Gagne v. Booker

• Decision Date: 16 May 2012
• 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

680 F.3d 493

Lewis Rodney GAGNE, Petitioner–Appellee,

v.Raymond BOOKER, Warden, Respondent–Appellant.

No. 07–1970.

United States Court of Appeals, Sixth Circuit.

Argued: March 2, 2011.

Decided and Filed: May 16, 2012.

ARGUED: Laura Moody, Michigan Attorney General's Office, Lansing, Michigan, for Appellant. Paul L. Nelson, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellee. ON BRIEF: Laura Moody, B. Eric Restuccia, 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, Margaret Garvin, National Crime Victim Law Institute at Lewis & Clark Law School, Portland, Oregon, Mellissa Fuhrmann, Justice League of Ohio, Powell, Ohio, for Amici Curiae.

Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, NORRIS, MOORE, COLE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, and STRANCH, Circuit Judges.

BATCHELDER, C.J., announced the judgment of the court and delivered an opinion, in which BOGGS, GIBBONS, SUTTON, COOK, McKEAGUE, and GRIFFIN, JJ., joined. SUTTON (p. 518), and GRIFFIN (pp. 518–20), JJ., delivered separate concurring opinions. MOORE, J. (pp. 520–24), in which COLE, J., joined, CLAY, J. (pp. 524–26), and WHITE, J. (pp. 526–27), delivered separate opinions concurring in the judgment only. MARTIN, J. (p. 527), delivered a separate dissenting opinion. KETHLEDGE, J. (pp. 527–39), also delivered a separate dissenting opinion, in which MARTIN, NORRIS, ROGERS, and STRANCH, JJ., joined.

OPINION

ALICE M. BATCHELDER, Chief Judge.

The respondent, Warden Raymond Booker, represented by the State of Michigan's Attorney General and Solicitor General (hereinafter “the State”), appealed the district court's grant of habeas corpus to petitioner-appellee Lewis Gagne. See Gagne v. Booker, No. 04–60283, 2007 WL 1975035, 2007 U.S. Dist. LEXIS 47616 (E.D.Mich. July 2, 2007). A three-judge panel affirmed. Gagne v. Booker, 596 F.3d 335 (6th Cir.2010), opinion amended and superseded by606 F.3d 278 (6th Cir.2010). The State sought en banc rehearing, which we granted; we correspondingly vacated the panel opinion. Gagne v. Booker, No. 07–1970, 2010 U.S.App. LEXIS 15052 (6th Cir. July 20, 2010). We now REVERSE.

I.

In July 2000, Lewis Gagne and his friend Donald Swathwood (also his codefendant) had decided to move to California. Gagne was unemployed and his turbulent six-month relationship with his former-girlfriend, P.C., had ended approximately three weeks earlier. On the evening of July 3, 2000, Gagne, Swathwood, and another friend, David Stout, were out for a good time.

When their car ran out of gas, they walked to P.C.'s house and found her there. P.C., who had been drinking for most of the day, agreed to get cash from the ATM to buy gas, beer, and crack cocaine. Upon their return, and after smoking, drinking, and showering, P.C. began to have sex with Gagne, whereupon Swathwood joined in. P.C. engaged in fellatio, vaginal intercourse, and anal intercourse with both men. She also engaged in fellatiowith Stout, albeit briefly, and during the course of this “escapade,” had multiple vibrators and a wine bottle inserted into her vagina and rectum. At approximately 5:00 a.m. the next morning, the three men took P.C.'s ATM card, withdrew $300, bought crack cocaine, and smoked it all themselves.

Later that afternoon, P.C. called the police and accused Gagne and Swathwood of rape. She claimed that, while she had originally begun a consensual sexual encounter with Gagne, she had protested Swathwood's uninvited participation and, rather than relenting when she objected, Swathwood and Gagne had held her down, forcibly raped and sodomized her, mocked her and laughed at her, and tried to force her to perform fellatio on Stout, who was drunk, stoned, and virtually incoherent. Gagne and Swathwood replied that the whole episode was consensual; that P.C. had initiated and directed the “wild orgy” and had given them the ATM card with orders to return with more crack. They claimed that P.C. was the classic “woman scorned,” frustrated that Gagne was leaving for California and angry that the men had smoked the crack without her.

The State charged Gagne and Swathwood with three counts each of first-degree criminal sexual misconduct in violation of Michigan law, M.C.L. § 750.520b(1)(f) (sexual penetration through use of force, causing injury to the victim). Both defendants entered not-guilty pleas, and the case was set for a jury trial in a Michigan state court. Stout was to be a witness, but not a defendant.

At the conclusion of a seven-day trial, the jury convicted Swathwood on all counts and Gagne on two (the jury acquitted Gagne of one count of forced fellatio). The court sentenced Swathwood to a prison term of 15 to 30 years, and Gagne to a term of 22 1/2 to 45 years.

II.

The present appeal stems from a pre-trial ruling by a Michigan trial court on the admissibility of two particular pieces of evidence proffered by the two criminal defendants: an allegation that the alleged victim, P.C., and defendant Gagne had, on a certain prior occasion, engaged in group sex with another individual, one Ruben Bermudez; and a separate allegation that P.C. had, on a certain prior occasion, offered to engage in group sex with Gagne and his father. The defendants moved to admit this evidence pursuant to the Michigan Rape Shield Law, M.C.L. § 750.520j, but the trial court denied the motion and excluded the evidence (and any argument regarding it).

After conviction, the defendants appealed this decision to the Michigan Court of Appeals, arguing that the trial court's exclusion of the evidence violated the Michigan Rape Shield Law in a manner that also violated their Sixth Amendment rights to a fair trial, to confront their accuser, and to present a complete defense. The Michigan Court of Appeals rejected this claim and affirmed the convictions. See Michigan v. Swathwood, Nos. 235540 & 235541, 2003 WL 1880143, 2003 Mich.App. LEXIS 922 (Mich.Ct.App. Apr. 15, 2003). ¹ Gagne sought leave to appeal to the Michigan Supreme Court, but was denied. Michigan v. Gagne, 469 Mich. 982, 673 N.W.2d 755 (2003).²

After exhausting his state-court appeals, Gagne petitioned for habeas corpus relief in federal district court, claiming—among other things ³—that the Michigan state courts had violated his Sixth Amendment rights to a fair trial by excluding the testimonial evidence about the group sex with Bermudez and the offer of group sex with his father. The district court granted the petition, see Gagne, 2007 WL 1975035, 2007 U.S. Dist. LEXIS 47616, and the State appealed.

Because Gagne's argument on this issue has “evolved” over the course of the proceedings, it is worthwhile to track this claim from the beginning and review the arguments, counter-arguments, and decisions at each of the three prior stages: trial, state appellate, and federal habeas.

A.

Michigan's Rape Shield Law, which lies at the origin of Gagne's constitutional claim, is a rule of evidence particular to criminal sexual-misconduct cases and provides that:

(1) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct shall not be admitted under sections 520b to 520g [FN1] unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:

(a) Evidence of the victim's past sexual conduct with the actor.

(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.

(2) If the defendant proposes to offer evidence described in subsection (1)(a) or (b), the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1). If new information is discovered during the course of the trial that may make the evidence described in subsection (1)(a) or (b) admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1).

[FN1]M.C.L.A. §§ 750.520b to 750.520g.

M.C.L. § 750.520j.

Prior to trial, Gagne identified certain items or instances concerning P.C.'s sexual history that he deemed relevant to his defense and filed a “Motion and Offer of Proof,” pursuant to § 750.520j(2), seeking to admit them as “proof of the victim [P.C.]'s past sexual conduct with him for the purpose of establishing consent.” Five of those items ⁴ were argued together:

1. An allegation that P.C., Gagne, and Swathwood had, on a certain prior occasion in June 2000, engaged in group sex, which also included two other women they had met at a bar (i.e., “the Tony's Lounge Incident”);

2. An allegation that P.C. and Gagne had, on a certain prior occasion in June 2000, engaged in group sex with another individual, one Ruben Bermudez;

3. An allegation that P.C. and Gagne, during their relationship, had commonly used “sex toys”, including vibrators, a wine bottle, and others;

4. An allegation that it was P.C. who had invited Stout (who was not charged as a defendant) to participate in the group sex on the night in question; and

5. An allegation that P.C. had, on a certain prior occasion, offered to engage in group sex with Gagne and his father, Rodney Gagne.

Gagne asserted that these “factual scenarios[,] constituting [his] offer of proof[,] [we]re probative of the issue of the alleged victim [P.C.]'s consent to have sexual relations with multiple partners simultaneously[,] and that the use of objects in connection with sexual activities is not necessarily inconsistent with the existence of consent on the part of...