Petition for Writ of Certiorari — Noah Richard Lovell, III, Petitioner v. Noah Nagy, Warden
Supreme Court briefFeb 21, 2019
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INDEX TO APPENDIX
Attachment
Exhibit No.
Decision of US Court of Appeals Denying Certificate of Appealability
A
Decision of the United States District Court for the Eastern District of
Michigan Denying Habeas Corpus and Certificate of Appealability
B
Order of the Michigan Supreme Court Denying Leave to Appeal on State
Post-Conviction Petition
C
Order of Michigan Court of Appeals Denying Leave to Appeal on State
Post-Conviction Petition
D
Opinion of the Livingston County Circuit Court Denying Post-Conviction
Relief
E
Order of the Michigan Supreme Court Denying Leave to Appeal on Direct
Appeal
F
Opinion of the Michigan Court of Appeals Affirming Petitioner’s Criminal
Conviction
G
Affidavit of Harry T. Riley, attached to State Post-Conviction Petition
H
Affidavit of George Wilson, attached to State Post-Conviction Petition
I
EXHIBIT A
Case: 18-2057
Document: 7-1
Filed: 01/02/2019
Page: 1
No. 18-2057
FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NOAH RICHARD LOVELL, III,
Petitioner-Appellant,
v.
NOAH NAGY, Warden,
Respondent-Appellee.
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Jan 02, 2019
DEBORAH S. HUNT, Clerk
ORDER
Noah Richard Lovell, III, a Michigan prisoner represented by counsel, appeals from the
district court’s judgment denying his 28 U.S.C. § 2254 habeas corpus petition. Lovell applies for
a certificate of appealability (COA). See Fed. R. App. P. 22(b).
In 2009, after a joint trial with co-defendant, Harry T. Riley, a jury convicted Lovell of
armed robbery, unlawful imprisonment, torture, and first-degree home invasion. See People v.
Riley, Nos. 295838/298164, 2011 WL 4501765 (Mich. Ct. App. Sept. 29, 2011) (unpublished).
These convictions arose from an incident during which Riley posed as a utility worker to distract
eighty-four-year-old John Pickett while Lovell ransacked Pickett’s home. Riley attacked, beat,
and bound Pickett, and the two stole Pickett’s coin collection.
The trial court sentenced Lovell to concurrent terms of thirty-six years and eight months
to seventy-five years in prison for his armed-robbery and torture convictions, and ten to fifteen
years in prison for his unlawful-imprisonment conviction. These sentences were to be served
before a consecutive prison term of thirteen years and four months to twenty years in prison for
the first-degree home-invasion conviction.
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-2The Michigan Court of Appeals affirmed his conviction and sentences, id., and the
Michigan Supreme Court denied leave to appeal, People v. Lovell, 810 N.W.2d 583 (Mich. 2012)
(mem.). In April 2013, Lovell filed a motion for relief from judgment under Michigan Court
Rule 6.500, which the trial court denied, and the Michigan Court of Appeals and Michigan
Supreme Court denied leave to appeal that decision.
In April 2015, Lovell filed his § 2254 habeas petition, raising claims that: (1) affidavits
by Riley and prosecution witness George Wilson—obtained after his trial—would establish his
actual innocence; (2) his trial counsel performed ineffectively by failing to renew a motion to
sever his trial from Riley’s; (3) the prosecutor committed misconduct by shifting the burden of
proof to Lovell and commenting on Lovell’s pre-arrest silence; (4) the evidence was insufficient
to support his convictions; (5) the trial court erroneously based the sentence on inaccurate
information in the presentence report; and (6) appellate counsel performed ineffectively by
failing to raise the issues that were raised by different counsel in his motion for relief from
judgment. The district court denied the habeas petition and denied a COA.
In his COA motion, Lovell argues only three of his claims: (1) he is entitled to a new
trial because of the “newly-discovered” affidavits by Riley and Wilson that support a “fair
probability that a different result would be rendered on retrial”’; (2) the evidence was insufficient
to support his conviction for torture; and (3) he was erroneously sentenced based on inaccurate
information. Because Lovell raised only these three claims in support of his COA request, he
has effectively abandoned the other issues raised in his habeas petition. See Elzy v. United
States, 205 F.3d 882, 885 (6th Cir. 2000).
A COA may issue when an “applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
To satisfy this standard, a petitioner must
demonstrate “that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Habeas
corpus relief may be granted on claims that were adjudicated in state court only if the state-court
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-3adjudication was “contrary to, or involved an unreasonable application of, clearly established
federal law,” or the state-court adjudication “was based on an unreasonable determination of the
facts.” 28 U.S.C. § 2254(d). Where the state courts adjudicate the petitioner’s claims on the
merits, the relevant question is whether the district court’s application of 28 U.S.C. § 2254(d) to
those claims is debatable by jurists of reason. Miller-El, 537 U.S. at 336-37.
Request for New Trial and Claim of Actual Innocence
Lovell’s request for a retrial based on the affidavits by Riley and Wilson is actually a
claim that, upon retrial, he would be found innocent of the charges. The affidavit by Riley, dated
January 2013, stated that “Noel Lovell was not involved in the crimes committed against John
Pickett,” and that Lovell “was not involved in the planning of the crimes.” The affidavit by state
witness Wilson, dated June 2010, stated that his trial testimony about Lovell was false and
obtained by police coercion. Wilson had testified that he had met with Lovell and Riley the day
after the incident and “heard them discussing how they were going to sell coins” and “also heard
Riley berate Lovell for his time-consuming method of ransacking drawers.” Riley, 2011 WL
4501765, at *2. Lovell presented Wilson’s affidavit on direct appeal, but the state appellate
court refused to consider it because it was not part of the lower court record. Id. at *8. The
appellate court also concluded that even without Wilson’s unfavorable testimony, the evidence
was sufficient for a reasonable jury to have found Lovell guilty on all charges. Id.
In his habeas petition, Lovell emphasized that Pickett could not positively identify him so
that, without Pickett’s identification, the jury had only Wilson’s statement to implicate him and
that, in light of Wilson’s recanting affidavit, there was no evidence left to support his conviction.
In his COA motion, Lovell acknowledges that such “[f]reestanding claims of actual innocence
are . . . not cognizable on federal habeas review, absent independent allegations of constitutional
error at trial” (quoting Herrera v. Collins, 506 U.S. 390, 400 (1993)). He argues, however, that
Herrera left open the question of whether a habeas petitioner may bring a freestanding claim of
actual innocence when “compelling evidence” is presented that would result in the fundamental
unfairness embodied in the Due Process Clause if it were not considered.
(3 of 9)
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-4The district court properly determined that this claim failed under Herrera because
Lovell presented no independent constitutional violation that would have permitted the district
court to review it. The district court viewed the affidavits with a “fair degree of skepticism.”
See Herrera, 506 U.S. at 423; see also Lewis v. Smith, 100 F. App’x 351, 355 (6th Cir. 2004).
As the district court explained, Riley’s affidavit was signed and dated over three years after
Lovell’s trial, and Riley offered no explanation for this delay. The court added that Riley’s
written exonerating statement was produced after he was sentenced to 75 to 115 years in prison
and after he was no longer subject to any further punishment or adverse consequences. In
addition, such “[r]ecanting affidavits and witnesses are viewed with extreme suspicion.” United
States v. Chambers, 944 F.2d 1253, 1264 (6th Cir. 1991), superseded by statute on other grounds
as recognized in United States v. Avery, 128 F.3d 966, 972 (6th Cir. 1997).
The district court considered the significant circumstantial evidence presented at trial that
supported the jury’s finding of guilt, which rendered Riley’s potential exculpatory testimony
irrelevant to the outcome. Actual innocence requires that a petitioner demonstrate that “in light
of . . . new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a
reasonable doubt.” See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Schlup v. Delo, 513
U.S. 298, 329 (1995). The trial court had noted that a receipt was found on Pickett’s driveway
evidencing Lovell’s purchase of a hard hat, pry bar, and work gloves shortly before the crime,
and the pry bar was used to beat Pickett inside his home. Lovell was also identified as the one
who purchased these items. Evidence showed that Lovell had rented the vehicle that was seen in
Pickett’s driveway, and cell phone logs revealed that Lovell had made several calls in the
vicinity of Pickett’s house at the time of the crime to support a finding that he was talking with
Riley, who was inside the house. Reasonable jurists would not debate the district court’s
conclusion that Lovell failed to demonstrate that “in light of . . . new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U.S.
at 329.
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No. 18-2057
-5Insufficient Evidence
Lovell argues that the evidence was insufficient to support his conviction for torture, even
under an aiding and abetting theory. He argues that: (1) because the evidence established that
his codefendant, Riley, was the “sole assailant,” he (Lovell) could not be charged as a principal
for the torture and (2) that the evidence did not prove that he physically assisted Riley with an
assault or knowingly encourage or assist Riley with torturing Pickett when he was tied up in the
basement.
When reviewing a claim for insufficiency of the evidence, a federal habeas court must
apply a “twice-deferential standard.” Parker v. Matthews, 567 U.S. 37, 43 (2012). First, the
court must determine “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, 443 U.S. 307, 319 (1979). Even if the
petitioner makes this showing, a federal habeas court may overturn a state court’s rejection of an
insufficient-evidence claim only if the state court’s decision was unreasonable under § 2254(d).
Coleman v. Johnson, 566 U.S. 650, 652 (2012) (per curiam).
Michigan law requires the prosecution to establish, as an element of torture, that the
defendant had the intent to inflict great bodily injury or severe mental pain or suffering. See
Mich. Comp. Laws § 750.85(1). To establish that a defendant aided and abetted a crime, the
prosecution must show that:
(1) the crime charged was committed by the defendant or some other person,
(2) the defendant performed acts or gave encouragement that assisted the
commission of the crime, and (3) the defendant intended the commission of the
crime or knew that that principal intended to commit the crime at the time he gave
aid and encouragement.
Riley v. Berghuis, 481 F.3d 315, 322 (6th Cir. 2007). A reviewing court may infer aiding and
abetting from all the facts and circumstances, including the close association between the
defendant and the principal, the defendant’s participation in the planning and execution of the
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-6crimes, and evidence of flight after the crimes. People v. Turner, 540 N.W.2d 728, 733-34
(Mich. Ct. App. 1995).
While Lovell may be correct that the evidence did not show that he—“the second man”
in Pickett’s house—physically assaulted Pickett, the prosecution’s burden was not to show that
Lovell was “aware that Mr. Riley had the specific intent to subject” Pickett to “the intentional
infliction of intense or severe pain for the purpose of sadistic pleasure, coercion of punishment,”
as Lovell argues. Rather, it was sufficient for the prosecution to show that Lovell assisted or
encouraged Riley and knew that that Riley intended to commit the crime. As noted above, the
state appellate court relied on strong circumstantial evidence at trial identifying Lovell as the
second person in Pickett’s house as well as his involvement in planning the crime and his
presence during the beating, and this circumstantial evidence is sufficient to support his
convictions as an aider and abettor. See Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir. 2000).
Based on this evidence, reasonable jurists would not debate the district court’s conclusion that
the state court did not unreasonably apply the Jackson standard.
Sentencing Claim
Lovell challenges the upward sentencing departure, contending it is based on allegedly
inaccurate information.
Lovell asserts that the trial court relied on “misinformation of a
constitutional magnitude,” allowing the district court to review his state law sentence. See Koras
v. Robinson, 123 F. App’x 207, 213 (6th Cir. 2005) (quoting Roberts v. United States, 445 U.S.
552, 556 (1980)).
In support of his habeas petition, Lovell disagreed with the presentence report’s reference
to his “making a living employing scams in the home improvement trade,” and to the trial court’s
belief that he had engaged in a pattern of “preying on good natured citizens who . . . have only to
be brutalized or swindled ultimately and almost killed because . . . good heartedness and giving
work to solicitors.” Lovell argued that this information was wholly inaccurate because he had no
prior felony convictions and had not used his paving business to prey on elderly homeowners.
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No. 18-2057
-7On direct appeal, the state court upheld the trial court’s upward departure of twelve years
and eleven months because the court had provided “substantial and compelling reasons” for the
departure. Riley, 2011 WL 4501765, at *10. The court listed the following reasons: “the
unusual nature of the home invasion in that it was planned to occur while the victim was present;
the steps Lovell took to prevent the victim from calling for help, leaving [the victim] to die, and
Lovell’s pattern of using his paving business to prey on elderly homeowners.” Id. The appellate
court determined that these reasons were “not clearly erroneous . . . were objective and
verifiable,” and were “of considerable worth in determining the length of the sentence,” quoting
People v. Smith, 754 N.W.2d 284, 290 (2008).
As the district court explained, a claim regarding the calculation of a sentence under state
law was typically not cognizable in a federal habeas corpus proceeding when the sentence fell
within the limits proscribed by the State, unless the petitioner could show that the sentence
violated due process by its being based upon “material information of constitutional magnitude.”
See Hutto v. Davis, 454 U.S. 370, 373-74 (1982); Roberts, 445 U.S. at 556. To prevail, Lovell
was required to show that (1) the information before the sentencing court was materially false,
and (2) the court relied on the false information in imposing the sentence. See United States v.
Tucker, 404 U.S. 443, 447 (1972).
The sentencing transcript revealed that the state court had not relied on the allegedly false
information. Rather, the state courts referred to the unusual nature of the home invasion, the
steps Lovell took to prevent the victim from calling for help, and his leaving the victim to die.
Although the state appellate court also referred to “Lovell’s pattern of using his paving business
to prey on elderly homeowners,” this information was not “materially false” for the reasons
stated by the district court regarding Lovell’s subsequent misleading activities. Because the
information relied upon in sentencing was not materially false information of constitutional
magnitude, reasonable jurists would not debate the district court’s resolution of this state-law
sentencing claim.
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-8Lovell argues for the first time in his COA motion that (1) the sentencing court
erroneously sentenced him for the torture conviction because that conviction was not supported
by sufficient evidence, and (2) the sentencing court had no factual basis for stating that Lovell
had a “primary role” in planning the confrontation and beating and had failed to put[] a stop to
the beating despite seeing and hearing what was happening.” In addition, Lovell refers to the
trial court’s allegedly misinformed statement that Lovell left the victim “for dead.” Because
Lovell failed to present these specific challenges regarding the sentencing court’s statements to
the district court, this court will not consider them for the first time in deciding his COA. See
Weinberger v. United States, 268 F.3d 346, 352 (6th Cir. 2001). Based on the above, reasonable
jurists would not debate the district court’s rationale for rejecting Lovell’s challenge to his
sentence.
Accordingly, the court DENIES Lovell’s application for a COA.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk
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EXHIBIT B
Case 4:15-cv-11541-LVP-DRG ECF No. 8 filed 08/21/18
PageID.2916
Page 1 of 28
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NOAH RICHARD LOVELL, III,
Petitioner,
Case No. 15-11541
Honorable Linda V. Parker
v.
PAUL KLEE,1
Respondent.
________________________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY
Petitioner Noah Richard Lovell, III (“Petitioner”), through counsel, has filed
a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is
challenging his Michigan state court convictions for armed robbery in violation of
Michigan Compiled Laws § 750.529, unlawful imprisonment in violation of
Michigan Compiled Laws § 750.349b, torture in violation of Michigan Compiled
Laws § 750.85, and first-degree home invasion in violation of Michigan Compiled
Laws § 750.110a(2). For the reasons stated below, the Court is denying Petitioner
habeas relief. The Court also is denying Petitioner a certificate of appealability.
1
The Court sua sponte amends the case caption to reflect the warden of the
Lakeland Correctional facility in Coldwater, Michigan, where Petitioner currently
is confined. See Rule 2(a) of the Rules Governing § 2254 Cases.
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I.
PageID.2917
Page 2 of 28
Background
Petitioner was convicted of the above-listed offenses following a jury trial in
the Circuit Court for Livingston County, Michigan. Petitioner was tried with his
co-defendant, Harry Riley. The trial court sentenced Petitioner, as a fourth
habitual offender, fourth offense, to concurrent terms of imprisonment of 36 years
and 8 months to 75 years for his armed robbery and torture convictions and 10 to
15 years for his unlawful imprisonment conviction, and a consecutive term of
imprisonment of 13 years and 4 months to 20 years for the first-degree home
invasion conviction. Petitioner’s convictions and sentence were affirmed on direct
appeal. People v. Riley, No. 295838, 2011 WL 4501765 (Mich. Ct. App. Sept. 29,
2011), lv. den., 810 N.W.2d 582 (Mich. 2012).
This Court recites verbatim the relevant facts relied upon by the Michigan
Court of Appeals when denying Petitioner’s appeal:
This case arises out of the armed robbery, unlawful
imprisonment, torture, and home invasion of an 84-year-old
victim. On the day of the incident, Riley went to the victim’s
back door wearing a work vest and a hard hat under the guise
that he worked for a utility company and wanted to look at the
victim’s property. The victim walked his property with Riley
for approximately 45 minutes. Riley was talking on his cellular
telephone during a substantial portion of that time. Cellular
telephone call logs showed that Lovell’s telephone was in the
vicinity of the victim’s house and that numerous calls were
made to Riley at the time of the crime. Riley’s vehicle was
rented by Lovell.
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Page 3 of 28
Riley followed the victim into his house; at that point, the
victim noticed a pry bar on the table in his dinette. As the
victim reached for the pry bar, Riley punched the victim in the
face so hard that it knocked his dentures out of his mouth and
knocked his glasses off of his face. Riley then grabbed the
victim and pushed him down the stairs. At the bottom of the
stairs, Riley continued to beat the victim, punching and kicking
his face and body. Riley repeatedly demanded to know where
the victim kept his money, and threatened to kill him. Riley also
repeatedly poked the victim’s arms, chest, and neck with a
knife. The victim lost consciousness several times during the
beating. Riley then sat the victim in a chair and bound his wrists
and ankles with duct tape. Riley kicked the victim’s face with
such force that if [sic] left a shoe print. During the incident, the
victim heard a second individual come halfway down the stairs;
from his vantage point, the victim could only see the second
individual, a white male, from the waist down. The second
individual threatened to kill the victim if he did not reveal the
location of the money. Meanwhile, Riley took the victim’s coin
collection. The victim had a broken jaw, broken nose, cracked
eye sockets, three broken ribs, and blood on the brain. The
victim stayed in the hospital for over a week, and then spent
nearly two months in a rehabilitation center.
The next day, Lovell and Riley met with George Wilson
who heard them discussing how they were going to sell coins.
Wilson also heard Riley berate Lovell for his time-consuming
method of ransacking drawers. A receipt from a hardware store
indicating the purchase of a hard hat, pry bar, and work gloves
was found in the victim’s driveway, and Lovell was identified
as the individual who purchased the goods.
Riley, 2011 WL 4501765, at *1-2. These facts are presumed correct on habeas
review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410,
413 (6th Cir. 2009).
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Petitioner filed a post-conviction motion for relief from judgment in the state
trial court (ECF No. 5-20), which the court denied. (ECF No. 5-21.) The
Michigan appellate courts denied Petitioner leave to appeal. People v. Lovell, No.
319508 (Mich. Ct. App. June 3, 2014) (ECF No. 5-22); lv. den. 858 N.W.2d 53
(Mich. 2015).
Petitioner asserts the following grounds in support of his application for
federal habeas relief:
I.
Mr. Lovell is entitled to a new trial under the Due
Process Clause of the Fourteenth Amendment to the U.S.
Constitution where newly discovered evidence after
trial—co-defendant Riley’s affidavit exonerating him and
prosecution witness Mr. Wilson’s affidavit recanting his
trial testimony against him—show a fair probability that
a different result would be rendered on retrial.
II.
Mr. Lovell was denied the effective assistance of counsel
under the Sixth and Fourteenth Amendments to the U.S.
Constitution when his trial counsel, before testimony was
given, failed to renew his motion for separate trials or
juries when co-defendant Riley offered to testify at trial
to exonerate Mr. Lovell.
III.
Prosecutorial misconduct in rebuttal closing argument
deprived Mr. Lovell of his right to a fair trial under the
Fourteenth Amendment to the U.S. Constitution when the
prosecutor shifted the burden of proof and commented on
his silence in violation of his privilege against selfincrimination under the Fifth and Fourteenth
Amendments to the U.S. Constitution.
IV.
Mr. Lovell was denied his right to due process under the
Fourteenth Amendment to the U.S. Constitution because
the evidence was insufficient to sustain the convictions.
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II.
PageID.2920
V.
Mr. Lovell was denied due process under the Fourteenth
Amendment to the U.S. Constitution when he was
sentenced on the basis of inaccurate information in the
presentence report that was improperly used to support
an upward departure in his sentences.
VI.
Mr. Lovell was denied the effective assistance of counsel
under the Sixth and Fourteenth Amendments to the U.S.
Constitution when his appellate counsel failed to raise the
issues presented in the motion for relief from judgment
under MCR 6.500 et al, which were also presented to the
Michigan Court of Appeals and the Michigan Supreme
Court on appeal and raised in the present habeas petition.
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Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
imposes the following standard of review for 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.
28 U.S.C. § 2254(d). A decision of a state court is “contrary to” clearly
established federal law 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
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case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An
“unreasonable application” occurs when “a state court decision unreasonably
applies the law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at
409. A federal habeas court may not “issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly.” Id. at 410-11.
“[A] state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In order to obtain habeas
relief in federal court, a state prisoner is required to show that the state court’s
rejection of his or her claim “was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103. A habeas petitioner should be denied relief
as long as it is within the “realm of possibility” that fairminded jurists could find
the state court decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149,
1152 (2016).
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III.
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Discussion
A.
Actual Innocence Claim
Petitioner claims that he is entitled to habeas relief because he is actually
innocent of the charges. Petitioner submits two affidavits in support of this claim.
In one affidavit, Petitioner’s co-defendant, Mr. Riley, asserts that Petitioner was
not involved in the planning or commission of the crimes. (See ECF No. 5-20 at
Pg ID 2646.) Mr. Riley’s affidavit was signed and dated January 3, 2013, over
three years after Petitioner was convicted. (Id.) The other affidavit is a declaration
from prosecution witness, George Wilson, in which Wilson claims that he testified
falsely at Petitioner’s criminal proceedings (i.e., the evidentiary and preliminary
hearings and trial) about Petitioner’s involvement in the crimes. (Id. at Pg ID
2649.) Mr. Wilson blames his false testimony on undescribed police coercion.
(Id.) Mr. Wilson’s declaration is dated June 30, 2010. (Id.)
Petitioner first presented Mr. Riley’s affidavit and Mr. Wilson’s declaration
when he moved for relief from judgment in the state trial court. Petitioner also
attempted to present Mr. Wilson’s declaration during his appeal of right with the
Michigan Court of Appeals. The Michigan Court of Appeals refused to consider
Mr. Wilson’s declaration because it was not part of the lower court record. Riley,
2011 WL 4501765, at *8.
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In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court held that
“[c]laims of actual innocence based on newly discovered evidence” fail to state a
claim for federal habeas relief “absent an independent constitutional violation
occurring in the underlying state criminal proceeding.”1 Id. at 400; see also House
v. Bell, 547 U.S. 518, 554-55 (2006) (declining to answer the question left open in
Herrera of whether a habeas petitioner may bring a freestanding claim of actual
innocence). Federal habeas courts “sit to ensure that individuals are not
imprisoned in violation of the Constitution, not to correct errors of fact.” Herrera,
506 U.S. at 400 (citations omitted); see also McQuiggin v. Perkins, 569 U.S. 383,
392 (2013) (“We have not resolved whether a prisoner may be entitled to habeas
relief based on a freestanding claim of actual innocence”). Freestanding claims of
actual innocence are thus not cognizable on federal habeas review, absent
independent allegations of constitutional error at trial. See Cress v. Palmer, 484
F.3d 844, 854-55 (6th Cir. 2007) (collecting cases).
Furthermore, a long-delayed affidavit which seeks to exonerate the
defendant or petitioner and shift the blame for the crime to another person is
“treated with a fair degree of skepticism.” Herrera, 506 U.S. at 423; see also
The Herrera Court assumed without deciding that “in a capital case a truly
persuasive demonstration of ‘actual innocence’ made after trial would render the
execution of a defendant unconstitutional, and warrant federal habeas relief if there
were no state avenue open to process such a claim.” 506 U.S. at 417. The
Supreme Court, however, has not extended such a freestanding claim beyond the
death penalty context and Petitioner’s case is not a capital case.
8
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Lewis v. Smith, 100 F. App’x 351, 355 (6th Cir. 2004) (holding that it was proper
for the district court to reject as suspicious a witness’ recanting affidavit made two
years after the petitioner’s trial). In particular, “[p]ostconviction statements by
codefendants [which attempt to exculpate a criminal defendant] are inherently
suspect because codefendants may try to assume full responsibility for the crime
without any adverse consequences.” See Allen v. Yukins, 366 F.3d 396, 405 (6th
Cir. 2004) (post-conviction affidavits of habeas petitioner’s two codefendants were
legally insufficient to establish that she was actually innocent, so as to toll the
AEDPA’s statute of limitations; affidavit was inherently suspect because the
codefendant could have signed it to help petitioner without endangering his own
interests); In re Byrd, 269 F.3d 561, 574 (6th Cir. 2001) (petitioner did not satisfy
the miscarriage of justice exception necessary to reach the merits of a successive
habeas petition, where the evidence of actual innocence was an affidavit from a codefendant which was made six years after the co-defendant had been convicted and
sentenced for his part in the crime and the co-defendant’s confession was made
only after he was no longer subject to further punishment for his actions for these
crimes).
Mr. Riley, Petitioner’s co-defendant, signed and dated his affidavit
exonerating Petitioner over three years after their trial. In the affidavit, Mr. Riley
does not offer any convincing explanation as to why he waited so long to come
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forward and attempt to exonerate petitioner. Furthermore, the statements come
after Mr. Riley was sentenced to 75 to 115 years in prison and is no longer subject
to any further punishment or other adverse consequences for his actions.
Affidavits from fellow inmates that are created after trial are not sufficiently
reliable evidence to support a finding of actual innocence. See Milton v. Secretary,
Dep’t Of Corr., 347 F. App’x 528, 531-32 (11th Cir. 2009). The fact that Mr.
Riley did not come forward in a timely manner, when he claimed he knew
Petitioner was wrongly convicted undermines his credibility, particularly when
there is also no indication that Mr. Riley ever contacted the police or law
enforcement about his allegedly exculpatory information. See Ashmon v. Davis,
508 F. App’x 486, 488 (6th Cir. 2012).
When Petitioner presented Mr. Riley’s affidavit in support of his motion for
relief of judgment, the trial court judge found that the evidence was not newly
discovered because “if the Defendant was truly not involved with the crime, he
was aware or should have been aware that Riley had the ability to offer the
testimony contained in the current declaration.” People v. Lovell, No. 09-18082FC, at *6 (ECF No. 5-21 at Pg ID 2655.) The trial court judge further found that
“[i]n the face of all the other circumstantial evidence connecting the Defendant to
the crime, it does not appear Riley’s testimony would render a different result.” Id.
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This Court agrees that Riley’s affidavit is not “newly discovered” evidence that
would have rendered a different result.
The Court similarly views Mr. Wilson’s declaration with “extreme
suspicion.” United States v. Willis, 257 F.3d 636, 645 (6th Cir. 2001)
(“[A]ffidavits by witnesses recanting their trial testimony are to be looked upon
with extreme suspicion.”) (internal quotation marks omitted); United States v.
Chambers, 944 F.2d 1253, 1264 (6th Cir. 1991) (stating that “[r]ecanting affidavits
and witnesses are viewed with extreme suspicion”), superseded by statute on other
grounds as recognized in United States v. Avery, 128 F.3d 966, 972 (6th Cir. 1997).
Mr. Wilson’s recantation is also suspect because his trial testimony was consistent
with other evidence and testimony presented in the case, while his recantation is
inconsistent with such evidence. See e.g., Allen v. Woodford, 395 F.3d 979, 994
(9th Cir. 2005) (uncorroborated recantation is “even more unreliable” where trial
testimony was consistent with other evidence and recantation was not). Moreover,
Mr. Wilson’s declaration is dated June 30, 2010, before Petitioner’s direct appeal
became final. As such, it is not “new” evidence for purposes of establishing actual
innocence. Moore v. Woods, -- F.3d --, 2018 WL 3089822, at *3 (6th Cir. June 20,
2018).
For these reasons, the Court concludes that Petitioner is not entitled to relief
on his actual innocence claim.
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B.
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Ineffective Assistance of Trial Counsel Claim
Petitioner alleges that he was denied the effective assistance of counsel when
his trial attorney failed to renew his motion for severance. Respondent contends
that this claim is procedurally defaulted due to Petitioner’s failure to provide legal
support for his claim in the state court.
Petitioner initially raised this ineffective assistance claim in his motion for
relief from judgment. In rejecting the claim, the state trial court judge found that
Petitioner waived it and another ineffective assistance of counsel claim by failing
to provide citations to the record or any legal authority (besides a general citation
to Strickland v. Washington, 466 U.S. 668 (1984), and People v. Ginther, 212
N.W.2d 922 (1973)). People v. Lovell, No. 09-18082-FC, at *7-8 (ECF No. 5-21
at Pg ID 2657). When the state courts clearly and expressly rely on a valid state
procedural bar, federal habeas review is also barred unless the petitioner can
demonstrate “cause” for the default and actual prejudice as a result of the alleged
constitutional violation, or can demonstrate that failure to consider the claim will
result in a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.
722, 750-51 (1991). If a petitioner fails to show cause for his procedural default, it
is unnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S.
527, 533 (1986).
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In an extraordinary case, however, where a constitutional error has probably
resulted in the conviction of one who is actually innocent, a federal court may
consider the constitutional claims presented even in the absence of a showing of
cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-80 (1986). To
be credible, such a claim of innocence requires a petitioner to support the
allegations of constitutional error with new reliable evidence that was not
presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). “‘[A]ctual
innocence’ means factual innocence, not mere legal insufficiency.” Bousley v.
United States, 523 U.S. 614, 624 (1998).
Under Michigan law, a party who fails to develop any argument or cite any
authority in support of his or her claim waives appellate review of the issue. People
v. Griffin, 597 N.W.2d 176, 186 (Mich. Ct. App. 1999). “A party may not merely
state a position and then leave it to [the reviewing court] to discover and rationalize
the basis for the claim.” Id. (citations omitted). A state court conclusion that an
issue was waived is considered a procedural default. See e.g. Shahideh v. McKee,
488 F. App’x 963, 965 (6th Cir. 2012).
As cause for the procedural default, Petitioner argues that his postconviction counsel was ineffective for failing to adequately brief Petitioner’s claim
based on trial counsel’s failure to renew the request for severance. Petitioner
cannot rely on ineffective assistance of post-conviction counsel as cause because
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there is no constitutional right to an attorney in post-conviction proceedings.2 See
Coleman, 501 U.S. at 752-53, see also Landrum v. Mitchell, 625 F.3d 905, 919
(6th Cir. 2010). Because Petitioner has not demonstrated any cause for his
procedural default, it is unnecessary to reach the prejudice issue regarding his
second claim. Smith, 477 U.S. at 533.
Additionally, for the reasons asserted earlier, Petitioner does not present any
new reliable evidence to support an assertion of innocence allowing this Court to
consider his claim as a ground for a writ of habeas corpus in spite of the procedural
default.
In short, the Court finds that Petitioner’s second claim is procedurally
defaulted.
C.
Prosecutorial Misconduct Claim
Petitioner claims he was denied a fair trial because of prosecutorial
misconduct.
“On habeas review, claims of prosecutorial misconduct are reviewed
deferentially.” Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003) (citing
Darden v. Wainwright, 477 U.S. 168, 181 (1986)). A prosecutor’s improper
The Supreme Court has stated an exception to this rule for claims that could not
have been raised on direct appeal. Martinez v. Ryan, 566 U.S. 1 (2012). In
Michigan, however, defendants may assert ineffective-assistance claims on direct
appeal. Bell v. Howe, 701 F. App’x 408, 413 (6th Cir. 2017) (citing Taylor v.
McKee, 649 F.3d 446, 452 (6th Cir. 2011)). As such, Petitioner cannot rely on his
claim of ineffective assistance of post-conviction counsel to excuse his default.
14
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comments will be held to violate a criminal defendant’s constitutional rights only if
they “‘so infected the trial with unfairness as to make the resulting conviction a
denial of due process.’” Id. (quoting Darden, 477 U.S. at 181 (additional citation
omitted)). Therefore, a claim of prosecutorial misconduct provides a basis for
habeas relief only if the conduct was so egregious as to render the entire trial
fundamentally unfair based on the totality of the circumstances. Donnelly v.
DeChristoforo, 416 U.S. 637, 643-45 (1974). Moreover, to obtain federal habeas
relief on a prosecutorial misconduct claim, the petitioner must show that the state
court’s rejection of the claim “was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Parker v. Matthews, 567 U.S. 37, 48 (2012) (quoting
Harrington, 562 U.S. at 103).
Petitioner first contends that the prosecutor committed misconduct in closing
rebuttal argument by shifting the burden of proof to Petitioner by stating: “You
[referring to defense counsel] sat and attacked everybody in this case and you
didn’t once tell us what did your client do. What’s he responsible for?” (11/4/09
Trial Tr. at 217, ECF No. 5-14 at Pg ID 2212.) The trial court instructed the jury
that Petitioner was presumed innocent and that the prosecutor had the burden of
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proving Petitioner’s guilt beyond a reasonable doubt.2 (Id. at 99, Pg ID 2094.) The
trial court further instructed the jury:
Next section, defendant not testifying. Every defendant
has the absolute right not to testify. When you decide the case
you must not consider the fact that defendants Riley and Lovell
did not testify. It must not effect your verdict in any way.
(Id. at 100, Pg ID 2095.) Any possible prejudice that might have resulted from the
prosecutor’s comment was cured by the trial court’s instructions regarding the
proper burden of proof. See Scott v. Elo, 302 F.3d 598, 603-04 (6th Cir. 2002)
(denying habeas relief and concluding that even if prosecutor committed
misconduct during closing argument, it was not an error that “jury instructions
could not cure.”); see also United States v. Carter, 236 F.3d 777, 786-87 (6th Cir.
2001) (finding that the prosecutor’s misstatement during closing arguments
regarding witness’s testimony was inherently prejudicial to the defendant and
indicating that such prejudice could have been cured or at least minimized by
curative instructions to the jury, but concluding that no instructions directed at the
misstatements were given).
Petitioner further alleges that the prosecutor committed misconduct by
commenting on Petitioner’s pre-arrest silence in response to comments by codefendant Riley. Petitioner contends that “co-defendant Riley’s alleged utterances,
2
The judge in this case instructed the jurors prior to closing arguments.
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as reported by Mr. Wilson, were improperly used against [him] as an ‘adoptive
admission,’ even though he said nothing in reply and thus there was no indication
that he assented to the statements made.” (Habeas Pet. at 35, ECF No. 1-1 at Pg ID
53).3
The Supreme Court has held that prosecutors may use a defendant’s prearrest silence as substantive evidence of his guilt so long as the defendant did not
expressly invoke his right to remain silent. Salinas v. Texas, 133 S. Ct. 2174,
2179, 2184 (2013); see also Abby v. Howe, 742 F.3d 221, 228 (6th Cir. 2014).
When viewed in context, the prosecutor’s comments referred to Petitioner’s silence
in response to Lovell’s statements the day after the incident and before he was
arrested or invoked his right to remain silent.
3
Respondent argues that this second prosecutorial misconduct claim is
procedurally defaulted because it was never exhausted with the state courts and
Petitioner no longer has an available state court remedy to exhaust the claim.
Respondent, however, acknowledges that Petitioner did allude to the claim in his
post-conviction motion for relief from judgment. In any event, a habeas
petitioner’s failure to exhaust his or her state court remedies does not deprive a
federal court of its jurisdiction to consider the merits of the habeas petition.
Granberry v. Greer, 481 U.S. 129, 131 (1987). An unexhausted claim may be
adjudicated by a federal court on habeas review if the unexhausted claim is without
merit, such that addressing the claim would be efficient and would not offend the
interest of federal-state comity. Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir.
1987); see also 28 U.S.C. § 2254(b)(2)(habeas petition may be denied on the
merits despite the failure to exhaust state court remedies). Even if the claim is
unexhausted, the claim is without merit.
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For these reasons, Petitioner is not entitled to relief on his prosecutorial
misconduct claim.
D.
Sufficiency of the Evidence Claim
Petitioner next claims that there was insufficient evidence to convict him.
“[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). When
reviewing a sufficiency of the evidence claim, the court must ask “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, 443 U.S. 307, 319 (1979) (emphasis in
original). The court does not “ask itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt.” Id. at 318-19 (emphasis in
original).
A federal habeas court may not overturn a state court decision that rejects a
sufficiency of the evidence claim merely because the federal court disagrees with
the state court’s resolution of the claim. Instead, 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, 565 U.S. 1, 2 (2011). “Because
rational people can sometimes disagree, the inevitable consequence of this settled
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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, 566 U.S. 650, 656 (2012). A state court’s determination that
the evidence does not fall below that threshold is entitled to “considerable
deference under AEDPA.” Id.
Petitioner argues that there was insufficient evidence to establish his identity
as one of the victim’s assailants. Petitioner also contends that the evidence
presented was insufficient to sustain his convictions. Petitioner does not contest
the elements of the charged offenses; rather, he argues that there was insufficient
evidence to find him guilty beyond a reasonable doubt of aiding and abetting his
co-defendant in the commission of the crimes for which he was convicted.3
The Michigan Court of Appeals found strong circumstantial evidence
supporting Petitioner’s identity as a principal and an aider-and-abettor:
3
To find a defendant guilty of aiding and abetting in the commission of a
crime, the prosecutor must show that: (1) the crime charged was committed by the
defendant or some other person; (2) the defendant performed acts or gave
encouragement that assisted the commission of the crime; and (3) the defendant
intended the commission of the crime or had knowledge that the principal
intended its commission at the time he gave aid and encouragement. Riley v.
Berghuis, 481 F.3d 315, 322 (6th Cir. 2007) (citing People v. Carines, 597
N.W.2d 130, 135 (1999)).
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Lovell argues that there was no evidence that he
was in the victim’s house during the crimes, or was
Riley’s accomplice. Thus, he is challenging the evidence
of his identity as a perpetrator. Lovell also argues that
there was insufficient evidence that the second person in
the house intended the crimes of armed robbery, unlawful
imprisonment, and torture.
In viewing the evidence in the light most favorable
to the prosecution, we find that the prosecutor
established that Lovell purchased a hard hat, pry bar,
and work gloves at a hardware store the day before the
crimes. In reference to the pry bar, the hardware store
manager heard Lovell’s companion inquire: “are you
going to buy that tool to beat that guy’s ass[?]” Lovell
was identified as the individual who rented the vehicle
seen in the victim’s driveway at the time the crimes
occurred. Cellular telephone call logs showed that
Lovell’s telephone was in the vicinity of the victim’s
house and that numerous calls were made to Riley at the
time of the crime. While the victim was bound (false
imprisonment), Riley severely beat him (torture) and
poked him with a knife while stealing his coin collection
(armed robbery). While this was occurring, the other
individual in the house threatened to kill the victim if he
did not reveal the location of his money. When Lovell
and Riley met Wilson the next day, Wilson heard them
talking about how they were going to sell coins, and
heard Riley berate Lovell for the method he used to
ransack drawers.
Identity may be shown by either direct testimony
or circumstantial evidence. Here, ample circumstantial
evidence exists, as set forth above, identifying Lovell as
one of the perpetrators of the charged offenses.
Riley, 2011 WL 4501765, at *7–8. (internal citation and footnote omitted).
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Under Michigan law, “[T]he identity of a defendant as the perpetrator of the
crimes charged is an element of the offense and must be proved beyond a
reasonable doubt.” Byrd v. Tessmer, 82 F. App’x 147, 150 (6th Cir. 2003) (citing
People v. Turrell, 181 N.W.2d 655, 656 (Mich. Ct. App. 1970)). Michigan law
further provides that “‘[c]ircumstantial evidence and reasonable inferences arising
from that evidence can constitute satisfactory proof of the elements of a crime.’”
People v. Nowack, 614 N.W.2d 78, 81 (Mich. 2000) (quoting People v. Carines,
597 N.W.2d 130 (1999)). As the Sixth Circuit has stated: “Circumstantial
evidence alone is sufficient to support a conviction, and ‘it is not necessary for the
evidence at trial to exclude every reasonable hypothesis except that of guilt.’”
Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir. 2000) (quoting United States v.
Reed, 167 F.3d 984, 992 (6th Cir. 1999)) (additional citations and brackets
omitted).
The state court reasonably concluded that circumstantial evidence
established Petitioner’s identity as the second offender and that his actions at the
crime scene aided and abetted Mr. Riley. Because there were multiple pieces of
evidence to establish Petitioner’s identity as one of the perpetrators of the offenses,
the state court did not unreasonably apply the Jackson standard in rejecting
Petitioner’s sufficiency of evidence claim. See Moreland v. Bradshaw, 699 F.3d
908, 919-21 (6th Cir. 2012).
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The state court also reasonably concluded that there was sufficient evidence
for a rational trier of fact to conclude that Petitioner aided and abetted Mr. Riley
with the crimes, including the torture charge. As noted above, to be convicted as
an aider and abettor, the defendant must either possess the required intent to
commit the crime or have participated while knowing that the principal had the
requisite intent; such intent may be inferred from circumstantial evidence. See
Long v. Stovall, 450 F. Supp. 2d 746, 753 (E.D. Mich. 2006); People v. Wilson,
196 Mich. App. 604, 614; 493 N.W.2d 471 (1992). The intent of an aider and
abettor is satisfied by proof that he knew the principal’s intent when he gave aid or
assistance to the principal. People v. McCray, 533 N.W. 2d 359, 361 (Mich. Ct.
App. 1995) (citations omitted). An aider and abettor’s state of mind may be
inferred from all of the facts and circumstances, including close association
between the defendant and the principal, the defendant’s participation in the
planning and execution of the crime, and evidence of flight after the crime. People
v. Turner, 540 N.W.2d 728, 733-34 (Mich. Ct. App. 1995) (citations omitted).
In Petitioner’s case, there was sufficient evidence to establish that he aided
and abetted Mr. Riley in all of the offenses for which he was convicted. This
includes the torture conviction, even if Petitioner never actually touched the
victim. Petitioner is not entitled to relief on his sufficiency of the evidence claim.
E.
Sentencing Guideline Claim
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Petitioner argues that he was denied due process when inaccurate
information in the presentence report was used to support an upward departure in
his sentences. Specifically, Petitioner refers to the report’s reference to him as a
“gyps[y]” “who travel[s] throughout the country, including all the states Lovell …
has worked in, making a living employing scams in the home improvement trade.”
(Pet. at 40-41, ECF No. 1-1 at Pg ID 58-59.) He also refers to the report’s
statement that he has a history of exploiting elderly people, which the trial judge
described as “a pattern of, of practices of preying on good natured citizens who are
willing to give tradesman work who come to their door. And have only to be
brutalized or swindled ultimately and almost killed because … good heartedness
and giving work to solicitors.” (12/11/09 Hr’g Tr. at 54-55 ECF No. 5-16 at Pg ID
2321-22.)
Claims concerning the trial court’s calculation of a defendant’s sentencing
guidelines range under state law are state-law claims and typically not cognizable
in federal habeas corpus proceedings. See Hutto v. Davis, 454 U.S. 370, 373-74
(1982) (federal courts normally do not review a sentence for a term of years that
falls within the limits prescribed by the state legislature); Austin v. Jackson, 213
F.3d 298, 301-02 (6th Cir. 2000) (alleged violation of state law with respect to
sentencing is not subject to federal habeas relief). However, “an alleged violation
of state law could, potentially, ‘be sufficiently egregious to amount to a denial of
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equal protection or due process of law guaranteed by the Fourteenth
Amendment.’” Koras v. Robinson, 123 F. App’x 207, 213 (6th Cir. 2005) (quoting
Bowling v. Parker, 344 F.3d 487, 521 (6th Cir. 2003)) (additional quotation marks
and citation omitted). A sentence may violate due process if it is based upon
“material ‘misinformation of constitutional magnitude.’” Koras, 123 F. App’x at
213 (quoting Roberts v. United States, 445 U.S. 552, 556 (1980)); see also United
States v. Tucker, 404 U.S. 443, 447 (1972); Townsend v. Burke, 334 U.S. 736, 741
(1948).
To prevail on such a claim, the petitioner must show that (1) the information
before the sentencing court was materially false, and (2) the court relied on the
false information in imposing the sentence. Tucker, 404 U.S. at 447; United States
v. Polselli, 747 F.2d 356, 358 (6th Cir. 1984); Koras, 123 F. App’x at 213 (quoting
United States v. Stevens, 851 F.2d 140, 143 (6th Cir. 1988)). The sentencing court
demonstrates actual reliance on misinformation when the court give “explicit
attention” to it, “found” its sentence “at least in part” on it, or gives “specific
consideration” to the information before imposing sentence. Tucker, 404 U.S. at
444, 447.
The sentencing transcript does not reflect the state trial court’s reliance on
information Petitioner claims to be false. When speaking about Petitioner,
specifically, the trial judge did not state that Petitioner had travelled around the
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United States taking advantage of elderly homeowners or scamming homeowners.
What the trial court discussed instead was Mr. Riley’s out-of-state conduct after
the incident in question which undisputedly did involve taking advantage of
several elderly homeowners.
With respect to Petitioner, the trial judge referred only “in passing” to
“issues that occurred in Midland county and Tawas and Clair” and “those business
practices[.]” (12/11/09 Hr’g Tr. at 56, ECF No. 5-16 at Pg ID 2324) However,
Petitioner does not show that this information was false. Moreover, the transcript
reflects that the facts primarily influencing the trial court’s sentencing decision
were those presented at trial, which Petitioner has not shown to be false. (See id. at
54-58, Pg ID 2321-2325.) Specifically, the trial court concluded that Petitioner
posed “a clear and present danger” warranting sentences above the guidelines due
to his conduct with respect to the victim, including Petitioner’s primary role in
planning and “put[ting] in motion” the confrontation, robbery and severe beating
of the victim, not putting a stop to the beating despite seeing and hearing what was
happening, and leaving the victim for dead, bound and gagged in his basement.
(Id.) To the extent the trial court relied on any materially false information, it is
not “misinformation of constitutional magnitude.” See supra.
Petitioner is not entitled to habeas relief based on his sentencing claim.
F.
Ineffective Assistance of Appellate Counsel Claim
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In his final claim, Petitioner contends that his appellate counsel was
ineffective for failing to raise on direct appeal the issues presented in his motion
for relief from judgment.
The Sixth Amendment guarantees a defendant the right to the effective
assistance of counsel on the first appeal by right. Evitts v. Lucey, 469 U.S. 387,
396-397 (1985). Court appointed counsel, however, does not have a constitutional
duty to raise every nonfrivolous issue a defendant requests. Jones v. Barnes, 463
U.S. 745, 751 (1983). The issues presented in the motion for relief from judgment
were found to be meritless. “[A]ppellate counsel cannot be found to be ineffective
for ‘failure to raise an issue that lacks merit.’” Shaneberger v. Jones, 615 F.3d
448, 452 (6th Cir. 2010) (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.
2001)).
The Court therefore concludes that Petitioner is not entitled to habeas relief
based on his ineffective assistance of appellate counsel claim.
IV.
Conclusion & Certificate of Appealability
For the reasons set forth above, the Court concludes that Petitioner is not
entitled to habeas relief pursuant to § 2254. Therefore, the Court is denying
Petitioner’s application for the writ of habeas corpus.
In order to appeal this decision, Petitioner must obtain a certificate of
appealability. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A certificate of
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appealability may issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
satisfies this standard by demonstrating that jurists of reason could disagree with
the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El, 537 U.S. at 327.
Reasonable jurists could not debate the Court’s assessment of
Petitioner’s claims, nor conclude that the issues deserve encouragement to
proceed further. The Court therefore declines to issue a certificate of
appealability.
Accordingly,
IT IS ORDERED that the Petition for a Writ of Habeas Corpus is DENIED
WITH PREJUDICE.
IT IS FURTHER ORDERED that a Certificate of Appealability is
DENIED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: August 21, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, August 21, 2018, by electronic and/or
27
Case 4:15-cv-11541-LVP-DRG ECF No. 8 filed 08/21/18
PageID.2943
U.S. First Class mail.
s/ R. Loury
Case Manager
28
Page 28 of 28
EXHIBIT C
Order
Michigan Supreme Court
Lansing, Michigan
Robert P. Young, Jr.,
February 3, 2015
Chief Justice
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein,
149783
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
Justices
SC: 149783
COA: 319508
Livingston CC: 09-018082-FC
NOAH RICHARD LOVELL, III,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the June 3, 2014 order of
the Court of Appeals is considered, and it is DENIED, because the defendant has failed to
meet the burden of establishing entitlement to relief under MCR 6.508(D).
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
February 3, 2015
s0126
Clerk
EXHIBIT D
Case 4:15-cv-11541-LVP-DRG ECF No. 5-22 filed 11/03/15
PageID.2664
Page 1 of 144
Court of Appeals, State of Michigan
ORDER
Michael J. Talbot
People of MI v Noah Ricard Lovell III
Presiding Judge
Docket No.
319508
E. Thomas Fitzgerald
LC No.
09-018082-FC
William C. Whitbeck
Judges
The Court orders that the motion to remand is DENIED.
The delayed application for leave to appeal is DENIED for failure to meet the burden of
establishing entitlement to relief under MCR 6.508(D).
A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on
JUN - 3 2014
Date
EXHIBIT E
Case 4:15-cv-11541-LVP-DRG ECF No. 5-22 filed 11/03/15
144
PageID.2745
Page 82 of
kir)
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF LIVINGSTON
PEOPLE OF MICHIGAN,
Case No. 09- 18082- FC
v
Hon. Michael P. Hatty
NOAH LOVELL.
OPINION
At a session of the 44th Circuit Court,
held in the City of Howell, Livingston County,
RECEIVED by Michigan Court of Appeals 2/21/2014 1:32:30 PM
on the
&
day
of June, 2013.
is) kb
t:,}-
THIS MATTER COMES before the Court on the Defendant' s Motion for Relief
Judgment. After reviewing the Defendant' s motion with all the files, records, and transcrip s
relating to the judgment under attack, the Court summarily DENIES the motion pursuant to
MCR 6. 504(BX2) for the reasons below.
I.
Relevant Facts& Procedural History.
This case arose out of an incident that occurred on October 29, 2008. On that date, the
Defendant' s co-defendant, Henry Riley, went to the backdoor of the victim, an 84 year old man,
under the guise of a utility company worker. After gaining access to the victim' s house, Riley
punched and beat the victim until he was able to bind the victim in a chair. During the incident,
the victim heard a second individual in his house and was able to view this individual, a white
male, from the waist down. During the course of the robbery, the victim was repeatedly
threatened with death by both Riley and the second individual as they both demanded the
location of the victim' s money. In the end, the victim was left with a broken jaw, broken nose,
cracked eye sockets, three broken ribs, and blood on the brain.
1
Case 4:15-cv-11541-LVP-DRG ECF No. 5-22 filed 11/03/15
144
PageID.2746
Page 83 of
The Defendant was connected to the crime and identified based on a large amount of
circumstantial evidence. Specifically, his purchase of a hard hat, pry bar, and work gloves at a
hardware store shortly before the crime as well as references about the use of the pry bar made
while at the store. Additionally, the Defendant was shown to have rented the vehicle seen in the
victim' s driveway at the time the crimes occurred. Further, cellular telephone call logs showed
that the Defendant' s phone was in the vicinity of the victim' s house and that numerous calls were
made to Riley at the time of the crime. Moreover, the day after the incident, George Wilson
RECEIVED by Michigan Court of Appeals 2/21/2014 1:32:30 PM
heard Riley berate Lovell for the method he used to sort through the drawers at the house, and
further, Mr. Wilson testified that he had heard Riley and Lovell talking about how they were
going to sell coins ( an item stolen from the victim' s residence).
On November 5, 2009, following a jury trial the Defendant was found guilty of Armed
Robbery, Unlawful Imprisonment, Torture, and Home Invasion in the First Degree.
Subsequently,
the
Defendant
was
sentenced
on
December
11,
2009.
After articulating
substantial and compelling reasons for doing so this Court made an upward departure from the
guidelines and sentenced the Defendant to 36 years and 8 months to 75 years on the charge of
armed robbery, to 10 years to 15 years on the charge of unlawful imprisonment, to 36 years and
8 months to 75 years on the charge of torture, and to 13 years to 4 months to 20 years on the
charge of home invasion in the first degree. The Defendant was given 37 days credit on counts 1
through 3, but was ordered to serve his sentences on counts 1, 2, and 3, consecutive to the
sentence on count 4.
The Defendant filed a claim of appeal on April 14, 2010, raising a number of the same
issues addressed in the current motion. On September 29, 2011, the Court of Appeals issued a
per curiam opinion in the Defendant' s appeal, affirming the verdict as well as the various
2
Case 4:15-cv-11541-LVP-DRG ECF No. 5-22 filed 11/03/15
144
PageID.2747
Page 84 of
challenged rulings of this Court. Following this opinion, the Defendant filed an application for
leave with the Michigan Supreme Court. This application was denied on April 23, 2012, and
now, the Defendant petitions this Court pursuant to the rules/procedures set forth in MCR 6. 500
et seq.
II.
Law & Analysis.
To be entitled to relief from judgment under MCR 6.500 et seq., the Defendant has the
RECEIVED by Michigan Court of Appeals 2/21/2014 1:32:30 PM
burden of establishing entitlement to the relief requested and this Court may not grant relief to
the defendant if the motion " alleges grounds for relief which were decided against the defendant
in a prior appeal... unless the defendant establishes that a retroactive change in the law has
undermined
the
prior
decision."
Furthermore, the Court may not grant relief if the motion
alleges grounds for relief...which could have been raised on appeal from the conviction and
sentence... unless the defendant demonstrates good cause for failure to raise such grounds on
appeal or in the prior motion, and actual prejudice from the alleged irregularities that support the
claim for relief"
MCR 6. 508( D)( 3). "
Actual prejudice" means that " in a conviction following a
trial, but for the alleged error, the defendant would have had a reasonably likely chance of
acquittal" or " the irregularity was so offensive to the maintenance of a sound judicial process
that the conviction should not be allowed to stand regardless of its effect on the outcome of the
case."
MCR 6. 508( D)( 3)( b)( i)
and (
iii). Furthermore, the Court may waive the " good cause"
requirement if it concludes that there is a significant possibility that the defendant is innocent.
MCR 6. 508( D).
In this case, the Defendant asserts that nevertheless " good cause" exists in this
circumstance, because his prior appellate counsel was ineffective in failing to investigate and
3
Case 4:15-cv-11541-LVP-DRG ECF No. 5-22 filed 11/03/15
144
PageID.2748
Page 85 of
raise obviously meritorious issues. Good cause can be established by showing ineffective
assistance of counsel, or by demonstrating that " some external factor prevented counsel from
375, 378 ( 1995).
previously raising the issue." People v. Reed, 449 Mich.
Here, however, as
explained in the following sections, the Court fmds no ineffective assistance of counsel, and
accordingly, the Defendant has failed to meet the good cause requirement. The Court will also
note that Defendant has also requested that the Court dispense with the " good cause"
requirement based upon the significant possibility that he is innocent; however, because the court
RECEIVED by Michigan Court of Appeals 2/21/2014 1:32:30 PM
finds no factual or legal support for such a claim, it will decline to waive the requirement.
Furthermore, regardless, all of the Defendant' s legal arguments fail, and accordingly, he is
unable to demonstrate" actual prejudice" as required.
A.
First and foremost, the Defendant argues that he is entitled to a new trial based on newly
discovered evidence. This evidence comes in the form of a declaration from his co-defendant,
Henry Riley, indicating that the Defendant was not involved in the crime as well as a declaration
from George Wilson, which indicates that he gave false testimony. The Defendant argues that
this " evidence" falls squarely within the " newly found evidence" test and requires a new trial.
The Court, however, disagrees with the Defendant' s analysis.
The test for newly discovered evidence requiring a new trial is as follows:
1) the evidence itself, not merely its materiality, was newly discovered; ( 2) the
newly discovered evidence was not cumulative; ( 3) the party could not, using
reasonable diligence, have discovered and produced the evidence at trial; and ( 4)
the new evidence makes a different result probable on retrial"
People v. Cress, 468 Mich 678, 692 ( 2003).
However, the proffered declarations do not fall
within the requirements of this test, as the " evidence" cannot be said to be " newly discovered,"
and further, even to the extent that it could be considered " unknown," this could have been
4
Case 4:15-cv-11541-LVP-DRG ECF No. 5-22 filed 11/03/15
144
corrected
by reasonable diligence.
PageID.2749
Page 86 of
Consequently, such evidence cannot serve as a basis for a
new trial.
The Court of Appeals in People v Terrell, 289 Mich App 553 ( 2010) addressed a
somewhat similar situation.
In that case, the trial court and court of appeals were faced with a
situation in which an acquitted co- defendant, whom had asserted his Fifth Amendment right at
the joint trial, agreed to testify in support of a post trial motion that the Defendant had not
committed the crime.
The trial court while recognizing that the evidence was not " newly
RECEIVED by Michigan Court of Appeals 2/21/2014 1:32:30 PM
discovered," noted that it was evidence which was unavailable at trial due to the co- defendants
assertion of his Fifth Amendment right. On the basis of unavailability, the trial court ordered a
new trial.
On appeal, the Court of Appeals was confronted with this question: Did the co-
defendant' s testimony satisfy the first element of the newly discovered evidence test when the
co-defendant chose to invoke his Fifth Amendment right not to incriminate himself and therefore
did not testify at trial, but later agreed to testify after being acquitted.
Following a survey of the federal circuits that had addressed this question, the Terrell
Court held that a new trial is not warranted" on the basis of such evidence because it is not newly
discovered, but merely newly available." Id. at 567. In so finding, the Court noted:
We are aware of the fact that when a codefendant invokes the privilege against
self-incrimination and refuses to testify, a defendant can be denied the benefit of
any potentially exculpatory testimony the codefendant might have provided. This
is a consequence of the Fifth Amendment privilege.
The Court also went on to note that there are procedural remedies in place for the Defendant to
take advantage. Specifically, the Court noted that the Defendant could request severance from
the trial court as well as limited immunity for the co- defendant.
The Court also went on to note several legal policy considerations that support the
conclusion that a codefendant' s posttrial testimony does not and should not constitute newly
5
Case 4:15-cv-11541-LVP-DRG ECF No. 5-22 filed 11/03/15
144
discovered
evidence.
PageID.2750
Page 87 of
The first of these considerations was the lack of reliability and the
possibility that it might encourage perjury. Id. at 565. Specifically, the Court noted that
regardless of whether the codefendant' s trial ends in an acquittal or conviction, he cannot be
retried. The second of these legal considerations was the concern with legal " sandbagging." Id.
at 566.
In particular, the Court expressed concern that to hold otherwise would prejudice the
fairness of the trial by withholding or failing to seek material, probative evidence and later
attempting to collaterally attack their convictions. Id.
RECEIVED by Michigan Court of Appeals 2/21/2014 1:32:30 PM
In the present case, the Court cannot find that Riley' s potential testimony meets the
newly discovered evidence test, and further, the Court finds that the legal policy considerations
addressed by the Terrell court are present. According to the Defendant' s arguments at trial and
pretrial proceedings as well as his assertions contained in his motion for severance, the
Defendant knew Riley and, based on the evidence, was assured that Riley was involved in the
crime. Consequently, regardless of whether defense counsel had any conversation with Riley or
about potential testimony Riley could proffer, if the Defendant was truly not involved with the
crime, he was aware or should have been aware that Riley had the ability to offer the testimony
contained in the current declaration. Accordingly, the potential testimony cannot fit the definition
of " newly
discovered."
Furthermore, the Court will note, as discussed in Terrell, Riley' s
declaration is inherently untrustworthy, and moreover, in the face of all the other circumstantial
evidence connecting the Defendant to the crime, it does not appear Riley' s testimony would
render a different result.
Additionally, the Defendant claims that the affidavit George Wilson in which Mr. Wilson
asserts that he gave false testimony during the trial proceedings, is " newly discovered" evidence
demanding a new trial. Not only is the credibility of Wilson' s new affidavit questionable, but
6
Case 4:15-cv-11541-LVP-DRG ECF No. 5-22 filed 11/03/15
144
PageID.2751
Page 88 of
also, as the Court of Appeals has already observed, there was ample evidence, which was
completely independent of Wilson' s testimony, to support the Defendant' s conviction. That
being the case, even if the Court was to consider Wilson' s recantation to be " newly discovered,"
the deletion of Wilson' s testimony would not render a different result probable on retrial.'
Furthermore, the Court will note that traditionally recantation testimony, has been regarded as
suspect and untrustworthy. As noted in People v. Van Den Dreissche, 233 Mich. 38, 46 ( 1925),
thhere is no form of proof so unreliable as recanting testimony. In the popular mind it is often
RECEIVED by Michigan Court of Appeals 2/21/2014 1:32:30 PM
regarded as of great importance. Those experienced in the administration of the criminal law
know well its untrustworthy character." In this case, it is no different.
B.
Next, the Defendant has argued that he was denied the effective assistance of counsel
when his trial attorney failed to object to the prosecution' s argument/ comments regarding
alternate defense theories. The Court finds this argument unavailing for two reasons. First and
foremost, the Defendant has failed to provide citations to the record or citations to any legal
authority ( besides a general citation to Strickland and Ginther), and accordingly, this Court finds
that the Defendant' s argument has been waived. As the Defendant well knows, this Court is not
required to discover and rationalize the basis for his claims and then search for legal authority to
sustain or reject
his position. Mudge v. Macomb Co., 458 Mich 87, 105 ( 1998).
Second, the
Court believes that the Defendant is referring to the comments made by the prosecutor that were
already reviewed by the Court of Appeals, and although, the Court of Appeals reviewed the
comments under the unpreserved error standard, it did find that " the prosecutor' s comments on
The Court also questions the probative value of Wilson' s trial testimony. Although Wilson' s testimony connected
the Defendant to the crime in terms of his reactions to Riley' s statements, the Defendant' s attorney thoroughly
cross-examined Wilson on his ability to actually hear the conversation as well as his motivations, delay in coming
forward, and pretrial research. Accordingly, the reliability of Wilson' s testimony was thoroughly questioned and it
is unclear how much weight the jury actually gave his testimony.
7
Case 4:15-cv-11541-LVP-DRG ECF No. 5-22 filed 11/03/15
144
Lovell' s
alternate
defense theories were appropriate."
Mich App Sept. 29, 2011).
PageID.2752
Page 89 of
People v. Lovell, Docket No. 298164
Accordingly, because the comments were proper, the failure to
object cannot serve as a basis for ineffective assistance of counsel.
C.
The Defendant has also argued that his trial counsel was ineffective in failing to renew
his motion for severance when Riley offered to testify to exonerate him. However, similar to the
above claim of ineffective assistance of counsel, the Court finds that the Defendant has failed to
RECEIVED by Michigan Court of Appeals 2/21/2014 1:32:30 PM
properly support this claim. Specifically, the Defendant asserts that "[ b] efore the testimony at
trial began... while the parties and their counsel were in court... Riley told Lovell he would testify
and exonerate him at trial.
Lovell' s attorney heard Riley' s statement."
(
Def.'s Mot. p. 10). Not
only is this statement not reflected or alluded to anywhere in the official record, but also the
Defendant has not even submitted the affidavit that this assertion is based on. Furthermore, after
the close of the prosecution' s case, both Riley and the Defendant were questioned by their
attorneys in regards to their desire to testify, while Riley noted that he originally wanted to
testify he affirmatively declined to testify based on his attorney' s advice. At no time during this
colloquy did Riley mention exonerating Lovell. That being the case, this Court finds that the
Defendant' s argument is waived on the basis of his failure to support it.
D.
Next, the Defendant argues that the admission of George Wilson' s testimony and tape
recording against Mr. Lovell was erroneous because the statements were inadmissible as they
were not adoptive admissions and his pre- arrest silence was used as substantive evidence. In an
October 20, 2009, evidentiary hearing the Defendant challenged the admissibility of George
Wilson' s statements on the basis that it didn' t meet the requirements of MRE 801( d)( 2)( E) and
8
Case 4:15-cv-11541-LVP-DRG ECF No. 5-22 filed 11/03/15
144
violated the confrontation clause.
PageID.2753
Page 90 of
This Court ruled that the statements were admissible to show
guilty knowledge, and thus not hearsay, and further, that the demand/ question regarding the
coins was not an assertion. Furthermore, the Court ruled that even if the question/ demand could
be considered an assertion it was admissible under MRE 801( d)( 2)( E) because it was made
during the furtherance of the conspiracy. Additionally, as to the confrontation clause challenge,
this Court ruled that the challenged statements were not testimonial in nature because they were
not made under circumstances that would lead Riley to reasonably believe that the statements
RECEIVED by Michigan Court of Appeals 2/21/2014 1:32:30 PM
would be available for use at a later trial. Lastly, the Court will note that Defendant at the time of
trial challenged the admission of the recorded conversation between Wilson and Detective
Furlong as there was no showing of memory lapse to justify admission under MRE 803( 5). 2
Currently, while seemingly conceding that Wilson' s recorded statement regarding Riley' s
questions about dividing the coins was properly admitted, the Defendant argues that Wilson' s
statements regarding Riley' s admonishment of the Defendant with regard to the searching of the
victim' s drawers was impermissible hearsay. In particular, the Defendant argues that the
admonishment was hearsay as to him, that it was not excluded from hearsay under the coconspirator provision because it did nothing to further the conspiracy, that the admonishment
could not be an adoptive admission, and that the Defendant' s pre- arrest silence in the face of an
accusation could not be used as substantive evidence of his guilt pursuant to the rule in People v.
Bigge, 288 Mich 417 ( 1939).
2 The recording of George Wilson' s interview with Detective Furlong was admittedly hearsay, and that being the
case, its presentation at trial required an applicable exception. The Court notes that despite the proper admission of
the recording, pursuant to MRE 803( 5), at the evidentiary hearing on October 20, 2009, it was likely erroneous to
admit the recording at trial on November 3, 2009 without again establishing that Mr. Wilson lacked adequate
memory of the conversation. However, that being said, the Defendant has not challenged this particular ruling, and
regardless, the Court would still find this error is harmless, as it was not outcome determinative. Specifically, as
noted by the Court of Appeals, even if Mr. Wilson' s testimony had been severed in its entirety, there was still ample
evidence to show Defendant' s criminal responsibility beyond a reasonable doubt.
9
Case 4:15-cv-11541-LVP-DRG ECF No. 5-22 filed 11/03/15
144
PageID.2754
Page 91 of
To even get into the Defendant' s more specific arguments, the Court would first have to
find that the admonishment regarding the drawers was hearsay. Here, the Court cannot make
such a conclusion.
At the October 20, 2009, evidentiary hearing the Court found that the
admonishment was not offered for the truth of the matter asserted. This ruling is legally correct,
and accordingly, the Defendant' s subsequent arguments must fail.
Specifically, MRE 801( c) defines hearsay as " as statement, other than one made by the
RECEIVED by Michigan Court of Appeals 2/21/2014 1:32:30 PM
declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter
asserted."
Here, the utterances
stupid and
time consumin' doin' that"
attributed
to
Riley by Wilson were as follows: "[ m] an, that' s
and "[ s] tart at
the bottom when
you' re
doin' that."
In
response to these utterances, Wilson asserted that the Defendant " laughs it off because he don' t
want
to be called
stupid."
Reviewing the utterances attributed to Riley, it is clear that these
statements were not offered for the truth of the matter that they assert. Specifically, these
statements were not admitted for the purpose of showing that the Defendant' s actions were
stupid" or"
a
time consuming."'
Rather, these statements were admitted as circumstantial proof of
fact in issue ( i. e. knowledge,
identity, etc.).
Furthermore, Defendant' s " laugh" or " oh" in
response to Riley' s utterance is not an assertion, and accordingly, cannot be categorized as
hearsay. Therefore, the analysis behind the Defendant' s challenge fails at the outset and the
Court need not consider MRE 801( d)( 2)( B) and Bigge.
E.
Next, the Defendant challenges the Court' s upward departure from the sentencing
guidelines as well as this Court' s failure to provide a presentence report containing sentencing
guidelines for home invasion first degree. First, to the extent that the Defendant is attempting to
challenge this Court' s upward departure on Counts 1 through 3, this argument is unavailing as
10
Case 4:15-cv-11541-LVP-DRG ECF No. 5-22 filed 11/03/15
144
PageID.2755
Page 92 of
said departure was already previously affirmed by the Michigan Court of Appeals in the
Defendant' s direct appeal of right. Consequently, because the Defendant has not shown that a
retroactive change of law has undermined the Court of Appeals' ruling, he is not entitled to relief
under MCR 6. 500 et seq..
Second, as to the Defendant' s challenge to the PSIR' s failure to contain sentencing
guidelines for count 4, home invasion in the first degree, the Court finds that any existing error is
harmless. Specifically, the Defendant has argued that "[ t]he court did not utilize the guidelines
RECEIVED by Michigan Court of Appeals 2/21/2014 1:32:30 PM
for home invasion first degree, because the prosecutor incorrectly advised the court that
guidelines did not apply... since it carried the possibility of a consecutive sentence. The Court
did not indicate it was departing from the guidelines... and did not offer a justification for
departure."
The Court will note that this argument was available to the Defendant during his
direct appeal of right, and consequently, the Defendant necessarily has the burden of showing
good cause" and " actual prejudice" before he is entitled to any relief. As noted above, the
Defendant has argued that " good cause" exists due to the ineffective assistance of his appellate
counsel. However, evening assuming that the Defendant could overcome the presumption of
effective counsel, see People v. Solmonson, 261 Mich.App. 657, 663 ( 2004), the Defendant
cannot show actual prejudice. In the context of sentencing, " actual prejudice" means " the
sentence is invalid." MCR 6.508(D)(3)( b)( i) and( iii).
MCL 771. 14(2)( e)( i) requires that a presentence investigation report to include a sentence
grid that contains the
recommended minimum sentence range "[
consecutive sentence is authorized or required."
f]or each conviction for which a
In this case, the charge of home invasion— first
degree gave this Court the discretion to order that the sentence imposed in connection with count
4 be served consecutively with those imposed in Counts 1 through 3, as MCL 750. 110a( 8) states
11
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PageID.2756
Page 93 of
t]he court may order a term of imprisonment imposedfor home invasion in the first degree to
be served consecutively to any term of imprisonment imposed for any other criminal offense
arising from the same transaction."
That being the case, the PSIR prepared in connection with
the defendant' s case should have included sentencing guidelines for count 4, which it did not.
However, at sentencing, the Defendant did not object to the absence of sentencing guidelines for
count 4; accordingly, as an unpreserved sentencing error it is reviewed for plain error affecting
substantial rights. People v. Callon, 256 Mich.App 312, 332 ( 2003).
RECEIVED by Michigan Court of Appeals 2/21/2014 1:32:30 PM
Here, it is clear that the error is plain as it is plain and obvious. However, although the
PSIR contains plain error in that it fails to provide sentencing grid for Count 4, the error does not
deprive the defendant of any substantial right, making vacation of the sentence or resentencing
unnecessary. Specifically, regardless of the error, this Court would have given the Defendant the
exact same sentence as pronounced on December 11, 2009.
Additionally, in connection with this, the Court recognizes that the Defendant is correct
in pointing out that this Court did not specify that it was departing from the guidelines or
specifically relate its substantial and compelling reasons when sentencing the Defendant on
Count 4, home invasion— first degree. However, not only did this Court repeatedly rely on the
nature of the home invasion in specifying its substantial and compelling reasons3, this Court
currently sits in a unique position. Specifically, although this Court currently sits as a reviewing
Court, it had the opportunity to preside over both the Defendant' s trial and sentencing.
Accordingly, despite the fact that the Court did not specify that it was departing from the
guidelines on Count 4 and did not reiterate or specifically adopt its substantial and compelling
3
Specifically, this Court stated " I think the degree of danger to home invasion with the citizen being
there— the victim being there was not accounted for in the guidelines and it' s one of the reasons I' m going to
depart" and"[ t]hat this indeed was an unusually home invasion. The defendants did not attempt to avoid detection
but instead they actually planned the confrontation,"
12
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144
PageID.2757
Page 94 of
reasons in relation to Count 4, the Court can unequivocally state that it was the Court' s express
intention to adopt the prosecution' s argument and ensure that the Defendant served a minimum
of 50 years ( A minimum of 36 years and 8 months on Counts 1 and 3 and a consecutive sentence
of 13 years and 4 months on Count 4) in the Michigan Department of Corrections. Moreover, it
was this Court' s express intention that substantial and compelling reasons articulated on the
record apply to Count 4 and that this Court impose a sentence falling in line with the" two thirds"
rule of People v
Tanner, 387 Mich 683, 688 ( 1972).
Accordingly, because the same sentence
RECEIVED by Michigan Court of Appeals 2/21/2014 1:32:30 PM
would have been imposed regardless of any potential error, there is no need for resentencing.
See e.g. People v Mutchie, 468 Mich 50, 51 ( 2003).
F.
Next, the Defendant argues that his conviction must be vacated based on the fact that
there was insufficient evidence to sustain Mr. Lovell' s convictions. However, this issue was
already decided by the Court of Appeals in the Defendant' s appeal of right, and accordingly,
because the Defendant has failed to show that there has been a retroactive change of law
undermining the Court of Appeals prior ruling, the Defendant is not entitled to relief under MCR
6. 500 et seq.
G.
Lastly, the Court notes that the Defendant has argued that " good cause" existed under
MCR 6. 508( D) due to appellate counsel' s failure to assert a number of the above arguments in
the Defendant' s initial appeal. However, because all the arguments currently made by the
Defendant lack merit, the Defendant has not overcome the presumption of effective assistance of
counsel in relation to appellate counsel' s failure to pursue such arguments.
13
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III.
PageID.2758
Page 95 of
Conclusion.
For the reasons discussed above, the Defendants motion is summarily DENIED pursuant
to MCR 6. 504( B)( 2).
IT IS SO ORDERED.
RECEIVED by Michigan Court of Appeals 2/21/2014 1:32:30 PM
Hon. Michael P. Ratty
14
I
EXHIBIT F
Order
Michigan Supreme Court
Lansing, Michigan
Robert P. Young, Jr.,
April 23, 2012
Chief Justice
Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra,
144141
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
Justices
v
SC: 144141
COA: 298164
Livingston CC: 09-018082-FC
NOAH RICHARD LOVELL, III,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the September 29, 2011
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 23, 2012
d0416
_________________________________________
Clerk
EXHIBIT G
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 29, 2011
Plaintiff-Appellee,
v
HARRY T. RILEY, a/k/a HARRY T. RILEY, JR.,
No. 295838
Livingston Circuit Court
LC No. 09-018081-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 298164
Livingston Circuit Court
LC No. 09-018082-FC
NOAH RICHARD LOVELL, III,
Defendant-Appellant.
Before: M. J. KELLY, P.J., and OWENS and BORRELLO, JJ.
PER CURIAM.
In Docket No. 295838, Harry T. Riley appeals as of right his convictions of armed
robbery, MCL 750.529; unlawful imprisonment, MCL 750.349b; torture, MCL 750.85; and firstdegree home invasion, MCL 750.110a(2). Riley was convicted following a jury trial and was
sentenced as a habitual offender, fourth offense, MCL 769.12, to concurrent terms of 75 to 115
years in prison for his armed robbery, unlawful imprisonment, and torture convictions, to be
served before a consecutive term of 13 years, 4 months to 20 years in prison for his first-degree
home invasion conviction. For the reasons set forth in this opinion, we affirm the convictions
and sentences of both defendants.
In the consolidated appeal, Docket No. 298164, Noah Richard Lovell, III appeals as of
right his convictions of armed robbery, MCL 750.529; unlawful imprisonment, MCL 750.349b;
torture, MCL 750.85; and first-degree home invasion, MCL 750.110a(2). Lovell was convicted
following a jury trial and was sentenced to concurrent terms of 36 years, 8 months to 75 years in
prison for his armed robbery and torture convictions, and 10 to 15 years in prison for his
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unlawful imprisonment conviction, to be served before a consecutive term of 13 years, 4 months
to 20 years in prison for his first-degree home invasion conviction. We affirm.
This case arises out of the armed robbery, unlawful imprisonment, torture, and home
invasion of an 84-year-old victim. On the day of the incident, Riley went to the victim’s back
door wearing a work vest and a hard hat under the guise that he worked for a utility company and
wanted to look at the victim’s property. The victim walked his property with Riley for
approximately 45 minutes. Riley was talking on his cellular telephone during a substantial
portion of that time. Cellular telephone call logs showed that Lovell’s telephone was in the
vicinity of the victim’s house and that numerous calls were made to Riley at the time of the
crime. Riley’s vehicle was rented by Lovell.
Riley followed the victim into his house; at that point, the victim noticed a pry bar on the
table in his dinette. As the victim reached for the pry bar, Riley punched the victim in the face so
hard that it knocked his dentures out of his mouth and knocked his glasses off of his face. Riley
then grabbed the victim and pushed him down the stairs. At the bottom of the stairs, Riley
continued to beat the victim, punching and kicking his face and body. Riley repeatedly
demanded to know where the victim kept his money, and threatened to kill him. Riley also
repeatedly poked the victim’s arms, chest, and neck with a knife. The victim lost consciousness
several times during the beating. Riley then sat the victim in a chair and bound his wrists and
ankles with duct tape. Riley kicked the victim’s face with such force that if left a shoe print.
During the incident, the victim heard a second individual come halfway down the stairs; from his
vantage point, the victim could only see the second individual, a white male, from the waist
down. The second individual threatened to kill the victim if he did not reveal the location of the
money. Meanwhile, Riley took the victim’s coin collection. The victim had a broken jaw,
broken nose, cracked eye sockets, three broken ribs, and blood on the brain. The victim stayed
in the hospital for over a week, and then spent nearly two months in a rehabilitation center.
The next day, Lovell and Riley met with George Wilson who heard them discussing how
they were going to sell coins. Wilson also heard Riley berate Lovell for his time-consuming
method of ransacking drawers. A receipt from a hardware store indicating the purchase of a hard
hat, pry bar, and work gloves was found in the victim’s driveway, and Lovell was identified as
the individual who purchased the goods.
Riley first argues that his trial counsel was ineffective for failing to move to suppress
evidence pertaining to a photographic lineup and for failing to move for a separate trial. “A
claim of ineffective assistance of counsel is a mixed question of law and fact.” People v Petri,
279 Mich App 407, 410; 760 NW2d 882 (2008). “A trial court’s findings of fact, if any, are
reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from an
ineffective assistance of counsel claim de novo.” Id. “A defendant that claims he has been
denied the effective assistance of counsel must establish (1) the performance of his counsel was
below an objective standard of reasonableness under prevailing professional norms and (2) a
reasonable probability exists that, in the absence of counsel’s unprofessional errors, the outcome
of the proceedings would have been different.” People v Sabin (On Second Remand), 242 Mich
App 656, 659; 620 NW2d 19 (2000), citing Strickland v Washington, 466 US 668; 104 S Ct
2052; 80 L Ed 2d 674 (1984). “A defendant must overcome a strong presumption that the
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assistance of his counsel was sound trial strategy, and he must show that, but for counsel’s error,
the outcome of the trial would have been different.” Id.
Three weeks after the incident, a state trooper conducted a photographic lineup with the
victim at the rehabilitation center. The victim was unable to identify any of the individuals;
subsequently, the trooper pointed to Riley’s photograph and asked the victim if he recognized
that individual. The victim did not. Six weeks after the incident, a detective conducted a
corporeal lineup with the victim at the jail, and the victim identified Riley, primarily by voice.
The victim also identified Riley at trial.
At a Ginther1 hearing, Riley’s trial counsel testified that he made a strategic decision not
to file a motion to suppress evidence pertaining to the photographic lineup because he wanted to
introduce evidence of the trooper’s misconduct at the photographic lineup. The trial court found
that defense counsel was not ineffective for failing to file a motion to suppress, and that, in any
event, it would have denied the motion because an alternative basis existed for the subsequent
identifications.
“A photographic identification procedure violates a defendant’s right to due process of
law when it is so impermissibly suggestive that it gives rise to a substantial likelihood of
misidentification.” People v Gray, 457 Mich 107, 111; 577 NW2d 92 (1998). “If the trial court
finds that the pretrial procedure was impermissibly suggestive, testimony concerning that
identification is inadmissible at trial.” People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528
(1993). “However, in-court identification by the same witness may be allowed if an independent
basis for in-court identification can be established that is untainted by the suggestive pretrial
procedure.” Id.
In this case, the procedure followed by the trooper at the photographic lineup was clearly
impermissibly suggestive. See People v Anderson, 389 Mich 155, 178; 205 NW2d 461 (1973),
overruled in part on other grounds People v Hickman, 470 Mich 602; 684 NW2d 267 (2004)
(when “the witness is shown . . . a group in which one person is singled out in some way, he is
tempted to presume that he is the person”). However, no identification occurred at the
photographic lineup. The appropriate inquiry is whether an independent basis existed for the
victim’s subsequent identifications of Riley. Gray, 457 Mich at 114-115. “[T]he independent
basis inquiry is a factual one and . . . the validity of a victim’s in-court identification must be
viewed in light of the totality of the circumstances.” People v Davis, 241 Mich App 697, 702;
617 NW2d 381 (2000). In determining if an independent basis exists for the admission of a
subsequent identification, a court should weigh the following non-exhaustive list of factors: “(1)
prior relationship with or knowledge of the defendant; (2) opportunity to observe the offense,
including length of time, lighting, and proximity to the criminal act; (3) length of time between
the offense and the disputed identification; (4) accuracy of the description compared to the
defendant’s actual appearance; (5) previous proper identification or failure to identify the
defendant; (6) any prelineup identification lineup of another person as the perpetrator; (7) the
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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nature of the offense and the victim’s age, intelligence, and psychological state; (8) any
idiosyncratic or special features of the defendant.” Id. at 702-703.
Here, the victim, who was 84 years old at the time of trial, walked his property with his
assailant for 45 minutes in the afternoon before he was beaten at great length by that individual.
The victim did not identify Riley in a photographic lineup three weeks after the incident, even
after the trooper impermissibly suggested that Riley was the assailant. However, the victim
positively identified Riley in a corporeal lineup at the jail six weeks after the incident, primarily
by voice recognition. The record reveals that the victim was extremely concerned about
misidentification, and only made a positive identification when he was absolutely certain, after
hearing the individuals in the lineup ask “where’s the money?[,]” that Riley was his assailant.
On these facts, the trial court did not clearly err in concluding that an independent basis existed
for the victim’s subsequent identifications of Riley. Accordingly, even if defense counsel had
moved to suppress evidence pertaining to the photographic lineup and the trial court had granted
the motion, evidence of the victim’s subsequent positive identifications of Riley was admissible
at trial because an independent basis existed for the identifications. “[T]rial counsel cannot be
faulted for failing to raise . . . a motion that would have been futile.” People v Fike, 228 Mich
App 178, 182; 577 NW2d 903 (1998). Any suppression of the photographic lineup, which did
not result in an identification, would have made no difference at trial. Additionally, a review of
the record indicates that failing to move to suppress the pretrial identification procedure was a
matter of trial strategy, “an area in which this Court will not substitute its judgment for that of
counsel.” Id. at 182-183. Defense counsel repeatedly reiterated that he made a strategic decision
not to move to suppress evidence concerning the pretrial photographic lineup because he wanted
to introduce evidence of the impermissibly suggestive procedure employed by the trooper to try
to discredit the remainder of the case. Had defense counsel moved to suppress evidence of the
pretrial photographic lineup, and had the motion been granted, he would have been unable to
introduce evidence to discredit the police, but the subsequent positive identifications of his client
would have still been admitted into evidence. Defendant has not met his burden of
demonstrating ineffective assistance of counsel. Sabin (On Second Remand), 242 Mich App at
659.
Riley next argues ineffective assistance of counsel related to the failure to move to sever
his trial from Lovell’s trial. Riley’s trial counsel confirmed at the Ginther hearing that it was his
professional judgment, after reviewing all of the facts and circumstances in the case, that there
was not a basis for either a separate trial or for separate juries, and that there was no tactical
advantage to trying to obtain severance. The trial court concluded that defense counsel was not
ineffective for failing to move for a separate trial because the defenses of the codefendants were
not irreconcilable. “Codefendants do not have an absolute right to separate trials.” People v
Butler, 193 Mich App 63, 67; 483 NW2d 430 (1992). “In fact, there is a strong presumption in
favor of joint trials.” Id. MCR 6.121(C) provides that “[o]n a defendant’s motion, the court
must sever the trial of defendants on related offenses on a showing that severance is necessary to
avoid prejudice to substantial rights of the defendants.” “Severance is mandated under MCR
6.121(C) only when a defendant provides the court with a supporting affidavit, or makes an offer
of proof, that clearly, affirmatively, and fully demonstrates that his substantial rights will be
prejudiced and that severance is the necessary means of rectifying the potential prejudice.”
People v Hana, 447 Mich 325, 346; 524 NW2d 682 (1994). “The failure to make this showing
in the trial court, absent any significant indication on appeal that the requisite prejudice in fact
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occurred at trial, will preclude reversal of a joinder decision.” Id. at 346-347. “Inconsistency of
defenses is not enough to mandate severance; rather, the defenses must be ‘mutually exclusive’
or ‘irreconcilable.’” Id. at 349. “‘[I]ncidental spillover prejudice, which is almost inevitable in a
multi-defendant trial, does not suffice.’” Id., quoting United States v Yefsky, 994 F2d 885, 896
(CA 1, 1993). “The ‘tension between defenses must be so great that a jury would have to believe
one defendant at the expense of the other.’” Id., quoting Yefsky, 994 F2d at 897.
Here, Riley’s defense theory was misidentification coupled with police misconduct.
Lovell’s defense theory was that he was not present, or that if he was present, he was merely
present, and not an aider and abettor. The defenses were neither inconsistent nor mutually
exclusive or irreconcilable; the jury would not have to believe one codefendant at the expense of
the other. Id. at 349. If the jury found that Riley was misidentified, it could also find that Lovell
was not present, or that if he was present, he was not an aider and abettor. Moreover, this Court
has held that where a trial court denied a motion for a separate trial filed by a codefendant, as
occurred here, defense counsel was not ineffective for failing to move for a separate trial because
it would have been unsuccessful and therefore defense counsel “was not obligated to pursue the
matter.” People v Daniel, 207 Mich App 47, 59; 523 NW2d 830 (1994). Riley has not
established that his trial counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms. Sabin (On Second Remand), 242 Mich App
at 659. Further, he has not demonstrated that a reasonable probability exists that, but for defense
counsel’s strategic decisions not to move for a separate trial, the outcome of the proceedings
would have been different. Id.
Riley next argues that the trial court erred in admitting Wilson’s testimony that the
conversation he heard between the codefendants led him to conclude that they were guilty of the
charged offenses. However, the challenged testimony was not admitted at trial, but rather, at an
evidentiary hearing; therefore, no error occurred.
Riley next argues that the trial court erred in compelling Wilson to testify regarding his
delivery of marijuana. “[W]here . . . immunity is sufficient, the witness is required to answer
even though such answers are self-incriminating.” In re Watson, 293 Mich 263, 274; 291 NW
652 (1940). Riley does not dispute this. Rather, he argues the testimony was irrelevant and
unfairly prejudicial. We review unpreserved evidentiary errors for plain error affecting
substantial rights. People v Coy, 258 Mich App 1, 12; 669 NW2d 831 (2003). “Relevant
evidence is evidence ‘having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable that it would be
without the evidence.’” People v Fletcher, 260 Mich App 531, 552-553; 679 NW2d 127 (2004),
quoting MRE 401. “Generally, all relevant evidence is admissible, unless otherwise provided by
law, and evidence that is not relevant is not admissible.” Id. at 553; MRE 402. Relevant
evidence may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice.” Id.; MRE 403.
Here, defense counsel for Lovell sought to impugn Wilson’s credibility by demonstrating
that his motivation for contacting and cooperating with the police was to avoid prosecution for
delivery of marijuana. The evidence of Wilson’s involvement with drugs was thus relevant to
his credibility. And “[t]he credibility of a witness is always an appropriate subject for the jury’s
consideration.” People v Coleman, 210 Mich App 1, 8; 532 NW2d 885 (1995). Further, the
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probative value of the evidence was not substantially outweighed by the danger of unfair
prejudice. Discerning Wilson’s motivation for contacting and cooperating with the police was
highly probative of the veracity of the information he provided to the authorities, as well as his
overall credibility. That Wilson happened to deliver marijuana to Riley was a peripheral yet
requisite detail necessary to discredit Wilson by attacking his motivation for contacting and
cooperating with the police. While the testimony was prejudicial, it was downplayed: once
defense counsel for Lovell established that Wilson delivered marijuana to Riley as a point from
which to start his line of questioning, he thereafter used the universal term “somebody” in
reference to the recipient of the marijuana. On the record, the probative value of evidence of
Wilson’s involvement with marijuana (and related delivery of marijuana to Riley) was not
substantially outweighed by the danger of unfair prejudice. Riley has failed to demonstrate plain
error affecting his substantial rights.
Riley next argues that his trial counsel was ineffective for failing to object when the trial
court compelled Wilson to testify regarding his delivery of marijuana to Riley. Our review is
limited to errors apparent on the record in this regard. People v Matuszak, 263 Mich App 42, 48;
687 NW2d 342 (2004). “To prove that counsel has been ineffective, defendant must show that
his counsel’s performance was deficient, and that there is a reasonable probability that but for
that deficient performance, the result of the trial would have been different.” Id. at 57-58. The
trial court did not err in compelling Wilson to testify regarding his delivery of marijuana to
Riley, “and any objections by defense counsel on those grounds would have been meritless.”
People v Cox, 268 Mich App 440, 453; 709 NW2d 152 (2005). “[C]ounsel is not ineffective for
failing to raise futile objections[.]” Id. Moreover, “[d]efense counsel is given wide discretion in
matters of trial strategy and there is accordingly a strong presumption of effective assistance of
counsel.” People v Unger, 278 Mich App 210, 253; 749 NW2d 272 (2008). “Declining to raise
objections can often be consistent with sound trial strategy.” Id. Here, defense counsel for Riley
may have decided that raising an objection to Wilson’s response would emphasize Riley’s
receipt of marijuana. Further, both codefendants greatly benefited from the elaborate attack on
Wilson’s credibility by focusing on his motivation for contacting and cooperating with the
police. Riley has failed to overcome the strong presumption that counsel’s failure to object was
a matter of trial strategy, and has not demonstrated that, but for counsel’s failure to object, the
result of the proceeding would have been different. Sabin (On Second Remand), 242 Mich App
at 659.
Lastly, Riley argues that the prosecutor’s comments highlighting the victim’s and
Wilson’s military service constituted improper vouching and improper civic duty arguments.
Where “there was no contemporaneous objection or request for a curative instruction in regard to
any alleged error [of prosecutorial misconduct] . . . review is limited to ascertaining whether
plain error affected [the] defendant’s substantial rights.” People v Brown, 279 Mich App 116,
134; 755 NW2d 664 (2008). While “[a] prosecutor may not vouch for the credibility of his
witnesses by suggesting that he has some special knowledge of the witnesses’ truthfulness . . .
‘the prosecutor may argue from the facts that a witness should be believed.’” People v Seals,
285 Mich App 1, 22; 776 NW2d 314 (2009), quoting People v McGhee, 268 Mich App 600, 630;
709 NW2d 595 (2005). Further, “a prosecutor may not urge the jurors to convict the defendant
as part of their civic duty.” People v Abraham, 256 Mich App 265, 273; 662 NW2d 836 (2003).
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The prosecutor’s comments during opening statement regarding the victim’s military
service were made in the context of providing personal background information about the victim.
“The purpose of an opening statement is to tell the jury what the advocate proposes to show.”
People v Moss, 70 Mich App 18, 32; 245 NW2d 389 (1976), aff’d People v Tilley, 405 Mich 38;
273 NW2d 471 (1979). When the victim was called to the stand, he testified regarding his
military service. The prosecutor’s comments during closing argument regarding Wilson’s
military service were made in the context of explaining Wilson’s motivation for contacting the
police—his military solidarity with the victim. The prosecutor was not suggesting that he had
special knowledge of the victim’s and Wilson’s truthfulness, nor was he urging the jurors to
convict Riley as part of their civic duty. Seals, 285 Mich App at 22; Abraham, 256 Mich App at
273. Indeed, the prosecutor was not even arguing, as is permissible, that the victim and Wilson
should be believed. Seals, 285 Mich App at 22. Rather, the prosecutor’s comments concerning
the victim’s life history and Wilson’s motivation for contacting the police were benign and did
not unfairly place issues into the trial that were more comprehensive than Riley’s guilt or
innocence, and did not “unfairly encourage[] jurors not to make reasoned judgments.” Abraham,
256 Mich App at 273. Riley has failed to demonstrate plain error. Moreover, even if the
challenged remarks were determined to constitute plain error, the error did not affect Riley’s
substantial rights. The jury was instructed that the arguments of the attorneys were not evidence,
and jurors are presumed to follow their instructions. People v Parker, 288 Mich App 500, 512;
795 NW2d 596 (2010).
Riley also argues that his trial counsel was ineffective for failing to object to the allegedly
improper comments. As noted above, the prosecutor’s comments regarding the victim’s and
Wilson’s military service were not improper, “and any objections by defense counsel on those
grounds would have been meritless.” Cox, 268 Mich App at 453. “Because counsel is not
ineffective for failing to raise futile objections, defendant is not entitled to relief on this
unpreserved issue.” Id.
Lovell first argues on appeal that insufficient evidence existed to sustain his convictions.
We review “de novo a challenge on appeal to the sufficiency of the evidence.” People v
Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). In reviewing sufficiency of the
evidence claims, we “examine the evidence in a light most favorable to the prosecution,
resolving all evidentiary conflicts in its favor, and determine whether a rational trier of fact could
have found that the essential elements of the crime were proved beyond a reasonable doubt.” Id.
at 196. We “will not interfere with the trier of fact’s role of determining the weight of the
evidence or the credibility of the witnesses.” People v Kanaan, 278 Mich App 594, 619; 751
NW2d 57 (2008). “The prosecutor is not required to present direct evidence linking the
defendant to the crime.” People v Wolford, 189 Mich App 478, 480; 473 NW2d 767 (1991).
“Circumstantial evidence and reasonable inferences that arise from such evidence can constitute
satisfactory proof of the elements of the crime.” Kanaan, 278 Mich App at 619. “All conflicts
in the evidence must be resolved in favor of the prosecution.” Id.
Lovell argues that there was no evidence that he was in the victim’s house during the
crimes, or was Riley’s accomplice. Thus, he is challenging the evidence of his identity as a
perpetrator. Lovell also argues that there was insufficient evidence that the second person in the
house intended the crimes of armed robbery, unlawful imprisonment, and torture.
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In viewing the evidence in the light most favorable to the prosecution, we find that the
prosecutor established that Lovell purchased a hard hat, pry bar, and work gloves at a hardware
store the day before the crimes. In reference to the pry bar, the hardware store manager heard
Lovell’s companion inquire: “are you going to buy that tool to beat that guy’s ass[?]” Lovell
was identified as the individual who rented the vehicle seen in the victim’s driveway at the time
the crimes occurred. Cellular telephone call logs showed that Lovell’s telephone was in the
vicinity of the victim’s house and that numerous calls were made to Riley at the time of the
crime. While the victim was bound (false imprisonment), Riley severely beat him (torture) and
poked him with a knife while stealing his coin collection (armed robbery). While this was
occurring, the other individual in the house threatened to kill the victim if he did not reveal the
location of his money. When Lovell and Riley met Wilson the next day, Wilson heard them
talking about how they were going to sell coins, and heard Riley berate Lovell for the method he
used to ransack drawers.2
“Identity may be shown by either direct testimony or circumstantial evidence.” People v
Kern, 6 Mich App 406, 409; 149 NW2d 216 (1967). Here, ample circumstantial evidence exists,
as set forth above, identifying Lovell as one of the perpetrators of the charged offenses.
Additionally, “a person who aids or abets the commission of a crime may be convicted and
punished as if he directly committed the offense.” People v Izarraras-Placante, 246 Mich App
490, 495; 633 NW2d 18 (2001); MCL 767.39. “To support a finding that a defendant aided and
abetted a crime, the prosecution must show that (1) the crime charged was committed by the
defendant or some other person, (2) the defendant performed acts or gave encouragement that
assisted the commission of the crime, and (3) the defendant intended the commission of the
crime[,] had knowledge that the principal intended its commission at the time he gave aid and
encouragement[,]” id. at 495-496 (quotation omitted), or “that the charged offense was a natural
and probable consequence of the commission of the intended offense.” People v Robinson, 475
Mich 1, 15; 715 NW2d 44 (2006). “The aiding and abetting statute encompasses all forms of
assistance rendered to the perpetrator of a crime and comprehends all words or deeds that might
support, encourage, or incite the commission of a crime.” Izarraras-Placante, 246 Mich App at
496. Further, “[a] defendant is criminally liable for the offenses the defendant specifically
intends to aid or abet, or has knowledge of, as well as those crimes that are the natural and
probable consequences of the offense he intends to aid or abet.” Robinson, 475 Mich at 15.
Here, the evidence showed that Lovell performed acts and gave encouragement that assisted the
commission of the crimes. Izarraras-Placante, 246 Mich App at 495-496. Further,
circumstantial evidence exists that Lovell intended the charged offenses of armed robbery,
unlawful imprisonment, and torture. Viewing the evidence in a light most favorable to the
2
Lovell argues that Wilson recanted this testimony, pointing to a “Declaration of George
Wilson[,]” attached as an appendix to Lovell’s brief on appeal. However, MCR 7.215(A)(1)
provides that “[i]n an appeal from a lower court, the record [on appeal] consists of the original
papers filed in that court or a certified copy, the transcript of any testimony or other proceedings
in the case appealed, and the exhibits introduced.” The Wilson declaration is “not a part of the
lower court record and, therefore, cannot be considered” by this Court. Seals, 285 Mich App at
21.
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prosecution, resolving all evidentiary conflicts in its favor, a rational trier of fact could have
found beyond a reasonable doubt that Lovell was guilty of the charged offenses.
Lovell next argues he is entitled to a new trial on the basis of newly discovered evidence
in the form of a declaration by Wilson recanting his trial testimony. However, we will not
consider the allegedly newly discovered evidence because it is not a part of the lower court
record and not properly before this Court. Seals, 285 Mich App at 21; MCR 7.215(A)(1). Even
if we were to sever Wilson’s testimony from the record, we would find that legally sufficient
evidence existed for a reasonable jury to have found Lovell guilty on all charges beyond a
reasonable doubt.
Lovell next argues that the trial court erred in denying his motion for a separate trial. We
review unpreserved claims of error for plain error affecting substantial rights. People v Carines,
460 Mich 750, 763-764; 597 NW2d 130 (1999). As previously set forth, MCR 6.121(C)
provides that “[o]n a defendant’s motion, the court must sever the trial of defendants on related
offense on a showing that severance is necessary to avoid prejudice to substantial rights of the
defendants.” A defendant must show in the trial court that his rights will be prejudiced if
severance is not granted. If a defendant does not make that showing in the trial court or show on
appeal that such prejudice actually occurred at trial, he is not entitled to relief. Hana, 447 Mich
at 346-347. “[A] defendant might suffer prejudice if essential exculpatory evidence that would
be available to a defendant tried alone were unavailable in a joint trial.” Id. at 346 n 7.
Here, Lovell has failed to demonstrate that his substantial rights were prejudiced at trial
due to the trial court’s denial of his motion for a separate trial. On appeal, Lovell argues that
severance was necessary so that Riley could testify to exculpate him. However, Lovell argued in
the trial court, and provided a sworn affidavit averring, that severance was necessary because
Riley could testify to inculpate him. Because Riley did not testify at all, there is no significant
indication on appeal that the requisite prejudice in fact occurred at trial. Accordingly, Lovell has
failed to demonstrate plain error affecting his substantial rights and reversal of the joinder
decision is precluded.
Lovell next argues that the prosecutor engaged in misconduct when he made the
following comments during rebuttal closing argument:
[W]hat did [defense counsel for Lovell] tell us about what your client did[?] You
sat and attacked everybody in this case and you didn’t once tell us what did your
client do. What’s he responsible for[?]
We review preserved claims of prosecutorial misconduct de novo. Abraham, 256 Mich App at
272. “A prosecutor may not imply in closing argument that the defendant must prove something
or present a reasonable explanation for damaging evidence because such an argument tends to
shift the burden of proof.” People v Fyda, 288 Mich App 446, 463-464; 793 NW2d 712 (2010).
Here, the prosecutor critiqued defense counsel for Lovell’s strategy during closing argument of
attacking the prosecutor, police, and prosecution witnesses instead of discussing the actions
taken by Lovell or lack thereof. This implied that Lovell had to prove something, and arguably,
it impermissibly shifted the burden of proof. However, “an otherwise improper remark may not
rise to an error requiring reversal when the prosecutor is responding to the defense counsel’s
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argument.” People v Kennebrew, 220 Mich App 601, 608; 560 NW2d 354 (1996). Here, the
objectionable narrative was made in response to the argument of Lovell’s defense counsel, and
does not rise to the level of an error requiring reversal. Id. Further, the jury was instructed that
the arguments of the attorneys were not evidence, and jurors are presumed to follow their
instructions. Parker, 288 Mich App at 512. While we find the remark improper, Lovell was not
entitled to relief based on the challenged comment. Kemmebrew, 220 Mich App at 608.
Lovell also argues that the prosecutor’s comments regarding his strategy of alternate
defenses were improper. Where “there was no contemporaneous objection or request for a
curative instruction in regard to any alleged error [of prosecutorial misconduct] . . . review is
limited to ascertaining whether plain error affected [the] defendant’s substantial rights.” Brown,
279 Mich App at 134. “[W]here a defendant . . . advances, either explicitly or implicitly, an
alternate theory of the case that, if true, would exonerate the defendant, comment on the validity
of the alternate theory” is appropriate. People v Fields, 450 Mich 94, 115; 538 NW2d 356
(1995). “[O]nce the defendant advances . . . a theory, argument on the inferences created” is
permissible. Id. Here, the prosecutor’s comments on Lovell’s alternate defense theories were
appropriate, and Lovell has failed to establish plain error affecting his substantial rights.
Lovell next argues that the trial court erred in its instructions concerning circumstantial
evidence and aiding and abetting. However, Lovell waived any error concerning those
instructions by affirmatively agreeing to them. People v Harper, 479 Mich 599, 642-643 n 72;
739 NW2d 523 (2007). Additionally, no mistakes are apparent on the record concerning the jury
instruction for circumstantial evidence; therefore, Lovell is not entitled to relief on this
unpreserved claim of ineffective assistance of counsel.
Lastly, Lovell takes issue with the trial court’s imposition of an upward departure from
the minimum sentencing guidelines range. “[C]ourts review the reasons given for a departure for
clear error. The conclusion that a reason is objective and verifiable is reviewed as a matter of
law. Whether the reasons given are substantial and compelling enough to justify the departure is
reviewed for an abuse of discretion, as is the amount of the departure. A trial court abuses its
discretion if the minimum sentence imposed falls outside the range of principled outcomes.”
People v Smith, 482 Mich 292, 300; 754 NW2d 284 (2008).
Under MCL 769.34(3), a minimum sentence that departs from the
sentencing guidelines recommendation requires a substantial and compelling
reason articulated on the record. In interpreting this statutory requirement, the
[Michigan Supreme] Court has concluded that the reasons relied on must be
objective and verifiable. They must be of considerable worth in determining the
length of the sentence and should keenly or irresistibly grab the court’s attention.
Substantial and compelling reasons for departure exist only in exceptional cases.
“In determining whether a sufficient basis exists to justify a departure, the
principle of proportionality . . . defines the standard against which the allegedly
substantial and compelling reasons in support of departure are to be assessed.”
For a departure to be justified, the minimum sentence imposed must be
proportionate to the defendant’s conduct and prior criminal history. [Id. at 299300, quoting People v Babcock, 469 Mich 247, 262; 666 NW2d 231 (2003).]
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The trial court sentenced Lovell to 36 years, 8 months to 75 years in prison for his armed robbery
and torture convictions, an upward departure of 12 years, 11 months. “Substantial and
compelling reasons for departure exist only in exceptional cases.” Smith, 482 Mich at 299. This
was such a case. Here, the trial court’s stated substantial and compelling reasons for departure
were the unusual nature of the home invasion in that it was planned to occur while the victim
was present; the steps Lovell took to prevent the victim from calling for help, leaving him to die;
and Lovell’s pattern of using his paving business to prey on elderly homeowners. Those reasons
were not clearly erroneous. Id. at 300. Further, those reasons were objective and verifiable, of
considerable worth in determining the length of the sentence, and keenly or irresistibly grabbed
the court’s attention. Id. at 299. The trial court did not abuse its discretion in determining that
the reasons given were substantial and compelling enough to justify the departure. Id. at 300.
The minimum sentence imposed was proportionate to Lovell’s conduct and prior criminal
history, and constituted an appropriate exercise of discretion. Id. at 300. The sentences imposed
fall within the range of principled outcomes; therefore, Lovell is not entitled to relief on this
issue.
Affirmed.
/s/ Michael J. Kelly
/s/ Donald S. Owens
/s/ Stephen L. Borrello
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EXHIBIT H
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EXHIBIT L
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.