DOUGLAS HARRIE STEWART, Petitioner-Appellant, v. O’BELL “TOM” WINN, Warden, Respondent-Appellee.
No. 18-1204
United States Court of Appeals for the Sixth Circuit
Decided and Filed: July 27, 2020
20a0228p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:14-cv-00586—Robert J. Jonker, District Judge. Before: STRANCH, READLER, and MURPHY, Circuit Judges.
COUNSEL
ON BRIEF: Kelly Ann Kulka, Roula Allouch, GRAYDON HEAD & RITCHEY LLP, Cincinnati, Ohio, for Appellant. John S. Pallas, Rebecca A. Berels, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. Douglas Harrie Stewart, Freeland, Michigan, pro se.
MURPHY, J., delivered the opinion of the court in which READLER, J., joined. STRANCH, J. (pp. 11–14), delivered a separate dissenting opinion.
MURPHY, Circuit Judge. A Michigan jury convicted Douglas Harrie Stewart of the premeditated murder of his estranged wife, Venus Stewart. At trial Stewart’s accomplice testified that Stewart persuaded him to help in the murder by claiming that Venus was harming the couple’s children and that, if she ended up killing them, Stewart would go on a “rampage” and “go after her family and the lawyers and prosecutors and jury[.]” Stewart moved for a mistrial based on his accomplice’s testimony about what he had said, arguing that its inflammatory nature prejudiced him in the eyes of the jury. A state appellate court rejected Stewart’s due-process challenge to the accomplice’s testimony. This case asks: Was the state court’s decision contrary to or an unreasonable application of clearly established Supreme Court precedent under
I
Venus Stewart vanished on the morning of April 26, 2010. Venus’s mother last saw her around 6:00 a.m. while leaving for work from their Michigan home. About two hours later, Venus’s father was awakened by Venus’s two young daughters playing in the home unsupervised. Venus’s phone, keys, and purse were still in the home. Venus was not. No one saw her alive again.
An investigation quickly led the police to Stewart, Venus’s estranged husband. Recently separated, the couple hаd what Venus’s mother described as a “volatile” relationship. At the time of Venus’s disappearance, Stewart was living in Virginia and Venus and their two daughters were living with Venus’s parents in Michigan. When a Michigan police officer arrived at her parent’s home, he encountered Venus’s panicked mother saying “[h]e took her, he took her, he took her.” In the backyard, police found the discarded packaging to an “Ozark Trail” tarp from Walmart. They identified Stewart’s fingerprint on this packaging. They also later found a receipt from an Ohio Walmart on the floor of Stewart’s truсk. Video at this Walmart showed Stewart purchasing the tarp and a shovel on the evening before Venus’s disappearance. A Walmart employee even recalled seeing Stewart in this store because of his “odd” outfit: Hawaiian-flowered swim trunks with an unmatching shirt.
The state charged Stewart with first-degree premeditated murder and conspiracy to commit murder. The evidence at his trial showed that he had concocted an elaborate scheme to travel to Michigan and kill Venus. A man named Ricky Spencer, Stewart’s accomplice, was a key witness. Spеncer was (according to his father) an “impressionable” 20-year-old living in Delaware. He befriended Stewart in 2008 while playing X-Box Live, a video-game
Spencer gave detailed testimony describing the murder plan. Spencer would stay at Stewart’s apartment—using Stewart’s credit card and key fob and wearing Stewart’s clothes—to make it appear as though Stewart had never left Virginia. In the meantime, Stewart would drive to Michigаn. He would avoid toll roads, pay in cash at gas stations, and communicate with Spencer using prepaid cell phones. Spencer also conveyed that Stewart planned to choke Venus and bury her at a preplanned spot. Stewart’s first attempt to execute this plan failed when an Ohio trooper pulled him over while en route to Michigan. His second attempt succeeded. According to Spencer, at around 8:20 a.m. on April 26, Stewart called him to say that he had lured Venus out of her parents’ home and killed her.
Why would Spencer particiрate in this murder? He testified that, during their initial meeting, Stewart convinced him that Venus had been abusing the couple’s two daughters. (Trial testimony showed that Venus was, in fact, a loving mother.) Spencer initially rebuffed Stewart’s requests for help, but Stewart eventually convinced him that the children were at risk. Spencer recounted for the jury:
He was telling me like, “I talked to my dad already about this, and, you know, my wife is physically and mentally hurting my kids. And, you know, if I wasn’t – like if I wasn’t a hundred-percent sure that my kids were going to be injured or, you know, killed by my wife, and if I don’t do anything and I find out one day that they’re injured or, you know, or dead, that I would gо on a rampage.”
And it wouldn’t be like rampage like meaning like killing people, and it wouldn’t be a, you know, just an instant thing. He’d plan it out and go after her family and the lawyers and prosecutors and jury until like they stopped and figured out what – what was going on.
Allegedly convinced that Stewart’s children were in danger, Spencer agreed to help Stewart create this false alibi.
Stewart did not immediately object to Spencer’s “rampage” testimony, but he moved for a mistrial soon thereafter on the ground that the jurors might have understood Spencer’s testimony as suggesting that Stewart was thrеatening them. The trial court denied this motion. The court interpreted Stewart’s statements to Spencer to mean “that if something were to happen to his children by his wife that he would then go on a rampage against the Prosecutor and the jury that dealt with that issue, not in this case.” In any event, the trial court added that the statement was offered not for its truth, but to provide context for how Stewart convinced Spencer to join the conspiracy. The court offered to instruct the jury to disregard the statement “if there’s any confusion in that.” Stewart’s counsel never requested this kind of limiting instruction concerning Spencer’s testimony.
After 12 days of evidence and three hours of deliberation, the jury convicted Stewart on both counts. He received a life sentence without the possibility of parole.
On appeal Stewart argued that the trial court should have granted a mistrial. With a lone citation to the
After the Michigan Supreme Court declined review, Stewart filed a federal habeas petition under
II
The parties agree on two points. They agree that the state appellate court decided Stewart’s due-process claim “on the merits,” so Stewart must meet the standards in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Before a habeas petitioner can show that a state decision was “contrary to” or an “unreasonable application of” an asserted principle, the petitioner must identify the Supreme Court decision that “clearly established” the principle. This “‘clearly established’ language” requires a petitioner to rely “only on ‘the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.’” Atkins v. Crowell, 945 F.3d 476, 477 (6th Cir. 2019) (quoting White v. Woodall, 572 U.S. 415, 419 (2014)). When identifying what a Supreme Court decision actually holds, the Supreme Court has told us not to frame the decision “at too high a level of generality.” Woods v. Donald, 575 U.S. 312, 318 (2015) (per curiam). Take the Court’s Confrontation Clause caselaw as an example. See Nevada v. Jackson, 569 U.S. 505, 511–12 (2013) (per curiam). The Court’s decisions holding that the Confrontation Clause regulates state “restrictions on a defendant’s ability to cross-examine witnesses” do not also clearly establish that the clause “entitles a сriminal defendant to introduce extrinsic evidence” to impeach witnesses. Id. And petitioners cannot turn the cross-examination holding into an extrinsic evidence holding merely by arguing that the Court’s decisions create “a broad right to present ‘evidence bearing on [a witness’s] credibility.’” Id. at 512 (citation omitted). Such an overly broad reading of the Court’s holdings would allow federal courts to “transform even the most imaginative extension of existing case law into ‘clearly established Federal law, as determined by the Supreme Court.’” Id. (citation omitted).
Spencer’s claim fails because he has not identified a Supreme Court holding that clearly establishes his asserted legal rule. He argues that the admission of certain evidence—Spencer’s testimony that Stewart told him that he would “go on a
The lack of a Supreme Court holding forecloses Stewart’s habeas claim under our own precedent applying
These cases control this one. Like the petitioner in Moreland, Stewart identifies no Supreme Court holding barring the “specific kind of evidence” he challenges—his out-of-court statements that allegedly inflamed the jury. Moreland, 699 F.3d at 923. Because “there is no Supreme Court precedent that the [state] court’s decision could be deemed ‘contrary to,’” Stewart cannot satisfy
Stewart’s arguments do not convince us otherwise. He asserts that the state appellate court’s decision was contrary to a slew of decisions: Estelle, Lisenba, Payne v. Tennessee, 501 U.S. 808 (1991), Donnelly v. DeChristoforo, 416 U.S. 637 (1974), and Berger v. United States, 295 U.S. 78 (1935). Yet the “holdings” of these decisions do not clearly establish Stewart’s
While Estelle, Lisenba, and Payne at least involved evidentiary challenges, their holdings likewise offer Stewart no support. Estelle’s holding, as noted, undercuts his claim: “We hold that [the petitioner’s] due process rights were not violated by the admission of the evidence” of a six-month old’s prior injuries. 502 U.S. at 70. So does Lisenba’s. There, the prosecution alleged that the defendant attempted to kill his wife with a rattlesnake bite and then drowned her. 314 U.S. at 224. When it brought the rattlesnakes into the courtroom as evidence, the defendant argued that “the sole purpose of the production of the snakes was to prejudice the jury against him and that those in the courtroom, including the jury, were in a panic as a result of the incident.” Id. at 228. The Court flatly rejected the due-process claim against this reptilian evidence, noting that the Court did “not sit to review state court action on questions of the propriety of the trial judge’s action in the admission of evidence.” Id. Lastly, Payne’s holding did not concern the Due Process Clause. 501 U.S. at 811. It held that the
Unable to rely on their holdings, Stewart plucks general statements out from the decisions to argue that due process bars “fundamentally unfair” procedures. When resolving the
Our own AEDPA caselaw also offers Stewart no support for proposing a due-process right at perhaps the highest level of generality (a right to “fundamental fairness“). He mostly cites cases resolving pre-AEDPA habeas claims unencumbered by
To be sure, one of our cases held that the admission of unreliable expert testimony violated due process under
Regardless, even under Stewart’s high-level framing, he has not shown that the state court’s decision was contrary to or an unreasonable application of any “fundamental-fairness” mandate. The state appellate court reasonably concluded that Spencer’s testimony аbout Stewart’s statement was not unduly prejudicial. Stewart, 2012 WL 3966300, at *2. Stewart’s statement that he would go on a “rampage” and go after Venus’s “family and the lawyers
Nor wаs this isolated statement a “crucial” or “critical” factor in establishing Stewart’s guilt. Collier, 419 F. App’x at 559 (quoting Ege, 485 F.3d at 375). Spencer’s “rampage” testimony was “but one moment in an extended trial.” See Donnelly, 416 U.S. at 645. The prosecutor did not mention it again. And substantial evidence proved Stewart’s guilt. Spencer provided detailed testimony about the conspiracy, and other evidence corroborated his account. Security cameras captured Spencer, with his telltale habit of walking on his toes, parading around Newport News, Virginia, in Stewart’s clothes and car. When Spencer dropped off a payment at the Virginia law firm that represented Stewart (another attempt at establishing an alibi), the receptionist was not fooled; she thought the “person who came into the office claiming to be Doug Stewart” was “a different type of person.” Records from the Ohio Walmart showed that Stewart had purchased a shovel and a tarp on his way to Michigan. And packaging for the same type of tarp was found at the Michigan crime scene with Stewart’s latent fingerprint.
Stewart’s reliance on federal caselaw having run out, he ends by citing state rules or procedures that Spencer’s testimony allegedly violated. Stewart contends, for example, that Spencer’s testimony about what Stewart told him (a classic party admission) qualified as inadmissible hearsay and “bad acts” evidence, and also violated the parties’ pre-trial stipulation. But we would ourselves act contrary to clearly established Supreme Court precedent if we used these state-law arguments as a basis for granting federal habeas relief. The Supreme Court’s cases could not be clearer: “[I]t is not the province of a federal habeas court to reexamine state court determinations on state-law questions.” Estelle, 502 U.S. at 67–68. For the most part, that is all Stewart has asked us to do here.
We affirm.
DOUGLAS HARRIE STEWART, Petitioner-Appellant, v. O’BELL “TOM” WINN, Warden, Respondent-Appellee.
No. 18-1204
United States Court of Appeals for the Sixth Circuit
Decided and Filed: July 27, 2020
DISSENT
JANE B. STRANCH, Circuit Judge, dissenting. The Michigan Court of Appeals unreasonably applied clearly established Supreme Court precedent when it reviewed the irrelevant and threatening jury-rampage testimony at issue here. Because that unduly prejudicial testimony irreparably tainted the fairness of Stewart’s trial, I respectfully dissent.
My disagreement with the majority opinion boils down to its conclusion that no Supreme Court holdings clearly establish the due process violation Stewart asserts. It is true that we must not frame a rule “at too high a level of generality,” Woods v. Donald, 575 U.S. 312, 318 (2015) (per curiam), but it is equally true that “rules of law may be sufficiently clear for habeas purposes even when they are expressed in terms of a generalized standard rather than as a bright-line rule,” Williams v. Taylor, 529 U.S. 362, 382 (2000). “Where the beginning point is a rule of this general application, a rule designed for the specific purpose of evaluating a myriad of factual contexts, it will be the infrequent case that yields a result sо
The acceptance of this evidence-directed rule is shown by the cases the majоrity opinion cites for its assertion that state and federal statutes and rules, not the Constitution, typically govern the admissibility of evidence. Those cases also contain the clearly established rule that when evidence is so extremely unfair as to violate fundamental conceptions of justice, the due process clause provides a remedy. See, e.g., Perry v. New Hampshire, 565 U.S. 228, 237 (2012) (explaining that “when evidence ‘is so extremely unfair that its admission violates fundamental conceptions of justice,’” the Court has “imposed a constraint tied to the Due Process Clause.” (quoting Dowling v. United States, 493 U.S. 342, 352 (1990))); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003) (“When an еvidentiary ruling is so egregious that it results in a denial of fundamental fairness, it may violate due process and thus warrant habeas relief.“). Rules and statutes do govern the admission of evidence; so does the Constitution.
The majority opinion also points to cases like Lisenba v. People of State of California, 314 U.S. 219 (1941), and Estelle v. McGuire, 502 U.S. 62 (1991), where the Supreme Court applied this general rule but found no due process violation based on its case-by-case examination of the facts. That some habeas petitioners lose when this general rule is applied to particular facts, however, does not prove that there can never be a due process violation when irrelevant inflammatory evidence is so unduly prejudicial as to affect a trial’s fundamental fairness. And that evidence introduced in Lisenba and Estelle was not sufficiently prejudicial to make those trials fundamentally unfair is proof only of the nature of the rule—it “of necessity requires a case-by-case examination of the evidence.” Williams, 529 U.S. at 382 (quoting Wright, 505 U.S. at 308 (Kennedy, J., concurring)). In short, this rule governing evidence must be applied to the particular facts and record of a case, including this one.
The rule was applied to the challenged evidence in Lisenba and the Court determined that the evidence did not so infuse the trial with unfairness as to deny due process of law. There, the habeas petitioner had allegedly attempted to murder his wife by procuring rattlesnakes to bite and kill her. 314 U.S. at 228. The prosecution introduced the snakes in evidence so they could be identified by a co-conspirator. Id. at 226. The petitioner argued that “the sole purpose of the production of the snakes was to prejudice the jury against him and that those in the courtroom, including the jury, were in a panic as a result of the incident.” Id. at 228. The prosecution rebutted with a counter-affidavit and statement by the trial judge and with evidence that later in the trial “the snakes were brought intо
It was significant in Lisenba that the inflammatory evidence was relevant to the underlying crime. Here the part of Spencer’s testimony explaining that Stewart told him he would kill Venus if he learned she had hurt their children is likely probative of Stewart’s motive to murder Venus. The testimony that Stewart “would go on a rampage” including undertаking a plan to go “after her family and the lawyers and prosecutors and jury” is not. R. 7-17, 2/28/11 Trial Transcript, PageID 2589. Disregarding the rampage evidence would not impact a jury’s understanding of Stewart’s motive, which was informed by the testimony that Stewart would kill Venus if he learned she had hurt their children. The rampage testimony’s lack of relevance is important because determining whether evidence is “unduly prejudicial,” Payne, 501 U.S. at 825, necessarily involves balancing its probative and prejudicial effects. It is true, as the Michigan Court of Appeals concluded, “[a]ll relevant evidence is prejudicial to some extent.” But that begs the question here—whether it is an unreasonable application of Supreme Court precedent to find that the prejudicial effect of inflammatory, irrelevant evidence that threatens the jury is acceptable under the due process clause. Applying the general rule from Lisenba, Estelle, and elsewhere to this case shows that it is not acceptable.
Even if we assumed that the rampage evidence might have a modicum of relevance, moreover, it was still so unduly prejudicial as to disturb the trial’s fundamental fairness under the due proсess clause. To start, accepting the state court’s determination that the jury-rampage testimony was probative of Stewart’s motive belies its contrary conclusion that the jury could not have felt threatened by the evidence. If fear that Venus was harming their children motivated Stewart to murder his wife, then according to Spencer’s testimony, it would also motivate him to “go on a rampage,” and “[h]e’d plan it out and go after her family and the lawyers and prosecutors and jury until like they stopped and figured out what—what was going on.” R. 7-17, PageID 2589. Respondent argues that the jury could not have been threatened by this evidence because Stewart would only kill Venus and go on a rampage against a hypothetical jury if his children were harmed.
But Stewart was on trial for killing Venus—something he said he would do, according to Spencer, if he learned his children had been harmed. Stewart and Venus, moreover, had both alleged that the other abused their children. That the admitted statement implicated a hypothetical jury and was made long before Stewart’s jury was empaneled does not mitigate the intimidating nature of the testimony that Stewart’s threats included a рlan to keep going after a list of people, including the jury. To the contrary, the idea that Stewart would illogically go on a rampage against individuals not responsible in any way for harming his children could lead a reasonable juror to conclude that Stewart was unhinged. It does not take a leap of logic to conclude from his threat to a hypothetical jury, that Stewart could also be a threat to the empaneled jury—a jury that he might have a genuine motive to harm. The state court’s conclusion that “[t]he danger that the jury would unfairly infer a threat directеd at them was slight or nonexistent” is unsupported by its factual
Because the record testimony shows that a reasonable juror could feel threatened by irrelevant testimony that the Defendant planned to go on a rampage and go after a jury, we cannot know whether the jury reached its verdict based on an impartial view of the evidence or in response to the irrelevant but threatening testimony that Stewart planned a rampage against a group that included the jury. Because “any ground of suspicion that the administration of justice has been interfered with” cannot “be tolerated,” Mattox v. United States, 146 U.S. 140, 149 (1892), Stewart is entitled to a new trial.
For these reasons, I respectfully dissent.