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Humphries v. Brewer

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

August 21, 2019

SHAWN BREWER, Respondent.



         Annie Humphries, (“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 unarmed robbery, MICH. COMP. LAWS § 750.530, and first-degree home invasion, Mich. Comp. Laws § 750.110a(2). Petitioner was sentenced to 6 to 20 years for the robbery conviction and 10 to 25 years for the home invasion conviction.

         The petition raises six claims: (1) the trial court erred in allowing admission of a second recording of a surveillance video, (2) the trial court erred in scoring the sentencing guidelines, (3) the prosecutor and police erroneously failed to preserve the original surveillance video, (4) the trial court erred in allowing lay opinion testimony, (5) Petitioner was denied the effective assistance of trial counsel, and (6) the trial court lacked jurisdiction to try Petitioner. The Court will deny the petition because Petitioner's claims are without merit. 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):

Defendant's convictions arise out of her role in the robbery of 81-year-old Robert Jones inside his Highland Park apartment on January 6, 2013. At trial, the prosecution's theory was (1) that defendant aided and abetted an unknown man who entered the victim's apartment, demanded money, and took $85, based on her knowledge that Jones left his apartment door unlocked so that others could enter to assist him, and (2) that defendant decided to rob the victim after he refused to loan her money.
According to Jones's testimony, defendant, who lived in Jones's apartment complex, entered his apartment at approximately 6:00 or 7:00 p.m. by simply opening the door, which she usually did because she was a good friend of Jones's girlfriend, who was Jones's caretaker. Jones left the door open for his girlfriend because he did not have an extra key for her. Defendant said to Jones, “Bob, let me have $2.00, ” and Jones replied that he did not have $2. She repeated her request, and Jones again told her that he did not have any money. Defendant then left, closing the door behind her.
A few seconds after defendant left Jones's apartment, the door opened again and a man walked in. Jones did not see what the man looked like, as his face was covered with the arm of a lighter-colored coat or jacket. The man said, “Bob, give me all of your money.” Because the man called Jones by his name, Jones thought that he might know the man. Jones initially thought the man was joking, but he then saw that the man had a knife in his left hand. Jones, who was in a wheelchair, became afraid and did not want the man to get behind him, so he kept moving to keep the man in front of him. Jones refused to give the man any money, but the man took $85 from Jones's pocket. Subsequently, Jones refused to accompany the man into the hallway. The man swung the knife at him; when Jones put up his arm to keep his face from being cut, the blade cut his right wrist. Jones then went downstairs, and a woman there encouraged him to call the police. Highland Park Police Officers Adam Lewis and Lisa Schultz responded to the call.
After the incident, Detective Paul Thomas, the officer in charge, spoke with the apartment building manager, Ayana Nichols, and learned that surveillance footage was available from cameras placed in common areas in the apartment building. The surveillance footage was recorded on a computer system. After speaking with Nichols, Thomas did not believe that he would be able to obtain a copy of the original footage directly from the surveillance system. Thomas also learned that the footage would be saved for only six days before the system would automatically record over the old footage. In order to preserve the footage, Thomas's partner, Detective Terrell Shaw, held his tablet up to the surveillance system's video screen and used the tablet to record the surveillance video; the officers believed, given the time constraints, that this was the best way to preserve the evidence.²
At trial, defendant moved in limine to exclude the recording under the best evidence rule. The trial court denied defendant's motion in limine, and the prosecution presented the recording of the surveillance footage from the tablet. According to Thomas's testimony, he viewed the original version and the version recorded on the tablet, determining that they appeared to be the same; everything that he had seen on the original system was captured by Shaw's recording. He did not believe that anything on the recording had been altered, and he denied changing anything on the recording made by Shaw. The date and time on the original recording corresponded to the date and time of the offense. Nichols viewed the copy of the recording made on Shaw's tablet and believed that nothing had been altered from the original version; the only difference was that the date and timestamps were more visible on the original recording. Likewise, Nichols viewed the recording at trial and confirmed that it was the same footage captured by the surveillance system.
Thomas also testified regarding the events that transpired on the surveillance video.3 He indicated that the recording showed defendant letting a person into the building, walking and getting on an elevator with that person, entering and exiting her apartment with the same person, and then getting on the elevator again to go to another floor. Based on the video, Thomas testified that he believed that defendant was associated with the other person and that defendant did not knock before entering Jones's apartment. Thomas testified that Nichols told him that she was only able to identify defendant in the video, not the man who was with defendant. Thomas indicated that the recording did not show the events that occurred inside Jones's apartment, but the recording showed the unidentified man leaving the building on his own, without defendant.
Nichols also provided testimony regarding the activities depicted on the surveillance video, narrating the events as the jury viewed the recording and identifying particular aspects of the building and its layout. She explained that the recording initially showed the building's parking lot and a side stairwell. Next, the recording showed defendant letting someone into the building through the side door and walking up the stairs behind the man. The video showed that the man exited the elevator at the same time that defendant got off and followed her into an apartment rather quickly; Nichols stated that they went into the apartment where defendant was living with her boyfriend's father. After staying in the apartment for a brief period, defendant and the man left the unit and entered the elevator on the fourth floor. The man got off somewhere between the fifth and seventh floors, while defendant rode up to the eighth floor, where Jones lived. When the man entered the elevator, he was wearing dark clothing, but when he exited, he was wearing a white hooded shirt. He walked down the hallway in the direction of a stairwell, which anyone could enter without a key or swipe card. When defendant subsequently exited the elevator, she was carrying a bag with something in it. After checking the surveillance cameras picturing the elevators on all of the other floors, Nichols determined that defendant and the man were the only two people who entered that particular elevator. Nichols explained that the recording then showed defendant walking toward the end of the hallway, where Jones's apartment was located. Defendant entered Jones's apartment for about 15 to 20 seconds and then walked back out, looking back to her left as she exited. Nichols then testified that the recording showed a man in a white hooded jacket leaving Jones's apartment and exiting down a stairwell to a vehicle parked outside. Nichols indicated that there was video footage showing where defendant went after she entered the elevator for the second time, but that footage was not recorded on the tablet.

         Lewis also testified regarding his conversation with Jones when Lewis arrived at the location following the incident:

Q. What was the nature of the conversation you had in the lobby?
A. Basically what had occurred. And he had stated that he believed that another resident at the location had kind of set him up to get money stolen from him while he was in his apartment.
Q. All right, now. Based on-without telling me what he said at this point-based on what he told you, did you determine that there were some persons that you wanted to try to find and speak to?
A. That is correct.
Q. And was one of those persons a female by the name of Annie Humphries?
A. Yes.
Q. Why was that, based on what Mr. Jones told you, that you wanted to speak to Ms. Humphries?
A. Well, he had stated that-when I originally spoke with him-that Ms. Humphries had walked into his apartment unannounced, requested $2.00 to purchase some alcohol.
He had stated that he informed Ms. Humphries that he did not have the $2.00.
At that point he states that Ms. Humphries exited. And as soon as she had exited his apartment door, in came Suspect 1, the unidentified black male that basically had his face covered, and stated, knew him by name.
Told Bob, “Give me your money, Bob. Give me your money.”
And he stated basically that he felt the two of them were involved in this together, Ms. Humphries and this unidentified suspect.
Q. And that was the reason that you wanted to speak to Ms. Humphries?
A. That's correct.

         At sentencing, the defense only identified one factual issue in the [presentence investigation report (PSIR)], indicating that defendant had no recollection of the 1992 misdemeanor conviction of possession of counterfeit bank or municipal bills that was listed under her adult history. Although the prosecution indicated that it had no problem with the trial court striking the misdemeanor from the PSIR, the trial court decided not to strike the conviction because the misdemeanor did not affect defendant's sentencing guidelines. The court stated, “[W]e'll note on the record here that the defendant contests that she has this. And it's noted, duly noted for the record so that in the future she can challenge it if she gets information or proof that it's not her.” Following this exchange, the trial court noted that it only received sentencing guidelines for the first-degree home invasion conviction, so it made a copy of the [sentencing information report (SIR)] for that conviction and created a second SIR for the unarmed robbery conviction. Defendant did not raise any objections to the trial court's scoring of the sentencing guidelines, including the gaps between her previous convictions, which she committed between 1992 and 2008.

         2At trial, Nichols testified that she did not believe that copies could be made from the building's surveillance equipment because there was no way to plug in a cord to attach it to a computer or another recording device, and the surveillance system did not have a disc that could be removed. Nichols contacted the corporate office and the persons who installed the system, and she was advised that there was no way to make a direct copy of the recording. She testified that the manner in which Officer Terrell Shaw created a copy, i.e., by recording the surveillance footage with another device as the video played on the surveillance system, was the only known way to produce or save a copy of the recording. Thomas admitted during his trial testimony that he did not ...

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