Tackett v. Scutt, CASE NO. 12-15637
| Decision Date | 29 November 2018 |
| Docket Number | CASE NO. 12-15637 |
| Parties | JOSHUA JOSEPH TACKETT, Petitioner, v. DEBRA SCUTT, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
HONORABLE DENISE PAGE HOOD
This matter is presently before the Court on petitioner Joshua Joseph Tackett's habeas corpus petition under 28 U.S.C. § 2254. The petition challenges Petitioner's Washtenaw County convictions for two counts of first-degree (premeditated) murder, Mich. Comp. Laws § 750.316(1)(a), and two counts of possessing a firearm during the commission of a felony ("felony firearm"), Mich. Comp. Laws § 750.227b. Petitioner is serving a life sentence for the murder convictions. He claims in his habeas petition that (1) the evidence was insufficient to support his murder convictions, (2) the trial court's jury instructions violated his constitutional rights, (3) the trial court violated his right to present a defense, (4) his rights to due process and equal protection of the law were violated because two more culpable co-defendants were found guilty of the lesser offense of second-degree murder, (5) his trial attorney was ineffective, and (6) his attorney on direct appeal was ineffective. The State urges the Court to deny the petition. Because the Court agrees that Petitioner's claims do not warrant habeas relief, the denies the petition.
Petitioner and his three co-defendants (Paul Copas, Tony Tard, and Sarah Sykes) were charged with two counts of open murder and two counts of felony firearm. The charges arose from a shooting at Clint Ousley's mobile home in Ypsilanti Township about 11:30 p.m. on July 9, 2006. The shooting resulted in the deaths of fourteen-year-old Krilissa Feldman and seventeen-year-old Scott Bonar.
People v. Tackett, No. 277549, 2008 WL 4149002, at *9 (Mich. Ct. App. Sept. 9, 2008).
The next day, Petitioner voluntarily reported to the police station, and when an officer interviewed him, he initially told the officer that he was with his girlfriend on the night of the shooting. He later changed his story and said that he was asked to go to the trailer park on the afternoon of the shooting, but that he declined to go. Petitioner went on to tell the officer that Copas later summoned him to Copas' home, and when he got there, he saw Copas and Tard puttingammunition in assault weapons. Petitioner also stated that, after observing Copas, Tard, and Sykes leave with the assault rifles, he went home.
Following an additional investigation, Petitioner and Copas were tried jointly, but before separate juries, in Washtenaw County Circuit Court. Two key witnesses were Krisann Ellison and Loni Shalton who were not charged with the crimes. Ms. Ellison went to Ousley's trailer in Copas' van on the afternoon of July 9, 2006, and at trial, she corroborated Ousley's testimony about the afternoon incident. She also explained what happened later that day when she, Petitioner, Copas, Tard, and others went to Ousley's trailer in Copas' van. During the nighttime incident, she initially did not see any weapons, but later she saw the men pull out three guns from under a mattress in the van and then go to the back of the van where they put bullets in the guns. She did not observe the actual shooting because she had her head down, but she could tell that the shooting came from the back window of the van.
On cross-examination, Ms. Ellison admitted that she did not mention Petitioner to the police during an interview and that she probably informed the police that she did not see who had the guns. She also admitted that she did not actually see Petitioner pull out a firearm or fire a gun, but she thought that the third firearm may have been small. She said that she was afraid of all the men and that,after the shooting, either Petitioner or Copas threatened to do to her what the men had done to Ousley if she said anything about the incident.
Loni Shalton was present only during the nighttime incident. She testified that she saw two long guns in the van on the way to Ousley's trailer and that Copas had wanted to drive by the trailer park and shoot into the air. Tard later suggested shooting up the trailer, and they all agreed to that suggestion. After the group stopped at a gas station, the men got in the back of the van, and Sykes drove the van. She (Shalton) then saw three guns, one of which was a small handgun that Petitioner may have pulled out from somewhere on his clothes. Petitioner also pulled out gloves. He kept one for himself and handed the other gloves to Copas and Tard. After Tard said that he was going to shoot up the trailer, they arrived at the trailer. The men put on hooded sweatshirts and fired their guns out the broken window of the van. Then they returned to Ecorse where they handed their guns to a man who lived across the street from Petitioner's father.
On cross-examination, Ms. Shalton stated that she was not looking at who was shooting when the guns were fired. She also stated that Petitioner had said his gun jammed and did not fire. She was unable to say whether Petitioner discharged his weapon, and she denied hearing Petitioner make any threats. She was questioned about her testimony at the preliminary examination where she said thatshe did not see Petitioner point a handgun at anybody outside the van. She then admitted that she did not see Petitioner shoot anybody.
Petitioner did not testify at trial, and his only witness was Steven Howard, who testified as an expert in firearms. Mr. Howard maintained that the lead core of the bullet fragment linked to the handgun supposedly used by Petitioner was badly oxidized, which meant that it was probably in a moist open-air environment for a considerable amount of time. His educated guess was that the bullet had been fired inside the home, because a bullet of that size has little energy.
Petitioner's defense was that there was no physical evidence connecting him to the crime, that Ms. Ellison and Ms. Shalton were inconsistent in their testimonies, and that he did not shoot anybody, intend to commit murder, or aid and abet anyone in committing the crimes. On January 26, 2007, both Petitioner and Copas were found guilty of two counts of first-degree, premeditated murder and two counts of felony firearm.1
(3/13/07 Sentencing Tr. at 10.) The trial court denied the JNOV motion after concluding that "the jury could well have found as they did, premeditation and deliberation." Id.
Petitioner's motion for new trial raised five issues regarding the violation of the trial court's discovery order, the sufficiency of the evidence, the alleged denial of the right to confront a witness, the autopsy photographs, and the alleged tainting of the jury pool. The trial court found no merit in those claims and denied Petitioner's motion for new trial. Id. at 10-12. The trial court then sentenced Petitioner to two concurrent terms of two years in prison for the felony-firearm convictions, followed by two concurrent terms of life imprisonment for the murder convictions. Id. at 28-29.
In an appeal as of right, Petitioner argued through counsel that: (1) there was insufficient evidence to support his murder convictions; (2) defense counsel was ineffective for failing to (a) elicit further evidence of an intent to destroy property, (b) object to improper evidence of propensity to commit crimes, and (c) request a specific jury unanimity instruction; (3) he was denied his constitutional right to a unanimous verdict; (4) the trial court deprived him of...
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