Daniels v. Burke, 95-1974

• Decision Date: 08 May 1996
• Docket Number: No. 95-1974,95-1974
• Citation: 83 F.3d 760
• Parties: Kenneth Dwayne DANIELS, Petitioner-Appellant, v. Luella BURKE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 760

83 F.3d 760

Kenneth Dwayne DANIELS, Petitioner-Appellant, v. Luella BURKE, Respondent-Appellee.

No. 95-1974.

United States Court of Appeals, Sixth Circuit.

May 8, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied June 19, 1996.

Anne M. Yantus (argued and briefed), State Appellate Defender Office, Detroit, MI, for petitioner-appellant.

Kathleen Davison Hunter (argued and briefed), Asst. Atty. Gen., Office of the Atty. Gen., Habeas Div., Lansing, MI, for respondent-appellee.

Before: KENNEDY and MOORE, Circuit Judges; WELLS, ^* District Judge.

KENNEDY, Circuit Judge.

Petitioner appeals the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, we AFFIRM.

I.

On May 8, 1987, petitioner received a call from his girlfriend's mother, Delores Turner, from whom he learned that his girlfriend, Joann Turner Reese, was having more problems with her estranged husband, David Reese. David Reese had a history of domestic violence against Joann Turner Reese. Petitioner was familiar with David Reese's violent tendencies.

Later that night, at 12:30 a.m., petitioner arrived at the home of Delores and Joseph Turner, Sr., armed with a gun. Before witnesses, he confronted David Reese, firing his gun and hitting the refrigerator. Reese fled with petitioner in pursuit.

Witnesses then heard another gunshot. Soon after, they saw Reese returning toward the house. He had been shot but was nonetheless in pursuit of petitioner, armed with a 2x4 piece of wood. A number of witnesses stood by as the two then fought (although Joann Turner Reese ran inside to call the police). Petitioner stabbed David Reese several times during the fight. One witness testified that petitioner told someone to stand back adding, "I am going to kill this motherfucker." Reese soon fell to the ground and petitioner dragged his body underneath a nearby porch. A coroner determined that Reese died from five stab wounds and one gunshot wound.

Following the killing, a police officer took Delores Turner's written statement. That signed statement quoted Delores Turner as having said that petitioner, earlier in the evening of May 8, 1987, said that "he was tired of [Reese] and was going to kill him." The trial court admitted this evidence, overruling a hearsay objection, on the basis of the hearsay exception for a recorded recollection, MRE 803(5). See People v. Daniels, 192 Mich.App. 658, 482 N.W.2d 176, 180 (1991), appeal denied, 440 Mich. 882, 487 N.W.2d 464 (1992).

Petitioner was subsequently charged with first-degree murder and felony firearm. During its deliberations, the jury notified the trial judge that it was at an impasse and, in spite of the judge's explicit instruction not to do so, specified that jurors were divided 11-1, although the foreperson did not reveal whether the 11-1 vote was in favor of acquittal or conviction or whether the vote concerned one of the lesser included offenses to the murder count. In fact, the foreperson did not reveal which count (or whether each) was dead-locked at 11-1. At this time, defense counsel moved for a poll of the jury as to possible partial verdicts. The motion was denied. Further instruction from the trial judge failed to produce a unanimous verdict and the jury was dismissed as a hung jury.

Petitioner was brought to trial a second time. At the voir dire stage, defense counsel proposed 10 questions be asked only of prospective white jurors concerning racial attitudes. ¹ The trial court concluded that since this case involved a black defendant and a black victim, the questions were irrelevant.

At the conclusion of the government's case in the second trial, defense counsel moved for a directed verdict on the charge of first-degree murder, arguing a lack of proof as to premeditation and deliberation. That motion was denied. Petitioner defended on the grounds of self-defense and the defense of another; the jury, nevertheless, convicted him of second-degree murder, M.C.L. 750.317, and felony firearm, M.C.L. 750.227b. Petitioner was sentenced to a mandatory two year sentence for felony firearm and thirty-to-fifty years for second degree murder.

Petitioner's convictions were affirmed on appeal and the Michigan Supreme Court denied discretionary review. People v. Daniels, 192 Mich.App. 658, 482 N.W.2d 176, 180 (1991), appeal denied, 440 Mich. 882, 487 N.W.2d 464 (1992). Petitioner then raised six issues in his petition for writ of habeas corpus in the United States District Court. The Court denied the petition. Daniels v. Burt, 895 F.Supp. 180 (E.D.Mich.1995).

II.

Petitioner appeals the denial of his petition and specifically the District Court's treatment of four issues. An appellate court renders de novo review of a habeas proceeding. Cardinal v. United States, 954 F.2d 359, 362 (6th Cir.1992).

First, petitioner argues that his second trial violated his Fifth Amendment right not to be "twice put in jeopardy" for the same offense. U.S. CONST. amend. V; Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062 23 L.Ed.2d 707 (1969) (incorporating this safeguard against the states through the Fourteenth Amendment). Second, petitioner argues that the failure to direct a verdict as to first-degree murder denied him his Fifth Amendment right to due process. U.S. CONST. amend. V; Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979). Third, he argues that the trial court's refusal to allow voir dire on the issue of racial prejudice denied him due process. U.S. CONST. amend. V; see Aldridge v. United States, 283 U.S. 308, 314-15, 51 S.Ct. 470, 473, 75 L.Ed. 1054 (1931). Fourth, petitioner argues that the trial court's allegedly improper admission of hearsay evidence violated his rights to due process, to a fair trial, and to confrontation of the witnesses against him. U.S. CONST. amends. V, VI, XIV. See United States v. Owens, 484 U.S. 554, 557, 108 S.Ct. 838, 841, 98 L.Ed.2d 951 (1988); Dutton v. Evans, 400 U.S. 74, 96-97, 91 S.Ct. 210, 223-24, 27 L.Ed.2d 213 (1970) (Harlan, J., concurring).

A. The Double Jeopardy Claim

The Fifth Amendment of the United States Constitution declares that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb...." U.S. CONST. amend. V. In order to protect defendants from being tried twice on the same charge, the Supreme Court has held that, absent a motion for mistrial by the defendant, a trial court will trigger the Double Jeopardy Clause by retrying a defendant when a mistrial was granted in the absence of "manifest necessity." Richardson v. United States, 468 U.S. 317, 323-24, 104 S.Ct. 3081, 3084-85, 82 L.Ed.2d 242 (1984) (citing United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824)). Justice Story, in Perez, held that a dead-locked or hung jury constitutes "manifest necessity" of a declaration of mistrial because "the ends of justice would otherwise be defeated," and this 172 year-old rule has been "constantly adhered to" since. Richardson, 468 U.S. at 324, 104 S.Ct. at 3085 (citing Logan v. United States, 144 U.S. 263, 297-98, 12 S.Ct. 617, 627-28, 36 L.Ed. 429 (1892); Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978)).

Petitioner does not take issue with the constitutionality of retrial following proper declaration of a mistrial due to a hung jury. Rather, it was the trial court's refusal to poll the jury for potential partial verdicts which petitioner argues was constitutionally infirm. Under the circumstances of this case, he argues, the trial judge should have polled the jury in case they were unanimous as to some of the included charges on the murder count against petitioner. Having failed to do so, petitioner argues, the record does not establish that mistrial on every charge was a "manifest necessity."

Before addressing the merits of petitioner's argument, we must first determine whether he advocates the establishment of a "new rule" as that term is used in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) and its progeny. The application of Teague is a threshold question in a federal habeas case. Penry v. Lynaugh, 492 U.S. 302, 313, 109 S.Ct. 2934, 2943, 106 L.Ed.2d 256 (1989); Goeke v. Branch, --- U.S. ----, ----, 115 S.Ct. 1275, 1276, 131 L.Ed.2d 152 (1995). In this case, the State raised the defense before the District Court, JA at 310, and, if raised, a court must apply it. Goeke, --- U.S. at ----, 115 S.Ct. at 1276; see also Caspari v. Bohlen, 510 U.S. 383, ----, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994) (a court may apply Teague even if not argued by a state).

Teague constrains our ability to announce new rules in collateral proceedings. Teague, 489 U.S. at 310-15, 109 S.Ct. at 1075-78. Petitioner suggests that this case concerns the application of the age-old rule of "manifest necessity," see United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824), rather than the announcement of any "new rule" and is therefore not barred by Teague. We disagree. The old rule, which the Supreme Court has characterized as "the rule that a retrial following a 'hung jury' does not violate the Double Jeopardy Clause," Richardson, 468 U.S. at 324, 104 S.Ct. at 3085, by straight-forward application hardly leads to the result sought by petitioner in this case which could be characterized as "retrial following a hung jury may violate the Double Jeopardy Clause."

We recognize that determining whether a particular decision announces a "new rule" or whether it applies a well-established constitutional principle to a new case may pose a nice distinction. See Penry, 492 U.S. at 314, 109 S.Ct. at 2944; Yates v. Aiken, 484 U.S. 211, 216-17, 108 S.Ct. 534, 537-38, 98 L.Ed.2d 546 (1988). We disagree with petitioner in this case, however, because petitioner urges us to reach a "result ... not dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 U.S....