Thompson v. Warren, CIVIL NO. 2:11-CV-12709

• Decision Date: 23 January 2013
• Docket Number: CIVIL NO. 2:11-CV-12709
• Parties: DENA CHARYNE THOMPSON, Petitioner, v. MILLICENT WARREN, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

DENA CHARYNE THOMPSON, Petitioner,

v.MILLICENT WARREN, Respondent.

CIVIL NO. 2:11-CV-12709

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: January 23, 2013

HONORABLE SEAN F. COX

UNITED STATES DISTRICT COURT

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS

AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Dena Charyne Thompson, ("Petitioner"), presently incarcerated at the Huron Valley Women's Complex in Ypsilanti, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In her application, filed by attorney David A. Dodge, petitioner challenges her conviction for first-degree premeditated murder, Mich. Comp. Laws, § 750.316(c), conspiracy to commit first-degree murder, Mich. Comp. Laws, § 750.157a, and accessory after the fact to a felony, Mich. Comp. Laws, § 750.505. For the reasons stated below, the petition for writ of habeas corpus is DENIED WITH PREJUDICE.

I. Background

Petitioner was convicted of the above offenses following a jury trial in the Allegan County Circuit Court.

Petitioner's counsel has provided a detailed statement of facts in his memorandum in supportof the petition for writ of habeas corpus. ¹ Respondent has likewise provided a lengthy, detailed factual summary of the case, which does not essentially conflict with petitioner's statement of facts, but at most adds additional details. ² The Court will therefore accept the factual allegations contained within the habeas petition insofar as they are consistent with the record, because the respondent has not disputed them. See Cristini v. McKee, 526 F. 3d 888, 894, n. 1 (6th Cir. 2008)("When a state's return to a habeas corpus petition fails to dispute the factual allegations contained within the habeas petition, it essentially admits these allegations"). Because the facts of this case have been repeated numerous times, they need not be repeated here in their entirety. Therefore, only a brief overview of the facts is required. See Nevers v. Killinger, 990 F. Supp. 844, 847 (E.D. Mich. 1997).

Petitioner and her husband, Kristofer Thompson, conspired to murder petitioner's ex-husband Troy Tyo. Petitioner and Tyo had been engaged in a bitter custody dispute involving their two children. The original plan had been for Kristofer Thompson to use a baseball bat to murder the victim, but he instead ended up using a knife to stab the victim at least twenty three times. After killing the victim, Kristofer Thompson attempted to cover up the crime by placing the victim's body in the victim's truck and setting it on fire. Kristofer Thompson enlisted the help of his sister, Lori Lathrop, and his brother-in-law, Scott Lathrop, with the killing.

Petitioner and her husband were first interviewed by the police the day after the victim went missing. Petitioner and her husband drove separately to the station. Neither Petitioner nor her husband made any incriminating statements and were not arrested at that time.

The victim's body was found inside of his pick up truck on December 8, 2007, about five days after the victim had gone missing. About that same time, the police received information from Lori Lathrop that her brother Kristofer had killed Troy Tyo. Police obtained a search warrant for Petitioner's home and arrested Kristofer Thompson.

Petitioner was detained by the Allegan County Sheriff's Department and was interrogated by the police four times for a total of 9 ½ hours over a three day period, starting on December 8, 2007, and ending on December 10, 2007. Petitioner was advised of her Miranda rights before each interview. All of the interrogations were videotaped. Petitioner gave several inconsistent statements to the police, in which she denied involvement in the victim's murder. However, during the final interrogation on December 10, 2007, Petitioner admitted that she had asked Kristofer Thompson to kill her ex-husband and admitted that she had wanted her ex-husband "gone for good" and "out of the picture."

Prior to trial, Petitioner moved to suppress her statements on the grounds that they were involuntary. Petitioner also wished to call, both at the suppression hearing and at trial, an expert witness on false or coerced confessions, Dr. Richard Ofshe. The prosecution opposed Petitioner's request to allow Dr. Ofshe to testify as an expert witness.

An evidentiary hearing was conducted on the motion to suppress on April 14 and 24, 2008. Neither Petitioner nor the three detectives who interrogated Petitioner were called to testify at this hearing. Instead, Dr. Ofshe was called by the defense to testify at the hearing. Dr. Ofshe had reviewed the videotapes of the interrogations and concluded that the police had used psychologically coercive techniques to obtain a confession. Dr. Ofshe claimed that the police had used a psychologically coercive technique which may have motivated Petitioner to confess because if sheagreed with the police, she would be rewarded, but if she denied her involvement in the murder, it would cause her to face a severe consequence. Dr. Ofshe also testified that the police used the tactic of advising Petitioner to think about her daughters in order to coerce a confession from her. Dr. Ofshe further noted that the police used what he referred to as an "evidence ploy," in which they told Petitioner about evidence that linked her to the crime. Dr. Ofshe indicated that the police had told Petitioner that they had evidence linking her to the crime which did not exist. Dr. Ofshe admitted that he had not met Petitioner and did not know if she was vulnerable to being psychologically coerced by the police, nor had he compared her confessions with the known facts of the case or reviewed the police reports to determine the reliability of Petitioner's confession. The trial judge refused to allow Dr. Ofshe to be qualified as an expert witness at the suppression hearing.

The trial judge denied the motion to suppress the confession, finding it to be voluntarily made:

In regard to the argument of the use of the [Petitioner's] children to overbear the will of the defendant, I really find it difficult to reconcile with my review of the-of all the material that's been presented to me. I find it to be at odds with what actually did occur. I do not see any indication that there was an overbearing of the will in any manner. It does seem that the defendant was essentially playing a chess game throughout this procedure. It did not appear that she had any compunction about the manner in which she was being interrogated. She continued to utilize her - I don't know if you'd call it intuition or what it is she was attempting to do to entice the assistance or understanding of the detectives, in any event I do not see that her will was in any way over born[e]. . . . Certainly she was well aware of her Miranda rights, she was certainly an individual of sufficient age. Even considering the aspect of experience with the police, she had - she played these interviews out quite an extended period of time. You indicate that you consider that these should be looked at upon the totality of the circumstances but under the totality of the circumstances we have to remember that she was given frequent breaks, she was given at least the opportunity for sleep and food. . . .

[A] very complete record shows that this was a fully voluntary and knowingly [made] statement.

(Tr. 4/24/2008, pp. 28-29).

The trial judge subsequently granted the prosecutor's request to exclude Dr. Ofshe from testifying as an expert witness at trial either about false confessions or coercive police tactics. The trial judge noted that several courts in other states had precluded Dr. Ofshe from testifying about false confessions. People v. Thompson, No. 08-15612-FC, at pp. 6-7 (Allegan County Circuit Court, April 28, 2008)(collecting cases). The judge further observed that as recently as 2007, in jurisdictions that employed the Daubert standard ³ for the admissibility of expert testimony, the false confession theory was not held to be scientifically reliable. Id., at p. 9. The judge mentioned that Dr. Ofshe had only published three articles in this decade and only one or perhaps two of those articles were related to false confessions. Although Dr. Ofshe had given presentations on the theory of false confessions, these had been mostly to defense attorneys, as opposed to colleagues who could critique his ideas and the techniques that he used to gather data. Id. Although Dr. Ofshe had written articles that had been subject to peer review, the reviews had been critical, which the judge felt demonstrated the unreliability of this theory. Id. The judge concluded that the theory on false confessions had not attained an acceptable level of reliability and thus excluded Dr. Ofshe from testifying on this subject. Id., pp. 9-10. The judge further concluded that Dr. Ofshe's expert testimony should be excluded because whether a confession was coerced was within the general knowledge, experience, and common sense of jurors and Dr. Ofshe's testimony would not aid the jury, but might have the likelihood of misleading and confusing the jury. Id. at pp. 10-13.

At trial, the videotapes of all four of Petitioner's interviews with the police were played in their entirety for the jury. (Tr. Vol. III, pp. 22-285; Tr. IV, pp. 39-176, 193-219, 253-285). Defensecounsel questioned the three detectives extensively concerning the interrogations of Petitioner and the tactics that they used. In particular, Petitioner's counsel obtained admissions from the three different detectives that they falsely informed Petitioner that Kristofer Thompson had confessed to the murder and had implicated Petitioner, had erroneously told Petitioner that Kristofer Thompson had used a bat to kill the victim when he had in fact used a knife, and gave Petitioner the false impression that being an accessory after the fact to the crime would make her guilty of being involved in...