McKenzie v. Smith

• Decision Date: 23 April 2003
• Docket Number: No. 01-1824.,01-1824.
• Citation: 326 F.3d 721
• Parties: Gerald McKENZIE, Petitioner-Appellant, v. David SMITH, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

326 F.3d 721

Gerald McKENZIE, Petitioner-Appellant, v. David SMITH, Warden, Respondent-Appellee.

No. 01-1824.

United States Court of Appeals, Sixth Circuit.

Argued: September 17, 2002.

Decided and Filed: April 23, 2003.

Rehearing and Suggestion for Rehearing En Banc Denied: June 19, 2003.

Andrew N. Wise (briefed), Nancy L. McGunn (argued and briefed), Federal Public Defenders Office, Detroit, MI, for Petitioner-Appellant.

William C. Campbell (briefed), Office of Attorney General, Habeas Corpus Division, Lansing, MI, Raina I. Korbakis (argued), State of Michigan, Department of Attorney General, Lansing, MI, for Respondent-Appellee.

Before: SILER, DAUGHTREY, and GILMAN, Circuit Judges.

OPINION

DAUGHTREY, Circuit Judge.

The petitioner, Gerald McKenzie, is a Michigan state prisoner who was convicted of assault with intent to murder and, as a result of that conviction, is serving a sentence of life imprisonment. He appeals the district court's judgment denying his petition for a writ of habeas corpus, filed under 28 U.S.C. § 2254. For the reasons set out below, we conclude that the evidence introduced against McKenzie is constitutionally insufficient to sustain his conviction, and we therefore find it necessary to reverse the district court's denial of relief.

FACTUAL AND PROCEDURAL BACKGROUND

In 1984, a Michigan jury found Gerald McKenzie guilty of the attempted murder of his girlfriend's three-year-old daughter, in violation of MCLA § 750.83. The evidence at trial established that, in the early morning hours of March 7, 1984, a construction worker reporting for work in downtown Detroit encountered a woman he had never seen before. The woman, who was never identified, told the worker to enter a nearby vacant building. He did so and found a three-year-old girl lying unconscious on the floor of the unheated building. Although the temperature that morning was as low as seven degrees, the girl was dressed only in a T-shirt and overalls, without a coat, socks or shoes. A pool of blood from her head had frozen, sticking her face to the floor. The worker picked up the child and took her out of the building. He then found a police officer who took the child to the hospital.

When admitted to the hospital, the child, Quattura Sutton, was in critical condition and experiencing severe hypothermia. She had several severe bruises to her head that were, according to the emergency room physician, new and suggestive of abuse. The doctor further testified that Quattura was emotionally traumatized and was in an "acutely deranged abnormal condition." He described Quattura as "withdrawn" and said that she "did not appear normal psychologically for several weeks."

Quattura lived with her mother, Elena Carter, and Carter's boyfriend, petitioner McKenzie, at the home of Carter's aunt, Patricia. Patricia and her two children, Tonya and Wilbert, also resided in the home, located around the corner from the vacant building in which Quattura was found. McKenzie and Carter had been dating for nearly three years and had been living together since Quattura was almost a year old. Both Carter and Carter's mother testified that although McKenzie was not Quattura's biological father, Quattura referred to him as "Daddy."

On the night of March 6, 1984, Carter and McKenzie spent the evening at home, both of them using drugs with a friend, Darrell Reed. They later walked Reed to the bus stop, returning home at 1:00 a.m. Carter testified that she told McKenzie she was going back out to borrow money to buy more drugs. McKenzie told Carter he was going to lie on the living room couch with Quattura. He said he would lock the door, and he told Carter that she should ring the doorbell when she returned. At the time, Patricia was upstairs in her bedroom, and her two children were on a couch in the dining room.

Carter admitted at trial that she had no intention of going out to get money that night. Rather, she intended to join another man, Johnny Williams, to do drugs. Carter said that she spent the remainder of the night with Williams and called her mother sometime after 11:00 a.m. on March 7, at which time she was told that Quattura was in the hospital.

After awakening on the morning of March 7, Patricia saw McKenzie sitting on the bed in the back bedroom and heard him making a crying noise. Patricia testified that McKenzie asked her if she had seen Quattura and told her that the child was not in the house. Patricia went downstairs looking for Quattura, but could not find her. She noted that the door was unlocked. Around noon, Patricia received word that Quattura was in the hospital.

Patricia's nine-year-old son Wilbert testified that he woke up the morning of March 7 when he heard McKenzie come into the house through the front door. Wilbert stated that he saw McKenzie go up to his mother's bedroom and then into McKenzie's own bedroom, where he sat down and "ma[de] funny noises like he was crying."

Quattura's maternal grandmother, Juanita Horton, testified that she saw her granddaughter in the hospital at about 1:30 a.m. on March 8, the day after she was admitted. She described Quattura's condition as "drowsy" and said that the child was "in a lot of distress." Horton testified that she asked Quattura, "How is Grandma's baby?" Over a hearsay objection from McKenzie's lawyer, Horton testified that Quattura said, "See, Grandma, what my daddy did to me." The trial judge ruled that this statement qualified as an excited utterance and was therefore admissible as an exception to the hearsay rule. The parties had agreed that Quattura was not competent to testify, and she was not called as a witness at McKenzie's trial.

The parties stipulated that Quattura's hospital records contained a notation by a nurse who was present in the room around the same time and "had indicated she thought she heard [the child say] `Donna,'" rather than "Daddy." However, the trial judge excluded evidence that Quattura, when asked two or three days later who had injured her, told the nurse, "Will did it." McKenzie's lawyer argued that the jury should be allowed to hear testimony concerning the "Will statement" because it was inconsistent with the "Daddy statement" introduced through testimony by Quattura's grandmother. The trial court, however, concluded that the statement "Will did it" was "not impeachment, as such," and excluded the evidence.

The state produced no physical evidence linking McKenzie to Quattura's assault. Lab technician Paula Lytle of the Detroit police department told the jury that she found Type O blood stains on a lamp shade taken from Quattura's home. According to Lytle, human blood of indeterminate type was also found at the foot of the staircase in the home. Lytle explained that her testing revealed that Quattura had Type O blood. Lytle further testified that her analysis of McKenzie's boots came up negative for blood stains. On cross-examination, Lytle also acknowledged that hair fibers found on Quattura at the hospital were found to be "dissimilar" to samples taken from McKenzie.

Also during the state's case-in-chief, Elena Carter testified that she was unaware of McKenzie having ever hit Quattura in the past. Juanita Horton and Aaron Horton, Quattura's grandparents, testified to the same effect. Patricia said that McKenzie and Carter had been having disagreements about Carter's leaving and staying out late. However, Carter denied arguing with McKenzie that night, and she testified that McKenzie "wasn't upset" with her when she left the house.

McKenzie did not testify at his trial — or present any evidence at all — but statements that he made to police on March 7 and 8 were introduced into evidence by the prosecution. In his statements, McKenzie denied harming Quattura or removing her from the house. McKenzie did admit to using drugs earlier in the evening. He also said that he slept that night in an upstairs bedroom, not on the couch with Quattura, and did not become aware of the child's absence until he went downstairs at about 6:30 a.m.

After deliberating for four hours over a two-day period, the jury informed the trial court that it was deadlocked. The trial court rejected the defense's request for a mistrial and delivered an Allen charge. About four hours later, the jury returned with a guilty verdict. Subsequently, the trial judge sentenced McKenzie to a term of life imprisonment.

Since then, McKenzie's post-trial litigation, from direct appeal to the instant petition, has been lengthy and complex.

Direct Appeal

On direct appeal, McKenzie raised several issues: (1) that the Allen charge was unduly coercive; (2) that Quattura's statement to her grandmother was improperly admitted as an excited utterance; (3) that the trial court's application of the Michigan rules of evidence deprived him of due process and the right to confrontation; (4) that the prosecution's introduction of photographs of the injured child was unduly prejudicial; and (5) that his life sentence violated Michigan sentencing guidelines. In addition, McKenzie's appellate counsel included a one-sentence argument that McKenzie was denied the effective assistance of trial counsel. The Michigan Court of Appeals affirmed the sentence and conviction in an unpublished order, and the Michigan Supreme Court denied McKenzie's application for review of the second, third, and fourth issues.

First Habeas Corpus Petition

In 1986, McKenzie filed a pro se petition for a writ of habeas corpus in federal court, contending that the state trial court misapplied Michigan law in admitting Quattura's statement to her grandmother, misapplied Michigan law in admitting the photographs of the victim, and made evidentiary rulings that deprived McKenzie of his Sixth Amendment right to confront witnesses against him. The district court concluded that the first two claims were not cognizable habeas claims because they concerned solely state law matters and that McKenzie failed to meet his...