Sok v. Romanowski

• Decision Date: 14 October 2008
• Docket Number: No. 1:05-CV-495.,1:05-CV-495.
• Citation: 619 F.Supp.2d 334
• Parties: Honn David SOK, Petitioner, v. Kenneth ROMANOWSKI, Respondent.
• Court: U.S. District Court — Western District of Michigan

619 F.Supp.2d 334

Honn David SOK, Petitioner, v. Kenneth ROMANOWSKI, Respondent.

No. 1:05-CV-495.

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

October 14, 2008.

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Honn David Sok, Adrian, MI, pro se.

William C. Campbell, MI Dept Attorney General, Lansing, MI, for Respondent.

ORDER APPROVING MAGISTRATE'S REPORT AND RECOMMENDATION

ROBERT HOLMES BELL, District Judge.

The Court has reviewed the Report and Recommendation filed by the United States Magistrate in this action. The Report and Recommendation was duly served on the parties. No objections have been filed.

ACCORDINGLY, the Report and Recommendation is hereby adopted as the opinion of the Court.

THEREFORE, IT IS ORDERED that:

Petitioner's habeas corpus petition is hereby DENIED.

REPORT AND RECOMMENDATION

HUGH W. BRENNEMAN, JR., United States Magistrate Judge.

This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury of three charges. He was sentenced on May 5, 2003 by the Ottawa County Circuit Court to concurrent terms of two to four years for one count of felonious assault with a dangerous weapon, MICH. COMP. LAWS § 750.82, and nine to twenty years for one count of armed robbery, MICH. COMP. LAWS § 750.529, and a consecutive term of two years for one count of felony firearm, MICH. COMP. LAWS § 750.227b. In his pro se petition, Petitioner raises five grounds for relief, as follows:

I. PETITIONER HONN DAVID SOK WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW UNDER THE SIXTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN THERE WAS INSUFFICIENT EVIDENCE AT TRIAL TO PROVE HIM GUILTY BEYOND A REASONABLE DOUBT OF BEING THE PERPETRATOR WHO COMMITTED THE ARMED ROBBERY, FELONY FIREARM, AND FELONIOUS ASSAULT UPON THE VICTIM.

II. PETITIONER WAS DEPRIVED OF DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN THE TRIAL COURT DENIED PETITIONER'S MOTION TO SUPPRESS IDENTIFICATION OF PETITIONER PURSUANT TO THE PHOTO LINE-UP OCCURRING AT THE HOLLAND POLICE DEPARTMENT ON NOVEMBER 13, 2002.

III. PETITIONER WAS DENIED HIS RIGHT TO AN IMPARTIAL TRIAL UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES WHEN THE JURY FOREMAN ENGAGED IN CONVERSATION OUTSIDE THE COURTROOM WITH DETECTIVE BLAKELY, WHO WAS IN CHARGE OF THE INVESTIGATION INTO THE CHARGES LODGED AGAINST PETITIONER, DESPITE SEVERAL ADMONISHMENTS BY THE COURT NOT TO DISCUSS THE CASE WITH ANYONE.

IV. PETITIONER WAS DENIED HIS DUE PROCESS RIGHT TO A FAIR TRIAL DUE TO MISCONDUCT COMMITTED BY THE PROSECUTOR DURING CLOSING ARGUMENT.

V. PETITIONER WAS DENIED DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHERE: A) THE CHIEF DETECTIVE MADE REFERENCE TO AN UNRELATED HOMICIDE ON FOUR SEPARATE OCCASIONS, AND, B) WHERE COUNSEL FAILED TO OBJECT TO THE OFFICER'S STATEMENTS OR REQUEST A CURATIVE JURY INSTRUCTION.

Respondent has filed an answer to the petition (docket # 11) stating that the grounds should be denied because they are without merit or procedurally barred. Upon review and applying the Antiterrorism and Effective Death Penalty Act, PUB.L. 104-132, 110 STAT. 1214 (AEDPA) standards, I find that grounds one, two, four and five are without merit, and ground three is procedurally barred. Accordingly, I recommend that the petition be denied.

Proposed Findings of Fact

A. Trial Court Proceedings

The state court proceedings arose from an armed robbery which occurred at the apartment of Sokham Son on October 14, 2002. An investigation led to the arrest of Petitioner. He was charged with armed robbery, felonious assault and possession of a firearm during the commission of a felony.

The following people provided testimony relevant to this habeas petition: the victim Sokham Son; her husband, Vannat Steve Dy; the following people who had knowledge of pertinent events relating to the incident on October 14, 2002—Damasco Dean Lucero, Heng Van Mork, Lucky Lim, Impaeng "J.P." Phanthasak; officers Sergeant Craig Brace, Deputy Brent Converse, Detective David Blakely and Steve Crumb of the Ottawa County Police Department; Timmy Saroun Sok and Anthony Sok, brothers of Petitioner; Petitioner Honn David Sok; Vicky Sin, girlfriend of Anthony Sok; and Mary VanOmmen, employee of Northland Bowling Lanes.¹

Sokham Son, the victim, testified that she was at home with her three year-old son at the time of the incident on October 14, 2002. (Transcript of March 25, 26, 27, 2003 at 95, 99, docket # 19.) Son testified that she did not previously know Petitioner, but that she saw him at a Cambodian Thanksgiving party on October 12, 2002.

Son testified that around five o'clock in the evening on October 14, 2002, there was a knock on her apartment door by a person asking for her husband in Cambodian. (Tr. at 99.) When she opened the door "the guy standing outside the door just pushed [her] down on the floor and pointed at [her] with a gun." (Tr. at 100.) She testified that she "saw his face, and [she] knew it right away," that she would be able to identify him again, and then she identified the Petitioner in the courtroom. (Tr. at 101.) Son stated that she went on her knees when Petitioner told her to get down, but that she could see her son and the gun. (Tr. at 103.) She started to scream and Petitioner pointed the gun at her son and told her that he would shoot her son if she continued to scream. (Tr. at 104-05.) At that time, Petitioner rushed to close and lock the door and Son looked and saw his face when he did that. Petitioner pulled his jacket up to try and cover his face and told her not to look at him. But Son testified that she did see his face for a second time when he went to lock the door. (Tr. at 105.) Petitioner then came back to Son, pointed the gun at her again and asked for money or a check. When he was told that she had neither, he walked her, at gunpoint, to the bedroom. (Tr. at 106.) Son grabbed her family jewelry that was on a table and threw it behind the television. Petitioner then pushed her to the floor again and punched her in the face. (Tr. at 107.) She stayed on the ground after he pushed her down and pretended to have blacked out while she heard him pick up the jewelry and leave her apartment. (Tr. at 114-15.) After he left she called her husband and then the police. (Tr. at 115.) After the police arrived, Son told them that the robber's "skin [was] a little dark and [he] had a mole on his face." (Tr. at 121.) She also told them that he spoke Cambodian and was a little taller than her husband. (Id.)

Son testified that the robber, Petitioner, was at a party that Saturday, two days before the incident, and she recognized him from a home video. She identified him in court from a still photograph taken from that video. (Tr. at 122.) She noticed him at the party because "his girlfriend is (sic) wearing tight clothes and unusual" and that Petitioner "seemed like a stranger to her" at the party because Son knew most of the other people at the party. (Tr. at 123.) Son further testified that there was a time where Detective Blakely asked her to identify the robber from a photo array of six different photos. (Tr. at 124.) And she identified number 5, Petitioner, as the robber. (Tr. at 124, 362.)

The husband of the victim, Vannat Steve Dy, testified that he lived in the apartment with the victim. He testified that on October 14, he went to work around 2:35 or 2:45 p.m. after Son arrived home from her job. Around 5:00 p.m., his boss told him that his wife had called, that she was crying, that something had happened at the house and that he needed to go home. Dy talked to her briefly on the phone and she told him that a "Cambodian, Asian [came] and robbed me." Dy left immediately and was home in a few minutes. (Tr. at 253-54.)

When he arrived, Son came out from the bedroom, identified Dy as her husband to the officers and said to Dy that an "Asian guy, he [spoke] Cambodian to me, and ... robbed me and beat me up. Now I am hurting. I am hurting." (Tr. at 255.) Dy testified that he tried to calm her down. He asked her "who did it? She said, I don't remember right now, I don't want to talk about it ... I am hurting." (Tr. at 256.)

The officers asked him to translate what his wife was saying and he told them that the robber spoke Cambodian. Son told the officers, through Dy, that the robber was "taller than [Dy], dark-skinned, and [that] he had a mole, but she didn't point [to] what side [it was on]." (Tr. at 257.) Dy asked the officers if he could take her to the hospital and if they could talk later. The police asked a few more questions. Son told him that when the robber punched her, she pretended to pass out and did not move until she heard the robber close the door. Then she screamed for help. (Tr. at 255-57.) Dy told the officers that the robber was wearing dark blue clothing. (Tr. at 258.) He and his wife repeated the same things to "Mr. Dave" (Detective Blakely). (Tr. at 259.) Son, though Dy, also told the officers that the robber had had a gun. (Tr. at 276-77.) Dy then took his wife to the hospital. (Tr. at 260.) Son told him the same story again at the hospital. (Tr. at 265-67.)

The next day they had a conversation about the Cambodian Thanksgiving party. (Tr. at 270.) Dy asked his wife "if you see the picture, would you recognize the person. And she said, yes, if I saw a picture, I will recognize the person." (Tr. at 270.) Steve remembered that a friend had videotaped the Cambodian Thanksgiving, so he asked to borrow the tape. (Tr. at 270-72.) Heng Van Mork later testified that he was at the Cambodian celebration and videotaped it. (Tr. at 177-78). He stated that he gave the tape to Dy when asked and did not edit it. (Tr. at 178-79).

Dy testified that he watched the tape of the...