Opposition Brief — Hammond v. Withrow

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No. 93-1938

In the Supreme Court of the United States

October Term, 1993

TRACY CECIL HAMMOND,

Petitioner,

We

PAMELA WITHROW,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF RESPONDENT IN OPPOSITION

FRANK J. KELLEY

Attorney General

Thomas L. Casey

Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, Michigan 48909

(517) 373-1124

Arthur E. D’Hondt

Assistant Attorney General

Attorneys for Respondent

ay

QUESTION PRESENTED

WHETHER THE PETITION PRESENTS A

FEDERAL CONSTITUTIONAL QUESTION

COGNIZABLE BY A HABEAS COURT, OR

MERELY ALLEGES THE STATE TRIAL COURT

MADE AN ERRONEOUS EVIDENTIARY RULING

WHICH, BY ITSELF, IS NOT A FEDERAL

CONSTITUTIONAL ISSUE.

atte.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................... i

TABLE OF AUTHORITIES ......0ecccccee.. iii

STATEMENT OF THE We ditibeek eco ucees 1

STATEMEN? OF SM icc aci es. ce 2

REASON FOR DENYING sO 15

THE PETITION DOES NOT PRESENT A

FEDERAL CONSTITUTIONAL QUESTION,

OR ANY IMPORTANT UNSETTLED

DECISION BELOW DOES NOT CONFLICT

WITH DECISIONS OF THIS COURT OR

OF OTHER UNITED STATES COURTS OF

APPEALS 6464655 Cecccee OOO es O06 666 15

THE PETITION PRESENTS NO

IMPORTANT UNSETTLED QUESTION

OF FEDERAL LAW AND THE

DECISION BELOW DOES NOT

CONFLICT WITH DECISIONS

OF THIS COURT OR OF OTHER

UNITED STATES COURTS OF

APPEALS. uss scans ce esos CCC Ceeoees 16

-iii-

TABLE OF AUTHORITIES

Cases

Estelle v McGuire, 502 US ‘

eS Sy Bre’ |) eee ee

Lewis v Jeffers,

Sere eee CAOP tebe ess csdssace

Lundy v Campbell, 888 F2d 467

(6th Cir 1989) cert den,

oe eS EE pean

People v Hammond, Livingston

Circuit Corut File No. 87-5164

People v Hammond, Michigan

Court of Appeals File No. 109359

Pulley v Harris,

ED 5 vssb sec ebsseuve

Rose v Hodges,

ee PD 5 bo sds o cddbuleicc

Smith v Phillips,

rr i PED 56540 cede cees ca

Statutes

Be Me MAORION(S) occk cincccccucce

ES ee

STATEMENT OF THE CASE

Petitioner Tracy Cecil Hammond

(Petitioner). who is incarcerated at a

Michigan penal institution by virtue of

a Michigan judgment of life imprisonment

for his jury conviction of first degree

murder, MCL 750.316; MSA 28.548, is

seeking a writ of certiorari from the

February 17, 1994 decision of the Sixth

Circuit Court of Appeals, which affirmed

the District Court's dismissal of Peti-

tioner's habeas petition, and nter

alia, held the trial court's evidentiary

ruling at issue did not render Peti-

tioner's trial fundamentally unfair,

and, therefore, was not cognizable in a

habeas case.

afia

STATEMENT OF FACTS

Petitioner and his cousin, Mark

Hammond, were charged with the October

ais 1987 murder of Cameron (Ron)

Johnson, but tried separately.

At Petitioner's jury trial,

Petitioner's statement to the police and

the testimony of Carrie Johnson, the

mother of the murder victim, Diane

Richardson, who was Mark Hammond's girl-

friend and at whose home the cousins

were staying, and Karen Neganigijig

established the following:

On Thursday evening, October 29,

1987, Mark Hammond and Petitioner dis-

cussed beating Johnson up to _ steal

cocaine, marijuana and LSD at Diane

Richardson's home, where they both were

oan

staying. Mark Hammond stated they might

have to kill Johnson to evoid any retri-

bution and Petitioner claimed he told

his cousin that he would go along with

stealing from Johnson and beating him

up, but he didn't want to kill Johnson.

Later that night, Petitioner and his

cousin drove to Johnson's apartment to

make sure Johnson planned to meet them

Friday evening (Trial Transcript, People

v Hammond, Livingston Circuit Court File

No. 87-5164 [TT] Vol 2 pp 283-286).

Petitioner knocked on the Johnson's door

until Carrie Johnson came to the door at

approximately 11:47 p.m. Petitioner

identified himself as "Jason" and said

it was really important that he see her

son (TT Vol 2 pp 241-242). When Peti-

tioner returned to the vehicle they were

using, Mark Hammond again mentioned

killing Johnson (TT Vol 2 pp 285-287).

aha

On Friday, October 30, 1987, between

4:30 and 5:30 p.m., Petitioner and his

cousin went to a restaurant to talk to

and invite Karen Neganigijig to a party

that night. Prior to leaving the

restaurant, Petitioner said "I am ready

to kill someone" and his cousin said,

"We have some business to take care of."

(TT Vol 2 pp 402, 408).

Later, between 11:00 and 11:30 p.m.

the night of October 30, 1987, Johnson

telephoned Mark Hammond at Diane

Richardson's home and Petitioner heard

his cousin lying to Johnson about a big

party, where Johnson could sell all of

his drugs. Mark Hammond told Johnson

that She cousins would pick Johnson up

at his apartment in 15 minutes (TT vol 2

pp 287-288).

an

Petitioner and his cousin’ met

Johnson in Johnson's apartment parking

lot, and convinced Johnson to place his

drugs in the trunk in case they were

stopped by the police. They then pro-

ceeded to drive Johnson into a rural

area. Mark Hammond told Johnson he knew

where there was a barn full of marijuana

that they could steal, and they drove

further into the country (TT Vol 2 pp

289-290, 313-314).

Sometime in the early morning hours

of Saturday, October 31, 1987, Mark

Hammond stopped their vehicle at an iso-

lated rural church, and they all got out

of the vehicle. Petitioner obtained a

2% to 3 foot pipe from the trunk of the

car which he called "Fred" and which he

knew could inflict great damage as a

weapon, because he had tested it against

a. telephone pole and caused a half-inch

dent in the pole without damaging the

Pipe. He also removed a piece of wood

for his cousin. The cousins claimed

that the pipe and wood were to break up

the fictitious bales of marijuana.

After some time, during which the cous-

ins sent Johnson into an adjoining corn-

field to see how much noise they would

make walking to the fictitious marijuana

barn, Mark Hammond Said, "Ron, let's

have the stuff", and Petitioner said,

"Ron just make it easier on yourself,

just give him the stuff." (TT Vol 2

pp 291-296).

vohnson was not very big, was kind

of timid, and did not fight. Petitioner

Claimed in his statement that Johnson

bent down and came at Petitioner.

Petitioner pushed Johnson once with his

hand, and then hit Johnson in the head

with his pipe "Fred", at least once and

possibly twice. Johnson dropped to his

knees from Petitioner's blow to his head

with the pipe, "Fred", screaming in

pain, and holding his head with his

hands. Thereafter, Mark Hammond broke

his piece of wood over Johnson's head

and then borrowed Petitioner's pipe to

continue to beat Johnson. The cousins

left Johnson laying on the ground where

he was discovered dead later that

morning (TT Vol 2 pp 296-299, 304,

306-309).

When the cousins returned to Diane

Richardson's home at between 3:00 to

3:30 a.m., Saturday, October 31, 1987,

~ a

Petitioner told Richardson he had really

bopped him up and that "we might have

killed him." (TT Vol 2 pp 310, 353,

361, 363, 368).

Later that day, Petitioner told his

girlfriend “we may have killed some-

body." (TT Vol 2 p 319).

On March 24, 1988, after the prose-

cutor rested, Petitioner's trial counsel

Stated Petitioner would present two

witnesses (TT Vol 3 Pp 419). The prose-

cutor requested an offer of proof con-

cerning the testimony of John Budd,

because of the Statements in Peti-

tioner's opening statement (TT Vol 3

Pp 469-470). Petitioner's trial counsel

made the offer (TT vol 3 Pp 470-471),

and the prosecutor made a motion in lim-

ine to bar John Budd's testimony (TT

a

Vol 3 p 479), which the trial court

granted from the bench in an opinion

providing in pertinent part:

[t)hat testimony by one mr. Budd

would indicate that he, prior to the

death of Ron Johnson, had had a

relationship of a homosexual nature

with Mark Hammond. That Mark

Hammond was supplanted by Ron

Johnson in some sort of a relation-

Ship with Mr. Budd, and that specif-

ically Mark Hammond was supplanted

in the will of Mr. Budd by Ron

Johnson, thus allegedly giving Mark

Hammond an additional motive to dis-

pose of by death of Ron Johnson.

(TT Vol 3 pp 480-481)

x *k *&

This Court believes it would be col-

lateral to go on and show additional

motive. We could go on forever and

Show additional motive Mark Hammond

might have had to dispose of Ron

Johnson.

x * *

If this jury convicts Tracy Hammond

of first degree murder, it will be

because they believe, it seems to

me, that he premeditated the murder

and that they disbelieve the story

about, A, maybe self-defense; and,

B, about him never intending in any

manner to hurt the man.

(TT Vol 3 p 482)

It doesn't matter if Mark Hammond

had an additional motive. That would

not excuse this witness--or excuse

me, this Defendant, if he had a

motive that was not the Same as Mark

Hammond's, if he had been dubbed

(Sic) into believing that the reason

for getting rid of this person was

because he might retaliate or he was

some sort of a bothersome witness

perhaps in the future.

Even if he were totally dubbed (sic)

-- and that wasn't Mark Hammond's

real reason--that doesn't matter.

He can still be convicted of the

motive that he may have had.

And, indeed, I don't want to mis-

state myself there. Motive is not

essential. He could be convicted of

first degree because of the premedi-

tation that he did do, for whatever

reason. And that is where I think

we start getting off into all kinds

of collateral reasons, and I think

that the matter would be confusing

to the jury, collateral and not

helpful in deciding this case.

(TT Vol 3 p 483)

Petitioner was convicted by the jury

of first degree murder later on March

24, 1988 (TT Vol 3 pp 572-574).

a.

On April 11, 1988, the trial court

held a hearing to preserve the testimony

of John Budd, who testified as follows:

He had a homosexual relationship

with Mark Hammond, who lived with Budd

in Budd's home from November, 1986 to

March, 1987. (April 11, 1988 Motion to

Preserve Testimony Transcript, People v

Hammond, supra, [PTT] pp 5-6, 10).

He made Mark Hammond the beneficiary

in his will in the fall of 1986 (PTT ‘pp

4, 11), but changed his will in March

1987, and made Cameron Johnson his

beneficiary, because Mark Hammond mis-

treated him. (PTT pp 5, 15-16).

He told Mark Hammond of the change

of beneficiary in his will, when Mark

Hammond moved out of Budd's house in

March 1987. (PTT pp 5, 11-12, 15-16).

~12- Pr.

He moved to Florida in April 1987,

and Mark Hammond visited him for 10 days

in September 1987, and shot him in the

hand with a gun when he left.

On July 6, 1990, the Michigan Court

of Appeals affirmed Petitioner's convic-

tion in People v Hammond, Michigan Court

of Appeals File No. 109359 and, inter

alia, held:

In this case, we find no abuse of

discretion on the part of the trial

court in refusing to allow John Budd

to testify. Ina post-trial motion

to preserve his testimony, Budd tes-

tified that he removed Mark Hammond

from his will and replaced him with

the victim, Cameron Johnson. This

testimony was primarily offered to

Show that Mark Hammond had a motive

to kill Johnson. However, evidence

of Mark Hammond's intent or motive

to kill Johnson is irrelevant where,

as here, Mark Hammond was tried

before a separate jury.

MRE 402.

On March 8, 1993, United States

District Judge Benjamin F. Gibson

=} 3-

entered a judgment in the above cause,

dismissing Petitioner's habeas petition,

and adopting as the. opinion of the Court

the February 16, 1993 Report and

Recommendation of United States

Magistrate Judg= Hugh W. Brenneman, Jr.

The District Court's adopted opinion

stated:

Despite petitioner's argument that

the absence of Mr. Budd's testimony

rendered the _ trial fundamentally

unfair and a violation of due

process, what petitioner is attempt-

ing to do is have this court make an

evidentiary ruling. The purpose of

this habeas court is not to deter-

mine the validity of a state court's

evidentiary holding. State court

rulings on the admissibility of evi-

dence may not be questioned in a

federal habeas_ corpus proceeding

unless they raise a federal consti-

tutional question. Bell v. Arn, 536

F.2d 123, 125 (6th Cir. 1976).

Due process requires that a defen-

dant be permitted to present wit-

nesses who will establish a defense.

Washington v. Texas, 388 U.S. 14, 19

(1967). However, Mr. Budd's testi-

mony was being offered to plant a

seed in the minds of the jurors that

=14~

Mark Hammond had a motive to kill

Ron Johnson that was different from

the petitioner. But the motive of

Mark Hammond was irrelevant. The

relevant issue was whether peti-

tioner had the requisite intent to

kill Ron Johnson, regardless of |

whether Mark Hammond did or did not

also have a motive. )

(R & R, p 6).

On February 7, 1994, the Sixth

Circuit Court of Appeals issued its

decision affirming the District Court's

dismissal of Petitioner's habeas

petition.

=)

REASONS FOR DENYING THE WRIT

THE PETITION DOES NOT PRESENT A

FEDERAL CONSTITUTIONAL QUESTION,

OR ANY IMPORTANT UNSETTLED

QUESTION OF FEDERAL LAW AND THE

DECISION BELOW DOES NOT CONFLICT

WITH DECISIONS OF THIS COURT OR

OF OTHER UNITED STATES COURTS OF

APPEALS.

Petitioner does not and = cannot

establish that this case involves a fed-

eral constitutional question, any impor-

tant unsettled questions of federal law

or that the decision below conflicts

with decisions of this Court or other

United States Courts of Appeals. This

case merely involves a_ state court

evidentiary ruling, which is not cogni-

zable by a habeas court.

=) =

THE PETITION DOES NOT PRESENT A

FEDERAL CONSTITUTIONAL QUESTION

COGNIZABLE BY A HABEAS COURT,

BUT MERELY ALLEGES THE STATE

TRIAL COURT MADE AN ERRONEOUS

EVIDENTIARY RULING. WHICH, BY

ITSELF, IS NOT A FEDERAL CON-

STITUTIONAL ISSUE.

The Sixth Circuit Court of Appeals

recognized that the critical initial

question presented by Petitioner's claim

that the trial court erred in ruling

John Budd's_ proposed testimony was

inadmissible was whether the claim pre-

sented a federal constitutional issue,

because nonconstitutional claims are not

cognizable in a federal habeas proceed-

ing, 28 USC § 2241(C)(3); 28 USC

§ 2254(a); Smith v Phillips, 455 yS 209,

221 (1982); Rose v Hodges, 423 US 19, 21

(1975) (per curiam); Estelle v McGuire,

502 US , 112 S Ct 475, 480 (1991),

evidentiary rulings of state courts are

af Fe

not cognizable by habeas courts, unless

the ruling rendered the trial fundamen-

tally unfair, Lundy v Campbell, 888 F2d

467, 469-470 (6th Cir, 1989) cert den,

110 S Ct 1212 (1990), and habeas relief

may not be based on a perceived error of

state law, Pulley v Harris, 465 US 37,

41 (1984); Lewis v Jeffers, 497 US 764,

780 (1990); Estelle, supra.

The Sixth Circuit Court of Appeals

correctly, and thoroughly but succinctly

ruled that Petitioner's claim concerning

the trial court's evidentiary ruling

that John Budd's testimony was inadmis-

Sible was not cognizable by a habeas

court as follows:

Respondent argues that petitioner is

attempting to have this court review

a state court evidentiary ruling on

the admissibility of evidence, which

does not raise a federal constitu-

tional question, and thus is not

reviewable in a habeas’ corpus

-16-—

petition. Bell v. Arn, 536 F.2d

123, 125 (6th Cir. 1976).

We agree. The admissibility of the

evidence at issue does not raise a

federal constitutional question

because it did not violate peti-

tioner's due process right to

Present a defense. The issue before

the jury was whether the petitioner

had the intent to kill Ron Johnson.

The relevant questior was not

whether Mark Hammond h. i a motive

and whether that motive was shared

by petitioner, but whether peti-

tioner had a motive as two co-

defendants can Clearly have distinct

motives for committing a crime.

Whether Mark Hammond may have had a

different motive to kil] the victim

does not tend to Prove or disprove

whether petitioner also had a motive

and the requisite intent to commit

the crime. Even if Mark Hammond had

@ different unexpressed motive to

kill Ron Johnson to get revenge for

being replaced by Johnson in Budd's

will, this motive would not disprove

that petitioner also had the intent

to kill and premeditated the murder.

To conclude, we find that evidenti-

ary rulings of state courts are not

cognizable in habeas corpus cases

unless the trial was rendered funda-

mentally unfair, which did not occur

in the present case. Lund Vv.

Campbell, 888 F.24 467, 469-470 (6th

Cir. 1989), cert. denied, 110 S. ct.

2212 (1990). The district court is

affirmed on this issue.

(Pp 7-8).

«ite

RELIEF SOUGHT

Petitioner has not and cannot estab-

lish that the above holding is erroneous

or that a writ of certiorari should be

issued.

WHEREFORE, Respondent urges’ this

Court to deny the Petition for Writ of

Certiorari.

Respectfully submitted,

FRANK J. KELLEY

Attorney General

Thomas L. Casey

Solicitor General

Counsel of Record

P. O. Bex 30212

Lansing, Michigan 48909

(517) 373-1124

Arthur E. D'Hondt

Assistant Attorney General

Attorneys for Respondent