Rockwell v. Yukins

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Rockwell v. Yukins No. 00-1992 ELECTRONIC CITATION: 2003 FED App. 0307P (6th Cir.) File Name: 03a0307p.06 GENERAL, Lansing, Michigan, for Appellant. Craig A. Daly, Detroit, Michigan, for Appellee. UNITED STATES COURT OF APPEALS NELSON, J., delivered the opinion of the court, in which MARTIN, C. J., BOGGS, BATCHELDER, GILMAN, FOR THE SIXTH CIRCUIT GIBBONS, and ROGERS, JJ., joined. CLAY, J. (pp. 12-29), _________________ delivered a separate dissenting opinion, in which DAUGHTREY, MOORE, and COLE, JJ., joined. SHARON MAY ROCKWELL , X Petitioner-Appellee, - _________________ - - No. 00-1992 OPINION v. - _________________ > , DAVID A. NELSON, Circuit Judge. The petitioner in this JOAN YUKINS, - habeas corpus action, Sharon Rockwell, was convicted at trial Respondent-Appellant. - in a state court of conspiring with her sons to murder the N boys’ father, her husband. A federal writ of habeas corpus Appeal from the United States District Court was subsequently granted on the ground that her Sixth for the Eastern District of Michigan at Detroit. Amendment right to present a complete defense precluded No. 97-71072—Avern Cohn, Senior District Judge. the state trial court from barring evidence that Mr. Rockwell had abused his sons sexually. Under the legal standard Argued: December 11, 2002 prescribed by the Antiterrorism and Effective Death Penalty Act of 1996, the writ should not have been issued unless Decided and Filed: August 27, 2003 exclusion of the evidence in question involved an “unreasonable” application of, or was contrary to, federal law Before: MARTIN, Chief Circuit Judge; NELSON, clearly established by the United States Supreme Court. BOGGS, BATCHELDER, DAUGHTREY, MOORE, Concluding that the result reached in the state court passes COLE, CLAY, GILMAN, GIBBONS, and ROGERS, muster under the statutory test, we shall reverse the grant of Circuit Judges. habeas relief.

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COUNSEL As we noted in an earlier appeal in this case, Rockwell v. Yukins, 217 F.3d 421, 422-23 (6th Cir. 2000), Sharon and ARGUED: Laura Graves Moody, OFFICE OF THE Edward Rockwell had three sons. One of the sons, acting ATTORNEY GENERAL, Lansing, Michigan, for Appellant. with two friends, attempted to kill Mr. Rockwell by cutting Craig A. Daly, Detroit, Michigan, for Appellee. ON BRIEF: the brake lines on his car. The attempt failed. Then, in a Laura Graves Moody, OFFICE OF THE ATTORNEY second unsuccessful attempt on Mr. Rockwell’s life, the two

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friends hit him on the head with a baseball bat. Although Rockwell was sentenced to imprisonment for life. An appeal Mrs. Rockwell was not present on either occasion, she had to the Michigan Court of Appeals followed. engaged in discussions with one or more of her sons about killing Mr. Rockwell. On the strength of these discussions, The Court of Appeals affirmed the conviction, succinctly the State of Michigan charged Mrs. Rockwell with conspiracy explaining its rationale as follows: to commit murder. “We find no abuse of discretion in the trial court’s Mrs. Rockwell’s defense, as her lawyer described it at a exclusion of evidence of the victim’s alleged prior acts of pretrial hearing, was that her participation in the talk of abuse against defendant’s and the victim’s children. killing Mr. Rockwell was not intended to further an actual People v. Watkins, 176 Mich. App. 428; 440 NW2d 36 murder; rather, according to counsel, Mrs. Rockwell’s (1989). Defendant was merely limited in the method purpose had been to let the boys vent the extreme and abiding with which to present her defense and not deprived [of] hatred they harbored against their father for having abused the opportunity to present the same. Although them, sexually and otherwise, when they were younger. marginally relevant, the evidence was properly excluded “[Mrs. Rockwell] felt in her heart that the only way she could under MRE 403.”2 keep the situation under control,” defense counsel explained, “was to allow the boys to talk and fantasize about [killing the Mrs. Rockwell applied to the Michigan Supreme Court for hated Mr. Rockwell.]” Far from agreeing to a murder, the leave to appeal the affirmance of her conviction, but further theory went, Mrs. Rockwell hoped to forestall a murder review was denied. through what her lawyer seems to have viewed as some sort of talk therapy. Mrs. Rockwell then filed her habeas action in the United States District Court for the Eastern District of Michigan. In connection with this “therapy defense,” as we The initial pleading raised two issues, insufficiency of the characterized it in our earlier opinion, Mrs. Rockwell wanted evidence and improper exclusion of the evidence of sexual to show at trial that Mr. Rockwell had sexually abused his abuse, both of which had been exhausted in the state courts. sons. The prosecution wanted to exclude evidence of the The district court eventually granted Mrs. Rockwell leave to alleged abuse. The state trial court ordered briefing and heard amend her petition to include an unexhausted claim as well. argument on the admissibility of the evidence of abuse, after Following a hearing at which arguments were presented on which it ordered the evidence excluded as not “material” the merits, the district court granted the writ on the ground under Mich. Rule of Evid. 404.1 that the state trial court’s decision to exclude evidence of the alleged sexual abuse clearly violated Mrs. Rockwell’s When the case went to trial, Mrs. Rockwell elected not to constitutional right to present a defense – and “[n]o take the stand. The jury returned a verdict of guilty, and Mrs. reasonable jurist could conclude otherwise.”

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The soundness of this proposition was not decided in the This version of the statute applies to habeas applications filed, initial appeal to our court. The panel that heard the appeal as Mrs. Rockwell’s was, after April 24, 1996, the effective vacated the judgment on the ground that the district court date of AEDPA. See Lindh v. Murphy, 521 U.S. 320 (1997). should not have reviewed a “mixed” petition containing an unexhausted claim in addition to the exhausted claims. The The statute means what it says. See Williams v. Taylor, first panel remanded the case with a suggestion that the 529 U.S. 362, 402-13 (2000). What the statute says, to district court could reenter its original decision after allowing repeat, is that habeas relief may not be granted unless the state Mrs. Rockwell to dismiss her unexhausted claim. See court’s decision was either “contrary to . . . clearly established Rockwell v. Yukins, 217 F.3d at 425. federal law, as determined by the Supreme Court of the United States,”3 or “involved an unreasonable application of On remand, the district court accepted this suggestion. . . . [such] law.” Mrs. Rockwell moved for dismissal of her unexhausted claim and reentry of the habeas judgment, and the district court Mrs. Rockwell does not contend that the affirmance of her granted the motion. conviction by the state court of appeals was “contrary to” clear Supreme Court caselaw. She does contend, however, The warden again appealed to our court. Reaching the that it involved an unreasonable application of such law. merits of the case, a divided three-judge panel reversed the district court’s judgment. The full court then voted to rehear For this contention to be accepted, Mrs. Rockwell must do the case en banc. Supplemental briefs having been filed, and more than persuade us that the Michigan judiciary’s the case having been reargued, the appeal is now ready for application of federal law was incorrect. As Justice decision by the full court. O’Connor said, speaking for the Court in Williams:

II “In § 2254(d)(1), Congress specifically used the word ‘unreasonable,’ and not a term like ‘erroneous’ or As amended by the Antiterrorism and Effective Death ‘incorrect.’ Under § 2254(d)(1)’s ‘unreasonable Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 application’ clause, then, a federal habeas court may not Stat. 1214 (1996), subsection (d) of 28 U.S.C. § 2254 issue the writ simply because that court concludes in its provides, in relevant part, as follows: independent judgment that the relevant state-court decision applied clearly established federal law “(d) An application for a writ of habeas corpus on behalf erroneously or incorrectly. Rather, that application must of a person in custody pursuant to the judgment of a State also be unreasonable.” Williams, 529 U.S. at 411 court shall not be granted with respect to any claim that (emphasis supplied). 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 3 The condition of this “contrary to” clause would be met if “the state involved an unreasonable application of, clearly court arrive[d] at a conclusion opposite to that reached by [the U.S. established Federal law, as determined by the Supreme Supreme] Court on a question of law or if the state court decide[d] a case Court of the United States . . . .” differently than [the U.S. Supreme Court has] o n a set of materially indistinguishable facts.” Williams, 529 U.S. at 413.

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“[A]n unreasonable application of federal law is different gloss Mrs. Rockwell would have us put on the case flies in from an incorrect or erroneous application of federal law.” the face of a line of authority (to which we shall turn shortly) Id. at 412 (emphasis in original). And in making the culminating in United States v. Scheffer, 523 U.S. 303 (1998), “unreasonable application” inquiry, we “should ask whether we reject the claim that the Michigan court’s decision the state court’s application of clearly established federal law represented an unreasonable application of Davis. was ‘objectively’ unreasonable.” Id. at 409. Mrs. Rockwell attempts to extract from Davis and other In Mrs. Rockwell’s case, as we have seen, the Michigan Supreme Court cases a general rule that a criminal defendant Court of Appeals concluded that the probative value of the must be permitted to present any evidence that she deems evidence of Edward Rockwell’s alleged abuse of his sons was critical to her defense. In this connection she cites Crane v. substantially outweighed by the danger that unfair prejudice Kentucky, 476 U.S. 683 (1986), which holds that “the would ensue were the evidence to be admitted. This Constitution guarantees criminal defendants ‘a meaningful conclusion may or may not have been erroneous, but we opportunity to present a complete defense.’” Id. at 690 cannot say that it represented an objectively unreasonable (citations omitted). application of clearly established Supreme Court precedent. But the Supreme Court has made it perfectly clear that the A Supreme Court decision that the district court found right to present a “complete” defense is not an unlimited right “particularly instructive,” Davis v. Alaska, 415 U.S. 308 to ride roughshod over reasonable evidentiary restrictions. A (1974), held that the defendant in a burglary case had a defendant “does not have an unfettered right to offer constitutional right to cross-examine a crucial prosecution testimony that is incompetent, privileged, or otherwise witness about a juvenile burglary adjudication for which the inadmissible under standard rules of evidence.” Taylor v. witness was on probation, notwithstanding a state rule making Illinois, 484 U.S. 400, 410 (1988). Rather, she “must comply evidence of juvenile adjudications inadmissible. The Court with established rules of procedure and evidence designed to emphasized that “[c]ross-examination is the principal means assure both fairness and reliability in the ascertainment of by which the believability of a witness and the truth of his guilt and innocence.” Chambers v. Mississippi, 410 U.S. 284, testimony are tested,” adding that the juvenile’s testimony 302 (1973). “provided ‘a crucial link in the proof . . . of [the defendant’s] act.’” Id. at 316 and 317 (citation omitted). “In this setting,” As the Supreme Court explained in Scheffer: the Court concluded, “. . . the [Sixth Amendment] right of confrontation is paramount to the State’s policy of protecting “state and federal rulemakers have broad latitude under a juvenile offender.” Id. at 319. the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an In the case at bar, by contrast, the evidence of sexual abuse accused’s right to present a defense so long as they are was not being proffered to attack the believability of a crucial not ‘arbitrary’ or ‘disproportionate to the purposes they witness against Mrs. Rockwell. The rule under which the trial are designed to serve.’” 523 U.S. at 308 (citations court excluded the evidence, moreover, is not aimed at omitted). protecting juvenile offenders. The interests at stake in this case are entirely different than those at stake in Davis. A defendant’s right to present a “complete” defense, in other Because Davis is readily distinguishable, and because the words, does not automatically trump state evidentiary rules.

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The competing interests must be balanced, and “a defendant’s would not have barred her from telling the jury that she interest in presenting . . . evidence may [have to] bow to thought such talk had a healthy prophylactic effect; that she accommodate other legitimate interests in the criminal trial did not think it would lead to overt action; and that she had process.” Id. (Internal quotation marks and citations never been a party to any mutual understanding or agreement omitted.) to commit murder. The court’s ruling barred Mrs. Rockwell only from testifying that her husband’s abuse of her sons was It was not objectively unreasonable, in our view, for the sexual in nature. Michigan court to conclude that “other legitimate interests in the criminal trial process” outweighed Mrs. Rockwell’s Explication of the sexual aspect of the abuse, in short, did interest in presenting evidence of her husband’s prior conduct. not go to the essence of the “talk therapy” defense. Rather, it The evidence of sexual abuse posed a substantial danger of was a detail – an important detail, to be sure, but a detail unfair prejudice – a risk that the jury would be tempted to nonetheless. acquit Mrs. Rockwell not because of any sense that she was innocent of conspiring with her sons to kill Mr. Rockwell but It is far from certain, moreover, that presentation of this because of a sense that killing would be too good for such a detail to the jury would have increased the likelihood of Mrs. man. Rockwell’s acquittal. The more heinous Mr. Rockwell’s offenses, the jury could reasonably have concluded, the more In addition to the danger of unfair prejudice, the sexual likely it was that Mrs. Rockwell understood the talk of abuse evidence presented a risk of undue delay and confusion murder to be in earnest. If, on the other hand, testimony that of the issues. The facts that Mrs. Rockwell wished to the abuse was sexual would have made the jury more likely introduce into evidence were disputed. Resolution of this to acquit Mrs. Rockwell, it might well have done so on the tangential dispute would have complicated the trial and could improper basis mentioned above – a sense that the conspiracy have tended to mislead the jury. was justified – rather than on any legitimate basis. In these circumstances, we believe it was not unreasonable for the It is true that the chances of the jury’s accepting Mrs. Michigan Court of Appeals to weigh the competing interests Rockwell’s “therapy defense” may have been diminished by as it did.5 exclusion of the sexual abuse evidence. But it would not be correct to say that Mrs. Rockwell was deprived of her defense. Exclusion of the evidence would not have prevented her from testifying that her sons hated their father because of Mrs. Rockwell to present evid ence of the alleged sexual misconduc t. his unspeakable behavior toward them over the years.4 It 5 Even if the Michigan court acted unreasonably in concluding that exclusion of the sexual abuse evidence was constitutional, any error was 4 probab ly harmless. There was evidence at trial that M rs. Rockwell herself By the sam e token, the ruling did no t bar M rs. Rockwell from had attempted to acquire a bomb, that she had continued to discuss killing simply testifying that the boys had an intense hatred of their father. If her husband even after she knew there ha d been an a ctual attem pt on his such testimony had gone unchallenged, the jury might well have accepted life, and that, on the night of the second attempt, she had taken her it. If the pro secutio n had cross-examined M rs. Rockwell as to the b asis younger children out of the house so that they would not be present of the hatred, on the other hand , or if it had presented the husb and as a during the attack. This evidence severely undercuts th e defense theory witness and evoked a denial that he had done anything to cause the b oys that Mrs. Rockwell believed he r sons were m erely engaging in harmless to hate him, the doo r would then have b een o pened, in all probability, for talk.

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The decision made by the Michigan court was a judgment call ______________ of the sort that judges make all the time. Some members of this court, had they been on the state bench, would have made DISSENT a different call. We cannot say they would have acted ______________ unreasonably in doing so, particularly in view of the fact that the danger of undue prejudice could have been minimized by CLAY, Circuit Judge, dissenting. The majority’s a cautionary instruction. See Lewis v. Wilkinson, 307 F.3d conclusion that the Michigan Court of Appeals did not 413, 422 (6th Cir. 2002). What we can say, however, is that unreasonably apply Supreme Court precedent in rejecting the call made by the Michigan court was well within that Petitioner’s claim that she was denied her Fifth Amendment court’s discretion. The decision to exclude evidence of the right to present a complete defense rests upon an sexual nature of the victim’s mistreatment of his sons did not, interpretation of § 2254(d)(1) that has no basis in the law. As in our opinion, involve an unreasonable application of clearly the term “unreasonable” is commonly known and applied in established federal law as determined by the Supreme Court the jurisprudence, the state appellate court’s decision of the United States. represented an objectively unreasonable application of the Court’s precedent. The decision of the district court is REVERSED, and the case is REMANDED with instructions to dismiss the Petitioner sought to introduce evidence of Edward petition. Rockwell’s alleged sexual abuse of his sons for the purpose of establishing that she engaged in talk of killing Rockwell with her sons, not for the purpose of forming an agreement to kill, but for the purpose of allowing the boys to vent their anger and hatred of Rockwell. Thus, evidence of Rockwell’s alleged sexual abuse provided the substantive basis of Petitioner’s defense and, without the evidence, Petitioner was prevented from establishing any defense at all. The state appellate court’s finding that omission of this evidence merely limited Petitioner in the “method” of presenting her defense thereby constitutes an objectively unreasonable application of Supreme Court precedent. As a result, the state appellate court’s conclusion that the evidence was properly excluded on evidentiary grounds constitutes an objectively unreasonable application of the Court’s precedent as well. I would therefore affirm the district court’s order granting the petition for a writ of habeas corpus filed by Petitioner, Sharon May Rockwell.

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I. “Unreasonable Application” Prong of 28 U.S.C. We are not without guidance, however, as to when a state § 2254(d)(1) court’s decision rises to the level of being “objectively unreasonable” for purposes of granting a petitioner habeas This Court’s review of the Michigan Court of Appeals’ relief under § 2254(d)(1). In Wiggins v. Smith, 123 S. Ct. at decision regarding Petitioner’s claim is circumscribed by 2538-539, a death penalty case, the Supreme Court held that § 2254(d)(1) of the Antiterrorism and Effective Death Penalty the Maryland Court of Appeals unreasonably applied the Act of 1966 (“AEDPA”), meaning that the state court’s governing principles of Strickland v. Washington, 466 U.S. decision will not be disturbed on habeas review unless the 668 (1984) in rejecting the petitioner’s claim that he had been decision was “contrary to, or involved an unreasonable denied his Sixth Amendment right to effective assistance of application of, clearly established Federal law, as determined counsel. The Court found that the state court of appeals’ by the Supreme Court of the United States . . . .” In this case, conclusion that counsel’s performance was within it is the “unreasonable application” prong of § 2254(d)(1) that professional norms was objectively unreasonable under guides our review. Under this prong, “‘a federal habeas court Strickland inasmuch as counsel had failed to make a may grant the writ if the state court identifies the correct reasonable investigation into the petitioner’s social history. governing legal principle from [the] [Supreme] Court’s Id. (noting that under Strickland, “strategic choices made after decisions but unreasonably applies that principle to the facts a less than complete investigation are reasonable precisely to of the prisoner’s case.’” Lockyer v. Andrade, ___ U.S. ___, the extent that reasonable professional judgments support the 123 S. Ct. 1166, 1174 (2003) (quoting Williams v. Taylor, limitations on investigation”) (citation and internal quotation 529 U.S. 362, 413 (2000)). Said differently, “a federal court marks omitted). This, in turn, made the state court’s may grant habeas relief [under this prong] based on an deference to counsel’s strategic decision not to present application of a governing legal principle to a set of facts mitigating evidence of the petitioner’s social history different from those of the case in which the principle was objectively unreasonable as well. Wiggins, 123 S. Ct. at announced.” Id. (citing Williams, 529 U.S. at 407). 2538-539 (“[C]ounsel chose to abandon their investigation at an unreasonable juncture, making a fully informed decision “‘[A] federal habeas court may not issue the writ simply with respect to sentencing strategy impossible.”). because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] The Wiggins majority rejected the dissent’s contention that incorrectly.’” Price v. Vincent, ___ U.S. ___, 123 S. Ct. “the Court’s hands [were] tied under § 2254(d), by the state 1848, 1853 (2003) (alteration in Price) (quoting Bell v. Cone, court’s factual determinations that [the petitioner’s] trial 535 U.S. 685, 699 (2002)). Rather, “[i]n order for a federal counsel did investigate and were aware of [the petitioner’s] [habeas] court to find a state court’s application background.” Id. at 2539 (internal quotation marks and ‘unreasonable,’ the state court’s decision must have been citation omitted; emphasis in original). The Court reasoned more than incorrect or erroneous[,] [it] must have been that the dissent’s position was unfounded because the state ‘objectively unreasonable.’” Wiggins v. Smith, ___ U.S. ___, appellate court’s conclusion that “the scope of counsel’s 123 S. Ct. 2527, 2534 (2003) (citing Lockyer, 123 S. Ct. at investigation into petitioner’s background met the legal 1175; Williams, 529 U.S. at 409); see also Woodford v. standards set in Strickland represented an objectively Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam). unreasonable application of our precedent.” Id. (emphasis in original). In other words, the state court’s finding that counsel investigated and knew of the petitioner’s social

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history did not tie the Court’s hands because the scope of The majority opinion agrees that the evidence in counsel’s investigation was objectively unreasonable under question is relevant. If it is relevant it is only so because the principles of Strickland. Id. it relates to a legally recognized defense. That defense is that defendant’s participation in the conversations was Thus, Wiggins instructs us that while we defer to state court not, from her perspective, part of the conspiracy or decisions under § 2254(d)(1), the deference is not absolute agreement to commit murder, but, rather, it was her way inasmuch as a petitioner may be afforded habeas relief when of allowing her sons to ventilate their anger at the sexual the state court’s decision reaches a result not supported by abuse her husband had been perpetrating on the boys Supreme Court precedent. See id. over a period of time. Her defense might not be accepted by a jury and her belief, if, indeed, she had such a belief, II. Michigan Court of Appeals’ Ruling that the boys should be allowed to express their rage through such conversations may have been misguided. The Michigan Court of Appeals issued a divided ruling in Nevertheless, I believe she should have been allowed to this case. While the two-judge majority found that Petitioner tell her version of the events to the jury and to submit was not entitled to relief on her claim that the trial court evidence it support of it. abused its discretion in excluding evidence of Edward Rockwell’s prior acts of alleged sexual abuse against I come to this conclusion because I believe her version Rockwell’s and Petitioner’s children, a dissenting judge goes to the very heart of her defense, i.e., that there was sharply disagreed. See People v. Rockwell, No. 124359 no conspiracy between her and anyone else. The absence (Mich. Ct. App. May 23, 1991) (unpublished). of a conspiracy, i.e., an agreement, depends on whether she had a factual basis for allowing the boys to express Specifically, as to Petitioner’s claim on this issue, the two- their anger in this manner and this, in turn, depends on judge majority opined: whether the sexual abuse actually occurred. If it did not occur, her defense disappears and if it did occur, she has We find no abuse of discretion in the trial court’s an explanation, however tenuous it might be, for why she exclusion of evidence of the victim’s alleged prior acts of participated in the conversations and for her theory that abuse against defendant’s and the victim’s children. she was not seriously conspiring to murder her husband. People v Watkins, 176 Mich App 428; 440 NW2d 36 (1989). Defendant was merely limited in the method From this perspective, the need to establish the sexual with which to present her defense and not deprived the abuse becomes crucial. I would not want the trial to opportunity to present the same. Although marginally deteriorate into a criminal sexual conduct case with each relevant, the evidence was properly excluded under MRE allegation of sex abuse being proved and then being 403. disproved by other witnesses but I am satisfied that the trial judge can place adequate controls and limits on the Id. In sharp contradistinction, the dissenting judge found flow of testimony given the purpose of such testimony. Petitioner’s claim on this issue meritorious and would have It would be sufficient for the trial judge to allow enough reversed Petitioner’s conviction and remanded for a new trial. evidence to establish that defendant’s view of the That judge persuasively refutes the majority’s argument as situation was supported by an adequate factual basis. follows:

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If all she can show is that her behavior was based on determination as to Petitioner’s ability to present her defense a vague and generalized hatred for her husband by in the absence of this evidence, the decision to exclude the herself and by the boys, she is deprived of the essence of evidence under the rule is itself unreasonable. See Wiggins, her defense. A defendant must be permitted to offer 123 S. Ct. at 2538-539 (holding that if the court makes an proofs of each element of a valid defense. See unreasonable determination as to the basis for counsel’s Washington v Texas, 388 US 14, 19; 87 S Ct 1920; 18 L strategy, the decision to defer to counsel’s strategic choice is Ed 2d 1019 (1967); People v Callington, 123 Mich App itself unreasonable). 301, 305; 333 NW2d 260 (1983). I wish to emphasize that I do not take the position that defendant would be A. Petitioner’s Right to Present a Defense justified in conspiring to kill her husband if he had perpetrated sexual abuse upon the boys. Rather, my The state appellate court held that Petitioner was not denied position is that she must be permitted to argue and her constitutional right to present a defense because the submit proofs that the existence of the sexual abuse exclusion of evidence regarding Rockwell’s sexual abuse formed a basis for her belief that she was not a knowing “merely limited [] the method” by which Petitioner could participant in a conspiracy at all. present her defense theory. Under clearly established Supreme Court precedent, the state appellate court’s holding I would reverse and remand for a new trial. was objectively unreasonable because evidence of Rockwell’s alleged sexual abuse provided the substantive basis for Id. (Shepherd, J., dissenting) (emphasis added). Petitioner’s defense such that without this evidence Petitioner was left with no defense at all. III. Analysis The Court has long held that an accused’s right to At the outset, it should be noted that although the state “establish a defense” is a “fundamental element of due appellate court’s reason for concluding that the evidence was process.” Washington v. Texas, 388 U.S. 14, 19 (1967). In properly excluded under Rule 403 is significant, what is most Washington, the Court was called upon for the first time “to significant is the court’s finding that the exclusion of decide whether the right of an accused to have compulsory Rockwell’s sexual abuse of his sons merely limited the process for obtaining witnesses in his favor, guaranteed in “method” by which Petitioner could present her defense. federal trials by the Sixth Amendment, is so fundamental and This is so because the state appellate court made an essential to a fair trial that it is incorporated in the Due objectively unreasonable determination under Supreme Court Process Clause of the Fourteenth Amendment.” Id. at 17-18. precedent that Petitioner was only limited in the “method” Relying on In re Oliver, the Court observed that, among other and not the substance of her defense through the exclusion of things, an accused’s right “‘to offer testimony’” is a basic this evidence, which thereby rendered the court’s conclusion component of his right to offer a defense. Id. at 18 (quoting that the evidence was properly excluded under Rule 403 In re Oliver, 333 U.S. 257, 273 (1948)). The Court therefore objectively unreasonable as well. Said differently, although concluded that “[t]he right to offer testimony of witnesses and it is true that Supreme Court precedent indicates that the right to compel their attendance [] is in plain terms the right to to present a defense is at times limited by reasonable present a defense” because “[j]ust as an accused has the right evidentiary rules, if in deciding to exclude evidence under an to confront the prosecution’s witnesses for the purpose of evidentiary rule the court makes an objectively unreasonable challenging their testimony, he has the right to present his

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own witnesses to establish a defense.” Id. at 19. It is then up to his probationary status as a juvenile offender based on a to the jury to “decide where the truth lies.” Id. state statute protecting the anonymity of juvenile offenders. Id. at 311. As a result, the petitioner’s counsel “did his best” The Court spoke again on the constitutional significance of to expose the witness’s state of mind at the time, but much of allowing a defendant to present testimony in connection with the witness’ testimony went unchallenged. Id. at 312-14. his defense in Crane v. Kentucky, 476 U.S. 683 (1986). The petitioner was convicted, and his appeal made its way to Specifically, in Crane, the Court held that the exclusion of the Alaska Supreme Court which affirmed the petitioner’s testimony surrounding the circumstances of a defendant’s conviction, concluding that “‘counsel for the defendant was confession deprived the defendant of his fundamental able adequately to question the youth in considerable detail right—whether under the Due Process Clause of the concerning the possibility of bias or motive.’” Id. 314-15. Fourteenth Amendment or under the Compulsory Process or Confrontation Clauses of the Sixth Amendment—to present The Supreme Court granted certiorari limited to the a defense. Id. at 690-91. The Court reasoned that the question of whether the petitioner was denied his opportunity to be heard “would be an empty one if the State constitutional right to adequately cross-examine the witness, were permitted to exclude competent, reliable evidence which “turn[ed] on the correctness of the Alaska court’s bearing on the credibility of a confession when such evidence evaluation of the ‘adequacy’ of the scope of cross- is central to the defendant’s claim of innocence.” Id. As a examination permitted.” Id. The Court reversed, finding that result, the Court concluded that the “exclusion of this kind of it could not “accept the Alaska Supreme Court’s conclusion exculpatory evidence deprives a defendant of the basic right that the cross-examination that was permitted defense counsel to have the prosecutor’s case encounter and ‘survive the was adequate to develop the issue of bias properly to the crucible of meaningful adversarial testing.’” Id. at 690-91 jury.” Id. at 318. The Court reasoned: (quoting United States v. Cronic, 466 U.S. 648, 656 (1984)). While counsel was permitted to ask [the witness] In Davis v. Alaska, 415 U.S. 308, 315-16 (1974), the Court whether he was biased, counsel was unable to make a examined an accused’s right to present a defense in the record from which to argue why [the witness] might have context of the cross-examination of witnesses offered against been biased or otherwise lacked that degree of him. The Court recognized that “[c]ross-examination is the impartiality expected of a witness at trial. On the basis principal means by which the believability of a witness and of the limited cross-examination that was permitted, the the truth of his testimony are tested[,]” and that several means jury might well have thought that defense counsel was of discrediting a witness are essential to effective cross- engaged in a speculative and baseless line of attack on examination. Id. at 316. The petitioner in Davis sought to the credibility of an apparently blameless witness or, as discredit a government witness by showing the existence of the prosecutor’s objection put it, a ‘rehash’ of prior cross- possible bias and prejudice. Id. Specifically, the petitioner examination. On these facts, it seems clear to us that to sought to question a key witness for the prosecution regarding make any such inquiry effective, defense counsel should the witness’ adjudication as a juvenile delinquent and his have been permitted to expose to the jury the facts from probation status in order to demonstrate that the witness which jurors, as the sole triers of fact and credibility, identified the petitioner as the perpetrator out of fear of could appropriately draw inferences relating to the possible probation revocation. Id. at 310-11. The trial court reliability of the witness. refused to allow the petitioner to cross-examine the witness as

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Id. (emphasis added). she knew the situation was a volatile, explosive situation and she felt in her heart that the only way she could keep Against this backdrop, it is clear that the Michigan Court of this situation under control was to allow the boys to talk Appeals’ ruling—that exclusion of Rockwell’s sexual abuse and fantasize about these things that were apparently in of the boys “merely limited [Petitioner] in the method” by their minds. And, therefore, her attitude was talk will which she could present her defense—was objectively diffuse the situation rather than silence causing an unreasonable inasmuch as this evidence was at the very explosion. So her defense is that she did not make an substance of Petitioner’s defense. Through the exclusion of agreement with anyone. She allowed this talk because it this evidence, Petitioner was deprived of her right to present was just talk. testimony in connection with and in support of her defense pursuant to Washington and Crane, and she was denied her Now, the sex acts involved in this case and father’s right to effectively cross-examine key witnesses and prior conduct in treating his family so shabbily will show demonstrate the accuracy and truthfulness of her defense that this hatred was real and will show that why this talk under Davis, all of which ultimately denied Petitioner her due was engaged in. process right to present a defense. (Trial Tr., Vol. I at 12-13.) The following colloquy then Indeed, at the hearing on the motion in limine before the occurred between the trial court and Petitioner’s counsel: trial court, Petitioner’s counsel argued the substantive significance of the sexual abuse evidence as it related to THE COURT: Assuming everything you say is true, [] Petitioner’s defense: assuming that there was hated [sic] based upon all these activities, what type of a Your Honor, in this case, my client, Sharon Rockwell, legal defense is it? is charged with conspiracy to murder Edward Rockwell, her husband. The facts will show in this case that there *** were several conversations throughout the period of the conspiracy in which my client and the other conspirators PETITIONER’S COUNSEL: Because mother and the other parties discussed death, ways of [Petitioner] says there was not an accomplishing death of father. agreement to murder. Mother says this was nothing more than talk. The prosecution intends to show that my client engaged in these conversations in an effort to convince THE COURT: Then how is your client harmed by not the jury that my client is guilty of conspiring to murder. including the sexual—prior sexual conduct? *** PETITIONER’S COUNSEL: Because then a finder of My client knew of the extreme—and I fact says, well, if there was—You know, underline—extreme hatred her children had for their the finder of fact concludes that this is father. She knew this because she lived with it every day just nothing more than a smoke screen she raised the children. Her defense, you Honor, is that by the Defendants. My client must show

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that, in fact, this is true, her defense is witnesses, including her co-defendants who testified at trial. true, because otherwise, a rational finder In other words, the trial court’s ruling deprived Petitioner of of fact can believe that mother is just “the right to present [her] own witnesses to establish a making up a story to get out of defense[,] thus depriving Petitioner of a “fundamental something. element of due process of law.” Washington, 388 U.S. at 19. Accordingly, the state appellate court’s ruling that Petitioner *** was merely limited in the method by which she could present her defense was objectively unreasonable under Washington. My client’s argument is that there was no agreement; this was just talk. And The same may be said of the state appellate court’s ruling that’s very critical in this case because under Crane v. Kentucky, inasmuch as without the evidence the evidence and the facts will show that of Rockwell’s abuse, Petitioner’s defense had no foundation this talk occurred because of this and “deprive[d] [Petitioner] of the basic right to have the extreme hatred. prosecutor’s case encounter and ‘survive the crucible of meaningful adversarial testing.’” Crane, 476 U.S. at 690-91 Her entire defense is built around (quoting United States v. Cronic, 466 U.S. 648, 656 (1984)). showing that, in fact, this was nothing Similar to Crane, evidence of why Petitioner participated in but talk, and to disallow the evidence to the talk of Rockwell’s death—that it was a means of allowing come in makes it—makes her defense the boys to vent their hatred for their father that had resulted one so weak that it is of dubious nature from his sexual abuse—was “central to [Petitioner’s] claim of at best. innocence” because without the evidence as to why the boys hated their father, Petitioner’s defense had little chance of (Id. at 14, 24.) Ruling on the record, the trial court excluded succeeding. See id. at 691. Indeed, without more, the evidence, stating as follows: “The Court will not allow Petitioner’s “talk therapy” defense may very well have inquiry into the collateral issues with regard to sexual matters. worked against Petitioner inasmuch as the jury may have The Court finds that it is not material under [MRE] 404.” believed that Petitioner’s sons hated their father because he (Trial Tr., Vol. I at 24.) demanded that they excel in school, or because he strictly prevented them from using drugs or alcohol. In other words, Thus, the exclusion of this evidence did not merely limit without more, the jury may have thought the sons hated Petitioner “in the method” by which she could present her Rockwell because he was being a good, albeit perhaps strict, defense; rather, the exclusion of this evidence prevented father, such that Petitioner’s approval of the boys speaking of Petitioner from establishing her defense. As argued by her killing Rockwell as a form of “talk therapy” may have hurt counsel before the trial court, testimony of Rockwell’s sexual her defense as opposed to helping it. Without knowing the abuse provided the very basis as to why Petitioner allowed reason behind the boys’ hatred of Rockwell, the jury may also and participated in conversations with her sons regarding have believed that they hated him at Petitioner’s behest, Rockwell’s death, and why these conversations did not thereby adding credence to the prosecution’s claim that amount to an agreement to kill. Petitioner could not establish Petitioner formed an agreement with her sons to kill her defense without such testimony, which she could have Rockwell. Thus, evidence of why the boys hated their father introduced through her own testimony as well as that of other and why Petitioner allowed or participated in talk of

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Rockwell’s death was “all but indispensable to any chance of gained credence thus making it less “speculative.” Davis, 415 [her defense] succeeding” thereby rendering the state U.S. at 317-18. Accordingly, Davis is further indication that appellate court’s ruling objectively unreasonable under excluding evidence of Rockwell’s sexual abuse deprived Crane. Id. at 691. Petitioner of the substance of her defense, making the state appellate court’s determination that Petitioner was merely Davis v. Alaska provides further support as to why the state limited in the “method” of presenting her defense objectively appellate court’s ruling that Petitioner was merely limited in unreasonable.¹ the “method” by which she could present her defense was objectively unreasonable. This is so because, as indicated, the B. Excluding the Evidence Under Rule 403 Court in Davis held that “the jurors were entitled to have the benefit of the defense theory before them so that they could The majority contends that the Michigan Court of Appeals make an informed judgment as to the weight to place on [the excluded evidence of Rockwell’s sexual abuse of his sons witness’] testimony which provided a crucial link in the proof because the court found that the probative value of the . . . of petitioner’s act.” Id. at 317 (internal quotation marks evidence was substantially outweighed by the danger that and citation omitted; emphasis in original). The Court unfair prejudice would have ensued had the evidence been reasoned that “[t]he accuracy and truthfulness of [the key admitted. The majority goes on to hold that it was not witness’] testimony were key elements in the State’s claim objectively unreasonable for the state appellate court to against the petitioner.” Id. exclude the evidence on this basis because, “[t]he evidence of sexual abused posed a substantial danger of unfair The accuracy and truthfulness of testimony provided by the prejudice—a risk that the jury would be tempted to acquit prosecution’s witnesses in connection with Petitioner’s Mrs. Rockwell not because of any sense that she was innocent participation in discussions to kill Rockwell were key of conspiring with her sons to kill Mr. Rockwell, but because elements in the state’s conspiracy case against Petitioner. of a sense that killing would be too good for such a man.” Indeed, without such evidence, the state would have been at However, the majority’s conclusion in this regard is based on a loss in proving that Petitioner formed an agreement to kill. pure speculation and what amounts to an inappropriate de For example, prosecution witness Peter Earl Granger, who novo review of the case inasmuch as the Michigan Court of identified himself as a family friend, testified at length that he Appeals’ two-judge majority merely stated that “[a]lthough had been privy to discussions that Petitioner had with her sons marginally relevant, the evidence was properly excluded about killing Rockwell. (Trial Tr. Vol. IV. at 96-117.) If under MRE 403.” Indeed, the same be said for the majority’s Petitioner had been allowed to cross-examine Granger as to speculation that the evidence was properly excluded under the context or circumstances under which these discussions to Rule 403 because it would have complicated the trial or have kill arose—the boys’ hatred of Rockwell due to his alleged tended to mislead the jury. There is nothing to support this sexual abuse—Granger’s statements may have served to aid Petitioner and not the state. Similarly, co-defendant Jeffrey Greene, the young man upon whom Rockwell had allegedly 1 The majo rity’s conclusion tha t Da vis is “readily distinguishable” made a sexual advance on the night in question, testified at flies in the face of habeas review under the unreasonable application trial; and had Petitioner been allowed to question Greene as prong of § 2254(d)(1) inasmuch as under this prong, relief may be granted to Rockwell’s history of sexual abuse on the Rockwell “based on an application of a governing legal princip le to a set of facts different from those of the case in which the principle was announced.” children, Petitioner’s “talk therapy” defense would have Lockyer v. Andrade, 123 S. Ct. at 1174.

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conclusion, particularly where the decision whether to admit court of appeals overall application of Strickland was the evidence was decided in a motion in limine and the trial objectively unreasonable because 1) the court’s finding that court could easily have limited the parameters of the evidence defense counsel had adequately investigated the petitioner’s while cautioning the jury as to the scope of its consideration. background was objectively unreasonable under Strickland which 2) thereby made the state court’s subsequent deference Michigan’s Rule of Evidence 403 is identical to Federal to counsel’s strategic choice objectively unreasonable as Rule of Evidence 403 and provides: “Although relevant, well). evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, It is true, as the majority contends, that the Supreme Court confusion of the issues, or misleading the jury, or by has held that a defendant’s right to present relevant evidence considerations of undue delay, waste of time, or needless is subject to reasonable restrictions for the purpose of presentation of cumulative evidence.” MICH. R. EVID . 403. accommodating “‘other legitimate interests in the criminal Thus, the Michigan Court of Appeals may have excluded the trial process.’” United States v. Scheffer, 523 U.S. 303, 308 evidence under Rule 403 for any of the reasons provided (1998) (quoting Chambers v. Mississippi, 410 U.S. 284, 295 under the rule. Indeed, there is nothing in the state court’s (1973)). To the extent that the Michigan Court of Appeals majority opinion to indicate that it excluded the evidence excluded the evidence under Rule 403, for whatever reason, because the probative value of the evidence was substantially it would appear that under the deferential standard set forth by outweighed by the danger of unfair prejudice.2 In fact, when AEDPA, this Court would be in a position to conclude that considering the sentence in the state appellate court’s opinion the state appellate court’s decision was not unreasonable. immediately proceeding the sentence where it is found that However, inasmuch as the state court was objectively the evidence was properly excluded under Rule unreasonable in concluding that exclusion of the evidence 403—“Defendant was merely limited in the method with merely denied Petitioner the “method” by which she could which to present her defense and not deprived the opportunity present her defense, its conclusion that the evidence was to present the same”—it logically follows that evidence was properly excluded under Rule 403 was objectively excluded as being cumulative. unreasonable as well.3 See Wiggins, 123 S. Ct. at 2538-539; see also Scheffer, 523 U.S. at 308 (recognizing that it is That aside, the state appellate court’s ruling that the unconstitutionally arbitrary or disproportionate to exclude evidence was properly excluded under Rule 403, for whatever evidence if, in doing so, an accused’s weighty interest is reason, is objectively unreasonable inasmuch as its conclusion infringed). that Petitioner was “merely limited in the method with which to present her defense and not deprived the opportunity to present the same” was in itself objectively unreasonable. See Wiggins, 123 S. Ct. at 2538-539 (concluding that the state

2 3 There is nothing in the trial court’s decision granting the state’s Because the denial of her right to p resent a defense would be motion in limine to indicate that the evidence was excluded because its “constitutional error of the first magnitude and no amount of showing of probative value was substantially outweighed by the d anger of unfair want of prejudice would cure it,” see Davis v. Alaska, 415 U.S. 308, 318 prejudice inasmuch as the state trial court excluded the evidence under (1974), the majority’s co ntention that such error would have been Michigan Rule o f Evidence 404 . (J.A. at 3 6.) harmless is unfounded.

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IV. Conclusion The Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984). Because the exclusion of evidence regarding Rockwell’s sexual abuse deprived Petitioner of her opportunity to be heard for purposes of establishing a defense and claiming her innocence, the Michigan Court of Appeals’ ruling that Petitioner was merely limited in the “method” of presenting her defense was objectively unreasonable, thereby making its ruling that the evidence was properly excluded under Rule 403 objectively unreasonable as well. I therefore would affirm the district court’s grant of Petitioner’s application for a writ of habeas corpus, and respectfully dissent.

Footnotes

[1] 2 Although the prosecution ha d cited Rule 4 04 in argum ent, its Rule 403 – which had also been cited in argume nt befo re the state relevance is not readily apparent. R ule 40 4 provides that evidenc e of a trial court – pro vides that relevant evid ence may be exclude d if its perso n’s character is generally inadmissible for the purpose of proving probative value is substantially outweighed by the danger of unfair that the person acted in conformity therewith on a particular occasion. prejudice.