Emanuel v. Foltz
| Decision Date | 27 July 1987 |
| Docket Number | No. 86-1582,86-1582 |
| Citation | 825 F.2d 410 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Lawrence EMANUEL, Petitioner-Appellant, v. Dale FOLTZ, Warden of the State Prison of South Michigan, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before ENGEL and BOGGS, Circuit Judges, and HILLMAN, District Judge. *
Appellant, Lawrence Emanuel, petitioned the district court for a writ of habeas corpus asserting that his state convictions for arson and murder violated his constitutional rights because of prosecutorial misconduct, and denial of his sixth amendment rights to counsel and to confront witnesses against him.
We affirm the district court's denial of the writ.
Emanuel was charged, along with his girlfriend Taurus Duncan, with first degree murder and arson in the killing of a young woman with whom Duncan lived. 1 At Emanuel's trial, Duncan testified that Emanuel choked the victim to death while she watched. Emanuel's defense was that he drove Duncan to the scene of the crime, but waited in the automobile outside the house while she completed the crime.
After Emanuel learned that Duncan was wanted for the crimes and before he was arrested, he consulted Leonard Townsend, an attorney, with respect to his rights. A few days later, Emanuel went to the police to ask whether they 'could hang this one on him.'
A number of events in the examination and cross-examination of the witnesses at trial form the basis of Emanuel's claims that he was denied his constitutional rights. When Duncan took the stand on the first day of the trial to testify for the State, the prosecution examined her with respect to its theory of the case and many aspects of Emanuel's character. Duncan testified that she told Emanuel that the victim was her aunt, and that Tiffany, who was the victim's infant daughter, was Emanuel's child by Duncan whom the victim had adopted. The prosecutor hammered at Duncan's motivation for testifying, with repeated questions such as 'did I suggest that you tell anything but the truth in this trial?', 'Did I ever tell you that I could do something for you if you testified?' and the like. Near the end of this line of questioning, Duncan asserted that she testified because of threats to her family and defense counsel objected and moved to strike the testimony. The prosecutor then asked Duncan various questions about the nature of her involvement with Emanuel, including whether they had sexual relations and whether she aborted the fetus that she had conceived by Emanuel.
During direct examination, the prosecutor asked Duncan to point out a psychiatrist in the courtroom whom Duncan had visited at Plymouth State Mental Hospital. On cross-examination, defense counsel asked Duncan whether she told her psychiatrist after the slaying that she was having trouble sleeping or was thinking of committing suicide. Duncan answered these questions with the statement that '[m]y reason for even saying, you know, talk to the psychiatrist, I explained to him very clearly that it was because I was tired and I, you know, really didn't want to stay in the jail,' and the prosecutor objected, giving confidentiality and privilege as the reason. The court responded 'All right.'
Following the defense case, the prosecutor recalled Duncan and asked her to recount the in-court identification of the psychiatrist. He then asserted that defense counsel should not have asked Duncan about her visit to any psychiatrist. After finding on the record that Duncan did not waive her psychiatrist-patient privilege, the trial court advised her of her privilege not to testify with respect to the visit, and she exercised it with respect to her dealings with all psychiatrists. The judge excused the jury and Duncan and ruled that the physician-patient privilege compelled the court to prevent the defense from calling her psychotherapist as a witness, but did not subsequently, in the presence of the jury, instruct the jury to disregard any of her prior testimony regarding the visits to her psychotherapist.
The prosecution rested its case on the first day of the trial. Also on the first day, the defense presented its main case. The defense called character witnesses, and then Emanuel testified in his own behalf. Emanuel was asked about his character. On cross examination, the prosecutor probed Emanuel's character with questions about his marital status, reputation for peacefulness, and personal involvement in fighting, among other traits. Emanuel admitted to involvement in a number of fights, and he admitted that he was sexually involved with Duncan while he was married.
Also during cross-examination during the first day of the trial, the prosecutor asked Emanuel when he first consulted a lawyer. Emanuel replied that it was the day of his arrest. The prosecutor then asked him whether Emanuel concluded that his statement to the police on the day of his arrest was tantamount to a confession, after Emanuel had consulted with an attorney. The court sustained the defense counsel's objection to this question.
The following day on cross-examination, the prosecutor engaged in tactics that were intended to elicit the purpose of Emanuel's visit to the attorney before his arrest. The prosecutor asked Emanuel on direct examination whether he consulted with an attorney prior to going to the police to ask whether he was a suspect. Later, on recross examination, the prosecutor asked Emanuel to relate the conversation that he had with Leonard Townsend, the attorney, prior to going to the police to ask whether 'they could hang this one on him.' The court overruled the defense counsel's objection based on attorney-client privilege, because the court determined that the privilege had been waived.
After Emanuel finished his testimony, the attorney he consulted before his arrest, Leonard Townsend, testified for the State. When Townsend finished his testimony, the defense counsel objected to his being excused from the stand. Defense counsel wanted to elicit that Emanuel had contacted Townsend earlier about an adoption matter, but the trial court denied the request.
The trial judge did not instruct the jury to disregard any of the remarks or questions of the prosecutor, either during the cross-examination of Emanuel or the direct examination of Duncan.
At the conclusion of the trial, the jury found Emanuel guilty of first degree murder and arson. The judge sentenced Emanuel to a mandatory life sentence for the murder and thirteen to twenty years imprisonment for the arson.
On consideration of Emanuel's habeas corpus petition, the district court found that the prosecutor had only asked Emanuel about the circumstances of Emanuel's conversation with Townsend, and that the prosecutor's warning to Emanuel not to tell the jury of the visit further mitigated the possibility of any prejudice. In further support of the State's position, the district court determined that Emanuel voluntarily explained the content of the Townsend discussions on redirect.
The district court also found that Emanuel failed to object to most of the prosecutor's questions; and furthermore, that in all instances of the alleged misconduct, Emanuel failed to request limiting instructions or a mistrial. However, the district court found that the state courts relied upon this procedural ground in the dismissal of only one of the claims of prosecutorial misconduct, which was the claim pertaining to testimony about Emanuel's allegedly simultaneous sexual relations with his wife and girlfriend. The district court concluded that the state courts...
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