Opinion
Civil No. 00-CV-73014-DT
April 26, 2001
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Lamonte Howell, ("petitioner"), presently confined at the Ryan Correctional Facility in Detroit, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction and sentence for possession of more than 50 but less than 225 grams of cocaine, M.C.L.A. 333.7403(2)(a)(iii); M.S.A. 14.15 (7403(2)(a)(iii), and being a fourth felony habitual offender, M.C.L.A. 769.12; M.S.A. 28. 1084. For the reasons stated below, petitioner's application for writ of habeas corpus is DENIED.
I. BACKGROUND
Petitioner was originally charged with possession with intent to deliver more than 225 but less than 650 grams of cocaine, but was convicted of the lesser offense of possession of more than 50 but less than 225 grams of cocaine following a jury trial.
The evidence at trial established that police executed a search warrant at a house located at 14003 Minock Street in Detroit, Michigan on January 30, 1996. Officer Derrick Carpenay testified that when the police arrived at the house, four officers, including himself, went to the front porch of the house. Officer Carpenay looked through the living room window and saw two men, one of whom he identified as petitioner, sitting on a couch in front of a coffee table. Carpenay observed what appeared to be clear plastic baggies containing suspected cocaine on top of the coffee table. When Sergeant Matthews, the officer in charge of the raid, announced the presence and purpose of the police, Officer Carpenay observed petitioner and co-defendant Reeves jump up from the couch, grab the drugs, and rush to the rear of the house. Carpenay specifically observed petitioner grab a clear plastic baggie containing suspected powder cocaine before he began running. Carpenay advised Sergeant Matthews of his observations at which time, Sergeant Matthews ordered the "ram man" to batter the front door. Officer Carpenay followed the shotgun man, Officer Kevin Robinson, into the house and could hear two men running down the basement steps of the house. (Trial Tr., Vol. I, pp. 56-72).
Officers Carpenay and Robinson chased petitioner and Reeves into the basement, where petitioner was observed standing between the furnace and north wall of the basement. Carpenay found a clear plastic baggie containing suspected powder cocaine on the floor within two feet of petitioner. Reeves was ten to fifteen feet away. ( Id. at pp. 73-82).
Officer Kevin Robinson was the "shot gun" man during the raid. Over objection from defense counsel, Robinson testified that Officer Carpenay advised "that two men were in the location and running to the rear of the location." (Trial Tr., Vol. II, pp. 134-135). After petitioner and Reeves were taken into custody, Officer Robinson found a clear plastic baggie containing suspected cocaine on the living room floor near the coffee table. ( Id. at pp. 139, 142).
Officer Randy Miller testified that when he searched the basement, he found three bags of suspected cocaine between the dryer and near where Reeves had been standing. ( Id. at p. 158). Miller also testified that an officer indicated that men were running with dope or "baggies" prior to Sergeant Matthews ordering the door forced open. ( Id. at pp. 156, 161-162).
Officer Cynthia Raymond testified that she confiscated drug paraphernalia found in the kitchen of the house. ( Id. at pp. 165-166). As Officer Raymond was leading petitioner out of the house following his arrest, petitioner asked Officer Raymond to retrieve a set of keys that he had left on top of the television set in the living room. Raymond tested the keys to see if they fit any of the doors at the house on Minock street. One of the keys fit the inner side door of the house. Raymond acknowledged that none of the keys fit the security door on the side of the house or the rear or front doors. She also admitted that she did not find any of petitioner's mail at the house. ( Id. at pp. 171-175).
Sergeant John Matthews was the officer in charge of the raid on the Minock street address. Matthews testified that the description of the person in the search warrant referred to the suspected seller of narcotics. The search warrant also had the nickname "Ponch" at the bottom of the warrant. Matthews indicated that this referred to the suspected buyer of the narcotics. Matthews testified that during a recess in the trial, he had heard petitioner's mother refer to petitioner by the name "Ponch" on the elevator. ( Id. at pp. 207-210).
Petitioner's mother Geraldine Howell testified for the defense. She denied calling petitioner "Ponch" on the elevator. ( Id. at pp. 230-232).
Petitioner's conviction was affirmed on appeal. People v. Howell, 200916 (Mich.Ct.App. September 8, 1998); lv. den. 460 Mich. 875; 601 N.W.2d 104 (1999); reconsideration den. ___ Mich. ___; 603 N.W.2d 267 (1999). Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. Petitioner's Sixth and Fourteenth Amendment constitutional rights to due process and a fair trial were violated when the state court admitted prejudicial hearsay, and erred in the manner in which the hearsay was handled by comment and instruction to the jury.
II. Petitioner's Sixth and Fourteenth Amendment right to due process and a fair trial were denied by the state trial court's judicial misconduct.
II. STANDARD OF REVIEW
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); Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
A decision of a state court 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. An "unreasonable application" occurs when the state court identifies the correct legal principle from a Supreme Court's decision but unreasonably applies that principle to the facts of the prisoner's case. Williams v. Taylor, 529 U.S. 362, 412-413 (2000). A federal habeas court may not find a state adjudication to be "unreasonable" "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.
III. DISCUSSION
A. Claim # 1. The hearsay evidence claims.
Petitioner first claims that the trial court deprived him of a fundamentally fair trial by admitting hearsay testimony into evidence. This alleged hearsay evidence consisted of Officer Robinson's testimony that Officer Carpenay indicated that two men were running to the back of the house (Trial Tr. Vol. II, pp. 134-135), Officer Miller's testimony that Officer Carpenay indicated that he saw narcotics and two men running with baggies ( Id. at pp. 156, 161-162), and Sergeant Matthews' testimony that he overheard petitioner's mother refer to him as "Ponch." ( Id. at pp. 207-210).
Habeas review does not encompass state court rulings on the admission of evidence unless there is a federal constitutional violation. Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir. 1994). Errors by a state court in the admission of evidence are not cognizable in habeas corpus proceedings unless they so perniciously affect the prosecution of a criminal case so as to deny the defendant the fundamental right to a fair trial. Welch v. Burke, 49 F. Supp.2d 992, 1000 (E.D. Mich. 1999) (Cleland, J.).
In the present case, the Michigan Court of Appeals determined that none of this testimony was hearsay evidence, either because it was not offered for the truth of the matter asserted or because it would be admissible under the present sense impression exception to the hearsay rule. People v. Howell, Slip. Op. at * 1-2. What is or is not hearsay evidence in a state court trial is governed by state law. Gochicoa v. Johnson, 118 F.3d 440 445 (5th Cir. 1997); Diaz v. Curtis, 2000 WL 1769571, * 7 (E.D. Mich. October 31, 2000) (Hood, J.). The Michigan Court of Appeals initially concluded that the testimony about Officer Carpenay's observations was not hearsay, because it was not offered to prove the truth of the matter asserted, but to explain why the other officers undertook certain actions. There is no hearsay problem when the police are asked to explain the background of the case and the reasons for their various actions. See United States v. Gholston, 10 F.3d 384, 388 (6th Cir. 1993). Moreover, even if these statements were offered to prove the truth of the matter asserted, the state court committed no constitutional error in admitting Officer Carpenay's statements into evidence, because it was highly likely that this testimony was admissible under at least one well-recognized exception to the hearsay rule, namely the present sense impression exception. See Akrawi v. Jabe, 979 F.2d 418, 423-424 (6th Cir. 1992). There are three requirements for admitting hearsay evidence under the present sense impression exception:
1. the declarant must have personally perceived the event described;
2. the declaration must be an explanation or description of the event, rather than a narration;
3. the declaration and the event must be contemporaneous.
United States v. Mitchell, 145 F.3d 572, 576 (3rd Cir. 1998).
In the present case, Officer Carpenay's statements to Officers Robinson and Miller would clearly qualify as a present sense impression, therefore, petitioner is unable to show that he was deprived of a fair trial through the admission of this testimony.
With respect to the admission of Geraldine Howell's statement in which she identified petitioner as "Ponch", the Michigan Court of Appeals concluded that this testimony was admitted to show merely that the statement was made and not to prove the truth of the matter asserted. The hearsay rule does not apply when statements are offered merely to show that they were made. United States v. Gibson, 675 F.2d 825, 833-834 (6th Cir. 1982). Moreover, even if the admission of this hearsay testimony was erroneous, a federal court can grant a petitioner habeas relief only if it finds that the error was not harmless. Hill v. Brigano, 199 F.3d 833, 846-847 (6th Cir. 1999); cert. den. 529 U.S. 1134 (2000). In order to find that the admission of this hearsay evidence was not harmless, this Court must find that the error had a substantial and injurious effect or influence in determining the jury's verdict. Id. Permitting Sergeant Matthews to testify about Ms. Howell's out-of-court reference to petitioner as "Ponch" was harmless error at best. First, any error in admitting this testimony would have been harmless error in light of the independent nonhearsay evidence which established petitioner's presence at the house on Minock at the time of the raid and his involvement with the cocaine seized at the location. United States v. Christopher, 923 F.2d 1545, 1553 (11th Cir. 1991). Secondly, because Ms. Howell testified at trial and denied making this statement, petitioner was not deprived of a fair trial. Aponte v. Scully, 740 F. Supp. 153, 159 (E.D.N.Y. 1990).
Petitioner lastly claims that the cautionary instruction given by the trial court concerning the limited admissibility of the hearsay testimony was erroneous. ( Id. at pp. 134-135). The Michigan Court of Appeals rejected this claim, finding that the trial court's instruction provided a correct statement of the law. People v. Howell, Slip. Op. at * 1. Because the Michigan Court of Appeals found that the instruction given by the trial court accurately reflected Michigan law, this Court must defer to that determination and cannot question it. Seymour v. Walker, 224 F.3d 542, 558 (6th Cir. 2000). Accordingly, petitioner is not entitled to habeas relief on his first claim.
B. Claim # 2. Judicial Misconduct Claim.
Petitioner next claims that he was deprived of a fair trial through judicial misconduct. In reviewing an allegation of judicial misconduct in a habeas corpus petition, a federal court must ask itself whether the state trial judge's behavior rendered the trial so fundamentally unfair as to violate federal due process. Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995). To sustain an allegation of bias by a state trial judge as a grounds for habeas relief, a habeas petitioner must factually demonstrate that during the trial the judge assumed an attitude which went further than an expression of his or her personal opinion and impressed the jury as being more than an impartial observer. Hines v. Redman, 805 F.2d 1034, 1986 WL 18068, * 2 (6th Cir. October 30, 1986); Brinlee v. Crisp, 608 F.2d 839, 852-853 (10th Cir. 1979). A trial judge's intervention in the conduct of a criminal trial would have to reach a significant extent and be adverse to the defendant to a significant degree before habeas relief could be granted. McBee v. Grant, 763 F.2d 811, 818 (6th Cir. 1985).
In the present case, petitioner's allegations of judicial misconduct are without merit. Petitioner first claims that the trial court committed misconduct by refusing to permit defense counsel to circulate to the jury photographs of the house on Minock Street, which defense counsel sought to introduce to show that Officer Carpenay could not have seen through the window and observed the events in question. Adverse rulings are not themselves sufficient to establish bias or prejudice which will disqualify a judge. Hence v. Smith, 49 F. Supp.2d 547, 549 (E.D. Mich. 1999) (Gadola, J.). Petitioner also claims that the trial court made an inappropriate appeal to the jurors' religious beliefs at the start of the second day of trial. (Trial Tr., Vol. II, pp. 113-119). Appeals to religious prejudice during a trial violate a defendant's Fifth Amendment right to a fair trial. United States v. Cabrera, 222 F.3d 590, 594 (9th Cir. 2000). A review of the trial judge's monologue at the start of the second day of trial shows that he was merely discussing with the jury the fact that he had been campaigning for reelection at several local churches over the weekend. The judge did not suggest that petitioner's case should be adjudicated under religious law, nor did he suggest that the case should be decided on a religious or emotional basis. See United States v. Bailey, 123 F.3d 1381, 1400-1401 (11th Cir. 1997) (rejecting prosecutorial misconduct claim involving improper appeal to jurors' religious beliefs).
Petitioner also claims that the trial court belittled defense counsel. An objective demeanor on the part of the judge when injecting himself or herself into the trial is important and outright bias or belittling of counsel is ordinarily reversible error. United States v. Hickman, 592 F.2d 931, 933 (6th Cir. 1979). Petitioner first claims that the trial court belittled counsel's attempts to show that petitioner did not match the description of the drug seller in the warrant as having black hair, when the Court noted that petitioner had "no hair today."( Id. at p. 148). This comment, if anything, helped petitioner, because it pointed out to the jury that unlike the seller described in the warrant, petitioner had no hair. Petitioner also claims that the trial court disparaged defense counsel's attempt to challenge Sergeant Matthews' assertion that the amount of drugs found at the location was indicative of drug trafficking rather than personal use, when counsel tried to analogize the purchasing of toilet paper in bulk for personal use. The trial court, after clarifying defense counsel's question for Matthews, briefly commented: "We're drawing an analogy between cocaine and toilet paper." ( Id. at p. 214). This brief comment did not demonstrate any hostility on the part of the trial court towards petitioner. In any event, comments which merely cause disappointment, discomfort, or embarrassment ro defense counsel, without more, rarely constitute a deprivation of a fair trial. Rodriguez v. Zavaras, 42 F. Supp.2d 1059, 1140 (D. Colo. 1999).
Petitioner lastly claims that he was deprived of a fair trial when the trial court admonished the jury to be careful handling the exhibits, such as the scales recovered by police, because they contained substances that could be harmful to their health. ( Id. at pp. 223-224). Such an admonition by the court did not deprive petitioner of a fair trial, because it was designed merely to alert the jury that they should be careful handling the exhibits and did not suggest that petitioner was guilty of any offense.
In this case, the Michigan Court of Appeals' determination that the trial court's comments did not violate petitioner's federal constitutional rights was not an unreasonable application of clearly established federal law, given that these comments did not permeate the entire trial. Petitioner is not entitled to habeas relief on this claim. Maurino v. Johnson, 210 F.3d 638, 645-646 (6th Cir. 2000); cert. den. 121 S.Ct. 427 (2000).
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.