Don Perkins v. Kenneth McKee

411 F. App'x 822
Court of Appeals for the Sixth Circuit·Decided February 14, 2011·No. 09-1250·Unpublished·Cited by 40 cases

Opinions

SUTTON, Circuit Judge.

After a state court jury convicted Don Perkins of two counts of first-degree murder and imposed a life sentence, he filed a petition for a writ of habeas corpus. The district court denied the petition and granted a certificate of appealability on three issues: (1) whether the trial court impaired his right to present a complete defense; (2) whether prosecutorial misconduct violated his right to a fair trial; and (3) whether counsel provided ineffective assistance. We affirm.

[825]*825I.

Late in the night spanning October 15 and 16, 2001, Damon Hill, Antonio Hall and Maurice walked to the back of the residence where three men with guns surprised them. The gunmen pointed their handguns at the trio. No one moved for thirty or forty seconds. When Odums heard a gunshot, he ran through the backyard and down an alley toward an intersection, where he saw police. He ran to the police car and told the officers that “some guys was just shooting at me in the back yard.” R.ll-5 at 116.

Corey Scales emerged from the alley. The officers arrested Scales, after which they proceeded down the alley until they discovered the bodies of Hall and Hill at the driveway for 14181 Spring Garden Street. Each had suffered a single gunshot wound to the head.

When Sergeant Eric Decker arrived, he stood near the officers’ squad car, where Scales was detained in the back seat. A white Chevrolet Caprice drove by, slowing as it approached the police car. As the vehicle passed, Scales pressed his face against the squad car’s backseat window, seemingly (according to Sergeant Decker) trying to communicate to the' car’s occupants. Decker pointed his flashlight at the Caprice and ordered the driver to stop the car, but the driver kept moving.

Officers in two other cars pursued the vehicle. The car eventually slowed down and a passenger, Anthony Patton, exited. The driver, Don Perkins, stopped, and the officers arrested him. On October 16, Maurice Odums identified Don Perkins in a police lineup as one of the gunmen at 14181 Spring Garden Street.

A grand jury charged Perkins with two counts of premeditated murder, two counts of felony murder, one count of armed robbery, one count of assault with intent to commit murder, one count of being a felon in possession of a firearm, and one count of possession of a firearm during the commission of a felony. At trial Perkins denied any involvement in the murders. He testified that he had been at a wake until approximately 10:40 PM on the night of the murders. The only reason he was in the neighborhood, he said, was to pick up Lena Nixon, a woman he had been dating, at a nearby bus stop. A jury convicted Perkins on all counts and sentenced him to life in prison for the murder convictions.

The Michigan Court of Appeals affirmed his conviction, and the Michigan Supreme Court denied leave to appeal. The district court rejected his habeas petition and granted a certificate of appealability on three issues: (1) whether the trial court impaired his right to present a complete defense; (2) whether prosecutorial misconduct violated his right to a fair trial; and (8) whether counsel provided ineffective assistance.

II.

Perkins filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act. We therefore may grant the writ with respect to claims “adjudicated on the merits in State court proceedings” only if the state court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of’ clearly established Supreme Court precedent or “resulted in a decision based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d).

III.

Perkins first claims that the state trial court violated his right to present a complete defense when it refused to allow him to call the officer who took Maurice Odums’ statement on the night of the murders. After the State rested, Perkins called Sergeant Christopher Quarello to testify about a statement that Maurice [826]*826Odums gave to the police on the night of the murders. In the statement, Odums described Perkins as about 5'6" tall, even though he is about six feet tall. Defense counsel thought this testimony would undermine Odums’ identification.

But as it turned out, Officer Fisher, not Sergeant Quarello, had taken Odums’ statement, and Fisher was not on the witness list. When counsel realized the problem, he tried to call Officer Fisher to the stand. The court denied the request because Perkins had not put Officer Fisher on the witness list, it did not want to delay the proceedings and Fisher’s testimony would have repeated Odums’ earlier testimony. The Michigan court of appeals agreed that Perkins’ request to produce Officer Fisher would have “delayed the trial considerably” and that Officer Fisher’s testimony would have touched on matters that were “already covered in detail at trial.” R.11-13 at 3. It therefore held that the trial court did not abuse its discretion in denying Perkins’ request to produce Officer Fisher.

This decision did not unreasonably apply Supreme Court precedent. Criminal defendants enjoy a Sixth and Fourteenth Amendment right to present evidence, but that right “is subject to reasonable restrictions,” including reasonable restrictions on the admission of evidence at a trial. United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). So long as judges rely on evidentiary and local rules of general applicability that are not “arbitrary or disproportionate to the purposes they are designed to serve,” the judges may enforce these rules. Id. (internal quotation marks omitted). Trial judges also have “wide discretion” to refuse to admit testimony that would be “merely cumulative in nature.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 230, 60 S.Ct. 811, 84 L.Ed. 1129 (1940).

Under Michigan law, criminal defendants must disclose to the prosecutor the names and addresses of all witnesses they plan to call at trial. Mich. Ct. R. 6.201(A)(1); Mich. Comp. Laws § 767.94a(l)(a). Defendants may add other witnesses during trial only with the court’s permission. M.C.R. 6.201(F), (I); M.C.L. § 767.94a(2)-(3).

Perkins wisely does not challenge the Michigan rule itself, which is neither arbitrary nor disproportionate to its purposes because, without it, no lawyer could prepare for trial. Cf. Taylor v. Illinois, 484 U.S. 400, 401-02, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). Perkins instead challenges the trial court’s application of the rule. He notes that, because the prosecuting attorney removed Fisher from the witness list, “any blame for the delay should” lie with the State. Perkins Br. at 11, 12. But nothing in the record tells us who removed the Fisher from the witness list. The prosecutor acknowledged that Officer Fisher “was removed from the witness list,” R.11-8 at 8, but did not say who took him off the list. Nor did anyone else. Nor for that matter is it clear that, even if the prosecutor had initially placed Fisher on its witness list, this would alleviate defense counsel’s obligation to prepare his own accurate witness list.

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Don Perkins v. Kenneth McKee, 411 F. App'x 822 (6th Cir. 2011).

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