Ege v. Yukins

• Decision Date: 24 April 2007
• Docket Number: No. 05-2078.,05-2078.
• Citation: 485 F.3d 364
• Parties: Carol EGE, Petitioner-Appellee, v. Joan YUKINS, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

485 F.3d 364

Carol EGE, Petitioner-Appellee, v. Joan YUKINS, Warden, Respondent-Appellant.

No. 05-2078.

United States Court of Appeals, Sixth Circuit.

Argued: September 12, 2006.

Decided and Filed: April 24, 2007.

ARGUED:

John S. Pallas, Oakland County Prosecutor's Office, Pontiac, Michigan, for Appellant. Carole M. Stanyar, Detroit, Michigan, for Appellee.

ON BRIEF:

William C. Campbell, Office of the Attorney General, Lansing, Michigan, for Appellant. Carole M. Stanyar, Detroit, Michigan, for Appellee.

Before: BOGGS, Chief Judge; MARTIN, Circuit Judge; OLIVER, District Judge.^*

MARTIN, J., delivered the opinion of the court, in which OLIVER, D.J., joined. BOGGS, C.J. (pp. ___-___), delivered a separate dissenting opinion.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

On July 22, 2005, the district court granted Carol Ege's petition for a conditional writ of habeas corpus on grounds that (1) admission of bite-mark evidence at Ege's state trial violated her right under the Due Process Clause to a fair trial, and (2) the performance of Ege's state trial counsel was unconstitutionally deficient and caused her actual prejudice. The State appeals the district court judgment on both grounds, and argues additionally that Ege's habeas petition is time-barred under the one-year limitations period of 28 U.S.C. § 2244(d)(1). For the following reasons, we AFFIRM in part and REVERSE in part the judgment of the district court.

I

This is a troubling case. The crime is horrific. The initial investigation was deficient. Defendant was not charged until nine years after the murder. There are others who are logical suspects. No one saw defendant at the scene the evening of the murder. No physical evidence links defendant to the crime except testimony that a mark on the victim's cheek is a bite mark that is highly consistent with defendant's dentition.

People v. Ege, No. 173448, 1996 WL 33359075, at *1 n. 1 (Mich.Ct.App. Sept., 17, 1996). Such was the description of Carol Ege's case by the Michigan Court of Appeals, which heard her direct appeal following a jury trial and conviction for first-degree murder for the killing of Cindy Thompson.

Ege and Thompson had both been romantically involved with Mark Davis, whose child Thompson allegedly was carrying. Davis testified that he found Thompson in her upstairs bedroom some time before 5:00 a.m. on February 22, 1984, bludgeoned and stabbed to death, her organs laying beside her. There was no sign of forced entry at Thompson's home, and the back door was found unlocked. The phone cords had been cut. Thompson was last seen alive on the evening of February 21, sometime between 8:45 and 9:15 p.m. The initial police investigation, concluded in April 1984, yielded no definitive evidence. Eight years later, however, the investigation was reopened as a result of persons coming forward with evidence allegedly incriminating Ege. During the course of this reopened investigation, in 1992-1993, evidence that had been collected at the murder scene in February 1984 was submitted to the Michigan state crime lab for the first time. None of the evidence submitted to the crime lab connected Ege to the crime. The lab results yielded fingerprints of Davis and Thompson and hairs of Thompson and others, but no similar trace evidence connected to Ege. Thompson's body was exhumed in 1993, apparently to investigate a mark on her left cheek visible in photographs taken at the murder scene. The initial autopsy report had concluded that the mark was livor mortis.¹ Ege was tried for murder following the 1992-1993 investigation.

At trial, the prosecution attempted to show that Ege was obsessed with Davis and was therefore furiously jealous of Thompson and the child Thompson was carrying. The prosecution presented witnesses who testified that Ege and Thompson had argued several years prior to Thompson's death, when Ege entered Thompson's house to destroy a watch case and T-shirts that Thompson had bought for Davis. Further evidence was presented that Ege and Thompson engaged in a physical struggle at Thompson's sister's house, when Thompson was five months pregnant. Witnesses also testified that Ege had attempted to hire two different men to kill Thompson, and that about one week before Thompson's death, Ege had asked her roommate, Carol Parker, to provide her with an alibi in exchange for free rent. Finally, several witnesses testified that Ege had expressed to them a desire to see Thompson killed. One witness testified that after Thompson became pregnant, Ege said to her, "Cindy [Thompson] was not going to have the baby; that she didn't know how or why, and she didn't want to get me involved, but that she wasn't going to have the baby." Another witness testified that Ege told her "she could stomp the baby out of her, slit her throat, rip her up in little pieces and think nothing of it." Yet another witness testified that Ege told him she wanted Thompson "really hurt bad, either beat her up bad or kill her."

Ege denied virtually all of the allegations made by prosecution witnesses, and much of their testimony was called into serious question on cross-examination, either through impeachment or showing of bias. The defense's theory of the case was that Ege could not have been at the crime scene on the evening of the murder because she was at home all evening, and that although there was perhaps some evidence pointing to her, a more compelling circumstantial case could in fact be made against several of the prosecution's witnesses, including Davis. Davis admitted that he had been drinking most of the day and night prior to Thompson's murder, and that by the time he decided to go to Thompson's house on the morning of February 22, he had consumed approximately five bottles of wine. Davis's presence at Thompson's house coincided approximately with the time she died. His alibi that he was drinking at a friend's house up until the time that he found Thompson's body was largely undermined by the friend's subsequent testimony that he and Davis were not in fact together that night. Also on cross-examination, Davis testified that he never believed that Ege had killed Thompson, and affirmed that Ege had in fact been home all night.

The prosecution's expert witness, Dr. Alan Warnick, opined that the mark found on Thompson's cheek, which the original autopsy report had concluded was liver mortis, was actually a bite mark. Dr. Warnick was unable to examine the actual injury, because Thompson's body was too badly decomposed upon exhumation nine years after the murder. Thus, Dr. Warnick relied on photographs of the mark which had been taken at the time of the initial autopsy, in 1984. Dr. Warnick compared dentitions of several suspects raised by the defense and found that none of them could have made the bite mark. He also checked Ege's dentition and concluded that it was highly consistent with the bite mark. Dr. Warnick was asked by the prosecution, "Let's say you have the Detroit Metropolitan Area, three, three and a half million people. Would anybody else within that kind of number match like she did?" He responded, "No, in my expert opinion, nobody else would match up." Ege's defense counsel did not object to Dr. Warnick's testimony, but rather called two expert witnesses in rebuttal. The first, a pathology professor at Wayne State University, concluded that the mark on Thompson's cheek was liver mortis, and not a bite mark. The second, a dentist and medical doctor, provided similar testimony, and added that even if it were a bite mark, the pattern did not align with Ege's dentition.

A jury found Ege guilty of first-degree murder. On January 28, 1994 she was sentenced to life imprisonment without the possibility of parole. Ege's direct appeal was rejected by the Michigan Court of Appeals on September 17, 1997. Ege's conviction became final on March 30, 1998, ninety days after the Michigan Supreme Court denied her application for leave to appeal.

On July 28, 1999, almost sixteen months after her conviction became final, Ege filed a motion for post-conviction relief in Michigan circuit court. She argued that her due process right to a fair trial was violated by the admission of Dr. Warnick's bite mark testimony, both because the evidence itself was scientifically and probabilistically unsound and because Dr. Warnick had a demonstrated record of unreliability. Ege also raised an ineffective assistance of counsel claim, on grounds that her trial attorney had failed to object to the introduction of the bite mark evidence, as well as to the introduction of evidence concerning Ege's prior sexual history. The circuit court concluded on January 11, 2000, that Ege's due process evidentiary challenge to the prosecution's bite mark evidence, particularly the testimony concerning the mathematical probability of an alternate random match, "lacked a proper foundation" and should have been excluded had an objection been raised. However, the circuit court denied relief because (a) trial counsel had failed to object to the evidence, and (b) the opportunity to present evidence challenging Dr. Warnick's methodology removed any prejudice resulting from receipt of the inadmissible evidence. The court weighed the improper evidence against the strength of the untainted evidence and found that a new trial was not required. As to Ege's ineffective assistance of counsel claim, the circuit court denied relief as well, finding that trial counsel's performance was not substandard. The circuit court denied a motion for reconsideration on February 15, 2000. The Michigan Court of Appeals denied Ege's appeal as to the post-conviction motion on August 24, 2000, and the Michigan Supreme Court did likewise on April 30, 2001.

On August 13, 2001, Ege presented in federal district court the following claims in a petition for writ of habeas corpus:

I. Petitioner was denied a fundamentally fair trial in violation of due process of law through the...