MacLean v. McKee, Case Number: 2:09-CV-12992

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
PartiesTHOMAS V. MACLEAN, Petitioner, v. KENNETH T. MCKEE, Respondent.
Docket NumberCase Number: 2:09-CV-12992
Decision Date10 July 2012

THOMAS V. MACLEAN, Petitioner,
KENNETH T. MCKEE, Respondent.

Case Number: 2:09-CV-12992


Dated: July 10, 2012



Petitioner Thomas V. MacLean is presently in the custody of the Michigan Department of Corrections, serving concurrent sentences of 17-1/2 to 30 years' imprisonment for second-degree murder and 5 to 15 years' imprisonment for operating a motor vehicle while intoxicated causing death. Through counsel, he filed the pending habeas petition pursuant to 28 U.S.C. § 2254. Petitioner argues that an eight-year delay between the time of the car accident and his trial violated his rights to a speedy trial and due process and the destruction of evidence violated his right to due process.

I. Facts and Procedural Background

Petitioner's convictions arise from an automobile accident that occurred on February 27, 1998, causing the death of William Shand. The accident occurred on Romeo Plank Road in Romeo, Michigan at approximately 7:30 p.m. It involved three vehicles: the vehicle driven by Shand (a Dodge Caravan minivan); the vehicle driven by

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Petitioner (his mother's white Pontiac Grand Prix); and the vehicle driven by Raymond Pini (a Ford F-150 truck). Shand died from a crushing injury to his chest. Petitioner suffered severe injuries in the accident, including a closed-head injury. Pini was not seriously injured. The prosecutor's theory of the case was that Petitioner, while intoxicated, drove his Grand Prix southbound on Romeo Plank Road at a high rate of speed and struck Shand's minivan. The minivan narrowly missed an oncoming Ford Truck, but hit a roadside utility pole. Petitioner's Grand Prix hit the oncoming Ford Truck and split into pieces.

Philip Porte testified that he was traveling southbound on Romeo Plank Road on the night of the accident. He was passed by a vehicle he believed to be a Grand Prix traveling at approximately 80 m.p.h. A minute or so after the Grand Prix passed him, he came upon the accident scene. He saw that the Grand Prix had been split in half, and that a minivan had crashed into a utility pole. Porte stopped his vehicle to see if he could offer assistance. He and another man approached the minivan. Shand was non-responsive. Porte noticed the smell of gasoline and downed wires from the utility pole. He backed away. Moments later the vehicle caught fire.

Liesl Bollaert testified that she was driving north on Romeo Plank Road on February 27, 1998. She saw a white vehicle coming toward her in the southbound lane. The white vehicle was approximately two feet over the yellow line, requiring her to move over to avoid being hit. She watched the speeding vehicle in her rearview mirror and witnessed the collision eight to ten seconds later.

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Raymond Pini testified that the collision took place near the intersection of Romeo Plank and Gilmore Roads. Pini testified that he was driving northbound on Romeo Plank Road in his Ford F-150 pickup truck when he saw Shand's minivan cross in front of him, followed closely by the Grand Prix. Pini slammed on his brakes, but was unable to stop. He hit the rear of the Grand Prix. He exited his vehicle and approached the minivan. After finding Shand lifeless, he approached the Grand Prix, which was split into several pieces.

Macomb County Sheriff's Deputy Keith Paolella testified that he responded to the scene of the accident, arriving at 7:13 p.m. When he arrived, Shand's minivan was engulfed in flames. Paolella described the accident scene as the worst he had ever seen.

Robin Warchol testified as an expert in the field of medical technology. She testified that, at approximately 8:30 p.m. on the date of the accident, she analyzed a blood sample that was taken from Petitioner. His blood alcohol level was 0.28.

Retired Detective Terry Blount, a certified accident reconstructionist, testified that he visited the scene approximately one hour after the accident occurred. He testified that the Grand Prix was traveling between 85 and 90 m.p.h., and Shand's vehicle between 55 and 60 m.p.h. Blount found no evidence that Petitioner applied his vehicle's brakes prior to the impact with Shand's vehicle, but he could not rule out the possibility that Petitioner had done so. Blount found evidence that Petitioner braked after the impact with Shand's vehicle. Shand's vehicle struck the utility pole above ground level, breaking the pole.

The defense presented two witnesses: Petitioner's mother and an accident

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reconstruction expert, David James Shepardson. Shepardson testified that Blount's conclusions about the accident were not scientifically valid because they were not based on science or the teachings of accident reconstruction. Shepardson testified that he could not determine the speed of the vehicles at the time of the crash because the vehicles had not been preserved, the road had been resurfaced, and the photographs and measurements taken were inadequate to perform the necessary calculations. Shepardson testified as to various methods for determining rate of speed, with the momentum method the optimal method in this case. Blount did not use this method. Shepardson testified that Blount used an incorrect breaking factor and incorrect coefficient of friction in his calculations. Shepardson proceeded to discuss several additional areas in which he determined Blount's analysis was incorrect.

Petitioner was convicted by a jury in Macomb County Circuit Court of second-degree murder and operating a motor vehicle while intoxicated causing death rendered. On April 6, 2006, he was sentenced to 17-1/2 to 30 years' imprisonment for the second-degree murder conviction and 5 to 15 years' imprisonment for the operating-a-motor vehicle conviction.

Petitioner filed an appeal of right in the Michigan Court of Appeals. He raised the following claims:

I. This case must be dismissed given the destruction and loss of the most significant physical evidence, the inability of the defendant's expert to analyze the evidence and scene, the loss of witnesses and memories based on the 8 year delay from the collision to the trial. This egregious violation of the defendant's constitutional rights to a speedy trial and due process is

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not excused in the interest of saving taxpayer money.
II. Reversible error occurred through the testimony of unqualified "experts" and the insufficient basis for the admissibility of blood alcohol levels and testing in this case.
III. Despite the fact that there was not a scintilla of evidence that the eight year delay was caused by the defendant, the constant baseless claims as to this and threats of a criminal investigation of the defendant's family and counsel constituted prosecutorial intimidation and deprived defendant of a fair trial, especially in light of extensive pretrial publicity that attributed the delay to the defendant.
IV. The trial court committed reversible error by prohibiting evidence of the defendant's good character traits by ruling that if this evidence was offered, the prosecution would then be allowed to introduce prior alcohol related offenses.

The Michigan Court of Appeals affirmed Petitioner's convictions. People v. MacLean, No. 270525, 2007 WL 2713431 (Mich. Ct. App. Sept. 18, 2007).

Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims raised in the Michigan Court of Appeals. The Michigan Supreme court denied leave to appeal. People v. MacLean, 480 Mich. 1141 (March 26, 2008). Petitioner's motion for reconsideration was denied. People v. MacLean, 482 Mich. 899 (Mich. Apr. 16, 2008).

Petitioner then filed the pending petition for a writ of habeas corpus. He raises the following claims:

I. The petitioner must be discharged given the intentional destruction and loss of the most significant physical evidence of the collision, the inability of the petitioner's expert to analyze the evidence and scene, the loss of witnesses who were not able to testify and the deterioration of memories based on the 8 year delay from the collision to the trial. This egregious violation of the

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petitioner's constitutional rights to a speedy trial and due process is not excused for the stated purpose of saving taxpayer money.
II. The intentional destruction of all evidence of the collision is a denial of due process when a prosecution witness cannot therefore be effectively examined on his findings.

II. Standard of Review

28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.

28 U.S.C. § 2254(d).

"A state...

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