Gregory Lent v. H. Gary Wells

BOGGS, WELLFORD Before PECK, Senior Judges, and Circuit Judge. Circuit PECK, Circuit Senior W. JOHN Judge. court’s from district appeal

This anis habeas for a writ petition of a denial Lent, con- Petitioner, Gregory corpus. as- degree criminal first victed sen- he was jury, by Michigan sault imprisonment. years 10-15 tenced affirmed Appeals Michigan Court Court Supreme Michigan conviction. for leave delayed application Lent’s denied appeal. criminal in this whether The issue self-incrimina- against privilege accused’s indi- by the State’s violated has been tion take his failure rect reference too courts which federal stand, issue an com- particular face. Whether frequently ac- accentuate impermissibly ments upon depends testify cused’s If made. they are in which context wheth- consider reviewing do, er degree to which the verdict pants, and she attempted to flee. He depend upon improper slight so tripped her. He asked that oral sex be as to constitute “harmless error.” For the performed him and on attempted then below, reasons set forth we conclude that complainant intercourse. The testi- challenged remarks unconstitutionally fied that she consented to oral sex order petitioner denied right to be free from to avoid physical further injury. Petitioner self-incrimination, compulsory and that the then left the area on foot. error was not harmless. A police state officer regarding testified interrogation petitioner. The officer I. Facts stated that petitioner’s story was similar to opening statement, In defense’s counsel that of complainant, except petitioner asserted that the State would lack suffi- complainant stated that agreed perform cient evidence convict because no evi- oral sex and that he nothing had done dence corroborated the complainant’s testi- injure force or complainant. mony, and because considerable evidence police The noticed an unusually large opposing complainant’s testimony would be grass area of matted outside the vehicle. presented. What actually happened during Complainant’s purse was under found some period issue only could be known by weeds. The officers transport- who complainant petitioner, and whose complainant ed hospital to the testified that opening statement that he indicated intend- she upset, noticed no inju- present ed to evidence of his version of ries. Medical evidence scrape revealed a those facts. cheek, on her but no evidence of semen or presented The witnesses, several sperm in complainant’s mouth. Other wit- including complainant. It was estab- nesses petitioner observed leaving the petitioner lished that gone to a bar scene. They testified that was walking friend, they with a where met complainant casually and did not try to disguise hide or Complainant and her friend. and her his face from them. beer, drinking friend though were they The presented testimony no underage. were The four split decided to evidence. up party for a they search had heard of, petitioner accompanying complain- During closing argument prosecutor ant in her car. Petitioner called the sheriff noted repeatedly that the evidence was un- in an to locate the effort street where the contradicted. made the fol- party supposedly taking place, but lowing statements: they were still unable to find it. 1) “The evidence in this case complete- is Complainant agreed to petitioner drive ly, totally uncontradicted. There are home. Petitioner directed her to an types aban- not two of evidence in doned farmhouse and complainant one, asked there’s the testimony of the go inside. complainant refused, When peti- victim from the witness stand.” tioner admitted that it was not his house. 2) “Again, you did hear any evidence to Complainant voluntarily petitioner kissed contrary? You heard no other twice while at the farm. evidence.... defense attorney] [The going get Complainant up well, here say, testified petitioner took been, possession could’ve keys vehicle, could’ve Well, been. permitted that she could’ve him to been didn’t drive it take so that she stand. The evidence you leave the abandoned farm. She have is evidence asserted that after from the driving witness toward town stand, petitioner and not stopped could’ve been.” the vehicle and tried to kiss her. resisted, When she 3) wrestled you “Did hear anybody get else up and fell out of the petitioner car. When here testify? Did you any- hear again her, tried kiss she tongue. bit his body get stand, else on the witness She pulled testified he forcibly off her one of the other people bar, or exten- isolated 2) remarks were pretty She was well, Pam. yeah, say, sive;

blasted_ evi- no No, other there’s dence, guilt otherwise none.” 3) was the gen- shows, overwhelming; ladies 4) “The evidence Au- a.m. on 4:00 tlemen, that about given instructions 4) what curative right man young gust and when. right lady young raped (6th 1072, 1077 Hearn other evidence. there, and there Foltz, 788 F.2d Cir.1983); Spalla v. accord uncontradicted, unrebutted.” it’s It’s will Cir.1986). 400, 404 above objection Defendant’s explana- if some intent manifest find Prosecu- comment. without noted equally remarks is prosecutor’s for the tion fol- the included argument rebuttal tion’s Robinson, 651 v. States United plausible. lowing: Cir.1981). Whether 1188, 1197 about you the truth told “If victim] [the necessarily” “naturally jury would the guilty, defendant the happened, what on the reflect comments to the construe contra- evidence to is no other there testify “a requires to failure defendant’s she said What said.... she what dict of the context of the analysis” probing uncontradicted, it’s that’s the trial likely effect of comments, attorney thinks The defense up. backed Id. instruction. curative court’s any corrob- produced says I haven’t he if of the record analysis” “probing A might enough folks you oration often that our conclusion to gives rise in case have cor- do we But it. to believe come manifestly were remarks prosecutor’s have evidence Do we roboration? petitioner’s to call attention intended to to talk want He struggle? didn’t awas the re least that testify, or at to failure do.” it, bet we you about by construed so have been marks would prosecu- that found district the re argues that The State jury. “manifestly in- not were tor’s statements defense address to intended were marks decision petitioner’s on reflect tended” opening its in promise unfulfilled counsel’s instruc- curative testify, not contradictory evidence that statement to the charge of the part as given tions jury that forthcoming, so would might have error that any corrected properly be distinguish be able would committed. evidence. and actual comments mere tween remarks urges that further The State Against Self-Incrimination Privilege II. offensive, besides as witnesses not provides amendment The fifth contra provided have petitioner compelled in shall be ... person “no that dictory evidence. against a witness to be criminal any inade- argument first direct State’s well settled find the It is We himself....” end legitimate to a criminal it is a prosecutor While quate. reference coun- defense testify is a violation to inform failure not to be ought com against privilege opening statement sel’s evidence, prosecutor v. Cali as self-incrimination. considered pelled Griffin 1229, tailoring narrowly 14 609, S.Ct. 85 U.S. Instead 380 too far. fornia, went the con counsel’s viewing defense (1965). When to address L.Ed.2d his broadly references here stitutionality statement, prosecutor of indirect to tes the evidence once that to the defendant’s than stated factors: four observe further examine We this court tify, uncontradicted. the benefit counsel defense that, giving 'manifestly in- comments 1)Were the opening made doubt, may have si- the accused’s on to reflect tended’ intending put faith, good all statement a character or of such lence decide stand, only to on the defendant necessarily’ ‘naturally and jury would that its rested prosecution when later such; take them require case was too unsubstantial jury was not told that defendant would be response. expected testify, as it was in Butler. Lockett, Unlike prosecu- Butler and distinguishable This case is from Lockett tor’s comments in this significant- case add Ohio, 586, 2954, 438 U.S. 98 S.Ct. ly impression petitioner’s to the silence (1978), L.Ed.2d 973 where the State’s refer- consequence. Any impression peti- ence to its evidence “uncontradicted” tioner unilaterally given, be- proper light was held to be of defense yond inescapable silence, effect of express promise counsel’s that defendant Lockett, testify. In minimal. Court rea- prosecutor’s soned that the remarks added Similarly, Robinson, United States v. nothing impression already made - U.S. -, 108 S.Ct. 99 L.Ed.2d 23 Here, defense counsel. defense counsel did (1988), is controlling. Robinson, promise petitioner would testify argued counsel govern prepared during fact voir ment did not allow the defendants to ex dire for by telling silence them plain their actions. The com petitioner testify did not need to ment that defendants could have testified that their decision was not to be influenced proper was deemed a reference to “the by an testify. election not to The court possibility of testifying as one of several juror excused one thought who otherwise. opportunities which the defendant was af Rose, (6th Butler v. 686 F.2d 1163 Cir. forded, contrary to the statement of his 1982) (en banc), distinguishable. is also counsel, explain to his side of the case.” Butler, petition corpus for habeas relief Id. at 869. Conversely, present case, in the prosecutorial based on two comments was defense counsel makes no assertion that comment, prosecu denied. In the first petitioner wished to explain his case or that tor attorney noted that the defense must at he was denied the opportunity to do so. present least a witness to jury convince the The argument, State’s second that no complainant lying.1 that the was The other violation has occurred because witnesses clearly statement was focused on argu petitioner other than could have contradict- strategy ment and of defense counsel.2 evidence, ed the equally unconvincing. While question two of the comments in in First, we note that only com- case before us seemingly targeted were plainant petitioner and present were statements, at defense counsel’s the other time of alleged rape, only petitioner three were not. The comment that could have rebutted the “could’ve been didn’t evidence take the stand” that August 6, 1982, “about 4:00 a.m. during remark made on the State’s that rebut young right tal man raped addressed defense speculation young counsel’s lady right as to events and there.” If defense's claim that evidence that State corroborating lacked labels evidence. How uncontradicted could ever, in the context of a trial where have been contradicted three the defend- other testimony, statements ant’s unjustifiably illuminated label is much more objectionable. defendant’s failure to testify, Mintzes, these Raper two v. 706 F.2d comments to Cir.1983). served draw further attention We also note in subject to a already that had present regard that the evidence was in fact ed impermissibly. Defense counsel here contradicted to some by petitioner’s extent promises present case; made no to police statement which was admitted dur- stated, Attorney 1. The State’s “He just going cannot do always say we are just to it is made just get ‘Ah, attorney say, back and have an up put proof why on no to show it was just telling she is ducing pro- not the truth.’ Without up anything made to indicate the witness is why one might witness to show she be lying any way convict, you just in and then can’t telling might telling otherwise or how she any rape couldn't convict in case." Id. Defense otherwise.” Id. at 1167. noted, objection counsel’s specific was cura- given. tive instructions were Id. stated, Attorney 2. “Apparently The State's what saying rape [defense counsel] is that in a case comments, constitutionally Therefore, forbidden chief. in case the State’s ing very well might honest, fair-minded assertion not-guilty verdicts.” brought substantiated have not was unrebutted 25-26, 87 S.Ct. highlight 386 U.S. Chapman, likely serve The stand. take the failure to 828-29. alter- adequate an show has failed certainly State Although the State’s offending com- interpretation nate find jury to permit a enough strong as a therefore, ments; conclude we to demon- it has failed guilty, petitioner intended manifestly were whole doubt that beyond a reasonable strate silence, petitioner’s reflect In or- was harmless. error constitutional effect. neces- jury guilty, petitioner to find der com- testimony of forth sarily set believed factors three The age peti- admittedly lied about favor also who supra, plainant, Hearn extensive, drinks, was credible. served order to be five remarks tioner. n. the truth at 167 have doubted supra, Raper, also isolated. See not statement, in which Furthermore, of the remarks petitioner’s one objection. contact but claimed subsequent to admitted made We consent. complainant’s have had indicated, we do is hereinafter As by the emphasis repeated conclude otherwise guilt was that evidence feel to testi- regarding Although corroboration overwhelming. dis- jury to persuaded fy necessary testimony was complainant’s peti- Other actions credit statement. his convict, single for the in order showing complainant tioner, such testimony, course which complainant’s evening and in early the license driver’s disbelieve, from is far free to jury was the imme- himself to conceal making efforts overwhelming. incident, might also following diately the given instructions were curative No jurors as evidence by reasonable construed trial objections. The defense’s of time the in- Uncorrected innocence. petitioner’s of end charged the generally judge petitioner should that by the State ferences testi- need not a trial that defendant of the main- if he wanted the stand have taken evidence, the any produce fy or per- easily have innocence tain to influence not was silence defendant's that any doubts discount jurors to suaded not mention judge did decision. their seem- due to arisen may have improper comments. prosecutor’s the actions. ingly inconsistent demonstrated has not Error The State Harmless III. beyond a was harmless in this case error Bordenkircher, 605 v. In Eberhardt we reverse Accordingly, doubt. reasonable Cir.1979), court articu re- district of the the decision determining applied in to be the rule lated granting entry an order mand supra, California, v. a whether Griffin trial a new corpus, unless of habeas writ is harmless: error to be time a reasonable within commenced of a viola- error, context in Harmless court. district by the determined right of a defend- a constitutional tion standard, narrow extremely ant, is an dissenting. Judge, BOGGS, Circuit the retrial avoid permitting Judge agreement demon- it can general when I am in aof defendant de- of the doubt the violation analysis a reasonable beyond Peck’s strate way to any self-incrimina- against not contribute privilege did error fendant’s Chap- defendant. of the conviction While tion. 18, 87 S.Ct. U.S. careful examina- a California, gratuitous, wholly man per- (1967). in Hearn forth set 17 L.Ed.2d 705 factors of the tion violate did the remarks me suades consid- This court Eberhardt rights, which, “absent case is a er whether should engaged not have in this line The victim’s version was particularly cor- However, rhetoric. I disagree with the roborated the following physical items: court’s harmless error analysis. (1) there was testimony and medical evi- dence as to damage to her An examination of the issue of harmless face, though statement, always presents error a specula- somewhat related police, was that he tive undertaking. It is always conceivable injured her; never any may factor have affected the jury’s (2) However, deliberation. a over officer that, indicated in his years opinion, courts developed have number of condition of grass guideposts in undertaking a around task the car which es- was more consistent sentially looking with a struggle involves into the minds of than with a consensu- jurors al encounter; examine the evidence with an eye to whether a decision have been (3) her ear ripped bloody by impermissible influenced conduct. I her earring missing; agree with Judge quotation Peck’s (4) the purse victim’s was found under Chapman standard from to determining grass matted car, outside the in- whether this is case in which “absent the consistent with a consensual encoun- constitutionally comments, forbidden hon- ter; and est, jurors might fair-minded very well (5) the story victim’s emphasized that brought not-guilty verdicts.” 386 her conduct was motivated a de- 25-26, U.S. at 87 S.Ct. at 828-29. For the sire to maintain virginity, I below, reasons will forth set I believe that virginity was confirmed by medi- that there is no reasonable doubt cal evidence. honest, same jurors fair-minded who con- Thus, prosecution’s case was direct victed Lent also have convicted supported, well if found the him in the of the prosecutor’s absence im- victim credible. The did, obviously permissible arguments. as it would have been easy to return a This essentially the vic- not-guilty verdict had they significant against tim’s word defendant’s, doubts as to her version of the events. with a number of corroborative short, defendant’s decision to take the elements of evidence. The prosecution had stand, prosecution’s and the impermissible the direct testimony of victim, the it, comments on would not seem to add question there was no as to the identity of much to the weight prosecution’s of the the other party events, the only as the case. exact nature the of events. If jury the I would agree that this is not a case in complainant, believed the the case was es- which the evidence could be termed “over- sentially over. whelming,” as might it be in some cases jury The ample had opportunity to ob- with numerous neutral eyewitnesses and the serve victim’s demeanor truthful- scientific identification testimony. At the ness. She vigorously cross-examined time, same the harmless error analysis on the obvious grounds of her conduct ear- must also on the weightiness focus of the lier evening, in the including going to a bar particular error. Comment on failure to (albeit a campus bar), lying about age take the stand be damaging alcohol, obtain and leaving bar, the tak- an alibi defense where, rather here, than ing with her in her car a man she had just straight-forward swearing contest is in- met.1 While these may events have been volved. Defendant’s version of the events unwise, they constitute no defense was before the jury through police the offi- of charge rape, if the victim’s of version cer’s His statement. decision not to dis- the events is believed. play his own demeanor to the jury had girlfriend 1. Her party. defendant's friend went young The people four intended to meet car, defendant's all supposed again search of a party. However, of evi- those items home. or at indepen- jury the extremely obvious with the way inconsistent in no are dence comments. any prosecutorial of dent events, which version victim’s the de- note that important to It is also mitigate the ulti- do Neither believed. jury di- to the argument attorney’s fense crime. seriousness mate state- rectly contradicted evidence some Ac- there was police officer. fact that by the relayed ment by reason- officer, agreed “might be construed Lent also police which cording to the inno- occurred, that it as evidence able penetration injury 977) not terminate does (page wholly consensual cence” had been case, every analysis. counsel In defense error harmless inflicted. had been statement believed opening which if in the is some specifically said making defense) out or disbelieved “petting, (favorable there had to sexual lead to whatever,” prosecution) no reference (favorable with to the bit the victim how contact, question after is rather acquittal. The persist- judg- of his tongue juror judgments credibility those viola- the constitutional advances: ent ments interact firmly persuaded of the I am feeling the effects In this tion. Greg, probably which of the facts Thering, analysis overreact- jury’s alcohol, Miss as was Thering depend on one did not guilty Miss verdict struck, slapped their led to ed Following discounting of defendant’s right cheek. any across additional time po- through the two. (offered either ensued between arguments a scuffle counsel) earring caused through defense probably when lice or That —the scuffle, fail- Following “piling on” about ear. injury to walk proceeded up, testify. and he Greg got ure to his home. towards Road along Lincoln analysis of that an note Finally, I would opening words, constitutional particular In in which cases incon- completely com almost account an alleged reveals statement violation account contemporaneous a conviction with the which sistent cases in plete absence by the as related Out of some the defendant reversed. actually been has makes it inconsistency also This a consti in which officer. I examined 50 cases motivat- jury was likely considered, less much two violation tutional improper prosecution’s ed actually overturned. convictions case and strength of its than Cir. rather Raper v. defense. of the implausibility a murderous considered 1983), separated recently on a in the home attack point on the to comment I also wish and two boyfriend woman, her new opinion that majority’s in the made boyfriend Only the children. boyfriend’s “doubts” struggle with have had would upheld vote, the court 2-1 By a survived. due arisen may have corpus habeas grant of court’s ac- district These actions. seemingly inconsistent degree mur first for the conviction on the referred matters presumably are tions wife, affirmed der of origi- defendant page 977: to at second-degree mur convictions license, driver’s his victim shown the nally intent assault with children der of leaving the by others seen he that was 167. Id. at boyfriend. to murder trying to manner, without in a casual scene comments that these is true identity.2 It conceal mind in the explain what with are more consistent of evidence pieces egregious particularly “acquaintance known has become what degree in first state mental importance image of a lurid than with rape” 163. Id. murder. the street stranger on by a attack random hardly a motorcyclists is passing from a rural himself fact, walking on the side he 2. In guilt. powerful on. rebuttal night shirt on a cold at 4 A.M. road attempt to conceal did fact that In Hearn v. 708 F.2d 1072 Cir.1983),the court reversed a conviction in TAYLOR, minor; Jessica S. Pamela J. another “acquaintance rape” situation. Taylor; Taylor, and Richard However, an examination of the facts in Plaintiffs-Appellants, highlights the differences that make error here be- harmless MEDTRONICS, INC., yond a reasonable doubt. case, In that Defendant-Appellee. complainant’s conduct after the charged gave events reason to doubt her credibility. No. 88-3069. She told someone the night of the assault United States Court Appeals, that she was “knocked down” with no men- Sixth Circuit. sex;

tion of forced day next she told her employer that she was in an assaulted Argued 6, Oct. 1988. elevator; and when she first reported it to 22, Decided Nov. 1988. police, she did mention con- tact. Id. The defense also intro-

duced five photographs of “an outwardly 'complainant'

relaxed seated in proximi-

ty of a door to hallway, highball with a

in her hand.” Ibid. The emphasized testimony

that “the of [complainant] was in

many respects inconsistent; other witness- suggested

es strongly that [complainant]

knew and willingly went [defendant] to his

apartment after embracing him in the

hall.” Thus, Id. at 1078. the victim was

far less credible than present in the case.

Rape under circumstances such as these easily

can disbelieved, and convictions

are not easy obtain. The degree victim’s

of credibility is demonstrated the fact

that a conviction resulted. Estrich, See

Rape, 95 Yale (1986). L.J. our substantial verifying the victim’s story of a forceable

assault contradictions in de-

fense version of point events all to an error here,

that was harmless as opposed

errors in the two cases above. I would

affirm.

Case Details

Case Name: Gregory Lent v. H. Gary Wells

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 22, 1988

Citation: 861 F.2d 972

Docket Number: 87-2121

Court Abbreviation: 6th Cir.