Brown v. McKee , 231 F. App'x 469 ( 2007 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 07a0573n.06
Filed: August 10, 2007
No. 04-2272
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MICHAEL ALEXANDER BROWN, )
)
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
KENNETH McKEE, Warden, ) EASTERN DISTRICT OF MICHIGAN
)
Respondent-Appellee. )
) OPINION
)
Before: GUY, BATCHELDER, and GILMAN, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. Michael Alexander Brown appeals from the
denial of his petition for a writ of habeas corpus. In 1998, Brown was convicted by a Michigan jury
of second-degree murder, two counts of assault with intent to commit murder, and one count of
possession of a firearm during the commission of a felony. He is presently serving a life sentence
for the murder conviction, concurrent terms of 50 to 100 years for each assault conviction, and two
years for the firearm conviction that are to be served consecutively to the prior sentences.
After unsuccessful appeals in the Michigan court system, Brown filed a petition for a writ
of habeas corpus in federal district court. The district court denied Brown’s petition on the merits,
despite the State’s argument that many of the claims were unexhausted. This court granted a
No. 04-2272
Brown v. McKee
Certificate of Appealability on all of Brown’s claims. For the reasons set forth below, we AFFIRM
the judgment of the district court.
I. BACKGROUND
A. Factual history
On the morning of January 26, 1997, Brown, Carl Johnson, and Harvey Witcher were sitting
in Witcher’s Cadillac on a street in Detroit. Johnson and Witcher had been smoking heroin and
crack cocaine since the previous evening. Brown had consumed white wine and Champale, a malt
liquor beverage. A handgun and a shotgun were present in the car. At some point in the early
morning, Brown and Witcher struggled over the handgun and Johnson was fatally shot. Witcher was
shot in the hip as he fled from the scene. Brown drove the Cadillac to pick up his eight-year-old
daughter from Witcher’s house. He then drove back to the vicinity of the shooting. Brown’s own
car, a white Chevrolet Beretta, was parked nearby. Inside was a loaded shotgun with blood running
down the barrel. Johnson was found lying face-down in the street where the shootings had occurred.
Two Detroit police officers called to the scene pursued Brown and confronted him when he
and his daughter exited the Cadillac and began walking away. There was a factual dispute at trial
as to whether Brown had a gun when he got out of the car and whether he shot at the police officers.
No gun was ever recovered. During the encounter between Brown and the police, one of the officers
shot Brown in the left arm. Brown and his daughter attempted to flee, running in different directions.
The police arrested Brown in the area at approximately 7:30 a.m. They also located and took
custody of his daughter.
-2-
No. 04-2272
Brown v. McKee
Brown was treated at a Detroit hospital for the gunshot wound to his arm. From there, he
was taken to the Detroit Police Department, where he was questioned. He spoke with a police
officer in an unrecorded session but refused to sign a written version of his statement. His daughter
was also questioned, without either of her parents present, prior to being released. Brown was held
for four days before being arraigned.
B. Procedural history
In 1998, a Michigan jury found Brown guilty of one count of second degree murder, two
counts of assault with intent to commit murder, and one count of possessing a firearm during the
commission of a felony. Brown appealed as of right to the Michigan Court of Appeals, raising eight
claims, all of which were denied as meritless. See People v. Brown, No. 212123, 2001 WL 718607
(Mich. Ct. App. June 26, 2001) (per curiam). Proceeding pro se, Brown then filed a delayed
application for leave to appeal with the Michigan Supreme Court, raising six claims. This
application was denied on February 4, 2002. He filed no state postconviction proceedings.
Brown filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on February
3, 2003. In his habeas petition, Brown requested an evidentiary hearing and reversal of his
state-court convictions. The magistrate judge assigned to the case submitted a 64-page Report and
Recommendation in June of 2004. He concluded that none of Brown’s claims had merit, without
first determining whether Brown had exhausted all of the claims in state court. Brown filed timely
objections to the magistrate judge’s Report and Recommendation. In September of 2004, the district
court overruled Brown’s objections and denied Brown’s petition for a writ of habeas corpus.
-3-
No. 04-2272
Brown v. McKee
Shortly thereafter, Brown filed a notice of appeal, which the district court construed as a
motion for a Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253. It denied the motion
in toto. Brown then sought a COA from this court on all of the claims he raised below, as well as
two additional issues. In May of 2005, a judge of this court granted Brown’s motion for a COA as
to all of the issues raised and ordered that counsel be appointed to represent him. Brown v. McKee,
No. 04-2272 (6th Cir. May 23, 2005) (order granting COA and ordering appointment of counsel).
On appeal, however, Brown has focused his argument on his claims of ineffective assistance
of counsel and prosecutorial misconduct. He seeks to have his case remanded with instructions to
vacate his convictions. In the alternative, he requests an evidentiary hearing on his
ineffective-assistance-of-counsel claim. He specifically argues that his trial counsel provided
ineffective assistance in not moving to suppress a custodial statement attributed to Brown, and that
prosecutorial misconduct so tainted the state-court trial proceedings as to render them fundamentally
unfair.
Although Brown raised numerous other issues in his state-court appeals and in his petition
for a writ of habeas corpus before the district court, he has not briefed them on appeal and, for the
reasons stated in the magistrate judge’s well-reasoned Report and Recommendation to the district
court, they are meritless. We will therefore concentrate our analysis on the two issues briefed by
Brown.
II. ANALYSIS
A. Standard of review
-4-
No. 04-2272
Brown v. McKee
In an appeal from a denial of habeas relief, we review a district court’s legal conclusions de
novo, but will not set aside the court’s factual findings unless they are clearly erroneous. Hill v.
Hofbauer, 337 F.3d 706, 710 (6th Cir. 2003). A federal court can reach the merits of a habeas
petition without first determining if the claims raised are procedurally defaulted where the grounds
for relief are meritless. 28 U.S.C. § 2254(b)(2); see also Cain v. Redman, 947 F.2d 817, 820 (6th
Cir. 1991). Because Brown filed his petition for habeas relief in 2003, we review it under the
provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
104-132, 110 Stat. 1214. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). AEDPA provides that
a federal court
may not grant a writ of habeas to a petitioner in state custody with respect to any
claim adjudicated on the merits in state court unless (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” . . . 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.”
Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002) (quoting 28 U.S.C. § 2254(d)).
A state-court decision is considered “contrary to . . . clearly established Federal law” if it is
“diametrically different, opposite in character or nature, or mutually opposed.” Williams v. Taylor,
529 U.S. 362, 405 (2000) (emphasis and quotation marks omitted). Alternatively, to be found an
“unreasonable application of . . . clearly established Federal law,” the state-court decision must be
“objectively unreasonable” and not simply erroneous or incorrect. Id. at 409-11.
AEDPA requires federal courts to accord a high degree of deference to the findings of fact
made by the state courts. As stated in McAdoo v. Elo, 365 F.3d 487 (6th Cir. 2004),
-5-
No. 04-2272
Brown v. McKee
[a] federal court is to apply a presumption of correctness to state court findings of
fact for habeas corpus purposes unless clear and convincing evidence is offered to
rebut this presumption. The appeals court gives complete deference to the federal
district court's and state court's findings of fact supported by the evidence.
Id. at 493-94 (citations omitted).
B. Ineffective assistance of counsel
Brown contends that he was denied his Sixth Amendment right to the effective assistance of
counsel when his appointed trial attorney failed to move to suppress a custodial statement that was
attributed to Brown. The statement was taken by the police while Brown was being held at the
Detroit Police Department on the day of his arrest.
According to Brown, the police did not advise him of his Miranda rights. He also contends
that he asked for a lawyer, but that his request was ignored. Brown further argues that when he
asked about his daughter’s whereabouts, the police threatened to “shuffle” her through the juvenile
system if Brown did not cooperate with them. At that point, Brown says that he “submitted” to
police questioning. The police did not record the interrogation. They instead created a written
statement for Brown to sign. Brown contends that the police “interpolated” additional statements
that he had not made into the written document. Rather than sign the statement, Brown claims that
he wrote on the top of each page that he had requested to have an attorney present. The statement
produced by the State during discovery bears no such markings.
Brown’s account of the circumstances surrounding the statement is disputed by the State.
Detective Collins testified at trial that he did inform Brown of his Miranda rights, and did nothing
-6-
No. 04-2272
Brown v. McKee
to coerce Brown’s statement. He further denied that Brown requested an attorney or asked to make
a phone call.
Brown’s appointed counsel did not move to suppress Brown’s statement prior to or during
trial. The statement was read into evidence during Detective Collins’s testimony. According to the
statement, Brown recounted that he was in the back seat of a car driven by Witcher on the night of
the shooting. Carl Johnson was in the front passenger seat of the car. Witcher asked about Brown’s
wedding band. Brown gave the band to Witcher to examine. At some point, Brown asked Witcher
to return the wedding band. The men then “exchanged words” and Witcher pulled a gun. During
an ensuing tussle, the gun went off. Witcher and Brown “jumped out of the car.” At this point
Brown had the gun. Witcher started running from the car and Brown “shot at Harvey while he was
running.” Brown then got back in Witcher’s car, with the gun, and drove to pick up his
eight-year-old daughter from Witcher’s house.
At trial, Brown testified on his own behalf. His version of events differed from the custodial
statement in several important respects. Brown said that while he, Johnson, and Witcher sat in
Witcher’s car, Witcher pointed a gun at Brown and demanded Brown’s “shit.” Brown threw his car
keys at Witcher’s chest and tried to get control of the gun. During the struggle, the gun discharged
and then fell to the front seat of the car. The two men reached for the gun at the same time. Brown
grabbed the gun first, and it again discharged. All three men exited the car, Witcher on one side,
Brown and Johnson on the other. Johnson bumped into Brown once they were out of the car, and
the gun discharged a third time. The gun then fell from Brown’s hand and he never saw it again.
Driving Witcher’s car, Brown went to pick up his daughter from Witcher’s house.
-7-
No. 04-2272
Brown v. McKee
Prior to closing arguments, Brown personally moved for a mistrial, for an evidentiary
hearing, and for substitution or removal of counsel. He stated that he had asked his appointed
attorney to move to suppress his custodial statement, but that his attorney had failed to do so. Brown
also sought an evidentiary hearing on the voluntariness of the statement under People v. Walker, 132
N.W.2d 87 (Mich. 1965). Walker holds that a trial court presented with a pretrial objection to the
voluntariness of a confession must hold an evidentiary hearing to determine the issue of
voluntariness. Id.; see also People v. Leonard, 264 N.W.2d 130, 132 (Mich. Ct. App. 1978) (holding
that a Walker hearing must be held if the defendant moves for it before trial).
If the defense moves for a Walker hearing during trial, despite failing to do so prior to trial,
the trial court may in its discretion hold an evidentiary hearing. People v. Soltis, 304 N.W.2d 811,
812 (Mich. Ct. App. 1981). The defendant bears the burden of raising the claim of voluntariness and
of developing a record, but the prosecution bears the burden of proving voluntariness by a
preponderance of the evidence. People v. Akins, 675 N.W.2d 863, 877-78 (Mich. Ct. App. 2003).
Although present in the courtroom when Brown made his pro se motions, Brown’s counsel
remained silent. The trial judge denied Brown’s motion for a mistrial. As to Brown’s contention
that his custodial statement was coerced and should be the subject of an evidentiary hearing, the
judge decided that the jury had heard both Brown’s version and the police version of the statement
and that an evidentiary hearing was not required. The judge also ruled that any motion to suppress
would have been frivolous. Finally, Brown’s motion for substitution or removal of counsel was
implicitly denied as meritless when the trial court disagreed with the grounds that Brown gave on
the record. It then instructed him to “step down and let us proceed with this matter,” and
-8-
No. 04-2272
Brown v. McKee
admonished him by saying that, “nothing that you said, so far, is of any value whatsoever.” The trial
court did not directly address Brown’s argument that his counsel was ineffective because counsel
had failed, despite Brown’s request, to file a pretrial motion for an evidentiary hearing on the
voluntariness of Brown’s custodial statement.
Reviewing Brown’s appeal, the Michigan Court of Appeals determined that “[b]ecause the
record does not factually support defendant’s claims of coercion,” Brown’s claim of ineffective
assistance of counsel failed. The appellate court’s treatment of Brown’s argument that his counsel
was ineffective for failing to move for a Walker hearing consists of only two sentences. Brown now
argues that the Michigan Court of Appeals was objectively unreasonable in its application of relevant
Supreme Court caselaw to the facts of his case. He contends that the dearth of factual development
in the record supports his claim that his counsel was ineffective in failing to contest the admissibility
of the allegedly involuntary statement.
To show ineffective assistance of counsel, a petitioner must satisfy the familiar Strickland
two-prong test. He must first show that (1) counsel’s performance was constitutionally deficient,
and then must show that (2) this deficient performance prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). In so doing, a petitioner must overcome the “strong
presumption that an attorney’s performance falls within the wide range of reasonable professional
assistance.” Barnes v. Elo, 339 F.3d 496, 502 (6th Cir. 2003) (citation and quotation marks omitted).
The magistrate judge provided a thoughtful and well-reasoned analysis of Brown’s claim of
ineffective assistance of counsel for failure to suppress the custodial statement. Concluding that a
motion to suppress would have been meritless, the magistrate judge found no ineffective assistance
-9-
No. 04-2272
Brown v. McKee
of counsel. This conclusion rested in part on the fact that “[t]rial counsel’s failure to bring a
meritless suppression motion cannot constitute ineffective assistance.” United States v. Tisdale, 195
F.3d 70, 73-74 (2d Cir. 1999).
The failure of the police to record Brown’s interrogation also provided insufficient ground
for a motion to suppress. Neither federal nor Michigan law requires suppression solely on the basis
that a police interrogation was not electronically recorded. United States v. Dobbins, No. 96-4233,
1998 WL 598717, at *4 (6th Cir. Aug. 27, 1998) (“[F]ederal law does not require that a state
electronically record custodial interrogations and confessions”); United States v. Short, 947 F.2d
1445, 1451 (10th Cir. 1991), cert. denied, 503 U.S. 989 (1992) (noting that there is no caselaw
supporting the defendant’s position that the police should have recorded his interrogation); People
v. Fike, 577 N.W.2d 903, 906 (Mich. Ct. App. 1998) (declining to interpret the Michigan
Constitution to require electronic recording of custodial interrogations).
The remaining basis for Brown’s motion to suppress was his claim of coercion. Specifically,
Brown contended that his statement was involuntary because he acceded to Detective Collins’s
questions only after the police allegedly threatened to send Brown’s daughter through the juvenile
system. During his trial testimony, however, Brown did not contend that the statement was
involuntary or that the police threatened him about his daughter, but rather that he refused to sign
because the police had allegedly inserted things that he had not said into the written version. The
Michigan Court of Appeals limited its review to those mistakes that were apparent from the record
because no evidentiary hearing had been held, and concluded that there was no evidence to support
- 10 -
No. 04-2272
Brown v. McKee
Brown’s claim of coercion. Accordingly, the appeals court determined that the claim failed. The
magistrate judge found likewise.
Brown now argues that his counsel’s ineffectiveness is the very reason why the record does
not support his claim. But the record in fact reflects that Brown engaged in self-help on at least two
occasions. At the close of all the proof at his trial, Brown asked the court for an evidentiary hearing
on his claim that his counsel had failed to move to suppress the allegedly involuntary statement.
Brown also made an untimely motion for a Ginther hearing on the ground that his counsel had
provided ineffective assistance for failing to raise Brown’s defense of “good character,” contending
that he would have been acquitted otherwise. See People v. Ginther, 212 N.W.2d 922, 924 (Mich.
1973) (holding that “[w]hen a defendant asserts that his assigned lawyer is not adequate or diligent
or asserts . . . that his lawyer is disinterested, the judge should hear his claim and, if there is a factual
dispute, take testimony and state his findings and conclusion”). Both motions were denied by the
trial court.
The standard for determining whether a petitioner is entitled to an evidentiary hearing under
AEDPA is stringent:
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless the
applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
- 11 -
No. 04-2272
Brown v. McKee
(B) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2)(A) & (B).
When determining whether § 2254(e)(2) applies to a request for an evidentiary hearing, the
question is not whether the prisoner has succeeded in developing the record, but rather whether he
has been diligent in his attempts to do so. Williams v. Taylor, 529 U.S. 420, 432, 435 (2000)
(holding that a prisoner has been diligent if he “made a reasonable attempt, in light of the
information available at the time, to investigate and pursue the claims in state court”) The success
of those efforts is not dispositive. Instead, diligence “require[s] in the usual case that the prisoner,
at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law.” Id.
at 437. “If there has been no lack of diligence at the relevant stages in the state proceedings, the
prisoner has not ‘failed to develop’ the facts under § 2254(e)(2)’s opening clause, and he will be
excused from showing compliance with the balance of the subsection's requirements.” Id. at 437.
We conclude that Brown made a reasonable attempt to develop the factual basis for his
involuntary-statement claim. In such instances, a prisoner “is generally entitled to an evidentiary
hearing if he alleges sufficient grounds for release, relevant facts are in dispute, and the state courts
did not hold a full and fair evidentiary hearing.” Sawyer v. Hofbauer, 299 F.3d 605, 610 (6th Cir.
2002) (citation and quotation marks omitted). There is no dispute that the state court did not hold
an evidentiary hearing. We therefore consider whether Brown has alleged sufficient grounds for
release and whether relevant facts are in dispute. See id.
- 12 -
No. 04-2272
Brown v. McKee
At trial, Brown’s attorney conducted a voir dire of Detective Collins about Brown’s Miranda
rights and the subsequent interrogation. Collins testified that he informed Brown of his Miranda
rights prior to questioning. He further stated that Brown did not request a lawyer verbally or in
writing, was not under the influence of medication for his gunshot wound, did not request medication
or food, and did not ask to make any phone calls. Collins denied that Brown ever wrote anything
down on either the Miranda form or on the write-up of the interrogation. In addition, Collins
testified that he and Brown were alone in the interrogation room, the interrogation was not recorded,
and Brown was not handcuffed or restrained at any point. After this voir dire, the trial court
admitted Brown’s custodial statement and Collins read it into the record.
Neither Brown nor his attorney raised any allegation at trial that the police had threatened to
send Brown’s eight-year-old daughter through the juvenile system as a way to get Brown to talk.
In fact, this allegation appeared for the first time in Brown’s motion for rehearing addressed to the
Michigan Court of Appeals. To be sure, threats regarding a defendant’s children may be sufficient
to render a confession involuntary. Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (finding a
confession made only after the police told the defendant that her children would be taken from her
to be involuntary). But that is not the situation here. Brown did not claim that his statement was
coerced when he testified at trial. He did not raise coercion in his motion to suppress the statement.
Instead, he focused on his allegation that the police “interpolated” things that he had not said and that
he could not sign it for that reason. On appeal, Brown concedes that there was “evidence at trial that
contradicted Mr. Brown’s offers of proof,” but contends that this evidence constituted
“inconsistencies” that require “at a minimum” that we remand the issue for an evidentiary hearing.
- 13 -
No. 04-2272
Brown v. McKee
After a careful review of the record, we do not find the relevant facts to be in dispute. See
Sawyer, 299 F.3d at 610. We therefore conclude that Brown cannot demonstrate that he was entitled
to an evidentiary hearing.
C. Prosecutorial misconduct
Brown’s remaining claim, as set forth in his briefs to this court, is that his conviction was so
tainted by prosecutorial misconduct that it violated his due process rights. During the State’s closing
argument, Brown claims that the prosecutor improperly vouched for Witcher as its key witness,
argued facts not in evidence, and disparaged both Brown and his defense counsel. Brown raised
claims of improper vouching for a witness and improper disparagement of defense counsel to the
Michigan Court of Appeals, the Michigan Supreme Court, and the federal district court. In his
motion for rehearing to the Michigan Court of Appeals, Brown raised claims of improper argument
of facts not in evidence and improper disparagement of the defendant. He included these claims in
his delayed motion for leave to appeal to the Michigan Supreme Court.
Because the Michigan Supreme Court denied his delayed motion in a form order, he now
contends that “it cannot be presumed that the Michigan Supreme Court declined to review Mr.
Brown’s issues on anything but their potential merits.” See Harris v. Reed, 489 U.S. 255, 263 (1989)
(“[A] procedural default does not bar consideration of a federal claim on . . . habeas review unless
the last state court rendering judgment in the case clearly and expressly states that its judgment rests
on a state procedural bar.”) (citation and quotation marks omitted). We note that neither Brown nor
his counsel objected to any of the now-challenged remarks at trial. Like the district court, however,
- 14 -
No. 04-2272
Brown v. McKee
we need not consider the question of procedural default because the claim can be dismissed as
meritless.
In light of AEDPA’s limitations on appellate review, we apply “a two-step test to determine
whether prosecutorial misconduct violates a [d]efendant’s due process rights.” Spisak v. Mitchell,
465 F.3d 684, 713 (6th Cir. 2006). We first consider “whether the prosecutor’s remarks were
improper.” Id. If so, then the court “appl[ies] the four-factor test set forth in United States v.
Carroll, 26 F.3d 1380, 1385 (6th Cir.1994), to determine ‘whether the impropriety was flagrant’ and
thus violated the defendant’s due process rights.” Macias v. Makowski, 291 F.3d 447, 452 (6th Cir.
2002) (citation omitted). The four factors to consider are: “(1) whether the conduct and remarks of
the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the conduct or
remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made;
and (4) whether the evidence against the defendant was strong.” Id. To entitle the petitioner to
habeas relief, a prosecutor’s remarks must have “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).
The entire proceeding must be examined in order to make this determination. Id.
1. Improper vouching
A prosecutor vouches for a witness when the prosecutor “supports the credibility of a witness
by indicating a personal belief in the witness’s credibility[,] thereby placing the prestige of the
[prosecutor’s office] behind that witness,” or through “comments that imply that the prosecutor has
special knowledge of facts not in front of the jury.” United States v. Francis, 170 F.3d 546, 550 (6th
Cir. 1999). In the present case, the prosecutor stated in her rebuttal closing argument as follows:
- 15 -
No. 04-2272
Brown v. McKee
So, who would have, in this case, the biggest motive to deceive? The person who
had the most to lose. And that’s Michael Brown. Don’t feel sorry for him. But
realize, recognize, he’s the only person who has any reason or need to deceive you.
Harvey Witcher wasn’t charged. There’s no reason to lie. He can tell you what
happened. No matter what he says, he still got to go home; right?
The Michigan Court of Appeals found that this argument was “properly based on the evidence at
trial.”
When reviewing Brown’s habeas petition, the magistrate judge cited the Francis standard
and concluded that the prosecutor “did not engage in either of these two impermissible practices.”
Rather, the comments made “did no more than respond substantially [to defense counsel’s
statements] in order to ‘right the scale.’” The magistrate judge concluded that the prosecutor “did
not personally guarantee Witcher’s veracity, not did she imply that facts not presented at trial would
bolster his testimony.” Prosecutorial misconduct “must be so pronounced and persistent that it
permeates the entire atmosphere at trial” or “so gross as probably to prejudice the defendant” in order
to violate a defendant’s right to a fair trial. United States v. Hurst, 951 F.2d 1490, 1503 (6th Cir.
1991) (citations and quotation marks omitted). Accordingly, the magistrate judge determined that
the prosecutor’s remarks were not improper.
The remarks nonetheless suggested that the prosecutor knew something that the jury did not:
namely, whether Witcher had been charged. Assuming without deciding that the remarks were
improper, we must apply Carroll’s four-factor test to determine whether they were “flagrant.”
There is no evidence, beyond Brown’s conclusory assertions, that the prosecutor intended to mislead
the jury with her remarks. Our review of the record suggests that the prosecutor was instead
responding to the closing argument by counsel for Brown, where Witcher’s credibility and
- 16 -
No. 04-2272
Brown v. McKee
truthfulness were repeatedly and vigorously challenged. The prosecutor’s comments were not
extensive. Rather, they were confined to a few brief sentences in an otherwise-lengthy closing
argument made after a five-day trial. Although the State does not argue that the remarks were
accidental, the proof against Brown was substantial, which weighs against a conclusion that these
comments deprived him of his right to a fair trial. Brown’s counsel, moreover, failed to object to
the remarks at trial. Even though the district court did not give a curative instruction after the
prosecutor’s remarks, it did instruct the jury prior to the commencement of deliberations that
argument by counsel was not evidence. For all of these reasons, we adopt the well-reasoned
recommendation of the magistrate judge and conclude that Brown is not entitled to habeas relief on
this claim.
2. Improper disparagement of defense counsel
Brown also argues that the prosecutor improperly disparaged his defense counsel during the
prosecutor’s closing argument. The allegedly improper comments were in response to a portion of
the defense argument. In his closing argument, defense counsel discussed the unreliability of
eyewitness testimony in some detail. He stated in pertinent part as follows:
When I walked over here I put some nickels on the this [sic] railing. You all can see
the nickel sitting there. If you take this piece of brass, and you put it over the nickel,
you don’t have nickels anymore. Our eyes can be fooled easily. It’s a simple trick.
The prosecutor responded in her rebuttal closing argument as follows:
You don’t deceive someone unless you’re you [sic] intend to deceive them. When
Mr. Fenner did the trick with the nickel, he wanted to deceive you. When a magician,
when you pay to go see a magician or a magician comes to a party, or you see a
magician, what’s his intent? To deceive you. His intent is to show you slight [sic]
- 17 -
No. 04-2272
Brown v. McKee
of the hand. These are the things that can be done. Right? That’s his intention. It’s
to deceive you.
On direct appeal, the Michigan Court of Appeals rejected Brown’s claim that these remarks
constituted disparagement of Brown’s defense counsel. Instead, the court reasoned that the
“challenged remarks . . . were responsive to defense counsel’s closing argument.” The magistrate
judge similarly noted that “[t]he type of comment challenged by petitioner, accusing defense counsel
of trying to trick the jury and of being like a magician, repeatedly have been held to fall short of
amounting to a deprivation of due process.” In addition, the magistrate judge found that the
prosecutor’s comment was “invited by or was responsive to the [closing argument] of the defense.”
See Darden v. Wainwright, 477 U.S. 168, 182 (1986).
Brown argues that the Michigan Court of Appeals made “an unreasonable determination of
the facts in light of defense counsel’s closing argument.” The defense’s closing argument dealt in
detail with the manipulability and unreliability of eyewitness testimony. Brown argues that his
counsel was not “trying to deceive the jurors” and, accordingly, did not invite the prosecutor’s
response.
In sum, Brown argues that the prosecutor’s closing argument “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” See Darden, 477 U.S. at 181
(citation and quotation marks omitted). But Brown fails to explain how the prosecutor’s comments
violated his due process rights in the context of the present case. When reviewing a claim of
prosecutorial misconduct, a court “may consider, along with other factors, the potential of the
- 18 -
No. 04-2272
Brown v. McKee
remarks to prejudice the defendant or confuse the jury and the strength of the proof against the
defendant.” United States v. Castro, 908 F.2d 85, 89 (6th Cir. 1990).
This court has previously held that “[a] prosecutor commenting that the defense is attempting
to trick the jury is a permissible means of arguing so long as those comments are not overly
excessive or do not impair the search for the truth.” United States v. August, 984 F.2d 705, 715 (6th
Cir. 1992). Here, the prosecutor’s comments constituted only a small portion of her closing
argument and there is no suggestion that the jury was confused by the remarks. We therefore
conclude that this claim is meritless.
3. Arguing facts not in evidence
In her closing argument, the prosecutor stated that the police officers who stopped Brown
could easily see that he was carrying a handgun because they confronted him at 7:00 a.m., “when the
sun’s at its brightest.” Brown contends, however, that the officers had testified that it was still dark
when they confronted him. The magistrate judge did not consider Brown’s claim that the prosecutor
improperly argued facts not in evidence. This might be because the claim does not appear in
Brown’s petition for a writ of habeas corpus, although he did raise it in his delayed motion for leave
to appeal to the Michigan Supreme Court. Because there is no mention in Brown’s habeas petition
of the daylight conditions at the time the Detroit police confronted him that morning, we need not
further consider this point.
Brown also contends that the Michigan Court of Appeals made an unreasonable
determination of the facts when it concluded that the prosecutor’s statements relating to Witcher
were supported by the evidence at trial. Specifically, he argues that no evidence was introduced
- 19 -
No. 04-2272
Brown v. McKee
about whether Witcher had been charged with any crimes relating to the events of January 26, 1997.
This is essentially a restatement of his improper-vouching argument, which we have discussed above
in Part II.C.1. To be sure, the prosecution may not rely on facts not in evidence in closing
arguments. United States v. Wiedyk, 71 F.3d 602, 610 (6th Cir. 1995). But a claim of prosecutorial
misconduct must be evaluated by looking at the allegedly improper statements in the context of the
entire case. Even assuming that the remarks were improper, the record does not support a
determination that they were flagrant and thereby deprived Brown of a fair trial. As noted above,
the remarks were not extensive, they were offered in response to the repeated and vigorous attacks
on Witcher’s credibility in the closing argument for the defense, and the evidence against Brown was
substantial. We therefore conclude that Brown’s claim of improper argument of facts not in
evidence is meritless.
4. Improper disparagement of the defendant
Brown’s final contention is that the prosecutor’s repeated description of him as a “snake”
who “slithered on his underbelly” violated his due process rights. Neither the magistrate judge nor
the district court addressed this claim, although Brown did raise it in his petition for a writ of habeas
corpus: “The prosecutor continuously, without any objection from the defense, disparaged Mr.
Brown’s character by repeatedly and consistently referring to him as a ‘snake’ who ‘slithers’ on his
‘underbelly’ before the jurors.” Our review of the prosecutor’s closing argument indicates that she
referred to Brown once as a liar, once as a coward, and approximately four times as a snake who
slithers on his underbelly.
- 20 -
No. 04-2272
Brown v. McKee
The Supreme Court has found that offensive and inflammatory comments, although
unquestionably improper, do not necessarily deprive the defendant of a fair trial. Darden, 477 U.S.
at 179-80 (finding that the prosecutor’s reference during closing argument to the defendant as an
“animal” who should not be let out of prison except on a leash and for whom the only effective
punishment was the death penalty did not deny the defendant a fair trial). So too with this case. The
prosecutor’s references to Brown as a liar, a coward, or a snake “did not manipulate or misstate the
evidence.” Id. at 182. Although the comments are reprehensible and inappropriate, they did not
deprive Brown of a fair trial. Here, as in Darden, there was substantial evidence against Brown,
including his own trial testimony, in which he admitted being in the car, struggling for the gun,
holding the gun, and shooting the gun. We therefore conclude that this claim is meritless.
- 21 -
No. 04-2272
Brown v. McKee
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
- 22 -