Opinion
Civil No. 02-CV-70538-DT
July 21, 2003
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Elliot Lashon Whittington, ("Petitioner") is confined at the E.C. Brooks Correctional Facility in Muskegon Heights. He seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges the legality of his convictions after a jury trial in the Saginaw County Circuit Court on one count of first degree murder, M.C.L. § 750.316, under alternative theories of premeditated murder and felony murder; one count of conspiracy to commit first-degree murder, M.C.L. 750.157a; and one count of possession of a firearm during the commission of a felony (felony firearm). M.C.L. § 750.227b. Petitioner was sentenced to concurrent terms of life imprisonment for the first-degree murder and conspiracy convictions and to a mandatory consecutive two year term for the felony firearm conviction.
The petition raises claims of in sufficient evidence, improper admission of other acts evidence, and an omission of an alibi jury instruction. For the following reasons, the Court concludes that the petition must be denied.
II. Factual Background
Petitioner's convictions arise out of the murder of two Saginaw numbers runners, Earl Randolph and Joseph Haynes. Randolph and Haynes were robbed and shot to death as they sat in their parked car. The fatal shots were fired by assailants who stood on both sides of the car. They fired numerous times.
Not every eyewitness to the crime positively identified Petitioner as one of the perpetrators. However, four eyewitnesses who previously knew Petitioner from the neighborhood did identify him at trial as one of the shooters. These four eyewitnesses were Daquavion Boyd, Stephanie Miller, Tr. Vol. III at 26-63; Tim Jordan, Tr. Vol. II at 162- 204; and Edna Webb, Tr. Vol. III at 141-49. All four witnesses testified that they had seen Petitioner in the neighborhood on numerous occasions before the shooting and recognized him from these prior contacts.
Stephanie Miller testified that she saw Petitioner, whom she knew as "Wild Style" or "Wild Star," almost every day. Tim Jordan, who cut hair in his home to earn money, testified that he saw Petitioner regularly in the neighborhood and had cut his hair several times.
The Michigan Court of Appeals summarized the facts of Petitioner's case in rejecting his sufficiency of the evidence claim:
Defendant Whittington argues that his first-degree murder and felony-firearm convictions must be overturned because there was insufficient evidence to identify him as the perpetrator of the charged crimes. We disagree. We will not interfere with the jury's determination of the credibility of identification testimony. People v. Davis, 241 Mich. App. 697, 700; 617 N.W.2d 381 (2000); People v. Norris, 236 Mich. App. 411, 422; 600 N.W.2d 658 (1999). Four witnesses identified defendant Whittington as the shooter who stood at the driver's side of the victims' car. Viewed most favorably to the prosecution, this testimony was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Whittington was the perpetrator of the charged crimes. People v. Wolfe, 440 Mich. 508, 515; 489 N.W.2d 748 (1992), amended 441 Mich. 1201 (1992).People v. Whittington, 2001 WL 682230 at * 1; Mich. Ct. App. Docket No. 215045 at 1-2 (April 20, 2001).
III. Procedural History
Petitioner appealed his convictions as of right to the Michigan Court of Appeals. The Michigan Court of Appeals affirmed the convictions in an unpublished opinion. People v. Whittington, 2001 WL 682230; Mich. Ct. App. Docket No. 215045 (April 20, 2001).
The Michigan Supreme Court denied the application for leave to appeal. People v. Whittington, 465 Mich. 934; 638 N.W.2d 757 (Table); Mich. Sup.Ct. Docket No. 119380 (December 21, 2001).
On or about March 5, 2002, Petitioner filed the present habeas petition raising the the following claims:
I. Petitioner's convictions for murder and felony firearm should be overturned because there was insufficient evidence at trial to prove that Petitioner committed the crimes.
II. A new trial is required because the prosecutor brought into evidence similar acts evidence, M.R.E.404(B) without first bringing it before the judge prior to trial for a ruling, such evidence being irrelevant and far more prejudicial than probative. This denied defendant a fair trial.
III. A new trial is required because the judge gave an alibi instruction for defendant Cameron but not for co-defendant Whittington. Under the facts and circumstances of the case, this violated Petitioner's Whittington's right to a fair trial.
Respondent filed an answer to the petition and contends that Petitioner's claims are procedurally defaulted and/or lack merit.
IV. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA") altered the standard of review federal courts must apply when reviewing applications for writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the act, April 24, 1996. Because Petitioner's application was filed after April 24, 1996, the provisions of the AEDPA, including the amended standard of review, apply to this case.
As amended, 28 U.S.C. § 2254(d) imposes the following standard of review that a federal court must utilize when reviewing applications for a writ of habeas corpus:
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 proceedings.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 (6th Cir. 1998); Harris v. Stovall, 212 F.3d 940 (6th Cir. 2000). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) 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").
28 U.S.C. § 2254(e)(1) provides, in pertinent part:
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.
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).
With respect to the "unreasonable application" clause of § 2254(d)(1), the United States Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause 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 409-11 (emphasis in original).
With this standard in mind, the Court addresses the petition for a writ of habeas corpus.
V. Discussion A. Insufficient Evidence Claim
Petitioner contends that his convictions are not supported by constitutionally sufficient evidence.
The Due Process Clause of the Fourteenth Amendment protects an accused in a criminal case against conviction except upon proof beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970). The issue before this Court is whether sufficient evidence was presented from which a reasonable factfinder could find that the essential elements of the crimes were proven beyond a reasonable doubt. The appropriate standard of review in a federal habeas corpus proceeding involving a claim of insufficiency of evidence in a state criminal conviction is whether, after reviewing the evidence in the light most favorable to the government, "any rational trier of fact could have found the elements of the offense beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard of review recognizes the trier of fact's responsibility to reasonably resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, supra at 318.
In general, the prosecution presents the evidence of the defendant's guilt, and of course, the defense has no duty to present any evidence at all. However, where the defense does present evidence, this evidence also may directly or inferentially support a reasonable finding of guilt. For instance, if a defense witness called to provide alibi evidence actually testified she never saw the defendant the day of the crime, or worse (for the defendant) testified she saw the defendant and victim together shortly before the crime. In the present case, Petitioner testified on his own behalf. However, the factfinder, in this case the trial judge, was not required to interpret this evidence favorably to the defendant.
The reviewing court does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor has been observed by the finder of fact. Glasser v. United States, 315 U.S. 60, 80 (1942); Marshall v. Lonberger, 459 U.S. 422, 434 (1983). Kines v. Godinez, 7 F.3d 674, 678 (7th Cir. 1993); cert denied, 114 S.Ct. 1314 (1994). Determination of the credibility of a witness is within the sole province of the finder of fact and is not subject to review. United States v. Saunders, 886 F.2d 56 (4th Cir. 1989). The habeas court does not substitute its judgment for that of the finder of fact. United States v. Jackson, 55 F.3d 1219, 1225 (6th Cir. 1995).
The habeas court must review all of the evidence in the record and determine whether a reasonable jury or other factfinder could have found guilt beyond a reasonable doubt. "The evidence must afford a substantial basis from which a fact in issue can reasonably be inferred." Spalla v. Foltz, 615 F. Supp. 224, 227 (E.D.Mich. 1985), aff'd, 788 F.2d 400 (6th Cir.), cert. denied, 479 U.S. 935) (1986). Circumstantial evidence from which a reasonable inference of guilt beyond a reasonable doubt may be drawn is constitutionally sufficient. Id.; Evans-Smith v. Taylor, 19 F.3d 899, 909 (4th Cir.), cert. denied, 513 U.S. 919 (1994) (holding that circumstantial evidence that Evans-Smith strangled his wife and staged a fake robbery-rape scene to conceal his crime was insufficient to support his murder conviction).
As set forth above, the Michigan Court of Appeals found the evidence of Petitioner's guilt to be sufficient.
Four eyewitnesses testified that they had seen Petitioner many times in the neighborhood before the shooting and that they saw into the driver's side of the car. Stephanie Miller testified that she saw Petitioner in the neighborhood almost every day. Tim Jordan testified that he saw Petitioner often and had cut his hair several times before the shooting.
Petitioner argues that Daquavion Boyd's testimony is inherently unreliable because he was only seven years old at the time of the trial. Petitioner also argues that various gaps and/or internal inconsistencies in the testimony of these four eyewitnesses, and/or contradictions between their testimony render their testimony so "externally and internally inconsistent to the point that the evidence is insufficient." Petitioner's Reply to Respondent's Answer to Petition for Writ of Habeas Corpus ("Petitioner's Reply") at 6. This Court disagrees.
It is not unusual or unexpected that there would be various inconsistencies between the testimony of four eyewitnesses to a sudden, stressful, and rapidly transpiring event such as the shooting they witnessed. The witnesses were all thoroughly cross-examined by defense counsel. Judging the credibility of these eyewitnesses was a matter for the trier of fact. It is not the function of the habeas court on sufficiency of the evidence review to weigh the credibility of the witnesses. Martin v. Mitchell, 280 F.3d 594 (6th Cir. 2002). "It is the province of the fact-finder, not this court, to weigh the probative value of the evidence and resolve any conflicts in the testimony." Mckenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003) (citing Jackson, 443 U.S. at 319).
This Court concludes that the Michigan Court of Appeals' decision was a reasonable application of controlling federal constitutional law. Therefore, this claim lacks merit and is denied.
B. Other Acts Evidence and Prosecutorial Misconduct Claims
Petitioner contends that he was denied a fair trial by the improper admission of other acts evidence. The other acts evidence consisted of testimony that "there had been a prior attempted robbery, (TT II, p. 22) that there had been "bad acts' in the neighborhood, and that at least one witness was scared to testify. (TT Ill, p. 178)." Petition at 6. Respondent did not address this claim.
One well established rule, not altered by the AEDPA, is that "[a] federal court may not issue the writ on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 875, 79 L.Ed.2d 29 (1984)); see Floyd v. Alexander, 148 F.3d 615, 619 (6th Cir.) (concluding that violation of a state law is not cognizable in federal habeas corpus proceedings), cert. denied, 525 U.S. 1025, 119 S.Ct. 557, 142 L.Ed.2d 464 (1998). Accordingly, petitioner's state law claim concerning evidence of prior bad acts is not cognizable on habeas review. See Floyd, 148 F.3d at 619; see also 28 U.S.C. § 2254(a).
Even if petitioner had raised this claim as a federal constitutional issue, he would have to show that the alleged evidentiary error so perniciously affected the prosecution of his case that it deprived him of the fundamental right to a fair trial. Furthermore, a federal habeas court will not disturb a state court's admission of evidence of prior crimes, wrongs, or acts unless the probative value of such evidence is so greatly outweighed by the prejudice flowing from its admission that admitting the evidence denies the petitioner the due process of law. Hopkinson v. Shillinger, 866 F.2d 1185, 1197 (10th Cir. 1989); Cosme v. Elo, 2000 WL 246592, *3 (E.D.Mich. February 4, 2000) (Cohn, J). The inquiry in reviewing a claim of improper admission of prior bad acts evidence is whether the evidence was rationally connected to the crime charged and, if it was not, whether its admission was so prejudicial as to deprive the defendant of a fundamentally fair trial. Carter v. Jago, 637 F.2d 449, 457 (6th Cir. 1980).
Here, the testimony concerning other acts did not name Petitioner as the alleged perpetrator of any of these acts. A witness, Edna Webb, testified that "there's been B Es and a lot of wanna-be gangs trying to establish themselves. . . . I was also afraid for myself to the point where my kids didn't want me to testify. And I told them that if it was their son or daughter or their husband or their brother, you would want somebody to come and tell the truth." Tr. Vol. III at 178. Ms. Webb did not testify that she was afraid to testify because of anything Petitioner had done or said. Consequently, this Court concludes that Petitioner was not prejudiced by this general testimony about crimes and fears.
Moreover, even if there had been testimony that Petitioner had committed a prior robbery and/or was the person Ms. Webb spoke of, this Court would conclude that such testimony did not deprive Petitioner of a fundamentally fair trial. Four eyewitnesses gave detailed testimony of his involvement in these crimes. General testimony alleging that Petitioner may have committed or attempted a robbery in the past and/or that Ms. Webb was afraid of him would not have deprived Petitioner of a fair trial in light of the testimony of four eyewitnesses.
Furthermore, the United States Supreme Court has held that on habeas review of federal constitutional trial errors, the reviewing court must determine whether the error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637; 113 S.Ct. 1710, 1722; 123 L.Ed.2d 353 (1993) (citation omitted). Consequently, federal courts are to use and follow Brecht when reviewing habeas petitions of constitutional trial errors based on state court determinations of harmless error. Furthermore, the harmless error standard announced in Brecht applies even if a federal habeas court is the first to review for harmless error. Gilliam v. Mitchell, 179 F.3d 990, 995 (6th Cir. 1999); see also O'Neal v. McAninch, 513 U.S. 432, 445, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (habeas court should grant petition if it has "grave doubt" about whether trial error had substantial and injurious effect or influence upon the jury's verdict).
This Court has no doubt that testimony that Petitioner may have committed or attempted a prior robbery and/or that Ms. Webb feared him would not have had a substantial and injurious effect on the jury's verdict.
Thus, Petitioner's prior bad acts claim does not merit habeas relief.
Petitioner also contends in his Reply that the prosecutor committed misconduct by questioning Edna Webb on her fear of testifying. Petitioner's Reply at 7. This claim also does not merit habeas relief. Nothing in Ms. Webb's testimony suggests that Petitioner was the person she feared. Ms. Webb testified that, despite been somewhat afraid of the neighborhood's criminal element, she wanted to testify, and hoped that her children would be "comfortable with it." Tr. Vol. III at 179.
Respondent contends that this claim is procedurally defaulted. While this claim may indeed be procedurally defaulted, it plainly lacks merit. This Court need not determine whether this claim is barred by procedural default. This Court finds "that the procedural default issue raises more questions than the case on the merits. [T]his Court will therefore assume without deciding that there was no procedural default by petitioner and decide the merits of the [claim]." Binder v. Stegall, 198 F.3d 177, 178 (6th Cir. 1999).
"On habeas corpus review, the standard to be applied to allegation of prosecutorial misconduct is whether the petitioner was deprived of a fundamentally fair trial." Stumbo v. Seabold, 704 F.2d 910, 911 (6th Cir. 1983) (citing Cook v. Bordenkircher, 602 F.2d 117 (6th Cir. 1979)). Habeas relief will not be granted based on prosecutorial misconduct unless the prosecutor's statement likely had a bearing on the outcome of the trial in light of the strength of the competent proof of guilt. Byrd v. Collins, 209 F.3d 486, 529 (6th Cir. 2000). For relief to be granted, the misconduct must have ""so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)).
Therefore, on habeas review, the standard of review is limited to ""the narrow one of due process.'" Darden, 477 U.S. at 181, 106 S.Ct. 2464 (quoting Donnelly v. DeChristoforo, 416 U.S. at 642, 94 S.Ct. 1868). In making this determination, the reviewing court must bear in mind that"'the touchstone of due process analysis . . . is the fairness of the trial, not the culpability of the prosecutor.'" Serra v. Michigan Dep't of Corrections, 4 F.3d 1348, 1355 (6th Cir. 1993) (quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)). Therefore, even if the prosecutor's conduct was "undesirable or even universally condemned," Darden, 477 U.S. at 181, 106 S.Ct. 2464 (quotation marks and citation omitted), it does not constitute a due process violation unless "the conduct was "so egregious so as to render the entire trial fundamentally unfair.'" Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir.) (quoting Serra, 4 F.3d at 1355), cert. denied, 522 U.S. 1001, 118 S.Ct. 572, 139 L.Ed.2d 411 (1997).
The Michigan Court of Appeals found that this claim lacked merit as Petitioner failed to show any outcome determinative plain error in connection with this questioning or that he was otherwise deprived of a fair trial by it.
Review of Petitioner's prosecutorial misconduct claim shows that the complained-of questions and answers were not egregious, if they were misconduct at all. They clearly did not infect or permeate Petitioner's trial with unfairness, or have a substantial and injurious effect on the decision to convict Petitioner. This testimony was not improper, did not implicate Petitioner directly, and was of slight importance compared to the eyewitness identification of Petitioner as the driver's side shooter.
Consequently, this Court concludes Petitioner's prosecutorial misconduct claim lacks merit and the Michigan Court of Appeals' decision rejecting this claim is a reasonable application of controlling federal constitutional law. Therefore, this claim is denied.
C. Jury Instruction Claim
Petitioner claims that he was denied a fair trial because the trial judge did not give the jury an alibi instruction on his behalf. Petitioner cites Taylor v. Kentucky, 436 U.S. 478, 488-89 (1978), for the proposition that "arguments of counsel cannot substitute for instructions by the court." Respondent contends that this claim is procedurally barred. The Michigan Court of Appeals found that Petitioner failed to preserve this issue by requesting alibi instructions at trial and that, further, where Petitioner did not present a notice of alibi defense at trial, and there was undisputed evidence that he was among a group of people at the crime scene shortly before the shooting, he failed to show any plain instructional error stemming from the trial court's failure to give an alibi instruction.
It is debatable whether failure to object at trial is an adequate and independent ground for finding a procedural default of a federal constitutional claim in Michigan. See, Bentley v. Bock, 239 F. Supp.2d 686, 693-95 (E.D.Mich. 2002)(Lawson, J.) (finding that the contemporaneous objection rule, while frequently followed by the Michigan appellate courts regarding federal constitutional claims, frequently is not, or is resolved in the context of an analysis of the merits of the constitutional claim at issue and, therefore, is not an adequate state ground independent of the constitutional claim and is not ""firmly established and regularly followed' . . . at least with respect to constitutional claims such as the one raised here by petitioner," for purposes of the habeas corpus procedural default doctrine.)
Here again, the merits of Petitioner's claim are simpler to resolve than the procedural default question.
The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack upon the constitutional validity of a state court conviction is greater than the showing required in a direct appeal. To warrant habeas relief because of incorrect jury instructions, a petitioner must show that the instructions, as a whole, were so infirm that they rendered the entire trial fundamentally unfair. Estelle v. McGuire, 502 U.S. 62, 72 (1991); Wood v. Marshall, 790 F.2d 548, 551-52 (6th Cir. 1986); Thomas v. Arn, 704 F.2d 865, 868-69 (6th Cir. 1983). The question in a habeas case is whether the allegedly improper instruction so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is undesirable, erroneous, or even "universally condemned"; furthermore, an omission or incomplete instruction is less likely to be prejudicial than a misstatement of the law. Henderson v. Kibbe, 431 U.S. 145, 154-155, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977); Scott v. Mitchell, 209 F.3d 854, 882 (6th Cir. 2000).
The challenged instruction or omission may not be judged in artificial isolation but must be considered in the context of the instructions as a whole and the trial court record. A habeas petitioner's burden of showing prejudice is especially heavy when a petitioner claims that a jury instruction was incomplete, because an omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law. Hardaway v. Withrow, 147 F. Supp.2d 697, 707 (E.D.Mich. 2001).
In this case, undisputed testimony placed Petitioner at the crime scene before the shootings and four eyewitnesses identified him as one of the shooters. There is no reasonable probability that, had an alibi instruction been given, the outcome of the trial would have been different. Petitioner's girlfriend, Seneatra Mayen, testified that she met Petitioner at his home at about 4:20 p.m. the day of the shooting, watched television with him and stayed at his house until about 5:30 or 5:37 p.m., at which time they left so Petitioner could walk her home. The shootings occurred at around 5:40 p.m. Ms. Mayen further testified that, while walking with Petitioner in the vicinity of the shootings, they heard shots and ran away from the crime scene together.
Upon review of the record and the Michigan Court of Appeals decision finding that Petitioner failed to show plain instructional error, this Court concludes that Petitioner has failed to show that he was denied a fundamentally fair trial by omission of the alibi instruction. Taylor v. Kentucky is distinguishable, because Taylor concerned omission of a presumption of innocence instruction, not the omission of an instruction regarding a particular defense which overwhelming evidence contradicted. This Court is confident that, had the jury found Ms. Mayen's exculpatory testimony credible, Petitioner would have been acquitted, despite not having the benefit of an alibi instruction. Therefore, the Court finds that the Michigan Court of Appeals' decision rejecting this claim is a reasonable result under the AEDPA and Petitioner's jury instruction claim does not entitle him to habeas relief.
IV. Order
Based upon the foregoing, that the petition for a writ of habeas corpus is DENIED and the case is DISMISSED WITH PREJUDICE.