Freeman v. Trombley

• Decision Date: 14 October 2010
• Docket Number: Civil No. 07–10350.
• Parties: Frederick Thomas FREEMAN, Petitioner,v.Jan TROMBLEY, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

744 F.Supp.2d 697

Frederick Thomas FREEMAN, Petitioner,

v.Jan TROMBLEY, Respondent.

Civil No. 07–10350.

United States District Court, E.D. Michigan, Southern Division.

Oct. 14, 2010.

Bridget M. McCormack, University of Michigan, David A. Moran, Michigan Innocence Clinic, Ann Arbor, MI, for Petitioner.Laura Moody, Michigan Department of Attorney General, Lansing, MI, for Respondent.

OPINION & ORDER CONDITIONALLY GRANTING THE PETITION FOR WRIT OF HABEAS CORPUS

DENISE PAGE HOOD, District Judge.

I. INTRODUCTION

This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Frederick Thomas Freeman, (“Petitioner”), who is confined at the Saginaw Correctional Facility in Freeland, Michigan, has filed a petition for writ of habeas corpus through counsel raising the following claims: (1) Petitioner was denied the right to make a record regarding his defense attorney's drug use; (2) ineffective assistance of counsel; (3) ineffective assistance of appellate counsel; (4) prosecutorial misconduct; (5) actual innocence; (6) trial court error in allowing Petitioner to be dressed in prison garb and shackles in the presence of the jury; (7) jury instruction error; and (8) cumulative error. Petitioner was convicted of first-degree murder, Mich. Comp. Laws § 750.316. He was sentenced to life imprisonment. For the reasons that follow, the petition will be conditionally granted.

II. FACTUAL BACKGROUND

Petitioner's conviction arose from the shooting death of Scott Macklem, on November 5, 1986, in the parking lot of St. Clair Community College shortly before 9:00 am. The prosecution theorizes that Mr. Macklem was murdered by Petitioner due to his jealousy of Crystal Merrill and Mr. Macklem's relationship. Crystal Merrill is the former girlfriend of Petitioner. Ms. Merrill and Mr. Macklem were engaged to be married and were expecting their first child together. Petitioner argues that he did not commit the murder and that he was not at the scene of the shooting. Petitioner produced alibi witnesses at trial to support his theory of the case.

III. PROCEDURAL HISTORY

Following Petitioner's conviction, he filed a direct appeal with the Michigan Court of Appeals raising the following claims: (1) trial court error in the admission of prior “bad acts” evidence; (2) trial court error in the admission of hypnotically induced identification testimony; (3) trial court error in its denial of Petitioner's motion for a new trial; (4) ineffective assistance of counsel; (5) trial court error in the admission of in-court identification testimony when it was improperly suggestive; (6) trial court error in its decision to deny Petitioner's motion to suppress statements made by him to the police as they were searching his home; (7) prosecutorial misconduct; (8) trial court error in its admission of rebuttal testimony from a prosecution witness; (9) trial court error in the admission of testimony from a police officer who eavesdropped on a telephone conversation between Petitioner and Ms. Merrill; and (10) insufficient evidence to sustain the charge of first-degree murder. The Michigan Court of Appeals affirmed Petitioner's conviction. People v. Freeman, No.: 103276 (Mich.Ct.App. Sept. 13, 1993) ¹.

Petitioner filed a delayed application for leave to appeal with the Michigan Supreme Court and raised the following claims:

I. Defendant–Appellant Frederick Freeman was denied due process and a fair trial where, over objection, the prosecutor's case rested largely on improperly admitted character evidence and likewise improper evidence of alleged bad acts, including rape, assault, extortion and electronic surveillance.

II. The introduction of post hypnotic testimony denied defendant his right to due process of law and his right of cross-examination due to the inherent unreliability of the process of hypnosis and its outcome, the failure to preserve pre-hypnotic recall or to follow the requisite safeguards, and the corruptive effect of the suggestive, post-hypnotic identification.

III. Defendant–Appellant Frederick Freeman was denied due process and a fair trial and the effective assistance of counsel where Rene Gobeyn, Richard Krueger and Kathleen Ballard were allowed to give identification testimony which was the product of suggestive pre-trial identification procedures.

IV. The prosecutor and his prison inmate witness misled the jury as to the bargain for the witness' testimony, thus depriving defendant of his constitutional rights to due process and to confrontation of witnesses.

V. Defendant–Appellant Freeman was denied due process and a fair trial where the trial court vouched for his credibility by telling the jury that Mr. Joplin had received “no favor” for testifying.

VI. Defendant–Appellant Freeman was denied due process and a fair trial where the prosecutor's closing argument improperly shifted the burden to the defense to prove an alibi beyond a “serious doubt” by producing documentary evidence in support.

VII. The trial court erred reversibly by failing to suppress the alleged declarations of defendant-appellant Freeman where those statements were the fruit of an unlawful search of Mr. Freeman's home and/or Mr. Freeman was denied the effective assistance of counsel where trial counsel failed to timely object to the search.

VIII. The trial court erred reversibly by allowing the prosecution, over objection, to present so-called rebuttal evidence concerning charter air flights that was irrelevant and immaterial to the issues in the case and distracting and confusing to the jury.

IX. The cumulative effect of the errors denied defendant-appellant Freeman a fair trial.

X. Defendant–Appellant Freeman was improperly tried and convicted and is entitled to reversal where the prosecutor presented insufficient evidence at the preliminary examination to support a bindover on the open murder charge.

The Michigan Supreme Court denied leave to appeal. People v. Freeman, 445 Mich. 911, 519 N.W.2d 894 (1994) (table). Petitioner filed a motion for reconsideration with the Michigan Supreme Court and relief was denied. People v. Freeman, 522 N.W.2d 636 (1994).

On October 1, 2004, Petitioner filed a motion for relief from judgment in the trial court raising the following claims: (1) ineffective assistance of counsel; (2) prosecutorial misconduct; (3) defective jury instruction; (4) new law regarding concealment of promises to informants; (5) newly discovered evidence; (6) Petitioner's exposure to the jury while in prison garb; (7) the verdict was against the great weight of the evidence; and (8) insufficient evidence to sustain a first-degree murder conviction. The trial court denied Petitioner's motion on January 11, 2005. Petitioner filed a motion for rehearing and reconsideration with the trial court and relief was again denied on February 3, 2005.

Petitioner filed an application for leave to appeal with the Michigan Court of Appeals raising the following issues:

I. The defendant demonstrated a significant possibility of his innocence and the trial court abused its discretion in refusing to consider the defendant's showing of actual innocence or to order an evidentiary hearing.

II. The lower court abused its discretion in finding that the issues herein raised had been raised in previous appeals.

III. The defendant was denied the effective representation of trial counsel by virtue of trial counsel's drug addiction and activities which adversely affected his performance.

IV. Trial counsel, by virtue of his drug activities which made him a target for investigation by local law enforcement officials, was enmeshed in a conflict of interest in undertaking the representation of the defendant, who was being prosecuted by the same officials and his representation thereby rendered ineffective under Strickland v. Washington and it progeny.

V. Trial counsel was also enmeshed in an impermissible conflict of interest by virtue of his having been the attorney for the chief investigating officer, which conflict rendered his representation of the defendant ineffective under Strickland v. Washington and its progeny.

VI. Trial counsel's failure to call Michelle Woodworth and other witnesses constituted ineffective representation under Strickland v. Washington and its progeny.

VII. Trial counsel's obstruction of the defendant's desire and right to testify constituted a deprivation of his constitutional right to testify.

VIII. The police threats directed at material defense witness Michelle Woodworth resulting in her nonappearance constituted prosecutorial misconduct depriving the defendant of due process guaranteed by the federal and state constitutions.

IX. The elicitation by the prosecution of the false testimony of Philip Joplin and its concealment of promises made to him to secure his testimony constituted prosecutorial misconduct and a violation of the constitutional rights of the defendant.

X. The repeated production of objectionable and highly inflammatory testimony and argument, the courtroom display of items shown only to inflame the passions of the jury, and the prosecutor's comment on the defendant's failure to testify constituted prosecutorial misconduct which deprived the defendant of a constitutionally fair trial.

XI. The failure of defendant's appellate counsel to raise the issues presented in Arguments III through X above deprived the defendant of the effective assistance of appellate counsel under Evitts v. Lucey and its progeny.

XII. Appellate Counsel failed to raise other significant issues in the defendant's previous appeals, including the claims that the verdict was against the great weight of the evidence, that the evidence was insufficient to support the verdict, that the defendant was exposed to the jury while in shackles and jail garb, and that the instruction given the jury on reasonable doubt was constitutionally defective.

Petitioner's application for leave to appeal was denied. People v. Freeman, No: 260864 (Mich.Ct.App. Aug. 25, 2005)...