Hardaway v. Withrow
| Decision Date | 21 February 2001 |
| Docket Number | No. 98-CV-75294-DT.,98-CV-75294-DT. |
| Citation | 147 F.Supp.2d 697 |
| Parties | Dion HARDAWAY, Petitioner, v. Pamela WITHROW, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Dion Hardaway, Ionia, MI, Pro se, Sanford Plotkin, Farmington Hills, MI, for Petitioner.
Carolyn M. Breen, Wayne County Prosecutor's Office, Detroit, MI, Janet Van Cleve, MI Dept. of Atty. Gen., Lansing, MI, for Respondent.
Dion Hardaway, ("petitioner"), presently confined at the Michigan Reformatory in Ionia, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed both pro se and through counsel Sanford Plotkin, petitioner challenges his conviction of one count of second degree murder, M.C.L.A. 750.317; M.S.A. 28.549, and one count of possession of a firearm in the commission of a felony. M.C.L.A. 750.227b; M.S.A. 28.424(2). Because the trial court gave an instruction that effectively denied petitioner of his defense, petitioner's application for writ of habeas corpus is conditionally GRANTED.
Petitioner was charged with first-degree murder, assault with intent to commit murder, and possession of a firearm in the commission of a felony, arising from an incident that occurred in Detroit, Michigan on October 6, 1994. Following a jury trial in the Detroit Recorder's Court, petitioner was found guilty of the lesser offense of second degree murder, not guilty of assault with intent to commit murder, and guilty of the felony-firearm charge.
The prosecution's theory of the case was that petitioner intended to commit a robbery by killing Mario Lenzy, Deandre Berry, and Latoya Webb, persons whom petitioner had agreed to act for as a middleman to obtain marijuana. During the unsuccessful robbery attempt, Lenzy was shot and killed by petitioner.
Petitioner's defense at trial was that he shot Lenzy in self-defense after observing Lenzy make a sudden reaching movement in the direction of a firearm that had been in his possession.
Latoya Webb testified that she was Lenzy's girlfriend. She, Lenzy, Berry, and a man named Mike met with petitioner on the afternoon of October 6, 1994. Berry and Mike had a conversation with petitioner during this initial meeting. Later that day, Webb observed Lenzy and Berry counting four to five thousand dollars.
That evening, Lenzy, Webb, and Berry went to pick up petitioner at his grandmother's house. When they left to meet petitioner, Webb believed that they were going to buy a large amount of marijuana. Lenzy had a handgun in his possession when they left. Prior to arriving at petitioner's house, Lenzy stopped at a gas station and gave Webb his gun when he got out to pump gas. Webb placed the gun under her leg.
Webb and her two companions arrived at petitioner's house. Berry went to the door and had a conversation with petitioner. Berry returned to the car and told the others that they had to go somewhere else to purchase the marijuana. When petitioner arrived at the car, he asked Berry who Webb was. Berry informed petitioner that Webb was Lenzy's girlfriend. Petitioner told Berry that he had to go back to his house and call his friend to let him know how many people were in the car. While petitioner was inside of his house, Webb took the handgun and gave it back to Lenzy, because she became nervous and suspicious when petitioner went back into his house. Lenzy took the handgun and placed it under his leg. On cross-examination Webb admitted that at the preliminary examination, she testified that when she gave the gun back to Lenzy, he placed it on his lap. She also admitted that she had previously testified at the preliminary examination that she was able to see the gun under Lenzy's leg, although she explained that she may not have understood the question.
When petitioner returned to the car, he told Lenzy to drive them to a house to purchase the marijuana. Petitioner directed Lenzy to a house on Pasadena Street in Detroit, Michigan. After passing the house twice, Lenzy parked the car in front of the house. Petitioner suggested that both he and Berry go to the house together. Berry, however, refused to go into the house with petitioner. Lenzy asked petitioner to go into the house and bring out a sample of the marijuana, so they could be sure that it was the same marijuana that they had seen their friend Mike purchase earlier in the day. Petitioner did not agree to get a sample of the marijuana. After Lenzy asked this question, there was a quick jerk and a gunshot went off from the side of the car where petitioner had been sitting. Prior to the gunshot, Lenzy handed his cellular phone to Webb. Webb testified that Lenzy had not said or done anything threatening. Although she was uncertain where Lenzy's hands were at the time of the shooting, Webb stated that they were not moving. After the shot was fired, Webb jumped from the car and ran to a church.
Deandre Berry's testimony was similar to Webb's testimony in many respects. Berry indicated that he was the link between Lenzy and petitioner. Prior to going to petitioner's house on the evening of October 6, 1994, Berry had been at Lenzy's house counting five thousand dollars. Berry testified that petitioner had promised to sell them ten pounds of marijuana for three thousand dollars. Berry, Lenzy, and Webb drove to petitioner's house. On the way, they stopped at a gas station where Lenzy gave his gun to Webb. When they arrived at petitioner's house, petitioner came to the car. Berry testified that petitioner appeared shocked when he saw Webb in the car. He asked Berry who she was. When told that Webb was Lenzy's girlfriend, petitioner told Berry that he would have to go back into the house and inform the owner. While petitioner was inside, Berry told Lenzy that something didn't seem right and told him to get his gun back from Webb. Lenzy received the gun back from Webb and put it to his side. Berry couldn't see exactly where Lenzy placed the gun, because he was in the backseat.
When petitioner got back into the car, Lenzy drove the others to a house at Pasadena and Lodge in Detroit. According to Berry, petitioner appeared "jumpy" on the ride over to the house. He didn't take them directly to the house on Pasadena, but had them drive around the block before parking in front of the house. At the house, petitioner asked Berry if he had the money. Berry told petitioner to go wait on the porch of the house and that he would be with him in a moment. Petitioner refused to go to the porch, suggesting instead that both men should go together. Berry refused to go to the porch with petitioner and told petitioner to wait on the sidewalk. After petitioner refused, Lenzy asked petitioner if he could bring a quarter pound of marijuana from the house so they could make sure it was the same marijuana that they had purchased earlier. After asking petitioner to get the marijuana, Lenzy went to use his cellular phone and had flipped the phone down. Lenzy then made a gesture to go into his jacket pocket, but no words of hostility had been exchanged. At that point, Berry heard two gunshots. Berry saw Lenzy's head leaning back. According to Berry, petitioner then pointed the gun at his head and he heard a click as petitioner unsuccessfully attempted to fire the gun. Webb, however, contradicted this part of Berry's testimony by indicating that she did not see petitioner point a gun at anyone's head. Berry then escaped from the car.
On cross-examination, Berry admitted that the marijuana transaction was supposed to be between him and petitioner, but that Lenzy and Webb were also present. Berry acknowledged that their presence may have made petitioner nervous. Berry also admitted that he did not see what Lenzy put in his hand as he reached for his jacket pocket.
Petitioner testified in his own defense. On October 6, 1994, Deandre Berry discussed purchasing ten pounds of marijuana from him for three thousand dollars. Later that night, petitioner paged Berry and asked him to come over to his house. When Berry came to the house, he was with two other people who petitioner did not know. When petitioner asked Berry who they were, he was informed that they were Berry's cousin and...
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