Etherton v. Rivard
| Decision Date | 02 September 2015 |
| Docket Number | No. 14–1373.,14–1373. |
| Parties | Timothy ETHERTON, Petitioner–Appellant, v. Steven RIVARD, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ON BRIEF:James Sterling Lawrence, Southfield, Michigan, for Appellant. David H. Goodkin, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee.
Before: KETHLEDGE and DONALD, Circuit Judges; McCALLA, District Judge.*
McCALLA, D.J., delivered the opinion of the court in which DONALD, J., joined. KETHLEDGE, J. (pp. 756–58), delivered a separate dissenting opinion.
On February 15, 2007, a Michigan jury convicted Timothy Etherton of possession with intent to deliver cocaine. After exhausting both direct and collateral appellate review procedures in Michigan, Etherton timely filed a petition for writ habeas corpus in the United States District Court for the Eastern District of Michigan. The district court denied Etherton's petition but certified for appeal four issues: (1) whether the anonymous tip presented at trial denied Etherton's right to confrontation under the Sixth Amendment so as to result in prejudice; (2) whether the prosecutor improperly vouched for the credibility of a witness during closing argument; (3) whether Etherton's counsel's failure to object to the anonymous tip, as well as other alleged shortcomings, amounted to prejudicially ineffective assistance of counsel; and (4) whether Etherton was prejudiced by ineffective assistance of counsel on appeal. For the reasons discussed below, we AFFIRM IN PART and REVERSE IN PART the district court's decision, and REMAND with directions to issue a writ of habeas corpus unless Etherton is afforded a new appeal or, in the alternative, is granted a new trial.
Timothy Etherton was tried in Michigan State Court on a single count of possession with intent to deliver 50 grams or more but less than 450 grams of cocaine. (R. 5–3, 5–4.) The trial began with voir dire at 9:09 a.m. on February 15, 2007. (R. 5–3 at PageID 243.) The prosecutor called his first witness at 10:59 a.m. (R. 5–3 at PageID 315.) After roughly forty-five minutes of testimony, the jury broke for lunch and returned approximately an hour later. (R. 5–3 at PageID 341–42.) At 3:18 p.m., the final witness stepped down. (R. 5–4 at PageID 441.) The jury began deliberations at 5:16 p.m. and returned a verdict of guilty at 6:10 p.m. that same day. (R. 5–4 at PageID 496, 499–500.)
During trial, the prosecution called six witnesses, (R. 5–3 at PageID 314, 342, 370, 380, 388, 421), and introduced three exhibits into evidence: a video tape of the stop and search of Etherton's car (R. 5–3 at PageID 322); a bag of cocaine (R. 5–3 at PageID 354); and a plastic bag (R. 5–3 at PageID 354).
The following facts were not contested at trial: Etherton was driving a white Audi on I–96 between Detroit and Grand Rapids at the time he was pulled over for speeding; Etherton admitted that the Audi was his car; co-defendant Ryan Pollie was in the passenger seat; Etherton initially did not consent to a search of the car, but then quickly did consent to a search; Trooper Trevin Antcliff did a preliminary physical search of the car, but did not find anything illegal; a K–9 unit was called to the scene and searched the car, but also did not find anything illegal; Detective Adam Mercer then searched the car and ultimately found a 125.2 gram bag of cocaine under an empty bag of potato chips in the map compartment of the driver's side door. Although the bag was tested, neither Etherton's nor Pollie's fingerprints were found on the bag.
The only evidence that Etherton had knowledge that the cocaine was in the car—aside from potential inferences that could arguably be drawn from the above-mentioned evidence—came from two sources: first, the testimony of Etherton's co-defendant, Pollie; and, second, an anonymous tip that was introduced for its truth.
On direct examination, Pollie testified in some detail regarding the day that he and Etherton were arrested. (R. 5–4 at PageID 388–94.) Pollie stated that he accompanied Etherton on a trip to Detroit in order to drop off members of Etherton's family at the airport. (R. 5–4 at PageID 388–89.) According to Pollie, Etherton dropped him off at a Ruby Tuesday's restaurant while Pollie “was under the assumption that [Etherton] was going to the airport to drop these family members off.” (R. 5–4 at PageID 390.) Pollie testified that he had a couple of beers while he was at the restaurant before Etherton came back to pick him up approximately thirty to forty-five minutes later. (R. 5–4 at PageID 390–91.) Pollie stated that after he and Etherton got back in the car:
[W]e pull out of the parking lot and we're about to get onto the highway and that's when the package of cocaine became known to myself. He showed it to me. I held it like kind of, wow you know that's quit [sic ] a bit. Gave it back to him.
(R. 5–4 at PageID 391:4–8.) Pollie went on to explain that he and Etherton talked about how he had obtained the cocaine. According to Pollie:
[Etherton] met a guy down by McDonald's, I think it was further down the road from the Ruby Tuesday's.... What initially was supposed to happen was the title for his vehicle was supposed to go up to pay for the—I guess as collateral and the vehicle had got transferred from his dad's name the previous day into his name so he didn't have the title. So he was supposed to return there by Sunday to go ahead and pay the money for the cocaine that was given to him that day.... [Etherton] made a comment about, you know, I can do a certain amount of it and then still be able to go ahead and sell the rest for payment.
(R. 5–4 at PageID 392:7–25.)
Pollie also testified on direct that he was testifying as part of a plea agreement. (R. 5–4 at PageID 389.) Pollie acknowledged that he was to be sentenced to nine months in jail as a result of the plea. (Id. )
On cross, redirect, and recross-examination, Pollie acknowledged at least eight facts that were damaging to his testimony. (See R. 5–4 at PageID 402–411, 418–21.) First, he disclosed on redirect examination that he had read the police reports concerning both his arrest and Etherton's. (R. 5–4 at PageID 416.) Second, he acknowledged that he had been convicted of both cocaine possession and distribution in the past. (R. 5–4 at PageID 409–10.) Third, he admitted that he had been alone in the car on the day of the arrest. (R. 5–4 at PageID 403.) Fourth, he conceded that he had eaten chips that day:
(R. 5–4 at PageID 405:18–25.) Fifth, Pollie admitted that he was allowed to plead to a lesser charge when he was otherwise facing what he agreed was “a very lengthy incarceration.” (R. 5–4 at PageID 409, 420.) Sixth, Pollie testified that he believed his fingerprints would be on the bag of cocaine. (R. 5–4 at PageID 405:18–25.) Specifically, Pollie testified:
(R. 5–4 at PageID 405:18–25.) Seventh, he acknowledged that he had initially lied to the police and had only changed his story when offered a plea deal. (R. 5–4 at PageID 416, 419–20.) Last, defense counsel impeached Pollie concerning his testimony regarding not driving. The following exchange occurred on cross-examination after defense counsel asked whether Pollie had driven on the way to Detroit:
(R. 5–4 at PageID 405:18–25.) On recross-examination, defense counsel once again asked about Pollie's driving:
(R. 5–4 at PageID 420:21–422:5.)
Recognizing the factual questions inherent in Pollie's testimony, the Court must examine the role of the accusatory content of the tip testimony in the trial. Testimony regarding the anonymous tip was elicited by the prosecution on three separate occasions. The first elicitation occurred during the direct examination of Trooper Antcliff of the Michigan State Police, who testified that he pulled over Etherton's car. (R. 5–3 at PageID 315–17.) The prosecutor asked Antcliff why he pulled Etherton over. (R. 5–3 at PageID 316:15–316:16.) Antcliff responded:
Well, on our radio I received a call from Lieutenant that the CMET team, Lieutenant Roe, and he advised that there was a white Audi matching the description from an anonymous tip that we were looking for. A BOL was put out for us, a be on the look out [sic ] for a white Audi with two while [sic ] males traveling from Grand Rapids to Detroit back to Grand Rapids, possibly carrying cocaine in the vehicle.... So Lieutenant Roe advised that he had—the possible suspect vehicle in sight. I was in position near Lieutenant Roe's vehicle, he advised me that the suspect vehicle was in...
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