Cristini v. McKee

• Decision Date: 22 May 2008
• Docket Number: No. 06-1606.,06-1606.
• Citation: 526 F.3d 888
• Parties: James Craig CRISTINI, Petitioner-Appellee, v. Ken McKEE, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

526 F.3d 888

James Craig CRISTINI, Petitioner-Appellee, v. Ken McKEE, Respondent-Appellant.

No. 06-1606.

United States Court of Appeals, Sixth Circuit.

Submitted: January 31, 2008.

Decided and Filed: May 22, 2008.

ON BRIEF:

B. Eric Restuccia, Office of the Michigan Attorney General, Appellate Division, Lansing, Michigan, for Respondent. James Cristini, St. Louis, Michigan, pro se.

Before: DAUGHTREY and McKEAGUE, Circuit Judges; GWIN, District Judge.^*

OPINION

GWIN, District Judge.

Respondent-Appellant Ken McKee, warden for Petitioner-Appellee James Craig Cristini, appeals an order from the district court conditionally granting Petitioner a writ of habeas corpus after finding prosecutorial misconduct. In this habeas action originally filed in the Eastern District of Michigan, Petitioner Cristini argued inter alia that the Michigan prosecutor improperly offered and argued other-acts evidence and that the prosecutor improperly commented on the credibility of defense witnesses. The district court agreed. On appeal, Warden McKee maintains that the prosecutor did not engage in misconduct and that, even if he did, the misconduct did not result in such prejudice as to warrant habeas relief.

For the reasons stated below, we REVERSE the district court.

I. Background

The Michigan Court of Appeals summarized the facts in the underlying crime as follows:

Defendant's convictions arise out of the killing of James Scott Bussell, who died of blunt force injuries to his head after being repeatedly kicked by defendant in an auto body shop owned by Tayser Mona in the early morning hours of January 17, 1994. At trial, Mona was the key prosecution witness testifying pursuant to an agreement with the prosecutor following his convictions for mutilation of a dead body and habitual offender, fourth offense arising from his involvement in the incident. See People v. Mona, unpublished opinion per curiam of the Court of Appeals, issued September 30, 1997 (Docket No. 188075).

According to Mona, on January 16, 1994, defendant, Mona and Bussell spent the late afternoon together at the Oakland Mall, purchasing merchandise with bad checks. Thereafter, the threesome went together in Mona's car to various places, including Mona's home. Defendant, Mona and Bussell then went to "Tycoon's," a topless bar, where they stayed until closing time. After leaving the bar, between 2:00 and 3:00 a.m. on January 17, the threesome went together in Mona's car to his collision shop located on Dequindre just north of Nine Mile to make calls to several "escort services." Mona testified that while he was on the phone, he saw Bussell stand up and push defendant. In response, defendant hit Bussell in the face, causing Bussell to fall to the floor. At that point, Mona saw defendant, who was wearing cowboy boots, repeatedly kick Bussell in the head. When Mona asked them to stop fighting, defendant ceased kicking Bussell, who was injured and lying on the floor. However, according to Mona, defendant again started kicking Bussell, about two or three times. After defendant sat down in response to Mona's request to stop hitting Bussell, defendant got up again and began kicking Bussell. Mona then went to the back of his shop to get some ice, returning with a rag with cold water on it. When Mona returned, defendant, who was standing over Bussell, told Mona that Bussell was dead. At that point, defendant again kicked Bussell very hard in the head. Subsequently, defendant asked Mona to let him use his car to move Bussell's body.

Thereafter, Mona assisted defendant in moving Bussell's body to his car and transporting the body to an alley near Seven Mile and John R in Detroit. Placing the body next to a dumpster, defendant poured lacquer thinner over the body and set it on fire. Mona and defendant then returned to the collision shop to clean up the blood stains on the floor and to destroy any evidence that might implicate them in Bussell's death. Next, Mona and defendant drove to a motel on Eight Mile and Dequindre, where they threw out a piece of carpeting that was used to wrap the deceased's body. As they drove along Eight Mile, Mona and defendant also tossed out the deceased's personal effects, bloody clothes and rags through the car window.

According to Mona, he and defendant then went to a White Castle at Eight Mile and Gratiot, where defendant bought hamburgers to bring back to the shop for a final look. Then, defendant and Mona went to the Oakland Mall to retrieve Bussell's car. Mona testified that he then followed defendant driving Bussell's car to a gasoline station on Woodward and Eleven Mile Road to buy a gas can and gasoline. According to Mona, defendant went into the station, bought the gas can and pumped the gas. After purchasing the gasoline, Mona followed defendant in Bussell's car to another location in Detroit. There, defendant poured gasoline into Bussell's car and then set it on fire.

People v. Cristini, 1998 Mich.App. LEXIS 1920, 1998 WL 1990510 (July 17, 1998)

Michigan brought murder and abuse-of-corpse charges against both Petitioner Cristini and Tayser Mona. After Mona's trial was severed, a Michigan jury convicted Mona of being an accessory to murder after the fact and with mutilation of Bussell's body. After being found guilty, codefendant Mona agreed to testify against Cristini. In return for Mona's testimony, the prosecutor agreed to reduce the habitual offender charge so that Mona faced 13-20 years rather than a life sentence.

At trial, the prosecution offered evidence that Cristini introduced victim Bussell to Mona, who had not previously known Bussell. Defendant Cristini testified that he "grew up with Scott Bussell" and he had "hung out with Scott." The three went out together on January 16, 1994, staying out until after the bars closed, when they went to Mona's body shop, apparently to call prostitutes. After returning to that location, Mona testified that Cristini and Bussell got into an argument, that Cristini punched Bussell, knocking him down, and then continued kicking Bussell in the head while Bussell lay on the ground, causing his death.

According to the prosecution, Cristini and Mona then took Bussell's body to a location in Detroit and set it on fire with paint thinner. The prosecution also offered evidence that Cristini and Mona recovered Bussell's car, purchased gasoline at a gasoline station, and then set Bussell's vehicle on fire on a Detroit street.

In addition to Mona's testimony describing how Cristini killed Bussell, the prosecution offered testimony of a number of witnesses who corroborated Mona's testimony and identified Cristini or a person with Cristini's features as being involved with the disposition of Bussell's body. Darold Sayler, a garbage collector, testified that he saw three people in the alley in Detroit where the victim's body was found between 3:00 and 3:45 am at a distance of approximately 120 to 150 feet. The three people "were all kind of like shoulder to shoulder coming around the can like they were moving something" and "they started the fire." Sayler blew his horn and two of the men ran off to a vehicle at the other end of the alley way. Another individual later found Scott Bussell's burnt body at the place where Sayler saw these two men start the fire.

A security guard at Oakland Mall, Jason Lee, testified that he saw the victim's car parked at the mall between 3:00 and 4:00 am and recorded it in his abandoned-vehicle log. Between 7:00 and 8:00 am, guard Lee noticed a second vehicle taking a place adjacent to the abandoned vehicle. He saw two white men in their mid-twenties to early thirties. One he identified as Mona, and the second man he described as having a lighter complexion, "bushy long" blonde hair, and weighing about 210 pounds. Eventually, one of the persons entered victim Bussell's blue Aries, and both vehicles drove off.

Police recovered the victim's car ten days later. It had been burned by a fire set by spreading gasoline in the car's interior. The police found two melted down plastic containers in the car.

An Amoco gas station attendant, Ramsey, testified that she recognized both Mona and Cristini as having purchased a gasoline container and gasoline from her between 7:00 and 8:00 am on the morning following Bussell's death. She described the person who purchased the gasoline as "tall and he had blond hair and it was on the back of his neck." She further testified that Mona had bought a gas container with gas from another attendant.

The other gas station attendant, Christian, testified that co-defendant Mona had purchased a small amount of gasoline from her and was accompanied by another man who had neck-length blonde hair: "He was on the lot next to the car when they were pumping the gas, and I could only see the back of his head. And he was tall and he had blonde hair and it was on the back of his neck." She testified that it was unusual for people to buy gas containers: "Most people don't want to pay $3.29 for a gas can they only need for a few minutes." She could not identify this second man.

In addition to this testimony, the prosecution called seven witnesses who testified about prior assaults that Cristini had committed. Prior to trial, the prosecutor had filed a pre-trial notice of his intention to use this prior bad acts evidence pursuant to M.R.E. 404(b). The prosecutor had sought to use this evidence to show Cristini's modus operandi in committing unprovoked assaults by striking the heads of his victims with various objects. Over defense counsel's objection, the trial court ruled that evidence regarding these prior assaults could be admitted. In his opening argument, the prosecutor indicated he would not rely solely on Tayser Mona's testimony, but would also offer evidence that Cristini had a history of directing his assaults to the faces of his victims.¹ This evidence, he said, would demonstrate that the Petitioner had a "propensity" for assaulting...