Donald v. Rapelje
| Decision Date | 05 December 2012 |
| Docket Number | Case No. 09-cv-11751 |
| Parties | CORY DONALD, Petitioner, v. LLOYD RAPELJE, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
HON. AVERN COHN
This is a habeas case filed by a state prisoner under 28 U.S.C. § 2254. Michigan prisoner Cory Donald (Petitioner) is incarcerated by the Michigan Department of Corrections at the Carson City Correctional Facility in Carson City, Michigan. Petitioner is serving a life sentence for first-degree murder along with a concurrent sentence of ten-and-one-half to twenty years for armed robbery. His convictions occurred following a jury trial in the Circuit Court in Wayne County, Michigan. Petitioner, who was sixteen-years old at the time of the crime, was tried with co-defendants, Rashad Moore and Dewayne Saine under an aiding and abetting theory. Petitioner contends that he is entitled to habeas relief because his counsel was absent during a portion of the prosecution's case-in-chief, in which a detective was testifying about phone calls made around the time of the crime from three of the co-defendants' cell phones. Respondent, through the Michigan Attorney General's office, filed a response, contending the claim lacks merit.
The parties filed briefs and the Court heard oral argument. The matter is now ready for decision. For the reasons that follow, the Court concludes that Petitioner's convictions are unconstitutional based on counsel's absence during a critical stage in the proceedings and counsel was otherwise ineffective. According, the petition will be conditionally granted.
Petitioner's troubles in this case arise because of a shooting on November 14, 2005, in Dearborn, Michigan, which resulted in the death of Mohamed Makki. Makki was shot and killed during a robbery at a home from which he distributed marijuana. Petitioner and codefendants Moore and Saine were charged with the murder. They were tried together. Petitioner and Saine shared a jury, while Moore had a separate jury. Testimony displayed the following pertinent facts.
The prosecution's theory was that an acquaintance of Makki, Fawzi Zaya, along with Petitioner, Moore, Saine, and Seante Liggins planned, and played different roles in, the robbery in which Moore shot and killed Makki. Moore and Petitioner entered the house together and committed the murder and the robbery. Although Moore pulled the trigger, Petitioner was guilty of the murder under an aiding and abetting theory. Petitioner was shot by Moore during the incident and blood from his wound was the only forensic evidence presented in reference to him. The prosecution's case hinged on the testimony of Liggins, its key witness, and Michael McGinnis, a drug runner present during the murder, but only able to hear what went on and was not an eyewitness to the actual murder. Liggins was facing a life sentence and chose to cooperate; he wascharged with felony murder but entered into a plea agreement with the prosecution where he pleaded guilty to one count of second-degree murder, with a sentence of ten to twenty years in prison. McGinnis was arrested on drug charges stemming from the involvement in this case and was placed on probation. Petitioner's defense was that he was "merely present" and did not participate in any way.
According to Liggins's testimony, Moore drove him and Saine to a parking lot where they met Zaya. They all got into Zaya's van. They were drinking alcohol and smoking blunts of marijuana. Moore sat in the front seat, while Saine and Liggins sat in the back. Petitioner was not in the van. Zaya said he wanted them to rob Makki. Cellular telephone records showed that seven calls were placed from Saine's phone to Moore's phone between 8:17 a.m. and 8:32 a.m., on the day of the murder. Records also showed that Moore had called Zaya twice that afternoon.
Saine, Liggins, and Moore then went to a house where they continued drinking heavily. Petitioner was at the house. According to Liggins, Moore talked to someone on his cell phone, while Petitioner and Saine walked behind the house. Liggins said he did not see Petitioner with a gun, but as the men walked back to the group, Petitioner was "situating something on his hip" in a way that led him to believe that he had a gun. Trial Tr. vol. III, 162 Sept. 20, 2006, ECF No. 8-7.
Liggins further testified that Moore said "it's about that time," which Liggins interpreted as meaning that it was time to do the robbery. Trial Tr. vol. III, 159 Sept. 20, 2006, ECF No. 8-7. Petitioner, Saine, and Moore were together when Moore made the statement. Liggins said there were numerous phone calls between Moore, Saine, andZaya throughout the evening.
Petitioner, Liggins, and Moore then got into a white Taurus. Liggins did not see where Saine went. The men were dressed in black skull caps and black coats. Liggins saw a ski mask in the car on the back seat but could not recall if anyone put it on.
Moore instructed Liggins to drive. Moore sat in the front passenger seat and talked on his cell phone while Petitioner sat in the back seat. Moore directed Liggins as he drove. Following Moore's directions, Liggins ended up at a house in Dearborn, Michigan. He was not familiar with the house. He remained inside the car while Petitioner and Moore got out. He did not see either man with a gun. Petitioner and Moore went inside the house.
Liggins testified that, when Petitioner and Moore returned to the car, both were carrying guns. He was not sure what type of gun Moore had, but Petitioner's gun looked like a nine-millimeter handgun. He had previously seen Saine carrying that gun. Liggins saw blood on the leg of Petitioner's pants. Petitioner told him that Moore shot him.
Liggins further testified that he drove Petitioner and Moore away from the house. He said Moore asked Petitioner, "what you get?" Trial Tr. vol. III, 170 Sept. 20, 2006, ECF No. 8-7. When Petitioner replied, "320," id., Moore said, "that's it?" "We got to go back." Id. Liggins then saw Saine's car parked a couple of blocks away. Saine was in the car. Petitioner jumped out of his car and got inside Saine's car.
McGinnis also testified. He was a drug runner for Makki and was inside the house at the time of the incident. The men sold drugs together and he was there to pay off a drug debt and to purchase more marijuana. He was watching television and talkedto Makki as he got ready for work. Over the course of about twenty or thirty minutes, Makki received several phone calls. They were about to leave the house when they heard a creak near the front door. Makki went to the door and McGinnis heard him say, "oh, shit." Trial Tr. vol. II, 154 Sept. 19, 2006, ECF No. 8-6. McGinnis said Makki put his hands over his head as the door swung open and a man entered with a handgun. The intruder was a black man, wearing a knit cap, a face mask, and a Carhartt jacket.
McGinnis further testified that Makki then backed into the room. McGinnis said he laid face-down on the floor with his hands on top of his head and could only hear what went on the rest of the time. He heard two people moving around the house. He heard scuffling in the kitchen and heard someone other than Makki say, "let it go." Trial Tr. vol. II, 156 Sept. 19, 2006, ECF No. 8-6. He then heard two gunshots. After the shots were fired, one of the intruders stood over him with a gun. While searching his pockets, the man said, "what you got, what you got" and "he keep the shit in the basement." Id. at 157, ECF No. 8-6. The man took $300 and a cell phone from him. McGinnis heard the second person walking downstairs into the basement. The man soon returned from the basement and said, "I got shot, I got shot" to the person who had been standing over him with the gun. Id. at 158, ECF No. 8-6. The men then left.
McGinnis then got up, looked in the kitchen and saw Makki sitting with his back against the refrigerator. McGinnis took a bag of marijuana from the kitchen counter and put it in the trunk of his car. He also hid $2,400 in the trunk of his car. He then went to neighboring houses to get help.
At the second house, McGinnis met Caressa Stanford. According to Stanford, McGinnis told her that two men wearing masks forced their way into the house androbbed them. He told her that one of the men stood over him with a gun and that there was a fight during which he heard gunshots. McGinnis and Stanford then went inside Makki's house and saw him lying on the floor. They drove to a nearby gas station and called the police.
The police were at Makki's house by the time McGinnis and Stanford returned. Makki was pronounced dead at the scene. Officer James Herberger responded to the call and found him lying in the kitchen.
Dearborn Police Officers Mark Gorby and Ashley Tapping were in the area, when they saw a white Taurus stopped in the middle of the road. The Taurus slowly passed the officers as they began to pull the patrol car into the street. The Taurus then stopped near the curb, two or three car lengths in front of the officers. When Officer Tapping drove the patrol car alongside the Taurus, Officer Gorby saw two people in the front seat. The Taurus then cut in front of the patrol car. The officers attempted to stop the Taurus, but the car drove away, running three or four stop signs before coming to a dead-end street.
The officers saw the driver of the Taurus jump out of the car as it came to a stop. That man fled on foot. Officer Gorby saw a black object being tossed from the car. As the officers approached with their guns drawn, Moore stepped out of the passenger-side door, with his hands in the air. Moore told them that he had just been picked up at the bus stop and had no idea what was going on.
Officer Gorby retrieved the black object and discovered that it was a black knit cap containing small baggies of marijuana.
The evidence technician who...
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