Lyons v. Stovall

• Decision Date: 19 June 1998
• Docket Number: No. 97-1894,97-1894
• Citation: 188 F.3d 327
• Parties: (6th Cir. 1999) Theodore J. Lyons, Petitioner-Appellee, v. Clarice Stovall, Respondent-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 327

188 F.3d 327 (6th Cir. 1999)

Theodore J. Lyons, Petitioner-Appellee, v. Clarice Stovall, Respondent-Appellant.

No. 97-1894

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: June 19, 1998

Decided and Filed: August 24, 1999

Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor, No. 95-60304--Barbara K. Hackett, District Judge.

Olga Agnello, OFFICE OF THE PROSECUTING ATTORNEY, COUNTY OF WAYNE, Detroit, Michigan, for Appellant.

Todd Maybrown, ALLEN, HANSEN & MAYBROWN, Seattle, Washington, Kenneth M. Mogill (briefed) Mogill, Posner, & Cohen, Detroit, Michigan, for Appellee.

Before: MOORE, CLAY, and GILMAN, Circuit Judges.

CLAY, J., delivered the opinion of the court in Parts I.A., II.B., and II.C. below. GILMAN, J. (pp. 33-38), delivered the opinion of the court in Part I. of his concurring opinion. MOORE, J. (pp. 39-43), delivered a separate dissenting opinion.

OPINION

CLAY, Circuit Judge.

Petitioner, Theodore J. Lyons, was convicted in August of 1987 of first-degree criminal sexual assault and sentenced to a term of ten to twenty-five years of imprisonment for the rape of a mentally retarded woman who was confined to a community living facility where Petitioner worked as a staff member. After unsuccessfully appealing his conviction to the Michigan appellate courts, Petitioner filed an application for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. The district court granted the petition, and ordered that the case be returned to the state forum for a new trial within 180 days. The state appealed, but did not move for a stay of the writ pending appeal. Petitioner moved for release pending the state's appeal; however, the district court denied Petitioner's motion based upon the severity of the offense and the strong likelihood of another conviction.

Because we find that Petitioner failed to exhaust his state court remedies, his case is not properly before us. However, in the interest of judicial economy, we will excuse Petitioner's lack of exhaustion and apparent procedural default because the evidentiary issue upon which he bases his federal constitutional claim seeks the retroactive application of a new rule of law which is barred under Teague v. Lane, 489 U.S. 288 (1989). Accordingly, we REVERSE the district court's order granting Petitioner's writ of habeas corpus.¹

BACKGROUND

In March of 1983, Petitioner began working at the Hull Road Community Living Facility, a home for the mentally retarded, in Belleville, Michigan. Petitioner was shift supervisor and provided direct care to the residents, including feeding, bathroom assistance, and general personal care. At that time, approximately two of the six residents and five of the ten staff members at the home were men. On June 22, 1983, the victim, Evangeline McKenzie, became a resident at the home. Ms. McKenzie was both mentally and physically disabled in that she was profoundly retarded with an IQ below twenty and suffered from muscular dystrophy. She could not talk, feed or bathe herself, or use the bathroom without assistance.

In December of 1983, Dr. Mindy Smith, a family practice physician, examined Ms. McKenzie because it had been reported that Ms. McKenzie was exhibiting unusual behavior such as repeatedly hitting her abdomen while making sounds -- inasmuch as she could not speak words -- and that Ms. McKenzie had gained weight in her abdominal area. Dr. Smith diagnosed Ms. McKenzie as being pregnant, and opined that Ms. McKenzie was hitting her abdomen likely because she could feel fetal movement. Based upon records kept at the facility indicating that Ms. McKenzie's last menstrual period had begun on June 15, 1983, as well as upon her physical examination of Ms. McKenzie's uterus and abdomen, and the results of an ultrasound examination, Dr. Smith determined that as of December 8, 1983, Ms. McKenzie was 20.5 weeks pregnant.

Ms. McKenzie gave birth to a boy, Jonathan McKenzie, on March 24, 1984, and she died seven months later. Jonathan, who also was profoundly retarded, died in October of 1984. Dr. Karen Bartscht, a physician who assisted in Jonathan's delivery, opined that Jonathan was premature and estimated that conception had taken place between June 15 and June 25, 1983. Dr. Bartscht had examined Ms. McKenzie on February 15, 1994, about six weeks before delivery, and determined that Ms. McKenzie was a few days over thirty weeks pregnant. At the time of delivery, Dr. Bartscht drew blood samples from Ms. McKenzie and Jonathan, and the samples were sent to the state police crime laboratory.

Inasmuch as Ms. McKenzie was unable to communicate, blood samples were taken from the facility's two male residents, the five male direct-care providers other than Petitioner, as well as from the facility's director, in an attempt to determine paternity. Comparison of these blood samples with that of Ms. McKenzie and Jonathan excluded these men as being the possible father. Petitioner refused to voluntarily provide a blood sample, so a search warrant was obtained, and a blood sample was drawn. Petitioner's blood, along with that of Ms. McKenzie and Jonathan, were sent to the National Legal Laboratory where human leukocyte antigen (HLA) tests revealed that the genetic markers in Petitioner's blood matched the genetic markers found in Jonathan's blood.² Based upon these findings, Petitioner was charged with first-degree criminal sexual assault.

At trial, the prosecution presented testimony from two expert witnesses, Dr. Walker and Dr. Gershowitz, to explain the HLA test results that each had performed. The experts each characterized the results of the tests in three different statistical forms: 1) the probability of exclusion, 2) the combined paternity index, and 3) the probability of paternity. Dr. Gershowitz and Dr. Walker opined that the probability of exclusion, which described the strength of the test by indicating its ability to exclude falsely accused men, was 95.5% and 99.5%, respectively. In other words, the experts opined that the results of the tests would exclude a falsely accused man with close to 100% accuracy. Except for Petitioner, the possibility of paternity was excluded as to all of the men tested in connection with this case. According to Dr. Walker, because it is not possible to prove paternity, the fact that Petitioner was not excluded as the father was "the most powerful evidence" in the case. Petitioner did not object to the admittance of the probability of exclusion evidence, and does not do so on appeal.

The combined paternity index expressed the likelihood that Petitioner was the father as opposed to a random man based upon the same genetic markers. Dr. Gershowitz described this test as an "odds statement." Specifically, he opined that "[i]t's the odds that this man is the father of this child compared to any other man in the population who might have been able to contribute the requisite genes." Dr. Gershowitz's test results indicated that the combined paternity index for Petitioner in this case was 303.8 to 1; or, put differently, Petitioner was about 304 times more likely to be Jonathan's father than a random man. Dr. Walker reported that, based upon his testing, Petitioner's combined paternity index was 429 to 1, or that Petitioner was 429 times more likely to be Jonathan's father than a random man. Petitioner did not object to the introduction of the combined paternity index statistics, and does not do so on appeal.

The probability of paternity statistics were based upon the same test results from the same genetic markers, but were expressed in terms of percentages as opposed to odds. Dr. Gershowitz converted the 303.8 to 1 combined paternity index odds found by his testing to a probability of paternity percentage of 99.7%. Dr. Walker converted the 429 to 1 combined paternity index odds found by his test results into a probability of paternity expression of 99.76%. The experts made it known to the jury that the probability of paternity percentages were calculated on the underlying mathematical assumption that Petitioner had had sexual intercourse with Ms. McKenzie; that the percentages had to be viewed and weighed by the jury in light of the other evidence admitted; and that if it were a known fact that Petitioner did not have sexual intercourse with the victim, the value of the probability of paternity would be zero percent. It is the probability of paternity statistics to which Petitioner objected at trial, and objects to on appeal.

Petitioner was convicted by a jury of first-degree criminal sexual assault and sentenced to a term of ten to twenty-five years' imprisonment. Petitioner appealed his conviction, and the Michigan Court of Appeals affirmed. Petitioner sought leave to appeal his conviction to the Michigan Supreme Court; however, his application was denied. Petitioner then filed for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan, raising the following two issues:

I. WERE PETITIONER'S RIGHTS TO THE PRESUMPTION OF INNOCENCE AND TO TRIAL BY JURY EVISCERATED BECAUSE OF THE INTRODUCTION OF HIGHLY PREJUDICIAL TESTIMONY AND ARGUMENT REGARDING THE PURPORTED STATISTICAL PROBABILITY OF PETITIONER'S PATERNITY?

II. WERE PETITIONER'S RIGHTS UNDER THE FOURTH, FIFTH, SIXTH AND FOURTEENTH AMENDMENTS VIOLATED BECAUSE OF THE PROSECUTOR'S CROSS-EXAMINATION WHICH SUGGESTED THAT PETITIONER WAS GUILTY BECAUSE THE POLICE WERE REQUIRED TO SEEK A SEARCH WARRANT TO OBTAIN HIS BLOOD?

United States Magistrate Judge Marc Goldman recommended that the petition be granted because 1) calculation of the so-called "probability of paternity" statistics by the experts depended on an underlying mathematical assumption that Petitioner had had sexual intercourse with Ms. McKenzie, and 2) the prosecutor's question on cross-examination regarding Petitioner's refusal to provide a...