Davis v. Straub

• Decision Date: 01 December 2005
• Docket Number: No. 03-2262.,03-2262.
• Parties: Danta DAVIS, Petitioner-Appellant, v. Dennis STRAUB, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

430 F.3d 281

Danta DAVIS, Petitioner-Appellant, v. Dennis STRAUB, Warden, Respondent-Appellee.

No. 03-2262.

United States Court of Appeals, Sixth Circuit.

Argued: March 17, 2005.

Decided and Filed: December 1, 2005.

ARGUED: John R. Minock, Cramer & Minock, Ann Arbor, Michigan, for Appellant. Janet A. Van Cleve, Office of the Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: John R. Minock, Cramer & Minock, Ann Arbor, Michigan, for Appellant. Janet A. Van Cleve, Office of the Attorney General, Lansing, Michigan, for Appellee.

Before: MERRITT and ROGERS, Circuit Judges; HOOD, Chief District Judge.^*

ROGERS, J., delivered the opinion of the court, in which HOOD, D. J., joined.

MERRITT, J. (pp. 291-299), delivered a separate dissenting opinion.

AMENDED OPINION

ROGERS, Circuit Judge.

Respondent-Appellee Dennis Straub has petitioned for rehearing following this panel's decision to order the district court to grant Petitioner-Appellant Danta Davis's habeas corpus petition. In this case, a Michigan jury convicted Davis of murdering one woman and two children in 1996 and Davis was sentenced to multiple concurrent life sentences. During his joint trial with co-defendant Nathan Bell, Davis sought to have witness Damaris Jourdan testify as to Jourdan's prior statements, which tended to exculpate Davis, made to police and a private investigator. Before Jourdan took the witness stand, the prosecutor, in front of Jourdan, informed the court that Jourdan was a suspect and should consult with a lawyer before testifying. Jourdan, after consulting with his lawyer, invoked his Fifth Amendment privilege against self-incrimination. The court stated that "whether or not [Jourdan] testifies is a choice that is his alone," and the court allowed him to make a blanket invocation without taking the stand and responding to individual questions. The state appellate court affirmed Davis' conviction, determining that the trial court committed harmless error by allowing the witness to determine the breadth of the privilege against self-incrimination.

After the district court denied his petition for habeas corpus, this court certified three questions for appeal on habeas review: (1) whether the prosecutor intimidated Jourdan into invoking his privilege against self-incrimination in violation of Davis's right to due process, compulsory process, and presentation of his defense; (2) whether Davis was denied a fair trial and his right to present a defense when the trial court sustained Jourdan's blanket assertion of the privilege against self-incrimination; and (3) whether Davis was deprived of effective assistance of counsel when defense counsel, after failing to object to Jourdan's blanket assertion of his Fifth Amendment right not to incriminate himself, failed to offer into evidence Jourdan's prior exculpatory statements. In our earlier opinion, we unanimously held that the prosecutor did not engage in witness intimidation. A majority of the panel also held that Davis was denied a fair trial and the right to present a defense when the court allowed Jourdan to assert a blanket invocation of his right not to incriminate himself. We ruled in the alternative that, if such an invocation of the Fifth Amendment were permissible, Davis received ineffective assistance of counsel when defense counsel did not seek to introduce Jourdan's prior exculpatory statements. After reconsidering our prior decision, we vacate that prior decision and affirm the district court's denial of Davis's petition in all respects because the state courts did not act contrary to or unreasonably apply clearly established federal law, as determined by the Supreme Court.

I.

We repeat in this section the facts of the case as recounted in our earlier opinion:

Sheila Jones and her two children, seven-year-old Darquelle Ray and four-year-old Shawanna Ray, were murdered on September 26, 1996. Jones was killed in the home of Davis's father, Jimmy Motley, while the children were killed in their own home, down the street from Motley's. Motley, the boyfriend of Jones, was in jail at the time of the murders. Davis, Bell, and others were in Motley's home on the evening of September 26, when Motley called to speak with Jones, as he frequently did. Davis went down the street to Jones's home and brought her back to Motley's house, where she was killed later that evening. The children were killed soon thereafter.

Davis and Bell were tried in a joint trial before separate juries. The prosecution's theory of the case was that Davis and Bell cooperated in beating and killing Jones and her children. Davis's theory of the case was that Bell killed Jones and the children by himself and that Davis assisted only in disposing of Jones's body, which Davis admitted doing out of fear of retribution from Bell and his family if he refused. Bell confessed to the murders, but also attempted to incriminate Davis, while Davis maintains his innocence. Most of the witnesses implicating Davis were related to or affiliated with Bell. The record reflects no physical evidence linking Davis to the murders. In Davis's testimony at the trial, he claimed the only person (other than himself and Bell) in the house when Jones was being beaten was then fifteen-year-old Damaris Jourdan.¹

Jourdan's pre-trial statements strongly tend to exonerate Davis of the murder. He made two statements to police approximately one week after the murders, on October 2, 1996, and October 3, 1996. Both Jourdan's mother and father were present for the first statement, which was not Mirandized. In that statement, Jourdan reported witnessing Bell, and Bell alone, beating, "stomping," and grabbing Jones by the neck, both inside the house and in the front yard and finally dragging her from the yard into the garage. Jourdan then reported leaving the area.

The day after his first statement, the police brought Jourdan and his mother back to the station for another interview. This time, the police read him his rights "per the Miranda Warning Card, which he stated he waived." His mother was also informed of his rights. The police then informed Jourdan that another suspect had implicated him in the crime. After waiving his right to remain silent and to have an attorney present, Jourdan denied any involvement in the murders. He reiterated his statement from the previous day and elaborated somewhat, stating that, just before leaving, he heard Jones breathing in the garage and saw Bell standing nearby holding a black and yellow handled screwdriver. Jourdan reportedly said to Bell, "Leave her alone," to which Bell responded, "She saw my face."

Approximately ten months later, Jourdan gave a statement to a private investigator hired by Davis's defense counsel. This statement, while more detailed, is very consistent with the earlier ones given to police.² In addition to the details recited earlier, Jourdan reported that Bell told him that he planned on killing Jones's children (who were still in their home down the street) because they knew where their mother had gone. Bell reportedly attempted to get Jourdan's help in killing the children. Jourdan reported that he refused to help and walked off alone before Jones was killed. He repeatedly told the investigator that neither he nor Davis had hit or stabbed Jones at any time and that Davis was not even outside to witness the violence. His eyewitness account is consistent with Davis's testimony at trial. Jourdan's account exonerates himself and strongly tends to exonerate Davis of murder.

Apparently unaware that either the prosecutor or the trial judge would prompt Jourdan to assert his Fifth Amendment privilege, Davis's defense counsel, Phillip Beauvais, identified Jourdan by name in his opening statement and told the jury to expect to hear him recount the version of events described above. During the trial, after Jourdan was called by the defense and sworn in as a witness, Prosecutor Arthur Busch requested a sidebar. The judge excused the jury and discussed the prosecutor's concerns on the record. Busch informed the court, within earshot of Jourdan, that Jourdan was a suspect in the case and should be informed of his Fifth Amendment rights before he testified. After questioning Jourdan briefly, the judge obtained counsel for him, who spoke with Jourdan and his parents and reviewed relevant documents. On advice of counsel appointed by the judge, Jourdan invoked his Fifth Amendment privilege against self-incrimination and refused to testify. The trial court did not follow the normal procedure of putting the witness on the stand and allowing him to invoke the privilege as to individual questions. Instead, the court allowed Jourdan not to testify or answer any questions at all, stating "whether or not he testifies is a choice that is his alone under these circumstances." This sparked a heated exchange between Davis's defense counsel and the prosecutor:

BEAUVAIS: I think what is happening today is that this young man is afraid that if he takes the stand and testifies truthfully and that truthful testimony will help Danta Davis that, in fact, the Prosecutor will then, as retribution for him testifying, will then charge him with a crime. I believe the only reason that this was brought forward at this particular time was to keep this young man from testifying. And I believe that because of that my client is being denied his right to a fair trial and is denied his right to have his witnesses appear, witnesses that can certainly exonerate this person.

....

BUSCH: This is not an intimidating thing, that is to try and protect the People's right, as well as Mr. Jourdan's right. Quite frankly, if we had our druthers, we would prefer him to testify in this matter because we think it would bring out the truth. But there is no — there is no merit to any allegation that our office somehow is involved in some intimidation of Mr. Jourdan. We have made it clear throughout, since this trial started,...