Opinion
Case No. 00-10375-BC
February 25, 2004
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS
Before the Court is the petition of Stanley Fowle for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner, who is currently incarcerated at the Carson City Correctional Facility in Carson City, Michigan, alleges that he is being held in custody in violation of the Constitution of the United States. Specifically, he claims that the jury lacked evidence from which it could rationally have convicted him beyond a reasonable doubt of felony murder, that he was denied his right to counsel at his third interrogation by police officers, that he was deprived of his right to attack a witness's bias for testifying against him, and that the prosecutor in his trial committed prejudicial misconduct by eliciting inadmissible and inflammatory testimony from a prosecution witness.
Operating under an Order of Reference, Magistrate Judge Charles E. Binder filed a report recommending that the petition be denied as to all claims. The petitioner timely objected to the recommendation, and the matter is now before the Court for disposition. Having examined de novo the petition, the Magistrate Judge's report and recommendation of dismissal, and the petitioner's objections to it, along with the other materials of record, the Court concludes that the magistrate judge correctly determined the governing law and properly applied it to the allegations of the petition. The Court will therefore adopt the recommendation and dismiss the petition with prejudice.
I.
The petitioner has not objected to the magistrate judge's summation of the relevant trial testimony, and the Court adopts that summation as its own.
As the magistrate judge explained, this case arose from the death of Mary Ingels around August 9, 1993. Ingels, who was the petitioner's great-grandmother, was found deceased, laying in her bed by her daughter, Lea VanHorn, on August 11, 1993. Ingels had a pillow over her head and rosaries laying by her arms. After removing the pillow, VanHorn observed that her mother's face was purple and that Ingels's arms contained deep tears. A field investigator from the Jackson County medical examiner's office, a Mr. Terwilliger, arrived on the scene. After learning from family members that Ingels had a history of heart problems and bruised easily, and given the officers' initial determination that there was no sign of forced entry, Terwilliger determined that Ingels had died from natural causes, and he caused the body to be transported to a funeral home.
Later that night, VanHorn went to retrieve her mother's purse, which was not in the closet where it was usually kept. Several items usually found in Ingels's purse, including her house keys, wallet, and checkbook, were also missing. City Bank was promptly informed of the missing checks, and after VanHorn spoke to Jackson police about this development, Sergeant Mary Jo Kennedy immediately called the funeral home and directed them to cease further preparations on the body. By that time, however, the body had already been embalmed.
Further investigation revealed signs of forced entry through a basement window and indications that dust and dirt in the basement had recently been disturbed. Given these suspicious circumstances, a forensic pathologist, Dr. Dragovic, was called in to perform an autopsy. Dragovic found faint bruising on the left upper part of Ingels's face and the left side of her head, as well as "quite extensive" bruises on the front of both upper arms, both forearms, and tears of the skin on both forearms. Dragovic testified at trial that Ingels had likely "died of asphyxia due to deprivation of oxygen rendered by smothering with a pillow."
Around the same time of Ingels's death, checks bearing her posthumous "signature" were being cashed at various banks by Justin Irwin, an acquaintance of the petitioner. At trial, Irwin explained that Fowle had asked him to cash the checks because Fowle had no identification, and that he had been paid small amounts for rendering assistance in this regard. With the proceeds, the petitioner purchased a car stereo, a used gray Saab, a radar detector, athletic shoes for Fowle, Irwin, and Irwin's brother Mark Harmon, and then lunch at McDonalds. The Jackson City Police Department was alerted to the cashing of the checks and subsequently recognized and pursued the petitioner's gray Saab. The petitioner was arrested.
Detective Maurice Crawford talked to Irwin and then proceeded to interview the petitioner. Crawford advised the petitioner that he was under arrest for both forgery and uttering and publishing, but also indicated that he was interested in talking to him about the murder of his great-grandmother. The petitioner was advised of his Miranda rights, and the interview began at 7:05 p.m. on August 11, 1993. Fowle told Crawford that the his grandmother had given him the checks to purchase a car, rent an apartment, and buy school items. His story then changed, and the petitioner stated instead that he and a Deon Jones had stolen the checks the previous afternoon, but that Irwin was enlisted when Fowle could not get the Saab dealer to take a check. He claimed that he had observed his great grandmother lying on the bed, but elected not to disturb her.
Crawford then took a break, at which time he learned that Ingels had apparently been murdered by suffocation. After providing the petitioner with some food, Crawford informed the petitioner that his great grandmother had been murdered, that he did not think the petitioner had done it, but that he needed the petitioner's assistance in finding the person who had. At this time, the petitioner started to cry, stating that he did not want to go to prison. He proceeded to tell Crawford that he and Jones had gone to his great grandmother's house on Saturday and saw papers showing how much she had in her checkbook, and that Deon must have gone back later and stolen the checks and killed her. Crawford began tape-recording the statement with the petitioner's consent at that point; the recording was played for the jury at trial and a transcript is attached to the petition.
On the recording, the petitioner stated that he and Jones went into Ingels's house around 11:30 p.m. on Monday night just to steal the checkbook, and that only Jones had proceeded into her bedroom. He then stated, however, that he went into the bedroom and shut the closet door just as Jones was getting off of Ingels. After they left, the petitioner stated that Jones gave him the checks and threw a white purse into the Grand River. At the end of the interview, Crawford stated "You know that you're guilty of murdering your grandmother," to which the petitioner responded, "Yes."
The following afternoon, August 12, 1993, Crawford conducted a second taped interview. He again advised the petitioner of his Miranda rights, and proceeded to tell Crawford that Deon Jones lived in Lansing and had not been to Jackson lately. The petitioner insisted that they must have the wrong person and that his prior statement had been truthful. After the interview concluded, Crawford met with a prosecutor and obtained a warrant for the petitioner's arrest on charges of uttering and publishing. The petitioner was then arraigned on these charges.
On August 13, 1993, Crawford conducted his third and final interview with the petitioner. The detective began by telling the petitioner that he was there only to talk about the murder. The petitioner was again advised of his rights and signed a waiver. During this third interview, the petitioner admitted that he had killed his great grandmother, and that he had done so alone. The petitioner stated that he had just wanted to get the checks and get out, but that his great grandmother heard him and jumped up with something in her hand. In response, he grabbed a pillow and held it on her head. After her struggles ceased, he grabbed what she had been holding — allegedly a wooden-handled knife — and then proceeded to throw her purpose and the knife in weeds near a round building on Oak Street. Police later retrieved the purse, but the knife was not found. After the interview had concluded, Crawford obtained a warrant charging the petitioner with felony murder and breaking and entering of an occupied dwelling.
At trial, the prosecution presented testimony by two inmates who had talked with the petitioner while he was incarcerated pending trial. When talking with Corb Osborne, the petitioner stated that his great grandmother had come after him with a knife, that he had only meant to hold her down, and that he never intended to kill her. Another inmate, Dana Carr, testified that the petitioner confessed to entering the house through the basement, proceeding up to the decedent's bedroom, and stated that he smothered her simply because he did not want to be recognized.
On the morning of trial, the petitioner pleaded guilty to forgery, Mich. Comp. Laws § 750.248, and uttering and publishing, Mich. Comp. Laws § 750.249. A jury subsequently found him guilty of felony murder, Mich. Comp. Laws § 750.316, and breaking and entering an occupied dwelling with intent to commit larceny, Mich. Comp. Laws § 750.110. The petitioner also pleaded guilty to being a habitual offender, second offense, Mich. Comp. Laws § 769.10, in both cases. The petitioner was then sentenced to life in prison without parole for felony murder, fifteen to twenty-two-and-a-half years for the breaking and entering conviction, and fourteen to twenty-one years for the forgery and uttering and publishing convictions. On appeal, the Michigan Court of Appeals vacated the breaking and entering conviction on double-jeopardy grounds, but otherwise affirmed the petitioner's convictions. People v. Fole, No. 187018 (Mich.Ct.App. Feb. 3, 1998). The petitioner's request to the Michigan Supreme Court for delayed leave to appeal was denied, as was his request to the United States Supreme Court for a writ of certiorari. People v. Fowle, 459 Mich. 988, 593 N.W.2d 559, cert. denied, 528 U.S. 892 (1999).
II.
As the magistrate judge correctly observed, 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 "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising the question of effective assistance of counsel, as well as other constitutional claims. See Wiggins v. Smith, 123 S.Ct. 2527, 2534 (2003). 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). Mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law "must have been objectively unreasonable." Wiggins, 123 So. Ct. at 2535 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000); internal quotes omitted). 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).
The Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause of § 2254(d)(1) "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 McAdoo v. Elo, 346 F.3d 159, 165-66 (6th Cir. 2003); Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en banc); Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
A. 1.
The petitioner first contends that the prosecution presented insufficient evidence from which a rational jury could have concluded that he murdered his great grandmother. The Michigan Court of Appeals rejected this claim:
Defendant contends that the evidence was insufficient to establish the causation and intent elements of the felony murder conviction. When reviewing a challenge to the sufficiency of the evidence, the question to be decided is whether, viewed in a light most favorable to the prosecution, the evidence is sufficient to permit a rational trier of fact to find that the essential elements of the crime were proven beyond a reasonable doubt. People v. Herbert, 444 Mich. 466, 473; 511 NW 2d 654 (1993). The causation element of felony murder does not require that the defendant be the sole cause of harm, only that he be a contributing cause that was a substantial factor in producing the victim's death. People v. Bailey, 451 Mich. 657, 676; 549 N.W.2d 325 (1996). Further, while a murder case that rests upon medical speculation regarding the cause of death is not a case that has been proven beyond a reasonable doubt, People v. Stevenson, 416 Mich. 383, 392-393; 331 NW 2d 143 (1982), in the present case, the cause of death was not established by medical speculation. Rather, it was established by an expert opinion based on the science of forensic pathology as corroborated by other proofs. Viewed most favorably to the prosecution, the evidence was sufficient to establish the requisite causation.
Defendant's contrary argument that the expert's opinion lacked objective medical evidence and was meaningless, while being presented relative to the question of whether the evidence was sufficient, is in essence an attack on the admissibility of the expert's opinions because the argument implicates the rules of evidence on relevancy and the foundation requirements for expert testimony. See MRE 402; MRE 702 and Nelson v. American Sterilizer Co. (On Remand), 223 Mich. App. 485, 491; 566 NW 2d 671 (1997) (to be derived from recognized scientific knowledge for purposes of MRE 702, the proposed testimony must contain inferences or assertions, the source of which rests in an application of scientific methods, and must be supported by appropriate objective and independent validation based on what is known, e.g., scientific and medical literature). Because there was no objection to the admissibility of the expert testimony at trial and defendant has failed on appeal to brief this evidentiary issue, the issue is abandoned. See People v. Kent, 194 Mich. App. 206, 210; 486 NW 2d 110 (1992); In re Toler, 193 Mich. App. 474, 477; 484 NW 2d 672 (1992); see also MRE 103(d). In any event, there was evidence that the expert used a recognized scientific methodology of determining the cause of death and made inferences and conclusions based on an objective and independent evaluation of the victim's body and what was made known to him about the victim being found in bed. His testimony raised questions of the cause of death by pointing out the absence of organic disease which could have caused death, explaining the bruising found on the victim and how it presented anatomical evidence to interpret and understand how the process of asphyxia came about, and explaining the fact that suffocation with a pillow does not leave evidence such as fibers that would be found on the body. Viewed most favorably to the prosecution, we hold that a rational trier of fact could find from the evidence presented at trial that the victim died from asphyxiation rather than natural causes.
We also reject defendant's challenge to the intent or malice element of felony murder. Viewed most favorably to the prosecution, a rational trier of fact could find beyond a reasonable doubt that defendant intended to kill, do great bodily harm, or create a high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result. People v. Hutner, 209 Mich. App. 280, 282-283; 530 N.W.2d 174 (1995); People v. Flowers, 191 Mich. App. 169, 176-177; 477 NW 2d 473 (1991).People v. Fowle , Nos. 187018 187019, 1998 WL 1992968, at *l-2 (Mich.Ct.App. Feb. 3, 1998).
The magistrate judge correctly stated that the standard of review of an "insufficient evidence to convict" claim is whether any rational juror could have found the petitioner guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 309 (1979). It is irrelevant whether another rational jury, or the reviewing court, could have reached a different conclusion. Id. at 316. The magistrate judge also rejected the petitioner's claim that insufficient evidence existed on two elements of felony murder: that he killed a human being, and that he did so with either the intent to kill or inflict great bodily harm or with reckless disregard for that consequence. See People v. Brannon, 194 Mich. App. 121, 124-25, 486 N.W.2d 83, 85 (1992). The third element of the crime, the commission of an enumerated felony, is not challenged in the petition. See id. The magistrate judge concluded that while the medical examiner's conclusion of homicide was reached by process of elimination, it nonetheless was a permissible view of the evidence as explained and supported by an expert in forensic pathology.
In his objections, the petitioner contends that this conclusion was erroneous because "the pathologist also acknowledged that persons with the decedent's medical condition have paper-thin skin, which bruises and tears easily." Objs. at 1. He also contends that the medical examiner's opinion "had no medical support, as he did not even bother to review her medical records or speak with her treating physician." Objs. at 2. The Court disagrees. Dr. Dragovic acknowledged that the decedent's skin could have been torn in a variety of ways, but testified that asphyxiation was the only explanation for the simultaneous appearance of those tears, the bruises, and, most importantly, her death notwithstanding the absence of any failed internal organ. Dragovic's logical explanation for his conclusion, bolstered by his several years of experience performing autopsies, could readily have been accepted by a rational juror. The petitioner's unsupported assertion that another medical examiner might have reached a different conclusion would be a reason for the petitioner to have offered his own expert witness at trial, but it does not indicate that no reasonable juror could have found Dragovic's expert testimony to be credible.
2.
The petitioner also objects to the magistrate judge's conclusion that sufficient evidence existed to support the necessary mental state for felony murder. The petitioner insists that "[h]e only intended to grab the decedent's purse. From this action alone, one cannot infer the requisite intent to commit a breaking and entering. Nor was the mere act of placing a pillow of the decedent's face, by itself evidence of sufficient malice to support the felony murder conviction." Objs. at 2.
The Court disagrees. The first argument, stated in conclusory fashion, makes little sense. The evidence at trial demonstrated that the petitioner was seeking his great grandmother's purse that was inside a house to which he did not have lawful access. He proceeded to force open a basement window to gain entry and access to the purse. Even if this Court accepts the somewhat ludicrous contention that the petitioner did not possess the subjective intent to break into and enter the house (even though that is exactly what he admitted he did), a reasonable jury could have conclude, as does this Court, that an individual who forces his way into a house must know that a breaking and entering is the certain result of that act. See People v. Gould, 225 Mich. App. 79, 86, 570 N.W.2d 140, 144 (defining specific intent as "the subjective desire or knowledge that a prohibited result" will almost certainly occur as a result of the act in question).
The Court also disagrees with the petitioner's assertion that placing a pillow over another's face cannot constitute reckless disregard for human life. The petitioner's comparison of his acts to a "pillow fight" notwithstanding, the Court agrees with the magistrate judge that people in ordinary pillow fights do not press a pillow over a person's face so she cannot breathe, pin down her arms so she cannot fight back, and hold the pillow down for at least a minute until that individual stops struggling. Such behavior is almost a textbook definition of willful and wanton disregard for human life, as required by Michigan law to support a conviction for felony murder.
B.
The petitioner also contends that his Sixth Amendment right to counsel was violated when he was interrogated about his great grandmother's murder after he had already been arraigned for forgery and uttering and publishing. In a lengthy discussion, the Michigan Court of Appeals rejected this contention:
Defendant next claims that the trial court erred in denying his motion to suppress evidence of his statements made relative to the felony murder charge during a custodial interrogation after he was arraigned and invoked his Sixth Amendment right to counsel relative to the forgery and uttering and publishing charges. While we review for clear error a trial court's ruling with respect to a motion to suppress evidence on legal grounds, the trial court's application of constitutional standards is not entitled to the same deference as factual findings. People v. Smielew ski, 214 Mich. App. 55, 62; 542 N.W.2d 293 (1995). Because the facts pertinent to defendant's Sixth Amendment issue are not in dispute, we are left with the strict application of the constitutional standard to uncontested facts. People v. Nelson, 443 Mich. 626, 631; 505 N.W.2d 266 (1993).
The Sixth Amendment, as applied to states through the Fourteenth Amendment, guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." US Const, Am VI. See also People v. Riggs, 223 Mich. App. 662, 676; 568 N.W.2d 101 (1997) (opinion of Smolenski, J.); Smielewski, supra at 60, n 4. Once this right attaches, any subsequent waiver of the right to counsel during a police-initiated custodial interview is ineffective. McNeil v. Wisconsin, 501 U.S. 171, 175; 111 S Ct 2204; 115 L.Ed.2d 158 (1991); Smielewski, supra at 61. However, this Sixth Amendment right does not attach until a prosecution is commenced, i.e., at or after the initiation of adversary judicial criminal proceedings whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.McNeil, supra at 175; Riggs, supra at 676. Further, under McNeil, supra at 175, the Sixth Amendment right to counsel is offense specific.
A strict application of this offense-specific rule to the case at bar would establish no Sixth Amendment right to counsel violation because defendant only invoked his right to counsel for the forgery and uttering and publishing charges. The dispositive question in this appeal is whether the facts fall within an exception to the offense-specific rule of McNeil. We note that this Court in Smielewski, supra at 62, looked to dictionary definitions of the word "related" and State v. Sparklin , 296 Or. 85; 672 P.2d 1182 (1983), in determining if charges were sufficiently related or connected to extend a defendant's properly asserted Sixth Amendment right to counsel concerning one crime to a second crime for which the defendant was not yet charged. Under this approach, the factual similarity between the crimes, whether they rest on substantial identical facts, and whether there was a significant association between or among things (e.g., the relationship between cause and effect) were deemed appropriate considerations. Smielewski, supra at 62. However, because a federal question is involved, we believe that it is also necessary to consider federal decisions which have recognized an exception to the offense-specific rule of McNeil. See Riggs, supra at 675 (opinion of Smolenski, J.); Young v. Young, 211 Mich. App. 446, 450; 536 N.W.2d 254 (1995) ( Michigan follows the rule that state courts are bound by holdings of federal courts on federal questions when there is no conflict, but is free to choose the most appropriate view when the issue has divided the circuits of the federal courts).
The federal circuits which recognize an exception to the offense-specific rule fall within two lines of cases. One line of cases invokes an exception where the offenses are "closely related" (construing that phrase relatively broadly) and there is evidence of deliberate police misconduct in the process of eliciting the incriminating statements. The other line of cases focuses entirely on the facts underlying the charges and uncharged offenses, looking for similarities of time, place, person, and conduct to determine if the offenses are "closely related" or "inextricably intertwined" so as to fall within the exception. United States v. Arnold, 106 F.3d 37, 41 (CA 3, 1997); Helium v. Warden, United States Penitentiary-Leavenworth, 28 F.3d 903 (CA 8, 1994) (finding it unnecessary to decide if the ninth circuit exception should be adopted where the facts would fall within that exception, even if adopted); Hendricks v. Vasquez, 974 F.2d 1099 (CA 9, 1992) ( fact that two crimes had totally independent elements and did not arise from same conduct considered factors in determining that the exception did not apply).
In the present case, there is no evidence of deliberate police misconduct that warrants a broad construction of the phrase "closely related." Further, regardless of whether we apply the definitional approach of Smielewski, supra at 62, or the federal circuit court decisions on the "closely related" or "inextricably intertwined" exception to the offense-specific rule of McNeil , we would find that defendant's Sixth Amendment right to counsel was not violated when he was questioned about the felony murder after being arraigned for the forgery and uttering and publishing charges.
Although the offenses are not wholly unrelated, they do not share any elements because the intent to defraud is the gist of both the forgery and uttering and publishing offense. The elements of forgery are (1) an act which results in the false making or alteration of an instrument (which makes an instrument appear to be what it is not) and (2) a concurrent intent to defraud or injure. People v. Kaczorowski, 190 Mich.App 165, 171; 475 NW 2d 861 (1991). The elements of uttering and publishing a forged instrument are (1) knowledge that the instrument was false, (2) an intent to defraud, and (3) presentation of the forged instrument for payment. Id.
Further, the forgery and uttering and publishing offenses occurred at a different time and place than the felony murder and involved different individuals. The bank was the recipient of the forged checks. Also, defendant elicited the assistance of individuals who had no part in the felony murder to cash the checks. The fact that the forged checks may have been stolen from the victim's house at the time of the felony murder is not enough to invoke the exception to offense-specific rule of McNeil.
Defendant's contrary argument relies heavily on showing a similarity between the instant case and a Texas Court of Criminal Appeals decision which refused to strictly apply McNeil to a situation where a defendant gave statements about a capital murder after he was arraigned for the theft of the vehicle because the theft was being used to prove an aggravating element for the capital murder charge. Upton v. State, 853 S.W.2d 548, 555-556 (Tex Crim App, 1993). Upton differs from the present case because the forgery and uttering and publishing charges were not used as an aggravating element to establish felony murder. Therefore, Upton not support defendant's contention that the forgery and uttering and publishing charges were closely related to the felony murder
In sum, the Sixth Amendment right to counsel — an offense-specific right — that defendant invoked for the forgery and uttering and publishing charges did not extend to the felony murder case under either a strict application of McNeil or a recognized exception to the offense-specific rule. Therefore, the trial court correctly denied defendant's motion to suppress evidence of his statements made relative to the felony murder offense during the custodial interrogation which took place after defendant was arraigned on the forgery and uttering and publishing charges.Fowle, 1998 WL 1992968, at *3-5.
There is no question that the petitioner had a Sixth Amendment right to counsel on the forgery and uttering and publishing offenses at the time of the third interrogation. See Fellers v. United States, 124 S.Ct. 1019(2004). However, the Court agrees with the magistrate judge that the Michigan Court of Appeals correctly applied the appropriate Supreme Court precedent in denying the petitioner's claim. The Court also agrees that the Michigan court's analysis of a "recognized exception" to McNeil in federal circuit court opinions is beside the point, as the writ of habeas corpus may only issue if the state court's decision was "contrary to, or an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1) (emphasis added). McNeil on its face sets out no exception for "related" offenses — the defendant is either being questioned about the charged offense or he is not. In fact, the Supreme Court recently overruled the circuit court precedents cited by the Michigan Court of Appeals and made it clear that no such exceptions exist. See Texas v. Cobb, 532 U.S. 162 (2001). Although not relevant to the disposition of this petition, Cobb underscores the reasonableness of the Michigan court's determination that uttering and publishing and forgery are distinct from felony murder.
The petitioner's continued insistence in his objections that his offenses were all "related," for the reasons stated, does not state a claim upon which the writ of habeas corpus could issue.
C.
Next, the petitioner complains that he was not permitted to impeach Justin Irwin at trial by demonstrating that he had grand theft and burglary charges pending against him in the State of Florida. The trial court found the evidence to be relevant, but excluded it on the ground that its probative value was outweighed by the danger of substantial prejudice. Trial Tr, vol. II, at 213. The Michigan Court of Appeals held that the claim was procedurally defaulted because the constitutional basis for the petitioner's argument was not raised in the trial court. The Court of Appeals then determined that, in any event, any error was harmless:
The witness in question was one of three witnesses who gave testimony on facts pertinent to the forgery and uttering and publishing aspect of defendant's conduct, which defendant had already conceded by pleading guilty. Further, the record shows that the witness' credibility was attacked by defense counsel through cross-examination on his involvement as a possible accomplice to the forged check cashing and by attempting to show similarities between his testimony and that of another witness who participated in the forged check cashing. Defendant also received the benefit of a jury instruction on how the jury should evaluate accomplice testimony. Moreover, the testimony itself, which defendant claims was critical to the defense at the felony murder trial, did not contain any testimony on statements made by defendant regarding whether he killed the victim. The witness testified that the defendant said that the victim gave him the checkbook on her deathbed at a hospital before "they pulled the plug." At most, this testimony provided a basis for inferring that defendant knew when he made the statement that the victim was dead and, thus to some extent, rebutted certain statements made by defendant during police interrogation about the victim being alive when he left her house. We also note that similar testimony regarding the fact that defendant made statements about the victim dying at a hospital were made by another witness who participated in the forged check cashing.
Because the witness' testimony was not outcome determinative, appellate review of defendant's newly raised constitutional claim is foreclosed. We note, though, that defendant's claim that this issue requires reversal would also fail under the standards for preserved constitutional error because it is clear from the record that, even if the limitation placed on defense counsel's cross-examination had some constitutional dimension, any error was harmless beyond a reasonable doubt.Fowle, 1998 WL 1992968, at *6 (citations omitted). The magistrate judge found that this claim had been procedurally defaulted, and also agreed with the Michigan court's conclusion that any error excluding the testimony was harmless under Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) because it could not have "had a substantial and injurious effect of influence in determining the jury's verdict."
The petitioner's only objection to the magistrate judge's report on this claim is to the conclusion of procedural default. No objection was entered to the harmless error analysis. The petitioner's failure to object to this particular aspect of the report constitutes a waiver of his right to challenge this recommendation. In any event, though, the Court agrees that Irwin's testimony was largely cumulative and added little to the case against the petitioner, given the admission of his taped confessions at trial. Because this Court may deny a claim on the merits even if it was not properly exhausted in the state courts, see 28 U.S.C. § 2254(b)(2), the Court adopts the magistrate judge's finding that any error with regard to Irwin's testimony was harmless.
D.
Finally, the petitioner contends that the prosecutor committed misconduct when the prosecutor asked Dana Carr, one of the two jail inmates in whom the petitioner had confided, why he was testifying for the prosecution. The Michigan Court of Appeals rejected this claim as well:
Defendant next claims that the prosecutor deprived him of a fair trial by eliciting a prejudicial response from another prosecution witness on his motive for testifying during redirect examination. Claims of prosecutorial misconduct are reviewed to determine whether the defendant was denied a fair trial. When the issue pertains to improper questioning and there is no objection, relief will not be granted if a timely objection by defense counsel to the alleged improper questioning could have cured any prejudice, either by precluding such further questioning or by obtaining an appropriate cautionary instruction. Defendant has not established support for his contention that the prosecutor violated the principle that a prosecutor must refrain from injecting unfounded or prejudicial innuendo into the proceedings, and that insinuations and questions which have a tendency to prejudice the jury (regarding defendant's witnesses) and relate to irrelevant matters denies a defendant a fair trial. In this regard, we note that defendant's argument concerns a prosecution witness who testified that defendant made certain statements to him about the victim's death while they were both jail inmates. The witness further testified that his own criminal charges were resolved by a plea bargain agreement, but denied that he received any benefit for testifying against the defendant. The prosecutor's challenged question expounded on this issue during redirect examination by asking the witness why he testified against the defendant at the preliminary examination if he was going to receive no benefit. The witness replied, "[b]ecause I think anybody that would kill their own eighty-six-year-old grandmother deserves to get whatever they can get."
Although it is improper for a witness to express an opinion on a defendant's guilt or innocence of a charged offense at trial, we are not persuaded that the prosecutor's question was improper inasmuch as the question was relevant to and limited to the issue of the witness' motive, which had already been raised at trial, and there is no evidence that the prosecutor sought to elicit an opinion from the witness relative to whether the defendant "killed" the victim. Even if the prosecutor's question was improper, any possible prejudice could had been cured by a request for a curative instruction. We find no merit in defendant's contention that the jury could have found him guilty by deferring to the witness' "expertise" to detect crime as a criminal. The witness did not testify as an expert, bu[t] rather as a lay witness whose credibility was being attacked on the basis of his prior convictions and alleged motive for testifying against defendant. Upon examining the prosecutor's brief question in the context of the trial record, we hold that defendant has demonstrated no basis for relief.Fowle, 1998 WL 1992968, at *6-7 (citations omitted). Finding the only applicable case to be the Supreme Court's decision in Berger v. United States, 295 U.S. 78 (1935), the magistrate judge concluded that the prosecutor was merely following up defense counsel's questioning of the witness's motives to testifying, and that the Michigan Court of Appeals's determination that the prosecutor was not trying to elicit an opinion on the defendant's guilt was neither contrary to, nor an unreasonable application of Berger. In his objections, the petitioner contends that Carr's "lenient sentence" of five to twenty years for armed robbery had already been raised, and that given Carr's insistence on cross-examination that he was receiving no special consideration because of his testimony, the prosecutor had no valid purpose for soliciting further explanation as to the witness's actual motive for testifying.
The Court agrees that the prosecutor's redirect examination in this regard is somewhat troubling. With the witness having made clear his absence of an improper motivation for testifying, the prosecutor was arguably asking for this type of inappropriate comment when he raised the issue again on redirect. Then again, the redirect was limited to the preliminary examination, which was defense counsel's focus on cross-examination. Furthermore, it is entirely possible that the prosecutor expected Carr simply to respond that he came forward because had evidence to offer and that he testified truthfully because he was under oath to do so. Either way, the Court simply cannot conclude that the Michigan court's resolution of the matter against the petitioner was an unreasonable application of Berger.
On a related note, the petitioner also contends that his trial counsel was ineffective for failing to object to the comment once made. The magistrate judge did not address this aspect of the claim, focusing instead on whether defense counsel should have objected to the question on redirect. The Court agrees that the answer was completely inappropriate and that trial counsel should have objected. In light of the overwhelming evidence against the petitioner, however, including his two taped confessions, the Court finds that the statement, by itself, does not undermine its confidence in the jury's verdict. See Strickland v. Washington, 466 U.S. 668, 694 (1984). The summary determination of the Michigan Court of Appeals that the ineffective assistance of counsel claim was without merit, therefore, was neither contrary to, nor an unreasonable application of, clearly established federal law.
III.
The Magistrate Judge correctly concluded that none of the grounds advanced in the petition justify issuance of the writ of habeas corpus.
Accordingly, it is ORDERED that the Report and Recommendation is ADOPTED.
It is further ORDERED that the petition for a writ of habeas corpus is DENIED.