David Hudson v. Cindi Curtin , 371 F. App'x 607 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0201n.06
No. 08-1909
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
DAVID HUDSON, ) Mar 31, 2010
) LEONARD GREEN, Clerk
Petitioner-Appellant, )
)
v. )
) ON APPEAL FROM THE
CINDI CURTIN, Warden, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
Respondent-Appellee, ) DISTRICT OF MICHIGAN
)
MICHIGAN DEPARTMENT OF )
CORRECTIONS; PATRICIA ) OPINION
CARUSO, Director, MDOC; )
GOVERNER OF MICHIGAN, )
)
Respondents. )
_______________________________________)
Before: SILER, MOORE, and CLAY, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellant David Hudson appeals
the district court’s denial of his petition for a writ of habeas corpus. On appeal, Hudson argues that
the Michigan state courts unreasonably found that he did not have a constitutional right to present
during his defense a videotape of an alibi witness’s police interrogation and that his sentence was
not in violation of Blakely v. Washington, 542 U.S. 296 (2004). For the reasons stated below, we
AFFIRM the district court’s judgment.
I. BACKGROUND
On June 16, 2003, Hudson was charged in Michigan state court with one count of armed
robbery and one count of malicious destruction of a building causing less than $200 in damages. The
charges related to an incident on the night of April 18, 2003, in which Hudson allegedly robbed the
cashier of a local party-supply store at gunpoint and later damaged the cell in which he was being
held. During the trial, the state presented a considerable amount of evidence to the jury that included
(among other things):
- The testimony of the victim, who identified Hudson as the robber after reviewing
the security tapes,
- The testimony of Hudson’s parole officer, who identified the voice on the security
camera as being that of Hudson,
- The testimony of two individuals who claim that Hudson confessed to committing
the robbery,
- Testimony regarding various inculpatory statements Hudson allegedly made to
companions when stopped by the police, and
- The testimony of Hudson’s alleged accomplice (though this testimony
contradicted a prior statement).
As part of its case-in-chief, the defense presented two alibi witnesses, one of whom was
Hudson’s girlfriend, Melissa Worley. Worley testified that, on the day in question, she returned to
her home after work at about 5:00 p.m., talked with Hudson for about an hour and a half at her
house, dropped him off at the home of Katrina Kostrzewa sometime around 6:30 or 7:00 p.m., and
did not see Hudson for the rest of the evening. Furthermore, Kostrzewa testified that Hudson spent
the entire night with her, and that Kostrzewa’s home was approximately a thirty-five minute drive
from the crime scene.
The state tried to impeach Worley’s testimony in a number of ways. For instance, on cross-
examination, the prosecutor asked Worley whether she ever told a detective from the sheriff’s
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department that she actually went to her sister’s home around 4:00 p.m. and remained there until
8:00 p.m. Worley denied this, claiming that she visited her sister the following morning. The
prosecutor also asked whether Worley lied to the police when she and Hudson were stopped by the
police by falsely claiming that Hudson’s name was David Pike. This she admitted. Worley also
admitted that she was still dating Hudson, visited him regularly in prison, and had discussed his case
with him.
As part of its rebuttal, the state called officer John Robertson, the detective who had
interviewed Worley. He confirmed that Worley had told him that, on the day in question, she was
at her sister’s home from 4:00 p.m. until 8:00 p.m. On cross-examination, Hudson’s attorney sought
to introduce into evidence a copy of the videotape of Worley’s police interview. The trial judge
excused the jury and proceeded to watch the tape. The judge then asked Hudson’s attorney to
explain how the videotape was inconsistent with Robertson’s testimony. Hudson’s attorney admitted
that the videotape was not inconsistent, but argued that it was relevant to showing that Robertson
had an “intimidating” demeanor while interviewing Worley. Dist. Ct. Doc. 11-12 (Trial Tr. 10/28/03
(Vol. II) at 46). Therefore, Hudson’s attorney argued, the videotape would allow him to show that
Robertson “was intimidating [Worley] to come up with the answers she did.” Id. at 47. The
prosecution objected on the grounds that there were statements in the videotape that could be
unfairly prejudicial to Hudson, such as a reference to a polygraph examination1 and also reference
to the fact that an armed-robbery conviction could result in life imprisonment. The trial judge agreed
1
The record is unclear as to who took the polygraph examination or what the results were.
3
to exclude the videotape because of these statements2 and also because the videotape was not
inconsistent with Robertson’s testimony. Id. at 48. Hudson responded by offering to “waive any
matters that might be prejudicial to [Hudson] in that tape,” id., but the judge still refused to admit
it, explaining that:
“I don’t have to accept the waiver. . . . I can’t ignore the law and I won’t ignore it –
even with – and I appreciate Mr. Hudson’s waiver of that. But I am not going to have
this go up to the Court of Appeals saying what was going on in that courtroom.”
Id. at 49. The judge did, however, permit Hudson’s attorney to cross-examine Robertson regarding
“the types of things that he said to [Worley],” which Hudson’s attorney proceeded to do. Id. During
the cross-examination, Robertson denied making any intimidating statements, although he did admit
to telling Worley that she could be charged as an accessory if she lied.
The jury subsequently convicted Hudson on both counts. At the sentencing hearing, the trial
judge determined that the sentencing guidelines range for Hudson’s minimum sentence was between
126 and 420 months of imprisonment, based in part on the fact that Hudson was a fourth habitual
offender and also based on factual findings made at the sentencing hearing. The judge ultimately
sentenced Hudson to fifteen to forty years of imprisonment.
Hudson then appealed his case to the Michigan Court of Appeals. People v. Hudson, No.
252851, 2005 WL 659211 (Mich. Ct. App. Mar. 22, 2005) (unpublished opinion). Of the many
issues he raised on appeal, two are relevant to this case: he claimed that the exclusion of the
videotape of Worley’s interrogation violated his federal constitutional right to present a defense, and
2
The trial judge never specifically stated which statements in the videotape concerned her or
what kind of prejudice it was that she was trying to prevent. Rather, she simply referred to “some
of the statements made in [the videotape].” Doc. 11-12 (Trial Tr. 10/28/03 (Vol. II) at 48).
However, presumably she had the same concerns as the prosecutor—i.e., possible prejudice to
Hudson from the statements referring to the polygraph examination and the potential life sentence.
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he claimed that his sentence violated Blakely v. Washington, 542 U.S. 296 (2004), insofar as judge-
made factual findings raised his sentencing guidelines range. The court of appeals affirmed the
conviction. With respect to the first claim, it agreed with the trial judge that the videotape was
prejudicial to Hudson and yet was only “marginally relevant.” Hudson, 2005 WL 659211, at *4.
It further noted that Hudson could have elicited whatever information was on the videotape simply
by questioning Worley or by cross-examining Robertson. With respect to the Blakely claim, the
court relied on People v. Claypool, 684 N.W.2d 278 (Mich. 2004), in which the Michigan Supreme
Court found that Blakely did not apply to Michigan’s sentencing regime because, in Michigan, a
defendant’s maximum sentence is set by statute. Hudson, 2005 WL 659211, at *6; Claypool, 684
N.W.2d at 286 n.14. Hudson later appealed to the Michigan Supreme Court, which denied his
appeal. People v. Hudson, 703 N.W.2d 811 (Mich. 2005).
On December 27, 2006, Hudson filed this habeas action, again raising his right-to-present-a-
defense and Blakely claims, among others. On June 13, 2008, the district court denied Hudson’s
petition. The district judge later granted a certificate of appealability (“COA”) as to Hudson’s right-
to-present-a-defense claim, but not as to his Blakely claim. This court, however, subsequently
granted a COA as to the Blakely claim.
II. ANALYSIS
A. Standard of Review
“In a habeas corpus proceeding, this Court reviews a district court’s legal conclusions de
novo and its factual findings for clear error.” Smith v. Mitchell, 567 F.3d 246, 255 (6th Cir. 2009)
(internal quotation marks omitted), cert. denied., -- U.S. --, 130 S. Ct. 742 (2009). Furthermore,
because Hudson’s petition was filed after April 24, 1996, our analysis is governed by the
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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Evans v. Hudson, 575 F.3d
560, 564 (6th Cir. 2009). Under ADEPA:
An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). “Under the ‘contrary to’ clause [of § 2254(d)(1)], a federal habeas court may
grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme]
Court on a question of law or if the state court decides a case differently than [the Supreme] Court
has on a set of materially indistinguishable facts.” Terry Williams v. Taylor, 529 U.S. 362, 412-13
(2000). Furthermore, “[u]nder the ‘unreasonable application’ clause, a federal habeas court may
grant the writ if the state court identifies the correct governing legal principle from [the Supreme]
Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at
413. With respect to whether a state-court decision is unreasonable, “[t]he question . . . is not
whether a federal court believes the state court’s determination was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” Irick v. Bell, 565 F.3d 315, 320
(6th Cir. 2009) (internal quotation marks omitted).
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B. Hudson’s Right to Present a Defense
Hudson argues that the Michigan state courts unreasonably applied Supreme Court precedent
when they found that he did not have a constitutional right to offer the videotape of Robertson’s
interrogation of Worley into evidence. “Whether rooted directly in the Due Process Clause of the
Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth
Amendment the Constitution guarantees criminal defendants a meaningful opportunity to present
a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citations and internal quotation
marks omitted). At the same time, however, this right is not “unlimited,” as “state and federal
rulemakers have broad latitude under the Constitution to establish rules excluding evidence from
criminal trials.” United States v. Scheffer, 523 U.S. 303, 308 (1998). In particular, the right to
present a defense is unconstitutionally compromised only “by evidence rules that infring[e] upon a
weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed
to serve.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (internal quotation marks omitted);
Varner v. Stovall, 500 F.3d 491, 499 (6th Cir. 2007).
The trial judge’s exclusion of the videotape was in furtherance of state interests that were not
arbitrary. Although the videotape itself was not included in the record below, Hudson does not
dispute that the videotape contained at least one statement regarding a polygraph examination and
also a statement indicating that an armed-robbery conviction could result in life imprisonment.
Excluding polygraph results is a legitimate purpose given the questionable reliability of such results.
See Scheffer, 523 U.S. at 305 (holding that an absolute prohibition on polygraph evidence does not
deprive a defendant of her right to present a defense); Amunga v. Jones, 51 F. App’x 532, 540 (6th
Cir. 2002) (unpublished opinion) (“It cannot be said that [a] rule against polygraph testimony is
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arbitrary or disproportionate to the purpose of excluding unreliable evidence.”), cert. denied, 538
U.S. 1040 (2003). Furthermore, Michigan state courts could have reasonably concluded that the
state had an interest in preventing the jury from learning the maximum sentence to which Hudson
would be exposed if convicted, as this information could have caused the jury to render a verdict on
improper grounds. If the videotape was extremely probative, then perhaps this prejudice would be
small by comparison. Nonetheless, Hudson conceded at trial that Robertson’s testimony was not
inconsistent with the videotape, meaning the tape would have had relatively little impeachment
value.
Hudson notes that it was he who sought to introduce the videotape, making strange the
decision to exclude it on the grounds that it might unfairly prejudice him, particularly when he
explicitly offered to waive any prejudice. A trial judge’s responsibility for ensuring a fair trial and
preserving the integrity of the proceedings in her courtroom, however, extends beyond the wishes
and motions of the litigants. Cf. United States v. Lattner, 385 F.3d 947, 960 (6th Cir. 2004) (“A
district court judge has the authority to control the courtroom proceedings . . . and both the
prosecution and defense [are] subject to the court’s intercession in the conduct of examination of
witnesses and the presentation of evidence when warranted.”), cert. denied, 543 U.S. 1095 (2005).
If the trial judge here were concerned that the introduction of the videotape would obstruct the jury’s
task of discerning the truth, then her decision to exclude the videotape despite Hudson’s waiver
would not be arbitrary. See Amunga, 51 F. App’x at 540 n.8 (suggesting that a defendant cannot
waive the kind of prejudice created by the admission of polygraph testimony as this goes to “the
jury’s ‘core function of making credibility determinations in criminal trials’” (quoting Scheffer, 523
U.S. at 312-13)).
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The trial judge’s ruling also was not “disproportionate” to the purpose of excluding unfairly
prejudicial material. Normally, an evidentiary rule is disproportionate when it excludes a broad
category of evidence without allowing for an individualized determination. See, e.g., Rock v.
Arkansas, 483 U.S. 44, 62 (1987) (holding that a per se rule excluding hypnotically refreshed
testimony is unconstitutional); Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (“[T]he hearsay
rule may not be applied mechanistically”). Here, by contrast, the trial judge viewed the videotape
and decided that its probative value was outweighed by its risk of unfair prejudice. Such an
individualized determination avoids the kind of “mechanistic” evidentiary ruling with which courts
have traditionally been concerned. See Alley v. Bell, 307 F.3d 380, 395 (6th Cir. 2002) (concluding
that the exclusion of the videotape defendant sought to offer into evidence was proper because the
judge “made an individual determination—after watching the videos and based on the facts specific
to [the petitioner’s] case—that the likely prejudice from admitting the tapes outweighed their
probative value”), cert. denied, 540 U.S. 839 (2003). Hudson argues, however, that the trial judge
should have allowed the videotape to be edited because the prejudicial remarks were isolated.
Appellant Br. at 23-24. The trial judge, however, specifically asked Hudson’s attorney whether he
“want[ed] the entire tape admitted,” to which he replied “Yes.” Doc. 11-12 (Trial Tr. 10/28/03 (Vol.
II) at 48) (emphasis added). Thus, not only did Hudson fail to ask that the videotape be redacted,
see Amunga, 51 F. App’x at 539 n.6 (refusing to consider the possibility of admitting only portions
of a videotape when “[d]efense counsel did not make such a motion”), but also Hudson affirmatively
indicated that he did not want the tape redacted.3
3
Hudson also argues that the trial judge could have mitigated any prejudice with a curative
instruction. Appellant Br. at 23-24. Again, however, it does not appear that Hudson’s attorney ever
proposed this idea.
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Finally, the exclusion of the videotape did not infringe upon Hudson’s “weighty interest[s].”
Scheffer, 523 U.S. at 308. This factor normally requires that the exclusion “undermine[]
fundamental elements of the defendant’s defense.” Id. at 315. The trial judge’s exclusion of the
videotape did not have this effect. As discussed above, the videotape’s relevance was marginal, as
it was not inconsistent with Robertson’s testimony. Furthermore, as the state court of appeals
correctly noted, Hudson still had other means of probing what occurred during Worley’s
interrogation, such as by questioning either Worley or Robertson. See United States v. Lucas, 357
F.3d 599, 606 (6th Cir. 2004) (concluding that the exclusion of evidence was not a constitutional
violation when other means of eliciting the information were available). Indeed, Robertson admitted
that he told Worley that she could be charged as an accessory, which presumably substantiated
Hudson’s theory that Robertson intimidated her. Moreover, even if Worley’s testimony was entirely
discredited, there was still the testimony of Hudson’s other alibi witness, Kostrzewa, whose
credibility Robertson’s testimony did not implicate. Taking all of this into consideration, we
conclude that, even if the videotape might have helped Hudson, there is no indication that its
exclusion undermined Hudson’s defense.
Therefore, the Michigan state courts did not unreasonably find that Hudson lacked a
constitutional right to introduce the videotape of Worley’s interrogation into evidence.4
4
Even if the exclusion of the videotape were erroneous, we cannot grant habeas relief unless
the exclusion “‘had substantial and injurious effect or influence in determining the jury’s verdict.’”
Ferensic v. Birkett, 501 F.3d 469, 481 (6th Cir. 2007) (quoting Brecht v. Abrahamson, 507 U.S. 619,
631 (1993)). Given that Worley’s testimony was already discredited by her admission that she lied
to the police, and in light of the otherwise voluminous evidence of Hudson’s guilt, any error on the
trial court’s part did not have a “substantial and injurious effect.”
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C. Hudson’s Blakely Claim
Hudson next argues that his sentence was unconstitutional because his sentencing guidelines
range was based upon findings of fact not submitted to a jury. In Apprendi v. New Jersey, 530 U.S.
466 (2000), the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. In Blakely v. Washington,
542 U.S. 296 (2004), the Court relied on Apprendi in invaliding Washington State’s sentencing
regime insofar as state law authorized a trial judge to depart from the ordinary sentencing range if
she found that the defendant acted with “deliberate cruelty.” Blakely, 542 U.S. at 298. The Blakely
Court clarified that the “statutory maximum” to which Apprendi referred was “the maximum
sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted
by the defendant.” Id. at 303.
The statutory maximum amount of time for which Hudson could be imprisoned for his crime
was life. Mich. Comp. Laws § 769.12(1)(a). The trial judge was required to impose an
“indeterminate sentence” whereby she specified the minimum amount of time that Hudson would
have to spend in prison before being eligible for parole and also his mandatory release date (if any).
Mich. Comp. Laws § 769.12(2). The guidelines determined the range from which the trial judge
could select Hudson’s minimum sentence—that is, the minimum amount of time that Hudson must
serve before being eligible for parole. See Mich. Comp. Laws §§ 777.61-69 (sentencing grids). The
mandatory release date was not dependent upon any factual findings.
Hudson argues that his sentence is unconstitutional because judge-made factual findings
raised his guideline range and thereby raised the range of parole-eligibility dates from which the trial
11
judge could have selected. In other words, Hudson contends that judge-made factual findings gave
the trial judge the option of imposing a higher minimum sentence than otherwise would have been
possible. In Harris v. United States, 536 U.S. 545 (2002), however, the Supreme Court, in a
plurality opinion, explained that Apprendi did not apply to mandatory-minimum sentences. Harris,
536 U.S. at 565-66. This distinction between minimum and maximum sentences was again
emphasized in Blakely. 542 U.S. at 304-05. Hudson’s case is arguably distinguishable because, as
Hudson points out, under Michigan’s unique sentencing scheme, the trial judge has no control over
the actual amount of time a defendant will spend in prison, but only establishes a minimum sentence
which acts as a boundary on the parole board’s discretion. We have previously determined this
distinction to be irrelevant, however. See Arias v. Hudson, 589 F.3d 315, 317-18 (6th Cir. 2009).
Indeed, a panel of this circuit recently found a similar Michigan sentence to be constitutional under
Blakely, reasoning that the factual findings only affected the “minimum sentence applicable . . . as
part of an indeterminate sentencing scheme.” Montes v. Trombley, ---F.3d ---, 2010 WL 935369,
at *7 (6th Cir. Mar. 17, 2010); see also Chontos v. Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009).5
We note, as we did in Arias, that the Supreme Court’s grant of certiorari in United States v.
O’Brien, 130 S. Ct. 49 (2009), may signal a shift in the Court’s jurisprudence with respect to
minimum sentences. See Arias, 589 F.3d at 318. However, we also noted in Arias that it is unlikely
that any resulting change in the law would be retroactive. Id. Thus, we see no need to defer ruling
in this case.
5
Both Montes and Chontos were careful to avoid ruling on Blakely’s applicability to
Michigan’s rules governing “intermediate sanctions.” Montes, 2010 WL 935369, at *7; Chontos,
585 F.3d at 1002 n.3. This caveat is irrelevant for our purposes, however, as Hudson was not
eligible for intermediate sanctions. See Mich. Comp. Laws § 769.34(4)(a).
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III. CONCLUSION
For the reasons stated above, we AFFIRM the district court’s denial of Hudson’s petition
for a writ of habeas corpus.
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