Gagne v. Booker

• Decision Date: 25 May 2010
• Docket Number: No. 07-1970.,07-1970.
• Parties: Lewis Rodney GAGNE, Petitioner-Appellee,v.Raymond BOOKER, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

606 F.3d 278

Lewis Rodney GAGNE, Petitioner-Appellee,v.Raymond BOOKER, Warden, Respondent-Appellant.

No. 07-1970.

United States Court of Appeals Sixth Circuit.

Argued: June 9, 2009.

Decided and Filed: May 25, 2010.

Rehearing En Banc Granted, Opinion Vacated July 20, 2010.

ARGUED: Janet A. Van Cleve, Michigan Attorney General's Office, Lansing, Michigan, for Appellant. Paul L. Nelson, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellee. ON BRIEF: William C. Campbell, Michigan Attorney General's Office, Lansing, Michigan, for Appellant. Paul L. Nelson, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellee. Benjamin C. Mizer, Office of the Ohio Attorney General, Columbus, Ohio, for Amici Curiae. Lewis Gagne, Detroit, Michigan, pro se.

Before: BATCHELDER, Chief Judge; NORRIS and KETHLEDGE, Circuit Judges.

NORRIS, J., delivered the opinion of the court, in which KETHLEDGE, J., joined, with Judge KETHLEDGE (pp. 289-92), also delivering a separate concurring opinion. BATCHELDER, C.J. (pp. 292-301), delivered a separate dissenting opinion.

AMENDED OPINION

ALAN E. NORRIS, Circuit Judge.

Petitioner Lewis Gagne and his co-defendant, Donald Swathwood, were each charged with three counts of criminal sexual misconduct for forcibly and simultaneously engaging in sexual activities with Gagne's ex-girlfriend, Pamela Clark. All of the charges arose out of events occurring over the course of one night. The key question at trial was one of consent. The jury convicted Gagne of two counts, and Swathwood of three. Gagne filed a petition for a writ of habeas corpus, 28 U.S.C. § 2254, and the district court granted him relief on the basis that the state trial court's decision to exclude certain evidence had violated Gagne's due process right to present a meaningful defense. Respondent, Warden Raymond Booker, represented by the Michigan Attorney General (“the State”), appealed. We now affirm.

I.

A.

Gagne and Swathwood were each charged with three counts of first-degree criminal sexual conduct. Mich. Comp. Laws § 750.520b(1)(f).¹ Gagne's three charges included two counts of forcible penis to mouth penetration and one count of forcible penis to vagina penetration, charges for which consent is a full defense. See People v. Waltonen, 272 Mich.App. 678, 728 N.W.2d 881, 887 (2006) appeal denied, 478 Mich. 866, 731 N.W.2d 718 (2007); see also People v. Hearn, 100 Mich.App. 749, 300 N.W.2d 396, 398 (1980). A jury convicted Gagne of forcible vaginal penetration and of one count of forcible oral penetration.

The parties do not dispute the background facts that set the stage for what occurred on the night of July 3, 2000. The complainant, Clark, and Gagne dated from some time in January until early June of that year. Gagne moved in with Clark in late January or early February, and the two lived together until their relationship ended. Throughout this time, Clark worked, but Gagne did not, and Gagne would frequently use her work phone and her personal ATM card, sometimes without her knowledge.

Also undisputed were the events that took place around midnight on July 3, 2000. After spending most of that day doing yardwork, during which time she consumed most of a pint of vodka, Clark retired to her house to watch television. Gagne arrived uninvited at about 10:45 p.m. He informed Clark that he and his friend Swathwood, whom Clark also knew, were going to move to California. Shortly thereafter Swathwood and a third man, Michael Stout, arrived. The group began drinking beer and possibly smoking marijuana. By Clark's own estimate she consumed nine or ten beers during this time.

This point in the story marks the beginning of the facts contested at trial. We begin with the version urged by the prosecution, which was presented almost entirely through Clark's testimony. At some point after midnight, Clark and Gagne took a shower together. Afterwards, Clark, who believed that Swathwood and Stout had left, participated in oral sex with Gagne in the living room. Swathwood entered the room and began engaging in intercourse with her while Gagne forcibly held her head down. A few minutes later, Gagne released Clark and the two went into the bedroom where Clark told Gagne she did not want to have sex with Swathwood. Clark then began performing oral sex with Gagne. Swathwood again entered the room and began engaging in intercourse with her. The men held Clark down, and each had intercourse and oral sex with her, at various points slapping her buttocks and using sexual devices that Clark kept in her room.

At approximately five a.m. the men tired of this activity and left the room. Clark went into the bathroom, vomited, took a shower, and returned to bed where she slept until approximately noon the next day. At that time she discovered her ATM card was missing, and upon further investigation learned that at 5:28 that morning someone had withdrawn $300 from her account, and had tried to withdraw more money twice in the following fifteen minutes.

The defense's version of events differed primarily on the issue of consent. According to Gagne and Swathwood, the group purchased and smoked some crack cocaine at around midnight. Clark then began talking with the men about engaging in group sex, and in large part instigated the group sexual activity, first in the living room and then later in the bedroom. Their description of the sexual activities differed only in that Clark consented to them. They concede for instance, that they spanked Clark. At about five a.m. Gagne and Clark agreed that Gagne should leave and purchase more crack with money withdrawn using her ATM card. All three men left in Clark's car. Gagne dropped Stout off at home, withdrew $300 from an ATM using Clark's card, and then drove to a street corner and purchased crack. The defendants became nervous when they saw police cars in the area, so instead of returning home, they drove to a cemetery and smoked the crack. The defendants testified that they returned to Clark's house later that morning and Gagne returned her ATM card. Clark was angry and told Gagne to leave, so he did.

Clark testified that, two days later, she told her adult son that she had been raped. She also told the police, and saw several doctors. The doctors noted that she had some bruising but no trauma to her wrists or shoulders, which are typically present after a sexual assault. Nor did any of the doctors find any internal or external tears to Clark's vagina or rectum.

B.

As noted above, at the heart of Gagne's petition for habeas corpus is the trial judge's exclusion of certain evidence from the trial. As required by the Michigan rape shield law, Mich. Comp. Laws § 750.520j(1) & (2),² Gagne filed a motion in limine seeking to introduce evidence regarding several aspects of Clark's prior sexual experiences and tastes. The trial judge denied the motion in part, excluding evidence regarding two subjects that are relevant here: an incident of group sexual activity involving Gagne, Clark, and a man named Ruben Bermudez; and Clark's solicitation of Gagne's father to join her and Gagne in group sex. The court's exclusion of this evidence gives rise to this appeal.

The court also granted Gagne's motion in part, and, because it is especially relevant to our analysis, we recount in some detail the evidence the court decided to admit regarding sexual activity that occurred one night involving Gagne, Swathwood, Clark, and two other females they met at a bar called Tony's Lounge (“the Tony's Lounge incident”). In the spring of 2000, Clark, Swathwood, and Gagne went to Tony's Lounge, where they drank for some time. At the bar Swathwood met two women. All five of them departed together and went to a house belonging to one of the women. There were people at the house when they arrived. Clark and Gagne began to engage in some sort of “sexual behavior” in the living room while Swathwood had intercourse nearby with the other two women. Clark testified that she did not “engage in sex of whatever kind with Donny Swathwood” while they were in the living room. When someone knocked at the door, Clark and Gagne relocated to the bedroom where they began alternately having intercourse and arguing. Swathwood brought the other women into the bedroom. Gagne and Clark's argument escalated, and finally Clark left and went home.

Clark was extremely intoxicated during these events; she testified that she drove home that night but did not remember doing so. The next day, Gagne informed her that there was more from the previous night that she did not remember, including that she had engaged in oral sex with Swathwood. Clark testified that she had no memory of this. Nonetheless, she believed Gagne and told others what had happened with Swathwood, including Swathwood's girlfriend at the time.

Finally, Clark testified that, at some later date, she and Gagne “were talking about being with other men or being with other women” sexually, and discussed the Tony's Lounge incident:

And I told him that, you know, I honestly have not been with any other man except what you told me about [Swathwood] and I don't remember that. And he said to me, I was just lying 'cause I wanted to go to bed with the same-the girl that [Swathwood] was having sex with. And I-and then he told me that he did have sex with her that night. And she-the girl had told me something different.

For his part, Swathwood testified that Clark engaged in oral sex with him that night in the presence of Gagne and the other two women. Swathwood answered “yes” when asked, “Fair assessment to say this was kind of a group-sex, orgy-type situation?”

In her closing argument, the prosecutor repeatedly emphasized the unlikeliness of the defendants' version of the story, which, in her words, was “more consistent with the pornographic movie than real life.” The defense responded by attacking Clark's credibility and arguing that she had consented by pointing to the Tony's Lounge incident as...