United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) GRANTING A CERTIFICATE OF APPEALABILITY
WITH RESPECT TO PETITIONER'S FIRST AND FIFTH CLAIMS, AND
(3) DENYING A CERTIFICATE OF APPEALABILITY WITH RESPECT TO
HIS REMAINING CLAIMS
V. PARKER U.S. DISTRICT JUDGE.
prisoner Antonio Stalling (“Petitioner”) filed
this habeas case under 28 U.S.C. § 2254. Petitioner is
challenging his convictions after a jury trial in the Wayne
County Circuit Court of assault with intent to murder,
possession of a firearm by a felon, and possession of a
firearm during the commission of a felony. The trial judge
sentenced Petitioner to terms of incarceration of 15 to 25
years for the assault with intent to murder conviction, 1 to
5 years for the felon in possession conviction, and a
consecutive 2-year term for the felony-firearm conviction.
support of his request for habeas relief, Petitioner raises
five claims: (1) Petitioner was denied his confrontation
rights when he was precluded from questioning the victim
whether the prosecutor threatened him with perjury; (2)
Petitioner was denied the effective assistance of trial
counsel; (3) the prosecutor committed acts of misconduct; (4)
there was insufficient evidence presented at trial; and (5)
Petitioner was denied his right to a public trial when the
courtroom doors were locking during opening statements and
Court finds that Petitioner's claims are without merit.
Therefore, it is denying Petitioner relief. The Court is
granting Petitioner a certificate of appealability with
respect to his first and fifth claims, however.
was charged with the above-described offenses in connection
with the shooting of his cousin, Isaac Johnson, on December
Petitioner's preliminary examination, Johnson testified
that he was forty-seven years old, and he identified
Petitioner as his first cousin. (2/3/12 Tr. at 11, ECF No.
7-2 at Pg ID 258.) Johnson testified that at the time of the
shooting, he was returning to his house at 12107 Otsego in
Detroit. (Id.) Johnson lived on the second floor of
a two-story flat, and Petitioner's mother lived on the
first floor. (Id. at 12, Pg ID 259.)
testified that when he returned home from the store at about
11:00 p.m. on New Year's eve, he went up the side stairs
to the second floor front porch and was opening the door when
Petitioner exited the side door of the lower flat.
(Id. at 12-13, Pg ID 259-60.) According to Johnson,
the area was well lit by a light on the side of a neighboring
house. (Id. at 13, Pg ID 260.) Nothing was covering
Petitioner's face. (Id. at 15, Pg ID 262.)
greeted Petitioner, but then Petitioner pulled a handgun from
his waistband and started firing up at Johnson from the porch
below. (Id. at 13-14, Pg ID 260-61.) Johnson was hit
in the leg and foot. (Id. at 14-16, Pg ID 261-63.)
Johnson retrieved his own weapon from his flat, but by the
time he returned outside, Petitioner had fled down the
street, entered a burgundy car, and drove away. (Id.
at 16, Pg ID 263.) Petitioner spent three days in the
hospital. (Id. at 18, Pg ID 265.)
January 5, 2012, Johnson went to the police station.
(Id. at 16-17, Pg ID 263-64.) While leaving, Johnson
noticed that his car was being followed by a vehicle
resembling the burgundy car Petitioner drove away on New
Year's eve. (Id. at 17, Pg ID 264.) Johnson
slowed his vehicle down, and the other car pulled alongside
him. (Id.) Petitioner was the driver. (Id.
at 18, Pg ID 265.) Johnson lowered his window and expressed
his disappointment in what Petitioner had done.
(Id.) Petitioner smiled and sped away.
later date, one of Petitioner's friends approached
Johnson and offered him $3, 000 to drop the charges against
Petitioner. (Id. at 26-27, Pg ID 273-74.) Johnson
trial commenced about three months after the preliminary
examination, on May 23, 2012. (5/23/12 Trial Tr., ECF No.
7-3.) The prosecutor informed the trial judge before jury
selection that Johnson was now reluctant to testify because
he had been assaulted and threatened. (Id. at 3-4,
Pg ID 295-96.) The prosecutor further informed the court that
Johnson was told he could be locked up if he did not appear
in court, and an officer had been dispatched to locate and
produce Johnson for trial. (Id. at 4, Pg ID 296.)
Johnson appeared, the prosecutor examined him outside the
presence of the jury. (Id. at 91-93, Pg ID 384-86.)
Johnson testified that he did not want to testify because he
had been threatened. (Id. at 93, Pg ID 395.) Johnson
also testified that he was now unsure whether he was shot by
Petitioner or Petitioner's brother, who Johnson claimed
looked exactly like Petitioner. (Id. at 93-94, Pg ID
385-86.) Johnson indicated that “a lot of people”
had told him that Petitioner was not the shooter.
(Id. at 94, Pg ID 386.) The judge appointed counsel
for Johnson because of the possibility he might perjure
himself at trial. (Id. at 94-95, Pg ID 386-88.) The
trial then proceeded, with the state calling Johnson as its
first witness. (Id. at 98, 115, Pg Id. 390,
testified that on December 31, 2011, his son and young
nephews were staying at his flat. (Id. at 118, Pg ID
410.) He went to the store and returned at around 11:00 p.m.
(Id. 118, 120, Pg ID 410, 412.) Johnson testified
that as he was opening the front door to his second-floor
flat, he heard someone exit the side door of the flat below
and saw someone wearing a hoodie and grey pants, who he
thought was Petitioner. (Id. at 120, Pg ID 412.)
Johnson claimed that it was kind of dark. (Id. at
121, Pg ID 413.) He equivocated as to whether the person was
Petitioner or Petitioner's brother:
And I looked, and at first I thought it was my cousin Tone
[Petitioner], but I came to realize I don't - I don't
know for sure now, you know.
I testified that it was him but I don't know now, you
I looked immediately, I thought it was my cousin Tone. I so
messed up that I really just said, what up, Tone. I thought
it was him. But like I said, it was either him or his
brother. All I know is I was angry, I said it was Tone,
though, ‘cause it looked more like Tone.
(Id. at 120-124; Pg ID 412-16; see also id.
at 144-45, Pg ID 436-37.) Johnson testified that Petitioner
and his brother look exactly alike. (Id. at 125, Pg
testified that the person pulled out a gun and shot at him
about eight or nine times, striking his leg, thighs, and
foot. (Id. at 144, 150, Pg ID 436, 442.)
prosecutor questioned Johnson about any threats he received
since his preliminary examination testimony. (Id. at
123, Pg ID 415.) Johnson testified about “[s]ome
guys” in a truck hitting him on the head with a gun and
trying to get him into their vehicle. (Id.) Johnson
claimed they “knocked [him] out” and took his
wallet, but were unable to get him into the car because
“some cars intervened.” (Id.) According
to Johnson, a “home boy” called
“Head” offered him money not to prosecute
Petitioner. (Id. at 158, 162, Pg ID 450, 454.)
also testified that after leaving the police station on
January 5, 2012, he saw Petitioner driving in a car that
looked like the one he saw on the night he was shot.
(Id. at 130-31, Pg ID 422-23.) Johnson testified
that when Petitioner pulled up next to Petitioner's car,
Johnson said “I wouldn't have never did you like
that, you know” and Petitioner responded “do
what?” (Id. at 134, Pg ID 426.) According to
Johnson, when he told Petitioner what he did, Petitioner said
nothing and just drove away. (Id.)
prosecutor pressed Johnson about a statement he gave to the
police after the encounter, which led to Johnson testifying
that Petitioner said he saw Johnson leave the police station
and that if he was going to testify, he “ain't
gonna make it to testify[.]” (Id. at 135-36,
Pg ID 428-29.) Johnson then acknowledged that what he
actually reported Petitioner saying is: “you hoe ass
nigger, you won't make it to testify.”
(Id. at 137, Pg ID 429.) Johnson admitted that he
also told the police on January 5 that Petitioner shot him
and that he believed he was going to kill him. (Id.
at 138-39, Pg ID 430-31.)
various points during her questioning of Johnson, the
prosecutor read questions posed to him at Petitioner's
preliminary examination and his answers, highlighting the
inconsistencies in Johnson's testimony shortly after the
incident and since being threatened.
cross-examination, Johnson indicated that Petitioner had not
threatened him since the shooting, but Petitioner's
brother had. (Id. at 169, Pg ID 461.) Johnson also
claimed that he did not really know what Petitioner said to
him during their encounter after Johnson left the police
station. (Id. at 183, Pg ID 475.) Johnson also
testified that Petitioner had not threatened him before the
shooting. (Id. at 174, Pg ID 466.) He described an
argument between himself, Petitioner, and Petitioner's
brother before the shooting, but said it really was something
between himself and the brother. (Id.) Johnson also
conveyed that he and Petitioner had resolved their
disagreement. (Id. at 201-02, Pg ID 493-94.)
trial attorney challenged Johnson's conviction that
Petitioner was the shooter, to which Johnson responded:
I can't - like I said, you have to see his brother to
believe me. So like I said, if it's him, I want him in
jail. But I don't know if it's really him. They said
it's his brother that did it.
I was angry. I'm going to tell you, I was - I just knew
it was him. I said it was him because I, like I said, it
looked like him and I couldn't say nothing else. I said
it was him because, like I said, him and his brother look
(Id. at 173-76, Pg ID 463-67.) Johnson testified
that Petitioner and his brother in fact look like twins.
(Id. at 201, pg ID 493.) When defense counsel asked
Johnson if he could tell the jury to a certainty that
Petitioner shot him, Johnson responded: “No.”
(Id. at 178, pg ID 470.)
trial counsel brought out that when the police responded to
the scene of the shooting, Johnson described the person who
shot him as an “unknown black male.”
(Id. at 176-177, Pg Id. 176-77.) Johnson
testified that it was dark at the time of the incident and
claimed that there was no light shining on the person who
shot him. (Id. at 177-78, Pg ID 469-70.) Johnson
admitted that he used marijuana on the night of the shooting.
(Id. at 186, Pg ID 478.)
Johnson's testimony, at the beginning of the second day
of Petitioner's trial, the prosecutor played a recording
of a phone call Petitioner placed from jail on January 24,
2012. (5/24/12 Trial Tr. at 6-8, ECF No. 7-4 at Pg ID
-523-25.) During the call, Petitioner talked about the idea
of waiving the preliminary examination, explaining:
see, anything happens, he get killed or anything, well, then,
you know what I'm saying? . . . they can't still go
on and prosecute me because there's not going to be a
record of saying I did this to him. … The thing that
he already wrote said I did to him, that-they can't use
that in court. he got to be on the record saying something.
prosecution then called two Detroit police officers to
testify. Officer Lori Briggs, an evidence technician,
testified about the condition of the scene of the shooting,
which she examined a couple of days after the incident.
(Id. at 11-16, Pg ID 528-33.) Officer Adam Szlarski
testified that on January 5, 2012, he arrested Petitioner
after a high-speed chase that ended when Petitioner crashed a
burgundy colored Nissan. (Id. at 18-24, Pg ID
Allen testified for the defense. She testified that
Petitioner is her boyfriend and that she spent New Year's
eve with Petitioner, beginning at about five or six p.m.
(Id. at 32-33, Pg ID 549-50.) Allen told the jury
that she and Petitioner cleaned his house, went to her house
at about eight or nine p.m., and then spent the remainder of
the evening together cooking and watching movies.
(Id. at 33-34, Pg ID 550-51.)
May testified that he lives next door to the house where
Johnson lived on the night of the shooting. (Id. at
56, Pg ID 573.) May arrived home from church services between
nine and nine thirty p.m. on December 31, 2011.
(Id.) May and his brother were about to leave
May's house to go to a restaurant when May heard four or
five close gunshots and observed a man running between his
car, which was parked half up the driveway, and the porch
next door. (Id. at 56-59, 74, Pg ID 573-76, 591.)
May saw the man run up the street and get into a car that was
a brighter red than burgundy. (Id. at 61-63, Pg ID
described the man he saw as a “bigger guy”, with
a dark complexion, a beard, wearing a hoodie. (Id.
at 82, 79, Pg ID 579, 596.) May indicated that he weighs 331
pounds and the shooter was big like himself. (Id. at
70, Pg ID 587.) May testified that he knows Petitioner, and
the man he saw that night was not him. (Id. at
63-64, Pg ID 580-81.) May also knows Petitioner's
brother, who he described as shorter than Petitioner, but
slim as well. (Id. at 70-71, Pg ID 587-88.) No
Detroit police officer ever contacted May about the shooting.
(Id. at 64-65, at Pg ID 581-82.) A private
investigator, who the prosecutor suggested worked for the
defense, left a card in May's door and May called him.
arguments and instructions, the jury found Petitioner guilty
of the offenses described above. (Id. at 145-46, pg
ID 662-63.) Defense counsel subsequently filed a motion for
new trial based on juror and prosecutorial misconduct. On
November 28, 2012, the court denied the motion for new trial.
13, 2012, the date scheduled for sentencing, defense counsel
moved to withdraw because of a breakdown in the
attorney-client relationship. (6/13/12 Tr. at 4, Pg ID 672.)
The trial judge granted the motion and Petitioner retained
new counsel who appeared at the new sentencing date, June 25,
2012. (Id.; 6/25/12 Tr. at 3, Pg ID 7-6 at Pg ID
677.) On that date, the trial court sentenced Petitioner as
then filed a direct appeal in the Michigan Court of Appeals,
raising the following claims:
I. The trial judge's ruling denied the defendant due
process of law in the following ways: 1. The trial court
abused its discretion when it barred the defense from cross
examining the complainant about threats and promises made by
the prosecutor in return for his testimony. 2. The trial
court abused its discretion when it permitted the prosecutor
to play the recorded jail phone call.
II. Conduct by the prosecutor denied appellant a fair trial
in the following ways: 1. The prosecutor vouched for her
case, engaged in bolstering, argued facts not in evidence,
argued facts she knew not to be true, and offered her
personal opinion. 2. The prosecutor, in argument and by
manner, denigrated defense counsel and shifted the burden of
proof and misstated facts. 3. The prosecutor misstated the
law. 4. The prosecutor commented on the defendant's right
to counsel. 5. The prosecution introduced evidence of alleged
threats to the witness which were neither proved nor
connected to the defendant and argued that the defendant was
a man of bad character. 6. The prosecution asked for sympathy
for the complainant.
III. Defendant was denied the effective assistance of counsel
in the following ways: 1. Defense counsel failed to call as a
witness Deborah Hunter, the person who lived in the
downstairs flat. 2. Trial counsel failed to object to
prosecutorial misconduct. 3. Trial counsel failed to ask for
a limiting instruction in regard to the stipulation that
defendant had been convicted of a felony. 4. Counsel failed
to move to strike the testimony concerning threats not made
by defendant. 5. Counsel failed to object to the reading of
examination testimony which implicated the defendant's
right to counsel. 6. Trial counsel failed to object to the
violation of his client's right to a public trial.
IV. There was insufficient evidence to support the verdict
because the proofs were deficient both on the intent element
and on defendant's connection to the crime.
V. Appellant's constitutional right to a public trial was
violated when the trial judge locked the court room door