169 F.3d 352 (6th Cir. 1999), 98-1039, Nevers v. Killinger

Docket Nº:98-1039.
Citation:169 F.3d 352
Party Name:Larry NEVERS, Petitioner-Appellee, v. George KILLINGER, Warden of FMC Fort Worth, Forth Worth, Texas, Respondent-Appellant, Kenneth McGinnis; Michigan Department of Corrections, Respondents.
Case Date:March 01, 1999
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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169 F.3d 352 (6th Cir. 1999)

Larry NEVERS, Petitioner-Appellee,


George KILLINGER, Warden of FMC Fort Worth, Forth Worth,

Texas, Respondent-Appellant,

Kenneth McGinnis; Michigan Department of Corrections, Respondents.

No. 98-1039.

United States Court of Appeals, Sixth Circuit

March 1, 1999

Argued Sept. 25, 1998.

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[Copyrighted Material Omitted]

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Neil H. Fink (argued and briefed), David A. Koelzer (briefed), Law Offices of Neil H. Fink, Birmingham, MI, for Petitioner-Appellee.

Olga Agnello (argued and briefed), Office of Prosecuting Attorney, County of Wayne, Detroit, MI, for Respondent-Appellant and Respondents.

Before: NORRIS, BATCHELDER, and BRIGHT, [*] Circuit Judges.

BATCHELDER, J., delivered the opinion of the court, in which NORRIS, J., joined. BRIGHT, J. (p. 378), delivered a separate opinion concurring in the result.

BATCHELDER, Circuit Judge.

Petitioner-Appellee Larry Nevers and Walter Budzyn, Detroit Police Officers, were convicted of second degree murder in a Michigan state court in the beating death of Malice Green. They were tried jointly but by separate juries. 1 In their consolidated appeal as of right they raised claims concerning, inter alia, extrinsic influences on the jury and pre-trial publicity. People v. Budzyn, Nos. 170477, 170478, slip op. (Mich.Ct.App. March 22, 1995) (unpublished per curiam). The Michigan Court of Appeals affirmed their convictions. Id. The Michigan Supreme Court affirmed the court of appeals on the basis of the court's opinion except for the extrinsic jury influences issue, finding as to that issue "a real and substantial possibility that these external influences together could have affected the juries' verdicts." People v. Budzyn, 456 Mich. 77, 566 N.W.2d 229, 240 (1997). After performing a harmless error analysis, however, the court affirmed Nevers's conviction by finding overwhelming evidence of guilt, but reversed Budzyn's conviction and remanded his case for a new trial. Id. at 240-43.

Nevers petitioned for a writ of habeas corpus. The district court issued the writ, holding both that the trial court's decision not to grant a change of venue due to pervasive pre-trial publicity was "manifest error," Nevers v. Killinger, 990 F.Supp. 844, 855-64 (E.D.Mich.1997), and that the extraneous influences on the jury constituted constitutional error which was not "harmless," id. at 864-74. For the reasons stated below, we affirm the judgment of the district court granting the writ. We affirm the reasoning of the district court granting the writ on the claim that Nevers was denied a fair trial because of extraneous influences on the jury; and we reverse the reasoning and conclusions of the district court on the claim that Nevers was denied a fair trial because of pretrial publicity.


The facts of the beating of Malice Green are set out in the published opinions of both the federal district court and the Michigan Supreme Court, 2 and we need not exhaustively detail them again. Essential to the petition for habeas corpus before us on appeal are the facts that follow.

Nevers and his partner, Budzyn, both of whom are white, were on plainclothes duty after dark in an unmarked car when they observed Malice Green, an African-American, driving a bullet-riddled car carrying one passenger, pull up in front of a house known to the officers as one used for drug activity.

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Nevers and Budzyn initiated an investigation of the car and its occupants, and Nevers asked Green for his driver's license. Green did not respond to Nevers's request but instead went around to the passenger's side of the car, sat down in the car with his legs hanging out of the open passenger door, and began to rummage around in the glove compartment. When Budzyn shined his flashlight on Green and repeated Nevers's request to see Green's driver's license, Green reached down and grabbed something that had apparently fallen from the glove compartment onto the floor of the car. Budzyn, suspecting that the object was cocaine, asked Green what he was holding and asked him to relinquish it. Green neither responded nor complied. At this point Budzyn and Nevers undertook to force Green to give up what he was holding, and in the ensuing struggle, Nevers struck Green repeatedly on the hands and head with a flashlight.

During the course of the incident a number of other police officers and two EMS crews arrived. According to the first two technicians to arrive on the scene, they were driving by and saw Green hanging out of the driver's side of the car, blood streaming from his head and puddling on the ground. Nevers was holding Green with one hand and holding a flashlight with the other, ordering Green to hold still and open his hand. These two technicians agreed that Green looked dazed, that he was squirming and moving around but not attempting to fight Nevers off, that Green did not comply with Nevers's orders to open his hand, and that Nevers struck Green on the head with the flashlight. Their accounts of the number of blows to the head varied; one technician said he saw Nevers deliver four blows; the other testified to five or six. One of these technicians testified that as soon as he arrived at the scene he approached Nevers and asked him what had happened, and that Nevers replied, "I hit him. And if he doesn't quit it, I'm gonna hit him again." The testimony of the second EMS crew, who arrived somewhat later, confirms the general picture painted by the first crew; one of the second crew, however, estimated that Nevers delivered ten blows to Green's head.

Whether Green attempted to resist being handcuffed, and who did what to Green during the process of handcuffing him, are the subject of considerable variations in the testimony. At least one witness, however, testified that he saw car keys in Green's hand, and all of the testimony is consistent that Green was repeatedly ordered to drop whatever he held in his hand but refused to do so. Various of the witnesses testified that Green was struck, punched and kicked during and after the handcuffing, and some of those blows were attributed to Nevers. Finally, all of the EMS technicians agreed that shortly after the officers succeeded in handcuffing Green, he had a seizure or seizures and, despite the ministrations by the medical technicians, he died at the scene.

Nevers testified in his own defense. According to his testimony, he was talking with one of the civilians at the scene when Budzyn began to struggle with Green. Nevers ran to the passenger side of the car with his flashlight in hand. Hearing from Budzyn that Green had something in his hand, Nevers pried Green's clenched fist open. Something which Nevers thought was a rock of cocaine fell out, and Green closed his fist again. Green began to bring his knees up toward Nevers's chest to prevent Nevers from again opening Green's hand, and Nevers struck him on his knees "a couple of times" in an attempt to keep Green from kneeing him. Nevers then grabbed Green's hand and began to strike it, with each strike telling Green to open his hand. Worried that the gathering crowd might jump into the fray, Nevers told the crowd they could all leave. At this point, Budzyn said that Green was trying to get out of the car, so Nevers ran around to the driver's side, getting there as the door was beginning to open. Nevers pulled the door open and Green's head and torso fell out of the door. Nevers was holding Green by his clothing, when Green grabbed the handle of Nevers's holstered gun, and Nevers hit him on the head. Nevers testified that on an earlier occasion his gun had been taken from him by a suspect he was attempting to apprehend and Nevers did not intend ever to be in that position again. After Green let go of his gun, Nevers said, he did not hit Green again. Seeing an approaching

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EMS truck, Nevers signaled it to stop. Green then began flailing his left arm around inside the car and when Nevers grabbed it, Green began swinging at him with his clenched right fist, which held something shiny between the fingers. Nevers explained that he feared that the shiny object in Green's hand might have been a knife or razor blade, and he therefore responded by striking Green again on the head, and telling him to open his hand, drop the object, and stop struggling. Nevers said that he struck Green in the head a total of five or six times over the course of the entire incident, and that two of those blows were struck after the first EMS crew arrived.

At trial, the state introduced the testimony of Dr. Kalil Jiraki, an assistant Wayne County medical examiner, who testified that Green had suffered at least fourteen separate blunt force blows to the head, and that the cause of death was blunt force trauma to the head. Dr. Jiraki acknowledged that Green was under the influence of cocaine when he died, but stated that the amount of cocaine in his blood probably did not contribute to his death.

Nevers introduced his own experts to contradict Dr. Jiraki. One of them, Dr. L.G. Dragovic, testified "that [the] blunt force trauma that was sustained to the brain was not and cannot be taken as a sole cause of death in [this] case." J.A. at 1116-17 (Dr. Dragovic Test.). Rather, Dr. Dragovic maintained that without the cocaine and the chemical produced when alcohol and cocaine are in the body together, both of which were found in Green's bloodstream, Green would not have suffered a life-threatening seizure due to the blunt force injuries to his head. Dr. Dragovic also testified that there were only eleven blunt force injuries to the brain, rather than fourteen.

A barrage of media publicity began with the first reports of Green's death. Because this incident occurred shortly after the Los Angeles riots that...

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