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Bacall v. Stoddard

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

November 4, 2016

HAYES BACALL, Petitioner,
CATHLEEN STODDARD, Warden, Respondent.



         This case primarily concerns a prosecutor's inaccurate statement during closing argument and how much it prejudiced the defendant. In 2010, Petitioner Hayes Bacall shot and killed his nephew, Saif Jameel. Bacall's defense at trial was self-defense. The only eyewitness to the shooting (other than Bacall) testified that the shooting was not in self-defense. But the witness also admitted that he did not see the first shots fired. The arresting officer testified that when he asked “what happened, ” Bacall said, “I shot my nephew, he owes me $400, 000.” But Bacall's English is poor and Bacall claimed he did not have an opportunity to clarify that the shooting was in self-defense. Bacall testified that he drew his gun when he met Jameel in the office of Jameel's gas station. But he also said that he knew Jameel had previously drawn guns on people in the past, that he knew there were guns in the office, and that Jameel attempted to take his gun. During closing argument, the prosecutor asserted that trial was the “first time” that Bacall had claimed self-defense. In fact, Bacall had made the claim numerous times in jail-house telephone calls while awaiting trial-a fact of which the prosecutor was apparently aware.

         A Michigan jury convicted Bacall of first-degree, premeditated murder. His conviction was affirmed on appeal in state court.

         Bacall now seeks a writ of habeas corpus from this Court. (R. 1.) His strongest claim is that the prosecutor's false statement about when he first claimed self-defense violated his rights under the Constitution and unduly influenced the jury's verdict.

         While the issue is not free from doubt, the Court finds that the prosecutor's statement did not violate the Confrontation Clause of the Sixth Amendment and that the Michigan Court of Appeals reasonably found that the statement did not deprive Bacall of the fair trial guaranteed by the Fourteenth Amendment. For this and the reasons provided below, the Court will deny the writ.




         Hayes Bacall had a close relationship with his nephew, Saif Jameel. After Bacall came to the United States from Iraq, the two lived together (with others) in Bacall's father's home. (R. 6, PID 1568-69.) Bacall thought of Jameel as a “son” or “younger brother.” (R. 6, PID 1580.)

         Bacall began lending Jameel considerable sums of money in 2006. Jameel owned a BP gas station and asked Bacall for $50, 000 to remediate a lot across from the station so that a Starbucks could be built there. (R. 6, PID 1575, 1579.) Bacall eventually lent Jameel over $350, 000 for the Starbucks project, money Bacall obtained by taking out lines of credit against his home or his cash-checking business. (R. 6, PID 1582, 1586.) By 2009, Jameel had not paid back any of the $350, 000 principal, instead paying only the interest that Bacall owed to the banks that extended the lines of credit. (See R. 6, PID 1583, 1650.)

         In September 2009, Jameel stopped making even the interest payments. (R. 6, PID 1590- 91.) And in March 2010, Jameel asked Bacall for more money: “[Jameel] started claiming that he has a lot of loans out . . . he's getting behind, and if I don't give him any more money to complete his loan applications, uh, I'm going to be in trouble because I think I will not collect anything.” (R. 6, PID 1592.) Jameel had not only borrowed money from Bacall, but had close to $1, 000, 000 in debts. (R. 6, PID 1434.)

         According to one of Jameel's brothers, Samir Bacall, between January and July 2010, Bacall had mentioned hurting Jameel on about 15 occasions. (R. 6, PID 1104-05.) Samir recalled that the two would be talking business and then Bacall would “just jump to something and say your brother is giving me hard time, uh, I swear to you, you know, he will tell me, [we'd] always talk in Arabic or, you know, Chaldean, but the most time we talk in Arabic. He said believe me, trust me, I'm telling you I would, I'll sneak up on your brother and I'll kill him.” (R. 6, PID 1106.) Samir also recounted a conversation with Bacall shortly before Jameel's death this way: “[Bacall said, ] I'll empty the gun in [Jameel] and that's it, I don't care about life. He playing with my money, that's it, I'll kill him and I'll, I'll go to jail. And I used to tell [my uncle] do you want to to go to jail for the rest of your life. He said I can't take it no more, your brother is playing too much games with me.” (R. 6, PID 1109.) Although Samir reported these threats to Jameel, Samir never reported them to the police. (R. 6, PID 1123, 1151.)

         Sometime around June 2010, Bacall had a conversation with Jameel. According to Bacall, “[I told] him that you have not paid me my, the interest for 10 months . . . [and] nothing on the 400, 000. This is my hard work, my wife's, my kids' hard work, my life. You played games with me, you were slipping, getting those monies from me. I started begging him, asking him to, say I plea with you in any way you want, uh, just give me, uh, you know, my interest. He said, uh, he said do you want it, you want your interest, who is going to give you your money to start with.” (R. 6, PID 1604-05.)

         In early June 2010, Bacall asked Jameel for money on the principal. (R. 6, PID 1606.) Jameel gave Bacall a $2, 000 check-but postdated it until the end of June. (R. 6, PID 1606, 1651.) During the remainder of the month, Bacall constantly pleaded with Jameel “to make the check good.” (R. 6, PID 1609.) In Bacall's words, “I kept on calling him almost on a daily basis to please make the check good, and he, uh, he started saying that please don't bother me, give me couple more days, uh, and I, you know, the phone calls keep going on asking him to please make the check good and he keeps saying don't bother.” (R. 6, PID 1607.) Jameel made fun of Bacall “like in a Chaldean way, we say like I have my chin under his hand, uh, and he's, he has all my money so, uh, an then there's an expression like in Chaldean, like my hand under the rock, so . . . he was in control.” (R. 6, PID 1610.)

         An employee who worked at Jameel's gas station recounted a call between Bacall and Jameel a few days before the July 2, 2010 shooting as follows:

Q. Were you close enough [to the phone] where you could hear the defendant, Hayes Bacall, yelling?
A. Yelling.
Q. Was he yelling at Saif [Jameel]?
A. Yes.
Q. When Saif would speak back to his uncle, was Saif yelling back at his uncle?
A. Not at all.

(R. 6, PID 1531.)

         About this same time, however, another gas-station employee stated that he saw Bacall and Jameel at the station laughing and joking. (R. 6, PID 1760-61.)


         On July 2, 2010, Bacall left his business in Detroit, Michigan (telling an associate he would see him the next day) and went to see Jameel at his gas station in Troy, Michigan. Bacall carried a gun. He had a permit for the weapon, obtained it because of the high-crime location and dangerous nature of his check-cashing business, and would carry it with him when he needed to make deposits or “bring cash.” (See R. 6, PID 1572-74.) Bacall went to see Jameel because Jameel was going to give him cash toward the $2, 000 check. (R. 6, PID 1640.) Bacall recalled, “my feelings were I'm going to go talk to [Jameel] nice, uh, trying to convince him because I put myself in jeopardy and I'm trying to do, you know, do something.” (R. 6, PID 1614.) On his way to Troy, Bacall called Jameel “about 10 times, ” but Jameel did not answer. (R. 6, PID 1680.)

         A video recovered from the BP station and shown to the jury depicts what happened before and after Bacall's meeting with Jameel, but shows little of the during. The video shows Bacall entering the gas station and heading to a small back office. Danielle Iverson, who was working the cash register, testified that Bacall “looked mad” as he headed toward the office. (R. 6, PID 1065.) The video shows Bacall knocking on the back-office door (while looking back toward the front register), the door opening, and Bacall entering. Only part of the small office is shown through the doorway. Slieman Bashi, who had known both Bacall and Jameel for a long time (R. 6, PID 999), is shown sitting close to the door in front of a desk. Jameel, who is almost entirely out of the camera's view, is sitting behind the desk. Bacall is shown saying something to Bashi (Bacall says he shook Bashi's hand (R. 6, PID 1615)) and then Bacall closes the door. No activity is seen or heard on the video for about 16 seconds, at which point several gun shots are heard. The back-office door then opens slightly, only for about a second, with the video capturing a sliver of Jameel's body over the desk. Jameel's body is bouncing from the force of continued gunfire (presumably to Jameel's backside). Bacall is then shown opening the door to the office, with Jameel face down on the desk. Bacall exits the office followed by Bashi. Although it was disputed at trial whether Bacall or Bashi first told Iverson to call 911, the video does show Bacall telling her to call the police. The video then shows Bacall exiting the station, returning briefly while Iverson is on the phone with the police, and then going back out in front of the station and pacing back and forth. It appears that, at that point, Bacall called 911 from his cell phone. (R. 6, PID 1620.)

         Bashi and Bacall provided the jury with different accounts of what occurred in the back office.

         Bashi admitted he was at the office that day because Jameel was supposed to pay him some money that he owed him. (R. 6, PID 1010-11.) Bashi told the jury that when he saw Bacall, Bacall appeared “upset.” (R. 6, PID 1003.) He recalled that Bacall's attitude was “[y]elling somewhat, money, arguing.” (R. 6, PID 1003.) When asked about Jameel's response, Bashi stated, “[Jameel] told him, uh, don't yell, why yelling.” (R. 6, PID 1003.) Then, said Bashi, “[Jameel] was trying to get up, I think, he was like, uh, but [Bacall] didn't give him a chance. He started shooting.” (R. 6, PID 1004.) But on cross examination, Bashi admitted that he had previously testified that Jameel had “got up” (see R. 6, PID 1025), which is consistent with a blood-splatter expert's testimony that Jameel was standing for at least one shot (see R. 6, PID 1361-62). The inconsistency in Bashi's testimony might be attributable to the fact that, as Bacall and Jameel were arguing, Bashi got up to leave and turned away from them. (R. 6, PID 1045- 46.) Although it was established at trial that Jameel kept three guns in the back office-a rifle locked up against a wall, a semi-automatic on a safe under a second desk in the office, and a gun on top of a cabinet under some papers (R. 6, PID 1220-22)-Bashi testified that he saw no guns in the office and that Jameel never attempted to grab a gun. (R. 6, PID 1005.)

         Bacall recalled the events inside the office much differently. According to Bacall, after shaking Bashi's hand, “Jameel jumped out of his, he got up from his seat, and he said, uh, who brought you here, like you, who brought you here.” (R. 6, PID 1616.) Bacall told the jury: “like [Jameel's] eyes opened up, uh, cha-, cha-, uh, his face started changing, uh-right from, you know, by looking at him, I got very scared just like something, I felt something in my body.” (R. 6, PID 1617.) Bacall continued, “I got very scared. I put my hand on my gun. I tried to, uh, leave, there was no, no room for the door to get out. If I opened the door, I would either go towards [Bashi] or go towards him. . . . I pulled my gun, put it down, I wanted to make sure that I would be able to leave because I didn't want him to get to me first. Because, because I'm aware that he has a lot of weapons in the office and I had seen it. . . . I sta[r]ted telling myself what, why did I put myself in that situation, why did I come.” (R. 6, PID 1617.) Bacall testified that at that point, “[Jameel] responded by saying-you are, you're pulling your weapon on me, I'll, I'll put it in your ass. He was trying to jump on me to pull it out of my gun, out of my hand. . . . If you are a man, go-shoot-if you're a man, shoot. That's when I started shooting.” (R. 6, PID 1618.) When asked why he shot Jameel, Bacall testified, “I knew I was going to die. I was, I felt in danger. Because he had pulled a gun on, on tons of peoples with no reason. So how about, how about a person whom, whom he owes $400, 000-what do you think he will do to him.” (R. 6, PID 1620.) Bacall stated that when he was shooting, Jameel was “trying to go to his cabinet. And, and that's when I start, kept on shooting.” (R. 6, PID 1620.)

         At trial, Bacall expanded on his assertion that he was aware that Jameel had previously pulled guns on people. Bacall described being at his father's funeral and the valet telling Jameel that he could not park where he had stopped. (R. 6, PID 1596.) According to Bacall, “[Jameel] responded by saying-do you know who you're talking to. You want to stop me from parking here. Then he pulled the gun and put it in [the valet's] face.” (R. 6, PID 1596.) Bacall also described a situation at his cash-checking business where Jameel exhibited similar behavior. A group of three came in and presented Bacall with a check not written out to them. (R. 6, PID 1599.) Jameel came out of the office (Jameel had just sold the business to Bacall) and told them to take their check and go. (R. 6, PID 1599.) Argument ensued, with Jameel eventually pulling a shotgun, showing the gun he had strapped to his side, and the one that he had “in his foot.” (R. 6, PID 1600.)

         Other witnesses testified about Jameel's possession of firearms. Jameel's wife admitted that she had told police that Jameel was always “strapped” (i.e., armed) and was always ready. (R. 6, PID 1445-46.) She also admitted to having told police that Jameel was under a lot of stress around the time of the shooting. (R. 6, PID 1434-35.) Iverson, who was working the BP register on July 2, testified that it was fairly common knowledge that Jameel kept a gun at the station and that he sometimes carried one. (R. 6, PID 1080-81.) Another BP station employee (the one who overheard Bacall yelling on the phone) similarly testified that he knew Jameel carried a gun and that he had guns in the BP station office. (R. 6, PID 1545.)


         Not long after the shooting, police arrived on scene. Officer Gregory Stopczynski, the first responder, saw Bacall pacing outside the BP station: “He was cooperative and I kind of took it-he was kind of like he had a eerie calmness to him.” (R. 6, PID 863.) Stopczynski secured Bacall's gun. According to Stopczynski, “I asked him, what happened. . . . He said, I shot my nephew, he owes me $400, 000.” (R. 6, PID 855.) Bacall was eventually placed in the back of Stopczynski's police cruiser.

         In the cruiser, Stopczynski, who was unsure whether Bacall had said that his nephew owed him $400, 000 or the other way around, sought clarification. A recording from Stopczynski's cruiser captured the exchange:

STOPCZYNSKI: You, you owe your nephew four hundred?
BACALL: You owe me four hundred, [pause], thousand dollars.
STOPCZYNSKI: He owes you?
STOPCZYNSKI: So that's why you shot him.
BACALL: Yes, I, I, I-
STOPCZYNSKI: -Okay you know your rights, right?
BACALL: Yes I'm right.
STOPCZYNSKI: Constitutional rights?
BACALL: Yes everything's right. ...

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