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Streeter v. McKee

United States District Court, E.D. Michigan, Southern Division
Jan 30, 2003
No. 02-CV-71482-DT (E.D. Mich. Jan. 30, 2003)

Opinion

No. 02-CV-71482-DT

January 30, 2003


OPINION AND ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS


This matter is pending before the Court on Byron D. Streeter's habeas corpus petition, which was filed pursuant to 28 U.S.C. § 2254. The habeas petition challenges Petitioner's 1998 state court convictions for murder and possession of a firearm during the commission of a felony (felony firearm). Respondent urges the Court to deny the petition on the ground that Petitioner is not entitled to relief. The Court agrees for reasons given below that the habeas petition must be denied.

I. Background

Petitioner was convicted of first-degree murder, MICH. COMP. LAWS § 750.316, and felony firearm, MICH. COMP. LAWS § 750.227b, on October 14, 1998. The convictions arose from the fatal shooting of Andre Brooks in Detroit, Michigan early on March 19, 1998.

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. The Michigan Court of Appeals affirmed Petitioner's conviction, and the Michigan Supreme Court denied leave to appeal because it was not persuaded that the questions presented should be reviewed. See People v. Streeter, No. 216576 (Mich.Ct.App. Dec. 26, 2000); People v. Streeter, 464 Mich. 870; 630 N.W.2d 622 (2001).

Petitioner's habeas corpus petition was received in this Court on April 30, 2002, and filed on May 6, 2002. The petition alleges that: (1) the trial court created reversible error when it denied Petitioner's motion for a mistrial, which was based on the prosecutor's opening statement; (2) the trial court deprived Petitioner of due process when it restricted and commented on evidence proposed by Petitioner in support of his alibi defense; and (3) the cumulative effect of these errors violated Petitioner's constitutional right to due process.

The Court may grant habeas corpus relief only if the state court's adjudication of these 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).

[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.
Williams v. Taylor, 529 U.S. 362, 409-11 (2000) (emphasis in original).

II. Discussion A. The Trial Court's Denial of Petitioner's Motion for a Mistrial

Petitioner's first claim alleges that the trial court erred when it denied his motion for a mistrial. The motion was based on the prosecutor's opening statement in which she said that Petitioner and another man had killed someone. The prosecutor also expressed doubt about whether a certain prosecution witness would testify truthfully. The Michigan Court of Appeals concluded on review of Petitioner's claim that the prosecutor's comments did not prejudice Petitioner or deprive him of a fair trial and that the trial court did not abuse its discretion by denying Petitioner's motion for a mistrial.

1. Standard of Review

A prosecuting attorney must ensure that justice is done. Berger v. United States, 295 U.S. 78, 88 (1935). He or she "may prosecute with earnestness and vigor," but it is "his [or her] duty to refrain from improper methods calculated to produce a wrongful conviction. . . ." Id. Because the average jury has confidence that these obligations will be faithfully observed, "improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none." Id.

To prevail on a claim of prosecutorial misconduct, a habeas petitioner must demonstrate that the prosecutor's remarks, in the context of the entire trial, were sufficiently prejudicial and infected the trial with such unfairness that the petitioner's right to due process was violated. Donnelly v. DeChristoforo, 416 U.S. 637, 639, 643 (1974). When determining whether prosecutorial misconduct violated a petitioner's right to due process, the Court must first consider whether the prosecutor's conduct and remarks were improper. Macias v. Makowski, 291 F.3d 447, 452 (6th Cir. 2002). If the conduct and remarks were improper, the Court must consider whether the impropriety was flagrant and thus violated the defendant's right to due process. Id. The four factors for determining flagrancy are:

"(1) whether the conduct and remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the conduct or remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and (4) whether the evidence against the defendant was strong."
Id. (quoting United States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001) (quoting United States v. Carroll, 26 F.3d 1380, 1385 (6th Cir. 1994)); see also Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997).

2. The Prosecutor's Comment that Petitioner Killed Someone

The prosecutor began her opening statement by saying that "[w]e're here today because that man [Petitioner] and another man killed a man by the name of Andre Brooks. . . ." See Tr. at 174. Because a prosecutor ordinarily "may not express a personal opinion concerning the guilt of the defendant," Caldwell v. Russell, 181 F.3d 731, 737 (6th Cir. 1999), the isolated remark might be considered improper if interpreted as an expression of personal belief.

The prosecutor no doubt deliberately placed her remark before the jury, but in the context of her opening as a whole, which included the prosecutor's summary of the anticipated testimony, the more logical interpretation is that the evidence supports a conclusion that the defendant killed Andre Brooks. At the conclusion of her opening statement, the prosecutor explained that, to establish guilt, she had to prove the elements of the offenses. See Tr. at 180. Similarly, during closing arguments, the prosecutor carefully explained that, in order for the jury to find that Petitioner was guilty, the prosecutor had to prove the elements of the offenses. See id. at 476-77. She said, "I think we've proven to you the elements of First Degree Murder beyond a reasonable doubt and the elements of Felony Firearm and it's no doubt we have proven that that man right there is the shooter. I'd ask you to find him guilty as charged." Tr. at 490-91.

The trial court stated to the jury before and after the prosecutor's remarks that the prosecutor was merely giving her theory of the case. The trial court also instructed the jury that opening statements are not evidence, but that they are a means of helping the jury to understand how each side views the case. See Tr. at 168-69.

This Court concludes that the opening remarks, taken in the context of the entire trial, could not have mislead the jury. Moreover, a twelve-year-old eyewitness to the crime implicated Petitioner at trial as the man who shot the victim, who was her uncle. Thus, the competent proof established Petitioner's guilt.

The Michigan Court of Appeals concluded on review of Petitioner's claim that the prosecutor s comments did not prejudice Petitioner or deprive him of a fair trial. This conclusion did not result in a decision that was contrary to, or an unreasonable application of Supreme Court precedent. 28 U.S.C. § 2254(d)(1); Williams, 529 U.S. at 412-13.

3. The Prosecutor's Comment on Defonta Griffin's Anticipated Testimony

Petitioner alleges that the prosecutor also injected her belief about his guilt by suggesting in her opening statement that one of her witnesses, Defonta Griffin, would testify falsely as a result of being threatened. According to Petitioner, the prosecutor insinuated that Petitioner had threatened Griffin in an effort to cover up the killing of Andre Brooks.

"It is unprofessional for counsel to express a personal belief or opinion in the truth or falsity of any testimony." United States v. Collins, 78 F.3d 1021, 1039-40 (1996) (citing United States v. Young, 470 U.S. 1, 9 n. 7 (1985)); see also Caldwell, 181 F.3d at 737 (stating that a prosecutor "may not express a personal opinion concerning the. credibility of trial witnesses").

Courts frown upon such statements for two reasons: `such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence.' United States v. Young, 470 U.S. 1, 18 (1985); see also Caldwell, 181 F.3d at 737 (stating that personal appeals exceed `the legitimate advocate's role by improperly inviting the jurors to convict the defendants on a basis other than a neutral independent assessment of the record proof).
Gall v. Parker, 231 F.3d 265, 312 (6th Cir. 2000), cert. denied, 533 U.S. 941 (2001).

The disputed remarks in this case read as follows:

The first witness you will hear from this morning . . . will be a young man by the name of Defonta Griffin. He's 16 or 17 years old and he will come in here and tell you that he was threatened very recently within the last few days —

* * *

Now, Defonta Griffin will tell you that Byron Streeter was not one of the people who threatened him and he doesn't know who these people were. So I honestly don't know what Defonta Griffin's going to testify to today because I don't think he's going to be real truthful having been threatened. The testimony will show that he testified once before in this case in the 36th District Court and he was also threatened before that court hearing, and you will hear testimony and evidence that suggests that he's changed his story when he testified in that court hearing too. So I don't know what he's going to tell you and me today.
I think the evidence will clearly show that after the shooting happened, he was interviewed by the police department and he gave a statement, and what his statement said was the night of March 19th, the night of the murder, that man and his brother were seen on the porch of 14232 Bender in Detroit where this homicide happened and that that man had a gun, a handgun in his hand and they said to Defonta Griffin, the 17-year-old, words to the effect of we have a beef to pick with a guy on Bentler. Now, what he tells you in court, I don't know, we'll have to wait and see, but you will see that he'll be confronted with a statement that he gave to the police, statement that he testified to at the preliminary hearing and then again whatever he says today.

Tr. Oct. 12, 1998, at 175-77.

The prosecutor did not say that Petitioner threatened Defonta Griffin. She also did not express a definite personal opinion on whether Griffin's testimony would be truthful or untruthful. She was alerting the jury that Griffin might give testimony that was inconsistent with earlier statements that he had made. Therefore, the comments were not flagrant.

Even if the comments were flagrant, Griffin admitted on the witness stand that he was not being entirely truthful because he was frightened. He said that, after his previous court appearance, someone other than Petitioner or his brother told him not to come to court. Griffin further admitted that, although he told the police he saw Petitioner standing in front of the victim's house with a gun on the night of the murder, he testified in district court that Petitioner appeared to have a brush in his hand. See Tr. at 199-201, 203-04, 211.

In light of Griffin's admissions that he had been untruthful in the past, the prosecutor's comments could not have mislead the jury or prejudiced Petitioner. Consequently, the state court's conclusion (that Petitioner was not deprived of a fair trial) did not result in a decision that was an unreasonable application of Supreme Court decisions on prosecutorial misconduct. Petitioner is not entitled to the writ of habeas corpus on the basis of his first claim. 28 U.S.C. § 2254(d)(1); Williams, 529 U.S. at 412-13.

B. The Trial Court's Comment and Evidentiary Ruling

Petitioner's second claim alleges that the trial court deprived him of due process when it restricted, and commented on, evidence that Petitioner attempted to admit in support of his alibi defense. The facts giving rise to this claim have been summarized by the Michigan Court of Appeals as follows:

During the prosecutor's questioning of defendant's alibi witness, the prosecutor impeached the witness' credibility by noting that a court document that she relied on to support her position that she was in Detroit on March 18, 1998, the date of the incident, indicated that her obligation was on February 18, not March 18. The witness had testified that she drove from her Grand Rapids home to Detroit for this court date, and returned late that night, with defendant. According to her testimony, defendant was traveling with her at the time of the victim's death. The witness was unable to find the court documentation evidencing her obligation to be in Detroit on March 18, 1998, and defendant sought to introduce the witness' personal notes. Over plaintiff's objection to relevancy, the trial court admitted them "for what it's worth."

* * *

[T]he witness ultimately received a copy of the court document evidencing her obligation to be in Detroit on March 18, 1998. The trial court denied defendant's request to reopen proofs to allow the witness' credibility to be rehabilitated. This request preceded both parties' closing statements. The trial court opined that the evidence related to a "collateral issue," apparently accepting the prosecutor's objection to its relevancy.
Streeter, Mich. Ct. App. No. 216576, at 2-3.

1. The Judge's Comment

Petitioner alleges that the trial court abused its discretion when it commented that the alibi witness's notes could be admitted "for what it's worth." Petitioner contends that the trial court's comment had a prejudicial impact on the witness's credibility.

Trial judges may "assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing [the jury's] attention to the parts of it which [they] think important, and [they] may express [their] opinion upon the facts, provided [they] make it clear to the jury that all matters of fact are submitted to their determination." Quercia v. United States, 289 U.S. 466, 469 (1933). A trial judge's conduct and prejudicial comments are not proper subjects for collateral attack of a conviction unless they amount to constitutional violations. McBee v. Grant, 763 F.2d 811, 818 (6th Cir. 1985) (quoting Brinlee v. Grisp, 608 F.2d 839, 853 (10th Cir. 1979)).

The trial court's comment that it was admitting the alibi witness's notes about March 18, 1998 "for what it's worth" suggested that the court did not think the notes had much evidentiary value. The comment had some validity, however, because the murder allegedly occurred after midnight on March 18, 1998, and Patterson's presence in Detroit during the daylight hours of March 18, 1998, were irrelevant. In addition, as the Michigan Court of Appeals recognized on review of Petitioner's claim, (1) the "statement appears to be a commentary on the utility of the document," (2) the witness's notes did "not establish that . . . she actually attended the appointment," and (3) "the witness conceded that she had enough time during the break to write the relevant date in the notes." Streeter, Mich. Ct. App. No. 216576, at 2-3.

Furthermore, the trial court instructed the jury that its comments were not evidence, nor intended to influence the jurors' vote or express a personal opinion. See Tr. at 507. The trial court also instructed the jury that it was the jury's duty to decide the facts on the basis of the admissible evidence. See id. at 508.

The state appellate court's conclusion that the trial court's comment did not deprive Petitioner of a fair trial was objectively reasonable. Accordingly, Petitioner is not entitled to habeas relief on the basis of the trial court's comment.

2. The Evidentiary Ruling

Petitioner maintains that the trial court's refusal to permit him to re-open the proofs to show that his alibi witness had evidence of her obligation to be in Detroit on March 18, 1998, deprived him of due process and the right to present a defense. Indeed, the exclusion of evidence that significantly undermines fundamental elements of the accused's defense is unconstitutional. United States v. Scheffer, 523 U.S. 303, 315 (1998).

The Michigan Court of Appeals determined on review of Petitioner's claim that the trial court's decision not to permit Petitioner to reopen the proofs arguably was an abuse of discretion. The court nevertheless found that the error was harmless because it was not convinced that the jury would have rejected the eyewitness identification if the trial court had granted Petitioner's request to reopen the proofs.

The United States Court of Appeals for the Sixth Circuit has explained that

[t]he standard for showing harmless error on collateral review is considerably less favorable to the petitioner than the standard applicable on direct review. On direct review, `before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.' [ Chapman v. California, 386 U.S. 18, 24 (1967)]. The test on collateral review is different. [A reviewing court] must order reversal only when a trial error `had substantial and injurious effect or influence in determining the jury's verdict.' Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 1557 (1946)). Under this standard, [the petitioner] is not entitled to habeas relief unless he can establish that this trial error resulted in `actual prejudice.' Id. (quoting United States v. Lane, 474 U.S. 438, 449 (1986)).
Ford v. Curtis, 277 F.2d 806, 809 (6th Cir.), cert. denied, ___ U.S. ___, 123 S.Ct. 185 (2002).

The trial court's refusal to permit Petitioner to re-open the proofs could not have had a substantial and injurious effect or influence on the jury's verdict because

[t]he evidence that [Petitioner] sought to admit would have established the witness' obligation to be in Detroit on March 18, 1998. [T]his evidence would not have established that she was actually in Detroit or traveled from Detroit to Grand Rapids that evening, much less that [Petitioner] accompanied her on that trip. Further, there was eyewitness testimony that [Petitioner] shot the victim.
Streeter, Mich. Ct. App. No. 216576, at 3. Petitioner's own statement to the police established that he was in Detroit during the commission of the crime. See Tr. at 454-60.

The Court concludes that the state appellate court's determination of harmless error did not result in an unreasonable application of Chapman. Consequently, Petitioner is not entitled to the writ of habeas corpus on the basis of his claim about the trial court's evidentiary ruling. 28 U.S.C. § 2254(d); Barker v. Yukins, 199 F.3d 867, 872 (6th Cir. 1999), cert. denied, 530 U.S. 1229 (2000).

C. Cumulative Effect of Errors

Petitioner's third and final claim alleges that the cumulative effect of the prosecutor's comments and the trial court's evidentiary ruling and comment violated Petitioner's constitutional right to due process. The Michigan Court of Appeals stated that this claim lacked merit because the court had found only one error in the proceedings and it deemed that single error to be harmless.

The state court's decision was not contrary to any Supreme Court decision because "[t]he Supreme Court has not held that distinct constitutional claims can be cumulated to grant habeas relief." Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir.), petition for cer. filed, (U.S. Nov. 14, 2002) (No. 02-7467). Accordingly, Petitioner's third and final claim does not entitle him to the writ of habeas corpus.

III. Conclusion

For all the reasons given above, the Court concludes that Petitioner has not made the necessary showing under 28 U.S.C. § 2254(d). Accordingly, his application for the writ of habeas corpus is DENIED.


Summaries of

Streeter v. McKee

United States District Court, E.D. Michigan, Southern Division
Jan 30, 2003
No. 02-CV-71482-DT (E.D. Mich. Jan. 30, 2003)
Case details for

Streeter v. McKee

Case Details

Full title:BYRON D. STREETER, Petitioner, v. KENNETH McKEE, Respondent

Court:United States District Court, E.D. Michigan, Southern Division

Date published: Jan 30, 2003

Citations

No. 02-CV-71482-DT (E.D. Mich. Jan. 30, 2003)