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Full Opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RAYMONE JACKSON, #689206, 2:18-cv-11384
Petitioner, OPINION AND ORDER
DENYING THE PETITION
v. FOR A WRIT OF HABEAS
CORPUS, DENYING A
TONY TRIERWEILER,
CERTIFICATE OF
Respondent. APPEALABILITY, AND
DENYING LEAVE TO
PROCEED IN FORMA
PAUPERIS ON APPEAL
I. Introduction
This is a habeas case brought pursuant to 28 U.S.C. ' 2254.
Michigan prisoner Raymone Bernard Jackson (APetitioner@) was
convicted of first-degree murder, MICH. COMP. LAWS ' 750.316, torture,
MICH. COMP. LAWS ' 750.385, two counts of assault with intent to
commit murder, MICH. COMP. LAWS ' 750.83, assault with a dangerous
weapon, MICH. COMP. LAWS ' 750.82, felon in possession of a firearm,
MICH. COMP. LAWS ' 750.224f, and possession of a firearm during the
commission of a felony, MICH. COMP. LAWS ' 750.227b, following a jury
trial in the Wayne County Circuit Court. He was sentenced to life
imprisonment without parole on the first-degree murder conviction,
concurrent terms of 30 to 45 years imprisonment on the assault with
intent to commit murder convictions, a concurrent term of 3 to 6 years
imprisonment on the assault with a dangerous weapon conviction, a
concurrent term of 3 to 72 years imprisonment on the felon in
possession conviction, and a consecutive term of 2 years imprisonment
on the felony firearm conviction in 2014.
In his pleadings, Petitioner raises claims concerning the
sufficiency of the evidence, the denial of a separate jury motion, the
admission of his co-defendant=s statements, text messages, and a rap
song, and the failure to instruct the jury on involuntary manslaughter.
For the reasons stated, the Court denies the habeas petition, denies a
certificate of appealability, and denies leave to proceed in forma
pauperis on appeal.
II. Facts and Procedural History
Petitioner=s convictions arise from a retaliatory shooting that he
committed outside a Detroit residence on July 1, 2014 with
co-defendant Rapheal Daniel-Jordan Hearn. The shooting resulted in
the death of the two-year-old daughter of the intended target, Kenneth
French, as well as gunshot injuries to French and a twelve-year-old girl.
The Michigan Court of Appeals described the relevant facts, which are
presumed correct on habeas review, see 28 U.S.C. ' 2254(e)(1); Wagner
v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:
Defendants plotted revenge against [Kenneth] French and
his family for French's role in the shooting of Hearn three
2
months earlier at a motorcycle club. On July 1, 2014,
defendants located French at [Toni] Holt's house, where
French's two-year-old daughter Kamiya was playing outside
with Holt's 12ByearBold daughter Chelsea. French and Holt
were sitting on the front porch while the children played.
Defendants first drove past the house in a white vehicle and
then drove behind the house and stopped. Defendant
Jackson got out of the vehicle and, after approaching French
from the side of Holt's house, started shooting. Kamiya,
Chelsea, and French were shot. Jackson then returned to the
waiting vehicle and was driven away from the crime scene.
Kamiya died from a gunshot to the head. Chelsea and
French were hospitalized for multiple gunshot injuries.
People v. Jackson, No. 306952, 2016 WL 6127659, *1 (Mich. App.
Oct. 18, 2016).
Following his convictions and sentencing, Petitioner filed an
appeal of right with the Michigan Court of Appeals essentially raising
the same claims presented on habeas review. The court denied relief on
those claims and affirmed Petitioner=s convictions. Id. at *1-6.
Petitioner filed an application for leave to appeal with the Michigan
Supreme Court, which was denied in a standard order. People v.
Jackson, 500 Mich. 1058, 898 N.W.2d 586 (2017).
Petitioner thereafter filed his federal habeas petition. He raises
the following claims:
I. His Eighth Amendment constitutional right to be free
from cruel and unusual punishment was violated
where there was insufficient evidence to convict him of
3
torture.
II. He was denied a fair trial by the trial court=s denial of
a motion for separate trials when the co-defendant=s
statements were inculpatory toward him (Petitioner).
III. He was denied the right to a fair trial when the trial
court admitted evidence of co-defendant=s statements
and text messages and evidence that they listened to a
rap song called AHomicide.@
IV. The trial court violated his due process right to present
a defense by declining to instruct the jury on
manslaughter as a lesser offense.
Respondent filed an answer to the petition contending that it
should be denied.
III. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996
(AAEDPA@), codified at 28 U.S.C. ' 2241 et seq., sets forth the standard
of review that federal courts must use when considering habeas
petitions brought by prisoners challenging their state court convictions.
The AEDPA provides in relevant part:
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
4
(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) (1996).
AA state court=s decision is >contrary to= ... clearly established law
if it >applies a rule that contradicts the governing law set forth in
[Supreme Court cases]= or if it >confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court
and nevertheless arrives at a result different from [that] precedent.=@
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting
Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone,
535 U.S. 685, 694 (2002). A[T]he >unreasonable application= prong of
' 2254(d)(1) permits a federal habeas court to >grant the writ if the
state court identifies the correct governing legal principle from [the
Supreme] Court but unreasonably applies that principle to the facts of
petitioner=s case.@ Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting
Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However,
A[i]n order for a federal court find a state court=s application of
[Supreme Court] precedent >unreasonable,= the state court=s decision
must have been more than incorrect or erroneous. The state court=s
application must have been >objectively unreasonable.=@ Wiggins, 539
U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409.
The AAEDPA thus imposes a >highly deferential standard for
5
evaluating state-court rulings,= and >demands that state-court decisions
be given the benefit of the doubt.=@ Renico v. Lett, 559 U.S. 766, 773
(2010) (quoting Lindh, 521 U.S. at 333, n.7); Woodford v. Viscotti, 537
U.S. 19, 24 (2002) (per curiam).
A state court=s determination that a claim lacks merit Aprecludes
federal habeas relief so long as >fairminded jurists could disagree= on the
correctness of the state court=s decision.@ Harrington v. Richter, 562 U.S.
86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). The Supreme Court has emphasized Athat even a strong case
for relief does not mean the state court=s contrary conclusion was
unreasonable.@ Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
Pursuant to ' 2254(d), Aa habeas court must determine what arguments
or theories supported or ... could have supported, the state court=s
decision; and then it must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are inconsistent with
the holding in a prior decision@ of the Supreme Court. Id. Thus, in order
to obtain habeas relief in federal court, a state prisoner must show that
the state court=s rejection of a claim Awas so lacking in justification that
there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.@ Id.; see also White
v. Woodall, 572 U.S. 415, 419-20 (2014). Federal judges Aare required to
afford state courts due respect by overturning their decisions only when
6
there could be no reasonable dispute that they were wrong.@ Woods v.
Donald, 575 U.S. 312, 316 (2015). A habeas petitioner cannot prevail as
long as it is within the Arealm of possibility@ that fairminded jurists
could find the state court decision to be reasonable. Woods v. Etherton, _
U.S. _, 136 S. Ct. 1149, 1152 (2016).
Section 2254(d)(1) limits a federal habeas court=s review to a
determination of whether the state court=s decision comports with
clearly established federal law as determined by the Supreme Court at
the time the state court renders its decision. Williams, 529 U.S. at 412;
see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that
the Supreme Court Ahas held on numerous occasions that it is not >an
unreasonable application of clearly established Federal law= for a state
court to decline to apply a specific legal rule that has not been squarely
established by this Court@) (quoting Wright v. Van Patten, 552 U.S.
120, 125-26 (2008) (per curiam)); Lockyer v. Andrade, 538 U.S. 63,
71-72 (2003). Section 2254(d) Adoes not require a state court to give
reasons before its decision can be deemed to have been >adjudicated on
the merits.=@ Harrington, 562 U.S. at 100. Furthermore, it Adoes not
require citation of [Supreme Court] casesBindeed, it does not even
require awareness of [Supreme Court] cases, so long as neither the
reasoning nor the result of the state-court decision contradicts them.@
Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16.
7
The requirements of clearly established law are to be determined
solely by Supreme Court precedent. Thus, Acircuit precedent does not
constitute >clearly established Federal law as determined by the
Supreme Court=@ and it cannot provide the basis for federal habeas
relief. Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per curiam); see
also Lopez v. Smith, 574 U.S. 1, 2 (2014) (per curiam). The decisions of
lower federal courts, however, may be useful in assessing the
reasonableness of the state court=s resolution of an issue. Stewart v.
Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox,
340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 354,
359 (E.D. Mich. 2002).
A state court=s factual determinations are presumed correct on
federal habeas review. See 28 U.S.C. ' 2254(e)(1). A habeas petitioner
may rebut this presumption only with clear and convincing evidence.
Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Moreover,
habeas review is Alimited to the record that was before the state court.@
Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
IV. Discussion
A. Sufficiency of the Evidence Claim
Petitioner first asserts that he is entitled to habeas relief because
the prosecution failed to present sufficient evidence to support his
conviction for torture. Petitioner frames this issue in terms of the
8
Eighth Amendment on habeas review, but did not do so in the state
courts. Respondent contends that this claim is unexhausted to the
extent that Petitioner relies upon the Eighth Amendment and that it
otherwise lacks merit.
Here, Petitioner has not exhausted an Eighth Amendment-based
sufficiency of the evidence claim in the state courts. Nonetheless,
Petitioner is not entitled to relief on any such claim as he fails to cite
authority which applies the Eighth Amendment to a sufficiency of the
evidence claim. The Eighth Amendment addresses the punishment for
a crime, not the validity of a conviction underlying that punishment.
See, e.g., Roper v. Simmons, 543 U.S. 551, 560 (2005).
The Due Process Clause Aprotects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he [or she] is charged.@ In re Winship,
397 U.S. 358, 364 (1970). 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. Jackson v. Virginia, 443 U.S. 307,
318-19 (1979) (internal citation and footnote omitted). The sufficiency
of the evidence standard Amust be applied with explicit reference to the
substantive elements of the criminal offense as defined by state law,@
Jackson, 443 U.S. at 324 n.16, and through the framework of 28 U.S.C.
9
' 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Thus,
under the AEDPA, challenges to the sufficiency of the evidence Amust
survive two layers of deference to groups who might view facts
differently@ than a reviewing court on habeas review B the factfinder at
trial and the state court on appellate review B as long as those
determinations are reasonable. Brown v. Konteh, 567 F.3d 191, 205
(6th Cir. 2009).
Additionally, Ait is the responsibility of the jury B not the court B
to decide what conclusions should be drawn from the evidence
admitted at trial.@ Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam).
A federal habeas court may not re-weigh the evidence or re-determine
the credibility of the witnesses. Marshall v. Lonberger, 459 U.S. 422,
434 (1983); Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003).
Rather, a federal habeas court must defer to the factfinder at trial for
its assessment of the credibility of witnesses. Id.
The Michigan Court of Appeals considered the sufficiency of the
evidence claim on direct appeal, applied the Jackson standard, and
denied relief. The court explained:
A challenge to the sufficiency of the evidence in a jury trial
is reviewed de novo, by considering the evidence in the
light most favorable to the prosecution to determine
whether the trier of fact could have found that the essential
elements of the crime were proved beyond a reasonable
doubt. People v. Harverson, 291 Mich App 171, 175; 804
10
NW2d 757 (2010). AAll conflicts with regard to the evidence
must be resolved in favor of the prosecution.@ People v.
Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005).
MCL 750.85 provides:
(1) A person who, with the intent to cause cruel or
extreme physical or mental pain and suffering,
inflicts great bodily injury or severe mental pain or
suffering upon another person within his or her
custody or physical control commits torture and is
guilty of a felony punishable by imprisonment for life
or any term of years.
(2) As used in this section:
(a) ACruel@ means brutal, inhuman, sadistic, or
that which torments.
(b) ACustody or physical control@ means the
forcible restriction of a person's movements or
forcible confinement of the person so as to
interfere with that person's liberty, without that
person's consent or without lawful authority.
Thus, the elements of torture are (1) the intent to cause
cruel or extreme physical or mental pain and suffering, (2)
the infliction of great bodily injury or severe mental pain or
suffering, and (3) the victim is within the person's custody
or physical control. Jackson only argues on appeal that the
prosecution failed to establish that he had French in his
custody or physical control.
Again, from French's testimony, the text messages, and the
rap song, the jury could infer that Jackson and Hearn
intended to retaliate against French by targeting his
11
family, specifically forcing him to watch his young daughter
suffer. The facts demonstrate that French was sitting on
the porch while Kamiya and other neighborhood children
played in front of the house. When he saw Jackson, French
started to walk down the porch steps to greet him. Then,
according to French and other witnesses, Jackson shot him.
Holt testified that the shooting prevented French from
Astray[ing] too far@ and he ultimately retreated back to the
porch. A bystander also testified that French was Agetting
shot at@ so he could not get off the porch. The jury could
conclude that the first shot forcibly restrained French to
the porch area while, and so that, Jackson could then shoot
and kill Kamiya without French's interference.
In his brief on appeal, Jackson focuses on the fact that the
shooting occurred Aquickly,@ and thereby argues that he
could not obtain the requisite custody or physical control.
But the plain language of MCL 750.85 places no temporal
limitations on this element. Given this Court's standard of
review requiring facts to be viewed in a light most
favorable to the prosecution, we conclude that there was
sufficient evidence that French was in Jackson's custody or
physical control to support his torture conviction.
Jackson, 2016 WL 6127659 at *4-5.
The state court=s decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts.
The evidence and testimony at trial, if believed, established the three
elements of torture under Michigan law. French=s testimony and the
messages between Petitioner and his co-defendant show that they
planned to retaliate against French by targeting his family and
12
establish the intent to cause cruel or extreme physical or mental pain
and suffering. The shooting and resulting death and injuries to the
victims establish the infliction of great bodily injury or severe mental
pain or suffering. And shooting at French to trap him on the porch
establishes that French was within Petitioner=s custody or physical
control. The prosecution presented sufficient evidence for a reasonable
jury to conclude that Petitioner engaged in torture.
To the extent that Petitioner challenges the Michigan Court of
Appeals= interpretation of state law on torture, i.e., by arguing a time
element, he is not entitled to habeas relief. It is well-settled that Aa
state court=s interpretation of state law, including one announced on
direct appeal of the challenged conviction, binds a federal court sitting
on habeas review. Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Sanford
v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). State courts are the final
arbiters of state law and federal courts will not intervene in such
matters. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Oviedo v. Jago, 809
F.2d 326, 328 (6th Cir. 1987).
Additionally, to the extent that Petitioner challenges the jury=s
evaluation of the testimony and evidence presented at trial, he is
similarly not entitled to habeas relief. It is the job of the fact-finder at
trial, not a federal habeas court, to resolve such evidentiary conflicts.
Jackson, 443 U.S. at 326; Martin v. Mitchell, 280 F.3d 594, 618 (6th
13
Cir. 2002); see also Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir.
1983) (AA federal habeas corpus court faced with a record of historical
facts that supports conflicting inferences must presume B even if it does
not affirmatively appear in the record B that the trier of fact resolved
any such conflicts in favor of the prosecution, and must defer to that
resolution.@). The jury=s verdict, and the Michigan Court of Appeals=
decision affirming that verdict, were reasonable. Habeas relief is not
warranted on this claim.
B. Separate Trial/Jury Claim
Petitioner also asserts that he is entitled to habeas relief because
the trial court denied his request for a separate trial or separate jury
from that of his co-defendant. Respondent contends that this claim
lacks merit.
On federal habeas review, the issue of severance is governed by
state law. See Hutchison v. Bell, 303 F.3d 720, 731 (6th Cir. 2002).
Further, the United States Court of Appeals for the Sixth Circuit has
held that a severance claim cannot provide a basis for habeas relief
because the United States Supreme Court has never clearly
established a federal constitutional right to severance. See Phillips v.
Million, 394 F.3d 395, 398 (6th Cir. 2004). Nevertheless, the Court
acknowledges that a state law error may warrant habeas relief if it
deprives a criminal defendant of the fundamental due process right to
14
a fair trial. See, e.g., Wynne v. Renico, 606 F.3d 867, 871 (6th Cir. 2010).
Courts favor the joinder of defendants charged with the same
crime because it is more efficient than conducting separate trials.
Zafiro v. United States, 506 U.S. 534, 537 (1993); see also Richardson v.
Marsh, 481 U.S. 200, 209 (1987) (stating that joint trials Aplay a vital
role in the criminal justice system@). When defendants are properly
joined, courts should grant a severance Aonly if there is a serious risk
that a joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment about
guilt or innocence.@ Zafiro, 506 U.S. at 539. The mere fact that there is
hostility among the defendants or that one defendant may try to save
himself at the expense of another is not a sufficient ground to require
separate trials. United States v. Pierce, 62 F.3d 818, 830-31 (6th Cir.
1995); Ringstaff v. Mintzes, 539 F. Supp. 1124, 1131 (E.D. Mich. 1982).
AAntagonistic defenses arise when one person's claim of innocence is
predicated solely on the guilt of a co-defendant.@ United States v.
Harris, 9 F.3d 493, 501 (6th Cir. 1993). AMutually antagonistic
defenses are not prejudicial per se.@ Zafiro, 506 U.S. at 538.
Furthermore, when joint trials are conducted, Ajurors are
presumed to follow the instructions of the court and to give each
defendant=s case separate consideration.@ Stanford v. Parker, 266 F.3d
442, 459 (6th Cir. 2001); see also Zafiro, 506 U.S. at 539 (A[L]imiting
15
instructions often will suffice to cure any risk of prejudice.@). The mere
potential for confusion alone is not enough to overcome Asociety=s
interest in the speedy and efficient resolution of criminal trials.@
Stanford, 266 F.3d at 459.
The Michigan Court of Appeals considered this claim on direct
appeal and denied relief, finding that a joint trial was appropriate and
there was no need for separate trials or separate juries. The court
explained in relevant part:
AThere is a strong policy favoring joint trials in the interest
of justice, judicial economy, and administration, and a
defendant does not have an absolute right to a separate
trial.@ People v. Etheridge, 196 Mich App 43, 52; 492 NW2d
490 (1992). A trial court must sever the trial of
codefendants on related offenses only when the defendant
shows that Aseverance is necessary to avoid prejudice to
substantial rights of the defendant.@ MCR 6.121(C). See
also Etheridge, 196 Mich App at 53. To show that severance
is necessary, a defendant must provide the court with a
supporting affidavit, or make an offer of proof, Athat clearly,
affirmatively, and fully demonstrates that his substantial
rights will be prejudiced and that severance is the
necessary means of rectifying the potential prejudice.@
People v. Hana, 447 Mich 325, 346; 524 NW2d 682 (1994).
Such a showing is not made by codefendants' plans to
present inconsistent defenses. Id. at 349. The Supreme
Court in Hana further explained:
AIt is natural that defendants accused of the same
crime and tried together will attempt to escape
conviction by pointing the finger at each other.
16
Whenever this occurs the co-defendants are, to some
extent, forced to defend against their co-defendant as
well as the government. This situation results in the
sort of compelling prejudice requiring reversal,
however, only when the competing defenses are so
antagonistic at their cores that both cannot be
believed. Consequently, we hold that a defendant
seeking severance based on antagonistic defenses
must demonstrate that his or her defense is so
antagonistic to the codefendants that the defenses are
mutually exclusive. Moreover, defenses are mutually
exclusive within the meaning of this rule if the jury,
in order to believe the core of the evidence offered on
behalf of one defendant, must disbelieve the core of
the evidence offered on behalf of the co-defendant.@
[Hana, 447 Mich at 349B350, quoting State v.
Kinkade, 140 Ariz 91, 93; 680 P2d 801 (1984).]
AThe use of separate juries is a partial form of severance to
be evaluated under the standard, set forth above,
applicable to motions for separate trials.@ Id. at 331.
Nothing in the record on appeal demonstrates the prejudice
required by MCR 6.121(C). Jackson argued that he was not
present during the shooting but, even if he was present, he
lacked the necessary intent to be convicted of first-degree
murder. Hearn argued that he was not present during the
shooting but, even if he was present, he did not aid or abet
the crimes. Thus, the defenses were not so antagonistic
that they could not both be believed. See Hana, 447 Mich.
at 349-350. Rather, in some ways, they were
complimentary. Both defendants argued that the
prosecutor's theory that they plotted for revenge against
French was far-fetched and undocumented. The trial court
did not abuse its discretion by denying severance under
MCR 6.121(C).
17
Under MCR 6.121(D), a trial court nevertheless has the
discretion to grant a request for severance Aon the ground
that severance is appropriate to promote fairness to the
parties and a fair determination of the guilt or innocence of
one or more of the defendants.@ When determining if
severance is appropriate, a trial court may consider factors
like Athe potential for confusion or prejudice stemming from
either the number of defendants or the complexity or
nature of the evidence@ and Athe convenience of witnesses.@
MCR 6.121(D).
Jackson argues that, even if severance was not mandated,
it would have promoted fairness because Hearn's
statements were admitted against Jackson to establish
premeditation. Jackson argues that, if the cases had been
severed, there would have been a lack of evidence of
premeditation necessary to convict. But as we discuss later
in this opinion, Hearn's statements were properly admitted
against Jackson. Because the same evidence was
admissible against both defendants, Jackson cannot
establish that severance would have resolved any confusion
resulting from the nature of the evidence. Accordingly, we
also conclude that the trial court did not abuse its
discretion by denying severance under MCR 6.121(D).
Jackson, 2016 WL 6127659 at *1-2.
The state court=s decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts.
First, the defendants did not present mutually exclusive or
antagonistic defenses. Both defendants denied committing the crime,
and Petitioner argued that he did not have the requisite intent for
18
first-degree murder and co-defendant Hearn argued that he was
merely present and did not aid and abet the crime. Second, as
discussed infra, co-defendant Hearn=s out-of-court statements to
Petitioner were admissible against Petitioner and did not violate his
confrontation rights B whether they were tried jointly, separately, or in
one trial with two juries. Consequently, Petitioner fails to show that
his due process rights were violated by a joint trial. Habeas relief is not
warranted on this claim.
C. Confrontation Claim
Petitioner next asserts that he is entitled to habeas relief because
the trial court violated his confrontation rights by admitting evidence
of text messages that non-testifying co-defendant Hearn sent to him in
order to prove premeditation.1 Respondent contends that this claim
lacks merit.
The Sixth Amendment guarantees the right of an accused in a
criminal prosecution Ato be confronted with the witnesses against him.@
U.S. Const. amend. VI. The Confrontation Clause provides criminal
1 In his habeas petition, Petitioner did not cite to portions of the trial
transcript that discussed the admission of the prison letters, but only
discusses the text messages. ECF No. 1, PageID.13. The State therefore
argues that Petitioner has abandoned his claims about the prison
letters. ECF No. 8, PageID.63. But the Court of Appeals did address
whether the admission of the texts as well as the letter(s) implicated
the Confrontation Clause, and this Court will do so as well.
19
defendants the right to confront and cross-examine witnesses against
them. Davis v. Alaska, 415 U.S. 308, 315 (1973). The right to confront
adverse witnesses generally prevents a court from admitting an
out-of-court statement against a criminal defendant. California v.
Green, 399 U.S. 149, 155-58 (1970). The Sixth Amendment protections,
however, are not so broad as to exclude the admission of all hearsay
statements against a defendant despite his or her inability to confront
the declarant at trial. Maryland v. Craig, 497 U.S. 836, 847-48 (1990).
The constitutionality of admitting a hearsay statement depends on
whether the statement is testimonial or non-testimonial in nature and
on the circumstances surrounding the making of the statement.
In Bruton v. United States, 391 U.S. 123, 126 (1968), the Supreme
Court ruled that the admission at a joint trial of a non-testifying
co-defendant=s confession to police which implicates the defendant
violates the Confrontation Clause even if the trial court instructs the
jury not to consider the incriminating statements in deciding the
defendant=s guilt.
In Crawford v. Washington, 541 U.S. 36, 54 (2004), the Supreme
Court held that the testimonial statement of a witness who does not
appear at trial is inadmissible unless the witness is unavailable to
testify and the defendant has had a prior opportunity to cross-examine
the witness. Testimonial statements include preliminary hearing
20
testimony, grand jury testimony, prior trial testimony, and statements
made during police interrogations. Testimonial statements do not
include remarks made to family members or acquaintances, business
records, or statements made in pendency and furtherance of a
conspiracy. Id. at 51-52, 56; United States v. Martinez, 430 F.3d 317,
328-29 (6th Cir. 2005); see also United States v. Stover, 474 F.3d 904,
912-13 (6th Cir. 2007). Additionally, the Confrontation Clause is not
implicated, and need not be considered, when non-testimonial hearsay
is at issue. Davis v. Washington, 547 U.S. 813, 823-24 (2006); see also
Whorton v. Bockting, 549 U.S. 406, 420 (2007) (noting that the
Confrontation Clause Ahas no application to such statements and
therefore permits their admission even if they lack indicia of
reliability@); Doan v. Carter, 548 U.S. 449, 458 (6th Cir. 2008).
The Michigan Court of Appeals considered this claim on direct
appeal, applied the foregoing standards, and denied relief. The court
explained in relevant part:
AThe Confrontation Clause of the Sixth Amendment bars
the admission of >testimonial= statements of a witness who
did not appear at trial, unless the witness was unavailable
to testify and the defendant had a prior opportunity to
cross-examine the witness.@ People v. Walker (On Remand),
273 Mich. App 56, 60-61; 728 NW2d 902 (2006). AThe right
of confrontation insures that the witness testifies under
oath at trial, is available for cross-examination, and allows
the jury to observe the demeanor of the witnesses.@ People
21
v. Watson, 245 Mich. App 572, 584; 629 NW2d 411 (2001)
(quotation marks and citation omitted). A statement Ais
testimonial if the declarant should reasonably have
expected the statement to be used in a prosecutorial
manner and if the statement was made under
circumstances that would cause an objective witness
reasonably to believe that the statement would be available
for use at a later trial.@ People v. Dendel (On Second
Remand ), 289 Mich. App 445, 453; 797 NW2d 645 (2010).
On the other hand, statements are nontestimonial when
they are Amade informally to an acquaintance, not during a
police interrogation or other formal proceeding...or under
circumstances indicating that their >primary purpose= was
to >establish or prove past events potentially relevant to
later criminal prosecution.=@ People v. Taylor, 482 Mich.
368, 378; 759 NW2d 361 (2008), citing Crawford v.
Washington, 541 U.S. 36, 68; 124 S Ct 1354; 158 LEd2d 177
(2004), and quoting Davis v. Washington, 547 U.S. 813,
822; 126 S Ct 2266; 165 LEd2d 224 (2006).
***
Here, defendants were longtime friends. After Hearn was
shot in April 2014, they exchanged text messages about the
incident and plotted retaliation. There is no indication that
the purpose of these text messages, let alone the primary
purpose, was to A>establish or provide past events
potentially relevant to later criminal prosecution.=@ Id. at
378, quoting Davis, 547 U.S. at 822. Similarly, the letters
exchanged between defendants in jail were informal and
passed in secret, in violation of jail rules requiring inmates
to communicate through the United States mail. None of
defendants' communications were made during a police
interrogation or formal proceeding. Therefore, the
Confrontation Clause was not implicated.
Jackson, 2016 WL 6127659 at *2-3 (discussion of Taylor omitted).
22
The state court=s decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts.
Co-defendant Hearn=s text messages and prison letters were relevant
to the issues of motive and intent, were made to Petitioner informally,
and were non-testimonial. Consequently, the admission of those
statements did not violate Petitioner=s constitutional rights, see, e.g.,
United States v. Boyd, 640 F.3d 657, 665 (6th Cir. 2011) (A[S]tatements
made to friends and acquaintances are non-testimonial.@); United
States v. Johnson, 581 F.3d 320, 326 (6th Cir. 2009) (ABecause it is
premised on the Confrontation Clause, the Bruton rule, like the
Confrontation Clause itself, does not apply to nontestimonial
statements.@), nor render his trial fundamentally unfair. Habeas relief
is not warranted on this claim.
D. Evidentiary Claim
Petitioner also asserts that he is entitled to habeas relief because
the trial court erred in admitting evidence that he and co-defendant
Hearn discussed a rap song titled AHomicide.@ Respondent contends
that this claim lacks merit.
Alleged trial court errors in the application of state evidentiary
law are generally not cognizable as grounds for federal habeas relief.
See Estelle v. McGuire, 502 U.S. 62, 67B68 (1991) (Ait is not the province
of a federal habeas court to reexamine state-court determinations on
23
state-law questions@); Serra v. Michigan Dep t of Corr., 4 F.3d 1348,
1354 (6th Cir. 1993). ATrial court errors in state procedure or
evidentiary law do not rise to the level of federal constitutional claims
warranting relief in a habeas action, unless the error renders the
proceeding so fundamentally unfair as to deprive the petitioner of due
process under the Fourteenth Amendment.@ McAdoo v. Elo, 365 F.3d
487, 494 (6th Cir. 2004) (quoting McGuire, 502 U.S. at 69-70); see also
Wynne v. Renico, 606 F.3d 867, 871 (6th Cir. 2010) (citing Bey v.
Bagley, 500 F.3d 514, 519-20 (6th Cir. 2007)); Bugh v. Mitchell, 329
F.3d 496, 512 (6th Cir. 2003).
Petitioner raised this claim on direct appeal and the Michigan
Court of Appeals denied relief finding that the trial court did not
violate state evidentiary rules nor abuse its discretion in admitting the
evidence. The court explained:
Pursuant to MRE 401, evidence is relevant when it has a
tendency to make a material fact more or less probable.
AMateriality, however, does not mean that the evidence
must be directed at an element of a crime or an applicable
defense. A material fact is one that is >in issue= in the sense
that it is within the range of litigated matters in
controversy.@ People v. Sabin (After Remand), 463 Mich. 43,
57; 614 NW2d 888 (2000) (quotation marks and citation
omitted). The prosecutor's theory of the case was that
Hearn and Jackson plotted revenge against French and his
family for his role in Hearn's shooting in April 2014. The
facts that defendants listened to the song and
24
communicated about the lyricsCAkill up everything in his
family@Cas they planned to Asmoke dem n* * * * *@ and
then later shot French, his two-year-old daughter, Kamiya,
and his 12ByearBold cousin, Chelsea, tended to make their
plot for revenge more probable.
Jackson claims that the rap song nevertheless should have
been excluded because it was more prejudicial than
probative under MRE 403. MRE 403 provides: AAlthough
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.@ AAll relevant
evidence is prejudicial; it is only unfairly prejudicial
evidence that should be excluded.@ People v. McGhee, 268
Mich. App 600, 613-614; 709 NW2d 595 (2005).
The Aunfair prejudice@ language of MRE 403 A>refers to the
tendency of the proposed evidence to adversely affect the
objecting party's position by injecting considerations
extraneous to the merits of the lawsuit, e.g., the jury's bias,
sympathy, anger, or shock.=@ Moreover, admission of
A[e]vidence is unfairly prejudicial when...[the danger exists]
that marginally probative evidence will be given undue or
preemptive weight by the jury.@ [People v. Cameron, 291
Mich App 599, 611; 806 NW2d 371 (2011) (citations
omitted).]
Jackson claims that defendants' discussion of the song, in
April 2014, was too far removed from the shooting in July
2014. But the jury could infer that Hearn and Jackson were
planning their revenge for those several months and only
waited to commit the crimes until Jackson's tether was
removed. Jackson also claims that the lyrics and the song's
title were unfairly prejudicial, but they were offered to
25
show the parallel between the song and defendants' plot
and actions. As the trial court instructed, the jury was
required to judge the evidence by setting aside biases and
was free to reject the prosecutor's theory. We conclude that
Jackson has not established that the trial court abused its
discretion by admitting the challenged evidence.
Jackson, 2016 WL 6127659 at *3-4 (footnote omitted).
The state court=s decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts.
First, Petitioner is not entitled to relief on any claim that the Michigan
Court of Appeals erred in admitting the evidence under Michigan law.
As discussed, state courts are the final arbiters of state law and federal
courts will not intervene in such matters. Lewis, 497 U.S. at 780;
Oviedo, 809 F.2d at 328; see also Bradshaw, 546 U.S. at 76; Sanford,
288 F.3d at 860. Habeas relief does not lie for perceived errors of state
law. Estelle, 502 U.S. at 67-68.
Second, Petitioner fails to establish that the admission of the
evidence violated his federal constitutional rights. Although reasonable
jurists may disagree over balancing probative value against the risk of
unfair prejudice of a particular piece of evidence, the trial judge found
that the rap song discussed by Petitioner and co-defendant Hearn was
relevant and admissible under state law and provided some evidence of
Petitioner=s retaliatory motive, intent, and method for committing the
shooting. But here, it bears noting that the time gap between when the
26
declarants listened to and discussed the lyrics of the rap song and
when the declarants engaged in the criminal conduct weakens its
probative value. Moreover, evidence that Defendant listened to a rap
song titled “Homicide,” containing lyrics describing an act similar to
the one with which Defendant was charged, presents a higher risk of
unfair prejudice because it requires the drawing of a link between the
Defendant’s intent and planning process in committing a specific crime
and his appreciation for gangster-glorifying music. Simply to enjoy
such music could reasonably be considered condemnable by the jury.
Even an instruction to the jury, regardless of its careful wording, may
not sufficiently mitigate a juror’s “bias, sympathy, anger, or shock”
here. Had the trial proceeded before this Court, admission of such
evidence would have given this Court greater pause, treading
dangerously close as it does to impermissible character evidence.
Nevertheless, the burden on a habeas petitioner is quite high.
And federal courts sitting in habeas review are not to substitute their
judgments for those of a state jurist’s if within the realm of disputable
reason, nor can they review a state court’s determinations on state
evidentiary law. And here, the state court found the lyrics and the
Defendants’ discussion of it to be more probative than prejudicial.
Considering such heightened standards and limited scope of review,
Petitioner has not established that the admission of the evidence was
27
erroneous or, more importantly for purposes of habeas review, that it
rendered his trial fundamentally unfair. Habeas relief is not warranted
on this claim.
D. Jury Instruction Claim
Lastly, Petitioner asserts that he is entitled to habeas relief
because the trial court failed to instruct the jury on involuntary
manslaughter as a lesser offense of murder. Respondent contends that
this claim lacks merit.
In order for habeas relief to be warranted on the basis of incorrect
jury instructions, a petitioner must show more than the instructions
are undesirable, erroneous or universally condemned. Rather, taken as
a whole, they must be so infirm that they rendered the entire trial
fundamentally unfair. Estelle, 502 U.S. at 72; Henderson v. Kibbe, 431
U.S. 145, 154 (1977). If an instruction is ambiguous and not necessarily
erroneous, it violates the Constitution only if there is a reasonable
likelihood that the jury applied the instruction improperly. Binder v.
Stegall, 198 F.3d 177, 179 (6th Cir. 1999). A jury instruction is not to
be judged in artificial isolation, but must be considered in the context
of the instructions as a whole and the trial record. Jones v. United
States, 527 U.S. 373, 391 (1999); Grant v. Rivers, 920 F. Supp. 769, 784
(E.D. Mich. 1996). The failure to give an instruction that is supported
by the evidence does not automatically justify habeas relief B the
28
failure to instruct must have rendered the trial fundamentally unfair.
Cupp v. Naughten, 414 U.S. 141, 147 (1973); Daniels v. Lafler, 501 F.3d
735, 741 (6th Cir. 2007). AAn omission, or an incomplete instruction, is
less likely to be prejudicial than a misstatement of the law.@
Henderson, 431 U.S. at 155. State law instructional errors rarely form
the basis for federal habeas relief. Estelle, 502 U.S. at 71-72.
The Michigan Court of Appeals considered this claim on direct
appeal and denied relief finding that the instruction was not
warranted. The court explained:
In a criminal trial, the instructions given to a jury Amust
include all elements of the charged offenses and any
material issues, defenses, and theories if supported by the
evidence.@ McGhee, 268 Mich. App at 606. A jury
instruction may be given for a necessarily included lesser
offense, but not for a cognate lesser included offense. People
v. Reese, 466 Mich. 440, 446; 647 NW2d 498 (2002); People
v. Heft, 299 Mich. App 69, 74; 829 NW2d 266 (2012). AA
necessarily included lesser offense is an offense in which all
its elements are included in the elements of the greater
offense such that it would be impossible to commit the
greater offense without first having committed the lesser
offense.@ People v. Apgar, 264 Mich. App 321, 326; 690
NW2d 312 (2004). A[A] requested instruction on a
necessarily included lesser offense is proper if the charged
greater offense requires the jury to find a disputed factual
element that is not part of the lesser included offense and a
rational view of the evidence would support it.@ People v.
Cornell, 466 Mich. 335, 357; 646 NW2d 127 (2002). A
rational view of the evidence supports an instruction on a
29
necessarily included lesser offense when the differing
element or elements are Asufficiently in dispute so that the
jury may consistently find the defendant innocent of the
greater and guilty of the lesser included offense.@ Id. at 352
(citations omitted).
A. COMMONBLAW INVOLUNTARY MANSLAUGHTER
***
Common-law A[i]nvoluntary manslaughter is the
unintentional killing of another, without malice, during the
commission of an unlawful act not amounting to a felony
and not naturally tending to cause great bodily harm; or
during the commission of some lawful act, negligently
performed; or in the negligent omission to perform a legal
duty.@ People v. Mendoza, 468 Mich. 527, 536; 664 NW2d
685 (2003). AThe kind of negligence required for
manslaughter is something more than ordinary or simple
negligence, however, and is often described as >criminal
negligence= or >gross negligence=[.]@ People v. Herron, 464
Mich 593, 605; 628 NW2d 528 (2001) (citation omitted).
Common-law involuntary manslaughter is a necessarily
included lesser offense of murder. Mendoza, 468 Mich. at
540-541. Consequently, if a defendant is charged with
murder, an instruction for involuntary manslaughter must
be given if supported by a rational view of the evidence. Id.
at 541.
Here, a rational view of the evidence did not support a
common-law involuntary manslaughter instruction.
Jackson argues that he did not intend to shoot Kamiya. But
even if she was a victim of transferred intent, as he states
in his brief on appeal, he offers no factual support for the
remaining elements of this type of manslaughter. To the
contrary, shooting at French with the intent to commit
murder was a felony and firing a barrage of gunshots in a
30
crowded area would naturally tend to cause great bodily
harm. Moreover, Jackson does not claim that he was
negligently performing a lawful act or negligently failed to
perform a legal duty. Therefore, the trial court did not
plainly err by failing to provide an instruction on
common-law involuntary manslaughter.
B. STATUTORY INVOLUNTARY MANSLAUGHTER
The elements of statutory involuntary manslaughter are as
follows: (1) a death, (2) the death was caused by an act of
the defendant, (3) the death resulted from the discharge of
a firearm, (4) at the time of the discharge, the defendant
was intentionally pointing the firearm at the victim, and
(5) the defendant did not have lawful justification or excuse
for causing the death. [People v. Smith, 478 Mich. 64, 70;
731 NW2d 411 (2007).]
As the trial court found, statutory involuntary
manslaughter is a cognate lesser offense of murder. Id. at
74; People v. Heflin, 434 Mich. 482, 497; 456 NW2d 10
(1990). Therefore, an instruction on that offense was not
permissible and the trial court properly denied the request.
Jackson, 2016 WL 6127659 at *4-5.
The state court=s decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts.
The Supreme Court has declined to determine whether due process
requires jury instructions on lesser included offenses in non-capital
cases. Beck v. Alabama, 447 U.S. 625, 638 n.14 (1980). In Hopper v.
Evans, 456 U.S. 605, 611 (1982), the Supreme Court ruled that a
31
capital defendant is entitled to a lesser included offense instruction
only when there is evidence to support it. The Supreme Court has since
held that state courts are not constitutionally required to instruct
capital case juries on crimes which are not lesser included offenses of
the charged crime. Hopkins v. Reeves, 524 U.S. 88, 90-91 (1998). The
Sixth Circuit has interpreted Beck to mean that Athe Constitution does
not require a lesser-included offense instruction in non-capital cases.@
Campbell v. Coyle, 260 F.3d 531, 541 (6th Cir.2001) (citing Bagby v.
Sowders, 894 F.2d 792, 795-97 (6th Cir.1990) (en banc)); see also Scott
v. Elo, 302 F.3d 598, 606 (6th Cir. 2002); Adams v. Smith, 280 F. Supp.
2d 704, 717 (E.D. Mich. 2003). The Sixth Circuit has also confirmed
that first-degree murder is a non-capital offense in Michigan. Scott, 302
F.3d at 606; see also Tegeler v. Renico, 253 F. App=x 521, 524-25 (6th
Cir. 2007) (due process did not require jury instruction on
lesser-included offense of voluntary manslaughter in first-degree
premeditated murder case where petitioner received a non-parolable
life sentence). Consequently, an involuntary manslaughter instruction
was not constitutionally required. Petitioner thus fails to state a claim
upon which habeas relief may be granted as to this issue.
Moreover, even if Petitioner states a cognizable claim, he is not
entitled to habeas relief. As explained by the Michigan Court of
Appeals, under common law, an instruction on involuntary
32
manslaughter was not required because it was not supported by the
evidence presented at trial which showed that Petitioner went to the
residence where the shooting occurred with the intent to retaliate
against French, that he was armed, and that he fired multiple
gunshots at the people outside the residence. Under statutory law, an
instruction on involuntary manslaughter was not required because it is
a cognate lesser offense of murder. Moreover, the trial court accurately
instructed the jury about the elements of the charged offenses, the
burden of proof, and other relevant matters at trial. Petitioner fails to
establish that the jury instructions, taken as a whole, rendered his
trial fundamentally unfair. Habeas relief is not warranted on this
claim.
V. Conclusion
For the reasons stated, the Court concludes that Petitioner is not
entitled to federal habeas relief on his claims. Accordingly, the Court
DENIES and DISMISSES WITH PREJUDICE the petition for a
writ of habeas corpus.
Before Petitioner may appeal this decision, a certificate of
appealability must issue. See 28 U.S.C. ' 2253(c)(1)(a); FED. R. APP. P.
22(b). A certificate of appealability may issue only if the petitioner
makes Aa substantial showing of the denial of a constitutional right.@ 28
U.S.C. ' 2253(c)(2). When a court denies habeas relief on the merits,
33
the substantial showing threshold is met if the petitioner demonstrates
that reasonable jurists would find the court=s assessment of the claims
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). AA
petitioner satisfies this standard by demonstrating that...jurists could
conclude the issues presented are adequate to deserve encouragement
to proceed further.@ Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Petitioner makes no such showing. Accordingly, the Court DENIES a
certificate of appealability.
Lastly, the Court concludes that an appeal from this decision
cannot be taken in good faith. See FED. R. APP. P. 24(a). Accordingly,
the Court DENIES leave to proceed in forma pauperis on appeal. This
case is CLOSED.
IT IS SO ORDERED.
Dated: January 29, 2021 s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
34 Case Information
- Court
- E.D. Mich.
- Decision Date
- January 29, 2021
- Status
- Precedential