Brown v. Curtin

Decision Date04 November 2016
Docket NumberNo. 15-2126,No. 14-1876,14-1876,15-2126
PartiesPHILLIP BROWN, Petitioner-Appellant, v. CINDI CURTIN; DAVID BERGH, Respondents-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit


File Name: 16a0594n.06



BEFORE: MOORE, GIBBONS, and DAVIS,* Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. Phillip Brown, a Michigan prisoner, appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Following a jury trial in state court, Brown was convicted of first-degree murder and felonious assault. The district court granted a certificate of appealability (COA) on Brown's claims related to a note from the trial judge to the jury and the exclusion of evidence of a state witness's pending criminal charges. We expanded the COA to include Brown's claim of ineffective assistance of appellate counsel. Because any error by the state trial court was harmless, we affirm.


In 2003, a jury convicted Brown of first-degree murder and felonious assault. The trial court sentenced him to life imprisonment for the murder conviction and twenty-three to forty-eight months of imprisonment for the assault conviction. The Michigan Court of Appeals affirmed his convictions and sentences, and the Michigan Supreme Court denied leave to appeal. People v. Brown, No. 247313, 2004 WL 1857995 (Mich. Ct. App. Aug. 19, 2004) (per curiam), appeal denied, 698 N.W.2d 393 (Mich. 2005) (table). Brown then sought post-conviction relief in state court. His initial motion for relief from judgment was denied by the trial court under Michigan Court Rule (MCR) 6.508(D)(3)1 because his claims could have been raised on direct appeal. People v. Brown, No. 02-184580-FC (Cir. Ct. of Oakland Cty. Aug. 10, 2006). The trial court denied Brown's motion for reconsideration. People v. Brown, No. 02-184580-FC (Cir. Ct. of Oakland Cty. Mar. 29, 2007). The Michigan Court of Appeals affirmed the trial court's decision more broadly under MCR 6.508(D) and then denied a motion for reconsideration of its decision. People v. Brown, No. 283419 (Mich. Ct. App. May 12, 2008); People v. Brown, No. 283419 (Mich. Ct. App. Jul. 15, 2008). The Michigan Supreme Court then denied Brown's petition for appeal. People v. Brown, 762 N.W.2d 517 (Mich. 2009) (table). Unlike the trial and appellate courts, however, the Michigan Supreme Court cited MCR 6.502(G)2 as the basis for its ruling. Id.

Brown continued to file successive motions for relief from judgment, motions for a new trial, and petitions for state habeas corpus relief, all of which were denied. See, e.g., People v. Brown, No. 02-184580-FC (Cir. Ct. of Oakland Cty. Feb 28, 2009); Brown v. Curtin, No. 08-13313-AH (Cir. Ct. Cty. Manistee Nov. 14, 2008); Brown v. Dep't of Corr., 769 N.W.2d 714 (Mich. 2009) (table); Brown v. Dep't of Corr., No. 289220 (Mich. Ct. App. Apr. 8, 2009); People v. Brown, No. 02-184580-FC (Cir. Ct. Oakland Cty. Dec. 17, 2010); People v. Brown, No. 02-184580-FC (Cir. Ct. of Oakland Cty. Sept. 19, 2012).

The evidence at trial showed that Randy Pardy went to the apartment that Brown shared with his roommate Brian Weigold in order to pay Weigold for some work Weigold had done. While Pardy was at the home, Brown shot him with an arrow and stabbed him with a hunting knife, causing three injuries: (1) an arrow wound extending from his right elbow through his right forearm and into his right chest; (2) a stab wound on the left side of his abdomen; and (3) a stab wound to his right-center chest that extended into his heart. After injuring Pardy, Brown fled to Georgia and turned himself in the next day.

The state and defense theories at trial differed as to who was the initial aggressor. The state's theory was that Brown was the aggressor; Brown attacked Pardy, shooting him with an arrow in the arm and chest, stabbing him once with a hunting knife, and then pursuing him into the bathroom where Brown broke down the door to stab him again. In contrast, Brown asserted a self-defense theory under which Pardy was the initial aggressor. According to Brown, he shot and stabbed Pardy in quick succession because Pardy threatened him with a knife and made him fear for his life.

Weigold, Brown's roommate and the only other eyewitness, testified for the state. According to Weigold, when Pardy arrived at the apartment, he entered without knocking, as heoften did, and Brown said: "Why don't you learn to knock like a normal fuckin' person." (R. 23-9, Weigold Trial Test., Page 70, Page ID 1043.) Pardy then told Brown to "lick his nuts," and Brown got mad, turned around, and slammed his bedroom door. (Id.)

After Pardy and Weigold had talked for some time in Weigold's room, Pardy's wife called, and Pardy got up to leave. Pardy walked towards the living room, and about ten seconds later, Weigold heard him say, "Oh, my God, I've been shot." (Id. at Page 77, Page ID 1050.) Weigold did not hear Pardy or Brown say anything else or scuffle. When Weigold ran toward Pardy, he saw Pardy leaning against the doorway between the kitchen and the utility room, with an arrow sticking out of the side of his arm. Pardy did not have a knife or gun, and he was not moving. Brown, standing near the front door, began running toward Pardy and jabbed at him with a hunting knife. Pardy then ran back through the kitchen, and as Brown began running after Pardy toward the rear of the apartment, Weigold grabbed Brown by the arm and said, "[W]hat the fuck are you doing?" (R. 23-10, Weigold Trial Test., Page 90, Page ID 1063.) Brown responded by swinging the knife at Weigold, and Weigold let go of Brown's arm and ran out of the house. When Brown swung the knife at him, Weigold saw a bow release on Brown's wrist.

From outside the apartment, Weigold used his cell phone to call 911 and told the dispatcher what had happened. Weigold observed Brown get in his car, and when the car approached Weigold, Brown stopped and told him to keep "[his] fuckin' mouth shut." (Id. at Page 97, Page ID 1070.)

On cross-examination, Weigold made a number of concessions. He admitted that he had not mentioned in his preliminary examination testimony or in his handwritten statement that Brown wore the bow/trigger release. Weigold also acknowledged that though he saw Brown jab at Pardy, he could not say for certain whether he actually struck him. Weigold admitted, too thathe did not actually see Pardy get shot with the arrow and did not know what happened when Pardy went into the living room because he was on the phone in his bedroom. Finally, the cross-examination revealed some inconsistencies between Weigold's preliminary examination and his trial testimony, including whether Weigold got up to greet Pardy and whether and when he saw Brown take the hunting knife into Brown's room earlier that day.

On redirect, Weigold testified that he had told Sergeant Gary Miller, the detective sergeant investigating the case, and the prosecutor about the trigger release prior to the preliminary examination, and Sergeant Miller corroborated this testimony.

The state also presented testimony from a first responder and a medical examiner. Ronald Jahlas, a firefighter and EMT with the Oxford Fire Department, testified about damage to the bathroom door. The bottom portion of the door was missing, and what was left had been torn apart, leaving sharp, jagged edges. The top portion was open against the bathroom wall. Jahlas also observed blood in the threshold area between the utility room and the kitchen, in different areas in the kitchen, including the right corner of the refrigerator, and in the bathroom.

Bernardino Pacris, the deputy medical examiner at the Oakland County Medical Examiner, testified about his autopsy of Pardy. The arrow wound did not injure any major organs, and the stab wound on the left side of Pardy's abdomen only injured the fat tissue of the stomach. The wound to Pardy's center chest, however, cut his heart and was fatal. Though Pacris testified that Pardy's stabbing injuries were consistent with the state's theory of the case, he conceded on cross-examination that he did not know how Brown and Pardy were positioned when the injuries occurred or the order of the injuries. Pacris also acknowledged that he found no defensive wounds on Pardy's body, though this had also been true in many other autopsies he had conducted involving fatal stab wounds.

Law enforcement officers who responded to Weigold's 911 call also testified. Sarah Myers, a deputy with the Oakland County Sheriff's Department, was one of the first to arrive. She observed Weigold excitedly telling her someone had been stabbed. When Myers entered the house, she noticed blood in the kitchen area but nothing disturbed in the kitchen or living room to indicate that there had been an altercation. Pardy was on the floor of the bathroom, with his head near the area of the toilet/tub and his feet extending toward the door. Stephen Clark, another deputy with the Sheriff's Department, testified that he found a bow, arrows, a trigger guard/release, and a quiver outside near the apartment. Finally, Sergeant Miller testified that a wrist release makes it easier to pull the string of a bow back and that it takes at least a few seconds to put on.

The prosecution also presented testimony from two Oakland County Sheriff's Department crime laboratory employees. Robert Charlton, a crime laboratory specialist in the forensic services unit, testified that the hunting knife used to stab Pardy and half of an arrow were found in the garbage can in the bathroom. Charlton also opined that the blood droplets in the kitchen and on the refrigerator indicated that the person bleeding was moving from north to south, or backwards, towards the bathroom. Finally, Charlton noted that he found multiple footwear impressions on the inside of the bathroom door consistent with Pardy's...

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