568 F.3d 577 (6th Cir. 2009), 07-1403, Rosencrantz v. Lafler

Docket Nº:07-1403.
Citation:568 F.3d 577
Opinion Judge:COOK, Circuit Judge.
Party Name:Timothy R. ROSENCRANTZ, Petitioner-Appellant, v. Blaine LAFLER, Respondent-Appellee.
Attorney:ARGUED: Nancy L. McGunn, Federal Defender Office, Detroit, Michigan, for Appellant. Debra M. Gagliardi, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: Nancy L. McGunn, Federal Defender Office, Detroit, Michigan, for Appellant. Debra M. Gagliardi, Office of the...
Judge Panel:Before BOGGS, Chief Judge; COLE and COOK, Circuit Judges.
Case Date:June 09, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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568 F.3d 577 (6th Cir. 2009)

Timothy R. ROSENCRANTZ, Petitioner-Appellant,


Blaine LAFLER, Respondent-Appellee.

No. 07-1403.

United States Court of Appeals, Sixth Circuit.

June 9, 2009

Argued: Oct. 21, 2008.

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Nancy L. McGunn, Federal Defender Office, Detroit, Michigan, for Appellant.

Debra M. Gagliardi, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee.


Nancy L. McGunn, Federal Defender Office, Detroit, Michigan, for Appellant.

Debra M. Gagliardi, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee.

Before BOGGS, Chief Judge; COLE and COOK, Circuit Judges.

COOK, J., delivered the opinion of the court, in which BOGGS, C.J., joined. COLE, J. (pp. 592-97), delivered a separate dissenting opinion.


COOK, Circuit Judge.

A jury found Timothy Rosencrantz guilty of sexually assaulting Elaine Lasky. He seeks habeas relief on the ground that the prosecution, by countenancing false testimony from Lasky, violated his due process rights. As explained here, we affirm the district court's denial of Rosencrantz's petition because, even assuming the materiality of the testimony at issue, the prosecutorial misconduct qualifies as harmless under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).


A. State Court Proceedings

The controversy in this case centers on Rosencrantz's trial. The prosecution began by calling Sergeant William Gooch, who testified that Lasky reported a sexual assault to the police at 2:01 A.M. on August 17, 1995. Gooch stated that he met with Lasky by 2:06 A.M, and she told him that around 1:45 A.M. a clean-shaven, shirtless, white male with a car tattoo on his chest and driving a black pick-up truck assaulted her.

Lasky testified next, giving her story that she spent the evening of August 16th at a motel in Burton, Michigan with her friend Jack Pascoe. In contrast to Gooch's testimony, she told the jury that around 10:30 or 10:45 P.M., she left her room and walked to the motel's parking lot, where a black pick-up truck-driven by a man she identified at trial as Rosencrantz-pulled alongside her. Lasky entered the truck intending to steal Rosencrantz's money, but instead Rosencrantz, armed with a knife, sexually assaulted her, inflicting cuts to her arms, legs, and chest in the struggle. Lasky then begged him to take her back to the motel-which he did, but not before Lasky noticed the image of a car tattooed on his chest.

According to Lasky, Rosencrantz dropped her off at the motel thirty-five to sixty minutes after she left. Back in her room, she initially hesitated to involve police because she was on probation and, she said, the motel had no phone. But Lasky went on to say that she changed her mind after an hour to an hour and fifteen minutes, during which time she consumed two bottles of wine and took " one or two" Xanax pills, an anti-anxiety medication. Another twenty minutes passed before she found a phone down the street and allowed Pascoe to call the police on her behalf.

Lasky also testified that when detectives showed her a photo line-up of six faces, she " immediately" picked Rosencrantz's face as her rapist. Her direct examination concluded when the prosecutor asked Rosencrantz to bare his chest. Seeing a tattoo of a car, Lasky confirmed that it matched that of her assailant.

On cross-examination, defense counsel opened by questioning Lasky about her pretrial preparation:

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Q. Did you have an opportunity to discuss your testimony with anybody prior to coming in here today?

A. No, Sir.

Q. You never talked to anybody?

A. No, sir.

Q. You didn't go over-You weren't over to the prosecutor's office a few days ago, being brought in for any interviews? You weren't around anything like that?

A. No, sir.

Q. You didn't talk to anybody about it prior to coming in here today? You weren't in any rooms up on the second floor talking to anybody about it?

A. No, sir, I was not.

The prosecutor remained silent during this colloquy and never reopened the topic during the trial.

Defense counsel continued cross-examining Lasky, questioning her about how her account of when the assault occurred changed between her reporting to the police (approximately 1:45 A.M.) and testifying at the preliminary hearing (approximately 1:30 A.M.), and the day of trial (approximately 10:30 P.M.). Likewise, the defense undermined Lasky's credibility by eliciting admissions that: she had a retail-fraud conviction; she lied under oath during the preliminary investigation in claiming Rosencrantz forced her into the truck at knife-point; and her story varied on whether her assailant had a beard or whether he wore a shirt. Defense counsel also impeached Lasky by contrasting part of Lasky's preliminary-examination testimony, where she admitted drinking during the afternoon of the assault, with her trial testimony, where she insisted she was sober at the time she met Rosencrantz. And Lasky also conceded during cross-examination that she drank heavily after the assault, and suffered from a history of alcohol problems.

Aside from Gooch and Lasky, the state's other witnesses included Jack Pascoe, whose testimony supported much of Lasky's account, and Ellen Rogers, a pool attendant in Flint Township, Michigan, who testified that about a month before the alleged assault, she saw Rosencrantz with a car tattoo on his chest driving a dark pick-up.

Rosencrantz's defense aimed at establishing an alibi. His girlfriend claimed to be with him in Fairview, Missouri-822 miles away from the assault-on both August 16 and 17. Fairview restaurant owners, Linda and Gary Vanderlinden, also said they saw Rosencrantz in mid-to-late morning on the 17th. And his Fairview landlord testified to meeting with Rosencrantz about 2:00 P.M. on the 17th.

The jury found Rosencrantz guilty of first-degree sexual assault and felonious assault, and the court sentenced him to 22-1/2 to 50 years imprisonment. He succeeded in his state court appeal to the extent that the Michigan Court of Appeals vacated the felonious assault conviction. On the remaining conviction, Rosencrantz persisted in the Michigan Supreme Court, eventually exhausting his state remedies.

B. District Court Proceedings

Rosencrantz argued to the district court, and maintains on appeal, that the prosecutor failed to disclose exculpatory evidence or knowingly presented false testimony on four material points: (1) that the assault occurred shortly after 10:30 P.M., on August 16, 1995, rather than shortly after 1:30 A.M. on August 17, 1995, (2) that Lasky felt certain in identifying Rosencrantz as the attacker, (3) that she was sober at the time of the assault, and (4) that Lasky met with the prosecution before trial.

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Rosencrantz asserts that he discovered that Lasky testified falsely through an affidavit submitted by Jan Burgess, who stated that while working in the Genesee County Sheriff's Department from August 1993 through July 1996, interviewing detainees, she had contact with Lasky in January 1995 and May 1996 (Rosencrantz's trial took place in June 1996). With regard to her May 1996 encounters with Lasky, Burgess's affidavit states in pertinent part:

May 1996: Re-interviewed Lasky and re-enrolled her. She said she was back in jail as a witness. She said she told the police she had been raped. She said she gave a description of the man but that she had no idea what he really looked like or the details of what happened because she had been " cracked up."

May 1996: While working with Lasky in the 3rd floor activity room at approximately noon, a group of 5 or 6 men arrived on the floor. The activity deputy brought the men into the room and told me they were there to meet with Lasky and that I would have to leave. After leaving, I asked the deputy what was going on and who these men were. He pointed out [prosecutor] Garner Train and someone else from the prosecutor's office. He said the others were detectives. This group surrounded Lasky and was often quite loud, although with the room closed, the deputy and I couldn't understand what was being said. I left and returned twice more than afternoon to continue working with Lasky. Each time I returned, this group was still with Lasky (for a total time of at least 3-4 hours).

The next day, I called Lasky out to continue working with her. She was very agitated and afraid. She said she had to do what the men wanted or she felt her husband would kill her. (Note: at some time during Elaine Lasky's incarceration, I tested and interviewed John Lasky [Elaine's Husband], who was serving a one-year sentence. He told me he would not be in jail that long because his " old lady" was working with the cops and would get him out.) ... She said she worked with the police because her husband " made her" and she was so afraid of him she did whatever he told her to do.

Burgess Affidavit, at 2.

The district court conducted an evidentiary hearing to develop the factual record on Rosencrantz's claim that the prosecutor knowingly presented false testimony or allowed such testimony to stand uncorrected. Burgess and Lasky both testified at the hearing.

Lasky testified, in pertinent part, that:

• she did not use drugs the day of the assault, but had been drinking;

• she was intoxicated at the time she entered the truck;

• on the day she selected Rosencrantz's photo from a photo lineup, she was " probably still half drunk" from a night of drinking;

• she was not certain that Rosencrantz was the person who assaulted her;

• she met with...

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