Davenport v. Maclaren

• Decision Date: 30 June 2020
• Docket Number: No. 17-2267,17-2267
• Citation: 964 F.3d 448
• Parties: Ervine Lee DAVENPORT, Petitioner-Appellant, v. Duncan MACLAREN, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

964 F.3d 448

Ervine Lee DAVENPORT, Petitioner-Appellant,

v.Duncan MACLAREN, Warden, Respondent-Appellee.

No. 17-2267

United States Court of Appeals, Sixth Circuit.

Argued: May 7, 2019

Decided and Filed: June 30, 2020

OPINION

JANE B. STRANCH, Circuit Judge.

Ervine Lee Davenport was convicted of first-degree murder after a jury trial in Michigan state court. He challenges his conviction in a habeas corpus petition under 28 U.S.C. § 2254 because he was visibly shackled at the waist, wrist, and ankles during trial. The State of Michigan admits Davenport's shackling was unconstitutional but argues that the habeas petition should be denied because this error was harmless. The district court agreed it was harmless error and denied the petition. Because "shackling is ‘inherently prejudicial,’ " Deck v. Missouri , 544 U.S. 622, 635, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (quoting Holbrook v. Flynn , 475 U.S. 560, 568, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986) ), and the evidence of premeditation and deliberation necessary to a first-degree murder conviction was not overwhelming, the State has not met its burden to show the restraints did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson , 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). We therefore REVERSE the judgment of the district court, GRANT Davenport a conditional writ of habeas corpus, and REMAND the case for further proceedings.

I. BACKGROUND

A. The Trial

Davenport killed Annette White in the early hours of January 13, 2007. At his 2008 trial, he testified that he had been drinking beer and smoking crack cocaine with White and some friends when White was asked to leave her friends’ house due to her aggressive behavior. According to Davenport's testimony, he tried to calm her down as he drove her home. While he drove, she was saying that she was hot and taking off her clothes. She demanded that he take her to a specific apartment building and tried to grab the steering wheel. Each time she tried to grab the wheel, Davenport pushed her back. She then started yelling and kicking and pulled out a boxcutter, which she swung at Davenport, cutting his arm. Davenport testified that he was afraid of the knife and trying to avoid oncoming traffic. As he continued to drive, Davenport pinned her against the side of the car with his fully extended hand pressed against her neck. Right as he was about to let up, she scratched him on the face, and he "pinned her back up against the other side of the car." At some point, he noticed that she was no longer struggling; initially, he thought that she had calmed down or passed out but then he realized she was not breathing. He panicked and left her partially clothed body in a field. He testified that he was not sure how long he held White back by the throat but that it "seemed like ... everything happened fast."

Some of this testimony was corroborated by other evidence at trial. Medical evidence established that White had consumed a substantial amount of alcohol and crack cocaine shortly before her death. An independent witness also testified that he had consumed beer and crack cocaine with Davenport and White that night. This witness further testified that he asked White to leave at about 2:30 a.m. that morning because she was acting "agitated" and "getting crazy." She was "ranting and raving," though he would not describe her as "violent." Other witnesses testified that White would get angry when she smoked crack cocaine, and that she was "a spitfire" who had a reputation for fighting.

But medical evidence seemingly contradicted other aspects of Davenport's testimony. A forensic pathologist, Dr. Brian Hunter, testified that although it would take 30 seconds to cut someone's air off sufficiently to cause them to pass out, it would take at least four to five minutes to suffocate someone to death. Dr. Hunter also testified in rebuttal that the injuries to White were not consistent with Davenport's testimony that he did not choke White and instead "his hand was flexed and that all he was doing was pushing her against the door." Dr. Hunter explained that the injuries to either side of White's neck, but not the middle, were "more consistent with choking than ... broad pressure there."

The prosecution also presented testimony that Davenport had strangled another woman until she was unconscious less than a week before White's death. Another witness testified that Davenport had told him a couple of times that "if things got out of hand," he would choke people. Davenport told this same witness that White "kept coming back at him and it just got out of hand, and that's when he offed her."

In its closing, the defense argued that this was a case of self-defense. In contrast, after giving 17 reasons why Davenport's " ‘self-defense’ claim was bogus,"¹ the prosecution claimed that "[t]he only real issue is whether it's first-degree" or second-degree murder. The only support for premeditation and deliberation the prosecution gave in its closing statement was the length of time it would take to choke someone to death. The prosecutor claimed, "[c]learly he had the opportunity to hesitate, stop, think about what he was doing, and not kill her. I submit to you there's more than enough evidence of premeditation and deliberation for first-degree murder, but at the very least obviously this is second-degree murder." After deliberating for six hours over the course of two days, the jury found Davenport guilty of first-degree murder.

During the trial, Davenport had one hand cuffed, as well as shackles around his waist and ankles. The trial judge allowed "his right hand to be uncuffed so he could write notes to his counsel." The judge also noted that there was a privacy curtain around the defense table. Defense counsel referred to the "[c]ourt's policy regarding the shackles," but there was no on-the-record justification given for the shackling.

B. The State Court Appeals and Evidentiary Hearing

On direct appeal, Davenport raised several issues, including that "he was denied his due process rights when the trial court required him to wear shackles during the trial." People v. Davenport , Docket No. 287767, 2010 WL 3062279, at *1 (Mich. Ct. App. Aug. 5, 2010). The Michigan Court of Appeals found that this issue was unpreserved. Id. Reviewing it for plain error, the court found that "it was error for the trial court to order defendant to be restrained without making the requisite findings," but that Davenport had "not shown that his restraints were visible to the jury" and thus had "not demonstrated prejudice." Id. at *1–2. The Michigan Supreme Court reversed, finding that this issue was preserved² and remanding the case to the trial court for an evidentiary hearing. People v. Davenport , 488 Mich. 1054, 794 N.W.2d 616 (2011). The Michigan Supreme Court directed the trial court to determine whether "the jury saw the defendant's shackles" and, if so, "whether the prosecution can demonstrate beyond a reasonable doubt that the shackling error did not contribute to the verdict against the defendant." Id. (citing Deck , 544 U.S. at 635, 125 S.Ct. 2007 ).

The trial court subsequently held an evidentiary hearing where all 12 jurors testified. This evidentiary hearing was held on June 24 and July 29, 2011, approximately three years after the trial. Five jurors testified that they saw Davenport's waist chain, handcuffs, or ankle shackles at some point during jury selection or the trial. Two other jurors testified that they recalled comments by other jurors about Davenport's shackles. One juror could not remember whether she saw the shackles. The remaining four jurors testified that they did not notice or hear about Davenport's restraints during the trial.

Several jurors recalled at the evidentiary hearing that they had thought Davenport might be dangerous when they saw him in shackles. Another juror recalled that she was sitting closest to Davenport when he testified and a fellow juror had asked her if that made her nervous. She also recalled that there were more guards when Davenport testified because he was not in shackles. But the jurors who testified that they saw Davenport's shackles also all said that they believed shackling was routine practice given that he was on trial for murder or because he was in pre-trial incarceration.³ Every juror asked also testified that Davenport's shackling did not affect their deliberations.

After this hearing, the trial court issued an opinion ruling that, although some of the jurors saw Davenport's shackles, the prosecution had proved beyond a reasonable doubt that the shackling did not affect the jury's verdict. The trial court focused on the jurors’ testimony that Davenport's shackling was not discussed during deliberations and did not affect their verdict. It also relied on the jurors’ testimony that they viewed the shackling as a routine security procedure. The Michigan Court of Appeals affirmed, holding that "[t]he trial court did not err in finding that the prosecution proved beyond a reasonable doubt that the shackling error did not affect the verdict." People v. Davenport , Docket No. 306868, 2012 WL 6217134, at *3 (Mich. Ct. App. Dec. 13, 2012). The Michigan Supreme Court denied leave to appeal. People v. Davenport , 494 Mich. 875, 832 N.W.2d 389, 390 (2013). It stated that, although "the Court of Appeals erroneously failed to consider defendant's claim in light of the United States Supreme Court decision in Holbrook v. Flynn ..., the error was harmless under the facts of this case. Given the substantial evidence of guilt presented at trial, we cannot conclude that there was an unacceptable risk of impermissible factors coming into play." Id.

C. The § 2254 Petition

Davenport next filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254, raising a single issue—his shackling. After the State of Michigan responded to this § 2254 petition, the...