Monday, November 14, 2016

Armed Robbery, Habeas Corpus and the Sufficiency of the Evidence

This post examines an opinion from the U.S. District Court for the Eastern District of Michigan – Southern Division:  Welch v. Winn, 2016 WL 4205994 (2016). The District Court Judge begins the opinion by explaining that
[t]his is a habeas case brought pursuant to 28 U.S. Code § 2254. Petitioner Cedric Welch was convicted after a jury trial in the Kent County Circuit Court of armed robbery, Michigan Compiled Laws § 750.529; and conspiracy to commit armed robbery, Michigan Compiled Laws § 750.157a.   Petitioner was sentenced as a fourth-time habitual felony offender to concurrent terms of 21-to-50 years' imprisonment for his two convictions.

The petition raises five claims: (i) insufficient evidence was presented at trial to sustain Petitioner's convictions, (ii) the trial court erroneously admitted expert witness testimony, (iii) Petitioner's confrontation rights were violated by admission of a non-testifying co-defendant's statement, (iv) the trial court erroneously allowed admission of voice identification evidence, and (v) Petitioner's sentence was based on inaccurately scored sentencing guidelines. 
Welch v. Winn, supra.
The Judge began his analysis of Welch’s habeas petition by explaining how he came to be prosecuted for, and convicted of, armed robbery and conspiracy to commit armed robbery:
In the early morning hours of September 1, 2011, two masked men robbed a McDonald's restaurant on Alpine Road in Grand Rapids at gun point. The robbers entered the dining room through a door mistakenly left unlocked. After ordering the restaurant's three employees to lie on the ground, the masked men forced the store manager to give them the contents of the safe. The robbers absconded with $400 worth of paper gift certificates and $3,233.73 in cash. The victims were only able to describe their assailants as African-American males who wore dark or black clothes. The victims agreed that one of the men carried a revolver. Surveillance footage also revealed that the robbers wore white cloth gloves.

As the robbers fled the scene, surveillance cameras captured their images and showed the men entering an older black Camaro. Two employees of a nearby Wal-Mart saw the men leave the McDonald's. And a man, who had been at the drive-through window during the robbery, testified that he saw a dull black Camaro drive away at a high rate of speed.
Later that morning, a Kent County Sheriff's deputy located a dull black, older Camaro parked in a nearby apartment complex, York Creek. Inside the vehicle, sheriff's deputies found several white gloves. Inside one glove, investigating deputies found DNA evidence, which later testing matched to co-defendant Woods. The deputies also placed a magnetic GPS system under the vehicle's rear bumper, which they later used to track the vehicle in motion. The deputies arrested Woods as a result of an ensuing traffic stop. At the time of his arrest, Woods had several large rolls of currency in various small denominations in his pocket. The deputies seized the currency and Woods' cell phone.
Welch v. Winn, supra.
The opinion goes on to explain that on
Woods' cell phone, the investigating deputies found a video of defendant and Woods pretending to swim in money. They also found pictures of defendant and Woods holding a large amount of currency near their faces. The video had been e-mailed at 4:10 a.m. on September 1, to Woods' Google account from an account owned by defendant. The pictures were taken at 5:47 a.m. on September 1.

Inside Woods' apartment, deputies found 18 booklets of McDonald's paper gift certificates. They also found dark clothing lying on the ground outside of the master bedroom closet. There were spores on the pants matching plant life found along the trail between the Camaro's parking spot and the York Creek apartment of defendant's girlfriend. The deputies matched the still photographs of defendant and Woods holding currency to this location.
The deputies secured a warrant to search an apartment in York Creek belonging to defendant's girlfriend. The video of the men swimming in money was matched to this location. The officers then secured a search warrant for the home where defendant resided with his parents. In defendant's bedroom, the deputies found a plastic case for a revolver-style Daisy air gun. There was an alternate second barrel inside the case, but the revolver was never found. The deputies also never recovered the remainder of the currency. Of note, investigation of defendant's and Woods' cell phone records revealed that they were in the area of the Alpine Road McDonald's and the York Creek apartment near the time of the robbery. And surveillance footage from a local gas station placed defendant and Woods together only two hours after the robbery.

Defendant was not arrested until September 3, 2011. On September 2, 2012, Woods used a recorded jail telephone to contact defendant. The conversation was very cryptic and Woods immediately instructed defendant not to use any names. Woods told defendant to send a text message to Woods' cell phone that would activate a `Prey’ software application he had downloaded onto his phone, ostensibly to delete or block access to the phone's contents. This task was never accomplished.

Based on the evidence presented at defendant's retrial, the jury convicted him of armed robbery and conspiracy.
Welch v. Winn, supra. The opinion also notes that the Michigan Court of Appeals affirmed Welch’s conviction and the Michigan Supreme Court declined to review the case. Welch v. Winn, supra.
The Court of Appeals began its analysis of Welch’s argument regarding the sufficiency of the evidence presented at trial by noting that 28 U.S. Code § 2254(d) establishes the following as the standard court must apply in habeas cases:
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.
Welch v. Winn, supra.
The Court of Appeals began its analysis with Welch’s argument that
insufficient evidence was presented at trial to demonstrate beyond a reasonable doubt his identification as one of the perpetrators of the crimes. He argues that there was sufficient evidence linking Woods to the crimes and linking him to Woods, but there was no evidence linking him to the crime. Petitioner asserts that evidence that he was with Woods on the day of the crime is insufficient to demonstrate that he acted in concert with Woods. Respondent asserts that the state-court adjudication of the claim was reasonable.

`[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ In re Winship, 397 U.S. 358, 364 (1970). But the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is, `whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.’ Jackson v. Virginia, 443 U.S. 307, 318(1979). This inquiry, however, does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, supra (emphasis in original).

More importantly, a federal habeas court may not overturn a state-court decision that rejects a sufficiency of the evidence claim simply because the federal court disagrees with the state court's resolution of that claim. A federal court may grant habeas relief only if the state-court decision was an objectively unreasonable application of

`the Jackson standard. See Cavazos v. Smith, 132 S. Ct. 2, 3 (2011) (per curiam). “Because rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold.” Id. For a federal habeas court reviewing a state court conviction, `the only question under Jackson is whether that finding was so insupportable as to fall below the threshold of bare rationality.' Coleman v. Johnson,132 S. Ct. 2060, 2065 (2012).
Welch v. Winn, supra.
The opinion goes on to explain that the Michigan Court of Appeals
did not unreasonably apply the Jackson standard when it found that sufficient evidence was presented at trial to prove beyond a reasonable doubt that Petitioner was one of the two men who committed the offenses. Petitioner does not contest the strong evidence presented that Woods committed the robbery and that another man committed the crime with him. The strongest evidence identifying Petitioner as the man who acted with Woods was the video sent from Petitioner's phone to Woods through e-mail three hours after the robbery occurred. The video shows the two men playing with cash and throwing it in the air in celebration. While the prosecutor could not establish when the video was recorded, the fact that it was sent hours after the robbery constituted strong circumstantial evidence that Petitioner was one the two men who committed the robbery. Evidence was also presented that Petitioner was with Woods at a gas station two hours after the robbery. Given the doubly-deferential standard of review, the video evidence alone supports the state court's conclusion that sufficient evidence was presented to demonstrate Petitioner's identity as one of the perpetrators.

Moreover, evidence was presented that after he was arrested, Woods called Petitioner from jail. During the recorded call, Petitioner asks Woods if he told them about his alibi, and Woods asked Petitioner to text him a program to erase the video. Viewed most favorably to the prosecution, the recorded conversation constituted additional strong evidence indicated Petitioner's participation in the crime. Other evidence presented against Petitioner included the fact that Petitioner's girlfriend lived in the apartments near the McDonald's where the robbery occurred, that he was in her apartment immediately before the robbery, that the getaway car was stashed at the apartment complex, and cell phone tower records indicating Petitioner's location near the scene. Given the record evidence viewed most favorably to the prosecutor, the Michigan Court of Appeals conclusion that sufficient evidence was presented to prove beyond a reasonable doubt Petitioner's identity as the man who acted with Woods was at least reasonable.

Petitioner also asserts that insufficient evidence was presented to support his conspiracy conviction. Under Michigan law, a conspiracy is an express or implied mutual agreement or understanding between two or more persons to commit a criminal act or to accomplish a legal act by unlawful means. People v. Cotton, 478 N.W.2d 681, 688 (Michigan Court of Appeals 1991). A conspiracy may be based on inferences or proven by circumstantial evidence. People v. Cotton, supra.

The evidence presented a trial that the two perpetrators conspired to commit a robbery was overwhelming. The evidence indicated that the robbery was planned; it occurred early in the morning, two men came into the store together, they acted in concert, they left together in a car, the car was then abandoned in a nearby lot, and the two men then got into a different car. This evidence strongly indicates that the robbery was planned beforehand by the perpetrators. The Michigan Court of Appeals conclusion that the sufficient evidence was presented to demonstrate a conspiracy was reasonable.
Welch v. Winn, supra.
The Court of Appeals therefore found that Welch’s first argument on appeals was “without merit.” Welch v. Winn, supra.  For that and other reasons, the District Court Judge held that
[f]or the reasons stated above, the Court denies the petition for a writ of habeas corpus with prejudice, declines to issue a certificate of appealability, and denies leave to proceed in forma pauperis on appeal.
Welch v. Winn, supra.  

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