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Brown v. Trierweiler

United States District Court, E.D. Michigan, Northern Division

November 2, 2016

TERRY BROWN, Petitioner,
v.
TONY TRIERWEILER, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS

          THOMAS L. LUDINGTON United States District Judge

         This is a habeas corpus petition filed by a state prisoner under 28 U.S.C. § 2254. Petitioner, Terry Brown, is serving a sentence of 20 to 40 years and lesser concurrent terms for his Wayne Circuit Court jury trial convictions of first-degree home invasion, Mich. Comp. Laws § 750.110a, assault with intent to commit unarmed robbery, Mich. Comp. Laws § 750.88, and aggravated assault, Mich. Comp. Laws § 750.81. The petition raises four claims: (1) Petitioner's confrontation rights were violated when he was denied the opportunity to cross examine the individual performing DNA analysis on items found near the crime scene; (2) Petitioner was denied the effective assistance of counsel at trial; (3) Petitioner was denied the effective assistance of counsel on appeal; and (4) Petitioner was denied a fair trial due to the cumulative effect of trial errors. The Court will deny the petition because Petitioner's claims do not merit relief. The Court will also deny Petitioner a certificate of appealability and deny him permission to proceed on appeal in forma pauperis.

         I.

         The charges against Petitioner stem from allegations that he and an accomplice broke into an elderly couple's home on the evening of November 27, 2009, and attempted to rob them.

         At Petitioner's trial Gerald Abel testified that on the evening in question he was taking the garbage outside to his garage when he heard footsteps behind him. Dkt. 6-11, at 30. Abel was tackled to the ground, and he felt hands pinching his nose and covering his mouth, preventing him from breathing. Id. at 35. Abel then heard his neighbor jump over the fence, causing the perpetrator to run off. Id. at 37.

         Abel saw another man emerge from the back door of his home. Abel's neighbor, Mike, grabbed this second man, pulled him to the ground, and yelled for someone to call 9-1-1. Id. at 39. The second man broke free and ran away, but his leather jacket was pulled off. Id. at 40.

         A year after the incident, at the preliminary examination, Abel identified Petitioner's voice as the voice of the man who tackled him. Id. at 41-48.

         Dorothy Abel testified that on the evening in question she was upstairs at her home when she heard voices on the first floor. She walked downstairs and saw a stranger standing in the living room. Id. at 65-66. The man told her to lie down on the floor, and then he pushed her to the floor when she refused to comply. Id. at 68. The man ran out the front door. Id. at 69. She ran to a neighbor's house and told them to call 9-1-1. Id.

         Michael Ford, the neighbor, testified that he came to Mr. Abel's assistance. His testimony largely corroborated Abel's account of the attack. Id. at 70-75.

         Det. David Loch from the Grosse Pointe Park Police Department testified that he arrived at the scene after the incident. He spoke with the victims while other officers collected several articles of clothing lying on the ground. Id. at 83. There was a brown cloth glove found between the garage and the house. Id. at 85. Police also recovered a leather jacket from the same general area. Loch found a hooded sweatshirt in front of a house down the street. Id. at 87. He retrieved a left handed glove and placed it in an envelope using a latex glove. Id. at 89. Loch found the matching glove a few houses away in the direction the witnesses said the assailants ran. Id. at 92. Following DNA testing on one of the gloves, Det. Loch obtained a search warrant for Petitioner's DNA. Id. at 97.

         Andrea Halvorson, an employee of the Michigan State Police, testified as an expert witness on DNA identification. Halvorson testified that articles of clothing submitted to her lab were tested for possible DNA. Samples were taken from these items and sent to Bode Technology Group through a federal grant because of the Michigan State Police's backlog. DNA profiles were generated by Bode, and the lab prepared a report and sent it to Halvorson. Id. at 101-04.

         Halvorson entered the profiles from the Bode report into the Michigan State Police data base. After entering the data, a match was generated from one of the DNA profiles obtained from one of the gloves with a person named Terry Spann. Halvorson subsequently determined that Terry Spann was an alias for Petitioner. Id. at 105. Halvorson then requested that the Grosse Pointe Park Police Department obtain a sample DNA from Petitioner. After receiving the known sample, she performed a comparison analysis with the results submitted by Bode from the glove. Id. at 106-111.

         Defense counsel then interposed an objection, asserting that Halvorson's testimony regarding the Bode report was hearsay and a violation of Petitioner's confrontation rights. Id. at 112. Defense counsel conducted a voir dire examination of Halvorson. She confirmed that she did not know what protocols Bode followed in their analysis, nor did she know whether the processes they followed were performed correctly. Halvorson testified that she merely received a written report from a person she did not know. Halvorson further testified that she relied on Bode's results in make the comparison with Petitioner's known sample. The trial court overruled the objection, and it found that the objection went to the weight and not admissibility of Halvorson's testimony. Id. at 113-134.

         Halvorson went on to testify that she identified Petitioner as being the source of the DNA on the glove by comparing the DNA profile contained in the Bode report with the known sample taken from Petitioner. The swab from the right hand glove showed three possible donors, one major and two minors. Major DNA types matched the known samples taken from Petitioner. Id. at 137-140.

         On cross-examination, Halvorson conceded that if there was an error with Bode' profile work it would affect her result as well. It was also determined on cross examination that the gloves were in mismarked bags, the right glove was in a bag labeled left glove and the left glove was in a bag labeled right glove. Id. at 159.

         David Hiller testified that he was the Chief of Police for the Grosse Pointe Park Police Department. Hiller testified that he took a statement from Petitioner following his arrest. Petitioner gave him a voluntary statement. Id. at 181-82. In his statement, Petitioner admitted to being with other people when it was decided they would go “hit a lick.” Petitioner said they were looking for homes that had large screen televisions. Petitioner admitted to being in the back yard next to the victims' home when other members of his group committed the crime. Petitioner denied assaulting Mr. Abel. Id. at 175-83.

         Based on this evidence, the jury found Petitioner guilty of the offenses indicated above. Following sentencing, Petitioner filed a claim of appeal in the Michigan Court of Appeals. His appellate briefs raised the following claims:

I. Mr. Brown was denied his constitutional right to the confrontation of his accusers when the prosecution failed to produce a representative from Bode Technology Group to testify at trial regarding their DNA profile analysis and the trial court abused its discretion in allowing this hearsay testimonial evidence over the objection of defense counsel.
II. Defendant was denied the effective assistance of counsel, a violation of his 6th Amendment right, when trial counsel failed to investigate the nature of the DNA evidence used by the prosecution to bring charges against Defendant, thus rendering Defendant impotent and unable to refute the scientific ...

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