Alexander v. Lesatz

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

          MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE

         George Ardell Alexander, (“Petitioner”), a Michigan prisoner, filed this action under 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in the Wayne Circuit Court of first-degree felony murder, Mich. Comp. Laws § 750.316(b), and carjacking, Mich. Comp. Laws § 750.529a. Petitioner was sentenced as a fourth-time habitual felony offender to a controlling sentence of mandatory life-imprisonment for the murder conviction and a term of 40-to-60 years for the carjacking conviction.

         The petition raises five claims: (1) insufficient evidence was presented at trial to sustain Petitioner's convictions, (2) the prosecutor improperly elicited testimony from a police officer that Petitioner invoked his right to remain silent, (3) the trial court erroneously admitted evidence of an excited utterance made by Petitioner's sister, (4) Petitioner's right to confront witnesses was violated by the admission of a witness's preliminary examination testimony, and (5) the prosecutor committed misconduct by suggesting that Petitioner had committed an unidentified crime immediately prior to the instant offense.

         The Court will deny the petition because Petitioner's claims are without merit or barred by his state court procedural default. The Court will also deny Petitioner a certificate of appealability, but it will grant permission to appeal in forma pauperis.

         I. BACKGROUND

         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):

At approximately 1:30 a.m. on August 5, 2014, Robert Gibbs, Tracy Brown, Giovanni Porter, and Albert Johnson were sitting on Gibbs' porch at 9145 Oldtown Street, Detroit, Michigan. At that time, the group was planning to briefly leave Gibbs' residence and drive to a nearby liquor store to get more alcohol before the store closed at 2:00 a.m.

Suddenly, Gibbs, Brown, and Porter saw defendant, who was wearing a brown jogging suit or track suit, sprint around the corner where Gibbs' house was located. Defendant continued to run and cut across Gibbs' yard. It appeared from defendant's clothing that he had been in a fight, as his white T-shirt was “not in place like a normal person” and it had spots of blood on it. Defendant repeatedly asked Johnson to drive him to the “the west side right now, ” but Johnson refused for money-related reasons and chastised defendant for “whooping and hollering in front of . . . [his] neighbor's home.” However, defendant seemed very upset or afraid of something, and it appeared that he was “just trying to get away from that area for some reason[.]” When defendant continued to ask for a ride, Johnson told Gibbs, Brown, and Porter that they should go to the store without him while he tried to calm defendant down, expressing his belief that he could make defendant calm down by the time they returned.

As defendant and Johnson walked toward Johnson's house, Gibbs, Brown, and Porter drove to the liquor store. The trip took approximately 15 minutes. When they returned to Gibbs' residence, they did not see defendant or Johnson. However, Gibbs, Brown, and Porter then heard defendant repeatedly yell, “[T]hey're trying to rob me, ” as he exited Johnson's house or porch and walked towards Johnson's truck, a burgundy F-150. The only people in the vicinity at that time were Gibbs, Porter, and Brown, and they saw no one else come from the direction of Johnson's home or run away from the scene.

Defendant attempted to start Johnson's truck with the automatic car starter remote, while continuing to state that “they” were trying to rob him. He ultimately entered and started defendant's truck. This concerned Gibbs, Porter, and Brown because Johnson never let anyone hold his car keys unless he was present and never allowed anyone else to drive his truck.

Gibbs ran inside his house, grabbed an axe, and ran toward the truck-which, at that point, was backing down the driveway-in an attempt to prevent defendant from taking it. Defendant shifted the truck into drive while it was halfway in the street and halfway on the sidewalk and grass. He then attempted to run over Gibbs and Brown by driving toward them while revving the engine. Gibbs and Brown jumped out of the way, and defendant drove over the neighbor's grass and onto the street, turning onto the service drive and entering westbound I-94.

After defendant left, Gibbs and Brown saw Johnson lying on his porch steps and realized that he was dead. Gibbs saw a little bit of blood in Johnson's mouth and a small gash on the top of his head.

The police arrived several minutes later. Based on the condition of the porch and the front bedroom inside Johnson's residence, the police believed that “a struggle” had ensued on the porch and “a ruckus” had occurred in the bedroom. Several items and blood samples were collected and sent to the Michigan State Police Crime Laboratory for DNA testing.

Katrina Johnson lived next door to defendant's sister, Monica, on Ford Street on the west side of Detroit. In the early morning hours of August 5, 2014, she had just returned home from work when she “heard a big bang” that “almost sounded like a car crash.” She looked out the window and saw a burgundy F-150 truck. The truck had driven into a hole in the street and struck a blue Suburban that was parked in front of the hole. Katrina then saw defendant, who was wearing a brown hooded jogging suit, exit the vehicle. Defendant walked between Katrina's house and the home of her other neighbor, Sunny Willingham, and attempted to jump over Willingham's gate. Defendant was unable to do so, and the gate “made a lot of noise.” Next, defendant quickly walked in front of Katrina's house, going to his sister's house on the other side. As defendant walked by within inches of Katrina's open window, defendant and Katrina gestured in acknowledgement of each other.

At approximately 7:00 a.m., defendant's sister, Monica, knocked on Katrina's door. When Monica sat down with Katrina and Katrina's aunt, she immediately told them that “her brother had just killed someone[.]” When Katrina asked Monica if she was sure, Monica responded that “she was very sure” and provided the following description of the crime to Katrina:

She said her brother was on the east side. She didn't give an exact location, [stating] that somebody that he was acquainted with he had murdered and took his vehicle and I said, well, what kind of vehicle was it? I saw your brother just a few hours ago. She said, it's a F-150, and I said, I saw him, you know, in the vehicle, which was prior, maybe four hours prior and she said, yeah, we had to pull the vehicle around the corner and I left the keys on the dashboard.

Additionally, Monica told Katrina that she had defendant's clothing in the shopping bag and she intended to wash the clothes. Katrina left while Monica was still at her house. Based on the information from Monica, Katrina first went to see if the F-150 was still parked in the same place that she had seen it on her street and discovered that it was not. It was parked one block away near the corner of LaBelle and LaSalle, as Monica had indicated. Katrina immediately went to the police to report her findings.

Later in the morning on August 5, 2014, defendant was arrested after he surrendered to the police. The arrest occurred after he emerged from 2446 Ford Street, Detroit Michigan, while wearing a brown track suit.

Dr. Chantel Njiwaji, a doctor of forensic pathology employed by the Wayne County Medical Examiner's Office, performed an autopsy on Johnson's body. She classified Johnson's death as a homicide and was able to determine that “[t]he cause of death was blunt chest trauma and manual strangulation, ” although either of those causes were sufficient on their own to cause Johnson's death. She could not determine which injury occurred first and identified a variety of injuries on the inside and outside of his body.

People v. Alexander, 2016 WL 3767486, at *1-3 (Mich. Ct. App. Jul. 14, 2016) (footnote omitted). Following his trial, Petitioner filed a claim of appeal in the Michigan Court of Appeals. His brief on appeal filed by his appellate counsel raised six claims, from which the narrower set of his habeas claims were derived. The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion. Id.

         Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court. The court denied the application because it was not persuaded that the questions presented should be reviewed. People v. Alexander, 895 N.W.2d 187 (Mich. 2017) (Table).

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