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Andres v. McKee

February 26, 2010

TOMAS T. ANDRES, PETITIONER,
v.
KENNETH MCKEE, HON. ROBERT HOLMES BELL RESPONDENT.



The opinion of the court was delivered by: Robert Holmes Bell United States District Judge

MEMORANDUM OPINION AND ORDER

This matter is before the Court on a habeas corpus petition filed by Petitioner Tomas T. Andres pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) On January 11, 2010, Magistrate Judge Ellen S. Carmody issued a Report and Recommendation ("R&R"), recommending that this Court deny the petition. (Dkt. No. 25.) After this Court granted Petitioner's motion for an extension of time to respond to the R&R, Petitioner filed objections on February 16, 2010. (Dkt. No. 30.) This Court must review de novo those portions of the R&R to which specific objection has been made, and may accept, reject, or modify any or all of the Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Petitioner objects to the Magistrate's determinations that: (1) evidence of, and prosecutorial references to, a polygraph examination during his trial did not violate his constitutional rights; and (2) a rational trier of fact could have determined that sufficient evidence existed to convict Petitioner.

1. Evidence of and References to a Polygraph Examination

A. The Evidentiary Testimony

Petitioner objects to the admission of evidence pertaining to a polygraph examination he had taken. On direct examination, Sergeant Benjamin Escalante indicated that Petitioner had taken a "test" and later referred to Petitioner as an "examinee." (Dkt. No. 16, 03/14/2005 Trial Tr. 91 ("test"), 92 ("examinee").) Petitioner's motion and accompanying brief can be read to argue that the introduction of this evidence resulted in two violations of federal law:

(1) a violation of Petitioner's Fourteenth Amendment due process right to a fundamentally fair trial, and (2) a violation of Petitioner's Fifth Amendment right against self-incrimination. (Dkt. No. 9, Pet'r Br. in Supp. of Mot. 15, 16.)

To the extent Petitioner claims that evidence of his polygraph examination was introduced in violation of Petitioner's Fourteenth Amendment due process right to a fundamentally fair trial, the Court agrees with the Magistrate Judge's determination that the claim must be denied. Under Michigan state evidentiary law, reference to a polygraph examination is normally inadmissible at trial. People v. Nash, 625 N.W.2d 87, 91 (Mich. Ct. App. 2000). However, even if it was erroneous,*fn1 "errors in application of state law, especially with regard to the admissibility of evidence, are usually not cognizable in federal habeas corpus." Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983). Nevertheless, the Supreme Court has held that evidence that is admitted in violation of state law may be cognizable in a habeas proceeding as a violation of the Fourteenth Amendment due process right to a fundamentally fair trial if the error "had a substantial and injurious effect or influence in determining the jury's verdict" and if the Petitioner suffered "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also Broom v. Mitchell, 441 F.3d 392, 406 (6th Cir. 2006); Clemmons v. Sowders, 34 F.3d 352, 357-58 (6th Cir. 1993).

Neither Sergeant Escalante's reference to "the test" nor his reference to Petitioner as an "examinee" substantially and injuriously influenced the jury's verdict or prejudiced Petitioner. The trial judge determined that these references caused "no taint whatsoever to this jury," and opined that the jurors did not even appear to have noticed the significance of the references. (Dkt. No. 16, 03/14/2005 Trial Tr. 94.) As the Magistrate Judge notes, this conclusion is entirely plausible in light of the fact that the witness made no mention of a "polygraph" or "lie-detector," and there is no reason to assume that the jury would have associated the terms "test" and "examinee"*fn2 with a polygraph test and not some other "test" that might have been conducted throughout the course of a criminal sexual conduct investigation. Finally, the weight and the substance of the other evidence used against Petitioner, such as Petitioner's confession to having sex with the victim, indicate that the fleeting references to a "test" and an "examinee" could not possibly have "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637.

Petitioner also argues that evidence of his polygraph examination violated his Fifth Amendment right against self-incrimination/right to remain silent. Petitioner has not cited, nor has the Court discovered, any "clearly established" Supreme Court precedent to support this argument. 28 U.S.C. § 2254(d)(1). Accordingly, this claim must also fail.

B. The Prosecutorial Reference

Petitioner also objects to a partial reference to the polygraph made by the prosecutor during direct examination of one of the prosecution's witnesses as a violation of Petitioner's Fourteenth Amendment due process right to a fair trial. During the direct examination of a witness, the prosecutor began a question by saying, "going back to the poly -- excuse me, the interview." (Dkt. No. 17, 03/15/2005 Trial Tr. 80.) Statements by the prosecutor are not evidence, and so the above standard does not apply. However, in determining whether a statement by the prosecutor during a trial in state court violated federal law, the inquiry is again whether the statement "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In making this determination, the Sixth Circuit has suggested that the Court consider: (1) the likelihood that the remarks would mislead the jury or prejudice the accused; (2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally presented to the jury; and (4) whether the other evidence against the defendant was substantial. Gillard v. Mitchell, 445 F.3d 883, 897 (6th Cir. 2006).

All of the above considerations suggest that the prosecutor's partial reference to the polygraph test did not "so infect[] the trial with unfairness as to make the resulting conviction a denial of due process." Darden, 477 U.S. at 181. Not only did the remark probably not prejudice Petitioner, as noted by the trial court it was unlikely that the jurors even noticed it; the prosecutor said only the first half of the word, "poly," before he caught his mistake and corrected himself. The remark was an isolated occurrence. There is no evidence that the remark was intentional; as mentioned, the prosecutor corrected himself before he even said the entire word. Finally, the other evidence against Petitioner, including Petitioner's confession and testimony of the victim, was substantial.

Petitioner also argues that reference to his polygraph examination violated his Fifth Amendment right against self-incrimination/right to remain silent. Petitioner has not cited, nor has the Court discovered, any "clearly established" Supreme Court precedent to support this ...


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