United States District Court, E.D. Michigan, Southern Division
ANTHONY D. PHILLIPS, Petitioner,
BONITA HOFFNER, Respondent.
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
HONORABLE NANCY G. EDMUNDS UNITED STATES DISTRICT
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
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
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
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
People v. Phillips, No. 300533, 2013 WL 2223388, at
*1-5 (Mich. Ct. App. May 21, 2013).
conviction was affirmed on appeal. Id., lv. den. 495
Mich. 882, 838 N.W.2d 151 (2013).
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
IV. The prosecutor improperly inquired into the defense
witness asking for an attorney.
V. The prosecutor improperly subverted the presumption of
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
Standard of Review
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 ...