United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING
PERMISSION TO APPEAL IN FORMA PAUPERIS
L. LUDINGTON United States District Judge
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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