CASE NO. 03-CV-70776-DT
September 19, 2003
OPINION AND ORDER DENYING HABEAS CORPUS PETITION
Petitioner Marco Taylor has filed a pro se application for the writ of habeas corpus under 28 U.S.C. § 2254. Petitioner was convicted in Wayne County, Michigan of first-degree murder, MICH. COMP. LAWS § 750.316(1)(a), and possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b(1). The convictions arose from the fatal shooting of Lashome ("Chip") Becker on March 31, 1998, at a gas station in Detroit, Michigan.
[T]he prosecutor presented testimony from several eyewitnesses that saw [Petitioner] shoot the victim in the head after first shooting him in the leg. The medical examiner testified that the victim's gunshot wound to the head was a `contact wound,' indicating that defendant placed the barrel of the gun against the victim's head and pulled the trigger. An eyewitness testified that this shot was fired while the victim was lying on the ground.People v. Taylor, No. 220102, at 3-4 (Mich.Ct.App. Aug. 14, 2001).
The trial court sentenced Petitioner to two years in prison for the felony-firearm conviction and to a consecutive term of life imprisonment for the murder conviction. Petitioner raised his habeas claims in an appeal of right. The Michigan Court of Appeals affirmed his convictions in an unpublished per curiam opinion, see id. at 1, and on March 22, 2002, the Michigan Supreme Court denied leave to appeal. See People v. Taylor, 465 Mich. 967; 641 N.W.2d 861 (2002) (table).
Petitioner's undated habeas petition was received in this Court on February 24, 2003. It attacks (1) the sufficiency of the evidence produced at trial, (2) the admission of a photograph in evidence, (3) the denial of Petitioner's post-conviction motion for a new trial, (4) defense counsel's representation of Petitioner, (5) the admission of Petitioner's statement to the police, (6) the impeachment of a defense witness, and (7) the prosecutor's closing argument. Respondent argues in a responsive pleading filed through counsel that Petitioner's claims lack merit, are not cognizable, or are barred by the doctrine of procedural default.
II. Standard of Review
Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Pursuant to the AEDPA, Petitioner is entitled to the writ of habeas corpus only if he can show that the state court's adjudication of his claims on the merits —
(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). Simply stated, under § 2254(d), Petitioner must show that the state court's decision "was either contrary to, or an unreasonable application of, [the Supreme] Court's clearly established precedents, or was based upon an unreasonable determination of the facts." Price v. Vincent, ___ U.S. ___, ___, 123 S.Ct. 1848, 1852-53 (2003).
A state court's decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362,413 (2000). A state court's decision is an "unreasonable application of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.
"[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." Id. at 409. "[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." Id. at 411. "Rather, it is the habeas applicant's burden to show that the state court applied [Supreme Court precedent] to the facts of his case in an objectively unreasonable manner." Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
A. Sufficiency of the Evidence
Petitioner alleges that the evidence presented at trial was insufficient to sustain his conviction for first-degree murder because the evidence did not establish that he acted with premeditation and deliberation. At most, alleges Petitioner, the prosecution proved second-degree murder.
1. The State Court Decision
The Michigan Court of Appeals noted on review of Petitioner's claim that first-degree murder is defined by statute as a willful, deliberate, and premeditated killing. Premeditated murder can be established through "(1)the previous relationship between the defendant and the victim; (2) the defendant's actions before and after the crime; and (3) the circumstances of the killing itself, including the weapon used and the location of the wounds inflicted." People v. Plummer, 229 Mich. App. 293, 300; 581 N.W.2d 753, 757 (1998). The court of appeals applied these factors to Petitioner's case, stating that
[t]he previous relationship between defendant and the victim supports an inference of premeditation. Defendant testified that the victim had previously threatened and shot at him and had even hired someone to kill him. This relationship could have provided a motive for the killing. See People v. Youngblood, 165 Mich. App. 381, 387; 418 N.W.2d 472, 475 (1988).
Additionally, defendant's actions before and after the shooting support an inference of premeditation. An eyewitness testified that she saw a car pull into the Amoco station, drop defendant off, and pull around the corner. She further testified that defendant `walked straight to [the victim] and shot him' and that defendant then ran through an alley to the area where the car was waiting. From this evidence, the jury could infer that defendant planned to kill the victim and had arranged for a car to help him get away. This demonstrates that defendant acted willfully and deliberately.
The circumstances of the killing itself also support an inference of premeditation. Defendant correctly noted that the brutality of the killing and the fact that a deadly weapon was used is not enough, alone, to prove premeditation. People v. Hoffmeister, 394 Mich. 155, 159; 229 N.W.2d 305, 307 (1975). However, the type of weapon used and the location of the wounds inflicted are factors to consider. Plummer, supra, at 300. According to eyewitness testimony, defendant shot the victim in the leg as the victim was running away. Defendant then pursued the victim and shot him in the neck and head as he lay on the ground. This account was supported by the medical examiner's testimony that the victim was likely shot in the leg before he was shot in the head. The medical examiner also testified that the victim's gunshot wound to the head was a `contact wound,' indicating that the barrel of the gun was pressed against the victim's head when defendant pulled the trigger. The jury could certainly infer that placing the barrel of a gun against a person's head and pulling the trigger is a deliberate, cold-blooded act that suggests premeditation. This is especially so where defendant first shot the victim in the leg.Taylor, Mich. Ct. App. No. 220102, at 2.
As for Petitioner's argument that the evidence showed that he either acted in self-defense or that he shot the victim because he panicked, the court of appeals stated that
the jury was free to believe or disbelieve, in whole or in part, any of the evidence presented. People v. Fuller, 395 Mich. 451, 453; 236 N.W.2d 58, 58 (1975). Thus, the jury was not required to accept defendant's version of the events, which contradicted the testimony of eyewitnesses to the shooting. This Court will not interfere with the jury's role of weighing the evidence and determining the credibility of the witnesses. People v. Lee, 243 Mich. App. 163, 167; 622 N.W.2d 71, 75 (2000). In any event, the prosecutor was not required to disprove defendant's theory of innocence. [People v.] Nowak, [ 462 Mich. 392, 400; 614 N.W.2d 78, 82 (2000)].Id. at 2-3. The court of appeals concluded that "[t]he prosecutor met the requisite burden of presenting evidence from which a rational trier of fact could conclude that all the elements of first-degree, premeditated murder were proved beyond a reasonable doubt." Id. at 3.
2. The Jackson Standard of Review
Federal habeas courts must "review the sufficiency of the evidence supporting a jury verdict, through the framework of § 2254(d), to determine whether, after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002) (citing Jackson v. Virginia, 443 U.S. 307, 324 (1979)), cert. denied, 537 U.S. 1004 (2002), and cert. denied, ___ U.S. ___, 123 S.Ct. 2601 (2003). Federal courts must "give deferential review to state court decisions on sufficiency of the evidence claims." Gomez v. Acevedo, 106 F.3d 192, 194 (7th Cir.), vacated on other grounds, 522 U.S. 801 (1997). "A reviewing court does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor has been observed by the trial court." Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). "The mere existence of sufficient evidence to convict therefore defeats a petitioner's claim." Id. at 788-89.
3. The Record
The record before the Court supports the state court's findings of fact and conclusions of law. Michael Branch testified that Petitioner shot the victim in the leg as he was running away and that he shot him two more times at close range after the victim fell.
Andre Childs was standing next to the victim when Petitioner came from behind and fired a shot at them. Childs ran inside the gas station, but the victim laid motionless on the ground. Childs saw Petitioner put the gun to the victim's head, fire one last time, and then ran away. Childs claimed that the victim had held a cell phone, but no weapon in his hand and that he did not threaten Petitioner.
Nadine Holloway testified that, while standing across the street from the gas station, she saw Petitioner get out of a car. The car had other occupants, and it went around the corner to the alley in back of the gas station. Petitioner then walked up to the victim and shot him in the leg. When the victim fell, Petitioner walked back to him and shot him in the head. Then he ran down the alley. She did not see the victim with a weapon and she did not see or hear him threaten Petitioner. She identified Petitioner at a line-up, and she had no doubt at trial that Petitioner was the person who did the shooting.
A pathologist testified that the victim died from multiple gunshot wounds and that the manner of death was a homicide. The victim had been shot in the thigh, the neck, and the head. The gunshot wound to the thigh was consistent with someone bending over and running. The entry wound to the head had a mark around it consistent with the muzzle of a gun.
Hanadis Lathan testified for the defense that, on an undetermined date in March of 1998, the victim gave a large sum of money to Lathan's cousin as payment for murdering a person named Marco. Petitioner testified that he had been aware of the victim's plan and that he had been afraid of the victim. He approached the victim on the day of the shooting to make peace with him. He fired a shot after the victim raised a gun and told his friends to do what he had paid them to do. Petitioner denied planning the murder.
A rational trier of fact could have concluded from the prosecution witnesses' testimony that Petitioner planned the shooting by arranging to have someone drop him off at the gas station and pick him up after the shooting. A rational trier of fact also could have concluded from the eyewitnesses' testimony that Petitioner premeditated and deliberated the murder during the interval between the gunshot to the victim's leg and the subsequent shots to the victim's head. Therefore, the state court's conclusion that there was sufficient evidence of premeditation and deliberation to support the murder conviction was a reasonable application of Jackson. Petitioner is not entitled to the writ of habeas corpus on the basis of his first claim.
The Michigan Supreme Court recently explained that,
[t]o show first-degree premeditated murder, "`[s]ome time span between [the] initial homicidal intent and ultimate action is necessary to establish premeditation and deliberation.'" People v. Tilley, 405 Mich. 38, 45, 273 N.W.2d 471, 474 (1979), quoting People v. Hoffmeister, 394 Mich. 155, 161, 229 N.W.2d 305, 308 (1975). The interval between the initial thought and ultimate action should be long enough to afford a reasonable person time to take a "second look." People v. Vail, 393 Mich. 460, 469, 227 N.W.2d 535, 538 (1975), quoting People v. Morrin, 31 Mich. App. 301, 328-330, 187 N.W.2d 434, 448 (1971). See also People v. Johnson, 460 Mich. 720, 733, 597 N.W.2d 73, 79 (1999) (applying a "second-look" analysis).People v. Gonzalez, 468 Mich. 636, 641; 664 N.W.2d 159, 163 (2003).
B. Admission of a Photograph
Petitioner's second claim attacks the trial judge's decision to admit in evidence a photograph of the victim's head wound. Petitioner alleges that the photograph was inflammatory and not relevant, competent, or material to any issue in the case, because the pathologist testified that the photograph did not show the contact nature of the wound.
Petitioner has no right to the writ of habeas corpus on the basis of this claim, because the erroneous admission of gruesome photographs fails to state a constitutional claim. Cooey v. Coyle, 289 F.3d 882, 893-94 (6th Cir. 2002) (citing Gerlaugh v. Stewart, 129 F.3d 1027, 1032 (9th Cir. 1997)), cert. denied, ___ U.S. ___, 123 So. Ct. 1620 (2003). A federal court may grant the writ of habeas corpus only if the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241 (c)(3) and 2254(a). Therefore, the trial court's admission of the photograph is not a cognizable claim on habeas corpus review. Cooey, 289 F.3d at 894.
C. Denial of Post-Conviction Motions
Petitioner's third claim alleges that the trial court abused its discretion when it refused to grant either a new trial based on the great weight of the evidence or a judgment not withstanding the verdict. Petitioner alleges that there was credible evidence produced at trial demonstrating that he acted in self defense and did not premeditate or deliberate the shooting. Even if this were true, "[a] federal habeas court has no power to grant habeas relief on the ground that a state conviction is against the weight of the evidence." Dell v. Straub, 194 F. Supp.2d 629, 648 (E.D. Mich. 2002) (Friedman, J.) (citing Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985)). Therefore, Petitioner's great-weight-of-the-evidence claim is not cognizable on habeas review.
D. Trial Counsel
Petitioner's fourth claim alleges ineffective assistance of trial counsel. The Michigan Court of Appeals concluded on review of this claim that Petitioner was not deprived of effective representation. The question here is whether the state court's adjudication of Petitioner's claim was an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984).
The Supreme Court stated in Strickland that, to prevail on a claim of ineffective assistance of counsel, a party must show that defense counsel's performance was deficient and that the deficient performance prejudiced the defense. Id. at 687. The first prong of this test requires showing that defense "counsel's representation fell below an objective standard of reasonableness." Id. at 688. The second prong requires showing "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
"Judicial scrutiny of counsel's performance must be highly deferential. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
1. Lack of a Motion to Quash
Petitioner asserts that his attorneys should have filed a motion to quash the information based on the record at the preliminary examination record. According to Petitioner, testimony at the preliminary examination established that he reacted in the heat of the moment, and this was a sufficient reason to seek a reduction in the charge from first-degree murder to second-degree murder or manslaughter.
The Michigan Court of Appeals concluded on review of Petitioner's claim that "the evidence was more than adequate to support a bindover on first-degree, premeditated murder." Taylor, Mich. Ct. App. No. 220102, at 6. The record supports the state court's conclusion.
Nadine Holloway testified at the preliminary examination that she saw Petitioner get out of a car with a gun in his hand, point the gun at the victim, and shoot the victim two times in the head. Sergeant Samuel Quick testified that, when he interrogated Petitioner, Petitioner admitted that he shot the victim and then chased him around the car and shot him again. The parties stipulated that the victim died from gunshot wounds and that the muzzle of a gun had been placed next to the victim's head.
There was sufficient evidence presented at the preliminary examination to suggest that Petitioner planned the shooting and shot the victim with an intent to murder him. Therefore, Petitioner's attorneys were not ineffective in failing to move to quash the information.
2. Failure to Object to the Arrest and Delay in Arraignment
Petitioner alleges that he was arrested in his home without an arrest warrant and held at the police station for five days without being arraigned on the warrant. He contends that his arrest was illegal and that defense counsel should have challenged his statement to the police and a witness's identification of him at a line-up as the products of the illegal arrest.
Even assuming that the warrantless arrest and delayed arraignment were illegal, Petitioner's statement to the police and the line-up occurred just one day after Petitioner's arrest. There is nothing in the record suggesting that either the warrantless arrest or the delayed arraignment caused Petitioner to make a statement to the police or resulted in the identification of him at a line-up. Therefore, defense counsel was not ineffective for allegedly failing to investigate the circumstances of Petitioner's arrest.
3. Failure to Investigate Criminal Histories
Petitioner alleges next that defense counsel should have investigated the criminal histories of prosecution witnesses. However, Petitioner has not shown that the prosecution witnesses had criminal records and, if they did exist, that the records could have been used to impeach the witnesses and would have made a difference in the outcome of the trial. Consequently, defense counsel was not ineffective for failing to cross-examine prosecution witnesses regarding their alleged criminal histories.
4. Waiving the Evidence Technician
Next, Petitioner faults defense counsel for agreeing to waive the testimony of the evidence technician who prepared sketches of the crime scene. Petitioner asserts that the technician was the only witness who could have testified to an accurate layout of the crime scene and could have established Petitioner's version of the events.
This claim has no merit for reasons succinctly stated by the Michigan Court of Appeals:
[T]he technician's sketches of the crime scene were admitted into evidence. [Petitioner] has not shown that the technician's testimony would have added anything of value to his defense. Thus, [Petitioner] has not overcome the presumption that counsel's decision whether to call or question this witness was a matter of trial strategy.Taylor, Mich. Ct. App. No. 220102, at 6 (citations omitted).
5. Failing to Seek a Hearing Regarding a Sequestered Witness
Petitioner alleges that his attorney should have moved for an in camera hearing when prosecution witness Michael Branch indicated during trial that he had heard evidence before he testified. Petitioner contends that Branch gave tainted testimony as a result of hearing the evidence.
Branch was the first witness to testify. He testified on direct examination that he did not know the victim or anyone else at the crime scene, but that he subsequently came to know that the victim's name was Chip. (Tr. Mar. 29, 1999, at 123). On cross-examination by defense counsel, Branch merely stated that he knew the victim's name was Chip because he had heard the name in the courtroom. (Id. at 139-40).
Branch did not give the impression of having gleaned any other information from the courtroom. Therefore, defense counsel's performance was not deficient for failing to request an in camera hearing to determine the extent of what Michael Branch heard before he testified.
6. Failure to Produce an Expert
Petitioner's final allegation about defense counsel is that he failed to present an expert on post-traumatic stress. Petitioner contends that an expert would have supported his self-defense theory and would have enabled him to challenge the perceptions of eyewitnesses who were under stress from an imminent threat of death.
Eyewitnesses Michael Branch and Andre Childs provided many details about the crime, and both men had the presence of mind to check on the victim after the shooting and talk to police officers who responded to the scene. Eyewitness Nadine Holloway hopped on a bus and went home after observing the shooting. The record gives no indication that the eyewitnesses' perceptions were affected by post-traumatic stress.
Nor does it appear that an expert on post-traumatic stress would have helped Petitioner to establish his defense. Although Petitioner testified that he feared the victim, he admitted that he did not go to the police with information that the victim had hired someone to murder him. Nor did he make a police report after an incident in which the victim shot at him while he was sitting in his car. And although he claimed that the victim held a gun when Petitioner approached him, no gun was found at the scene, and the eyewitnesses testified that the victim was not armed.
The Court agrees with the Michigan Court of Appeals that the outcome of the trial would not have been different if defense counsel had produced an expert witness on post-traumatic stress. Therefore, even if defense counsel's performance was deficient, it did not prejudice the defense.
7. Conclusion on Ineffective-Assistance-of-Counsel Claim
For all the reasons given in the foregoing paragraphs, the Court concludes that defense counsel's performance was not deficient or the alleged deficiencies did not prejudice the defense. Because Petitioner has failed to make both showings (deficient performance and resulting prejudice), the state appellate court's conclusion that defense counsel was not ineffective did not result in a decision that was an unreasonable application of Strickland.
E. Admission of Petitioner's Statement to the Police
Petitioner's fifth claim alleges that the trial judge erred in admitting Petitioner's statement to the police. Petitioner says that the police should have stopped questioning him when he said that he did not wish to answer anymore questions. Petitioner also maintains that his statement was inadmissible because it was involuntary, having been induced by a promise of leniency. The Michigan Court of Appeals adjudicated Petitioner's claim on the merits and concluded that the trial court did not err in denying Petitioner's motion to suppress the statement.
1. The Right to Silence and the Right not to be Coerced into Making a Statement
The Fifth Amendment provides that "[n]o person shall be . . . compelled in any criminal case to be a witness against himself. . . ." U.S. CONST, amend. V. To protect a suspect's Fifth Amendment right to remain silent, an individual who
is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning . . . must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.Miranda v. Arizona, 384 U.S. 436, 478-79 (1966).
The defendant may waive these rights, "provided the waiver is made voluntarily, knowingly and intelligently." Id. at 444. However,
if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.Id. at 445.
"[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his `right to cut off questioning' was `scrupulously honored.'" Michigan v. Mosley, 423 U.S. 96, 104 (1975) (quoting Miranda, 384 U.S. at 474 and 479). Invocation of the right to silence must be unambiguous, McGraw v. Holland, 257 F.3d 513, 519 (6th Cir. 2001), but "no ritualistic formula or talismanic phrase is essential in order to invoke the privilege against self-incrimination. All that is necessary is an objection stated in language that a committee may reasonably be expected to understand as an attempt to invoke the privilege." Esmpak v. United States, 349 U.S. 190, 194(1955).
For a confession to be admissible, it must be voluntary and not coerced by threats, violence, promises, or improper influence. Bram v. United States, 168 U.S. 532, 542-43 (1897); see Lynumn v. Illinois, 372 U.S. 528, 534 (1963). Courts must look to the totality of the circumstances when determining whether a confession has been elicited by unconstitutional means. Ledbetter v. Edwards, 35 F.3d 1062, 1067 (6th Cir. 1994).
Factors to consider in assessing the totality of the circumstances include the age, education, and intelligence of the accused; whether the accused has been informed of his constitutional rights; the length of the questioning; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food or sleep. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).Id.
2. The Trial Court Proceedings
Petitioner was nineteen years of age when he was interrogated, and he had completed the ninth grade. Sergeant Samuel Quick testified at a pretrial hearing that he interrogated Petitioner for three hours before taking a statement from him. Petitioner did not appear to be under the influence of any substances, and Quick did not deprive him of anything.
Quick read Petitioner's constitutional rights to him, and he asked Petitioner to read the rights back to him to ensure that Petitioner could read. Petitioner had said that he understood his rights. Petitioner paused at times during their three-hour conversation, but the conversation eventually resumed after the pauses. Petitioner never asked for an attorney, and he never said that he did not want to talk to Quick.
Quick denied promising anything to Petitioner. He did admit, however, that he probably told Petitioner ten to fifteen times that he thought he was lying, and he repeatedly explained the differences between first-and second-degree murder and manslaughter.
Petitioner testified at the pretrial hearing that he had not understood his constitutional rights at the time and that he did not agree to talk to Quick. He also testified that, when Quick asked him if he committed the murder, he had responded, "I have nothing else to say." He claimed that this comment was ignored and that Sergeant Quick and another officer continued to question him after he made the comment. He asserted that he made a statement because Quick promised to describe the case as a manslaughter, not murder, and because Quick told him that he would be found guilty or he would never see his children again.
Defense counsel argued at the close of the hearing that the comment, "I have nothing else to say" was an assertion of the right to remain silent and that the police were bound to stop questioning Petitioner when he made the comment. Defense counsel also argued that Petitioner could have understood Sergeant Quick to promise that he would recommend a charge of manslaughter if Petitioner made a statement.
The trial court looked to the voluntariness of the circumstances and determined that no threats or promises had been made. The court found Petitioner's credibility to be questionable when Petitioner said that he did not understand his rights and did not know if his rights were read 3 him during prior contacts with the police. The trial court determined that Petitioner was elective about when and how he wanted to answer questions, because he continued to answer some questions. The court found Petitioner's comment about not wanting to say anything to be equivocal.
3. The State Appellate Court Decision
The Michigan Court of Appeals adjudicated Petitioner's claim on the merits as follows:
Defendant also argues that his statements made to the police should have been suppressed because they were taken after he asserted his right to remain silent and were induced by promises of leniency. We disagree. We review the trial court's factual findings for clear error and its interpretation and application of the law de novo. People v. Attebury, 463 Mich. 662, 668; 624 N.W.2d 912, 915 (2001).
Defendant was advised of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and signed a written waiver of those rights. Defendant does not claim that his waiver was invalid, but asserts that the police officer improperly continued to question him after he invoked his right to remain silent. Where a suspect unequivocally invokes his or her right to remain silent, the police must stop questioning and must honor the suspect's demand. Michigan v. Mosley, 423 U.S. 96 (1975); People v. Adams, 245 Mich. App. 226, 230-231, 234; 627 N.W.2d 623, 625-28 (2001).
Defendant claims that he repeatedly told the police officer that he had nothing more to say. However, the officer denied this and the trial court expressed doubt about defendant's credibility on the matter. We defer to the trial court's credibility assessment. People v. Howard, 226 Mich. App. 528, 543; 575 N.W.2d 16, 26 (1998). In any event, even if defendant told the officer that he had "nothing more to say," this would not constitute an unequivocal invocation of the right to remain silent. Rather, defendant simply communicated his opinion to the officer that he had revealed all pertinent information and had nothing more to add.
Defendant further suggests that the police officer improperly induced his statements by promising to write up a statement to make the case look like manslaughter, not murder. A suspect's inculpatory statements, induced by a police officer's promises of leniency, are not inadmissible per se. People v. Givans, 227 Mich. App. 113, 120; 575 N.W.2d 84, 87 (1997). Rather, such promises are one factor to consider when determining if the statement was voluntary. Id. Here, the officer denied ever promising defendant anything, and the trial court believed the officer's testimony. See Howard, supra, at 543. Defendant has failed to show that he was promised anything in exchange for his statements. Thus, the trial court did not err by denying defendant's motion to suppress.Taylor, Mich. Ct. App. No. 220102, at 4.
Whether Petitioner invoked his right to remain silent was a credibility issue. Although he did not explicitly invoke his Fifth Amendment right to terminate the interview, he did testify that he had said he had nothing more to say. Sergeant Quick, on the other hand, testified that Petitioner never informed him that he did not want to say anything or that he no longer wanted to talk to Quick.
Whether Quick used coercive techniques also is a matter of credibility. Quick testified that he not coerce a statement from Petitioner or promise him anything. Petitioner testified that Quick had said he would write up the case as a manslaughter and that Quick implied bad things would happen if he did not make a statement.
Petitioner's testimony at the pretrial hearing was somewhat questionable because, although he admitted that he had been arrested in 1996 and again in 1997, he claimed that the constitutional rights were new to him. More importantly, he testified that Quick had said he would never get out to see his child and that he would be found guilty if he did not say anything, and yet he asserted in his statement to Sergeant Quick (as recorded by Quick) that he made the statement "[b]ecause it was eating [him] up inside, and [he] wanted people to know that [he] was scared." Petitioner also said in his statement that he was advised of his rights, that he understood them, and that he was not promised anything.
This Court is required to accord special deference to the trial court's factual finding that Petitioner's testimony was not entirely credible. Patton v. Yount, 467 U.S. 1025, 1038 (1984). The Court also must defer to the trial court's subsidiary factual finding that Sergeant Quick did not coerce Petitioner into making a statement. 28 U.S.C. § 2254(e)(1); Miller v. Fenton, 474 U.S. 104, 112 (1985). The conflicts in Petitioner's own testimony support the trial court's findings against Petitioner's claims. With these considerations in mind, and in light of the ambiguous nature of the comment Petitioner allegedly made about having nothing more to say, the Court concludes that the state appellate court's adjudication of Petitioner's claim did not result in a decision that was contrary to, or an unreasonable application of, Miranda or Mosley.
Even assuming that Petitioner's right to remain silent was violated and that he was induced to make a statement by a promise of leniency, three eyewitnesses to the crime identified Petitioner at trial as the person who shot the unarmed victim at close range after the victim was disabled by an earlier gunshot. It is improper to focus on the sufficiency of untainted evidence when making a harmless-error analysis. Kyger v. Carlton, 146 F.3d 374, 382 (6th Cir. 1998). However, the evidence against Petitioner was overwhelming and virtually one-sided. Therefore, even though Petitioner conceded in his statement that he shot the victim, admitting his statement in evidence arguably could not have had a "substantial and injurious effect or influence"on the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
Harmless-error analysis applies to involuntary confessions, Arizona v. Fulminante, 499 U.S. 279, 295 (1991), and to confessions admitted in violation of Miranda, United States v. Wolf, 879 F.2d 1320, 1323 (6th Cir. 1989).
F. Impeaching a Witness
Petitioner's sixth claim alleges that the trial court abused its discretion when it permitted the prosecutor to impeach defense witness Hanadis Lathan with a prior arrest that did not result in a conviction. State law prohibits asking a witness about a prior arrest or charge that did not result in a conviction, People v. Falkner, 389 Mich. 682, 695; 209 N.W.2d 193, 200 (1973), and the Supreme Court has said that an
[a]rrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty. Only a conviction, therefore, may be inquired about to undermine the trustworthiness of a witness.Michelson v. United States, 335 U.S. 469, 482 (1948). However, "[h]abeas review does not encompass state court rulings on the admission of evidence unless there is a constitutional violation," Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir. 1994), and "Michelson did not address constitutional issues " Love v. Carter, 49 Fed. Appx. 6, *12, 2002 WL 31205225, at **5 (6th Cir. Oct. 2, 2002) (unpublished opinion), cert. denied, ___ U.S. ___, 123 S.Ct. 1798 (2003).
Furthermore, as the Michigan Court of Appeals pointed out,
the record belies [Petitioner's] claim that the prosecutor used prior instances of arrest to impeach [Petitioner's] witness. Although the prosecutor asked the witness about his past contact with homicide detectives, the prosecutor carefully avoided informing the jury that these contacts were arrests. In fact, the prosecutor was responding to the witness's testimony that, although he allegedly knew about the victim's plan to kill [Petitioner], he neglected to inform the police because he did not know who to contact. The prosecutor suggested that the witness could have informed the homicide detectives that he knew from prior contacts. This was a proper line of questioning because the prosecutor never mentioned, or suggested, that the witness had prior arrests.Taylor, Mich. Ct. No. 220102, at 5. This Court concludes that Petitioner's claim is not cognizable on habeas review and has no merit.
G. The Prosecutor
The seventh and final habeas claim alleges that the prosecutor deprived Petitioner of a fair trial and denigrated the defense theory when she said, "The defendant would have you think that this was somehow some sort of half baked self-defense situation." (Tr. Mar. 30, 1999, at 131). Respondent argues that this claim is procedurally defaulted.
A procedural default in the habeas context is "a critical failure to comply with state procedural law " Trest v. Cain, 522 U.S. 87, 89 (1997). The doctrine of procedural default provides that,
[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman v. Thompson, 501 U.S. 722, 750 (1991).
The procedural rule in question here is the contemporaneous-objection rule, which requires defendants to object to prosecutorial misconduct in the trial court before raising the claim on appeal. See People v. Schutte, 240 Mich. App. 713, 720; 613 N.W.2d 370, 377 (2000). The rule is enforced in Michigan. Lancaster v. Adams, 324 F.3d 423, 437 (6th cir.), petition for cert. filed, (U.S. Sept. 2, 2003) (No. 03-356). Petitioner violated the rule by not objecting at trial when the prosecutor made the disputed comment in her closing argument. The Michigan Court of Appeals enforced the rule by stating that Petitioner "failed to preserve this issue by objecting to the alleged misconduct during trial." Taylor, Mich. Ct. App. No. 220102, at 5.
The contemporaneous-objection rule was an adequate basis for the state appellate court's ruling because the rule was firmly established and regularly followed before Petitioner's trial. See, e.g., People v. Stanaway, 446 Mich. 643, 687; 521 N.W.2d 557, 579 (1994)). The rule was an independent basis for the state court's disposition because the court of appeals actually relied on it and on Petitioner's failure to comply with it. The fact that the Michigan Court of Appeals also analyzed Petitioner's claim under a plain-error standard of review, does not preclude this Court from concluding that the claim is procedurally defaulted. Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989). Therefore, in order for this Court to consider Petitioner's claim, he must show "cause and prejudice" or a miscarriage of justice.
Petitioner has not alleged "cause" for his procedural error or "actual prejudice." His failure to advance any argument in support of a finding of cause and prejudice leads the Court to deem the argument abandoned. Roberts v. Carter, 337 F.3d 609, 613 (6th Cir. 2003) (citing United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000)). The exception for miscarriages of justice does not apply here because Petitioner has not shown that, in light of some new and reliable evidence "no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995).
The doctrine of procedural default bars substantive review of Petitioner's seventh claim. His other claims lack merit. Accordingly, Petitioner's application for the writ of habeas corpus is