UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION. Plaintiff, Case Number BC v. Honorable David M.

Transcription

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION CHRISTOPHER PEREZ, Plaintiff, Case Number BC v. Honorable David M. Lawson KURT JONES, Defendant. / OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS Petitioner Christopher Perez, an inmate at the Carson City Correctional Facility in Carson City, Michigan, filed pro se this petition for the writ of habeas corpus pursuant to 28 U.S.C alleging that he is in the custody of the Michigan Department of Corrections in violation of his federal constitutional rights. The petitioner contends that his convictions of five counts of firstdegree criminal sexual conduct, contrary to Michigan Compiled Laws b(1)(a), was illegally procured by the State through violations of the Confrontation Clause, Michigan evidentiary rules, and prosecutorial misconduct. The Court finds that no violation of the petitioner s federal rights occurred and will deny the petition. I. The petitioner was convicted by a jury in the Tuscola County, Michigan Circuit Court of sexually assaulting his eight-year-old daughter, Amanda Perez. At trial, Marsha Perez, Amanda s aunt, testified that Amanda moved into her house on October 14, On December 17, 1997, Marsha Perez contacted the Michigan Department of Social Services and the Michigan State Police after Amanda made certain disclosures to her. The nature of these disclosures was not revealed to the jury. Amanda Perez was interviewed at the state police post on December 17, 1997 by Mark

2 Angers, a Michigan Family Independence Agency (FIA) case worker, and Detective Michael Larsen of the Michigan State Police. Kathleen Perez is the victim s mother and the petitioner s wife. She testified that from 1994 to the end of 1997, the petitioner would take care of Amanda while Kathleen was at work. Amanda Perez testified that the petitioner sexually assaulted her on a number of occasions. During direct examination, the prosecutor showed Amanda a picture of a tube, which she identified as candy. She testified that the petitioner would put this candy on his penis and order her to suck his penis. Amanda testified that the candy incidents occurred on more than one occasion in the bathroom and in the living room. On cross-examination, Amanda testified that the petitioner used the candy only outside of the shower and never inside the shower. She claimed that there were two incidents involving the candy that occurred outside of the shower. Amanda testified that both of these incidents took place during the daytime when she was six years old. Amanda also testified that on one occasion, the petitioner laid her down on a coffee table and put his penis up my butt. On cross-examination, Amanda testified that she was positive that the petitioner had penetrated her anus. Defense counsel attempted to impeach the victim s testimony with her preliminary examination testimony concerning the time of day of the incident and her age when the incident occurred. At trial, Amanda testified that this incident occurred during the day, but she stated that she did not remember testifying at the preliminary examination that she could not recall the time of day that this assault took place. Amanda also testified at trial that she was seven years old when this incident took place, but could not remember testifying at the preliminary examination that she was six years old at the time. However, the trial judge would not allow defense -2-

3 counsel to refer further to the preliminary examination transcript or introduce it in evidence after the state rested its case. Amanda also testified that the petitioner would call her various nicknames, such as pumpkin and sweetheart. This would make her nervous because the petitioner would use these nicknames before assaulting her. However, at the preliminary examination she identified only the nickname pumpkin as provoking anxiety in her; this inconsistency was not brought before the jury because the trial judge would not allow the petitioner to introduce pages of the preliminary examination transcript in to evidence. Amanda acknowledged on direct examination that she took showers with the petitioner; but she stated that he never did anything improper to her in the shower. However, on cross-examination, the victim claimed that something happened inside the shower about two times, the first time when she was either six or seven. On one occasion, the petitioner sat her down in the shower, and on the other occasion, she was standing. During her direct examination, she testified that on one occasion, the petitioner made milk by rubbing his penis in the bathroom. Amanda also testified that the petitioner would show her nudie movies and magazines. She further stated that the petitioner kept several penis toys in the bathroom. On one occasion, the petitioner told Amanda to insert one of the toys into his anus and he inserted one of the toys into her anus. Over defense objection, FIA worker Mark Angers and Detective Michael Larsen were permitted to testify to prior consistent statements that the victim had made to them concerning the sexual assaults, including the candy incidents and the anal intercourse. Angers and Larsen also were allowed to testify that the victim had made consistent statements to them concerning the videos and magazines, the incident where the petitioner rubbed his penis in the bathroom, the sex toys, and -3-

4 the petitioner s use of nicknames. Aaron Ruiz, the petitioner s neighbor, testified that when he visited the petitioner s apartment a few times, the petitioner and the victim were wet, as though they had just finished taking a shower. The petitioner testified on his own behalf. He denied ever sexually abusing his daughter and denied taking showers with her. On cross-examination, the petitioner admitted that he owned sex toys and adult videotapes and magazines but claimed that he kept them away from his daughter. The jury returned guilty verdicts on all five counts. The trial court sentenced the petitioner to concurrent terms of 30 to 50 years imprisonment. The petitioner s convictions were affirmed on appeal, People v. Perez, No , 2000 WL (Mich. Ct. App. June 27, 2000) (unpublished per curiam opinion), and the Michigan Supreme Court denied leave to appeal. People v. Perez, 463 Mich. 947, 620 N.W. 2d 856 (2000). After being initially rejected by the Clerk, the instant petition was accepted for filing on January 9, The petition seeks relief on the following grounds: I. The circuit judge violated the rules of evidence and Christopher Perez s rights to confront the most important witness against him, to present evidence in his own defense, and to a fair trial when the judge refused to allow him to impeach the credibility of the complainant with her prior inconsistent testimony. II. Where the trial was a credibility contest between Amanda and Christopher Perez, the trial judge violated the rules of evidence and committed reversible error in admitting over defense objection Amanda s prior consistent hearsay statements to the investigators that bolstered the prosecution s case. III. Christopher Perez was denied a fair trial and the circuit judge erred in denying Perez s motion for a mistrial due to the prosecutorial misconduct of displaying prejudicial videotapes, a bong, and other items to the jury where they were never brought into evidence. The respondent has answered the petition contending that the claims asserted are either non- -4-

5 cognizable on habeas review or otherwise devoid of merit. II. The petitioner s claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No , 110 Stat (AEDPA). This Act circumscribe[d] the standard of review federal courts must apply when considering applications for a writ of habeas corpus. See Wiggins v. Smith, 123 S. Ct. 2527, 2534 (2003). The AEDPA applies to all habeas petitions filed after the effective date of the Act, April 24, Lindh v. Murphy, 521 U.S. 320, 336 (1997). Because the petitioner s application was filed after that date, 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 for habeas cases: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. 2254(d). Therefore, federal courts may not upset a state court s adjudication of a petitioner s claims unless the state court s decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Mere error by the state court will not justify issuance of the writ; rather, the state court s application of federal law must have been objectively unreasonable. Wiggins, 123 S. Ct. at 2535 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000); internal quotes omitted). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. 2254(e)(1) -5-

6 ( In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. ); see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) ( We give complete deference to state court findings unless they are clearly erroneous. ). The United States Supreme Court has explained the proper application of the contrary to clause as follows: A state-court decision will certainly be contrary to [the Supreme Court s] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases.... A state-court decision will also be contrary to this Court s clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court s] precedent. Williams, 529 U.S. at The Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the unreasonable application clause of Section 2254(d)(1) when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner s case. Id. at 409. The Court defined unreasonable application as follows: [A] federal habeas court making the unreasonable application inquiry should ask whether the state court s application of clearly established federal law was objectively unreasonable.... [A]n unreasonable application of federal law is different from an incorrect application of federal law.... Under 2254(d)(1) s unreasonable application clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable. Id. at 409, ; see also McAdoo v. Elo, 346 F.3d 159, (6th Cir. 2003); Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en banc); Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. -6-

7 2002). A. The petitioner invokes the Confrontation Clause in framing his first claim for relief. He contends that his right to confront the victim to present a defense was violated when the trial court refused to allow his attorney to introduce into evidence certain portions of the victim s preliminary examination testimony that contained statements that were inconsistent with her trial testimony. Defense counsel sought to introduce portions of the victim s preliminary examination testimony concerning the number of times that oral sex had occurred and the nicknames that the petitioner used that made her nervous, because the victim denied at trial that he made these prior statements. The Michigan Court of Appeals rejected this claim on direct appeal as follows: Defendant first contends that the trial court erred in refusing to allow him to admit certain written portions of the victim s preliminary examination testimony containing statements inconsistent with her trial testimony. The decision whether to admit evidence is within the discretion of the trial court and we will not disturb this decision absent a clear abuse of discretion. The right of cross examination represents a primary interest secured by a defendant s right of confrontation. The right to cross examine is not without limit, however; neither the confrontation clause nor due process confers an unlimited right to admit all relevant evidence or cross examine on any subject. Although the proper scope of cross examination lies within the trial court s sound discretion, the credibility of a witness constitutes an issue of the utmost importance in every case, and the defendant is guaranteed a reasonable opportunity to test the truth of a witness testimony. Preliminary examination testimony may be used to impeach a witness inconsistent trial testimony, but cannot be used as substantive evidence. Defendant requested that the trial court admit into evidence certain written portions of the preliminary examination transcript that he claimed contained statements made by the victim inconsistent with her trial testimony. According to defense counsel, use of the victim s prior inconsistent statements, concerning the number of times oral sex occurred or the nicknames defendant used that made her nervous, was permitted under [Michigan s prior inconsistent statement rule] because at trial the victim denied having made these prior statements. -7-

8 We are not persuaded that defendant was precluded from confronting and impeaching the victim regarding her prior inconsistent statements. Our review of the record shows that defendant was afforded a reasonable opportunity to cross examine and challenge the victim s credibility, and that defendant did so extensively. The record reveals that defendant not only confronted the victim with many of her prior inconsistent statements, but also successfully impeached her at trial with these prior statements. The jury had ample evidence of the victim s prior inconsistent statements to consider in evaluating her credibility. Therefore, we conclude that the trial court did not abuse its discretion in refusing to admit portions of the actual preliminary examination transcript as requested by defendant. Perez, 2000 WL , at *1. A defendant in a criminal trial has the right to confront the witnesses called against him. U.S. Const. amend. VI. The Sixth Amendment s Confrontation Clause guarantees the accused the right to cross-examine adverse witnesses to uncover possible biases and expose the witness motivation for testifying. See Davis v. Alaska, 415 U.S. 308, (1974). The Confrontation Clause promotes reliability in criminal trials by providing defendants the opportunity for crossexamination. Kentucky v. Stincer, 482 U.S. 730, 739 (1987); see also Stevens v. Bordenkircher, 746 F.2d 342, 346 (6th Cir. 1984). However, the Confrontation Clause only guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. Delaware v. Fensterer, 474 U.S. 15, 20 (1985). Trial judges retain wide latitude under the Confrontation Clause to impose reasonable limits on crossexamination to address concerns about, among other things, harassment, prejudice, confusion of the issues, a witness safety, or interrogation that is repetitive or only marginally relevant. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Thus, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through crossexamination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness testimony. Fensterer, 474 U.S. at

9 The state trial judge s ruling excluding the extrinsic evidence of the victim s prior inconsistent statement, although erroneous under state evidence law, see Mich. R. Evid. 613, did not abridge the petitioner s federal constitutional rights under the circumstances of this case. The purpose for which the petitioner sought to introduce the preliminary examination transcript pages was to mount a general attack on the victim s ability to remember accurately the events that had occurred earlier in her childhood. The attack was not focused on specific incidents so as to challenge, for example, whether a particular event forming the basis of one of the charged counts had actually occurred, or on the timing of the events to support, say, a statute of limitations defense. Rather, the petitioner s effort here was to cast doubt before the jury on the victim s general credibility. This the petitioner was certainly allowed to do. However, the Supreme Court s Confrontation Clause jurisprudence makes distinctions between the allowances required for particularized versus general attacks on a witness testimony. The Sixth Circuit has stated: [A]lthough Davis trumpets the vital role cross-examination can play in casting doubt on a witness s credibility, not all conceivable methods of undermining credibility are constitutionally guaranteed. In particular, the Davis Court distinguished between a general attack on the credibility of a witness in which the cross-examiner intends to afford the jury a basis to infer that the witness character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony and a more particular attack on credibility directed toward revealing possible biases, prejudices, or ulterior motives as they may relate directly to issues or personalities in the case at hand. Boggs v. Collins, 226 F.3d 728, 736 (6th Cir. 2000) (quoting Davis, 415 U.S. at 316). In Boggs, the court of appeals held that a defendant charged with rape was not denied his rights under the Confrontation Clause when the trial judge precluded questioning the victim about other prior accusations of rape. There was other evidence in the record challenging the general credibility of the victim. The Boggs Court posited that evidence merely attacking the general credibility of a -9-

10 prosecution witness has diminished status under the Confrontation Clause. Nonetheless, when a trial court has curtailed cross-examination from which a jury could have assessed a witness s bias, prejudice or motive to testify, id. at 739, two questions must be asked by a reviewing court. First, [the] court must assess whether the jury had enough information, despite the limits placed on otherwise permitted cross-examination, to assess the defense theory of bias or improper motive.... Second, if this is not the case, and there is indeed a denial or significant diminution of cross-examination that implicates the Confrontation Clause, the Court applies a balancing test, weighing the violation against the competing interests at stake. Ibid. The state court of appeals in this case concluded that the petitioner was able to offer substantial evidence challenging the victim s general credibility, including evidence of her prior inconsistent statements. The trial court did not prevent the petitioner from impeaching the credibility of the victim with her prior testimony from the preliminary examination, but merely limited his ability to use extrinsic evidence to do so. The petitioner s attorney cross-examined the victim specifically about her former testimony. In some instances, the victim admitted that her testimony at the preliminary examination was different from her trial testimony. See Trial Tr., vol. IV, at 23-25, 28-29, In other instances, the victim could not remember her testimony from the preliminary examination. See id. at 25, 28. The preclusion by the trial court was on the introduction of the actual transcript pages into evidence. The trial court s reasoning for imposing this limitation is not readily apparent from the record. However, although the Supreme Court has held that states must allow cross-examination of witnesses to undermine a witness s testimony, it has never held or even suggested that the longstanding rules restricting the use of specific instances and extrinsic evidence to impeach a witness s credibility pose constitutional problems. No -10-

11 federal court of appeals has done so either. Hogan v. Hanks, 97 F.3d 189, 191 (7th Cir. 1996). The state court of appeals decision that the petitioner s rights under the Confrontation Clause were not violated was not contrary to or an unreasonable application of federal law. The petitioner is not entitled to habeas relief on his first claim. B. The petitioner next alleges that his right to a fair trial was violated when the trial court permitted FIA worker Mark Angers and Detective Michael Larsen to testify to prior consistent statements that the victim had made to them during their interview with her. This claim is nothing more than a reprise of the petitioner s state law evidentiary issue which he advanced without success on his direct appeal. The Michigan Court of Appeals rejected this contention, finding that these prior consistent statements were admissible pursuant to Mich. R. Evid. 801(d)(1)(B) to rebut an express or implied charge of recent fabrication or improper influence or motive on the victim s part. People v. Perez, 2000 WL 2000 WL , at *2. Habeas review does not encompass state court rulings on the admission of evidence unless there is a constitutional violation. Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir. 1994); see also Estelle v. McGuire, 502 U.S. 62, (1991) (holding that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions ); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (same). The Sixth Circuit Court of Appeals has explained that [e]rrors in the application of state law, especially rulings regarding the admission or exclusion of evidence, are usually not to be questioned in a federal habeas corpus proceeding. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). Generally, state-court evidentiary rulings cannot rise to the level of due process violations unless they offend[] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. Montana v. Egelhoff, 518 U.S. 37, 43 (1996) (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)); see also Spencer v. Texas, 385 U.S. 554, (1967). -11-

12 Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000), cert. denied, 532 U.S. 989 (2001) (second alteration in original). Even if some rule of evidence were violated, relief on collateral review will be provided only when a trial error had substantial and injurious effect or influence in determining the jury s verdict. Ford v. Curtis, 277 F.3d 806, 809 (6th Cir. 2002) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). The state court of appeals determined that no evidence rule was violated by the admission of the testimony that Amanda Perez told others about the acts the petitioner perpetrated against her. The state court of appeals held that the testimony was relevant to rebut a recent motive to fabricate that was introduced through the petitioner s cross-examination of her. Since the testimony related directly to the charges in the information, this Court does not conclude that the state court s finding of no error was contrary to or an unreasonable application of federal law as determined by the Supreme Court. Moreover, even improperly admitted evidence will not render a trial fundamentally unfair if it is probative of an essential element of the charged crime. See Carter v. Jago, 637 F.2d 449, 457 (6th Cir. 1980) (finding no basis for habeas relief where the challenged evidence was rationally connected to the crime charged). As a matter of federal habeas law, this claim lacks merit. C. In his third claim, the petitioner alleges that the trial court should have granted him a mistrial because of prosecutorial misconduct. While Amanda Perez was testifying on direct examination, defense counsel asked to approach the bench and the trial court judge excused the jury from the courtroom. Out of the jury s presence, defense counsel indicated that Detective Larsen, the officer in charge of the case, had brought out a box during the victim s testimony, which contained videos, -12-

13 magazines, and a bong (a device used to smoke marijuana), all of which had been taken from the petitioner s house by police. Detective Larsen had begun to pull out the bong, along with six videotapes and a magazine and had laid them on the floor when defense counsel approached the bench. Detective Larsen then returned the items to the box without anything else having happened. All of this happened within the jury s view, about five feet from the corner of the jury box. Trial Tr., vol. I, at , 153. In response, the prosecutor indicated that these items had been seized from the petitioner s house pursuant to a search warrant. The prosecutor further indicated that the detective had taken great pains in only removing the items that he intended to introduce as evidence, except for the bong, which, he said, the jurors would not be able to tell what it was by looking at it from their vantage point. Id. at The trial judge stated that his attention had been directed mostly at the witness and that the jury appeared to be directing their attention towards the witness as well; he did not see the jurors focus on the box of items. The judge acknowledged that it was inappropriate for the police to bring in items that have no chance of being admitted in evidence. He predicted that the bong would not be admitted, and he questioned whether the videos or magazine would be admissible. However, the judge noted that when he saw what turned out to be the bong removed from the box, he was not sure what it was since he was not a marijuana smoker. Additionally, he was uncertain how many of the jurors would know what it was. The judge further indicated that when the bong was in the box, only six to seven inches of it were visible. The judge did not believe that the display of a segment of the bong would be prejudicial, in light of the fact that the bong was over two feet long. He ordered the box removed from the courtroom, but he denied the motion for a mistrial. Id. at , The state court of appeals affirmed that ruling on direct appeal, noting that there was no -13-

14 indication that any of the jurors actually saw any of these items, and therefore the petitioner was not prejudiced and was not entitled to a mistrial. Perez, 2000 WL , at *3. Prosecutorial misconduct will form the basis for a new trial, and habeas relief, only if the relevant misconduct was so egregious as to render the entire trial fundamentally unfair based on the totality of the circumstances. Donnelly v. DeChristoforo, 416 U.S. 637, (1974); see also Caldwell v. Russell, 181 F.3d 731, 736 (6th Cir. 1999). In deciding whether prosecutor misconduct warrants habeas corpus relief, the court must first decide whether the prosecutor s conduct was improper and then determine whether it was sufficiently flagrant by considering four factors: (1) the likelihood that the misconduct would have prejudiced the defendant or mislead the jury; (2) whether the misconduct was isolated or part of a pattern; (3) whether the prosecutor s misconduct was deliberately or accidentally presented before the jury; and (4) whether the other evidence against the defendant was substantial. See Gall v. Parker, 231 F.3d 265, 311 (6th Cir. 2000) (citing United States v. Carroll, 26 F.3d 1380, (6th Cir. 1994). In the present case, although the conduct of Detective Larsen is attributed to the prosecution for the purposes of the misconduct inquiry, there is no indication that the jurors ever saw the items that he removed from the box. Moreover, any improper display of the videos and magazine was harmless in light of the testimony from several witnesses at trial, including the petitioner, that the petitioner owned adult videos and magazines. See United States v. Neal, 27 F.3d 1035, 1051 (5th Cir. 1994) (holding that a prosecutor s alleged misconduct of allowing government witness to improperly display to the jury a pouch containing a syringe and pills, which were seized from defendant at the time of his arrest but not admitted into evidence, did not constitute reversible error where the witness had already testified that such items had been seized from the defendant). Finally, -14-

15 the judge instructed the jury that evidence consisted only of the sworn testimony of witnesses and any exhibits that were admitted into evidence. The judge further advised the jury that during trial the judge had excluded evidence that was offered or had struck testimony, and that the jury should not consider these things in deciding the case, focusing instead only on the evidence that was admitted. Trial Tr., vol. V, at A jury is ordinarily presumed to have followed a trial court s instructions. See Richardson v. Marsh, 481 U.S. 200, 211 (1986). Because the jury was instructed not to consider any evidence which had not been admitted, the petitioner was not prejudiced by the brief display of the items in this case and no federal rights were violated. III. The decision of the Michigan Court of Appeals affirming the petitioner s convictions was not contrary to or an unreasonable application of clearly established federal law determined by the Supreme Court of the United States. See 28 U.S.C. 2254(d)(1). Accordingly, it is ORDERED that the petition for a writ of habeas corpus [dkt #1] is DENIED. Dated: January 26, 2004 Copies sent to: Christopher Perez # Brenda E. Turner, Esquire /s/ DAVID M. LAWSON United States District Judge -15-