Mitchell v. Wolfenbarger, CASE NO. 10-CV-13849
| Decision Date | 24 September 2012 |
| Docket Number | CASE NO. 10-CV-13849 |
| Parties | DELMAREY MITCHELL, #420337, Petitioner, v. HUGH WOLFENBARGER, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
HONORABLE NANCY G. EDMUNDS
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Delmarey Mitchell ("Petitioner") was convicted of assault with intent to commit murder, felonious assault, and possession of a firearm during the commission of a felony following a bench trial in the Wayne County Circuit Court. He was sentenced to 10 to 20 years imprisonment on the assault with intent to murder conviction, a concurrent term of two years eight months to four years imprisonment on the felonious assault conviction, and a consecutive term of two years imprisonment on the felony firearm conviction in 2006.
In his pleadings, Petitioner raises claims concerning the sufficiency of the evidence, the right to cross-examine a witness, a variance between the charges and the evidence, and the use of a false complaint. For the reasons set forth, the Court finds that Petitioner is not entitled to habeas relief on his claims and denies the petition. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.
Petitioner's convictions arise from the shooting of Tyrone Walker outside his residence on Mt. Vernon Street in Detroit, Michigan on August 28, 2005. At trial, Walker testified that was staying at 60 Mt. Vernon at the time of the shooting as part of an agreement to repair the house for the homeowner who lived across the street. Petitioner lived next door and Walker, who used cocaine at the time, bought drugs from him. Walker also did some work for Petitioner's mother. Walker testified that he was gone most of the day on August, 27, 2005 and returned home at about 3:00 p.m. When he returned, he ran into a few people who were acting funny. He then went to Petitioner's home and asked to borrow $20. Petitioner refused. Eventually, Petitioner came outside and the two of them walked and talked about the money and obtaining some drugs. Walker gave him $60 so that he could obtain $80 or $100 worth of drugs. Petitioner put the money in his pocket. He then pulled a gun, stuck it in Walker's face, and accused Walker of breaking into his house. Walker was not armed. Walker denied breaking into the house and demanded his money back. Petitioner returned home. Walker knocked on Petitioner's door and spoke to his mother. He and Petitioner also exchanged words. When Petitioner pulled out his gun, Walker left. He then returned a car to a girl and began walking home.
As Walker neared his house, a car with two people in it passed him and parked. Petitioner came out and spoke to the driver. Walker recognized the driver as someone who had helped him put up a fence for Petitioner's mother, but did not recognize the passenger. The driver was later determined to be Petitioner's brother. The brother told Walker to return Petitioner's stuff. When Walker said he didn't know what he was talking about, the brother took his gun out. Petitioner told his brother that Walker was the guy who broke intothe house and told him to "shoot the motherfucker." Petitioner's brother shot Walker in the stomach. Walker heard more shots and ran to 90 Mt. Vernon for help. The three men got into the car and drove away. Walker testified that he was hospitalized for an extended period of time, underwent several surgeries, and continues to have health problems from the shooting.
Walker recalled speaking to Investigator Jackson at Henry Ford Hospital shortly after the shooting and testifying at the preliminary examination conducted at the hospital on September 27, 2005. Walker admitted that he initially told the police that Petitioner shot him, but he believed that Petitioner's brother shot him, although it was dark and they both had guns. Walker said that he told the police that Petitioner shot him because he was the one who accused him of the break-in, took money from him, and stuck a gun in his face. Walker testified that only Petitioner and his brother were in front of him and both had guns at the time of the shooting. He indicated that he didn't remember exactly what happened because he passed out and thought he was dead. Walker recalled testifying at the preliminary examination that Petitioner said, "shoot the motherfucker" and that Petitioner's brother shot him. Walker learned the identity of Petitioner's brother after picking him out in a photo array at the hospital.
Alvin Buckley testified that he lived at 90 Mt. Vernon. He knew both Tyrone Walker and Petitioner from the neighborhood. Walker work on repairing houses and Petitioner lived at 64/68 Mt. Vernon. On the day of the incident, he heard a conversation and three shots coming from the street. He did not see who fired the shots. Walker then came to his door and asked for help because he had been shot. Walker told him that some guys down the street had shot him. Buckley called an ambulance and spoke to Walker to keep himalert until EMS and the police arrived. Buckley did not see a gun on him. Buckley spoke with Investigator Jackson and signed a written statement that morning. According to that statement, when asked if there was anything else he could tell the officer, Buckley said, "All I know is the young guy came out of his house with a gun." When asked what the man said, Buckley replied, When asked whether he saw the gun in his hand, Buckley said, "He held the gun in the air saying to the people on this block he know who broke into his house." Buckley said that he had difficulty recalling the statement due to seizures, but he told the police the truth.
Several Detroit police officers also testified at trial. Evidence technician Lori Briggs testified that she responded to the scene on the morning of the shooting, took photographs, and collected evidence. She testified that four .22 spend shell casings were recovered from in front of 64/68 Mt. Vernon and a .380 spent casing was recovered on the street near 73 Mt. Vernon.
Officer Brian Kuzzy testified that he responded to the scene and observed Tyrone Walker on the porch of 90 Mt. Vernon suffering from a gunshot to the lower abdomen. Walker told him "that lady sons who owns that house shot me." Officer Kuzzy spoke to Doris Pickett, Petitioner's mother, and learned the names of her sons. He remained at her house for four hours, but Petitioner did not return. An arrest warrant was issued for him. On September 6, 2005, Officer Kuzzy returned to the house on a breaking and entering police run. Petitioner opened the door, slammed it shut, and then opened it again. Petitioner initially gave the police different names, but provided his real name after being placed in the patrol car.
Investigator Michael Jackson testified that he responded to the scene of the shooting and organized the collection of evidence. He also testified about the statement that he took from Alvin Buckley that morning. Investigator Jackson indicated that Buckley was referring to Petitioner, the son of the lady down the street, when he made his statement. Investigator Jackson testified that he spoke to Petitioner's mother for three or four hours and noted that Petitioner did not return home during that time period. He also spoke to Petitioner's girlfriend, Jessica Dean, who told him nothing. Investigator Jackson interviewed Tyrone Walker at Henry Ford Hospital and took a statement from him. On September 1, 2005, he showed Walker a photo array and Walker pointed out Petitioner and said, "That's the punk motherfucker who shot me." He obtained a warrant for Petitioner's arrest a few days later. Investigator Jackson identified a photo of Petitioner's brother, Lynell Deon Hansberry, and indicated that the police were seeking a warrant for his arrest. Investigator Jackson testified that the first time he heard Tyrone Walker say that Petitioner was not the shooter and told his brother to shoot him was at the preliminary examination at Henry Ford Hospital. Investigator Jackson also took a statement from John Davis at 90 Mt. Vernon on the day of the shooting. Davis reported that Walker told him that Petitioner or his brother shot him.
Petitioner's girlfriend, Jessica Dean, testified that she left the house on Mt. Vernon on the night before the shooting to go buy cigarettes at the gas station. While she was on her way, she saw Tyrone Walker and he showed her a gun before driving off. The next morning, she was in the house and heard an argument. Petitioner went outside and was at the bottom step of the porch when she heard gunshots and dropped to the floor. Dean gave a statement to the police. She explained that someone broke into the house prior tothe shooting, that Petitioner and Walker exchanged words about that and money, and that Walker threatened to harm Petitioner and shoot up the house. Petitioner's mother told them to go inside and they did. Petitioner's brother came to the house, stayed for a while, and left before the shooting. Dean claimed that Petitioner was nowhere near the shots when they were fired.
Petitioner testified in his own defense at trial. He said that Tyrone Walker lived nearby and had done some work for him. On the day of the shooting, Walker asked to borrow $20 and was trying to buy drugs, but Petitioner told him he didn't have it. Walker left. Petitioner denied having a gun or pulling a gun on Walker at any time. Petitioner testified that his brother, Lynell, came to see him later and they talked inside the house. They talked about the break-in, but Petitioner said that none of his belongings were missing. He told...
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