response" brief.
Background
Petitioner's convictions arise from the shooting death of Curtis Madison. On the evening of February 13, 1993, several individuals, including petitioner, were leaving a party and proceeding to get into their cars that were parked in a nearby lot when a blue pickup truck drove by and fired gunshots at the group. At the time of the shooting, Madison and his passenger, Terry King, were already in Madison's vehicle. Tarkeus Gee and Marcus Wesby were in the process of getting into Gee's vehicle, which was parked next to Madison's vehicle, and Robert Jamerson, Rose Wesby, and petitioner were in the process of getting into Jamerson's vehicle, which was parked behind both Madison's and Gee's vehicles.
Jamerson, using a .38 caliber revolver, and petitioner, using a 9 millimeter semiautomatic pistol, returned gunfire. Madison, who was in his car at the time, was struck in the head and killed by a nine millimeter bullet. At trial, an expert witness testified that the location of the bullet's entry into Madison's head indicated that it did not come from the direction of the pickup truck, but rather, based upon the bullet's trajectory, was fired from the petitioner's position, or from a building. King, who was in the same vehicle as Madison at the time of the shooting, testified that in firing at the pickup truck, petitioner was also firing in the direction of Madison's car, which was parked in front of the vehicle that petitioner was getting into, and that the bullet that hit Madison did not come from the truck. David Williams also testified that there were a number of vehicles between the pickup truck and petitioner, and that the travel of the pickup truck placed it in line with Madison's vehicle.
There was also testimony that shots might have been fired from a nearby building. Petitioner's 9 millimeter pistol was never recovered. Petitioner argued at trial that the prosecutor had failed to prove that the bullet that hit Madison was fired from his gun, and that even if the jury believed he fired the shot, it was not murder.
A jury convicted petitioner of voluntary manslaughter, MICH. COMP. LAWS § 750.321, felony firearm, MICH. COMP. LAWS § 750.227b, and carrying a concealed weapon, MICH. COMP. LAWS § 750.227. Petitioner was sentenced to ten to fifteen years for the voluntary manslaughter conviction, two to five years for carrying a concealed weapon, and a mandatory two year term for the felony-firearm conviction, to run concurrently.
Petitioner filed an appeal of right in the Michigan Court of Appeals. On appeal, petitioner argued, inter alia, that he was denied a fair trial and his right of confrontation when the prosecution was allowed to call a witness that the court knew would assert the privilege against self-incrimination in front of the jury. Petitioner's argument was based upon the following sequence of events, taken from the Michigan Supreme Court's opinion in this matter, involving the prosecutor's attempt to call Tarkeus Gee as a witness:
The prosecutor and the police went to interview Mr. Gee injail before trial, and Mr. Gee indicated that he had no intention of testifying. Mr. Gee also said there was nothing anyone could do to make him testify. The prosecutor requested that the court compel him to take the stand. The court asked Mr. Gee why he was refusing — if he was going to assert the Fifth Amendment privilege. The prosecutor agreed to grant immunity. The prosecutor and the court agreed that if Mr. Gee still refused to testify. the prosecutor would have the right to call him. The defense maintained that to call him would be unfairly prejudicial to defendant.
Mr. Gee took the stand and stated that he did not want to testify, but did not give a reason. The trial court asked if he was refusing to testify because of the Fifth Amendment. Mr. Gee responded "Yeah, I'm refusing on the Fifth Amendment. Is it more simple that way?" The trial court ruled that Mr. Gee had no Fifth Amendment privilege. Defendant's attorney objected that Mr. Gee had not been properly informed of the scope of his Fifth Amendment rights. The trial court then informed him that "the only person who has a legal right not to testify and to invoke the Fifth Amendment is an individual who believes that he or she may implicate themselves, maybe testify against their own penal interests." Mr. Gee indicated that he just did not want to testify, and the prosecutor's threats to add to his charges and give him a longer sentence did not bother him. He also stated that he had done nothing wrong and, thus, could not implicate himself.
Defense counsel argued that it was not permissible to place Mr. Gee on the stand in front of the jury to elicit a refusal to testify, even if the privilege asserted was invalid. The court permitted it over objection, stating that the witness'[s] refusal would be placed on the record before the jury. Mr. Gee would not even testify with regard to his name, stating. "I'm making sure — I want — I'm refusing to say anything until I get a legal representative." He was subsequently held in contempt. Following his statement on the stand, Mr. Gee was provided with counsel, who concluded that Mr. Gee had no legal right not to testify.People v. Gearns, 457 Mich. 170, 178-79 (1998), overruled on other grounds by People v. Lukity, 460 Mich. 484 (1999).
Petitioner's case was consolidated with People v. Gearns.
The Michigan Court of Appeals, finding that petitioner was denied a fair trial when the trial court allowed the prosecution to call a witness knowing that the witness would refuse to testify, reversed petitioner's convictions and remanded the case for a new trial. People v. Thomas, No. 171264 (Mich.Ct.App. Nov. 1, 1996).
The prosecutor appealed to the Michigan Supreme Court, arguing that the court of appeals erred in finding that petitioner was denied a fair trial when the refusing witness had no valid privilege, was not criminally implicated in the offense, and was not critical to the prosecution's case. The Michigan Supreme Court, examining the United States Supreme Court's decisions in Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963), Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), and Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), found that no Confrontation Clause violation had occurred because no "substantive evidence, in the form of testimony or its equivalent, [was] placed before the jury" by Gee's taking the stand and asserting his Fifth Amendment privilege. Gearns, 457 Mich. at 180-87. According to the Michigan Supreme Court, "[a] mere inference [was] insufficient for a Confrontation Clause violation." Id. at 187.
Utilizing the Supreme Court's due process analysis for prosecutorial misconduct, i.e. "that the proper inquiry is not the fact of the prosecutor's misconduct, but, rather, its effect on the trial," the Michigan Supreme Court also found that no due process violation had occurred. Id. at 187-92. According to the Michigan Supreme Court, "calling a witness to the stand, even if the prosecutor knows that the witness will assert Fifth Amendment rights, does not, by itself, deny a defendant a fair trial or due process of the law." Id. at 192-93. Instead, the Michigan Supreme Court found that " Namet and its constitutional progeny require far more to establish a conscious and flagrant attempt to build a prosecution case from inferences arising from assertions of testimonial privilege." Id. at 193. After also finding that evidentiary error had occurred, but that is was not highly probable that such error contributed to the verdict, the Michigan Supreme Court reversed the court of appeals.
Thereafter, petitioner, through counsel, filed the pending habeas corpus petition in this Court, asserting that his constitutional rights of due confrontation and due process were violated "when the prosecutor called a witness for the sole purpose of having the witness place his refusal to testify before the jury and when [p]etitioner was prejudiced by his inability to cross-examine the nontestifying witness." (Pet. at 13).
Discussion
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), govern this case because petitioner filed his habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). The AEDPA provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
In Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495, ___ L.Ed.2d ___ (2000). the Supreme Court undertook a detailed analysis of the correct standard of review under the AEDPA. According to the Supreme Court:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 1523 (O'Connor, J., delivering the opinion of the Court with respect to this issue).
In evaluating a state court decision under the "unreasonable application" clause, the Supreme Court further stated that a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 1522. "Under § 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because 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.
The Supreme Court also solidified that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States," refers only to "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id. at 1523. Therefore, in determining what constitutes clearly established federal law, a federal habeas court is restricted to pertinent United States Supreme Court precedent.
1. Confrontation Clause
Petitioner asserts that "the Michigan Supreme Court unreasonably applied clearly established federal law as determined by the United States Supreme Court when it found, as to the constitutional confrontation issue, that Tarkeus Gee did not provide evidence at trial." (Pet. at 13). According to petitioner, "under the circumstances of this case, Tarkeus Gee's refusal to testify was compelling evidence against [p]etitioner." ( Id.). Petitioner concedes that the Supreme Court's decisions in Namet and Douglas "provide the framework for assessing the issue in this case." ( Id. at 16). Petitioner, however, argues that the Michigan Supreme Court's decision represents an unreasonable application of the Supreme Court's holdings in Namet and Douglas. Accordingly, on habeas review, this Court must determine whether the Michigan Supreme Court's application of Namet and Douglas in this case was objectively unreasonable.
The following colloquy represents Gee's testimony before the jury in its entirety:
Prosecutor: Mr. Gee, would you tell the Court and jury your full name please.
Mr. Gee: (shaking head)
Prosecutor: Mr. Gee, the court reporter can't record a nod of the head.
Mr. Gee: Well, I'm making sure — I want — I'm refusing to say anything until I get a legal representative.
The Court: Mr. Gee, we've had a hearing. The Court is ordering you to testify.
Mr. Gee: I'm refusing to say anything.
The Court: Are you refusing to testify?
Mr. Gee: I'm refusing to say anything until I get a legal representative.
(Trial Tr., Vol. III at 24).
A "primary interest secured by [the Confrontation Clause] is the right of cross-examination." Douglas v. Alabama, 380 U.S. at 418, 85 S.Ct. at 1076 (1965). As recognized by the Michigan Supreme Court in this case, the United States Supreme Court has rendered three opinions, Frazier, Douglas, and Namet, setting forth the standard for determining whether a witness's invocation of the privilege against self-incrimination amounts to a violation of a defendant's rights under the Confrontation Clause.
In Douglas, after a witness invoked his Fifth Amendment rights, the prosecutor commenced to read from a document that the prosecutor had stated to the jury was a confession signed by the witness, stopping every few sentences to ask the witness if he had made the statements. The witness refused to answer any of the prosecutor's questions. The prosecutor continued in this manner until the entire document had been read into evidence.
The United States Supreme Court held that "[i]n the circumstances of this case, [defendant's] inability to cross-examine [the witness] as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause." Id. at 419. Central to the Court's holding was the fact that the witness's alleged confession had provided a crucial link between defendant's actions and his intent. The Court further held that although the prosecutor's reading of the witness's alleged statement and the witness's refusals to answer technically were not testimony, the reading:
[M]ay well have been the equivalent in the jury's mind of testimony that Lloyd in fact made the statement; and Lloyd's reliance upon the privilege created a situation in which the jury might improperly infer both that the statement had been made and that it was true. . . . Since the [prosecutor] was not a witness, the inference from his reading that Lloyd made the statement could not be tested by cross-examination. Similarly, Lloyd could not be cross-examined on a statement imputed to but not admitted by him. . . . This case cannot be characterized as one where the prejudice in the denial of the right of cross-examination constituted a mere minor lapse. The alleged statements clearly bore on a fundamental part of the State's case against petitioner. The circumstances are therefore such that "inferences from a witness'[s] refusal to answer added critical weight to the prosecutions s case in a form not subject to cross-examination, and thus unfairly prejudiced defendant."Id. at 419-20 (quoting Namet, 373 U.S. at 187, 83 S.Ct. at 1155).
In contrast, the Supreme Court found no constitutional violation in Frazier or Namet. The petitioner in Namet, who was convicted of violating the tax code, argued that his conviction should be reversed because the prosecutor was permitted to ask two witnesses incriminating questions regarding their relationship with the petitioner even though the prosecutor knew that the witnesses would invoke their privilege against self-incrimination. Basing its conclusion on a number of considerations, the Supreme Court held that no constitutional violation occurred. First, the witnesses had provided lengthy nonprivileged testimony. Second, the witnesses had invoked the privilege in response to only a few questions. Finally, the Court held that the case before it was "not one . . . in which a witness'[s] refusal to testify is the only source, or even the chief source, of the inference that the witness engaged in criminal activity with the defendant. In this case the few claims of testimonial privilege were at most cumulative support for an inference already well established by the nonprivileged portion of the witness'[s] testimony." Namet, 373 U.S. at 189, 83 S.Ct. at 1156. Accordingly, the Supreme Court held that permitting the witness to invoke the privilege against self-incrimination in front of the jury did not amount to constitutional error. Id.
Similarly, in Frazier, the Supreme Court held that the petitioner, who was convicted of second-degree murder, had not been denied his right of confrontation. The petitioner had been indicted jointly with his cousin, Jerry Lee Rawls, who pleaded guilty to second-degree murder. Prior to trial, defense counsel informed the prosecutor that, if called to testify, Rawls would invoke his privilege against self-incrimination. The prosecutor consulted with Rawls's probation officer and a police officer who had spoken to Rawls, both of whom indicated their belief that Rawls would testify. Based upon his belief that Rawls would not invoke his privilege against self-incrimination, the prosecutor included in his opening statement a summary of the testimony he expected from Rawls. This summary was brief and was sandwiched between a summary of the petitioner's own confession and a description of the circumstantial evidence the state intended to produce. Frazier, 394 U.S. at 733-35, 89 S.Ct. at 1421-23.
When called to the stand, Rawls told the court that he intended to assert his privilege against self-incrimination in response to every question regarding his activities on the day of the murder. Rawls was thereupon dismissed from the stand. The Supreme Court stated that Rawls's appearance on the stand could not have lasted more than two or three minutes. The Supreme Court distinguished the circumstances of Frazier from those presented in Douglas as follows:
In Douglas, the prosecutor called the defendant's coconspirator to the stand and read his alleged confession to him; the coconspirator was required to assert his privilege against self-incrimination repeatedly as the prosecutor asked him to confirm or deny each statement. The Court found that this procedure placed powerfully incriminating evidence before the jury in a manner which effectively denied the right of cross-examination. Here, Rawls was on the stand for a very short time and only a paraphrase of the statement was placed before the jury. This was done not during the trial, while the person making the statement was on the stand, but in an opening statement. In addition, the jury was told that the opening statement should not be considered as evidence. Certainly the impact of the procedure used here was much less damaging than was the case in Douglas. . . . Moreover, unlike the situation in Douglas. . . . Rawls statement was not a vitally important part of the prosecution's case.Id. at 734, 89 S.Ct. at 1422.
In the case sub judice, Gee was only in front of the jury for a very short period of time. During this time period, Gee refused to give any testimony, even his name. Gee was never questioned by the prosecutor in front of the jury. The prosecutor never attempted to admit any statements made by Gee, nor did the prosecutor ever remark regarding the substance of Gee's expected testimony in front of the jury. Based upon these facts, the Michigan Supreme Court found that Gee's statements did not amount to the "equivalent . . . of testimony" and, therefore, petitioner's confrontation rights had not been violated. Gearns, 457 Mich. at 184 (alteration in original). Based upon the pertinent Supreme Court precedent discussed supra, this Court is satisfied that the Michigan Supreme Court's decision is not an objectively unreasonable application of clearly established federal law.
Unlike the cases cited by petitioner, the prosecutor in the case sub judice never questioned Gee in front of the jury. Therefore, there is no concern that the prosecutor was able to build his case out of inferences arising from Gee's invocation of his Fifth Amendment rights. Petitioner further argues that "[i]f the trial court had applied the Sixth Circuit's balancing test to the facts of the instant case, it would not have forced Tarkeus Gee to take the stand." (Pet. at 18). On habeas review, however, this Court may consider only pertinent United States Supreme Court precedent. Therefore, petitioner's reliance upon the Sixth Circuit's "balancing test" is unavailing. Accordingly, petitioner's Confrontation Clause argument is rejected.
2. Due Process
Petitioner also contends that he is entitled to habeas corpus relief because the prosecutor engaged in misconduct by "putting on the stand a witness the prosecutor knew would simply exercise his Fifth Amendment rights." (Pet. at 13). As correctly stated by the Michigan Supreme Court, "the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982). The "Constitution entitles a criminal defendant to a fair trial, not a perfect one." Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed. 2d 674 (1986). Where the government engages in "a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege," due process concerns may be implicated. Namet, 373 U.S. at 186, 83 S.Ct. at 1154-55.
Applying this standard, the Michigan Supreme Court held that no prosecutorial misconduct amounting to a violation of due process had occurred. According to the Michigan Supreme Court, "calling a witness to the stand, even if the prosecutor knows that the witness will assert the Fifth Amendment, does not, by itself, deny a defendant a fair trial or due process of the law." Gearns, 457 Mich. At 192-93. This Court is satisfied that the Michigan Supreme Court's conclusion is not an objectively unreasonable application of clearly established federal law.
As previously stated, the prosecutor conducted no substantive questioning of Gee. Thus, there was nothing from which the jury could draw any type of inference. Petitioner argues that the prosecutor "deliberately injected" error into this case and, therefore, his due process rights were violated. (Pet. at 19). A review of the record, however, indicates that it was the trial judge, not the prosecutor, that decided to have Gee place his refusal to testify on the record and decided to do so in front of the jury. The trial court, however, also specifically stated that the only thing that would be placed on the record was Gee's refusal to testify, and that he would not allow the prosecutor to substantively question Gee regarding his statements to the investigating police officer. Therefore, the Court finds petitioner's argument that the prosecutor deliberately injected error into the proceedings unsupported by the facts of this case.
After the trial judge conducted a colloquy outside of the jury's presence and determined that Gee was refusing to testify, and that Gee was not entitled to invoke the Fifth Amendment, the trial judge stated:
Fine. All right. The Court finds you in contempt of court. We will have a hearing later to dispose of your sentence. Get the jury. We are going to place on the record from the defendant's own testimony that he refuses to testify. We are not going to get into any of this other stuff in front of the jury about the colloquy between Bears [the investigating police officer] and Mr. Gee.
(Trial Tr., Vol. III at 21).
The Court finds the cases cited by petitioner involving situations in which the prosecutor had knowingly presented false testimony to be unpersuasive. The prosecutor in the case sub judice presented no testimony from Gee, let alone false testimony. Furthermore, as previously stated, this Court is restricted to considering pertinent United States Supreme Court precedent in determining what constitutes clearly established federal law. Therefore, the Court also finds petitioner's reliance upon a number of Michigan state court decisions to be unpersuasive.
Conclusion
Because this Court is satisfied that the Michigan Supreme Court's decision in the case sub judice was not an objectively unreasonable application of clearly established federal law, petitioner's petition for a writ of habeas corpus shall be denied. Petitioner's motion for oral argument shall also be denied.A Judgment consistent with this Opinion shall issue forthwith.