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Phillips v. Hoffner

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

December 19, 2016




         Anthony D. Phillips, (“Petitioner”), presently confined at the Lakeland Correctional Facility in Coldwater, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, through his attorney James Sterling Lawrence, in which he challenges his conviction for first-degree felony murder, M.C.L.A. 750.316. For the reasons that follow, the petition for a writ of habeas corpus is DENIED.

         I. Background

         Petitioner was convicted following a jury trial in the Wayne County Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

This case arises from the 1987 murder of Lacey Tarver in Detroit. Tarver's body was discovered in his home on Piedmont (Piedmont house) on March 4, 1987. Several items were missing, including a computer, a small television, a VCR, a cassette player, Tarver's wallet, the keys to Tarver's car, and a stereo system. A basement window in the rear of the house was broken and appeared to be the intruder's point of entry. There was blood on the wall beneath the window and on some of the broken pieces of glass, indicating that the intruder cut himself while entering.
The prosecution introduced evidence regarding the facts and circumstances surrounding the murder. Tarver and Carmen Allen, f/k/a Carmen Phillips, dated and were engaged for about four years. They lived together in the Piedmont house. Allen's daughter from a previous relationship also lived in the home. Tarver and Allen ended their relationship around Thanksgiving of 1986 and she subsequently moved out.
Defendant is Allen's brother. Allen also has a brother named Robert, or “Bobby.” Allen testified that defendant, her mother, and her sister came over to the Piedmont house frequently when she and Tarver lived there together. Bobby visited less often. About a year before Allen and defendant broke up, someone broke into the Piedmont house. After the break-in, Allen's brother Bobby was not welcome at the house.
Allen testified that she did not know of any problems between Tarver and defendant; defendant was welcome in her home. Defendant and her father did all the plumbing, painting, and other work around the house. When Allen returned to Tarver's house about two weeks after their break-up to retrieve some of her belongings, defendant went with her to help. Allen testified that the week Tarver was murdered, she sent defendant to Tarver's house to retrieve a stove hood that Tarver did not want.
Erica Ridley, Tarver's daughter, was 11 years old when her father was killed. She recalled that her father was supposed to attend a birthday party for her great-aunt on Saturday, February 28, 1987, but he never arrived at the party. The family called Tarver's house all day but was unable to contact him. Debbie Moorer, Tarver's girlfriend at the time, was the last person to see Tarver alive; she was at his house on Thursday, February 26, 1987. After Moorer had not heard from Tarver for a few days, she left a note with Tarver's brother, Edgar Tarver. Edgar found the note in his mailbox in the early morning hours of March 4, 1987, and he went to Tarver's house to check on him. When Edgar arrived, he noticed that Tarver's car was in the driveway and there were lights on inside the house.
Edgar walked around the back of the house and saw that a basement window was broken. The back door was locked, but the front door was not. Inside, the house was in disarray and appeared as if someone ransacked the home. The lights in the hallway and kitchen were on. Edgar called for Tarver but got no response. He went further into the house and saw Tarver's feet sticking out of the northeast bedroom. Edgar then saw Tarver leaning against the wall with lots of blood all around him. Tarver appeared to be dead. He was still wearing a jacket. Edgar called his wife, who called the police. Edgar also noticed that some things were missing from the house, including some electronics and Tarver's wallet and car keys.
On March 4, 1987, Dr. Marilee Frasier conducted an autopsy on Tarver. Dr. Frasier died before the 2010 trial, so Deputy Chief Medical Examiner Cheryl Loewe testified with the assistance of Dr. Frasier's records from the autopsy. Referencing Dr. Frasier's records, Dr. Loewe testified regarding the manner in which Tarver died. Specifically, she explained that Tarver suffered multiple blows to the head that were consistent with blows inflicted by both the head and claw end of a hammer. Tarver had a fractured left eye socket; there were no signs of defensive injuries on his hands or arms. Dr. Loewe testified that there was no way to tell when Tarver was actually killed, but she estimated that he was probably killed a few days before March 4, 1987, based on the degree of rigor mortis and lack of decomposition.
Sergeant James A. Bivens from the Detroit Police Department (DPD) Homicide Section was part of the initial investigative team that responded to the murder scene at 11318 Piedmont. He arrived there at approximately 2:30 a.m. on March 4, 1987, and found Tarver sitting on the floor, slumped against the wall. Sergeant Bivens noticed blunt force injury near Tarver's left ear, a puncture wound on the right side of his neck and lacerations to his right ear. A rear basement window showed evidence of forced entry. Someone removed the outer storm window and placed it on the ground. In the bathroom, a Band-Aid box was on the sink and the peeled strips of a Band-Aid (the part that is peeled off before applying the Band-Aid) were on the floor.
Officer Carl Kimber, an evidence technician, worked the crime scene at the Piedmont house. He collected items with suspected blood on them, took samples of blood from the walls and other immovable objects, and dusted for fingerprints.
The window in the basement bathroom was broken. There was glass on the floor in the basement bathroom, indicating that the window was broken from the outside. The southeast bedroom, right across the hall from Tarver's body, appeared ransacked. Items were on the floor and drawers were pulled out of the nightstand.
Paula Lytle, who worked as a senior forensic serologist in the DPD Crime Lab in 1987, tested the items that Office Kimber collected for blood and blood type. Lytle testified that she tested blood samples from defendant and Tarver and determined that they both had type O blood. Lytle testified that a piece of broken glass found beneath the broken basement window tested positive for blood. At one point, it appeared Lytle testified that she wrote “type B” somewhere on or near the item, but she testified that her test results were inconclusive with respect to the blood on the glass and she could not determine the blood type. In addition, a tissue found on the kitchen table and a blue checkbook found inside a dresser drawer in a bedroom both tested positive for type O blood.
In 2008, police tested some of the evidence recovered from the crime scene at the Piedmont house for DNA. Jennifer Summers, an expert in serology at the Michigan State Police Forensic Science Division in the Biology Unit, confirmed the presence of blood on the tissue found on the kitchen table. Summers also confirmed the presence of blood on the blue checkbook. She submitted a sample of both of these items to the Michigan State Police Northville Crime Laboratory for DNA testing. Summers also confirmed that the piece of shattered glass from the basement window contained human blood on it. There was a very faint stain in the corner. Summers did not send this sample for further testing because “it appeared to be such a faint stain in concentration, ” and there were other samples with stronger bloodstains.
Catherine Maggert, an expert in DNA profiling and forensic scientist with the crime laboratory in Northville, conducted DNA testing on the blood on the tissue and on the checkbook. Maggert explained that to develop a DNA profile, she assembles data from 13 different areas, or loci, of a DNA sample. A 14th marker indicates gender. When she tested the blood on the tissue, Maggert was able to obtain reportable data for 12 of the 13 loci. With respect to the checkbook blood, Maggert obtained reportable data for only three of the 13 loci, along with the gender area. The three loci with reportable data matched the corresponding loci in the DNA profile of the tissue blood. Maggert was also able to conclude that both DNA samples were from a male. Maggert explained that degradation or breakdown of DNA could cause the lack of reportable data from a locus.
Andrea Halvorson, another forensic scientist who performs DNA analysis at the Northville crime lab, compared the DNA profiles from the tissue blood and checkbook with a DNA profile developed from a buccal swab obtained from defendant. With respect to the tissue blood, the 12 loci for which Maggert was able to collect data matched the corresponding loci in defendant's DNA. Halvorson testified that the probability of selecting an unrelated, random, African-American individual with 12 out of 13 loci matching the corresponding loci in the tissue blood DNA was one in four quadrillion. With respect to the checkbook blood, the three loci for which Maggert was able to collect data matched the corresponding loci in defendant's DNA. Halvorson explained that the probability of selecting an unrelated, random, African-American individual with the same DNA profile as the checkbook blood was one in 211.7 people.
On cross-examination, Halvorson testified that “the DNA from a sibling or ... even a cousin, an uncle, something like that would be more similar. Those DNA types would be more likely to be found in a member of your family than they would in just a random person.” She explained that, “any sort of comparisons to [a] related individual would be a completely different statistic, ” and she agreed that the only way to eliminate a brother is to run a comparison test of the brother's DNA. Halvorson agreed that she did not receive any blood samples from defendant's brother. However, she explained that only identical twins have ever been found to have the same DNA profile and she agreed that two siblings should have different DNA profiles even though they share the same parents.
In March 1987, the DPD's Latent Fingerprint Unit received nine photographs of print lifts, which Officer Kimber lifted during his investigation at the Piedmont house. Officer John Frelich compared the lifted prints with known prints from defendant, and Fred Moore, a senior technician, verified Officer Frelich's work. Marci McCleary, an expert in latent fingerprint examination and comparison and current employee of the Latent Fingerprint Unit, reexamined the prints in 2010. She testified that of the nine print lifts received, three were unusable because they did not have at least nine different characteristics. A fourth print was from a Band-Aid box, found on the sink in the bathroom on the first floor. McCleary concluded that this print matched defendant's left thumb; she matched 14 different identification points between defendant's known print and the Band-Aid box print. None of the other prints matched defendant and there were some prints that neither matched defendant nor Tarver.
Finally, the prosecution called Officer Charles Braxton to testify that police seized a waist-length, black and yellow size large jacket from defendant's house during a search after Tarver's murder. The jacket had two suspected bullet holes in the left shoulder area. However, on cross-examination, Officer Braxton clarified that he was probably just an observer during the execution of the search warrant and that he did not remember if he actually saw the jacket. Officer Braxton and Lytle testified that there was blood on the inside of the jacket near the left shoulder area. Lytle testified that the jacket tested positive for type O human blood.
During rebuttal argument, the prosecutor referenced that police seized the jacket from defendant's home and mentioned that it had type O blood inside. The prosecutor argued:
Is it the deceased['s] blood or is it the defendant's blood? I really can't tell you that.
It's possible it could be either one of those, all right.
It' possible that it could very well be the defendant's blood after he was cut and everything, stuck his hand back in the jacket and got it there.
Following four days of trial testimony, the jury convicted defendant and the trial court sentenced him as set forth above. Thereafter, defendant filed a claim of appeal in this Court and subsequently moved for a new trial, an evidentiary hearing, and judgment notwithstanding the verdict. In his motion, defendant raised the same issues that he now raises on appeal including his argument that the prosecutor admitted false evidence when it introduced evidence of the jacket at trial. Defendant attached documentation to his motion to support his argument that police did not seize the jacket from his residence after the murder. Specifically, a DPD laboratory technician report indicated that the laboratory received the jacket on March 12, 1987, from Officer Kramer. Police executed a search warrant at defendant's home on March 11, 1987, at 9074 Westwood. However, the search warrant return indicated that police did not seize anything during the search. In addition, Officer Kramer wrote a memorandum on April 16, 1987, wherein he indicated that police did not seize anything during the search.
As noted above, at trial, the prosecution presented the testimony of Officer Braxton to establish that police seized the jacket with blood on the inside from defendant's home after Tarver's murder. Following defendant's motion for a new trial, the prosecution acknowledged that police did not seize the jacket during the search warrant related to this case. Police actually seized the jacket on September 11, 1986, in an unrelated incident before Tarver was murdered. However, the prosecution argued that the improper introduction of the evidence did not deny defendant a fair trial or affect the trial's outcome.
The trial court held an evidentiary hearing on June 2, 2011. Officer Braxton testified that he reviewed a laboratory analysis report for the jacket before testifying at trial. The report indicated that police seized the jacket from 9074 Westwood and that the laboratory received the jacket for analysis on March 12, 1987. Based on the information in the report, Officer Braxton assumed that police seized the jacket during the March 11, 1987 search of defendant's residence. Officer Braxton denied speaking with the trial prosecutor about deceiving the jury with his testimony. He explained that he did not discuss his testimony before trial with the prosecutor; the prosecutor just asked him to review the laboratory report.
The trial prosecutor also testified that he thought police seized the jacket during their execution of the search warrant on March 11, 1987 based on the date of the search warrant and the laboratory report. The test results for the jacket were included on the same report as the other evidence from the Tarver murder scene. He did not discover that his assumption was incorrect until he read appellate counsel's motion for a new trial. The prosecutor testified that he did not intend to make Officer Braxton testify to something that was not true, and if he had known the truth, he would not have introduced the jacket evidence. Furthermore, he did not reference the jacket in his opening statement or initial closing argument and only mentioned the jacket during rebuttal in response to defense counsel's closing argument. There was nothing in the case file to indicate why Officer Kramer brought the jacket to the lab on March 12, 1987.
As discussed in more detail below, the trial court also heard testimony concerning defendant's ineffective assistance of counsel claim. The trial court denied defendant's motion for a new trial and for judgment notwithstanding the verdict.

People v. Phillips, No. 300533, 2013 WL 2223388, at *1-5 (Mich. Ct. App. May 21, 2013).

         Petitioner's conviction was affirmed on appeal. Id., lv. den. 495 Mich. 882, 838 N.W.2d 151 (2013).

         Petitioner seeks a writ of habeas corpus on the following grounds:

I. The evidence was insufficient to convict petitioner.
II. The court denied the right of confrontation, and the due process right to present a defense, by precluding legitimate questioning of witnesses, in several cases made even worse by allowing the prosecutor to inquire into the same subjects.
III. Petitioner was prejudiced by multiple confrontation violations involving testimony by one person about the actions and findings of another that the testifier did not personally witness.
IV. The prosecutor improperly inquired into the defense witness asking for an attorney.
V. The prosecutor improperly subverted the presumption of innocence.
VI. The prosecutor committed misconduct, denied due process, violated evidentiary rules, and tainted petitioner before the jury by presenting prejudicial false evidence.
VII. Petitioner was prejudiced by ineffective assistance of counsel.

         II. Standard of Review

         28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court ...

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