Neal v. Wolfenbarger

• Decision Date: 31 October 2014
• Docket Number: Case No. 2:08–CV–14123.
• Citation: 57 F.Supp.3d 804
• Parties: Wesley NEAL, Jr., Petitioner, v. Hugh WOLFENBARGER, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

57 F.Supp.3d 804

Wesley NEAL, Jr., Petitioner

v.Hugh WOLFENBARGER, Respondent.

Case No. 2:08–CV–14123.

United States District Court, E.D. Michigan, Southern Division.

Signed Oct. 31, 2014.

Wesley Neal, Jr., Kincheloe, MI, pro se.

Linus R. Banghart–Linn, Michigan Department of Attorney General, Lansing, MI, for Respondent.

OPINION AND ORDER CONDITIONALLY GRANTING PETITION FOR WRIT OF HABEAS CORPUS

ARTHUR J. TARNOW, Senior District Judge.

This matter is before the Court on Petitioner Wesley Neal Jr.'s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Neal challenges his convictions for carjacking, assault with intent to commit murder, armed robbery, possession of a firearm during the commission of a felony, and felon in possession of a firearm.

Neal waived his right to a jury trial. The trial judge, acting as the fact-finder, chose to exit the courtroom during closing arguments for the sole purpose of looking at an individual who was in the lock-up and who Neal identified as the actual perpetrator. The trial judge viewed this individual outside the presence of counsel and Neal. The state court's finding that the deprivation of counsel during this critical stage of the proceeding was harmless error is contrary to United States v. Cronic, 466 U.S. 648, 659 n. 25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Alternatively, the Michigan Court of Appeals' decision that the trial court judge did not look at the individual in lock-up for evidentiary purposes is an erroneous factual finding, and the Court reviews the related claims “ ‘unencumbered by the deference the AEDPA normally requires.’ ” Rice v. White, 660 F.3d 242, 250 (6th Cir.2012), quoting Panetti v. Quarterman, 551 U.S. 930, 948, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). The Court finds that Neal was denied his right to counsel and right to be present at a critical stage of the proceeding, and that the denial of Neal's right to be present was not harmless error. The Court grants a conditional writ of habeas corpus.

I. Facts and Procedural History

Neal's convictions arise from the shooting of Bruce Clark in the City of Detroit on November 7, 2005. Bruce Clark testified that, during the early morning hours on that date he picked up a woman who was standing at the corner of Joy Road and Petoskey Avenue, believing she was a prostitute. He later identified her as Shanna McElroy. He and McElroy agreed that he would pay $20 for her services. As he was driving on Joy Road, police pulled up behind his vehicle. McElroy exited the vehicle and went to a nearby porch. The police looked in Clark's vehicle and told him that he had been driving too fast. Police warned Clark that he should be more cautious, but did not issue a speeding ticket. McElroy returned to Clark's car. She directed him to a darker part of Joy Road. When Clark parked his car, another car stopped directly in front of his car. The driver of that vehicle, a man, approached the passenger side of Clark's car. Clark grew suspicious and shifted his vehicle into drive, but McElroy shifted it back to park. McElroy opened her window and the man pointed a gun at Clark and demanded his money. Clark gave the man some cash. The man then shot Clark. In an attempt to defend himself, Clark grabbed the barrel of the gun, reaching over McElroy. McElroy bit and hit him. The man continued shooting and Clark testified he was shot between six and nine times. The man then pulled Clark from the vehicle and the woman drove off in Clark's car.

At a live lineup on January 28, 2006, Clark identified Neal as “looking like” the man who shot him, stating: “The third one looks like the one that shot me but he had a little more beard.” Tr., 6/13/06 at 42. At trial, Clark testified that he had no doubt about Neal's identity as the shooter.

The gun used to shoot Clark was recovered on November 11, 2005, from a home at 9292 North Martindale, approximately two blocks from the shooting site. City of Detroit police officer Anthony O'Rourke testified that he observed Aaron Miles on the front porch of the home with Neal and McElroy. He observed Miles throw a gun into the front room of the house when Miles saw Officer O'Rourke. Officer O'Rourke arrested Miles and retrieved the gun. His partner informed him the gun appeared to be the same caliber as that used in the Clark shooting. The gun was later found to be the same gun used to shoot Clark. Neal and McElroy were questioned but not arrested at the time. Officer O'Rourke described Miles as much larger, heavier, and lighter-skinned than Neal. He estimated Miles to be in his twenties and Neal in his late thirties or early forties.

Shanna McElroy testified pursuant to a plea agreement. She testified that, on November 7, 2005, she and Neal devised a plan to rob someone because the two, who had been smoking crack cocaine, needed money to purchase additional drugs. She planned to solicit a man seeking sex and Neal, who had a gun, would rob the man. She walked to Joy Road, where Clark picked her up. He agreed to drive her to a friend's house. On the way there, she negotiated with him to perform a sexual act for $20. After they agreed on a price, Clark was pulled over by police. McElroy exited the vehicle and observed Clark's interaction with police from a nearby porch. After police left, she reentered the vehicle and directed Clark to a darkened street. When she saw Neal's car approach, she told Clark he was her cousin. Neal approached the vehicle and she unlocked her door. Neal opened the door, pointed a gun at Clark and demanded his money. Clark attempted to start his car, so she took the keys from the ignition and threw them on the floor. McElroy then heard a gunshot. At some point, Clark ended up outside the car wrestling with Neal. McElroy stayed in the car, searching for money. She then heard Neal yell for help. She exited the car and saw that Clark had grabbed the barrel of the gun. McElroy testified that she kicked Clark and bit him, causing Clark to lose his hold on the gun. She hollered at Neal to kill Clark. Neal told her to get in the car. She got in Neal's vehicle, and Neal entered Clark's vehicle. They both drove away.

McElroy further testified that she was present when Miles was arrested. She testified that she, Miles, and Neal were on the front porch of a drug house. Neal was holding the gun when police approached and he threw it into the house. She testified that Miles was never holding the gun. While incarcerated as a suspect in Clark's shooting, McElroy received a letter from Petitioner stating, “Shanna, stay strong and quiet so that we can get through this shit and make home to start over fresh.” 6/15/06 at 88. On the morning of her trial testimony, a trustee at the Wayne County Jail approached her and said, “Your husband said keep your mouth shut and don't say nothing because he's going to win the case.”¹ 6/15/06 at 90.

During closing argument, defense counsel argued that Miles, not Neal, was the shooter. Defense counsel asked the judge to bring Miles into the courtroom to stand next to Neal so that the judge could ascertain whether Clark could have mistaken Neal for Miles.² The trial judge did not respond to defense counsel's request. Defense counsel completed his closing argument. A moment or two into the prosecutor's rebuttal argument, the judge interrupted the prosecutor and the following occurred:

The Court: Hold on right there. Is Mr. Miles in the lock up?

Deputy: Yes, he is.

The Court: Don't anybody go anywhere.

(Judge leaves bench to go to lock up area)

Judge: All right. Back on the record. Let the record reflect the Court did have an opportunity to go back and take a peek at Mr. Miles. Curiosity got the better of me. But let the record reflect that there certainly is [sic] striking dissimilarities between Mr. Neal and Mr. Miles, and that certainly the description of Mr. Miles as by the police officers, as well as by the other witnesses in this case is consistent. He's younger, taller, bigger, and somewhat lighter.

Tr., 6/16/06 at 25–26. The prosecutor then completed her rebuttal argument.

The trial court judge immediately rendered his verdict, finding Neal guilty of carjacking, assault with intent to commit murder, armed robbery, felony firearm, and felon in possession. After detailing the elements of the charged offenses, the judge summarized the trial testimony. He noted that the case “boils down to [the question] is it Mr. Neal, Mr. Miles or some other unknown third person.” Id. at 36. The judge relied on his own view of Miles in lockup to corroborate Officer O'Rourke's testimony:

Then we've got Officer O'Rourke, who testifies that less than two blocks from the scene a few days after the incident he places Mr. Miles, Mr. Neal and someone he later identifies as Ms. McElroy on a porch. There is the weapon and, of course, the weapon is later through ballistic reports which I believe have been stipulated to being positively tied to this matter. Then there's mister or O'Rourke's testimony that Miles is larger and taller and younger and lighter than the defendant, and as the Court previously state on the record took judicial notice of Mr. Miles, went back to the lock up. Did observe him, and that observation is consistent.

Tr., 6/16/06 at 33.

Neal was sentenced as a fourth habitual offender on July 12, 2006, to concurrent terms of 35 to 50 years in prison for the carjacking, assault with intent to commit murder, and armed robbery convictions, and to three to five years in prison for the felon-in-possession conviction, to be served consecutively to two years in prison for the felony-firearm conviction.

Neal filed an appeal of right in the Michigan Court of Appeals, raising the following claims:

I. The trial court violated Mr. Neal's Sixth Amendment right to the presence of counsel at a critical stage by conducting a “judge view/lineup” of a person in lockup without counsel and without Mr. Neal having personally or affirmatively waived counsel's presence.

II. The trial court violated Mallo

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