Whalen v. Johnson

• Decision Date: 13 October 1977
• Docket Number: Civ. No. 6-70296.
• Citation: 438 F. Supp. 1198
• Parties: John Joseph WHALEN, Petitioner, v. Perry JOHNSON, Director, Michigan Department of Corrections, and Anthony Rozman, U. S. Marshal for the Eastern District of Michigan, Respondents.
• Court: U.S. District Court — Western District of Michigan

438 F. Supp. 1198

John Joseph WHALEN, Petitioner, v. Perry JOHNSON, Director, Michigan Department of Corrections, and Anthony Rozman, U. S. Marshal for the Eastern District of Michigan, Respondents.

Civ. No. 6-70296.

United States District Court, E. D. Michigan, S. D.

October 13, 1977.

COPYRIGHT MATERIAL OMITTED

N. C. Deday Larene, Detroit, Mich., for petitioner.

Christine Derdarian, Asst. Atty. Gen., Lansing, Mich., for respondents.

MEMORANDUM AND ORDER

DeMASCIO, District Judge.

The petitioner is currently serving a state sentence at a federal correctional institution.¹ He filed this petition pursuant to 28 U.S.C. § 2254 alleging that (1) the trial court erroneously admitted hearsay evidence about a certain license plate, (2) that the trial court erred in receiving testimony of a witness at petitioner's retrial since the prosecution had assured him that this particular witness did not have material evidence to offer, and would not be called, (3) that the trial court erred in permitting the prosecutor to develop testimony of an improper photographic identification on redirect examination, (4) that the trial court erroneously instructed the jury on the law of alibi, (5) that the Michigan Supreme Court's refusal to disqualify itself from considering his application for leave to appeal denied him due process, and (6) that he was denied effective assistance of counsel at his sentencing hearing. The Michigan Attorney General has filed a motion to dismiss the petition pursuant to Fed.R.Civ.P. 12(b)(6). The parties agree:

1. On October 2, 1970, petitioner was convicted in Lenawee County Circuit Court of breaking and entering a jewelry store.

2. Petitioner's conviction was affirmed by the Michigan Court of Appeals on May 31, 1972.

3. On September 7, 1972, the Michigan Supreme Court denied petitioner leave to appeal. That court denied petitioner's motion for reconsideration on October 6, 1972. On December 18, 1973, however, the court sua sponte granted petitioner leave to appeal, reversed his conviction and ordered a new trial.

4. On March 30, 1974, following retrial, petitioner was convicted and was sentenced by Circuit Judge Rex B. Martin to six years, eight months to ten years for breaking and entering and two years, eight months to four years for larceny in a building. The Michigan Court of Appeals affirmed the conviction and the Michigan Supreme Court, thereafter, denied a motion by petitioner for recusal and denied him leave to appeal.

The trial transcript discloses that the jewelry store burglars used welding equipment to cut a hole through the wall into the jewelry store. The owner of the adjacent store happened upon the scene as the burglars ran out the front door knocking him down. He described the getaway car to the police. The police arrived and found a collection of cutting torches, tools and other equipment in the basement area. The jewelry store safe had been opened by drilling and removing the dial. All valuable jewelry had been taken from the safe and a display case. Later that evening, two Michigan State Police Troopers stopped a 1966 White, Lincoln Continental, matching the description of the getaway car, headed toward Toledo, Ohio. The petitioner was driving the vehicle and his codefendants were passengers. The troopers found the jewelry and an undisclosed amount of cash in the car.

A prosecution witness, Nicholas Pollard, testified that while employed at Metro Welding Supply Company, in Detroit, Michigan, three persons came into the store and bought welding equipment, that the following day petitioner returned to exchange cylinders purchased the prior day. Petitioner sought to exclude Pollard's identification of petitioner alleging that the in-court identification would be tainted by a prior display of photographs. Upon a separate record, Mr. Pollard testified that several months before March 19, 1969, police sergeant Eugene McBride talked to Mr. Pollard's supervisor (Neal Stoneback) and asked that he be notified of any purchase of a hot rod device generally used to burn through concrete and heavy steel plate. Mr. Pollard testified that because he was suspicious of petitioner's purchase, he jotted down the license number of his car and gave the license number to Mr. Stoneback who relayed the information to Sergeant McBride. Sergeant McBride testified that he received a telephone call from Mr. Stoneback on March 19, 1969. Mr. Stoneback advised him that an individual had purchased cylinders and a cutting pin, and entered a white Lincoln occupied by two other males. After petitioner's arrest, Sergeant McBride, acting on his own, displayed a group of photographs to Messrs. Stoneback and Pollard. The photographs included the petitioner and two other men arrested with him. Petitioner was not represented by counsel at this photographic identification even though under Michigan law, where a defendant is in custody or can be readily produced for a lineup, the police may not conduct a photographic identification in the absence of counsel. People v. Beasley, 55 Mich.App. 583, 223 N.W.2d 77 (1974). The trial judge, therefore, sustained petitioner's objections and excluded the photographic identification.

Messrs. Stoneback and Pollard, nevertheless, were permitted to identify petitioner in court. Petitioner on cross-examination brought out the prior photographic identification. The prosecutor, on redirect examination, then brought out all the circumstances surrounding the photographic identification.

Sergeant McBride was permitted to testify from his notes that Mr. Stoneback had given him the license number of the automobile driven by the men who purchased the cutting and welding equipment, that Mr. Stoneback had received the license number from Mr. Pollard, that the license number was the same as the license number on petitioner's automobile and the cutting and welding equipment were similar to that used in the jewelry store robbery.

Mr. Stoneback testified that two men came into his shop on March 19 and 20, 1969, to purchase welding equipment and that he had called Sergeant McBride on March 19th to advise him of that fact, that four or five days thereafter Sergeant McBride visited his shop and that he and Mr. Pollard identified two of the photographs displayed to them. Mr. Stoneback identified the petitioner as having been one of the two individuals who had been in his store.

State court evidentiary rulings are not cognizable in a federal habeas corpus proceeding absent a showing that the challenged ruling infringed one of petitioner's specific constitutional rights. Manning v. Rose, 507 F.2d 889 (6th Cir. 1974); Maggitt v. Wyrick, 533 F.2d 383, 385 (8th Cir. 1976). Generally, states are permitted wide latitude in formulating rules of evidence and trial practice and procedure. Manning v. Rose, supra. The evidentiary rulings challenged by petitioner do not infringe any of his specific constitutional rights nor are they so prejudicial as to deny him due process of law.

Petitioner argues that Sergeant McBride's testimony concerning the license number, even though refreshed by his notes, constituted objectionable hearsay and violated his right of confrontation. The fact that Sergeant McBride could not remember the specific license number without reference to his notes is irrelevant. They were admissible as past recollection recorded and his availability for cross-examination permitted petitioner to develop how, when, where and under what circumstances the notes were made to test their credibility. Since Sergeant McBride and the two other interested witnesses were in court to testify and were subjected to cross-examination, there clearly was no violation of petitioner's right of confrontation.

Petitioner contends that the trial court's allowing witness Neal Stoneback to testify after the prosecutor filed an affidavit that Stoneback did not have material evidence to offer denied him due process. Petitioner argues that inasmuch as Mr. Stoneback's testimony was "devastating to the defense" it was inherently unfair, citing Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). It is clear from the transcript that the prosecutor erred in his statement that Mr. Stoneback did not have relevant or material information to offer when in fact he was able to identify the petitioner. When the prosecutor discovered at the retrial that Mr. Stoneback was able to identify the three men purchasing the welding equipment, he sought permission from the court to endorse Mr. Stoneback on the witness list. The trial court afforded petitioner a continuance in order to prepare for that testimony. Defense counsel rejected this offer and insisted on a mistrial. Petitioner does not allege that the prosecutor was guilty of deliberate misconduct or that he sought an unfair advantage by deceptively filing an affidavit. The petitioner did not have a constitutional right to prevent witness Stoneback from testifying. In view of the trial court's willingness to continue the trial and permit defense counsel to prepare for Mr. Stoneback's testimony, petitioner's conviction was not inherently unfair or so fundamentally defective that it amounted to a miscarriage of justice. DeBerry v. Wolff, 513 F.2d 1336, 1338 (8th Cir. 1975). Petitioner also argues that witness Pollard discussed his testimony with Mr. Stoneback contrary to the direction of the court. This does not constitute a constitutional violation where there is no allegation that the prosecution encouraged or condoned such discussion. In his closing argument, defense counsel urged the jury to discredit Mr. Stoneback's testimony because of the "refresher course" that he received from witness Pollard and defense counsel further pointed out discrepancies in the testimony of Messrs. Stoneback and Pollard. The jury nevertheless elected to credit Mr. Pollard's testimony.

Petitioner next argues that the trial court improperly permitted the prosecutor to...