Aaron Byrd v. Jan Trombley

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0726n.06
No. 08-2319 FILED
Nov 05, 2009
UNITED STATES COURT OF APPEALS
LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
AARON BYRD, )
)
Petitioner-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
JAN TROMBLEY, Warden, ) EASTERN DISTRICT OF MICHIGAN
)
Respondent-Appellant. )
)
)
Before: MOORE, GIBBONS, and FRIEDMAN,* Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. The State of Michigan appeals the district
court’s grant of the writ of habeas corpus to petitioner-appellee Aaron Thomas Byrd following his
conviction and appeal in state court for criminal sexual conduct involving a victim under the age of
thirteen. Finding that the state courts had unreasonably applied clearly established federal law
defining ineffective assistance of counsel, the district court held that Byrd’s counsel provided
ineffective assistance on three grounds: (1) failing to object to the introduction of, and introducing
himself, Byrd’s prior conviction for aiding and abetting forgery, which was arguably inadmissible
under Michigan Rule of Evidence 609(c); (2) failing to object to the prosecution’s attempt to
characterize Byrd during closing argument using “bad man” evidence; and (3) failing to present
expert testimony to counter the prosecution’s experts. For the following reasons, we affirm.
*
The Honorable Daniel M. Friedman, Senior Circuit Judge of the United States Court of
Appeals for the Federal Circuit, sitting by designation.
I.
The facts in this case arise from Byrd’s third trial – the first two resulted in hung juries.
Byrd’s stepdaughter, T.R.,1 was seven years old when the alleged assault took place. According to
T.R., Byrd would occasionally shower with her in the mornings after her mother left the house. T.R.
testified that, on one occasion, she accompanied Byrd into the bedroom he shared with her mother,
where he sexually assaulted her by touching her genitalia and having vaginal intercourse with her.
After T.R.’s allegations, Byrd informed a doctor that T.R. had a yellow discharge and had
been touched in her genital area. Upon the doctor’s recommendation, Byrd and T.R.’s mother
reported the allegations. The State of Michigan brought charges against Byrd.
During the trial, prosecutors called as witnesses T.R.; Dr. Randy Haugen, a psychologist; and
Dr. Steven Guertin, a pediatrician. During her testimony, T.R. “would often freeze, blank out” and
pause for long periods of time while speaking. Dr. Haugen testified that T.R.’s responses and
reactions on the witness stand were consistent with someone who had suffered from sexual abuse.
Defense counsel did not present any expert testimony but was able to elicit statements from Dr.
Haugen that T.R.’s responses could also be consistent with someone who was lying.
Dr. Guertin testified that when he examined T.R., he noticed a very deep, v-shaped notch in
her hymen. Dr. Guertin determined that the injury was anywhere from one week to one year old and
was consistent with genital-to-genital contact. While he acknowledged that there were other possible
1
In accordance with Federal Rule of Criminal Procedure 49.1(a), we redact the name of a
minor and will refer to her by her initials.
2
causes for the injury, including an accident, Dr. Guertin testified that the most common cause was
sexual contact.
Byrd testified on his own behalf at trial and denied all allegations of sexual assault against
him. He acknowledged that he occasionally helped T.R. rinse her hair when she was showering and
her mother was not there, but he denied showering with her. Byrd testified that T.R. blamed him for
the assault because he spanked her for lying on an unrelated occasion. According to Byrd, T.R.
apologized to him after she made the allegations. He further explained that T.R.’s injury was likely
caused by a bicycle accident. Defense counsel introduced Byrd’s prior conviction for aiding and
abetting forgery in 1989, which the prosecution then referred to during closing arguments.
On November 8, 2002, Byrd was convicted by a jury of first degree criminal sexual conduct
involving a victim under the age of thirteen, in violation of Michigan Compiled Laws §
750.520b(1)(A). On December 5, 2002, he was sentenced to a term of ten to twenty-five years’
imprisonment. Byrd appealed his conviction to the Michigan Court of Appeals and filed a motion
for a new trial in the trial court, alleging ineffective assistance of counsel. After an evidentiary
hearing, the trial court denied Byrd’s motion for a new trial. The Michigan Court of Appeals
affirmed Byrd’s conviction, and the Michigan Supreme Court denied Byrd’s subsequent application
for leave to appeal.
Byrd filed a petition for a writ of habeas corpus in the United States District Court for the
Eastern District of Michigan, alleging ineffective assistance of counsel on the basis of counsel’s 1)
failure to object to the introduction of Byrd’s ten-year-old forgery conviction; 2) failure to object to
the prosector’s use of the conviction as “bad man” evidence during closing arguments; and 3) failure
3
to investigate and present an expert witness to counter the prosecution’s witnesses. Adopting the
magistrate judge’s report and recommendation, the district court granted the petition for the writ of
habeas corpus based on all three grounds of ineffective assistance of counsel. The State appealed
to this court, claiming that the district court erred by granting Byrd habeas relief.
II.
We review de novo a district court’s decision to grant a petition for the writ of habeas corpus
based on ineffective assistance of counsel. See Avery v. Prelesnik, 548 F.3d 434, 436 (6th Cir.
2008). We review findings of fact by the district court for clear error unless the district court’s
factual determinations are based only on a review of the state court transcript, in which case they are
reviewed de novo. See Dando v. Yukins, 461 F.3d 791, 796 (6th Cir.2006). Unless they are rebutted
by clear and convincing evidence, we presume factual determinations by a state court to be correct.
28 U.S.C. § 2254(e)(1).
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a district
court may only grant a writ of habeas corpus to a state prisoner when: (1) the state court’s decision
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) the state court’s decision “was based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceedings.” 28 U.S.C. § 2254(d).
Under the “contrary to” clause, a federal court may grant habeas relief if the state court
reaches a decision opposite to that reached by the Supreme Court on a question of law, or if the state
court rules differently than the Supreme Court on materially indistinguishable facts. See Boykin v.
4
Webb, 541 F.3d 638, 642 (6th Cir. 2008) (citing Williams v. Taylor, 529 U.S. 362, 412-13 (2000)
(O’Connor, J. for the Court)). Under the “unreasonable application” clause, a federal court may
grant the writ if the state court identifies the correct legal rule from Supreme Court precedent but
unreasonably applies the rule to the facts in the petitioner’s case. Williams, 529 U.S. at 413.
Furthermore, the district court cannot issue the writ under the “unreasonable application” clause
merely because it concludes that the state court incorrectly or erroneously applied clearly established
federal law; it may only grant habeas relief when the erroneous application is also objectively
unreasonable. See Rompilla v. Beard, 545 U.S. 374, 404 (2005). In analyzing whether a state court
decision is an “unreasonable application” of Supreme Court precedent, we must base our decision
solely on the holdings of the Supreme Court, not its dicta or the holdings of courts of appeals.
Williams, 529 U.S. at 412 (O’Connor, J. for the Court).
In order to obtain habeas relief, Byrd must thus demonstrate that the state court’s decision
that his counsel was not ineffective was contrary to, or an unreasonable application of, Supreme
Court precedent. Byrd’s claim rests squarely on the Supreme Court’s decision in Strickland v.
Washington, 466 U.S. 668 (1984), which created a two-part test for determining whether counsel’s
assistance was ineffective:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
Id. at 687. To demonstrate ineffectiveness, Byrd “must show that counsel’s representation fell below
an objective standard of reasonableness.” Id. at 688. To demonstrate prejudice, Byrd “must show
5
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Smith v. Mitchell, 567 F.3d 246, 257 (6th Cir.
2009) (quoting Strickland, 466 U.S. at 694).
In this case, the State appeals the district court’s determination that Byrd was denied his
constitutionally guaranteed right to effective assistance of counsel when his lawyer: (1) introduced
and failed to object to Byrd’s prior conviction for aiding and abetting forgery; (2) failed to object to
the prosecution’s use of “bad man” character evidence during closing arguments; and (3) failed to
present expert testimony countering the experts proffered by the prosecution. We find that habeas
relief was properly granted on the first claim. We need not address whether the district court
properly granted habeas relief on claims two and three.
“The proper measure of attorney performance remains simply reasonableness under
prevailing professional norms.” Strickland, 466 U.S. at 688. “Prevailing norms of practice as
reflected in American Bar Association standards . . . for Criminal Justice . . . are guides to
determining what is reasonable. . . .” Id.; see also Franklin v. Anderson, 434 F.3d 412, 429 (6th Cir.
2006). According to the American Bar Association (“ABA”) Criminal Justice Section Standards,
defense counsel should “inform[] himself or herself fully on the facts and the law” before advising
the accused. ABA Standards for Criminal Justice 4-5.1(a) (3d ed. 1993); see also United States v.
Williams, 358 F.3d 956, 962 (D.C. Cir. 2004) (applying ABA Criminal Justice Section Standard 4-
5.1(a) as a measure of professional norms in an ineffective assistance of counsel claim).
Furthermore, “[d]efense counsel should not knowingly and for the purpose of bringing inadmissible
6
matter to the attention of the judge or jury offer inadmissible evidence. . . .” ABA Standards for
Criminal Justice 4-7.5(b). The question is thus whether defense counsel reasonably informed
himself as to the admissibility of Byrd’s prior forgery conviction before introducing it at trial and
whether Byrd has overcome the strong presumption that the act in question was part of “sound trial
strategy.” Strickland, 466 U.S. at 689.
Michigan Rule of Evidence 609(a)(1) allows the admission of prior convictions for “crime[s]
contain[ing] an element of dishonesty or false statement.” Because Byrd’s prior conviction for
forgery contains an element of dishonesty or false statement, it would normally be admissible at his
trial. However, Michigan Rule of Evidence 609(c) (“Rule 609(c)”) provides that “[e]vidence of a
conviction . . . is not admissible if a period of more than ten years has elapsed since . . . the release
of the witness from the confinement imposed for that conviction. . . .” Therefore, Byrd’s prior
forgery conviction was admissible at trial to challenge Byrd’s credibility only if Byrd’s release from
confinement occurred within ten years of the trial testimony. Mich. R. Evid. 609(c). Byrd was
released from prison on October 7, 1992, after serving three years’ imprisonment for aiding and
abetting forgery. Byrd testified in his trial for criminal sexual assault on November 7, 2002, ten
years and one month after his release from prison. Had Byrd’s attorney researched the facts and law
concerning Byrd’s prior conviction, he likely would have objected to the introduction of the prior
conviction as inadmissible, and certainly would not have introduced the conviction himself. Byrd’s
attorney admitted during the Ginther hearing2 that raising the conviction himself was an “oversight”
2
In Michigan, a Ginther hearing is an evidentiary hearing regarding a claim of ineffective
assistance of counsel. See People v. Ginther, 212 N.W.2d 922, 924 (Mich. 1973).
7
and not part of a trial strategy. He further acknowledged that the prior conviction is “something [he]
normally would have objected to.” (Ginther Hearing Tr. at 7.)
The State argues that although Byrd was released from prison in 1992, over ten years before
the trial, he was restricted by an electronic tethering system, requiring him to be at home between
midnight and 4:00 a.m., until 1994. No Michigan court has ruled directly on the issue of whether
electronic tethering constitutes “confinement” for purposes of Rule 609(c). Noting the lack of state
law on the issue, the Michigan trial court correctly determined that a dispositive resolution of the
meaning of confinement was unnecessary at that stage. Instead, the state trial court properly
identified the relevant issue as whether defense counsel was ineffective by failing to raise the
possibility that the evidence could be inadmissible. The trial court then determined that the lack of
a definitive answer on the meaning of confinement in appellate precedent justified Byrd’s counsel’s
failure to raise the issue during trial:
Given the lack of clarity and the apparent absence of any appellate law on this issue,
can it be said that trial defense counsel’s failure to raise this issue constitutes
incompetence - performance below the standard expected of a criminal attorney?
This Court concludes it does not, particularly when defendant’s present counsel, even
while arguing for a finding of trial counsel’s incompetence, acknowledges that the
law doesn’t provide any definitive answer to the question.
People v. Byrd, No. 01-2857 FC, slip op. at 6 (Mich. Cir. Ct. Sep. 25, 2003). On appeal, the
Michigan Court of Appeals upheld the trial court’s determination, concluding that “it was arguable
that the evidence could have been admitted over a defense objection. Defense counsel’s performance
cannot be deemed deficient for failing to advance a novel legal argument.” People v. Byrd, No.
245624, 2004 WL 1801036, at *4 (Mich. Ct. App. Aug. 12, 2004) (emphasis added).
8
We find that an argument against the admissibility of a prior conviction is anything but novel.
Indeed, the specific issue of whether release on a tether constitutes “confinement” under Michigan
law is itself far from novel. As the Michigan Court of Appeals recognized, a long line of Michigan
cases in other contexts has “interpreted the term ‘confinement’ narrowly, and [has] determined that
placement on the tether program is not the equivalent of confinement in prison or jail.” Id. at *2
(citing People v. Britt, 509 N.W.2d 914 (Mich. Ct. App. 1993); People v. Reynolds, 489 N.W.2d 128
(Mich. Ct. App. 1992); People v. Smith, 489 N.W.2d 135 (Mich. Ct. App. 1992); People v. Wagner,
485 N.W.2d 133 (Mich. Ct. App. 1992); People v. Granquist, 454 N.W.2d 207 (Mich. Ct. App.
1990)). Furthermore, all federal courts to have addressed “confinement” under the analogous
Federal Rule of Procedure Rule 609(b) (“Rule 609(b)”)3 have read the rule narrowly and
unanimously concluded that “confinement” is limited to actual imprisonment. See, e.g., United
States v. Nguyen, 542 F.3d 275, 279 (1st Cir. 2008) (non-jail sentence was not confinement and thus
the prior conviction was inadmissible); United States v. Rogers, 542 F.3d 197, 198 (7th Cir. 2008)
(“We conclude that probation does not constitute ‘confinement’ within the meaning of Rule
609(b).”); see also United States v. Wallace, 848 F.2d 1464, 1472-73 (9th Cir. 1988) (holding that
reconfinement pursuant to revocation of parole based upon a non-substantively related charge was
not “confinement” for purposes of Rule 609(b)).
3
The pertinent text of Rule 609(b) states: “Evidence of a conviction under this rule is not
admissible if a period of more than ten years has elapsed since the date of the conviction or of the
release of the witness from the confinement imposed for that conviction, whichever is the later date,
unless the court determines, in the interests of justice, that the probative value of the conviction
supported by specific facts and circumstances substantially outweighs its prejudicial effect.” Fed.
R. Evid. 609(b) (emphasis added).
9
Thus, at the very least, Byrd had a strong argument that the prior conviction was
inadmissible. Byrd is therefore not alleging ineffective assistance of counsel based on a novel
reading of the relevant law or a fanciful argument that counsel should have raised at trial. His claim
is that counsel was ineffective for introducing a prior conviction that counsel should have been
attempting to suppress. As noted above, there is significant Michigan case law, as well as relevant
federal law, to suggest that confinement under Michigan Rule of Evidence 609 should only refer to
the period of incarceration and not tethering. While we recognize that the resolution of this legal
issue is for the Michigan courts to decide, we find that defense counsel’s performance was deficient
because he introduced and failed to object to the previous conviction despite its potential
inadmissibility. See Glenn v. Sowders, No. 85-5754, 1986 WL 18475, at *3 (6th Cir. Dec. 8, 1986)
(“Because petitioner’s prior . . . conviction was not admissible, defense counsel’s decision to
disclose the conviction falls outside the wide range of professionally competent assistance.” (internal
quotation marks and citation omitted)).4
4
We note that the record indicates that Byrd’s attorney may have been strategically
introducing the conviction himself before the prosecution could use it to discredit Byrd:
Q. . . . Were you convicted of something?
A. Yes, I was.
Q. What were you convicted of?
A. Convicted of aiding and abetting forgery.
Q. All right. When was that?
A. In September, of ‘89.
Q. Were you guilty of that?
A. Yep, I knew that I was aiding it.
Q. Did you plead to it?
A. We pled guilty.
Q. You pled guilty because you were guilty?
A. I was guilty. . . .
10
In order to obtain habeas relief for ineffective assistance of counsel under Strickland, Byrd
must show not only that defense counsel’s performance was deficient but also that Byrd was
prejudiced by counsel’s deficient performance. Strickland, 466 U.S. at 687; Mason v. Mitchell, 543
F.3d 766, 780 (6th Cir. 2008). The standard set forth in Strickland for prejudice sufficient to warrant
relief for ineffective assistance of counsel is a middle ground between two extremes. Strickland, 466
U.S. at 693-94. The standard does not require a showing that it is more likely than not that the
outcome of the case would have been different had counsel provided effective assistance. Id. at 694.
However, the petitioner cannot simply show that counsel’s error had “some conceivable effect on
the outcome. . . .” Id. at 693. Instead, the Strickland standard for prejudice requires that Byrd
demonstrate a reasonable probability sufficient to undermine the verdict. Id. at 694.
Q. This accusation that you molested a girl under the age of
13, you pled not guilty.
A. Yes, I did.
Q. Is that because you are not guilty?
A. I am not guilty.
(Trial Tr. Vol. I at 115.) Byrd’s attorney seems to have been attempting to present his client to the
jury as a credible man who pleads guilty when he is guilty, and who would have pled guilty in this
instance if he were in fact guilty. This tactic of reducing the negative implication of a prior
conviction by framing it first themselves, in the light most favorable to the client, is a valid and
effective tool of criminal defense attorneys. The application of such a mitigation strategy in this
case, however, would have been unnecessary had Byrd’s attorney known the relevant law. Instead
of attempting to reduce the impact of the prior conviction on his client’s credibility, Byrd’s attorney
should have been vehemently arguing against the prior conviction’s admissibility as evidence in the
first place. Failing to object to potentially inadmissible evidence, even if part of a defense plan, does
not shield counsel from a claim of ineffective assistance based on “strategy.” See Martin v. Rose, 744
F.2d 1245, 1249 (6th Cir. 1984) (“[E]ven deliberate trial tactics may constitute ineffective assistance
of counsel if they fall ‘outside the wide range of professionally competent assistance.”’ (quoting
Strickland, 466 U.S. at 690)); James v. United States, 217 F. App’x 431, 436 (6th Cir. 2005).
11
Here, we believe that there is a reasonable probability that, but for counsel’s introduction and
failure to challenge the admissibility of Byrd’s forgery conviction, the jury would have found Byrd
not guilty. The jury’s verdict of whether Byrd was guilty of criminal sexual assault depended almost
entirely on whose version of the facts the jurors believed. While both sides presented testimony
about the relationship between T.R. and Byrd and the events prior to and after the alleged assault,
the only evidence that Byrd committed a crime was T.R.’s testimony. Likewise, the only direct
evidence presented that Byrd did not commit the crime was his own testimony at trial. Because the
outcome turned on the jury’s determination of whose testimony was more credible, there is a
reasonable probability that Byrd’s prior conviction affected the jury’s opinion of his credibility and,
accordingly, the verdict. See, e.g., United States v. Sims, 588 F.2d 1145, 1150 (6th Cir. 1978)
(holding that, when a previous trial had resulted in a hung jury and the defendant’s “credibility was
essentially the whole case,” the introduction of defendant’s prior convictions discredited defendant’s
testimony and led to a guilty verdict). Thus, there is a reasonable probability that defense counsel’s
introduction of, and failure to object to, Byrd’s prior conviction – when credibility was essentially
Byrd’s entire defense – affected the outcome of the trial. As the two prior hung juries indicate, the
case before the jury was extremely close. We therefore find that Byrd was prejudiced by counsel’s
deficient performance and that the Michigan courts’ decision to the contrary was an unreasonable
application of Supreme Court precedent. See Rompilla, 545 U.S. at 404. Accordingly, we affirm
the district court’s grant of habeas relief to Byrd on the ground that counsel provided ineffective
assistance by introducing and failing to object to Byrd’s prior conviction as evidence.
III.
12
For the foregoing reasons, we affirm the district court’s grant of habeas corpus to Byrd.
Consistent with the district court’s order, the state of Michigan has 120 days from the issuance of
our mandate to either retry or release Byrd.
13