Lyle v. Koehler

• Decision Date: 21 October 1983
• Docket Number: No. 82-1447,82-1447
• Citation: 720 F.2d 426
• Parties: 14 Fed. R. Evid. Serv. 907 Roger L. LYLE, Petitioner-Appellant, v. Theodore KOEHLER and Frank J. Kelley, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 426

720 F.2d 426

14 Fed. R. Evid. Serv. 907

Roger L. LYLE, Petitioner-Appellant, v. Theodore KOEHLER and Frank J. Kelley, Respondents-Appellees.

No. 82-1447.

United States Court of Appeals, Sixth Circuit.

Argued March 31, 1983.

Decided Oct. 21, 1983.

Richard H. Drucker argued, Cleveland, Ohio (court-appointed), for petitioner-appellant.

Frank J. Kelley, Atty. Gen., of Michigan, Lansing, Mich., for respondents-appellees.

Before MERRITT and MARTIN, Circuit Judges and PORTER, Senior District Judge. ^*

MERRITT, Circuit Judge.

After a jury trial in the Circuit Court for the County of Saginaw, Michigan, petitioner Roger L. Lyle was convicted of two counts of first degree felony murder and one count of assault with intent to murder, and was sentenced to three concurrent life terms. Having exhausted his state remedies, Lyle filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. He now appeals that court's decision to dismiss the petition.

This case arose out of shootings that occurred shortly after midnight on April 14, 1976, in the home of Feadow and Deborah Jones, both of whom died from the gunshot wounds they received. Alzenia Price--a third victim--survived the attack, although she had been shot twice in the head, and ultimately testified at appellant's trial. Price testified that four men forced their way into the Jones' house and took various pieces of jewelry before shooting the victims. One of the Jones' neighbors saw a large brown car with a beige top park in front of the Jones residence and, after hearing shots, observed the same car drive away quickly.

Shortly after the shootings, the Saginaw Police Department issued a radio report tying one Howard "Pussycat" Johnson to the incident. In response to this report, two police officers proceeded to Johnson's neighborhood and arrested appellant and Nathaniel Kemp, both of whom the police observed leaving a house and entering a car that resembled the description of the assailants' getaway car. The police moved in to make the arrest when they recognized Johnson and another unidentified individual approaching the car in which Lyle and Kemp sat. The officers were unable to apprehend Johnson and his companion, both of whom fled on foot, but succeeded in taking Lyle and Kemp into custody. At a subsequent lineup, Price identified Lyle as one of her attackers but did not recognize Kemp. The police did, however, find a fingerprint left by Kemp at the Jones' home. Lyle and Kemp were both convicted following their joint trial.

Lyle challenges his conviction on several grounds, each of which we shall consider in turn. Because we find that he did not receive sufficient opportunity to confront the witnesses against him, we are compelled to reverse the judgment of the District Court denying his petition.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his closing argument to the jury, Lyle's trial counsel contended vigorously that the government had failed to prove Lyle's involvement in the shootings and that, as the District Court observed, "petitioner was being prosecuted ... [only] because of his supposed association with Howard 'Pussycat' Johnson." Lyle v. Koehler, Civ. No. 80-74578, at 5 (E.D.Mich.1982). Trial counsel also contested the government's theory that the homicides occurred in conjunction with a robbery, maintaining instead that they were drug related:

You don't commit an armed robbery by saying, "where's the stuff? where's the stuff?"

You don't plan on committing an armed robbery and using other people's guns, either. You don't make people take their clothes off and make them go downstairs and tell them you are going to shoot them. This was an execution. This was an execution.

And it was for a reason. And it wasn't because of money or because of a watch or a couple of rings. Don't you believe it was, because it wasn't.

(Tr. 966.)

Appellant insists that this argument amounted to an admission of guilt by his trial counsel, and thus constitutes ineffective assistance of counsel. According to appellant, this argument effectively denied him of the right to a jury trial on the crimes charged. In Wiley v. Sowders, 647 F.2d 642, 649 (6th Cir.1981), this Court held that although "[c]ounsel may believe it tactically wise to stipulate to a particular element of a charge or to issues of proof ... an attorney may not stipulate to facts which amount to the 'functional equivalent' of a guilty plea." Because trial counsel in Wiley explicitly admitted his client's guilt, we reversed the lower court's denial of the writ of habeas corpus. The instant case, however, involves no such explicit admissions of guilt by trial counsel. On the contrary, as the District Court noted, counsel's argument simply commented on the government's theory of the case and never conceded that Lyle was involved in any of the events that transpired at the Jones' residence. Although unsuccessful, the argument certainly met the standard set by this Court to govern effectiveness of counsel cases. See Beasley v. United States, 491 F.2d 687, 696 (6th Cir.1974) ("assistance of counsel required by the Sixth Amendment is counsel reasonably likely to render and rendering reasonably effective assistance"). We, therefore, agree with the District Court that counsel's summation did not generate any violation of appellant's constitutional rights.

Lyle's second ineffectiveness of counsel claim involves trial counsel's failure to object to the court's instruction that the jury might consider the number of witnesses presented by each side in the case. ¹ In the District Court, appellant framed this issue as a direct challenge to the constitutionality of the jury instruction, making no ineffectiveness of counsel allegation. Noting that the Michigan Court of Appeals had invoked the state's contemporaneous objection rule to dismiss this claim, the District Court held that it was barred under Hockenbury v. Sowders, 620 F.2d 111 (6th Cir.1980), reh'g denied, 633 F.2d 443 (1980), from considering the claim anew absent a showing of cause and prejudice as required by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). ² We refuse to permit appellant to escape the consequences of Sykes doctrine simply by recasting the issue as an ineffectiveness of counsel claim. ³ Such a result would violate the fundamental principle that an appellate court may not consider claims not raised in the court below. See Bannert v. American Can Co., 525 F.2d 104 (6th Cir.1975).

The same rationale governs our disposition of Lyle's third and final ineffectiveness of counsel claim, which cites his trial counsel's failure to object to the judge's jury instruction regarding felony murder. ⁴ Having failed to present this theory in his petition to the District Court, appellant cannot now obtain review of the claim from this Court.

THE GOVERNMENT'S IMPEACHMENT OF ITS OWN WITNESSES

At trial, the government called Kenneth Newton--a friend of both defendants--as a witness and proceeded to impeach his testimony regarding the defendants' supposed alibi. Lyle claims that the government's impeachment of its own witness and its injection of the issue of alibi into the case deprived him of a fair trial. We disagree. Finding that Newton's alibi testimony was a surprise, the Michigan Court of Appeals held that the government was entitled to show why it had called Newton as a witness under People v. White, 401 Mich. 482, 508-10, 257 N.W.2d 912, 924-25 (1977). Moreover, as the District Court pointed out, the government would also have been permitted to impeach Newton under Fed.R.Evid. 607, which, while not controlling in a state trial, "certainly provides persuasive evidence that allowing the prosecutor to impeach his own witnesses does not rise to a constitutional violation meriting habeas corpus relief." Lyle v. Koehler, Civ. No. 80-74578, at 9-13 (E.D.Mich.1982).

CONFRONTATION CLAUSE VIOLATION ⁵

Lyle and co-defendant Kemp were arrested together on the night of the shootings shortly after they left a house on the same street as the house of Kenneth Newton. Lyle argues that the admission at trial of several extra-judicial statements by Nathaniel Kemp about a person named "Rock" incriminated Lyle because the jury would naturally have concluded that "Rock" and Lyle are the same person. He argues that admission of this evidence thus deprived him of his sixth amendment right to confront adverse witnesses, inasmuch as Kemp did not testify at their joint trial. The state court and the District Court found that the Kemp statements do not incriminate Lyle and, therefore, do not violate the confrontation clause. We cannot sustain this holding.

While in jail awaiting trial, Kemp instructed his sister, Vyethel, to deliver two letters he had written to Kenneth Newton and Nelson Calhoun. The letters attempt to establish an alibi. At trial, the prosecutor had Vyethel Kemp identify the letters. At the end of the government's case, the following edited versions of the letters were admitted into evidence and read to the jury without limiting instructions. First, the letter to Mr. Newton:

What it is Squeeze....

Like dig, I guess you are already informed that these honkies are trying to frame me over some bullshit, so I need you to testify in my behalf. I know that I can count on you to take care of business.

This is what I want you to run: Rock came by your house at 10:30 p.m. Tuesday. You'all just kicked it around for a while. Rock was there about 20-25 minutes before I came by at about 5 or 10 minutes to 11:00 p.m., with my chess board and we played chess and just kicked it around for about 1 1/2 hours. Then I asked you what time it was and you looked at your clock and said that it was 12:20 a.m. So, I said that "I am getting ready to leave so that I can take my sister's car back to her." Rock asked if I would give him a ride home and I said, "Yea, come on, let's go." So Rock...