Brown v. Bergh

• Decision Date: 12 June 2014
• Docket Number: Case Number 09-CV-14850
• Court: U.S. District Court — Eastern District of Michigan
• Parties: PHILLIP BROWN, Petitioner, v. DAVID BERGH, Respondent.

PHILLIP BROWN, Petitioner, v. DAVID BERGH, Respondent.

Case Number 09-CV-14850

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: June 12, 2014

Honorable Patrick J. Duggan

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS

CORPUS, GRANTING IN PART AND DENYING IN PART A CERTIFICATE OF

APPEALABILITY, AND GRANTING PERMISSION TO PROCEED ON APPEAL IN

FORMA PAUPERIS

This matter is before the Court on Petitioner Philip Brown's petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. On February 10, 2003, following a jury trial in Oakland County Circuit Court, Petitioner was convicted of first-degree premeditated murder for the death of Randy Pardy, and felonious assault. Petitioner was sentenced to life in prison for the murder conviction and 23-to-48 months for the assault conviction.

The petition, along with Petitioner's numerous supplemental pleadings, raise the following claims:

I. The court violated Petitioner's confrontation rights by excluding evidence of three pending felony charges against the state's key witness that the jury could have used to infer bias and motive to fabricate or slant his testimony.

II. The trial court denied Petitioner's right to be present at a critical stage of trial when the court offered new unsupported evidence to the deliberating jury during supplemental instructions.

III. The trial court erred by giving the deliberating jury new unsupported evidence in the form of a "testimonial statement," thereby becoming an unsworn witness against Petitioner and denying him the right to confrontation in his absence.

IV. Petitioner was denied an impartial judge when the trial court gave thedeliberating jury new unsupported evidence not admitted during trial.

V. The trial court violated due process and a fair trial by instructing the jury with a conclusive mandatory presumption of fact on a contested issue, directing a verdict on a disputed element.

VI. The trial court violated Petitioner's right to counsel at a critical stage, where counsel failed to contest the state's evidence and waived Petitioner's right to be present during the supplemental jury instruction.

VII. Petitioner's incriminating statement to police should have suppressed because they were obtained in violation of the right to counsel and without Miranda warnings.

VIII. The prosecutor engaged in repeated and deliberate acts of misconduct throughout trial including the presentation of false evidence.

IX. The trial court violated Petitioner's right to present a defense when it arbitrarily, mechanically, and disproportionately excluded a relevant and material defense witness.

X. The trial court lacked jurisdiction to try Petitioner's case.

XI. Petitioner was not arraigned upon the Criminal Information as required by state and federal law.

XII. Trial counsel was constitutionally ineffective for failing to object to numerous instances of prosecutorial misconduct.

XIII. The Michigan Supreme Court's last reasoned judgment relying upon Michigan Court Rule 6.502(G) is not applicable under the facts to foreclose federal habeas review of the claims presented in Petitioner's first motion for relief from judgment.

XIV. Appellate counsel was ineffective on direct appeal for failing to raise meritorious claims.

XV. The trial court violated Petitioner's right to a public trial by conducting a sidebar conference regarding jury instructions outside the presence of Petitioner, the jury, or the public.

XVI. The trial court erred in instructing the jury on the defenses of self-defense and imperfect self-defense.

XVII. Petitioner's confrontation rights were violated by the use of "surrogate"testimony by sending a note to the jury indicating that there were no fingerprints found on the knife.

The Court finds that all of Petitioner's claims are without merit. Therefore, the petition will be denied. The Court will, however, grant Petitioner a certificate of appealability with respect to Claims I, II, III, IV, V, VI, XV, and XVII, but deny a certificate of appealability with respect to his remaining claims. The Court will also grant Petitioner permission to proceed on appeal in forma pauperis.

I. Facts and Procedural History

At trial, the evidence indicated that Brian Weigold lived in an apartment at Petitioner's house. Weigold worked with Randy Pardy on Pardy's property repairing a semi-truck.

On April 3, 2002, Pardy's wife called Randy at Petitioner's house. Pardy was visiting Weigold about their work and said he was just leaving. He did not sound upset and did not mention Petitioner.

A short time later, Weigold called Pardy's wife and told her there had been an accident. He did not know if Randy was alright. Pardy's wife and father arrived at Petitioner's house and discovered that Pardy was dead.

Oakland County Sheriff Deputy Sarah Myers arrived at the residence at 6:15 p.m., less than a minute after she was dispatched. Oxford Police Officer Thaddeus Lambris also arrived at the scene. Weigold approached the officers, told them that someone had been stabbed, and led them to a bathroom. The officers found that a bathroom door had been broken open, and inside they found Randy Pardy lying on the floor. Myers saw a broken-off arrow sticking out of Pardy's chest. His clothes were saturated with blood. Pardy was moved to the living room where medical technicians tried to revive him. The attempts failed, and he was pronounced dead at the scene.

Blood smears were found throughout the kitchen and bathroom. A bow, a trigger release, and an arrow were found on the property outside. According to Oakland County Crime Laboratory specialist Robert Charlton, the pattern of blood drops on the kitchen floor and refrigerator indicted that the victim was moving backward while he was bleeding. Charlton saw two wounds on the right side of Pardy's body, an arrow wound and a stab-type wound. A bloody serrated hunting knife was found in a trash can in the bathroom. Bloody boot prints made by Pardy's boots were found on the bathroom floor and on the inside of the bathroom door.

Weigold testified at trial that he had lived in a pole barn at Pardy's property, but moved to an apartment in Petitioner's house. He identified the bow, trigger release, and arrows as belonging to Petitioner. Weigold was working on a semi-truck located on Pardy's property. Petitioner was unhappy with the payment arrangement between Pardy and Weigold for the work.

On the day of the incident, Pardy came into Petitioner's house without knocking, as he had done on previous occassions. As Pardy walked with Weigold towards Weigold's room, Petitioner said, "Why don't you learn to knock like a normal fucking person." Pardy responded, "Lick my nuts." Petitioner slammed his bedroom door shut.

Pardy and Weigold talked briefly in Weigold's room. According to Weigold, Pardy was unarmed. Pardy then talked to his wife on his cell phone, telling her that he was leaving. Within seconds of Pardy leaving the bedroom,Weigold heard him yell, "Oh my God, I've been shot." Pardy had been walking towards the living room and not towards Petitioner's bedroom.

Weigold did not hear any altercation before Pardy yelled. Weigold saw Pardy leaning against the doorway to the kitchen, with an arrow sticking out of his arm. He saw Petitioner was wearing the bow's trigger release on his wrist, and then he saw Petitioner run at Pardy and jab athim. Pardy ran into the bathroom. Weigold stopped Petitioner and said, "What the fuck are you doing?" Petitioner then swung a knife at Weigold. Weigold let go of Petitioner, ran out of the house, and called 9-1-1. Weigold saw Petitioner emerge from the house and throw the bow over a fence. Petitioner got into a car, and as he drove past Weigold he said, "Keep your fucking mouth shut." Weigold ran back into the house and found Pardy lying in the bathroom. Pardy said he had been stabbed.

Petitioner was arrested in Georgia three days later.

The medical examiner testified that the arrow had penetrated Pardy's right arm and went through to his chest. Pardy had also suffered a stab wound on the left side of his abdomen, and another stab wound to the center of his chest. This second stab wound went between Pardy's ribs and into his heart.

Stephen Akers testified for the defense that he had lunch with Petitioner on the day of the incident. Petitioner's demeanor was normal. Akers admitted on cross examination that Petitioner talked about being followed and monitored by the government.

Petitioner testified in his own defense. He said that when Pardy arrived at the house, he insulted Petitioner and pushed him into a chair, and Weigold laughed. After a verbal altercation in the living room, Petitioner testified that Pardy grabbed a knife off of a bookcase. Petitioner ran into the utility room and grabbed his bow. As Pardy approached with the knife, Petitioner shot him and the knife dropped to the floor. Pardy tried to reach for the knife, but Petitioner beat him to it and stabbed him in the chest. As Pardy started to fall backward, Petitioner swung again and hit Pardy in the side. Weigold then grabbed Petitioner and yelled something at him. Petitioner then went to the bathroom and kicked the door open. Pardy was lying on the floor. Petitioner tried to pull thearrow out of Pardy, but it broke. Petitioner then panicked, threw the bow over a fence, and drove away.

After deliberations, the jury found Petitioner guilty as charged. He was subsequently sentenced as indicated above.

The procedural history of Petitioner's pursuit of appellate relief is quite complex. In summary, though, Petitioner filed an appeal of right in the Michigan Court of Appeals raising six claims:

I. The trial court erred in excluding evidence that the state's key witness had a pending criminal case in which he was facing a significant prison sentence where the existence of that case was relevant to the witness' credibility.

II. The trial court erred in permitting an Oakland County Sheriff's Deputy to testify as an

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