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Rice v. White

March 31, 2010

GREGORY M. RICE, #296423 PETITIONER,
v.
JEFF WHITE, RESPONDENT.



The opinion of the court was delivered by: Honorable Denise Page Hood

Magistrate Judge Virginia M. Morgan

OPINION AND ORDER GRANTING PETITION FOR A WRIT OF HABEAS CORPUS

Petitioner, Gregory Rice, is a state inmate currently incarcerated at St. Louis Correctional Facility in St. Louis, Michigan. Petitioner was convicted after a jury trial in Wayne County Circuit Court of first-degree murder, Mich. Comp. Laws §750.316; and possession of a firearm during the commission of a felony, Mich. Comp. Laws §750.227b. He was sentenced to life imprisonment for the first-degree murder conviction and a consecutive two year term for the felony-firearm conviction*fn1.

Petitioner has filed a pro se petition for writ of habeas corpus under 28 U.S.C. §2254. For the reasons that follow, the Court grants the petition.

I. BACKGROUND

Petitioner's conviction arose from the shooting death of Yahnika Hill. Jerome Knight and Yahnika Hill had a son*fn2. Ms. Hill and Mr. Knight did not have an amicable relationship and there were frequent disagreements over visitation and custody. The prosecution presented evidence that Mr. Knight lodged several threats of physical harm against Ms. Hill. Evidence was also presented that Mr. Knight solicited Rodney Coleman*fn3 by offering him one thousand ($1,000.00) dollars to kill Ms. Hill. Mr. Coleman refused the offer. The prosecution theorized that Mr. Knight then solicited Petitioner to murder Ms. Hill in exchange for posting bond for Petitioner who was incarcerated at the time the offer was made. Mr. Coleman testified that Petitioner confessed to him that he came upon Ms. Hill as she was sitting in her car and shot her in the face.

Petitioner denies that he made such a confession. He claims that he was at his grandmother's home when the shooting occurred and that he used his own money to post bond.

Following Petitioner's conviction, he filed a direct appeal with the Michigan Court of Appeals raising the following claims:

I. Whether defendant was deprived of his right to due process and to a fair trial under the 14th Amendment to the United States Constitution and under section 17, article 1, Michigan Constitution 1963 when the trial judge denied defendant's motion for directed verdicts since the evidence adduced by the prosecution to prove defendant's guilt was insufficient to persuade any rational trier of the facts that all of the elements of the crimes charged including the element of the identity of defendant as the perpetrator of the crimes were established beyond a reasonable doubt.

II. Whether defendant's convictions are infirm under the 14th Amendment to the United States Constitution and under section 17, article 1, Michigan Constitution 1963 because they are based upon a record of evidence which is insufficient to establish each and every fact beyond a reasonable doubt necessary to establish the crimes charged including the fact that it was the defendant who killed the deceased.

III. Whether defendant was deprived of his right to due process and to a fair trial under the 14th Amendment to the United States Constitution and under section 17, article 1, Michigan Constitution 1963 when the trial judge in her charge to the jury delivered an insufficiently explanatory instruction on the law of alibi which was defendant's main defense.

IV. Whether defendant was deprived of his right to due process and to a fair trial under the 14th Amendment to the United States Constitution and under section 17, article 1, Michigan Constitution 1963 when the trial prosecutor in argument to the jury (1) vouched for the credibility of prosecution witnesses and denigrated the veracity of defendant's testimony; (2) testified to facts of her own personal knowledge; and (3) expressed her personal opinion at the defendant's guilt.

V. Whether defendant was deprived of his right to due process and to a fair trial under the 14th Amendment to the United States Constitution and under section 17, article 1, Michigan Constitution 1963 when the prosecutor was permitted to elicit from the main prosecution witness against defendant that he had told the substance of his in-court testimony to his auntie and to a police officer since the witnesses' outof-court statements were not under oath were not exempt from the rule prohibiting adducement of hearsay as evidence and because they were incompetent prior consistent statements.

VI. Whether defendant was deprived of his right to due process and to a fair trial under the 14th Amendment to the United States Constitution and under section 17, article 1, Michigan Constitution 1963 when the prosecutor was permitted to elicit from the main prosecution witness against defendant that he feared for his life at the hands of defendant Rice and of defendant Knight.

VII. Whether defendant was deprived of his right under the 6th Amendment to the United States Constitution and under section 20, article 1, Michigan Constitution 1963 to effective assistance of counsel on the trial when his trial counsel: (1) failed to object to insufficient instruction on alibi; (2) failed to object to prejudicial argument by the prosecutor to the jury; and (3) failed to object to testimony of prosecution witness that he feared for his life.

Petitioner then filed a supplemental Rule 11 brief raising the following claim: Whether defendant was deprived of his right under the 6th Amendment to the United State Constitution and under section 20, article 1, Michigan Constitution 1963, to the effective assistance of trial counsel and due process of law entitled defendant to a fair trial under the 14th Amendment to the United States Constitution and under section 17, article 1, of the Michigan Constitution 1963, when counsel on trial (1) failed to object to the admission of inadmissible hearsay testimony of prosecution witness, (2) failed to move the trial court to suppress highly prejudicial testimony elicited from prosecution witness whose testimony lack factual support, (3) failed to proceed with and argue defendant's motion for severance of trial under separately included issues contained within filed motion, (4) failed to request or prepare proposed jury instruction for multiple defendants, to consider evidence and law as it applies to each defendant and (5), errors committed by defendant counsel had a cumulative effect on the trial so proceeding where his performance was so incompetent to where defendant could not have received a fair trial or effective assistance.

The Michigan Court of Appeals affirmed Petitioner's convictions. People v. Rice, No. 225865, 2002 WL 31310158 (Mich. Ct. App. Oct. 15, 2002). Petitioner filed a delayed application for leave to appeal in the Michigan Supreme Court raising issues I - IV and VII, supra, and the following claim:

Defendant was deprived of his right to due process and to a fair trial under the 14th Amendment to the United States Constitution and under section 17, article 1, Michigan Constitution 1963 when the trial court failed to give the mandatory (CJI 2d 2.19) instruction in a multiple defendant trial.

The Michigan Supreme Court ruled that "pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we VACATE the portion of the judgment of the Court of Appeals concerning defendant's peremptory challenge issue under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and REMAND for reconsideration of that issue." People v. Rice, 468 Mich. 922; 664 NW2d 214 (2003) (table)*fn4. Petitioner filed a supplemental brief on remand raising the following two issues:

Whether the trial judge erred in finding a Batson violation.

Whether the trial court was correct in ruling that the racial composition of the final jury cured any Batson violation that was not cured due to the failure to reseat the peremptorily dismissed jurors.

On remand, the Michigan Court of Appeals again affirmed Petitioner's conviction and stated in pertinent part:

We must accept the trial court's rejection of the prosecutor's race-neutral explanations as a finding of purposeful discrimination. However, that implicit finding of purposeful discrimination directly conflicts with the trial court's belief, clearly stated on the record, that the attorneys for all parties selected a jury motivated solely by the desire to have fair and impartial persons hear the case. The trial court's own language cannot support a finding of purposeful discrimination. Moreover, there were valid race-neutral reasons articulated by the prosecutor justifying the peremptory challenges of venirepersons #2 and #9. Venireperson #9 was very familiar with the circumstances surrounding a first cousin's arrest and conviction on a drug charge, and venireperson #2 "hoped" she would not compare the victim to her own daughter who was about the same age as the victim.... Therefore, although we give great deference to the trial court's findings on a Batson issue, the record does not support a conclusion of purposeful discrimination, and the court erred in finding a Batson violation.

People v. Rice, No: 225865 2003 WL 22299839 (Mich. Ct. App. Oct. 7, 2003).

Petitioner filed an application for leave to appeal with the Michigan Supreme Court which was granted, but "limited to the issues whether (1) the prosecutor's race-neutral reasons for dismissing jurors No[s]. 2 and 9 were sufficient to avoid a finding of purposeful discrimination in the exercise of peremptory challenges; (2) the trial court correctly found that jury selection did not violate Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), because 'the same number if not more' unchallenged African- American jurors remained on the jury that heard the case; and (3) the trial judge correctly continued the trial with the existing jury panel after she expressed dissatisfaction with the prosecutor's 'race neutral' reasons for excusing two African-American jurors who could not be recalled." People v. Rice, 470 Mich. 869; 682 NW2d 85 (2004) (table).

In further support of Petitioner's application for leave to appeal, Petitioner filed a supplemental brief raising the following issues:

1. The appellate court erred ruling that the prosecutor had not systematically excluded minorities from the defendant's jury by use of peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

2. Defendant was denied his State and Federal Constitutional right to the assistance of counsel on appeal.

3. This court should rule upon the merits of defendant's prior delayed application for leave to appeal.

4. The prosecutor's race-neutral reasons for dismissing juror's #2 and #9 were insufficient to avoid a finding of purposeful discrimination in the exercise of peremptory challenges. Further, the trial court's finding was not clearly erroneous.

5. The trial court incorrectly found that the final panel cured the Batson violation.

6. The trial court erroneously continued the trial with the existing panel after rejecting the prosecutor's "race-neutral" reasons.

7. The trial court's finding of a Batson violation was sufficiently clear on this record, and was not clearly erroneous. The trial court's subsequent decision to proceed with the trial was an abuse of discretion.

The Michigan Supreme Court affirmed Petitioner's conviction:

On the basis of our reading of the voir dire transcripts, we hold no Batson violation occurred in this case and the trial judge neither explicitly nor implicitly found such a violation. Giving the appropriate degree of deference to the trial judge's ultimate finding that the prosecutor did not engage in purposeful discrimination, we affirm defendants'*fn5 People v. Knight, 473 Mich. 324; 701 NW2d 715 (2005) (table). Justices Weaver, Young and Markman concurred "in the majority's conclusion that, on a fair reading of the record, the trial court did not find that prospective jurors were excluded on the basis of race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)." Id. at 352.

Unlike the majority, [Justices Weaver, Young and Markman] do not speculate with regard to the reasons for the trial court's statements. [They] simply conclude that after a fair reading of the record, the trial court did not find that a Batson violation had occurred."

Id. at 353, n. 1.

Justice Cavanagh concurred in part and dissented in part stating as follows: I agree with the legal principles announced in parts II(A) and II(B) of the majority's opinion [I do not join part II(c) of the majority opinion because I do not believe that these cases are the proper vehicle to explore when a Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), objection must be raised]. I write separately because I disagree with the majority's reading of the record. I believe that an evenhanded reading of the record demonstrates that the trial court found that prospective jurors were excluded on the basis of race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny. Further, I would hold that the trial court correctly made this determination under Batson's three-step test. Upon making this determination, however, the trial court reasoned that any Batson violation was cured by the eventual makeup of the jury because "the same number if not more" unchallenged African-American jurors remained on the panel that ultimately decided these cases. I would hold that the initial Batson violation was not cured by the eventual makeup of the jury and, thus, the trial court erred by continuing the proceedings in this manner. Accordingly, I would reverse the judgments of the Court of Appeals and remand these cases for new trials.

Id. at 353-54; Id. at 354. n.1.

Petitioner then filed a petition for writ of certiorari with the United States Supreme Court raising the following claim:

The Michigan Supreme Court's "factual finding" that the trial court "did not" find a Batson violation as a matter of law, constitutes a denial of fundamental due process under the U.S. Constitution in (U.S.C.A. 6 & 14) and is clearly erroneous under U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948), where the trial court "did" find a Batson violation.

On November 28, 2005, the United States Supreme Court denied Petitioner's Petition for Writ of Certiorari. See Rice v. Michigan, 546 U.S. 1043 (2005). Petitioner has now filed the present pro se petition pursuant to 28 U.S.C. § 2254, raising the following twenty-one issues for the Court's review:

I. Whether defendant was deprived of his right to due process and to a fair trial under the 14th Amendment to the United States Constitution and under section 17, article 1, Michigan Constitution 1963 when the trial judge denied defendant's motion for directed verdicts since the evidence adduced by the prosecution to prove defendant's guilt was insufficient to persuade any rational trier of the facts that all of the elements of the crimes charged including the element of the identity of defendant as the perpetrator of the crimes were established beyond a reasonable doubt.

II. Whether defendant's convictions are infirm under the 14th Amendment to the United States Constitution and under section 17, article 1, Michigan Constitution 1963 because they are based upon a record of evidence which is insufficient to establish each and every fact beyond a reasonable doubt necessary to establish the crimes charged including the fact that it was the defendant who killed the deceased.

III. Whether defendant was deprived of his right to due process and to a fair trial under the 14th Amendment to the United States Constitution and under section 17, article 1, Michigan Constitution 1963 when the trial judge in her charge to the jury delivered an insufficiently explanatory instruction on the law of alibi which was defendant's main defense.

IV. Whether defendant was deprived of his right to due process and to a fair trial under the 14th Amendment to the United States Constitution and under section 17, article 1, Michigan Constitution 1963 when the trial prosecutor in argument to the jury (1) vouched for the credibility of prosecution witnesses and denigrated the veracity of defendant's testimony; (2) testified to facts of her own personal knowledge; and (3) expressed her personal opinion at the defendant's guilt.

V. Whether defendant was deprived of his right to due process and to a fair trial under the 14th Amendment to the United States Constitution and under section 17, article 1, Michigan Constitution 1963 when the prosecutor was permitted to elicit from the main prosecution witness against defendant that he had told the substance of his in-court testimony to his auntie and to a police officer since the witnesses' out- of-court statements were not under oath were not exempt from the rule prohibiting adducement of hearsay as evidence and because they were incompetent prior consistent statements.

VI. Whether defendant was deprived of his right to due process and to a fair trial under the 14th Amendment to the United States Constitution and under section 17, article 1, Michigan Constitution 1963 when the prosecutor was permitted to elicit from the main prosecution witness against defendant that he feared for his life at the hands of defendant Rice and of defendant Knight.

VII. Whether defendant was deprived of his right under the 6th Amendment to the United States Constitution and under section 20, article 1, Michigan Constitution 1963 to effective assistance of counsel on the trial when his trial counsel: (1) failed to object to insufficient instruction on alibi; (2) failed to object to prejudicial argument by the prosecutor to the jury; and (3) failed to object to testimony of prosecution witness that he feared for his life.

VIII. Whether defendant was deprived of his right under the 6th Amendment to the United State Constitution and under section 20, article 1, Michigan Constitution 1963, to the effective assistance of trial counsel and due process of law entitled defendant to a fair trial under the 14th Amendment to the United States Constitution and under section 17, article 1, of the Michigan Constitution 1963, when counsel on trial (1) failed to object to the admission of inadmissible hearsay testimony of prosecution witness, (2) failed to move the trial court to suppress highly prejudicial testimony elicited from prosecution witness whose testimony lack factual support, (3) failed to proceed with and argue defendant's motion for severance of trial under separately included issues contained within filed motion, (4) failed to request or prepare proposed jury instruction for multiple defendants, to consider evidence and law as it applies to each defendant and (5), errors committed by defendant counsel had a cumulative effect on the trial so proceeding where his performance was so incompetent to where defendant could not have received a fair trial or effective assistance.

IX. Whether the prosecution's argument is predicated upon a[n] incorrect application of MRE 1004.

X. Whether the prosecution's second argument is predicated upon insufficient facts derived from the prosecution's incorrect application of MRE 1004.

XI. Whether the prosecutor's third argument is predicated upon insufficient facts derived from the prosecution's incorrect application of MRE 1004.

XII. Whether the prosecutor's fourth argument is predicated upon insufficient facts derived from the prosecution's incorrect application of MRE 1004.

XIII. Whether the trial judge erred in finding a Batson violation.

XIV. Whether the trial court was correct in ruling that the racial composition of the jury panel cured any Batson violation that was not cured due to the failure to reseat the peremptorily dismissed jurors.

XV. Whether the appellate court erred ruling that the prosecutor had not systematically excluded minorities from the defendant's jury by use of peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

XVI. Whether the Michigan Supreme Court should have ruled upon the merits of Petitioner's prior delayed application for leave to appeal.

XVII. Whether the prosecutor's reasons for dismissing juror's #2 and #9 were sufficient to avoid a finding of purposeful discrimination in the exercise of peremptory challenges.

XVIII. Whether the trial court correctly found that jury selection did not violate Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), because "the same number if not more" unchallenged African-American jurors remained on the jury that heard the case.

XIX. Whether the trial judge erroneously continued the trial with the existing panel after she expressed dissatisfaction with the prosecutor's race-neutral reasons for excusing two African-American jurors who cold not be recalled.

XX. Whether the trial court's finding of a Batson violation was sufficiently clear on this record, and was not clearly erroneous; the trial court's subsequent decision to proceed with the trial was an abuse of discretion.

XXI. Whether the Michigan Supreme Court's "factual finding" that the trial court "did not" find a Batson violation as a matter of law, constitutes a denial of fundamental due process under the U.S. Constitution in (U.S.C.A. 6 & 14) and is clearly erroneous under U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948), where the trial court "did" find a ...


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