Stewart v. Trierweiler

• Decision Date: 14 August 2017
• Docket Number: No. 16-2149,16-2149
• Citation: 867 F.3d 633
• Parties: Larry Devel STEWART, Petitioner-Appellee, v. Tony TRIERWEILER, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

867 F.3d 633

Larry Devel STEWART, Petitioner-Appellee,

v.Tony TRIERWEILER, Warden, Respondent-Appellant.

No. 16-2149

United States Court of Appeals, Sixth Circuit.

Argued: August 3, 2017

Decided and Filed: August 14, 2017

COUNSEL ARGUED: Scott R. Shimkus, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Edmund S. Sauer, BRADLEY ARANT BOULT CUMMINGS LLP, Nashville, Tennessee, for Appellee. ON BRIEF: Andrea M. Christensen-Brown, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Edmund S. Sauer, Jessica Jernigan-Johnson, Brian R. Epling, Kimberly M. Ingram, BRADLEY ARANT BOULT

CUMMINGS LLP, Nashville, Tennessee, for Appellee.

Before: SUTTON, McKEAGUE, and THAPAR, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

In this habeas case, Larry Stewart claims that a Confrontation Clause violation and prosecutorial misconduct undermined the fairness of his murder trial. But because the state court did not unreasonably reject these claims, we must reject his petition. We reverse the district court's contrary decision.

I.

On the morning of December 19, 2011, Kevin Brown arrived at an apartment to pick up Reynatta Hamilton for what he thought was a date. Unbeknownst to Brown, Hamilton's boyfriend, Larry Stewart, was waiting for him. A struggle ensued. Shots were fired. The two men grappled with each other down a stairwell and out the door of the apartment complex. At the end of a trail of blood, Brown lay dead on the grass with several gunshot wounds

in his chest. Stewart was gone.

Michigan charged Stewart and Hamilton with felony murder, felon in possession of a firearm, armed robbery, and conspiracy to commit armed robbery. The court held a joint trial.

The evidence at trial showed that Stewart and Hamilton planned to rob Brown. Hamilton, who had met Brown while she was working at a McDonald's drive-through, would call Brown to her cousin's apartment for a supposed date. Stewart would wait with a gun to demand Brown's money. Witnesses testified that Stewart was with Hamilton at the apartment the night before the murder; that Stewart brandished a gun, asserted it was his, said he was "going to rob somebody," and invited others to help him that night, R. 8-8 at 35; that Hamilton warned Stewart to hide the gun from her cousin and then put it in her purse; that Stewart was going in and out of the apartment in the early morning; that Stewart left the apartment for good just five minutes before scuffling and gunshots were heard in the hallway; and that, after she'd been hit by a stray bullet, the first person Hamilton called was Stewart.

Hamilton's phone records, as well as statements she made to police, corroborated the witnesses' testimony. In the two days leading up to the shooting, Hamilton's phone made 127 different contacts with Stewart's phone and 28 contacts with Brown's. In the last minutes before the murder, Hamilton was on the phone with both men. Brown called Hamilton at 8:30 AM and hung up five minutes later. But Stewart connected to Hamilton's line at 8:31 AM. For nearly all of Brown's call, Stewart and Hamilton were connected via call waiting. Hamilton admitted reaching out to Brown because he often had a lot of money on him. After the shooting, she repeatedly told police that "it wasn't supposed to go down like this." R. 8-11 at 23.

The jury found Stewart guilty on all counts. The court sentenced him to life for the first-degree felony murder conviction, two years for the felony-firearm conviction, and twenty-five to fifty years for the armed robbery and conspiracy convictions. The jury likewise found Hamilton guilty on all counts, and the court sentenced her to life, two years, and ten to twenty years, respectively.

Stewart challenged his convictions on direct appeal on six grounds: (1) the prosecution violated the Fifth Amendment by mentioning his post-Miranda silence; (2) the court violated his Sixth Amendment right to confrontation by admitting some of Hamilton's statements; (3) the convictions for conspiracy to commit armed robbery and first-degree felony murder lacked sufficient evidence; (4) the court failed to instruct the jury on a lesser included offense; (5) the prosecution engaged in various instances of misconduct; and (6) defense counsel was constitutionally ineffective. The Michigan Court of Appeals affirmed Stewart's conviction, finding some claims forfeited, others without error, and still others harmless. See People v. Stewart , No. 313097, 2014 WL 1233946 (Mich. Ct. App. Mar. 25, 2014) (per curiam). The Michigan Supreme Court declined to review the appeal.

Stewart filed a federal habeas petition raising the same claims. The district court granted relief on the confrontation and prosecutorial misconduct claims and did not reach the others.

II.

In habeas cases, we give the benefit of the doubt to the state courts' handling of the case. Under the Antiterrorism and Effective Death Penalty Act of 1996, we will not override state criminal convictions unless the state court unreasonably applied Supreme Court precedent or the conviction turned on unreasonable fact findings. 28 U.S.C. § 2254(d).

Confrontation Clause. During the joint trial of Stewart and Hamilton, Stewart claims that the state trial court violated his Sixth Amendment right to be confronted with the witnesses against him by admitting certain statements Hamilton made to police officers. The state courts did not treat these claims casually. The trial court as an initial matter excluded some of the statements. But it eventually permitted the officers to introduce Hamilton's statements that (1) she and Stewart were dating; (2) she knew Brown and had met with him once before; (3) she saw Stewart with a gun on the night of December 18; and (4) she called Stewart and Brown moments before the shooting.

The state appellate court agreed with Stewart that some of the admitted statements violated his confrontation rights. It held that Hamilton's statements about her relationships with Stewart and Brown were testimonial hearsay in violation of the Sixth Amendment. Stewart , 2014 WL 1233946, at *5 ; see Crawford v. Washington , 541 U.S. 36, 51–52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). And it held that her statements about Stewart's possession of a gun and her phone calls immediately before the shooting implicated Stewart in violation of the Sixth Amendment. Stewart , 2014 WL 1233946, at *5 ; see Bruton v. United States , 391 U.S. 123, 126, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). But the court concluded that both errors were harmless in view of the considerable other evidence that Stewart murdered Brown.

That conclusion receives deference under AEDPA because the state court fully adjudicated Stewart's confrontation claim. See Mitchell v. Esparza , 540 U.S. 12, 17–18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003). And we cannot say that the state court unreasonably applied federal law in rejecting it. See Davis v. Ayala , ––– U.S. ––––, 135 S.Ct. 2187, 2198–99, 192 L.Ed.2d 323 (2015).

In assessing any potential prejudice from a Confrontation Clause violation, courts on direct review apply Chapman 's harmless-error standard. Brecht v. Abrahamson , 507 U.S. 619, 636, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ; see Chapman v. California , 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). That standard directs courts to consider "a host of factors," including the importance of the challenged testimony, whether the testimony is cumulative, and the overall evidence of guilt.

Delaware v. Van Arsdall , 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

That's what the state court did. It found that the confrontation error was not "outcome-determinative" because each of Hamilton's statements was cumulative of properly admitted evidence. See Stewart , 2014 WL 1233946, at *5. Justin Lane had already testified that Stewart was Hamilton's boyfriend and that he frequently came over to the apartment. Brian May described Stewart's possession of a gun the night before the shooting and how Stewart planned to use it to rob somebody. And the telephone records confirmed Hamilton's admission that she had contacted Brown and Stewart immediately before Brown was killed.

The state court noted that the "evidence of [Stewart's] guilt was compelling." Id. Combining the timing of the telephone records with eyewitness testimony about Stewart's behavior on the night before and the morning of the shooting confirms the nature of the altercation in the hallway. The admissible evidence offers plenty of support for the jury verdict.

Stewart's conviction had at least as much evidence as the one the United States Supreme Court upheld in Harrington v. California , 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). The defendant in that case admitted he was at the scene of the crime and fled after a shooting, and other witnesses testified that he had a gun and was using it for a robbery. See id. at 252–54, 89 S.Ct. 1726. The Court found the confrontation error harmless because the case against the defendant was "overwhelming." Id. at 254, 89 S.Ct. 1726. A similar conclusion applies here.

Stewart resists that conclusion, pointing to this question that the jury asked during deliberation: "Is the report or statement[ ] from Ms. Hamilton evidence that the jurors can review?" R. 8-11 at 145. He maintains that two of our cases require us to treat this question as proof that Hamilton's statements were critical, rather than cumulative, when it came to this jury. See Vasquez v. Jones , 496 F.3d 564, 576 (6th Cir. 2007) ; Fulcher v. Motley , 444 F.3d 791, 810–11 (6th Cir. 2006). Three problems undermine this argument. One is that neither opinion constitutes clearly established law under AEDPA. Another is that neither the trial judge nor the parties took the jury to be asking about anything other than the form in which any of the statements were made. The judge's response to the jury's question proves the point. "Other than what you've heard from the officers...