Mitchell v. Vasbinder
| Decision Date | 11 June 2009 |
| Docket Number | No. 06-CV-11203.,06-CV-11203. |
| Citation | 644 F.Supp.2d 846 |
| Parties | Phillip Drew MITCHELL, Petitioner, v. Douglas C. VASBINDER, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Phillip Mitchell, Manistee, MI, pro se.
Heather S. Meingast, MI Department of Attorney General, Lansing, MI, for Respondent.
Before the Court is Petitioner Phillip Drew Mitchell's petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. (Dkt.# 1). Petitioner is a state inmate currently incarcerated at the Oaks Correctional Facility1 in Manistee, Michigan. He was charged with armed robbery,2 but was convicted of the lesser offense of unarmed robbery,3 by a Wayne County, Michigan, Circuit Court jury on November 15, 2002. Following his conviction, on December 5, 2002, the trial judge in the case The Honorable Daniel P. Ryan, sentenced him, as a fourth-habitual offender,4 to life imprisonment. In his pro se pleadings, Petitioner challenges his conviction and sentence on the following grounds: (1) prosecutorial misconduct, (2) ineffective assistance of counsel, (3) trial court error in reinstating the armed-robbery charge, (4) insufficient evidence, (5) abuse of discretion by the trial court in failing to suppress evidence of a tainted photographic line-up, (6) whether there were substantial and compelling reasons to exceed the sentence guidelines range, and (7) whether his sentence was disproportionate. For the reasons stated below, the Court denies the petition.
Petitioner's troubles in this case began at the Burger King restaurant located at 1425 West Lafayette in Detroit, Michigan, on August 17, 2002, at 5:45 p.m. According to the prosecution's theory, Petitioner entered Burger King and, while holding his hand under his shirt, demanded money from the individual at the cash register. The prosecution opined that Petitioner then took money out of the cash drawer when it was opened and subsequently fled. Petitioner was initially charged with armed robbery.
At the preliminary examination, after hearing the testimony of Lakeisha Jenkins, the complainant in this case, the district court judge reduced the armed-robbery charge to unarmed robbery.
THE COURT: This Court finds that the offense of robbery occurred in the City of Detroit. There is probable cause that the offense occurred, and probable cause that the defendant committed the offense. However, this Court feels that the element of a gun was not sufficient and I'm going to bind him over on unarmed robbery.
(Preliminary Examination Tr. 18, Sept. 4, 2002.)
However, after the case was bound over, at a Goecke5 hearing, Judge Ryan reinstated the armed-robbery charge, finding that there was sufficient evidence presented at the preliminary examination to reinstate that charge. Judge Ryan stated:
The Armed Robbery charge is reinstated. In this particular matter it doesn't necessarily matter whether or not the— the witness actually saw something. Armed Robbery is sufficient if a weapon is displayed or implied, and based upon the fact that the testimony indicates that it was implied, that it should have appropriately been bound over. Any other— as far as the—so the motion to reinstate the Armed Robbery charge is granted and Armed Robbery is reinstated.
(Goecke Hr'g, 12, Oct. 18, 2002.)
Following that hearing, Petitioner filed an interlocutory appeal, arguing that the trial judge abused his discretion in reinstating the armed-robbery charge. The Michigan Court of Appeals declined review. People v. Mitchell, No. 244752 (Mich.Ct.App. Nov. 13, 2002).
Trial in this case began on November 14, 2002. Lakeisha Jenkins was first to testify. According to her testimony, on the day in question, she was working as a cashier at the Burger King located at 1425 West Lafayette in Detroit, Michigan. Ms. Jenkins testified that as she was taking a woman's order, a man came over the chain and acted like he knew the woman placing the order. She said that when she opened the cash-register drawer to give the woman change, the man reached into the drawer with his left hand and grabbed the money. It was Ms. Jenkins's testimony that the man had his right hand tucked in his waistband as he was reaching into the drawer. Ms. Jenkins said that she tried to hold on to the money, but when the man told her "to stand back, bitch, or I'll kill you," she assumed that he had a weapon, and so, she stood back. (Trial Tr. vol. I, 97, Nov. 14, 2002.) Ms. Jenkins further testified "[w]hy would he just be standing there with his right hand over his pant like this and he robbed—you know, taking money from me, I don't know." (Trial Tr. vol. I, 98-99, Nov. 14, 2002.) It was estimated that the man took about forty or fifty dollars.
According to Ms. Jenkins, when the police arrived at the scene, about five minutes after the incident, they asked her to describe the perpetrator. She testified that she told the police that the man was a heavyset black male, about 5'11", wearing a navy-blue shirt and white pants.
Shortly after the robbery, Ms. Jenkins testified that she attended a photo lineup, where she immediately identified Petitioner as the man who robbed her at Burger King that evening. She also testified that she attended the preliminary examination and identified Petitioner as that person. At trial, Ms. Jenkins also identified Petitioner as the man who robbed her.
Additionally, at trial, the prosecutor showed Ms. Jenkins several photographs that were taken from the Burger King surveillance camera. She identified and explained those photographs as follows: (1) the first picture she was shown was that of Petitioner walking into the lobby of the Burger King; (2) the second was the woman who was placing the order, along with Ms. Jenkins herself, and Petitioner; (3) the third was Ms. Jenkins at the cash register, the woman who was placing the order, and Petitioner approaching the customer; (4) the fourth was Ms. Jenkins opening up the register and Petitioner trying to take the money out of the drawer; the picture also showed them tussling over the money; and (5) the fifth was Ms. Jenkins yelling, and Petitioner, with the money in his hand, running away.
Detroit Police Officer Mark Salazar testified next. According to his testimony, he conducted a follow-up investigation of the incident. After receiving information regarding the identification of the perpetrator, Officer Salazar set up a surveillance in the designated area. Officer Salazar testified that he then saw a man, fitting the description, approached him, identified him as the man, and subsequently arrested him. In court, Officer Salazar identified Petitioner as the man that he arrested.
Eric Kimble, a Detroit Police Officer, who was assigned to the armed-robbery unit at the time of the incident, testified next. According to Officer Kimble, when he arrived at the scene, only a few customers were present. He said that he did not take any statements from those individuals because they indicated that they did not see a robbery take place. Officer Kimble testified that he was not able to collect any fingerprints at the scene because of the contamination. He said that he conducted a photo lineup four days later, on August 21, 2002, and Ms. Jenkins identified Petitioner immediately.
Q. Okay. And did Miss Jenkins identify the defendant in this case in those— from those photographic—
A. Yes, she did.
Q. From those pictures?
A. Yes, immediately.
Q. And when you say immediately, like how soon?
A. It was less than 10 seconds.
(Trial Tr. vol. I, 141, Nov. 14, 2002.)
When asked about his duties in the case, the following exchange took place between the prosecutor and Officer Kimble Q. Okay. And was that the extent of your duties in this case?
A. No. I had an opportunity to speak to the defendant and do an interrogation sheet, see if he had any—if he wanted to make a statement.
Q. (By Ms. Korkis, continuing): Go ahead and proceed.
A. Speak to the defendant to finish a— my warrant package here of the facts that I had in the case and submit it to the Prosecutor's Office for conclusion on charges if—conclusion on charges.
MS. CORKS: And no further questions.
(Trial Tr. vol. I, 141-42, Nov. 14, 2002.)
The prosecution then rested. The defense moved for a directed verdict, arguing that because there was no showing of a gun, and thus, no armed robbery, the case should be dismissed. The trial court denied the motion stating:
[T]here's clear case law, a hand held in a waistband under [Barkley] and other cases is—in a manner to make somebody believe a weapon—they either possessed a weapon or was implied, the combination of the conduct plus the words are sufficient to warrant a denial of a motion for directed verdict.
(Trial Tr. vol. I, 151, Nov. 14, 2002.)
Petitioner presented no evidence.
The trial judge instructed the jury on both the armed-robbery charge and on the unarmed-robbery charge. Defense counsel objected to the trial court giving an instruction on the lesser offense of unarmed robbery. Subsequently, the jury returned a verdict of guilty of unarmed robbery.
Sentencing was held on December 5, 2002. At that time, defense counsel indicated to the trial court that Petitioner advised her that he wished to represent himself. The trial court allowed Petitioner to discuss the situation and to present his motions to the court: (1) that he did not have notice of the habitual offender enhancement;6 (2) for a directed...
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