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Parks v. Trierweiler

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

September 7, 2017

JASON PARKS, Petitioner,
v.
TONY TRIERWEILER, [1]Respondent.

          OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING CERTIFICATE OF APPEALABILITY, AND (3) DENYING PERMISSION TO FILE APPEAL IN FORMA PAUPERIS

          PAUL D. BORMAN UNITED STATES DISTRICT JUDGE.

         This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254. Petitioner Jason Parks was convicted after a jury trial in the Oakland County Circuit Court of armed robbery, Mich. Comp. Laws § 750.529, and first-degree home invasion. Mich. Comp. Laws § 750.110a(2). Petitioner was sentenced as a fourth time habitual felony offender to 25 to 60 years for the armed robbery and 15 to 50 years for the home invasion.

         The petition raises three claims: (1) Petitioner's double jeopardy rights were violated when he was retried after the prosecutor's misconduct caused his first trial to end in a mistrial, (2) Petitioner's trial was rendered fundamentally unfair by the erroneous introduction of evidence that police responded to his residence on a report of “family trouble” and recovered a machete, and (3) Petitioner was denied the effective assistance of counsel when his attorney failed to ensure a photograph of him taken from the Michigan Department of Corrections website was sufficiently cropped to eliminate any indication of its source.

         The Court finds that Petitioner's claims are without merit. Therefore, the petition will be denied. The Court will also deny Petitioner a certificate of appealability, and it will deny him leave to appeal in forma pauperis.

         I. Background

         The charges against Petitioner arose out of an incident occurring in the City of Pontiac on the night of December 10, 2012, when a man armed with a machete forced his way into an occupied residence and stole money from a bedroom.

         Petitioner's first trial ended in a mistrial during the testimony of the first witness, Tessa Coulter, who was at the residence during the robbery. Coulter testified that she learned the identity of the perpetrator through members of his family. Dkt. 11-5, 5/20/13 Jury Trial Tr. at 128. The prosecutor asked which members of the family Coulter knew, and she replied that she knew the whole family, but then she added, “[b]esides Jason, cause he was in and out of prison.” Id. at 129. Coulter also testified that April Duncan, her sister, showed her a photograph of Petitioner from the Michigan Department of Corrections website. Id. at 129-30. The prosecutor then directed Coulter, “hang on. Let's move on.” Id. at 130.

         At that point in the proceedings, defense counsel asked to approach the bench, and the jury was sent out of the courtroom. Id. at 131. Defense counsel then moved for a mistrial based on Coulter's reference to Petitioner being in and out of prison, and to her testimony that the photo was from the Michigan Department of Corrections website. Id. at 131-32. The prosecutor stated that he did not intend to elicit that testimony, and that Coulter “expand[ed] on things.” Id. at 132.

         The trial court found that the prosecutor was not at fault, and the testimony was unexpected. Id. at 133. The court also found that the testimony was highly prejudicial and could not be cured by a jury instruction. Id. at 132-33. The court granted the motion for a mistrial. Id. at 133.

         Defense counsel argued that retrial should be precluded under double jeopardy principles because the prejudicial testimony resulted from the misconduct of the prosecutor. Id. at 135-36. The trial court found that a retrial was permissible because the prejudicial testimony had not been intentionally presented. Id. at 136-37. The trial court explained:

[T]here was no intentional action on the part of the prosecutor in this matter. I was able to view him when he was questioning the witness and - and view her and her credibility, and I believe these were just voluntary statements, uh, that she made, and the prosecutor had no idea that those statements regarding Defendant's, um, being in prison in the past, I - I don't believe the prosecutor had any idea she was gonna say anything like that. Um, so I find it was innocent and, at worst, maybe possibly negligent, but I - I think it was purely innocent.

Id. at 137.

         At Petitioner's retrial, April Duncan testified that she lived with her two children in a house in the City of Pontiac. Duncan's sister, Coulter, was a frequent overnight guest. Dkt. 11-7, 5/22/13 Jury Trial Tr. at 80. On the evening of December 10, 2012, Coulter was at Duncan's house to babysit. Id. at 9, 13. Coulter and the kids were watching television when she heard a knock on the sliding glass door. Id. at 9-11. Coulter walked over to the door and saw Petitioner standing outside. Id. at 12-14. Duncan's daughter, Merissa Logan, also identified Petitioner as the man who was standing at the window. Id. at 106.

         Coulter opened the door, and Petitioner asked for April. Id. at 13. Coulter said April was not at home. Id. Petitioner identified himself as “Eric” and said that Duncan had invited him over. Id. at 13, 17. Duncan testified that she knew Petitioner, but she had not invited him to her house. Id. at 81, 101-02.

         Petitioner then lifted his shirt and grabbed a handle sticking out of his waistband. Id. at 15-16. Coulter tried to slide the door closed, but Petitioner pushed it open and came inside the house. Id. at 16-17, 53. Petitioner grabbed Coulter's arm and pulled out a machete. Id. at 17-23. Petitioner held the machete up to Coulter's chin and told her to give him her money. Id. at 16-18, 58. Coulter dropped to the floor. Id. at 18.

         Petitioner stepped over Coulter and went into April's bedroom. Id. at 19. Coulter got up and ran to a neighbor's house for help. Id. at 19. Coulter and the neighbor, who armed himself with a gun, went back to the house, but Petitioner was gone. Id. at 19-20. Coulter then called 9-1-1. Id. at 21.

         April Duncan testified that she kept her cash in the nightstand in her bedroom, and it was missing when she returned home. Id. at 32-34, 82-84. The nightstand drawer was open. Id. at 61.

         The next day Deputy Chris Miracle responded to a report of “family trouble” at another house in Pontiac. Id. at 74-75. Petitioner's name had been mentioned in the report, but he was not at the residence when Miracle arrived. Id. at 75. Miracle found a two-foot long machete on the porch. Id. at 75. Coulter identified it as the machete used by Petitioner during the robbery. Id. at 23-24.

         A day or two after the robbery Coulter received a phone call from her friend, Ashley Smith. Id. at 25. Smith told her information about the robbery, and Coulter then relayed that information to Duncan. Id. at 25-26. Duncan later showed Coulter a photo of ...


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