UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION. Petitioner, Case No BC v. Honorable David M.

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1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION DANTONIO SWANSON, Petitioner, Case No BC v. Honorable David M. Lawson PAUL RENICO, Respondent. / OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Petitioner Dantonio Swanson, presently confined at the St. Louis Correctional Facility in St. Louis, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C In his application filed through counsel, the petitioner challenges his conviction of one count of firstdegree murder, Mich. Comp. Laws , and one count of possession of a firearm in the commission of a felony, Mich. Comp. Laws b, alleging that he is incarcerated in violation of his constitutional rights under the Due Process Clause because of insufficiency of evidence, and the Confrontation Clause because an unavailable witness former testimony was read into the record at trial. The Court disagrees, and will deny the petition. I. The petitioner s conviction arises from the shooting death of Isaiah Moore in Detroit, Michigan on June 21, The evidence at trial established that the shooting followed an argument that took place outside of Moore s home during a barbecue. Three or four men, one of whom was identified as the petitioner, drove up to Moore s house in a green station wagon and began to argue with Kevin Hermiz and Mark Sheffield, guests at Moore s barbecue. During the argument, a sixteen-year-old occupant of the green station wagon pulled back his coat, showing

2 Hermiz a.38 caliber handgun stuffed in the waistband of his pants. The argument eventually subsided and the occupants of the green station wagon returned to their vehicle. At this point, Moore came out of his house and angrily confronted the men in the car. Moore approached the vehicle and told the men to leave. Moore, in fact, pounded on the top of the station wagon as it drove away. As the green station wagon was leaving Moore s house, one or more occupants of the vehicle told Moore, We ll be back. The men in the station wagon returned to Moore s house within two to five minutes. Two of the occupants exited the front of the vehicle, and a third person, identified as the petitioner, exited from the hatch of the car armed with a shotgun. There was conflicting testimony over whether the other two men were armed. One of Moore s neighbors, Bertha Wilson, told the petitioner, You don t want to do that. The petitioner s fiancée, Tracie Moore, and her mother also begged him not to shoot. The petitioner fired the shotgun at the front porch once. After the first shot, the victim raised his hands above his head. The petitioner fired the gun again and the second shot fatally wounded Isaiah Moore. The three men returned to the green station wagon and drove away. At trial, Tracie Moore positively identified the petitioner as the shooter. She acknowledged that immediately after the incident she told police that a man named Leroy had done the shooting. However, Tracie Moore further stated that the petitioner had previously visited her home and identified himself as Leroy. Although Ms. Moore was not present when the petitioner visited her home on this occasion, she said that her roommate had pointed out the petitioner to her on the day prior to the shooting while the petitioner was walking down the street and had identified him as Leroy. Tracie Moore admitted that she had told police that the shooter was 6 feet 1 inch tall. In reality, the petitioner was 5 feet 11 inches in height. -2-

3 Four other witnesses also identified the petitioner as the shooter. Most of these witnesses admitted that they had never seen the shooter prior to June 21, 1995 and never attended a pretrial lineup. A fifth witness, Marlon Motley, could not identify the petitioner as being the shooter. The preliminary examination testimony of Frances Hall was read into evidence after the trial court determined that she was unavailable to testify as a witness. That transcript disclosed that Hall was the registered owner of the green station wagon that was involved in the shooting, although the car actually belonged to her nephew Curtis Hall. On June 21, 1995, Curtis Hall was driving the vehicle with his brother, Farrell Hall. When they returned that evening, Francis Hall observed the petitioner, also her nephew, exit from the rear of the vehicle armed with a rifle. The medical examiner testified that the cause of death was a gunshot wound to the head. There was no evidence of close-range firing and in the medical examiner s opinion the shooter was at least eight feet away from the victim at the time of the shooting. The petitioner s conviction was affirmed on direct appeal. People v. Swanson, No , 1998 WL (Mich. Ct. App. September 29, 1998). The petitioner then filed an application for leave, which was denied. People v. Swanson, 459 Mich. 984, 593 N.W.2d 554 (1999). The petitioner now seeks the issuance of a writ of habeas corpus on the following grounds: I. Petitioner s conviction violates Fourteenth Amendment Due Process where the evidence was legally insufficient to show that he committed a premeditated murder. II. Petitioner was denied his Sixth and Fourteenth Amendment right of confrontation where the prosecution was permitted to introduce hearsay evidence, in the form of the preliminary examination testimony of a crucial witness, yet the prosecution was unable to demonstrate that the witness was unavailable, or that it made a good faith effort to secure the presence of the witness at trial. The respondent contends that these claims lack merit. -3-

4 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) -4-

5 ( 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. -5-

6 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. 2002). A. The petitioner first contends that the evidence at trial was insufficient to convict him of first- degree murder. The petitioner initially argues that the evidence was insufficient to establish that he was the person who shot the victim. Second, the petitioner asserts that there was insufficient evidence established to show that the shooter acted with premeditation and deliberation, contending that the evidence at best established that the shooting took place in the heat of passion. The petitioner therefore contends that at most he is guilty only of voluntary manslaughter. There is no question that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 364 (1970). However, the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979) (emphasis added). [T]his inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, 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. Id. at (internal citation and footnote omitted). This standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law. Id. at 324 n.16. Furthermore, unless exceptional circumstances are present, such as evidence of obvious -6-

7 subterfuge to evade consideration of a federal issue, a state court s construction of its own statute is binding upon this Court. Mullaney v. Wilbur, 421 U.S. 684, 691 & n.11 (1975). In rejecting this claim on direct appeal, the state court of appeals noted that the evidence showed that the petitioner was involved in an argument with the victim. The victim told the petitioner to leave, but before he left, the petitioner told the victim, We ll be back. The petitioner drove away, returned after two to five minutes, got out of the car with a gun, and shot the gun twice at the victim. After the first shot, the victim raised his hands above his head, but a second shot was fired striking and killing the victim. The state court of appeals concluded that, viewing at the evidence in a light most favorable to the prosecution, the evidence established the elements of premeditation and deliberation beyond a reasonable doubt. The court of appeals also concluded that the issue of the petitioner s identity as the shooter, as well as the issue of whether the shooting was done in the heat of passion, were questions for the jury to resolve. Swanson, 1998 WL at *2. The state trial court correctly described the requirements of Michigan law. A person commits first-degree murder under Michigan law when intentionally killing another by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing, Mich. Comp. Laws (1)(a), or by perpetrating a murder in the course of certain felonies, such as robbery. Mich. Comp. Laws (1)(b). In other words, first-degree premeditated murder, the form of first-degree murder charged in this case, requires a finding that the defendant committed a homicide with premeditation and deliberation. See People v. Morrin, 31 Mich. App. 301, 328, 187 N.W.2d 434, 449 (1971). To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. Id. at 329, 187 N.W.2d at 449. Under Michigan -7-

8 law, while the minimum time required to premeditate is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a second look. People v. Vail, 393 Mich. 460, 469, 227 N.W.2d 535, 539 (1975). [A]n opportunity for a second look may be merely seconds, minutes, or hours, dependant upon the totality of the circumstances surrounding the killing. Johnson v. Hofbauer, 159 F. Supp. 2d 582, 596 (E.D. Mich. 2001) (citing People v. Berthiaume, 59 Mich. App. 451, 456, 229 N.W.2d 497 (1975)). Circumstantial evidence and reasonable inferences drawn therefrom may be sufficient to prove the elements of the crime. See People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177, 180 (1993). Premeditation and deliberation may also be inferred from the type of weapon used and the location of the wounds inflicted. People v. Coddington, 188 Mich. App. 584, 600, 470 N.W.2d 478, 487 (1991). Use of a lethal weapon will support an inference of an intent to kill. People v. Turner, 62 Mich. App. 467, 470, 233 N.W.2d 617, 618 (1975). This Court agrees with the state court of appeals that, when viewed in a light most favorable to the prosecution, the evidence presented at trial established the elements of premeditation and deliberation. The trial record shows that the petitioner and several of his friends had been involved in an argument with the victim and some of his friends. When the victim asked the men to leave, the petitioner and his friends threatened that they would return. They made good on their threat within two to five minutes, and the petitioner exited the vehicle armed with a shotgun. Prior to shooting the victim, several people asked the petitioner not to shoot anyone. After the petitioner fired the first shot, the victim put his hands up. Nonetheless, the petitioner fired a second time, striking the victim -8-

9 in the head. The Michigan state courts reasonably concluded that this record overwhelmingly supports a verdict of first-degree murder. However, according to the petitioner, this evidence proves only voluntary manslaughter. In Michigan, voluntary manslaughter is defined as an intentional killing committed under the influence of passion or hot blood produced by adequate provocation and before a reasonable time has passed for the blood to cool. Foster v. Withrow, 159 F. Supp. 2d 629, 643 (E.D. Mich. 2001). Under Michigan law, whether a criminal defendant has established that he or she acted in the heat of passion is an issue for the jury to determine. People v. Lange, 251 Mich. App. 247, 252, 650 N.W.2d 691, 695 (2002). The jury was properly instructed and exercised the judgment accorded to it under the Constitution in choosing to convict the petitioner of the more serious crime. The evidence permitted the jury to reach this verdict. The petitioner also argues that the evidence at trial was insufficient to establish his identity as the shooter. The Sixth Circuit has made clear, however, that [a]s long as there is not a substantial likelihood of misidentification, it is the function of the jury to determine the ultimate weight to be given the identification. Summitt v. Bordenkircher, 608 F.2d 247, 253 (6th Cir. 1979) (citation omitted). In the present case, five persons identified the petitioner as being the shooter. The petitioner attacks the credibility of eyewitness Tracie Moore by claiming that her identification of the petitioner at trial as being the shooter was inconsistent with her prior statement to the police. The jury apparently chose to believe Ms. Moore s in-court identification of the petitioner as being the shooter, as they were entitled to do. Furthermore, it is entirely possible that the jury disregarded Moore s testimony altogether and simply relied on the testimony of the four other eyewitnesses who positively identified the petitioner. -9-

10 The petitioner asserts that the testimony of these other eyewitnesses was incompetent because they did not participate in any pretrial lineup and identified him only at trial. The petitioner also claims that most of these witnesses had never seen the petitioner prior to the shooting. However, the testimony of a single, uncorroborated prosecuting witness or other eyewitness is generally sufficient to support a conviction. Brown v. Davis, 752 F.2d 1142, 1144 (6th Cir. 1985) (internal citations omitted). Thus, the identification testimony of Tracie Moore or any of the other witnesses would be sufficient, in and of itself, to sustain the petitioner s conviction for first-degree murder. Even if it were not, the Constitution imposes no requirement in criminal cases that witnesses providing identification testimony first observe a line-up with other possible perpetrators. To the extent that the petitioner believes that the witnesses failure to view a line-up weakens the power of their testimony, he confuses the weight one can give to testimony with its admissibility in the first instance. The identification testimony in this case was plainly relevant. The weight accorded to such testimony was for the jury, not this Court on habeas review, to decide. This Court finds that the evidence at trial amply supported the jury s verdict of guilt. The state court of appeals like determination was not contrary to or an unreasonable application of clearly established federal law. The petitioner is not entitled to habeas relief on his first claim. B. The petitioner next claims that his Sixth Amendment right of confrontation was violated when the trial court permitted the preliminary examination testimony of the petitioner s aunt, Frances Hall, to be admitted into evidence in lieu of her live testimony at trial. The petitioner contends that showing that the witness was unavailable was inadequate because of the trial court s -10-

11 erroneous finding that the police had acted with good faith and due diligence in attempting to locate Hall prior to trial. The Confrontation Clause of the Sixth Amendment provides that [i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him. U.S. Const. amend. VI. The primary purpose of this protection included in the Bill of Rights was to elevate to a constitutional level the common-law testimonial guarantees designed to ensure the reliability of witnesses testimony. See United States v. Chapin, 231 F. Supp. 2d 600, (E.D. Mich 2002). As the Supreme Court explained over a century ago: The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. Mattox v. United States, 156 U.S. 237, (1895). The Supreme Court has never read the Clause literally to require the exclusion of all hearsay. Ohio v. Roberts, 448 U.S.56, 63 (1980) (to do so would effectuate a result long rejected as unintended and too extreme ). However, the Court has also recognized that [t]he Confrontation Clause... bars the admission of some evidence that would be otherwise admissible under an exception to the hearsay rule. Idaho v. Wright, 497 U.S. 805, 814 (1990). [T]he Supreme Court established a two-part general approach, [Roberts,] 448 U.S. at 65, to the limitations that the Confrontation Clause imposes on the admissibility of hearsay against a criminal defendant. Brumley v. Wingard, 269 F.3d 629, 639 (6th Cir. 2001). First, in conformance with the Framers preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. -11-

12 [Generally,] the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. Roberts, 448 U.S. at 65. Second, if a witness is shown to be unavailable, his statement is admissible only if it bears adequate indicia of reliability. Id. at 66. The Supreme Court has held that a witness is not unavailable for purposes of... the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. Barber v. Page, 390 U.S. 719, (1968). In addition, there has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant. Id. at 722. See also Glenn v. Dallman, 635 F.2d 1183, 1186 (6th Cir. 1980) (reiterating that the former testimony of an unavailable witness is admissible only if it bears adequate indicia of reliability. Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. ). The allowance of the former testimony of a witness who testified at a preliminary hearing in a criminal case has been held to constitute a firmly rooted exception to the rule against hearsay when that testimony is offered against the same defendant at his trial. The Supreme Court accepted this proposition in Roberts when it commented on its prior decision in California v. Green, 399 U.S. 149 (1970), as follows: Citing the established rule that prior trial testimony is admissible upon retrial if the declarant becomes unavailable... the Court rejected Green s Confrontation Clause attack. It reasoned: Porter s statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial. Porter was under oath; respondent was represented by counsel the same counsel in fact who -12-

13 later represented him at the trial; respondent had every opportunity to cross-examine Porter as to his statement; and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings.399 U.S., at 165. These factors, the Court concluded, provided all that the Sixth Amendment demands: substantial compliance with the purposes behind the confrontation requirement. Id., at 166. Roberts, 448 U.S. at The record in this case discloses that at the conclusion of the first day of testimony, the prosecutor stated that the police had been unable to locate Hall. Trial Tr., vol. II, at Sergeant Charles Braxton, the officer in charge of this case, testified that he began to look for Hall on the Friday prior to trial following his return from vacation and that his attempt to serve her with a subpoena was unsuccessful. Hall listed Lauder in Detroit as her home address on her witness statement and on her driver s license. Braxton and other officers had also made unsuccessful efforts to serve a subpoena on Hall at this address. Braxton testified that when he went to this address on a second occasion, it appeared as if the occupants had been evicted. One of the neighbors informed him that the occupants had moved a week or two earlier, but the neighbor was unable to give Braxton a forwarding address. Braxton checked with the post office and the public utilities to see if Hall had changed her address, but no change of address had been provided. Id. at Braxton also testified that he pursued Hall at an address on Clements Street where she had been served with a subpoena to testify at the preliminary examination. Braxton called this residence and spoke with Sarah Moody, a relative of Hall. Braxton left his name and telephone number with Hall s relatives and informed them he was trying to look for her. Braxton subsequently went to this address and spoke with Ms. Moody and with Hall s stepfather. Ms. Moody informed Braxton that she had spoken with Ms. Hall the previous day and informed Hall that Braxton had called. -13-

14 According to Moody, Hall s only response was to laugh. Moody and Mr. Hall also informed Braxton that although Ms. Hall sometimes telephoned them, they had no forwarding address or telephone number for Ms. Hall and had no way to contact her. Braxton also contacted the Macomb, Oakland, and Wayne County jails, local hospitals, and the morgue, but was unable to locate Ms. Hall. Id. at After hearing Braxton s testimony, the trial court ruled that Sergeant Braxton had exercised due diligence in attempting to locate Ms. Hall, Hall was unavailable, and Hall s preliminary examination testimony could be used in lieu of her live testimony. Id. at In Roberts, the Supreme Court concluded that the extent to which the prosecution must go to produce a witness is a question of reasonableness. Roberts, 448 U.S. at 74. The state court of appeals concluded on the facts of this case that the state s effort to locate Hall was reasonable and that the finding of unavailability was warranted. This conclusion was not an unreasonable application of federal law. In Roberts, the Supreme Court held that the prosecutor had established that a witness was unavailable for purposes of using her prior preliminary hearing testimony at trial where the prosecutor had issued a subpoena to the witness at her parents home on five separate occasions over a period of several months, the witness s mother testified at voir dire that she knew of no way to reach the witness even in an emergency, and the witness mother and father had engaged in unsuccessful affirmative efforts to reach the witness. Id. at 75. Sergeant Braxton s efforts compare favorably with those describer in Roberts and support the finding of reasonableness that is constitutionally required. Additionally, Hall s prior preliminary examination testimony bore sufficient indicia of reliability to satisfy the requirements of the Confrontation Clause. The preliminary examination -14-

15 testimony was given under oath, the petitioner and his counsel were present at the earlier hearing, and Hall was subject to cross-examination. There was no Confrontation Clause violation that resulted from the admission of Hall s former testimony at the petitioner s trial. The petitioner is therefore not entitled to habeas relief on his second claim. III. The decision of the state court of appeals affirming the petitioner s conviction for first-degree murder was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court. See 28 U.S.C. 2254(d). Accordingly, the petition for a writ of habeas corpus [dkt #1] is DENIED. Dated: January 22, 2004 /s/ DAVID M. LAWSON United States District Judge Copies sent to: Joan Ellerbusch Morgan, Esquire Bethany L. Scheib, Esquire -15-