416 F.3d 470 (6th Cir. 2005), 03-4528, Maldonado v. Wilson

Docket Nº:03-4528.
Citation:416 F.3d 470
Party Name:Henry MALDONADO, Petitioner-Appellant, v. Julius WILSON, Warden, Respondent-Appellee.
Case Date:July 15, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 470

416 F.3d 470 (6th Cir. 2005)

Henry MALDONADO, Petitioner-Appellant,

v.

Julius WILSON, Warden, Respondent-Appellee.

No. 03-4528.

United States Court of Appeals, Sixth Circuit.

July 15, 2005

Argued: March 18, 2005.

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 02-01566—Kathleen McDonald O'Malley, District Judge.

Page 471

COUNSEL

ARGUED:

Theresa G. Haire, PUBLIC DEFENDER'S OFFICE, Columbus, Ohio, for Appellant.

Mark Joseph Zemba, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Cleveland, Ohio, for Appellee.

ON BRIEF:

Theresa G. Haire, PUBLIC DEFENDER'S OFFICE, Columbus, Ohio, for Appellant.

Mark Joseph Zemba, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Cleveland, Ohio, for Appellee.

Before: MERRITT and ROGERS, Circuit Judges; HOOD, Chief District Judge.[*]

OPINION

ROGERS, Circuit Judge.

Henry Maldonado appeals the district court's denial of his petition for a writ of habeas corpus. Maldonado was convicted in Ohio of murder, tampering with evidence, and abuse of a corpse. The district court granted a certificate of appealability on two related issues: whether the state court's admission of a police officer's testimony that the chief prosecution witness passed a "test" for truthfulness rendered Maldonado's trial fundamentally unfair in violation of the Due Process Clause; and whether the prosecutor improperly vouched for the chief prosecution witness's credibility by eliciting the police officer's testimony about the test. While admission of the comment may have been improper, the Ohio Court of Appeals' rejection of Maldonado's due process claim was not contrary to or an unreasonable application of clearly established federal law. Maldonado has forfeited his prosecutorial misconduct claim. Therefore, we affirm.

I. Background

This court presumes the state court's findings of fact to be correct. 28 U.S.C. § 2254(e)(1) (2005). The Ohio Court of Appeals recited the facts underlying Maldonado's conviction as follows:

On November 23, 1999, at approximately 8 p.m., firefighters discovered the body of fifteen-year-old Virginia Velez in a field behind a residential neighborhood in Lorain, Ohio. The body was burned. The coroner later determined that Virginia had been strangled first, then her body was set on fire. Just two hours before the grisly discovery, Virginia was with two girlfriends at one girl's home. Virginia told the girls that she was going to see her sometimes-boyfriend Henry Maldonado, who lived a few blocks away. The field where Virginia's body was found was directly behind Maldonado's house.

The police investigation included interviews with a number of persons who knew both Virginia and Maldonado. The police also received a tip that Maldonado was seen depositing a garbage bag behind a local convenience store, possibly disposing of it in the dumpster. It contained certain items belonging to Virginia. The police uncovered sufficient evidence implicating Maldonado

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that a grand jury indicted him on two counts of murder, one count of aggravated murder, abuse of a corpse, and tampering with the evidence.

On December 11, 2000, the case against Maldonado proceeded to a jury trial. Numerous witnesses appeared on behalf of the state, including the coroner, police officers, several of Virginia's relatives, and a number of teenage friends of Maldonado and Virginia. Maldonado offered nothing in his own defense. The jury returned guilty verdicts on all counts. The aggravated murder count and two counts of murder were merged. The trial court sentenced Maldonado to consecutive terms of twenty years to life for aggravated murder, three years for tampering with evidence and twelve months for abuse of a corpse.

State v. Maldonado, No. 01-CA-007759, 2001 WL 1044078, at *1 (Ohio Ct. App. Sept. 12, 2001).

Testimony about Tyrone Price, the state's key witness, forms the basis for the due process claims on which the district court granted a certificate of appealability. The Ohio Court of Appeals found that Price entered a plea agreement under which Ohio agreed to prosecute Price as a juvenile and to charge Price only with tampering with evidence, in return for Price's testifying against Maldonado. Id. at *2. Price had to pass a computer voice stress analysis test ("CVSA") in order to enter the agreement. Id. Price testified at trial that he pled guilty to tampering with evidence and was sentenced to confinement in a juvenile facility. At issue here is whether a police detective's testimony that he believed Price because Price "was tested," violated Maldonado's due process rights.

On direct examination at trial, Price testified that he went to Maldonado's house to watch movies on the night of the murder. When Maldonado went to the basement in the middle of a movie, Price followed him. Price knew that Virginia was there when he got to the basement, because he heard the two talking. Price watched as Maldonado strangled Virginia with shoelaces; it took several minutes. Maldonado asked Price to help him take the body outside, and Price refused. Maldonado put the body in a garbage can and dragged it outside. Price followed him. The garbage can tipped over once Maldonado and Price reached the edge of a woods behind the house. Maldonado asked Price to help him move the garbage can, and Price did this. Price saw Maldonado rub alcohol on the victim's body, and then Price ran home.

The Ohio Court of Appeals made the following findings of fact concerning the disputed admission of the detective's testimony:

The state's strongest evidence against Maldonado came from the testimony of Tyrone Price, a teenage friend of Maldonado. Price testified that he saw Maldonado strangle Virginia, drag the body into the open field, and douse it with rubbing alcohol. Price initially told police investigators two different stories, neither of which implicated Maldonado in the murder. Price finally cooperated with police as part of a plea agreement. . . . As part of the plea agreement, Price had to pass a voice stress test to establish his truthfulness.

During his testimony Price began to state, without solicitation, that he had taken the polygraph test. 1 Defense

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counsel objected when Price said, "I took a lie —." The objection was sustained and the statement was stricken. Later, a detective [Detective Moskal] testified about his investigation in the case. Defense counsel strongly challenged the quality of Price's testimony, and suggested that the police prematurely identified Maldonado as the primary suspect, notwithstanding Price's prior contradictory statements to police.2 In an attempt to restore the detective's credibility, the prosecution announced at sidebar its intention to ask [Moskal] on redirect if he believed Price's story and why.

Defense counsel strongly objected to the prosecution's announced intention to question the detective about the methods he used to corroborate Price's story.

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The court allowed this line of questioning to proceed. The detective stated that he believed Price's third interview which incriminated Maldonado, "[b]ecause he was tested." Defense counsel objected, but the court overruled the objection. After a sidebar, the court refused to strike the testimony.

Maldonado, 2001 WL 1044078 at *3.

On direct appeal, Maldonado stated as his fifth assignment of error, "The trial court erred in allowing the state to elicit testimony regarding the fact that Tyrone Price had taken a [C VS A] test to determine whether or not he was telling the truth and the prosecutor committed misconduct when he elicited testimony vouching for the credibility of state's witness Tyrone Price." Maldonado...

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