Neuman v. Rivers

• Decision Date: 04 September 1997
• Docket Number: No. 96-1254,96-1254
• Citation: 125 F.3d 315
• Parties: David NEUMAN, Petitioner-Appellant, v. Jessie RIVERS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 315

125 F.3d 315

David NEUMAN, Petitioner-Appellant, v. Jessie RIVERS, Respondent-Appellee.

No. 96-1254.

United States Court of Appeals, Sixth Circuit.

Argued March 18, 1997.

Decided Sept. 4, 1997.

Arthur J. Tarnow (argued and briefed), Detroit, MI, for Petitioner-Appellant.

Janice M. Joyce Bartee (briefed), Office of Prosecuting Attorney, County of Wayne, Detroit, MI, Karen M. Woodside (argued), Wayne County Prosecutor's Office, Detroit, MI, for Respondent-Appellee.

Before: MERRITT, KRUPANSKY, and BOGGS, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

In June 1989, petitioner David Neuman attended an Ozzy Osbourne concert in Pine Knob, Michigan, in the company of his neighbor, Donna Michelson, her two brothers, and several other friends. The group went to the performance in David's car, but David said he was drunk, so Donna drove. After arriving at the venue, she kept the car keys. During the performance, David went off to buy a beer, and never came back to his seat. When the event was over, the group of friends looked for David in vain, then left without him.

Later, in the middle of the night, Donna returned the car to David's home. She testified that an enraged David forced her at gunpoint to have sex first with his father, Ronald Neuman, and then with himself. During the course of this activity, David's girlfriend, Sandra Michelek, telephoned. For some reason, Neuman handed the phone to Donna, who asked Sandra to call the police.

Meanwhile, Donna's brothers, Michael and Timothy Twardokis, came to the Neuman house to look for their sister. Ronald Neuman allegedly fired a gun in the air, then pointed it at Michael. David allegedly swung a sawed-off shot gun at Michael Twardokis, striking him in the head. The brothers and their sister escaped, and immediately reported the incident to the police, who arrived at the scene and arrested both Neumans.

The Neumans were tried separately, and convicted of their respective offenses: in David's case, first degree criminal sexual conduct, felonious assault (committed against Michael Twardokis), and possession of a firearm during commission of a felony ("felony-firearm"). He was sentenced to a term of imprisonment of fifteen to forty-five years on the criminal sexual conduct count, a concurrent term of two to four years on the felonious assault charge, and a consecutive two-year term on the felony-firearm count. After an initial remand for further proceedings, the Michigan Court of Appeals affirmed David's conviction and sentences, and the Michigan Supreme Court denied leave to appeal.

Neuman filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court, after receiving a magistrate judge's report and recommendation, denied the application. Neuman v. Rivers, No. 94-CV-74568-DT (E.D.Mich. Feb. 16, 1996). The district court issued a certificate of probable cause for appeal pursuant to 28 U.S.C. § 2254. We now affirm.

I

On appeal, Neuman first alleges that the trial court deprived him of his constitutional right to testify in his own behalf. Neuman asserts that he was prevented from taking the stand to testify that Michelson was untruthful, and that he had acted in self-defense as to the felonious assault count.

The defense rested without Neuman taking the stand. The court then conferred with the parties about jury instructions, and ruled that evidence did not warrant inclusion of an instruction on self-defense. Faced with that ruling, Neuman's attorney moved to reopen the proofs to allow Neuman to testify. The judge chastised Neuman's attorney, Halpern, for "playing games" with the court and for attempting to manipulate the court into reopening the proofs after the court denied a requested jury instruction. He denied the motion to allow Neuman to testify, stating: "You already rested. You don't get two bites. You made your decision. You live with it."

Neuman appealed on the grounds that he was thereby denied his Fifth Amendment right to testify on his own behalf. The state court of appeals remanded for an evidentiary hearing to determine whether Neuman voluntarily waived that right. At the hearing, Halpern testified that Neuman had made clear, since the beginning of preparation for trial, that he wanted to take the stand: "It was always the position of the defendant that he wanted to testify at trial." Initially, Halpern suggested a wait-and-see approach. For one thing, Halpern believed there was already sufficient evidence to support a theory of self-defense. Just before resting, he urged Neuman not to testify, fearing that it would open the door for the prosecution to bring in evidence of Neuman's flight from the jurisdiction. Halpern testified that, between the end of the testimony of the last defense witness and Halpern's informing the court that the defense rested, Neuman had little or no opportunity to insist to Halpern that he wanted to testify. Despite this testimony, the trial court determined that Neuman knowingly and voluntarily waived his right to testify. On review, the state court of appeals agreed, noting that "the record reflects that defendant spent approximately 15 to 20 hours with counsel preparing for trial, and that the subject of defendant testifying was frequently discussed." People v. Neuman, Nos. 133813, 139348 (Mich.Ct.App. Feb. 3, 1994).

In considering Neuman's habeas petition, the district court began its review of this issue by correctly noting that a criminal defendant has a fundamental constitutional right to testify on his own behalf. See Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S.Ct. 2704, 2708-10, 97 L.Ed.2d 37 (1987) (finding right rooted in Due Process Clauses of Fifth and Fourteenth Amendments, in Compulsory Process Clause of Sixth Amendment, and in Fifth Amendment guarantee against compelled testimony). However, that right

may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. But restrictions of a defendant's right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve. In applying its evidentiary rules a State must evaluate whether the interests served by a rule justify the limitation imposed on the defendant's constitutional right to testify.

Id. at 55-56, 107 S.Ct. at 2711 (internal citation and quotation marks omitted).

The district court, agreeing with the magistrate judge, first found that Neuman had knowingly and voluntarily waived his right to testify in his own behalf. It then went on to hold that the trial court's refusal to permit "testimony by the defendant once the proofs have been closed did not unconstitutionally infringe on the defendant's right to testify." The court relied on United States v. Jones, 880 F.2d 55 (8th Cir.1989), which stated:

The rule generally limiting testimony to the evidence-taking stage of trial does not unconstitutionally infringe upon a defendant's right to testify. While placing only a minor limitation on the right, the rule promotes both fairness and order in trials, interests which, of course, are crucial to the legitimacy of the trial process. In the interests of fairness and order, it simply imposes a commonsense requirement that the right to testify be exercised in a timely fashion. And consonant with the Supreme Court's admonition in Rock, the rule is not "arbitrary or disproportionate to the purpose [it is] designed to serve." ... In contrast to the state law struck down in Rock, which left the trial court no discretion to admit a criminal defendant's hypnotically refreshed testimony, under the rule at issue here the district court retains discretion to reopen the evidence to allow the defendant to testify. Without reasonable rules regulating the presentation of evidence and arguments, courts could not effectively function. We find here no constitutional infirmity.

880 F.2d at 59-60 (footnote omitted). The district court reasoned that the state trial court did not abuse its discretion in refusing to reopen the proofs, and consequently did not violate Neuman's right to testify.

The holding in Jones is consistent with the Supreme Court's statement in Rock that "[n]umerous state procedural and evidentiary rules control the presentation of evidence and do not offend the defendant's right to testify. See, e.g., Chambers v. Mississippi, 410 U.S. [284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) ] at 302 ... ("In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence")." 483 U.S. at 56 n. 11, 107 S.Ct. at 2711.

However, Rock also requires a court to consider whether adherence to such rules, under the circumstances of the case, is "arbitrary or disproportionate to the purposes they are designed to serve." 483 U.S. at 55-56, 107 S.Ct. at 2711-12. Obviously, it is highly important for trials to proceed along an orderly, predictable track, and, just as obviously, departures from the routine could unfairly interfere with the prosecution. However, as the district court itself pointed out, "[w]hen fundamental rights are concerned, 'courts must not mechanistically apply rules of procedure and evidence when to do so would defeat the ends of justice,' " citing Smith v. Campbell, 781 F.Supp. 521, 532 (M.D.Tenn.1991), aff'd, 961 F.2d 1578 (6th Cir.1992). Thus, it seems clear that a violation of the constitutional right to testify in one's own behalf could potentially be found in the denial of a defendant's request to testify after the proofs have been closed. Here, we find some merit to Neuman's argument that, because there had been no rebuttal witnesses, no closing arguments, and no instructions to the jury, the prosecution would not have suffered prejudice had Neuman been allowed to testify. Neuman's case differs in this way from Jones, in which, "by the time the request to testify was...