Opinion
Case No.: 01-10121-BC.
July 9, 2004
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
Kurt Hamilton, presently on parole in Macomb County, Michigan to the Michigan Department of Corrections, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. At the time that the petition was filed, the petitioner was incarcerated at the Thumb Regional Correctional Facility in Lapeer, Michigan. In his application, filed through counsel, the petitioner challenges his conviction and five-to-fifteen-year sentences on two counts of involuntary manslaughter contrary to Mich. Comp. Laws § 750.321. His convictions, he contends, were obtained in violation of his rights under the Due Process Clause and the Confrontation Clause because of the introduction of certain evidence, permitting the jury to consider a greater charge for which there was insufficient evidence, and prosecutorial misconduct. The Court disagrees and for the reasons stated below will deny the petition for writ of habeas corpus.
I.
The petitioner was charged with two counts of second-degree murder arising from an automobile accident that occurred in Macomb Township, Michigan on January 12, 1995 involving his pickup truck and another motor vehicle. Two persons died as a result of this collision. A jury in the Macomb County, Michigan Circuit Court convicted the petitioner of two counts of the lesser included offenses of involuntary manslaughter. The trial judge sentenced the petitioner to two concurrent terms of five to fifteen years in prison.
At trial, Bryan Hamilton, the husband and father of the victims, testified that on January 12, 1995, his wife, Lisa Hamilton, left the house to pick up their daughters from school. Mr. Hamilton followed his wife in his car pool ride on the way to work. Mr. Hamilton testified that the weather was extremely foggy. While proceeding southbound on North Avenue in Macomb Township, Mr. Hamilton's car was stopped by someone who told them that there had been a head-on collision between a pickup truck and a van. Mr. Hamilton approached the collision site and immediately recognized that his wife's Plymouth Voyager van was involved in the collision. Mr. Hamilton used his keys to open the van and discovered his wife and two sons inside. Mr. Hamilton indicated that the van was in the southbound lane and on the shoulder of the road. He also noted that the pickup truck was over the center line and was into the southbound lane at a slight angle facing north.
Deputy Patrone of the Macomb County Sheriff's Department was dispatched to the scene of the collision. Patrone could only drive thirty-five to forty miles per hour due to the foggy conditions. Patrone testified that it was the worst fog that he had ever seen. Deputy Patrone explained that North Avenue has two lanes and that both vehicles were in the southbound lane. The victim's van was discovered straddling the right-hand "fog line" near the shoulder of the road, which is eleven feet from the center line. According to Patrone, the front end of the pickup truck was near this same right-hand fog line. Patrone discovered gouge marks in the roadway after the vehicles had been removed, which indicated the point of impact between the two vehicles. The marks created by the pickup truck were halfway into the middle of the southbound lane. There were no skid marks. Deputy Patrone believed that visibility was less than ten feet at the time of the collision.
Raymond Stroinski testified that he was driving northbound on North Avenue at about 2:00 p.m. that day when a dark colored pickup truck passed him. Stroinski said that he became upset because he could not understand why anyone would attempt to pass his vehicle on a two-lane road in the foggy conditions. A short time later, Stroinski came upon the collision between the vehicles on North Avenue. Both vehicles were left of the center line on the west side of the road. Stroinski testified that the pickup truck involved in the accident was similar to the one that had passed him on North Avenue.
Denice Corona testified that she, too, was traveling northbound on North Avenue at approximately 2:00 p.m. Corona stated that a green pickup truck came up to the rear of her car "very fast." In Corona's opinion, the truck was going too fast for the foggy conditions. Corona then heard a crash and heard car parts hit the side of her car. She pulled off to the side of the road to call the police and thereafter observed a pickup truck and a van in the southbound lane. Corona saw that the pickup truck was the same truck that had come up on the rear of her car. Corona testified that she had been traveling forty to forty-five miles per hour when the pickup truck approached her vehicle, and that the pickup truck had been traveling faster than her car.
Thomas Habel, a Macomb County deputy sheriff and part-time firefighter for the Macomb Township Fire Department, responded to the collision. Habel helped extract the driver from the pickup truck, whom he identified as the petitioner. Habel detected the scent of intoxicating liquor on the petitioner and testified that the smell was heavy enough to notice. The damage to the petitioner's truck was severe. Habel also confirmed that the weather was extremely foggy that day.
William Bruyneel, the petitioner's friend, was a passenger in the pickup truck at the time of the accident. He testified that on January 12, 1995, he and the petitioner worked a construction job at Twenty-five Mile Road and Card Road in Macomb County, Michigan. After completing the assignment, both men consumed a moderate amount of beer. Bruyneel testified that he drank two or three beers at the construction job. The two men then left to go to a bank at Gratiot Avenue and Twenty-three Mile Road to cash a check. The petitioner was driving the pickup truck at the time.
Bruyneel testified at trial that he could not remember anything about the accident because of a closed head injury that he received as a result of the collision. He insisted that as a result of this closed head injury, his memory of the accident "came and went." However, Bruyneel remembered that the petitioner had drank only two or three beers around eleven o'clock or noon on the date of the accident. Bruyneel had been interviewed at the hospital one day after the accident, but he stated that he did not remember speaking with Macomb County Deputy Sheriff at the hospital. Bruyneel did not remember telling Deputy Michalke that the petitioner had passed an old man at Twenty-three Mile Road, nor did he recall telling Michalke that the petitioner had consumed two more beers than he had. Bruyneel stated at trial that he would have told the truth to any police officer that interviewed him after the collision, and he acknowledged that he had sued the petitioner in civil court but that the two men had settled the case for $20,000.
Deputy Michalke then testified that he arrived at the accident scene at 2:30 p.m. He later went to the emergency room at St. Joseph's East Hospital in Mount Clemens, Michigan where he observed the petitioner receiving medical treatment. Michalke said that he was three to five feet away from the petitioner and could smell intoxicants on the petitioner's breath.
On January 13, 1995, Michalke went to Mt. Clemens General Hospital to interview William Bruyneel. Over the objection from defense counsel, Michalke testified that Bruyneel told him that he had drank three or four beers that day and that the petitioner had drank two more beers than he had consumed. Bruyneel informed Michalke that the petitioner had passed an "old man" who was driving on Twenty-three Mile Road. When asked why the pickup truck was on the wrong side of the road, Bruyneel told Michalke that the petitioner was passing another car at the time of the collision. Bruyneel told Michalke that the petitioner was not speeding at the time of the crash, but was going sixty miles per hour. Michalke testified that Bruyneel could understand his questions and he was able to understand Bruyneel.
Blood was drawn from the petitioner at the hospital twice on the day of the accident. At 2:50 p.m., the test results indicated that the petitioner had a blood level alcohol content of .05 percent. At 4:05 p.m, the blood alcohol level was .02 percent. The parties stipulated that blood alcohol level decreases by .015 percent per hour on average as a result of the metabolic process. There was also evidence that the petitioner was treated with a saline solution, which may have also lowered his blood alcohol level somewhat.
Macomb County Sheriff Deputy Terry Blount testified as an expert witness in accident reconstruction. On January 13, 1995, Blount inspected collision scene and the vehicles involved in the crash. He noticed gouge marks in the roadway in the southbound lane six to seven feet from the center line of the road. Based upon his calculations, Blount estimated that the combined speed of the vehicles at the time of the crash was ninety miles per hour plus or minus five miles per hour. Blount estimated that at the time of the collision, the victims' van was traveling between thirty and forty miles per hour and the petitioner's truck was going between fifty and sixty miles per hour. The speed limit in the area of the collision was fifty miles per hour. Blount believed that neither vehicle had its headlights on at the time of the crash. He noted that the van was in the southbound lane when it was hit. Blount opined that the petitioner's truck was driving the wrong way in the southbound lane.
Over the objection of the petitioner's counsel, the prosecution introduced evidence that the petitioner had been arrested in 1990 for operating under the influence of intoxicating liquor (O.U.I.L.). Macomb County Deputy Sheriff Michael DeHate testified that he arrested the petitioner at about three o'clock in the morning on February 24, 1990 near Gratiot Avenue and 23 Mile Road. DeHate testified that he and his partner were traveling northbound on Gratiot Avenue while the petitioner's vehicle was traveling southbound. DeHate first noticed the petitioner's vehicle when it entered their travel lane. DeHate's partner, Deputy Lamm, took evasive action to avoid being hit by the petitioner's vehicle. They then turned around and stopped the petitioner's vehicle. Deputy DeHate said that the petitioner smelled of intoxicants, his eyes were glassy, and he was unsteady on his feet. A preliminary breath test was performed on the petitioner yielding a blood alcohol level of.161 percent.
At the conclusion of the prosecutor's case, the petitioner's counsel moved for a directed verdict on the second-degree murder charges contending that there was insufficient evidence on the element of malice. The trial court denied the motion, finding that the element of malice was supported by evidence that the petitioner had driven his pickup truck after consuming some amount of alcohol, was driving too fast for the road conditions, recklessly passed another automobile in dense fog, and had been arrested in 1990 for drunk driving, which showed that the petitioner was aware of the dangers of drinking and driving.
The defense called Dr. Peter Cupal, a civil engineer, as an accident reconstruction expert. Dr. Cupal estimated that the petitioner was driving thirty-nine miles per hour at the time of the accident and was in a "bad swerve," coming across the road at a thirty-one degree angle. Dr. Cupal believed that the swerve could have been caused by the petitioner's truck leaving the road and riding on the shoulder, by the ladder in the back of the truck coming loose, or because the driver of the car directly in front of the petitioner suddenly applied his brakes. Dr. Cupal opined that the petitioner was not attempting to pass the car in front of him, and he also believed that alcohol was not a factor in the petitioner's driving.
During closing argument, the prosecutor made the following comments:
One fact is for sure, that these two people as far as we know will never breathe another breath on earth. These were good people.
They say one of the saddest and tragic occurrences in the world is where a child predeceases a parent and that happened here because Shawn predeceased his dad, and we know a mom was lost.
We don't know what potential Shawn Hamilton had, he would be three years old, three and a half, and we've lost Lisa in this world, and these losses were caused by a person not by a road and that person is in court and you know who he is.
Trial Transcript, Partial Transcript, Vol. VI, at 6. Later, the prosecutor made these remarks:
There is a song by Toni Braxton, all of you heard it, and it really relates to this case. I will not sing that song but it relates to a loss of a loved one and she said unbreak my heart, uncry my tears, undo my hurt, please walk through that door again, tell me you love me.
That will never happen in this case.
Id. at 41.
The petitioner's counsel moved for a mistrial on the ground that the prosecutor by his argument intended to invoke the sympathy of the jury. The trial court denied the motion stating that it was a matter for "appellate review." Trial Transcript, Vol. V, pp. 972-974. Later, however, in the final instructions to the jury, the trial court instructed the jury that they must not let sympathy or prejudice influence their decision. Id. at 1024-25. The court further advised the jury that the lawyers' arguments were not evidence. Id. at 1027-28.
The trial transcripts for May 15, 1997 are not numbered in the correct chronological order.
As previously noted, the petitioner was convicted of the lesser included offenses of involuntary manslaughter and sentenced to concurrent five-to-fifteen year custodial terms. The petitioner's conviction was affirmed on appeal. People v. Hamilton, 203995 (Mich.Ct.App. March 26, 1999), lv. den., 461 Mich. 993, 610 N.W.2d 921 (2000).
The petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. The petitioner was deprived of his [c]onstitutional right to due process and a fair trial when the trial [c]ourt erred by admitting irrelevant and unfairly prejudicial evidence of prior "bad acts" under M[ich.] R[.] E[vid.] 404(b).
II. The petitioner was deprived of his [c]onstitutional rights to confrontation, due process and a fair trial when the trial [c]ourt admitted the unreliable hearsay testimony of Officer John Michalke, which provided the only basis for concluding that Mr. Hamilton (A) consumed more than two or three beers; (B) was driving at an excessive rate of speed; [and] (C) was attempting to pass a car in the fog.
III. The petitioner was deprived of his [c]onstitutional right to due process and a fair trial when the trial [c]ourt allowed the jury to consider a charge of second-degree murder despite insufficient evidence to support the requisite intent.
IV. The petitioner was deprived of his [c]onstitutional right to due process and a fair trial when the prosecutor unfairly appealed to the sympathy of the jurors by attempting to invoke their emotions for the victims.
V. The cumulative effect of the errors occurring at trial denied the petitioner his constitutional right to due process and a fair trial.
II.
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), govern this case because the petitioner filed this habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). That Act "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising constitutional claims. See Wiggins v. Smith, 539 U.S. 510, ___, 123 S. Ct. 2527, 2534 (2003).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, 539 U.S. at ___, 123 S. 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, 365 F.3d 487, 493-93 (6th Cir. 2004); Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en banc) cert. denied, ___ U.S. ___, 124 S. Ct. 1601 (2004); Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
A.
The petitioner first claims that he was deprived of a fair trial because the trial court allowed the prosecution to offer testimony from Deputy DeHate concerning the petitioner's 1990 arrest for O.U.I.L. The petitioner filed a motion before trial to exclude this evidence. The trial court allowed Deputy DeHate to testify about the petitioner's prior arrest, although the court did not permit the prosecution to introduce evidence that the petitioner was ultimately convicted of the lesser offense of Operating While Impaired in May of 1991. The trial court found that this prior arrest was admissible because it was probative of the petitioner's knowledge of the perils of drinking and driving recklessly.
On direct appeal, the Michigan Court of Appeals agreed with the petitioner that the admission of this evidence was error. However, the court of appeals found the error to be harmless in light of the fact that the petitioner was convicted only of involuntary manslaughter. In so ruling, the appellate court noted that the prosecutor in his closing argument specifically stated that he was not contending that the petitioner was intoxicated at the time of the accident. The court noted further that even if the petitioner was not impaired by alcohol, "his behavior on the road demonstrated at least the degree of negligence required to find him guilty of involuntary manslaughter." People v. Hamilton, Slip. Op. at * 3-4.
The Court agrees with the state appellate court that it was error to admit the evidence of the petitioner's prior drunken driving conduct. However, the Court cannot conclude that the state appellate court's finding of no prejudice — and therefore no due process deprivation — was contrary to or an unreasonable application of Supreme Court precedent. The Supreme Court has declined to hold that similar "bad acts" evidence is so extremely unfair that its admission violates fundamental conceptions of justice. See Dowling v. United States, 493 U.S. 342, 352-53 (1990). Such matters are more appropriately addressed in codes of evidence and civil procedure than under the Due Process Clause. Id. at 352. Although the Sixth Circuit has suggested that due process is violated whenever the State seeks to introduce evidence that is not rationally connected to the crimes charged, see Manning v. Rose, 507 F.2d 889, 894-95 (6th Cir. 1974), this rule is not grounded in any particular Supreme Court precedent, is not binding on Michigan courts, and is not a proper basis on which to provide habeas relief. See 28 U.S.C. § 2254(d)(1). Thus, even if some rule of evidence was violated, relief on collateral review will be provided "only when a trial error `had substantial and injurious effect or influence in determining the jury's verdict.'" Ford v. Curtis, 277 F.3d 806, 809 (6th Cir. 2002) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). No relief can provided unless the petitioner demonstrates "actual prejudice" resulting from the improper admission. Ibid.
In Ford, the Sixth Circuit considered the habeas corpus petition of a prisoner who alleged, among other things, that impermissible "other acts" evidence introduced at trial denied him due process of law. At trial, the prosecutor improperly tried to portray the defendant as a person of violent character by making references to the petitioner's tenure on the FBI's "Ten Most Wanted" list and his featured spot on "America's Most Wanted." Id. at 811. As in this case, the Michigan Court of Appeals found that the introduction of the "other acts" evidence was improper but harmless in light of the "overwhelming evidence of guilt on the record." Furthermore, Ford failed to demonstrate that the improperly-admitted evidence had, in any event, an "overwhelming" effect on the jury's verdict. In sum, the petitioner had not demonstrated actual prejudice, and his petition was properly denied.
The petitioner in this case was convicted of two counts of involuntary manslaughter. In Michigan, involuntary manslaughter is a "catch-all concept including all manslaughter not characterized as voluntary." People v. Datema, 448 Mich. 585, 533 N.W.2d 272, 276 (1995). The Michigan Supreme Court elaborated as follows:
An unlawful act committed with the intent to injure or in a grossly negligent manner that proximately causes death is involuntary manslaughter. In the former instance the defendant has consciously intended to injure in wanton disregard of the safety of others: conduct which if it causes death is (at least) involuntary manslaughter. In the latter instance, criminal liability is imposed because, although the defendant's acts are not inherently wrong, the defendant has acted or failed to act with awareness of the risk to safety and in wilful disregard of the safety of others.
. . .
Unlike murder, involuntary manslaughter contemplates an unintended result and thus requires something less than an intent to do great bodily harm, an intent to kill, or the wanton and wilful disregard of its natural consequences. An intent to injure or gross negligence strikes the appropriate balance in this crime, which by definition criminalizes an unintended result, i.e., death.Id. at 606, 533 N.W.2d at 281. Two years later, the Michigan Court of Appeals discussed the applicability of the gross negligence standard in the context of automobile homicide:
A violation of the speed limit, by itself, is not adequate to establish the element of gross negligence. However, under certain circumstances, a violation of the speed limit can be gross negligence. To state the obvious, a jury could properly determine that traveling at a speed of one hundred miles an hour through a residential neighborhood is gross negligence. Similarly, given the right conditions, it is possible to drive in a grossly negligent manner even in the absence of exceeding the speed limit (e.g., in heavy traffic, on slick roads, or in fog). Accordingly, the appropriate consideration is not whether defendant was exceeding the speed limit, but rather, whether defendant acted with gross negligence under the totality of the circumstances, including defendant's actual speed and the posted speed limit.People v. McCoy, 223 Mich. App. 500, 504, 566 N.W.2d 667, 670 (1997) (emphasis added) (internal citations omitted).
It does not appear to this Court that the improper evidence of the petitioner's prior O.U.I.L. arrest "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637. The evidence in this case, like that in Ford, suggests that the petitioner would have been convicted of involuntary manslaughter in any event. The Michigan Court of Appeals so found, and that assessment was not an unreasonable application of clearly established Supreme Court jurisprudence.
Although there were no eyewitnesses to the crash itself, the evidence here of gross negligence on the petitioner's part amply supports the convictions of involuntary manslaughter. Deputy Patrone described the fog on the day of the accident as the worst he had ever seen. Denice Corona estimated that she had about one car length of visibility in front of her on North Road that day. Raymond Stroinski testified that shortly before the accident, a dark-colored pickup truck resembling that involved in the collision passed him, even though visibility in the fog was almost zero. Corona testified that the petitioner's green pickup truck had come up behind her very fast, although she acknowledged it may just have seemed fast given the limited visibility in the fog and the pickup truck's sudden appearance. She was going forty to forty-five miles per hour. According to Deputy Blount, the posted speed was fifty miles per hour. The collision itself occurred in the southbound lane, which was the opposite direction in which the petitioner's truck was traveling. There were no skid marks at the scene.
The petitioner's expert at trial did opine that the petitioner was not passing another vehicle at the time of the accident, but the jury had strong evidence before it suggesting otherwise. The petitioner's expert also suggested that the petitioner's vehicle was going only thirty-one miles per hour at the time of the crash, although that was inconsistent with Corona's testimony that the pickup was matching her speed when it was behind her. McCoy makes clear that one who is driving at a high rate of speed and passing others in dense fog without headlights and after consuming a few beers could certainly be found to be operating his vehicle in a grossly negligent manner. Certainly, a reasonable jury could conclude that this behavior ultimately led to the collision in this case, especially given Corona's testimony that shortly after the green truck came up behind her she heard the collision and had car parts strike her vehicle. Corona did testify that she never saw any oncoming traffic before the accident, nor did she see the petitioner's truck pass her. Both statements, however, are consistent with the explanation that she was focusing at the road in front of her, and also are understandable given that neither the petitioner's vehicle nor the van he crashed into had their headlights on.
Thus, although the introduction of the petitioner's prior drunk driving arrest was inappropriate, the Court does not believe that it impacted the jury's verdict in a substantial way. The prosecutor admitted in his closing argument that he was not arguing that the petitioner was intoxicated at the time of the accident. The Court finds no due process violation, and therefore no basis upon which to issue the writ.
B.
The petitioner next claims that allowing Deputy Michalke to relate William Bruyneel's out-of-court description of the events leading up to the accident, which Bruyneel could not repeat at trial because of trauma-induced memory loss, violated the Confrontation Clause of the Sixth Amendment since the petitioner could not cross-examine Bruyneel about those events. Prior to trial, the petitioner's counsel moved for the exclusion of this testimony. An evidentiary hearing was conducted outside of the jury's presence, after which the trial court admitted the evidence under the residual or catch-all exception to the hearsay rule found in Michigan Rule of Evidence 803(24).
On appeal, the Michigan Court of Appeals ruled that the statements made by Bruyneel to Sergeant Michalke met the requirements for admission under Michigan Rule of Evidence 803(24) because the officer interviewed Bruyneel the morning after the accident, the passenger was fully conscious, and Bruyneel's father and girlfriend were present during the interview. The court of appeals further noted that both Bruyneel and Sergeant Michalke testified at trial, affording the petitioner the opportunity to cross-examine them and for the jury to assess their credibility. That court found that the evidence was offered for a material fact and was more probative of other evidence since Bruyneel was the sole witness to the petitioner's consumption of alcohol prior to the accident and the petitioner's conduct at the time of the collision. The court also observed that at the petitioner's trial, Bruyneel could not clearly recall the interview with Michalke or the circumstances surrounding the accident due to his injuries. People v. Hamilton, Slip. Op. at * 3.
The Sixth Amendment to the United States Constitution provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The Confrontation Clause is applicable to the States through the Fourteenth Amendment. Richardson v. Marsh, 481 U.S. 200, 206 (1987). The purpose of the Confrontation Clause was to "constitutionalize" certain common-law testimonial guarantees by which an accused could test a witness' perception, memory, ability to relate or communicate, and, perhaps most importantly, sincerity. See United States v. Chapin, ___ F. Supp. 2d ___, ___ 2002 U.S. Dist. Lexis 22616, at *17 (E.D. Mich. 2002).
The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.Mattox v. United States, 156 U.S. 237, 242-243 (1895). Those testimonial guarantees thus included the oath, a witness' personal appearance before the fact finder, and cross-examination. As the Supreme Court summarized succinctly in California v. Green, 399 U.S. 149 (1970):
Confrontation: (1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the "greatest legal engine ever invented for the discovery of truth" [5 J. Wigmore, Evidence § 1367, at 32 (J. Chadbourn rev. 1974)]; (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.Id. at 158 (footnote omitted).
Bruyneel actually testified at the petitioner's trial and was cross-examined by the petitioner's attorney. However, the physical presence of the witness at trial alone will not ensure compliance with the Confrontation Clause, since the Constitution requires that an accused be afforded "an opportunity for meaningful cross-examination." Delaware v. Fensterer, 474 U.S. 15, 20 (1985) ( per curiam) (emphasis added). In United States v. Ownes, 484 U.S. 554 (1988), the Supreme Court observed that the right to confront such witnesses may be abridged when a trial court limits the scope of cross-examination or a witness interposes a privilege that obstructs meaningful questioning by the cross-examiner. Id. at 561-62. However, the Court held that the introduction of a prior statement of a witness who at trial professed a lack of memory about the critical events does not violate the Confrontation Clause when "the hearsay declarant is present at trial and subject to unrestricted cross-examination." Id. at 560. The Court reasoned that "`the Confrontation Clause guarantees only "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish."'" Id. at 559 (quoting Kentucky v. Stincer, 482 U.S. 730, 739 (1987)).
Here, as was the witness in Owens, Bruyneel was able to remember neither the events of January 12, 1995 nor the particulars of his statement to Deputy Michalke. The petitioner argues therefore that he had no opportunity to meaningfully cross-examine Bruyneel about those critical events. However, the Supreme Court answered that same argument as follows:
As Fensterer demonstrates, that opportunity is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief. It is sufficient that the defendant has the opportunity to bring out such matters as the witness' bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination, see 3A J. Wigmore, Evidence § 995, pp. 931-932 (J. Chadbourn rev. 1970)) the very fact that he has a bad memory. If the ability to inquire into these matters suffices to establish the constitutionally requisite opportunity for cross-examination when a witness testifies as to his current belief, the basis for which he cannot recall, we see no reason why it should not suffice when the witness' past belief is introduced and he is unable to recollect the reason for that past belief. In both cases the foundation for the belief (current or past) cannot effectively be elicited, but other means of impugning the belief are available. Indeed, if there is any difference in persuasive impact between the statement "I believe this to be the man who assaulted me, but can't remember why" and the statement "I don't know whether this is the man who assaulted me, but I told the police I believed so earlier," the former would seem, if anything, more damaging and hence give rise to a greater need for memory-testing, if that is to be considered essential to an opportunity for effective cross-examination. We conclude with respect to this latter example, as we did in Fensterer with respect to the former, that it is not. The weapons available to impugn the witness' statement when memory loss is asserted will of course not always achieve success, but successful crossexamination is not the constitutional guarantee. They are, however, realistic weapons, as is demonstrated by defense counsel's summation in this very case, which emphasized Foster's memory loss and argued that his identification of respondent was the result of the suggestions of people who visited him in the hospital.Owens, 484 U.S. at 559-60.
The Court finds that the confrontation issue presented by the petitioner is governed directly by Owens and that the Michigan appellate court's treatment of it is consistent with Supreme Court precedent. The confrontation issue affords the petitioner no basis for habeas relief.
C.
The petitioner next contends that there was insufficient evidence presented at trial to submit the original charges of second-degree murder to the jury and therefore he was deprived of a fair trial when the trial court refused to direct a verdict on those charges. Although the petitioner was ultimately acquitted of these charges and was found guilty of the lesser included offense of involuntary manslaughter, he contends that the jury was permitted to compromise by rejecting charges for which there was insufficient evidence.
The claim that the possibility of a compromise tainted the jury deliberations and implicated the petitioner's due process rights was raised in Daniels v. Burke, 83 F.3d 760 (6th Cir. 1996). There the court expressed uncertainty about whether it was required to reach the question of the sufficiency of the evidence, noting that "[s]ome courts, under similar facts have concluded that the submission to the jury of a charge constituted harmless error in light of petitioner's acquittal on that charge." Id. at 765 n. 4 (citations omitted). The panel avoided the prejudice question, however, because it found that the evidence of premeditation was unambiguously sufficient and affirmed the district court's denial of the writ on that basis.
Although the Daniels court addressed the merits of the claim, it must be noted that federal courts now may grant habeas relief only if the state court's adjudication of a claim resulted in a decision that was contrary to, or an unreasonable application of, clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1). "[A] federal court must find a violation of law `clearly established' by holdings of the Supreme Court, as opposed to its dicta, as of the time of the relevant state court decision." Harris v. Stovall, 212 F.3d 940, 944 (6th Cir. 2000) (quoting Williams, 529 U.S. at 412).
On the question of compromise and prejudice, the Court turns to Price v. Georgia, 398 U.S. 323 (1970), in which the defendant originally was charged with murder but was convicted of voluntary manslaughter in his first trial. The manslaughter conviction was reversed on appeal due to an error in jury instructions, and the State then retried the defendant on the murder charge. He was again convicted of voluntary manslaughter. On review, the Supreme Court held that the second prosecution for murder violated the prohibition against double jeopardy because the first jury implicitly acquitted the defendant of murder by convicting him only of voluntary manslaughter. The Supreme Court stated that jeopardy on the murder charge ended when the first jury was given the chance to return a verdict on that charge, but instead only convicted the defendant on the lesser charge. The Court then reversed the conviction over the state's argument that the double jeopardy error was harmless because the defendant was convicted of the same crime at both trials and suffered no greater punishment after the second conviction. The Supreme Court rejected this argument in part because it could not determine whether the murder charge may have "induced the jury to find [the defendant] guilty of the less serious offense of voluntary manslaughter rather than continue to debate his innocence." Id. at 331.
The Supreme Court's harmless error analysis in Price establishes the rule that the unconstitutional submission of a greater charge to a jury is not harmless beyond a reasonable doubt simply because the jury convicts on a lesser, but properly submitted, charge. It makes little difference that the basis upon which the submission was improper is the Double Jeopardy Clause or the Due Process Clause. The net effect is the same. Thus, if the trial judge's submission of the second-degree murder charges in the petitioner's trial violated the Constitution, the error would not have been harmless because the jury may have improperly considered, and compromised from, a charge to which it never should have been exposed. To hold otherwise would constitute an unreasonable application of Price.
In this case, the petitioner contends that his due process rights were violated because there was insufficient evidence to support the charges of second-degree murder. There is no question that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). But the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is, "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 318.
But this inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Id. at 318-19 (internal citation and footnote omitted) (emphasis in original). This "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n. 16.
In Michigan, the offense of second-degree murder consists of the following elements:
(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse.People v. Goecke, 457 Mich. 442, 463-464, 579 N.W.2d 868, 878 (1998) (citing People v. Bailey, 451 Mich. 657, 669, 549 N.W.2d 325, ___ (1996). The element of malice is defined as "the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and wilful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm." Id. at 464.
The state court of appeals concluded that there was sufficient evidence to support the charge of second-degree murder. Citing Goeke, the court observed that driving in a grossly excessive speed in dangerously foggy conditions and passing vehicles with the benefit of only marginal visibility constituted "particularly egregious" conduct the natural consequence of which was to cause great harm or death. This Court cannot disagree. The Court believes that there is sufficient evidence in the record to justify the submission of the second-degree murder charges to the jury under the Jackson standard. Allowing the jury to consider those charges did not offend the Constitution.
D.
The petitioner next alleges that he was deprived of a fair trial by comments made by the prosecutor in his closing argument by invoking sympathy for the victims. The state court of appeals noted that the prosecutor's remarks appeared to be intended to invoke sympathy and therefore were improper, but they were isolated and did not deprive the petitioner of a fair trial.
This Court agrees. Prosecutorial misconduct will form the basis for a new trial, and habeas relief, only if the relevant misstatements were so egregious so as to render the entire trial fundamentally unfair based on the totality of the circumstances. Donnelly v. DeChristoforo, 416 U.S. 637, 643-45 (1974). See also Caldwell v. Russell, 181 F.3d 731, 736 (6th Cir. 1999). The focus "is the fairness of the trial, not the culpability of the prosecutor." Byrd v. Collins, 209 F.3d 486, 529 (6th Cir. 2000). Thus, "even if the prosecutor's conduct was undesirable or even universally condemned, it does not constitute a due process violation unless the conduct was so egregious so as to render the entire trial fundamentally unfair." Id. (internal citation omitted). First, the court must determine whether the challenged remarks were improper. Macias v. Makowski, 291 F.3d 447, 452 (6th Cir. 2002). Next the court must decide whether the remarks were sufficiently flagrant by considering four factors: (1) the likelihood that the statements would prejudice the defendant or mislead the jury; (2) whether the remarks were isolated or part of a pattern; (3) whether the prosecutor's statements were deliberately or accidentally presented to the jury; and (4) whether the other evidence against the defendant was substantial. Gall v. Parker, 231 F.3d 265, 311 (6th Cir. 2000), overruled on other grounds by, Bowling v. Parker, 344 F.3d 487, 501 n. 3 (6th Cir. 2003), (citing United States v. Carroll, 26 F.3d 1380, 1385-87 (6th Cir. 1994).
In Byrd, the Sixth Circuit addressed the contention of the defendant that statements made by the prosecutor in his closing argument impermissibly sought to arouse the sympathies of the jury. During the guilt phrase of the trial, the prosecution made the following statements:
After stripping Tewksbury of his personal possessions, his belongings, the store's belongings, and Tewksbury's pride, they stripped him of his life, his breath, and his blood. . . . Monte Tewksbury will never see the sun. Monte Tewksbury will never feel the chill of fall. He will never watch his youngsters grow. He will never break bread with his wife. . . .Id. at 532. The court rejected the claim. First, the court noted that the Supreme Court has found there to be no per se bar on the introduction of victim impact evidence. Id. (citing Payne v. Tennessee, 501 U.S. 808, 827 (1991)). "[T]he state should not be required to present closing arguments that are devoid of all passion." Id. (citing Williams v. Chrans, 945 F.2d 926, 947 (7th Cir. 1991). Recognizing that this Circuit permits the prosecutor "a certain degree of latitude in summation," id., the court found it "far from clear that the statements complained of were improper at all." Id. Even if somehow improper, they did not meet the standard required to invalidate a conviction on habeas review. "The remarks were relatively isolated, were not extensive, and were only a small part of a closing argument that focused heavily on summarizing the evidence presented at trial." Id. Combing the prosecutor's own admonition to the jury that his argument was not evidence with the court's similar instruction to that effect, the court found that it "simply cannot hold that the prosecutor's isolated comments rendered the entire trial fundamentally unfair." Id. at 533 (citation omitted).
In this case the prosecutor's statements were improper and deliberate. However, at the trial the prosecutor's closing argument consumed thirty-six pages of transcripts. The offending conduct identified by the petitioner is found on only two pages of the thirty-six. These brief comments by the prosecutor do not entitle the petitioner to relief. See Rodriguez v. Peters, 63 F.3d 546, 565 (7th Cir. 1995) (victim impact comments comprising one of thirty-five pages of a closing argument did not render trial unfair). The remarks were isolated, not extensive, and only a small part of a closing argument that focused primarily on summarizing the evidence presented at trial. See Byrd, 209 F.3d at 532. When considered in light of the cautionary instruction from the trial judge that the closing arguments were not evidence and that the jury was not to decide the case based on sympathy, the prosecutor's isolated comments did not render the entire trial fundamentally unfair. See id. at 533. The petitioner is not entitled to habeas relief on his fourth claim.
E.
The petitioner lastly contends that he is entitled to habeas relief based upon the cumulative effect of the errors in this case. A cumulative error analysis is appropriate where there are certain errors that, although considered alone might not deprive the petitioner of due process, may cumulatively produce a trial that is fundamentally unfair. United States v. Mays, 69 F.3d 116, 123 (6th Cir. 1995). However, claims that lack merit cannot be accumulated regardless of the total number raised. Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996). The only claim presented that invoked the specter constitutional error was the admission of evidence of the petitioner's past drunken driving arrest. However, since the "other acts" violation was not significant enough in itself to justify a new trial, it certainly cannot do so under a cumulative effect analysis when no other significant violation exists.
III.
The Court finds that the petitioner is not subject to confinement in violation of the Constitution or federal law. Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DENIED.