Ege v. Yukins
| Decision Date | 22 July 2005 |
| Docket Number | No. 01-10294-BC.,01-10294-BC. |
| Citation | 380 F.Supp.2d 852 |
| Parties | Carol EGE, Petitioner, v. Joan YUKINS, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Carole M. Stanyar, Detroit, MI, for Plaintiff.
Brenda E. Turner, Michigan Department of Attorney General Habeas Corpus Division, Lansing, MI, for Defendant.
Nine years after the violent death of Cindy Thompson, the petitioner, Carol Ege, was indicted for her murder. Thompson and Ege were part of a love triangle that included their mutual boyfriend, Mark Davis, whose child Thompson allegedly was carrying when she died. The Michigan Court of Appeals, which affirmed the petitioner's conviction and life sentence for first-degree murder, Mich. Comp. Laws 750.316(c), on direct appeal following a jury trial in the Oakland County Circuit Court, characterized the case as follows:
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.... The credibility of much of this evidence was called into question.
People v. Ege, 1996 WL 33359075 at *1 n. 1 (emphasis added).
The evidentiary opinion describing the so-called bite mark evidence came from an expert witness named Dr. Alan Warnick, who characterized the "match" of a mark on the victim's cheek with the petitioner's dentition in terms of overwhelming mathematical probability. As the post-conviction evidence demonstrates, however, Dr. Warnick thoroughly has been cast into disrepute as an expert witness and several convictions based on his testimony have been undermined and overturned. This case presents another. In ruling on the petitioner's post-conviction motion, the state trial judge agreed that the bite mark evidence and Dr. Warnick's statistical gloss on it were improperly admitted, but the state court denied relief because of the lack of a contemporaneous objection and an view that the showing of prejudice was insufficient. This Court agrees that expert testimony identifying the petitioner as the only possible perpetrator of the alleged bite mark in the Detroit metropolitan area was improperly admitted. However, the Court also finds that admission of the evidence and trial counsel's failure to object thereto deprived the petitioner of a fundamentally fair trial. The state courts' contrary decisions during state collateral review constitute an unreasonable application of clearly established federal law as determined by the Supreme Court. This Court, therefore, will issue a conditional writ of habeas corpus, allowing the State a reasonable time to retry the petitioner if it so chooses.
The Michigan Court of Appeals summarized the facts of this case in its opinion on direct appeal as follows:
In April 1993, defendant was charged by grand jury indictment with the murder of Cindy Thompson, in Pontiac, nine years earlier, in the late evening of February 21, 1984, or early morning of February 22, 1984. Thompson was bludgeoned and stabbed to death, and was found in a pool of blood in her upstairs bedroom, her organs laying beside her. Mark Davis, with whom defendant had lived since the late 1970s and still lived at the time of the murder, had been having a sexual relationship with Thompson as well as defendant. Thompson was seven months pregnant at the time of the murder. Davis testified that he found Thompson some time before 5:00 a.m. on February 22, 1984.
There was testimony at trial that on February 20, 1984, Davis and three friends of his, Bob Dunn, and Cheryl Blankenberg Hooker (Blankenberg) and David Hooker, had helped move some of Thompson's things into Thompson's house and stayed there partying until very late that night. Dunn stated that he left Thompson's around midnight and the others were still there. The next day, February 21, 1984, Thompson baby-sat until around 8:00 p.m. for the couple who lived across the street and who owned the house Thompson was living in, Barbara Lambert and Jack Segal. Thompson then went to see Lambert at her workplace, and that is when she was last seen alive, between 8:45 p.m. and 9:15 p.m. on February 21, 1984. Thompson's neighbor testified that she heard what she believed was Thompson's car pull in the driveway around 8:45 or 9:00 p.m. that night and that she heard a second car pull in shortly after, stay several minutes, and then leave. A friend of Thompson's testified that there was no answer at Thompson's number at 6:00 or 6:30 p.m. and that at about 8:00 p.m., the phone was busy and remained so until 9:00 p.m., when she stopped trying to reach Thompson. There was no sign of forced entry at Thompson's home. Rather, the back door was found unlocked. Davis and Segal had keys to the house. The phone chords had been cut. The parties agree that the initial police investigation, which continued only until April 1984, was inadequate. Years later, in 1992, the investigation was reopened by Pontiac detectives Serna and McLaurin as a result of persons coming forward with alleged evidence incriminating defendant. In June 1992, evidence 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 defendant to the crime. Rather, it yielded fingerprints of Davis and Thompson and hairs of Thompson and others, not defendant. Thompson's body was exhumed in 1993, apparently to investigate a mark on her left cheek visible in photographs taken at the murder scene, which the initial autopsy report concluded was livor mortis. The prosecution's experts opined that the mark was a bite mark consistent with defendant's dentition, while the defense experts opined it was livor mortis, and that even if it were a bite mark, it was not consistent with defendant's dentition.
The prosecution's theory of the case as presented in its opening statement was that defendant was obsessed with Mark Davis, Thompson and the child Thompson was carrying, and that defendant plotted and solicited others to kill Thompson. The prosecution said that the evidence would show that defendant had, before the murder, become violent and smashed several gifts Thompson had bought Davis, that defendant attempted to hire several people to kill Thompson, and made statements to others that Thompson would not have the baby, and that defendant and Thompson had a violent argument the day before the murder.
The defense's theory as presented in its opening statement was that defendant could not have been at the crime scene on the evening of the murder because as she was at the home all evening, and that although there was some evidence pointing to defendant, none of the many witnesses the prosecution would present at trial would say defendant committed the crime. Defense counsel stated that he would be able to show a more compelling circumstantial case against several of the prosecution's witnesses, who were suspects, and an overwhelming case against Davis. Defense counsel stated that the connections between the prosecution's witnesses were frightening and suggest another agenda. He stated there was no proof that Davis was the father of Thompson's baby, that this was a classic love triangle, and that defendant did not like Thompson and had made statements, as everyone has, that she would like to kill Thompson. Defense counsel stated that he would prove that Karen Reppuhn, a witness for the prosecution, was "an absolute outright lying perjurer," along with a number of other witnesses. Defense counsel further stated that the initial police investigation concluded that Thompson's murder was an unsolved mystery, with a lot of suspects but no hard proof as to any of them, and that the murder remained an unsolved mystery.
Defendant filed a pre-trial motion in limine to exclude evidence of prior similar acts as to two alleged prior statements of defendant regarding Thompson and two alleged incidents involving defendant and Thompson: 1) that on or about November 1983, defendant told Karen Reppuhn that she wanted to slice Thompson's throat and would pay someone to do so; 2) that in December 1983 or January 1984, defendant told Timothy Apker that she wanted Thompson dead and wanted Apker to kill Thompson; 3) that on December 13, 1983, defendant went to Thompson's sister's home, where Thompson was staying, and physically and verbally assaulted Thompson; and 4) that on February 20, 1984, defendant went to Thompson's home and argued with her on the front porch. The trial court denied defendant's motion.
At a fifteen-day trial in December 1993 and January 1994, many of the prosecution's witnesses, other than police officers and experts, were good friends of Mark Davis and the victim and were impeached on the stand with prior testimony or statements. At the time of the murder, most of the witnesses drank heavily and used drugs.
Sergeant Steven Sitar of the Pontiac Police Department testified that on February 22, 1984 he was dispatched to 97 Seneca Street in regard to suspicious behavior. After Sitar arrived at the house with Officer Clark, they knocked on the door and received no answer. Officer Michael Story also arrived shortly after. About two minutes later, two vans pulled into a parking lot next door. A man later identified as Mark Davis got out of one of the vans and approached the officers. Davis was very excited and told the officers that his girlfriend needed help; that she had been `cut-up.' Davis fumbled with his keys and eventually...
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