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Smith v. Romanowski

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

June 22, 2017

DEVI SMITH, Petitioner,
v.
KENNETH ROMANOWSKI, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, GRANTING A CERTIFICATE OF APPEALABILITY WITH RESPECT TO PETITIONER'S THIRD CLAIM, AND GRANTING PERMISSION FOR LEAVE TO APPEAL IN FORMA PAUPERIS

          BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE

         Devi Smith, (“Petitioner”), was convicted in Wayne County Circuit Court of two counts of first-degree murder, Mich. Comp. Laws. § 750.316(1)(a), two counts of torture, Mich. Comp. Laws. § 750.85, and possession of a firearm during the commission of a felony, Mich. Comp. Laws. § 750.227b. Petitioner was sentenced to life imprisonment for the murder convictions, twenty-three to fifty years for the torture convictions, and a consecutive two-year term for the firearm conviction.

         The amended habeas petition raises three claims: (1) petitioner's statement to police should have been suppressed when he read aloud the waiver of rights form incorrectly and the interrogating officer failed to correct the mistake, (2) the trial court erroneously admitted the recording of a 911 call made by the victims' young daughter, and (3) petitioner was denied the effective assistance of trial and appellate counsel. The petition will be denied because the claims are without merit. The Court will grant petitioner a certificate of appealability with respect to his third claim, deny a certificate of appealability with respect to his other two claims, and grant leave to proceed in forma pauperis on appeal.

         I. BACKGROUND

         This case involves the March 1, 2010, murder of Monica Botello and Percil Carson at their Detroit home. Petitioner was tried twice. After the first trial, petitioner's co-defendant, Derrick Smith, was convicted of murder, torture, and felony-firearm. The jury was unable to reach a verdict on the charges against petitioner.

         At petitioner's second trial, evidence was presented that he and Derrick went to the victims' residence under the pretense of completing a drug transaction. As the money was being counted, Derrick and petitioner drew handguns. Petitioner ordered Botello and her two young daughters into a bathroom at gunpoint. Botello was later taken out of the bathroom, and the men bound her and Carson's wrists with duct tape. Carson begged for his life, pleading with the two men that he had a family. Derrick and petitioner directed Botello and Carson into the basement, where they were laid across a couch and their mouths duct-taped. Carson was shot once in the front of the head, and Botello was shot once in the back of the head.

         Meanwhile, one of Botello's daughters in the bathroom, eight-year-old Tayonna, heard Carson's pleas, her parents forced into the basement, and gunshots. She called 911 after Derrick and petitioner left the house. Tayonna described the two perpetrators to the operator and said a man, who she later identified as petitioner, forced her into the bathroom at gunpoint. The day after the murders, Tayonna again described the perpetrators. She also later picked petitioner at a photographic identification procedure. Petitioner refused to participate in a live line-up.

         Another witness, Shantell Crankfield, also picked petitioner out of a photographic identification array as the man who was with Derrick and Carson at the house on the evening of the murders. Crankfield left shortly before the incident occurred.

         Petitioner was apprehended about six months after the crime. In his statement to police, he admitted to being in the victims' house, but he claimed that he did nothing to aid Derrick, who he claims was solely responsible for binding, robbing, and killing the two victims. Petitioner's defense was that Derrick called him and asked him to come to Carson's house to facilitate a drug deal. When petitioner saw that Derrick planned to rob Carson, he escorted the children to the bathroom for their own protection and then left the premises. The prosecutor relied on Tayonna's statements and testimony that petitioner was armed with a gun and forced them into the bathroom to discredit petitioner's version of events, and she asserted that petitioner's conduct at a minimum constituted aiding and abetting Derrick's crimes.

         Based on this evidence, the jury found petitioner guilty of the offenses indicated above. Following his conviction and sentence, petitioner filed a claim of appeal in the Michigan Court of Appeals. His appellate brief raised the following claims:

I. [Petitioner] did not voluntarily, knowingly and intelligently waive his constitutional rights when he did not read the waiver of right's form correctly and the interrogator failed to correct him.
II. The trial court admitted irrelevant and prejudicial evidence in violation of Michigan Rules of Evidence 401 and 403 when it admitted Tayonna Botello's 911 call.

         The Michigan Court of Appeals affirmed petitioner's conviction in an unpublished opinion. People v. Smith, No. 306574 (Mich. Ct. App. Nov. 27, 2012). Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims as in the Michigan Court of Appeals. The Michigan Supreme Court denied the application because it was not persuaded that the questions presented. People v. Smith, 829 N.W.2d 203 (Mich. 2013).

         Petitioner then filed his federal habeas petition along with a motion to stay the petition so he could return to the state court to exhaust a claim of ineffective assistance of counsel claim. The Court granted petitioner's motion to stay.

         Petitioner then returned to the state trial court and filed a motion for relief from judgment, raising claims regarding the effectiveness of his trial and appellate counsel. Petitioner claimed this his trial counsel was ineffective for failing to call two defense witnesses, Jeffery Haugabook and Nina Funchess, who testified at the first trial. Haugabook testified at the first trial that Derrick was with someone other than petitioner, a different “young un, ” at a Wal-Mart when the robbery was discussed and planned. Funchess also testified at the first trial that she saw Derrick both before and after the crimes, but petitioner was not with him.

         On September 16, 2014, the trial court denied the motion for relief on the merits, finding that petitioner's counsel did not perform deficiently, and that petitioner was not prejudiced by his counsel's performance in light of the strength of the evidence indicating his guilt. See Wayne County Circuit Court Sept. 16, 2014, Opinion and Order. The Court also found that petitioner failed to demonstrate actual prejudice as required under Michigan Court Rule 6.508(D)(3)(b). Id.

         Petitioner then filed an application for leave to appeal in the Michigan Court of Appeals. The Michigan Court of Appeals denied the application for failure to establish entitlement to relief under Michigan Court Rule 6.508(D) and for “failure to establish that good cause should be waived.” People v. Smith, No. 326534 (Mich. Ct. App. June 2, 2015). Petitioner applied for leave to appeal this decision in the Michigan Supreme Court, but was also denied relief under Rule 6.508(D). People v. Smith, 878 N.W.2d 870 (Mich. 2016).

         Petitioner thereafter filed an amended petition and motion to life the stay, which the Court granted. Respondent responded, and the matter is now ready for decision.

         II. ...


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