Case: 16-2215 Document: 42-2 Filed: 08/24/2018 Page: 1
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0441n.06
No. 16-2215
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Aug 24, 2018 MARY DANIELAK, ) DEBORAH S. HUNT, Clerk ) Petitioner-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN SHAWN BREWER, ) DISTRICT OF MICHIGAN ) Respondent-Appellee. ) OPINION )
BEFORE: NORRIS, ROGERS, and BUSH, Circuit Judges.
ALAN E. NORRIS, Circuit Judge. Mary Danielak appeals the district court’s judgment denying her petition for a writ of habeas corpus under 28 U.S.C. § 2254.
Petitioner helped a friend purchase heroin. The friend died after using it. Petitioner then participated in an attempted cover-up of the death. A jury subsequently convicted her of aiding and abetting the following crimes: (1) delivery of a controlled substance, causing death, Mich.
Comp. Laws § 750.317a; (2) common law obstruction of justice, Mich. Comp. Laws § 750.505;
(3) tampering with evidence, Mich. Comp. Laws § 750.483a(5)(a); and (4) removing a body without the permission of a medical examiner, Mich. Comp. Laws § 52.204. Petitioner unsuccessfully appealed the verdict. People v. Danielak, No. 305491, 2012 WL 6913789 (Mich.
Ct. App. Nov. 20, 2012); People v. Danielak, 830 N.W.2d 139 (Mich. 2013) (denying application for leave to appeal). Case: 16-2215 Document: 42-2 Filed: 08/24/2018 Page: 2
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Thereafter she filed a pro se § 2254 petition, which raised the following claims: (1) the evidence was insufficient to support her convictions for aiding and abetting the obstruction of justice, tampering with evidence, and removing a dead body; (2) the state legislature violated her right to due process by creating the offense of delivery of a controlled substance, causing death, as a strict-liability crime carrying the same penalty as second-degree murder, which requires proof of malice; (3) the evidence was insufficient to support her conviction for aiding and abetting the delivery of a controlled substance, causing death; and (4) the trial court erred by denying her request to elicit testimony about statements made by the victim’s husband. The district court denied the petition on the merits, Danielak v. Warren, No. 14-11131, 2016 WL 3971209 (E.D. Mich. July
25, 2016), but granted a certificate of appealability (“COA”) on the first claim. Id. at *11. Petitioner then sought an expanded COA in this court. We granted a COA with respect to the third claim.
I.
Standard of Review
Pursuant to § 2254(d), habeas corpus relief may be granted on claims that were adjudicated in state court only if the state-court adjudication (1) “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) “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d).
When reviewing a claim for insufficient evidence, a federal habeas court must apply a
“twice-deferential standard.” Parker v. Matthews, 567 U.S. 37, 43 (2012); see also Brinkley v.
Houk, 831 F.3d 356, 362 (6th Cir. 2016). 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). Second, a federal habeas court may overturn a state court’s rejection of Case: 16-2215 Document: 42-2 Filed: 08/24/2018 Page: 3
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§ 2254(d). See Coleman v. Johnson, 566 U.S. 650, 651 (2012). Particularly important in claims of insufficient evidence, we must accord a presumption of correctness to factual determinations of a state court. 28 U.S.C. § 2254(e)(1). The burden falls to petitioner to rebut this presumption of correctness by clear and convincing evidence. Id.
We review the district court’s denial of a petition for a writ of habeas corpus de novo.
Leonard v. Warden, Ohio State Penitentiary, 846 F.3d 832, 840 (6th Cir. 2017).
Michigan’s Aiding and Abetting Statute
Because all of petitioner’s convictions are for aiding and abetting, a review of Michigan’s version of the statute is necessary:
Sec. 39. Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense. Mich. Comp. Laws § 767.39. The Michigan Supreme Court has summarized the statute’s operation and elements in these terms:
Unlike conspiracy and felony murder, which also allow the state to punish a person for the acts of another, aiding and abetting is not a separate substantive offense. Rather, “being an aider and abettor is simply a theory of prosecution” that permits the imposition of vicarious liability for accomplices. This Court recently described the three elements necessary for a conviction under an aiding and abetting theory: (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 Case: 16-2215 Document: 42-2 Filed: 08/24/2018 Page: 4
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commission of the crime or had knowledge that the principal intended its commission at the time that [the defendant] gave aid and encouragement. People v. Robinson, 715 N.W.2d 44, 47-48 (Mich. 2006) (citations omitted).
1. Was Petitioner’s Right to Due Process Violated Because Constitutionally Insufficient Evidence was Introduced in Support of her Conviction for Aiding and Abetting the Delivery of a Controlled Substance Causing Death?
A. The Statute at Issue
The Michigan statute at issue reads as follows:
Sec. 317a. A person who delivers a schedule 1 or 2 controlled substance, other than marihuana, to another person in violation of section 7401 of the public health code, 1978 PA 368, MCL 333.7401, that is consumed by that person or any other person and that causes the death of that person or other person is guilty of a felony punishable by imprisonment for life or any term of years. Mich. Comp. Laws § 750.317a.
B. Factual Findings Affecting the Claim
In its opinion, the Michigan Court of Appeals summarized the core facts giving rise to the prosecution in these terms:
Danielak[’s] conviction[] stem[s] from the death of Cherie Irving (“the victim”). In the early morning hours of October 3, 2010, the victim drove to Danielak’s apartment in Jackson, Michigan. Danielak and the victim then went to the Abbey Villa Apartments to meet a drug dealer named “Chill.” Sergeant Brian Russell testified that Danielak told him that she had purchased cocaine and heroin from Chill in the past, and that she was going to introduce the victim to Chill so the victim could purchase heroin in the future if needed. Danielak purchased three bindles of heroin from Chill and the victim purchased four bindles. Danielak and the victim went back to Danielak’s apartment and used a syringe to inject themselves with heroin. Danielak woke up late in the afternoon of October 3, 2010, and found the victim dead on the bathroom floor. On discovering the victim’s body, Danielak called her boyfriend, Randy Reeser. According to Danielak, Reeser told her to go to his mother’s house (Rand’s house), get ready for work, and that he would take care of it. Danielak did as Reeser instructed and went to work at approximately 9:00 p.m. Later that evening, Reeser went to Rand’s house and informed her that there was a dead body in Danielak’s apartment. Reeser and Rand drove to Danielak’s apartment and placed the victim’s body in the back seat of Rand’s car. Later, Reeser and Rand Case: 16-2215 Document: 42-2 Filed: 08/24/2018 Page: 5
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moved the body to the trunk and drove to the Sandstone Creek Bridge. Rand parked on the side of the road and Reeser removed the victim’s body from the trunk. Reeser placed the victim’s body on the side of the road, but it later slipped down an embankment and fell into the creek. Danielak, 2012 WL 6913789, at *1 (footnotes omitted).
The court also made the following findings with respect to the cause of Ms. Irving’s death:
Here, it is undisputed that the crime charged was committed by a subject identified as Chill, Danielak’s drug dealer. Additionally, . . . Danielak performed acts that assisted in the commission of the crime. The testimony at trial established that Danielak took the victim to the Abbey Villa Apartments so that they could purchase heroin. Danielak admitted to a police officer that she introduced the victim to Chill so that the victim could purchase heroin from him at a later date if necessary. By introducing the victim to Chill, Danielak assisted both the victim and Chill in the transaction. Had it not been for Danielak’s introduction, the victim would have been unable to purchase heroin from Chill. Moreover, Danielak intended or had knowledge that Chill would deliver heroin to the victim. Therefore, sufficient evidence was presented to convict Danielak of delivery of a controlled substance causing death under an aiding and abetting theory. Danielak also argues that the prosecution failed to prove that the victim’s death was caused by a heroin overdose. At trial, the medical examiner testified that the victim had lethal amounts of both cocaine and heroin in her system; therefore, he could not say which drug killed her. Because the medical examiner could not say with absolute certainty which drug killed the victim, Danielak argues that the prosecution failed to establish causation. This argument is unpersuasive. Viewed in the light most favorable to the prosecution, a rational jury could find beyond a reasonable doubt that the victim’s cause of death was a heroin overdose. The medical examiner stated that the victim suffered a pulmonary edema. Though he was unable to say which drug killed the victim, the autopsy results indicate that her death was more consistent with a heroin overdose. The medical examiner testified that heroin is an opiate and its primary function is to depress the central nervous system. The examiner further stated that heroin can depress the central nervous system’s drive to breathe, which is consistent with pulmonary edema. Cocaine, on the other hand, is a stimulant and disrupts the signals from the brain to the heart. The medical examiner stated that cocaine can cause the heart to stop beating, but he saw no evidence that the victim died from a heart attack. Based on this evidence, a rational jury could find beyond a reasonable doubt that the victim died from a heroin overdose. Id. at *7. Case: 16-2215 Document: 42-2 Filed: 08/24/2018 Page: 6
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At trial, Dr. Patrick Cho, the medical examiner, offered the following testimony:
Q: And based on this amount, in your expert . . . opinion then the amount of cocaine in Sherry Irving’s body would have been a . . . lethal amount? A: Yes. Q: So in your opinion if Sherry Irving had not ingested heroin . . . at the time, she would have died from the cocaine in her body? A: Yes. . . . . Q: And the amount of heroin that also you found in there . . . if she had not taken any cocaine would the natural necessary result of ingesting the heroin . . . have caused her death? A: Yes. Q: So basically Doctor are you telling the jury that – as an expert that either one of these amounts of controlled substances were enough that would have killed her that night? A: Yes. (Page ID 653-54.) He also affirmed the following statement during cross-examination: “And there’s nothing that you can say to determinately [sic] say the heroin was the cause of death.” (Page
ID 676.) However, as the court of appeals noted, the doctor also explained that heroin is an opiate and “its primary function is to depress the central nervous system. It’s a depressant.” (Page ID
663-64.) In this case, the victim died of pulmonary edema, which is consistent with a heroin overdose, whereas cocaine acts as a stimulant which often results in a cardiac episode, which did not occur here. (Page ID 664-66.)
C. Legal Principles
On appeal to this court, petitioner does not contend that the prosecution failed to satisfy the first element of Mich. Comp. Laws § 750.317a: delivery of a schedule 1 or 2 controlled substance to another person, that is consumed by that person. Rather, she focuses on the second element: that Case: 16-2215 Document: 42-2 Filed: 08/24/2018 Page: 7
App. 7 the controlled substance caused that person’s death. The Michigan Supreme Court has discussed criminal causation in these terms:
In criminal jurisprudence, the causation element of an offense is generally comprised of two components: factual cause and proximate cause. The concept of factual causation is relatively straightforward. In determining whether a defendant’s conduct is a factual cause of the result, one must ask, “but for” the defendant’s conduct, would the result have occurred? If the result would not have occurred absent the defendant’s conduct, then factual causation exists. The existence of factual causation alone, however, will not support the imposition of criminal liability. Proximate causation must also be established. . . . [P]roximate causation is a legal colloquialism. It is a legal construct designed to prevent criminal liability from attaching when the result of the defendant’s conduct is viewed as too remote or unnatural. Thus, a proximate cause is simply a factual cause of which the law will take cognizance. People v. Schaefer, 703 N.W.2d 774, 785 (Mich. 2005) (footnotes and citations omitted). Under this standard, the state must prove beyond a reasonable doubt that “but for” her ingestion of heroin,
Ms. Irving would not have died. In petitioner’s view, the evidence introduced at trial did not sufficiently support this conclusion—at least not beyond a reasonable doubt.
Prior to Schaefer, the Michigan Supreme Court considered whether culpable conduct can be found when it represents “a” proximate cause of death, or whether it must be “the” proximate cause. People v. Tims, 534 N.W. 2d 675, 680-81 (Mich. 1995). The Court concluded that the proper test is a cause, id. at 680, based upon the following reasoning:
The phrase “the proximate cause” is a legal colloquialism reflecting the reality that, particularly in homicide cases, there is almost invariably only one culpable act that could be considered a direct cause—a knife being stabbed, a gun being fired, or a car driven recklessly. The phrase does not imply that a defendant is responsible for harm only when his act is the sole antecedent. The suggestion that the presence of an additional “cause” of death could be a complete defense to negligent homicide is inconsistent with accepted notions of responsibility. Acceptance of such a proposition would require, for example, that if an infant died because it was locked in a hot car on a sunny day, and the child was left there by two parents rather than one, neither could be found criminally responsible. Similarly, if a guest died in a hotel fire that began because another guest was setting off firecrackers in a room, the latter guest’s extremely culpable Case: 16-2215 Document: 42-2 Filed: 08/24/2018 Page: 8
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conduct would be excused or mitigated if it turned out that, unknown to him at the time, another person doing the same thing also set a fire accidentally at the other end of the hotel. Such examples illustrate the basis for the sound proposition embodied in the doctrine of “a” substantial cause, that joint equal causes do not excuse culpable behavior. Id. at 680-81.
It is axiomatic that a criminal conviction requires proof beyond a reasonable doubt of each element of the crime. In re Winship, 397 U.S. 358, 361 (1970). According to petitioner, a preponderance of the evidence standard inappropriately replaced that of reasonable doubt in her trial. Because Jackson, 443 U.S. at 319, requires us to view the evidence in a light most favorable to the prosecution, she concedes the following facts: Ms. Irving’s death was caused by drug abuse; she likely died of pulmonary edema; she had potentially lethal doses of both heroin and cocaine in her system; pulmonary edema is consistent with a heroin overdose; cocaine overdoses can cause heart failure; and, the medical examiner found no evidence of a heart attack. Despite these concessions, she argues that no rational juror could find that heroin was the “but for” cause of Ms.
Irving’s death.
She analogizes her situation to that faced by the death-row petitioner in Joseph v. Coyle,
469 F.3d 441 (6th Cir. 2006). Like petitioner, Joseph raised a due process challenge to the sufficiency of the evidence. Id. at 454. In his case, the capital specification with which he was charged required him to be the “principal offender in the commission of the aggravated murder.”
Id. (quoting Ohio Rev. Code § 2929.04(A)(7)). “The Ohio Supreme Court has consistently interpreted this element to require the defendant to be ‘the actual killer.’” Joseph, 469 F.3d at 454
(citing Ohio cases). Because petitioner Joseph was not the only person present at the time of the murder and the prosecution could not establish that Joseph had inflicted either of the potentially Case: 16-2215 Document: 42-2 Filed: 08/24/2018 Page: 9
App. 9 fatal stab wounds, this court determined that the evidence was insufficient to support the capital specification:
[N]one of this evidence shows that Joseph personally inflicted either stab wound [to the victim]. This fact does not present an obstacle to conviction in a case where the defendant was the only person either present when the victim was murdered or otherwise involved in the crime, the logic being that he is the only person who could have actually committed the murder. But when the defendant and a coconspirator are present at the time and place of the murder, there must be evidence showing that the defendant struck the fatal blow(s). Id. at 455 (citations omitted). Petitioner argues that, as in Joseph, there were two potential killers at the scene: cocaine and heroin and that a jury simply cannot find factual causation beyond a reasonable doubt when doubt exists as to which of two possible causes was the true cause of death.
In the instant case, one of four things must have happened. The heroin consumed by Irving may have been the sole cause of her death. If there was sufficient evidence for a rational jury to find that this was the case, Danielak’s appeal must lose. It is also possible that the heroin Irving consumed, in combination with the cocaine she consumed, caused her death, rendering both the heroin and the cocaine but-for causes of her death. If there was sufficient evidence for a rational jury to find that this was the case, Danielak’s appeal must lose under the analysis provided in Tims.
The third possibility is that heroin and cocaine each independently caused Irving’s death, as would be the case if the cocaine caused a fatal heart attack and the heroin caused a fatal pulmonary edema.
In a situation such as this, Federal law is unsettled as to whether the provider of only one of the drugs can be held criminally liable for the death. Burrage v. United States, 134 S.Ct. 881, 890
(2014), and Michigan courts do not appear to have addressed this issue. Finally, it may be that the cocaine consumed by Irving was the sole cause of her death, in which case Danielak argues that the state court unreasonably found that a rational jury could conclude this did not happen because Case: 16-2215 Document: 42-2 Filed: 08/24/2018 Page: 10
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Because we presume that the Michigan Court of Appeals was aware of Tims’ teaching that, when there are two independent culpable causes, it is sufficient to prove that the actions of petitioner—aiding and abetting in the delivery of heroin that caused the death of Ms. Irving—were a joint mutual cause. See Tims, 534 N.W.2d at 681-82. That Irving died of a pulmonary edema, which is more consistent with a death caused by heroin, and not of a heart attack, which is more consistent with a death caused by cocaine, is enough for us to answer that question in the affirmative. Moreover, there would be sufficient but-for causation if a rational jury could have found either that it was the heroin that killed Irving or that it was a combination of the heroin and the cocaine. In our view, the Court of Appeals’ holding looks less like a misapplication of the beyond-a-reasonable-doubt standard than a reasonable application of Michigan’s law of causation, to wit, there was sufficient evidence for a rational trier of fact to have found a substantial cause because “joint mutual causes do not excuse culpable behavior.” In light of the double deference barrier discussed in Matthews, 567 U.S. at 43, petitioner has failed to meet either of the factors required to merit habeas relief under 28 U.S.C. § 2254(d).
2. Was Constitutionally Sufficient Evidence Introduced in Support of Petitioner’s Conviction For Aiding and Abetting the Obstruction of Justice, Tampering with Evidence, and Removal of a Body?
A. Obstruction of Justice
In Michigan, obstruction of justice is a common law felony offense punishable by up to five years of incarceration and/or a fine of up to $10,000. Mich. Comp. Laws § 750.505.
The Michigan Court of Appeals relied upon the following findings in sustaining petitioner’s conviction for aiding and abetting in the obstruction of justice: Case: 16-2215 Document: 42-2 Filed: 08/24/2018 Page: 11
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Although evidence that Danielak aided and abetted the removal and concealment of the victim’s body was circumstantial, it was sufficient to convict her. On discovering that the victim was dead, Danielak did not call the authorities to report what happened. Rather, she called Reeser. Her decision to contact Reeser, as opposed to the authorities, supports that she intended to cover up the victim’s death and was seeking help in doing so. Additionally, after speaking with Reeser, she did exactly as instructed—went to Rand’s apartment and got ready for work. Thus, a rational jury could find beyond a reasonable doubt that Danielak gave encouragement to Reeser that assisted in the commission of the crime. There was also sufficient evidence that Danielak intended the commission of the crime or had knowledge that Reeser intended the commission of the crime. A defendant’s “[i]ntent is a question of fact to be inferred from the circumstances by the trier of fact.” “An aider and abetter’s knowledge of the principal’s intent can be inferred from the facts and circumstances surrounding an event.” “Because of the difficulty of proving an actor’s state of mind, minimal circumstantial evidence is sufficient.” Again, Danielak did not contact authorities to report the victim’s death; rather, she contacted Reeser. A rational jury could thus conclude that she contacted Reeser because she intended to conceal the victim’s body. Additionally, Danielak told Sergeant Russell that Reeser told her that he would “take care of it.” Though Danielak argues that the phrase “take care of it” could mean any number of things, a reasonable jury could conclude that, under the circumstances, “take care of it” meant that Reeser would get rid of the victim’s body. The evidence also shows that Danielak sent text messages to the victim after she died in an effort to conceal her knowledge of the victim’s death. The victim died sometime in the early morning hours of October 3, 2010. A co-worker stated that Danielak came to work at approximately 9:00 p.m. that night and told her that she had sent text messages to the victim advising the victim that she had her car keys. These messages were a clear attempt to hide Danielak’s knowledge of the victim’s death and to help explain why the victim’s vehicle was at Danielak’s apartment. Moreover, it appears that the text messages were sent before Reeser and Rand removed the victim’s body. That Danielak sent text messages to the victim before the victim’s body was removed indicates that Danielak knew that Reeser intended to conceal the victim’s body. Therefore, a rational jury could find beyond a reasonable doubt that Danielak either intended the commission of the crime or knew that Reeser intended the commission of the crime. Danielak, 2012 WL 6913789, at *2 (footnotes and citations omitted).
Petitioner refers us to Fuller v. Anderson, 662 F.2d 420 (6th Cir. 1981), for the proposition that “mere presence” or “passive acquiescence” is insufficient to make one an aider or abettor. Id. at 424 (citations omitted). In Fuller, a habeas petition brought prior to the enactment of the Case: 16-2215 Document: 42-2 Filed: 08/24/2018 Page: 12
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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), petitioner was present, along with several other boys, when Zerious Meadows threw a Molotov cocktail at a nearby home, which resulted in the deaths of two children due to fire. Petitioner was convicted for aiding and abetting felony murder. The district court granted his subsequent habeas petition, which contended that the evidence presented was constitutionally insufficient to support his conviction. This court agreed, holding that “mere presence” is insufficient to support a verdict of guilt beyond a reasonable doubt.
Id.
In a similar vein, we affirmed the grant of a habeas petition to an individual convicted of aiding and abetting an armed robbery and carjacking. Brown v. Palmer, 441 F.3d 347, 353 (6th
Cir. 2006). In Brown, the following facts were cited by the state in support of the jury’s verdict of conviction for aiding and abetting but were found wanting by this court:
(1) Brown was present before and during the carjacking, (2) he and the perpetrator were in the car together before the perpetrator committed the offenses, (3) he stared at the victims while the perpetrator fired the shots, (4) he never got gas even though he was parked near a gas pump, (5) he attempted to flee as soon as the perpetrator drove off in the car, and (6) he failed to contact the police to retrieve his car. These facts were also relied on by the Michigan Court of Appeals, which held that intent could be inferred from the above circumstantial evidence. Taking this evidence in the light most favorable to the state, as we must do pursuant to AEDPA, 28 U.S.C. § 2254(e)(1), the evidence clearly demonstrates that Brown was present at the scene and had some acquaintance with the perpetrator. Beyond that, however, the evidence pointing to Brown’s guilt becomes quite speculative. Id. at 351. While acknowledging that the cases relied upon by the district court—which included
Fuller—were decided pre-AEDPA, we nonetheless determined that “their holdings that distinguish reasonable speculation from sufficient evidence are still persuasive in establishing that the state court’s application of federal constitutional law as set forth in Jackson was objectively unreasonable.” Id. at 352 (citation omitted). Case: 16-2215 Document: 42-2 Filed: 08/24/2018 Page: 13
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Not surprisingly, in our case petitioner contends that the evidence against her gave rise, at best, to speculation and was far thinner than that produced (and found wanting) in the cases just discussed. All that the jury learned was that her boyfriend, Reeser, would “take care of it” when she contacted him. In her view, this hardly qualifies as encouraging the obstruction of justice, which constitutes the second element of the aiding and abetting statute. Robinson, 715 N.W.2d at
47-48.
The Michigan Court of Appeals also cited the text messages that petitioner sent to Ms.
Irving despite the fact that she knew she was dead. Petitioner splits a very fine hair on this point, arguing that the evidence didn’t establish whether she sent those messages before or after her boyfriend and his mother moved Ms. Irving’s body. If they were sent after the body had been moved (and justice obstructed), then she would only qualify as an accessory after the fact. An accessory after the fact is not an aider and abettor under Mich. Comp. Laws § 767.39. People v.
Lucas, 262 N.W.2d 662, 663 (Mich. 1978).
While the sufficiency of the evidence with respect to her first claim presented a very close question, this one does not. As mentioned earlier, AEDPA instructs us to accord the facts as recited by the Michigan Court of Appeals a presumption of correctness, 28 U.S.C. § 2254(e), and those facts lead us to the conclusion that a rational juror could have found beyond a reasonable doubt that petitioner aided and abetted in the obstruction of justice. We would reach the same conclusion even if we were inclined to discount the evidentiary weight of petitioner’s post-mortem text messages. Case: 16-2215 Document: 42-2 Filed: 08/24/2018 Page: 14
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B. Tampering with Evidence
In Michigan, a person shall not “[k]knowingly and intentionally, remove, alter, conceal, destroy, or otherwise tamper with evidence to be offered in a present or future official proceeding.”
Mich. Comp. Laws § 750.483a(5)(a).
The Michigan Court of Appeals rejected petitioner’s challenge to her conviction for aiding and abetting the tampering with evidence as follows:
The basis for Danielak’s conviction for tampering with evidence is the same as that for her conviction of obstruction of justice—the removal and concealment of the victim’s body. For the reasons discussed above, there was sufficient evidence to convict Danielak under an aiding and abetting theory. Danielak, 2012 WL 6913789, at *5.
Petitioner advances essentially the same argument that she did with respect to obstruction of justice. For the same reasons, her argument is unavailing.
C. Removal of a Body without Permission
Michigan law prohibits the removal of a body from the place where death occurred without first notifying the county medical examiner or his deputy. Mich. Comp. Laws § 52.204.
The Michigan Court of Appeals rejected this claim for essentially the same reasons that it denied relief on the obstruction of justice and tampering with evidence challenges. We affirm for the same reasoning.
III.
The judgment of the district court is affirmed. 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 1 of 22 Pg ID 1508
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
MARY LYN DANIELAK,
Petitioner,
v. Case No. 14-11131
MILLICENT WARREN,
Respondent. /
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, GRANTING IN PART A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Habeas petitioner Mary Lyn Danielak has filed a pro se application for the writ of
habeas corpus under 28 U.S.C. § 2254. The habeas petition challenges the following state convictions: delivery of a controlled substance, causing death, Mich. Comp. Laws
§ 750.317a; common-law obstruction of justice, Mich. Comp. Laws § 750.505;
tampering with evidence, Mich. Comp. Laws § 750.483a(5)(a); and removing a body
without the medical examiner’s permission, Mich. Comp. Laws § 52.204. Petitioner
alleges as grounds for relief that the evidence at trial was insufficient, her right to due
process was violated by the State legislature’s creation of a strict liability crime that
carries the same penalty as murder, and the trial court violated her right to present a
defense by excluding certain evidence. The State argues in a response to the petition
that Petitioner is not entitled to relief and that the court should deny the petition. The
court agrees that Petitioner’s claims do not warrant habeas relief. Accordingly, the
petition will be denied. 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 2 of 22 Pg ID 1509
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I. BACKGROUND
The charges against Petitioner arose from the death of nineteen-year-old Cherie
(or Sherry) Irving (“the victim”). Petitioner was tried jointly with her boyfriend, Randy
Reeser (“Reeser”), and Reeser’s mother, Anna Marie Rand (“Rand”), in Jackson County
Circuit Court. The evidence at trial established that,
[i]n the early morning hours of October 3, 2010, the victim drove to Danielak’s apartment in Jackson, Michigan. Danielak and the victim then went to the Abbey Villa Apartments to meet a drug dealer named “Chill.” Sergeant Brian Russell testified that Danielak told him that she had purchased cocaine and heroin from Chill in the past, and that she was going to introduce the victim to Chill so the victim could purchase heroin in the future if needed. Danielak purchased three bindles of heroin from Chill and the victim purchased four bindles. Danielak and the victim went back to Danielak’s apartment and used a syringe to inject themselves with heroin.
Danielak woke up late in the afternoon of October 3, 2010, and found the victim dead on the bathroom floor. On discovering the victim’s body, Danielak called her boyfriend, Randy Reeser. According to Danielak, Reeser told her to go to his mother’s house (Rand’s house), get ready for work, and that he would take care of it. Danielak did as Reeser instructed and went to work at approximately 9:00 p.m.
Later that evening, Reeser went to Rand’s house and informed her that there was a dead body in Danielak’s apartment. Reeser and Rand drove to Danielak’s apartment and placed the victim’s body in the back seat of Rand’s car. Later, Reeser and Rand moved the body to the trunk and drove to the Sandstone Creek Bridge. Rand parked on the side of the road and Reeser removed the victim’s body from the trunk. Reeser placed the victim’s body on the side of road, but it later slipped down an embankment and fell into the creek.
People v. Danielak, No. 305491, 2012 WL 6913789, at *1 (Mich. Ct. App. Nov. 20,
2012) (footnotes omitted).
On October 5, 2010, the victim’s father reported the victim as missing, and on
October 6, 2010, a fisherman found the victim’s body submerged in Sandstone Creek.
The police were notified, and a detective determined that the body matched a picture he 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 3 of 22 Pg ID 1510
App. 17 had received of the missing victim. As a result of a tip, the police located and arrested
Petitioner and Reeser on October 7, 2010.
During an interview with the police, Petitioner explained how she and the victim had purchased heroin from Chill and injected the heroin with a needle at Petitioner’s apartment. Petitioner admitted during the interview that she had sent text messages to the victim on October 3 and October 4 to cover up what had happened. Petitioner also admitted to the police that she may have caused the victim’s death by introducing the victim to Chill and facilitating the drug deal. Following the interview, Petitioner informed an officer that Rand had helped move the body.
The police interviewed Reeser, who initially denied any involvement in the crimes. However, when confronted with Petitioner’s statements to the police, Reeser admitted that he had removed the body from the apartment, taken it to the Sandstone
Creek Bridge, and placed the body on the side of the road so that somebody would find it.
The police subsequently contacted Rand, who ultimately informed the police that, a couple of days earlier, her son Randy Reeser had called her and said that a female had passed away on his bathroom floor and that he needed help with removing the body from his apartment. She and Reeser then drove to Reeser’s apartment and placed the body in the back seat of her car. They returned to her apartment and put the body in the truck of her car. Later that day, the two of them drove out to a creek where
Reeser removed the body from the trunk of the car and placed it alongside the road.
Dr. Patrick Cho performed the autopsy on the victim. He testified that the cause of death was drug abuse or drug overdose and that the manner of death was indeterminable. He explained that toxic amounts of both cocaine and heroin were 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 4 of 22 Pg ID 1511
App. 18
present in the victim’s body and that either drug by itself or in combination would have
caused the victim’s death. He could not say which of the two drugs actually killed the
victim.
The prosecutor’s theory was that Petitioner aided and abetted Chill, the drug
dealer, in delivering the heroin to the victim by bringing the victim to Chill to make the
drug transaction. The prosecutor maintained that Petitioner aided and abetted Reeser
and Rand in committing the other three crimes because she knew what Reeser and
Rand intended to do and did nothing to stop it.
None of the three defendants testified or presented any witnesses. Petitioner did not dispute the facts. Her theory was that she did not commit a crime because she did
not cause the victim’s death and because she did nothing to aid Reeser or Rand in
committing the three crimes involving the body.
The trial court did not instruct the jury on any lesser-included offenses, and on
May 23, 2011, the jury found Petitioner guilty, as charged. On July 21, 2011, the trial
court sentenced Petitioner to concurrent terms of ten to twenty years in prison for
delivering a controlled substance, causing death; three to five years in prison for
obstructing justice; two to four years in prison for tampering with evidence; and one year
in jail or prison for removing a body without notifying the medical examiner.
Petitioner raised her habeas claims in a direct appeal from her convictions. The
Michigan Court of Appeals affirmed her convictions, see Danielak, 2012 WL 6913789,
and on May 22, 2013, the Michigan Supreme Court denied leave to appeal because it
was not persuaded to review the questions presented to it. See People v. Danielak,
830 N.W.2d 139 (Mich. 2013.)
4 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 5 of 22 Pg ID 1512
App. 19
On March 17, 2014, Petitioner filed her habeas corpus petition. Her grounds for relief are: (1) the evidence at trial was not sufficient to support her convictions for obstruction of justice, tampering with evidence, and removing a dead body; (2) the state legislature’s creation of a strict liability crime that carries the same penalty as murder violates her right to due process; (3) there was insufficient evidence to sustain her conviction for delivery of a controlled substance, causing death; and (4) the trial court deprived her of a fair trial and the right to present a defense by refusing to permit her to admit in evidence comments made by the deceased victim’s husband.
II. STANDARD
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter,
562 U.S. 86, 97 (2011). Pursuant to § 2254, the Court may not grant a state prisoner’s application for the writ of habeas corpus unless the state court’s adjudication of the prisoner’s claims on the merits
(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).
Under the “contrary to” clause [of § 2254(d)(1)], a federal habeas court may grant the writ 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 case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the “unreasonable application” 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 6 of 22 Pg ID 1513
App. 20
clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O’Connor, J., opinion of the Court for
Part II). “[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. Rather, that application must also be unreasonable.” Id. at 411.
“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court
rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court
decisions be given the benefit of the doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010). “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.”
Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
To obtain a writ of habeas corpus from a federal court, a state prisoner must show that
the state court’s ruling on 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.
III. DISCUSSION
A. Habeus Corpus Relief 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 7 of 22 Pg ID 1514
App. 21
1. Sufficiency of the Evidence
The first and third habeas claims challenge the sufficiency of the evidence at
Petitioner’s trial. The Michigan Court of Appeals concluded on review of these claims that there was sufficient evidence to sustain Petitioner’s convictions.
a. Clearly Established Federal Law
The Supreme Court has held that “the Due Process Clause [of the Fourteenth
Amendment to the United States Constitution] 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). The relevant question on review of a challenge to the sufficiency of the evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id.
Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference. First, on direct appeal, “it is the responsibility of the jury—not the court—to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, ––––, 132 S.Ct. 2, 4, 181 L.Ed.2d 311 (2011) (per curiam). And second, on habeas review, “a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.’” Ibid. (quoting Renico v. Lett, 559 U.S. 766, ––––, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010)). 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 8 of 22 Pg ID 1515
App. 22
Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam).
b. Application
i. Obstruction of Justice, Tampering with Evidence, and Removing a Dead Body
Petitioner alleges that the prosecutor failed to produce sufficient evidence at trial to support her convictions for obstruction of justice, tampering with evidence, and removing a dead body. She states that her convictions for these three crimes rest on the false premise that she aided and abetted Reeser and Rand in moving and disposing
of the victim’s body. She points out that she was not present when the victim’s body
was moved, and she claims that she did not know Reeser and Rand possessed the
illegal intent to move the body. As to all three counts, Petitioner alleges that the lack of
any evidence that she aided and abetted Reeser and Rand or knew what they intended
to do is fatal and there is no need to go any further in examining the counts.
In, Michigan,
“[a]iding and abetting” describes 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. . . . To support a finding that a defendant aided and abetted 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. An aider and abettor’s state of mind may be inferred from all the facts and circumstances. Factors that may be considered include a close association between the defendant and the principal, the defendant’s participation in the planning or execution of the crime, and evidence of flight after the crime. 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 9 of 22 Pg ID 1516
App. 23
People v. Carines, 597 N.W.2d 130, 135 (Mich. 1999) (quoting People v. Turner, 540
N.W.2d 728, 733-34 (Mich. Ct. App. 1995)).
The evidence at trial established that Petitioner discovered the victim’s body in
the bathroom of her apartment about 4:30 p.m. on Sunday, October 3, 2010. She
became upset, woke up Reeser, who was sleeping in the apartment, and told him “what
was going on.” Reeser instructed Petitioner to go to work and said that he “would take
care of it.” About 7:00 p.m., however, Petitioner was observed going through personal
property in the victim’s vehicle, which was parked in Petitioner’s driveway. At some
point, Petitioner went to Rand’s apartment to shower. She arrived at her job at 9:00
p.m. She sent text messages to the victim to cover up what had happened and to make
it appear that she did not know the victim was dead. (Dkt. # 11-7, Pg ID 721-24; Dkt. #
11-8, Pg ID 844-47, 878, 882.)
Petitioner informed Rand that she (Petitioner) had told the police she did not know anything about it. Rand responded to Petitioner that she hoped the police found the body so that the family could have closure. (Dkt. # 11-8, Pg ID 795-96, 815.) Both
Reeser and Rand admitted to the police that they moved the victim’s body and left it on the roadside. The police found no evidence of drugs or drug paraphernalia in
Petitioner’s apartment when they searched it on October 6, 2010 (id. at Pg ID 833-34),
and, at no point did Petitioner call the police or medical examiner to report the death.
At a minimum, the evidence established that Petitioner tried to cover up evidence
and the fact that the victim died in her apartment. The jury could have inferred from this evidence that Petitioner sought help from Reeser, and possibly Rand, and that she knew at least Reeser intended to move or dispose of the body. Reeser apparently did
9 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 10 of 22 Pg ID 1517
App. 24 not inform Petitioner that he would call the police. Instead, according to Petitioner, he promised to “take care of it.” The implication was that he would do something with the body.
A rational trier of fact could have concluded from the evidence taken in the light most favorable to the prosecution that Petitioner aided and abetted Reeser and Rand in obstructing justice, tampering with evidence, and removing or disposing of a dead body.
Thus, the evidence was sufficient to convict Petitioner of those crimes.
The Michigan Court of Appeals, moreover, determined that the prosecutor carried his burden of proving each of the three counts. Regarding common-law obstruction of justice, the Court of Appeals noted that the victim died under circumstances that required an inquest into the cause and manner of death and that the object of the crime was to prevent or delay an inquest into the cause of death. The
Court of Appeals accordingly rejected Petitioner’s challenge to the sufficiency of the evidence supporting the obstruction-of-justice charge.
As for the charge of tampering with evidence, the Court of Appeals stated that the removal and concealment of the victim’s body interfered with a future official proceeding (the criminal trial) and, therefore, sufficient evidence was presented to find
Petitioner guilty of that charge on an aiding and abetting theory. For similar reasons, the Court of Appeals concluded that there was sufficient evidence to support the jury’s verdict on the charge of removing a body without the medical examiner’s permission.
The “state court’s interpretation of state law . . . binds a federal court sitting in habeas corpus,” Bradshaw v. Richey, 546 U.S. 74, 76 (2005), and because the state court’s decision on the federal due process claim was objectively reasonable, this court
10 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 11 of 22 Pg ID 1518
App. 25
must defer to that decision. Although it may be a close issue, “even a strong case for
relief does not mean the state court’s contrary conclusion was unreasonable,” Richter,
562 U.S. at 102, and the court may not overturn the state appellate court’s decision
simply because the court disagrees with the state court. Coleman, 132 S. Ct. at 2062.
The court therefore declines to grant habeas relief on Petitioner’s first claim regarding
the sufficiency of the evidence to support her convictions for obstruction of justice,
tampering with evidence, and removing a body without permission.
ii. Delivery of a Controlled Substance
Petitioner claims that there was insufficient evidence to support her conviction for delivering a controlled substance, causing death, because (1) she did not aid and abet the delivery of heroin and (2) the prosecution did not prove that she caused the victim’s
death. In support of this claim, Petitioner alleges that the victim ingested a lethal dose
of cocaine earlier in the day and that Petitioner had no reason to believe that the
victim’s purchase of three bags of heroin would be lethal. Thus, according to Petitioner,
she was not responsible for the victim’s death.
The Michigan Court of Court of Appeals found Petitioner’s causation argument
unpersuasive. The Court of Appeals also determined that there was sufficient evidence
to convict Petitioner of delivery of a controlled substance, causing death, under an
aiding and abetting theory.
The evidence at trial established that Petitioner took the victim to a location
where Chill, the drug dealer, could be found. She introduced the victim to Chill, who
sold them heroin. Although Petitioner claims that the victim paid for her own heroin, she 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 12 of 22 Pg ID 1519
App. 26
facilitated the transaction by taking the victim to Chill and introducing the two of them.
In fact, she admitted during her interview with Sergeant Brian Russell that she may
have caused the victim’s death by introducing her to Chill. (Dkt. # 11-8, Pg ID 847,
884.)
Petitioner relies on the Supreme Court’s decision in Burrage v. United States,
134 S.Ct. 881 (2014), as support for her contention that she did not cause the victim’s
death. The facts in Burrage indicate that a drug addict named Joshua Banka died after an extended drug binge which included the use of heroin purchased from Marcus
Burrage. Burrage was convicted of distributing heroin to Banka the day before Banka died even though two medical experts testified at trial that they could not say whether
Banka would have lived if he had not taken the heroin. The trial court sentenced
Burrage to a mandatory minimum sentence of twenty years in prison under 21 U.S.C. §
841(b)(1)(C).
The Supreme Court ruled that the penalty provision of § 841(b)(1)(C) does not apply when the defendant’s act or omission was merely a substantial or contributing factor in a victim’s death. Rather, the defendant’s conduct must have been the actual cause of the death, and because neither of the medical experts could say whether the heroin caused Banka’s death, the Supreme Court reversed Burrage’s conviction for distributing heroin to Banka shortly before his death. The Supreme Court held “that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such
use is a but-for cause of the death or injury.” Burrage, 134 S. Ct. at 892.
12 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 13 of 22 Pg ID 1520
App. 27
Burrage is not controlling here. First, the Supreme Court was interpreting the penalty enhancement provision of a federal statute, not the Michigan statute in question here. Second, the Supreme Court decided Burrage after Petitioner’s conviction became final. It was not “clearly established Federal law” for purposes of 28 U.S.C. §
2254(d)(1), and “several courts have already found that Burrage did not announce a new rule of constitutional law and that, even if it had, the Supreme Court did not make
Burrage retroactively applicable.” Stewart v. United States, 89 F. Supp. 3d 993, 996
(E.D. Wis. 2015).
Finally, the Supreme Court acknowledged in Burrage a possible exception to strict “but for” causality “when multiple sufficient causes independently, but concurrently, produce a result.” Burrage, 134 S. Ct. at 890. Dr. Cho testified at Petitioner’s trial that the victim had lethal amounts of both cocaine and heroin in her body, that the amount of either drug was enough to kill her, and that he could not say which drug actually killed her. He explained that the heroin independently would have killed the victim even if she had not taken cocaine and that either one of the drugs or both of them combined could have caused the death. (Dkt. # 11-7, Pg ID 764-54, 660-62, 674-77.)
Because Dr. Cho testified that the victim would have died from the heroin use alone, Burrage is not controlling. Multiple sufficient causes independently, but concurrently, caused the victim’s death, unlike the situation in Burrage where it could not be determined whether the heroin was the actual cause of death.
Furthermore, Dr. Cho testified that he found evidence of pulmonary edema (fluid in the lungs), when he conducted the autopsy. He claimed that the fluid was consistent with the use of heroin because heroin depresses the central nervous system and affects
13 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 14 of 22 Pg ID 1521
App. 28
one’s ability to breathe. In contrast, cocaine is a stimulant, which he said is toxic to the
heart and can cause the heart to stop beating. He found no evidence of heart disease.
(Id. at Pg ID 643, 663-66.)
A rational trier of fact could have concluded from the evidence taken in the light
most favorable to the prosecution that Petitioner aided and abetted Chill in delivering
heroin to the victim and that the heroin caused the victim’s death. Therefore, the
evidence was sufficient to convict Petitioner of delivering a controlled substance,
causing death, and the state court’s rejection of Petitioner’s claim was not contrary to, or
an unreasonable application of, Jackson. The court denies relief on Petitioner’s third
claim.
2. Strict Liability
Petitioner alleges next that her conviction for delivering a controlled substance,
causing death, violates due process because the Michigan legislature created a strict
liability crime when it enacted Mich. Comp. Laws § 750.317a, and the penalty for the
crime is the same penalty as the one for second-degree murder. The statute reads:
A person who delivers a schedule 1 or 2 controlled substance, other than marihuana, to another person in violation of section 7401 of the public health code, 1978 PA 368, MCL 333.7401, that is consumed by that person or any other person and that causes the death of that person or other person is guilty of a felony punishable by imprisonment for life or any term of years.
Mich. Comp. Laws § 750.317a.
Petitioner argues that she should not be held strictly liable for the victim’s death
because the victim caused her own death through an overdose of cocaine and heroin.1
1 In support of this argument, Petitioner alleges that: the victim injected high levels of cocaine before contacting Petitioner, and it was the combination of heroin and cocaine that caused the victim’s death; it was the victim, not Petitioner, who wanted to buy heroin on the night in question; Petitioner was unaware that the victim was upset and suicidal at the time; the victim bought her own heroin, paid for it herself, received it 14 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 15 of 22 Pg ID 1522
App. 29
Petitioner also claims that § 750.317a is unconstitutional because the penalty for the
crime is the same as the penalty for second-degree murder even though the statute
does not require a finding of malice, as does second-degree murder. Petitioner asserts
that getting in a vehicle with the victim and purchasing heroin with her is not the
equivalent of murder. The Michigan Court of Appeals disagreed with Petitioner’s
arguments and determined that § 750.317a is constitutional.
“Strict liability offenses are generally disfavored,” United States v. Parks, 411 F.
Supp. 2d 846, 854 (S.D. Ohio 2005) (citing Morissette v. United States, 342 U.S. 246,
265 (1952)), but they “are not necessarily unconstitutional.” Stepniewski v. Gagnon,
732 F.2d 567, 570 (7th Cir. 1984). In fact, the Supreme Court has refused to say
that: “ ‘a vicious will’ is necessary to constitute a crime, for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.”
Lambert v. California, 355 U.S. 225, 228 (1957) (internal citations omitted).
Furthermore, “[a] state’s decisions regarding which actions or activities will give
rise to strict criminal liability rest within that state’s sound legislative discretion,”
Stepniewski, 732 F.2d at 571,2 and the Michigan Supreme Court has determined that §
750.317a is a general intent crime, which requires the intent to deliver a schedule 1 or 2 controlled substance. People v. Plunkett, 780 N.W.2d 280, 285 (Mich. 2010). Because
§ 750.317a is a general intent crime, it is not a strict liability offense.
directly from the dealer, and injected it herself; and Petitioner checked on the victim later that night and determined that she was alright.
2 See also Sanford v. Yukins, 288 F.3d 855, 862 (6th Cir. 2002) (quoting Bates v. McCaughtry, 934 F.2d 99, 103 (7th Cir. 1991), for principle that, whether a given element of a crime is necessary is a question of state law). 15 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 16 of 22 Pg ID 1523
App. 30
Even if § 750.317a were a strict liability crime, “the Supreme Court has recognized the propriety of strict liability without any element of scienter in statutes that are ‘regulatory’ in nature or designed to protect the ‘public welfare.’” Karlin v. Foust,
188 F.3d 446, 476 (7th Cir. 1999) (citing Morissette, 342 U.S. at 255–60). And the
Michigan Court of Appeals determined in Petitioner’s case that the purpose of §
750.317a is to protect the public from dangerous controlled substances. The statute therefore is constitutional, and habeas relief is not warranted.
3. Excluded Evidence
Petitioner’s fourth and final claim alleges that the state trial court deprived her of a fair trial and her right to present a defense by refusing to admit in evidence comments that the victim’s husband (Darrell Irving) made to the police. Mr. Irving informed the police that his wife had a history of using cocaine. Petitioner asserts that the prosecutor opened the door to this evidence by eliciting Dr. Cho’s testimony about naive drug users. Petitioner claims that she should have been permitted to (1) rebut the implication that the victim was a naive drug user and (2) show that she did not introduce the victim to drugs.
a. Clearly Established Federal Law
A defendant in a criminal prosecution is entitled to “a meaningful opportunity to present a complete defense,” California v. Trombetta, 467 U.S. 479, 485 (1984), but the
Supreme Court has “never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability—even if the defendant would prefer to see that evidence admitted.” Crane v.
16 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 17 of 22 Pg ID 1524
App. 31
Kentucky, 476 U.S. 683, 690 (1986) (citing Chambers v. Mississippi, 410 U.S. 284, 302
(1973)). As explained in United States v. Scheffer, 523 U.S. 303 (1998),
[a] defendant’s right to present relevant evidence is . . . subject to reasonable restrictions. A defendant’s interest in presenting such evidence may thus “‘bow to accommodate other legitimate interests in the criminal trial process.”’ As a result, state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused’s right to present a defense so long as they are not “arbitrary” or “disproportionate to the purposes they are designed to serve.” Moreover, [the Supreme Court has] found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused.
Id. at 308 (internal and end citations and footnote omitted).
Trial judges may “exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.” Holmes v. South Carolina, 547 U.S. 319, 326 (2006). And a federal habeas
“court’s duty ‘is not to determine whether the exclusion of the evidence by the trial judge was correct or incorrect under state law, but rather whether such exclusion rendered petitioner’s trial so fundamentally unfair as to constitute a denial of federal constitutional rights.’” Lewis v. Wilkinson, 307 F.3d 413, 420 (6th Cir. 2002) (quoting Logan v.
Marshall, 680 F.2d 1121, 1123 (6th Cir. 1982)).
b. The State-Court Rulings
Petitioner’s claim arose during trial. As explained by the Michigan Court of
Appeals,
[i]n a separate record, Detective Brett Stiles stated that [Mr.] Irving indicated during an interview that the victim had a large cocaine habit. Irving said that the victim took all the money out of their bank account and used it for cocaine. Irving also stated that the victim would do whatever she needed to do to get her drugs.
17 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 18 of 22 Pg ID 1525
App. 32
Danielak, 2012 WL 6913789, at *9; see also 5/19/11 Trial Tr., at 5-19, 150, Dkt. # 11-8,
Pg ID 760-774, 905; 5/20/11 Trial Tr., at 25-29, Dkt. # 11-9, Pg ID 933-37.
Defense counsel attempted to subpoena Mr. Irving for trial, but there were outstanding misdemeanor warrants for Irving’s arrest, and the police were unable to locate him or to serve him with a subpoena to testify at Petitioner’s trial. Consequently, defense counsel sought permission to ask Detective Stiles about Mr. Irving’s statements. The trial court ruled that defense counsel could not introduce Irving’s prior statements through Detective Stiles because the statements were hearsay and because
Petitioner was not precluded from presenting her defense through other means. (Dkt. #
11-9, Pg ID 936-37.)
The Michigan Court of Appeals agreed that Mr. Irving’s statements were inadmissible hearsay. The Court of Appeals also stated that Petitioner had abandoned the right to argue that the evidentiary rule was arbitrary or disproportionate to the purposes it was designed to serve. Finally, the Court of Appeals stated that Petitioner was not denied her right to present a defense, because Mr. Irving’s statements were not necessary to the defense that the victim had lethal amounts of cocaine in her system.
The Court of Appeals also opined that Mr. Irving's statements likely would have been harmful to the defense, because
[t]he medical examiner testified that a “naïve” drug user is a first time or infrequent drug user, meaning “that their body is naïve to the ... effects” of the drug. The medical examiner further stated that a naïve drug user would be more susceptible to a drug overdose. Evidence that the victim had a large cocaine habit would tend to indicate that she was not a naïve cocaine user, therefore making it more likely that the heroin, not the cocaine, killed her.
18 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 19 of 22 Pg ID 1526
App. 33
Danielak, 2012 WL 6913789, at *10.
c. Application
Mr. Irving’s statements to Detective Stiles were hearsay, which is “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Mich. R. Evid. 801(c). Hearsay generally is not admissible at trial, Mich. R. Evid. 802, and even though defense counsel argued that the hearsay was admissible under the “excited utterance” exception to the rule, the trial court implicitly rejected that argument. “To the extent that any testimony and comments violated Michigan’s rules of evidence, such errors are not cognizable on federal habeas review,” Hall v. Vasbinder, 563 F.3d 222, 239 (6th Cir. 2009), because
“[a] federal court may not issue the writ [of habeas corpus] on the basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984). “In conducting habeas
review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68
(1991).
Furthermore, the purpose of hearsay rules is to ensure the reliability of evidence and an opportunity for the adversary to cross-examine the absent declarant. United
States v. Winters, 33 F.3d 720, 723 (6th Cir. 1994) (quoting United States v. Hathaway,
798 F.2d 902, 905 (6th Cir. 1986) (citing Anderson v. United States, 417 U.S. 211, 219
(1974)). Thus, enforcement of the hearsay rule in this case served a legitimate interest and was not arbitrary, nor disproportionate to the purpose it was designed to serve.
Even if the hearsay rule infringed on Petitioner’s right to present a defense, the right to present a defense is subject to harmless-error analysis. See Fleming v. Metrish,
19 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 20 of 22 Pg ID 1527
App. 34
556 F.3d 520, 536 (6th Cir. 2009). On habeas review, a constitutional error is harmless unless the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946). The Brecht standard “whether or not the state appellate court recognized the error and reviewed it for harmlessness . . . .” Fry v.
Pliler, 551 U.S. 112, 121-22 (2007).
At Petitioner’s trial, there was other evidence that the victim had used cocaine.
The victim’s friend and co-worker, Heidi Cain, testified that the victim was using cocaine with Petitioner before the victim left their workplace on the night of the victim’s death.
Cain drove the victim home because the victim was not in the right state of mind to drive. It appeared to Cain that the victim then tried to get more cocaine. (Dkt. # 11-7,
Pg ID 716–17, 740-43, 748-49.)
Furthermore, as the Michigan Court of Appeals recognized, and as noted above,
Mr. Irving’s comments about the victim’s cocaine habit could have harmed Petitioner more than helped her. If the victim were a chronic user of cocaine, as petitioner wanted to show, the victim’s body would have adjusted to cocaine and have been more susceptible to heroin, making it appear more likely that the victim died from the heroin that Petitioner helped her buy. Such testimony would have been harmful to Petitioner’s defense, not helpful.
The Court concludes that Petitioner’s right to present a defense was not violated by the exclusion of Mr. Irving’s statements, and even if it were, the error could not have had a substantial and injurious effect or influence on the jury’s verdict and was
20 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 21 of 22 Pg ID 1528
App. 35
harmless. Habeas relief is not warranted on Petitioner’s claim.
B. CERTIFICATE OF APPEALABILITY
Petitioner may not appeal the denial of this court’s decision denying her habeas petition unless a district or circuit judge issues a certificate of appealability. 28 U.S.C. §
2253(c)(1)(A); Fed. R. App. P. 22(b)(1). A certificate of 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 v. Cockrell, 537 U.S. 322, 327 (2003)
(citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). When, as here, “a district court
has rejected the constitutional claims on the merits, the showing required to satisfy §
2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack, 529 U.S. at 484.
Reasonable jurists could debate the court’s assessment of Petitioner’s first claim
regarding the sufficiency of the evidence supporting Petitioner’s convictions for
obstructing justice, interfering with evidence, and removing a body without permission.
At a minimum, reasonable jurists could conclude that those issues are adequate to
deserve encouragement to proceed further. The court therefore will grant a certificate
of appealability on claim one. The court declines to grant a certificate of appealability
on claims two, three, and four, because reasonable jurists could not find the court’s
21 2:14-cv-11131-RHC-MJH Doc # 16 Filed 07/25/16 Pg 22 of 22 Pg ID 1529
App. 36 assessment of those claims debatable or wrong.
IV. CONCLUSION
IT IS ORDERED that the petition for a writ of habeas corpus is denied.
IT IS FURTHER ORDERED that a certificate of appealability is GRANTED as to claim one and DENIED as to claims two, three, and four.
IT IS FURTHER ORDERED that Petitioner may proceed in forma pauperis on appeal, because an appeal could be taken in good faith. 28 U.S.C. s 1915(a)(3).
s/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE Dated: July 25, 2016 hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, July 25, 2016, by electronic and/or ordinary mail.
s/Lisa Wagner Case Manager and Deputy Clerk (313) 234-5522
S:\Cleland\JAH\Habeus\14-11131.DANIELAK.deny.habeas.grant.cert.app.jah2.wpd 22 Case: 16-2215 Document: 46-1 Filed: 10/02/2018 Page: 1
App. 37
No. 16-2215 FILED Oct 02, 2018 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
MARY DANIELAK, ) ) Petitioner-Appellant, ) ) v. ) ) O R D E R SHAWN BREWER, ) ) Respondent-Appellee. ) ) ) )
BEFORE: NORRIS, ROGERS, and BUSH, Circuit Judges.
The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. The petition then was circulated to the full court. No judge has requested a vote on the suggestion for rehearing en banc.
Therefore, the petition is denied.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk 2:14-cv-11131-RHC-MJH Doc # 11-12 Filed 10/13/14 Pg 1 of 105 Pg ID 1109
App. 38
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED November 20, 2012 Plaintiff-Appellee, v No. 305491 Jackson Circuit Court MARY-LYN RAE DANIELAK, LC No. 10-006208-FH
Defendant-Appellant,
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee, v No. 305493 Jackson Circuit Court ANNA MARIE RAND, LC No. 10-006210-FH
Defendant-Appellant.
Before: TALBOT, P.J., and BECKERING and M. J. KELLY, JJ.
PER CURIAM.
In these consolidated appeals, in Docket No. 305491, Mary-Lyn Rae Danielak appeals as of right her jury trial convictions of delivery of a controlled substance causing death,1 common law obstruction of justice,2 tampering with evidence,3 and removing a body without medical examiner permission.4 Danielak was sentenced to prison terms of ten to 20 years for delivery of a controlled substance causing death, three to five years for obstruction of justice, two to four
1 MCL 750.317a. 2 MCL 750.505. 3 MCL 750.483a(6)(a). 4 MCL 52.204.
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years for tampering with evidence, and one year for removing a body without medical examiner permission. In Docket No. 305493, Anna Marie Rand appeals as of right her jury trial convictions of common law obstruction of justice,5 tampering with evidence,6 and removing a body without medical examiner permission.7 Rand was sentenced as a second habitual offender8 to prison terms of 28 to 90 months for obstruction of justice, 28 to 72 months for tampering with evidence, and one year for removing a body. We affirm.
Danielak and Rand’s convictions stem from the death of Cherie Irving (“the victim”). In the early morning hours of October 3, 2010, the victim drove to Danielak’s apartment in Jackson, Michigan. Danielak and the victim then went to the Abbey Villa Apartments to meet a drug dealer named “Chill.” Sergeant Brian Russell testified that Danielak told him that she had purchased cocaine and heroin from Chill in the past, and that she was going to introduce the victim to Chill so the victim could purchase heroin in the future if needed. Danielak purchased three bindles9 of heroin from Chill and the victim purchased four bindles. Danielak and the victim went back to Danielak’s apartment and used a syringe to inject themselves with heroin.
Danielak woke up late in the afternoon of October 3, 2010, and found the victim dead on the bathroom floor. On discovering the victim’s body, Danielak called her boyfriend, Randy Reeser.10 According to Danielak, Reeser told her to go to his mother’s house (Rand’s house), get ready for work, and that he would take care of it. Danielak did as Reeser instructed and went to work at approximately 9:00 p.m.
Later that evening, Reeser went to Rand’s house and informed her that there was a dead body in Danielak’s apartment. Reeser and Rand drove to Danielak’s apartment and placed the victim’s body in the back seat of Rand’s car. Later, Reeser and Rand moved the body to the trunk and drove to the Sandstone Creek Bridge. Rand parked on the side of the road and Reeser removed the victim’s body from the trunk. Reeser placed the victim’s body on the side of road, but it later slipped down an embankment and fell into the creek.
5 MCL 750.505. 6 MCL 750.483a(6)(a). 7 MCL 52.204. 8 MCL 769.10. 9 Sergeant Russell testified that a bindle is equivalent to approximately .1 grams. 10 Reeser was also tried and convicted of various offenses for his involvement in the incident, but he is not a party to this appeal.
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I. OBSTRUCTION OF JUSTICE
A. SUFFICIENCY OF THE EVIDENCE
Danielak argues that there was insufficient evidence to convict her of common law obstruction of justice.11 We disagree.
Sufficiency of evidence is a constitutional issue that is reviewed de novo by this Court.12
When reviewing a claim that the evidence presented was insufficient to support the defendant’s conviction, this Court must view the evidence in a light most favorable to the prosecution to determine if a rational trier of fact could find beyond a reasonable doubt that the prosecution established the essential elements of the crime.13
It is for the trier of fact rather than this Court “to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded to the inferences.”14 The determination that the requirements of aiding and abetting were met is a question of law subject to de novo review.15
Danielak was charged with obstruction of justice for the removal and concealment of the victim’s body. It is undisputed that Danielak was not present at the time the victim’s body was removed. At trial, the prosecution argued that Danielak was guilty under a theory of aiding and abetting. “A person who aids or abets the commission of a crime may be convicted as if he or she directly committed the crime.”16 The elements of aiding and abetting are:
(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 that [the defendant] gave aid and encouragement.17
11 Docket No. 305491. 12 People v Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001). 13 People v Kissner, 292 Mich App 526, 533-534; 808 NW2d 522 (2011). 14 People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). 15 People v Robinson, 475 Mich 1, 5; 715 NW2d 44 (2006). 16 People v Jackson, 292 Mich App 583, 589; 808 NW2d 541 (2011). 17 Robinson, 475 Mich at 6 (citation and quotations omitted).
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Although evidence that Danielak aided and abetted the removal and concealment of the victim’s body was circumstantial, it was sufficient to convict her. On discovering that the victim was dead, Danielak did not call the authorities to report what happened. Rather, she called Reeser. Her decision to contact Reeser, as opposed to the authorities, supports that she intended to cover up the victim’s death and was seeking help in doing so. Additionally, after speaking with Reeser, she did exactly as instructed—went to Rand’s apartment and got ready for work. Thus, a rational jury could find beyond a reasonable doubt that Danielak gave encouragement to Reeser that assisted in the commission of the crime.
There was also sufficient evidence that Danielak intended the commission of the crime or had knowledge that Reeser intended the commission of the crime. A defendant’s “[i]ntent is a question of fact to be inferred from the circumstances by the trier of fact.”18 “An aider and abetter’s [sic] knowledge of the principal’s intent can be inferred from the facts and circumstances surrounding an event.”19 “Because of the difficulty of proving an actor’s state of mind, minimal circumstantial evidence is sufficient.”20
Again, Danielak did not contact authorities to report the victim’s death; rather, she contacted Reeser. A rational jury could thus conclude that she contacted Reeser because she intended to conceal the victim’s body. Additionally, Danielak told Sergeant Russell that Reeser told her that he would “take care of it.” Though Danielak argues that the phrase “take care of it” could mean any number of things, a reasonable jury could conclude that, under the circumstances, “take care of it” meant that Reeser would get rid of the victim’s body. The evidence also shows that Danielak sent text messages to the victim after she died in an effort to conceal her knowledge of the victim’s death. The victim died sometime in the early morning hours of October 3, 2010. A co-worker stated that Danielak came to work at approximately 9:00 p.m. that night and told her that she had sent text messages to the victim advising the victim that she had her car keys. These messages were a clear attempt to hide Danielak’s knowledge of the victim’s death and to help explain why the victim’s vehicle was at Danielak’s apartment. Moreover, it appears that the text messages were sent before Reeser and Rand removed the victim’s body. That Danielak sent text messages to the victim before the victim’s body was removed indicates that Danielak knew that Reeser intended to conceal the victim’s body. Therefore, a rational jury could find beyond a reasonable doubt that Danielak either intended the commission of the crime or knew that Reeser intended the commission of the crime.
Rand argues that there is insufficient evidence to support her conviction for obstruction of justice because there is no evidence that she did anything indecent with the victim’s body, or that her actions interfered with the administration of justice.21 Rand’s argument that she did
18 People v Flowers, 191 Mich App 169, 178; 477 NW2d 473 (1991). 19 People v Bennett, 290 Mich App 465, 474; 802 NW2d 627 (2010). 20 People v McRunels, 237 Mich App 168, 181; 603 NW2d 95 (1999). 21 Docket No. 305493.
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nothing indecent to the body misses the point. Rand was not charged with the indecent disposal of a human body. Therefore, her argument is irrelevant.
Rand’s argument that her actions did not interfere with the administration of justice are also without merit. Rand argues that she did not obstruct justice because the medical examiner was able to perform an autopsy and successfully determine that the victim died of a drug overdose. The crime of “obstruction of justice is ‘committed when the effort is made to thwart or impede the administration of justice.”’22 Here, the victim’s body was removed from Danielak’s apartment in an effort to hide Danielak’s involvement in the victim’s death. Such conduct constitutes obstruction of justice, regardless of whether the victim’s body was ultimately found and an autopsy was successfully performed.
B. COMMON LAW PRECEDENT
Danielak and Rand argue that their convictions for obstruction of justice cannot be sustained because the removal and concealment of a dead body is not a common law obstruction of justice.23 Danielak and Rand were charged with common law obstruction of justice, the statute for which states: “Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony . . . .”24 There is no dispute that obstruction of justice is an indictable common law offense.25 Danielak and Rand argue, however, that the removal and concealment of a body is not a common law obstruction.
In Thomas, the Supreme Court explained that common law obstruction of justice is “not a single offense but a category of offenses that interfered with public justice.”26 Therefore, it is not enough that a defendant’s conduct interfere with the orderly administration of justice.27 “To warrant the charge of common-law obstruction of justice, [a] defendant’s conduct must have been recognized as one of the offenses falling within the category ‘obstruction of justice.”’28 Stated another way, there is “no generic offense of obstruction of justice known to the common law. There were instead a large number of separate and specific offenses, some of which with the passage of time came to be collected under the rubric ‘Offences Against Public Justice.’”29
22 People v Thomas, 438 Mich 448, 455; 475 NW2d 288 (1991), quoting People v Coleman, 350 Mich 268, 274; 86 NW2d 281 (1957). 23 Docket Nos. 305491 and 305493. 24 MCL 750.505. 25 See Thomas, 438 Mich at 448. 26 Id. at 456-457. 27 Id. at 457. 28 Id. at 457-458. 29 People v Davis, 408 Mich 255, 286; 290 NW2d 366 (1980) (Levin, J., concurring).
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“Thus, in order to sustain a charge of common-law obstruction of justice, common-law precedence for the specific offense charged as obstruction of justice must exist.”30
In the case at bar, the specific offense charged was “obstruction of justice by removing and concealing the deceased body of a person who defendant[s] knew or should have known, died of a heroin overdose.” A review of early common law writers provides insight. Wharton’s Criminal Law (11th ed), § 1702, p 1870, stated:
A person . . . is indictable who buries or otherwise disposes of any dead body on which an inquest ought to be taken, without giving notice to a coroner, or who, being under a legal duty to do so, fails to give notice to a coroner that a body on which an inquest ought to be held is lying unburied, before such body has putrefied.
Wharton references the case of R v Stephenson.31 In Stephenson, the appellate court addressed the issue of whether it was “indictable at common law to prevent the holding of a corner’s inquisition?” In affirming the defendants’ convictions, Justice Grove stated in relevant part:
It is most important to the public that a coroner who on reasonable grounds intends to hold an inquest should not be prevented from doing so. The consequences would otherwise be most formidable, especially in the case, I fear, of young children, for anyone might prevent the holding of an inquest by the destruction of a dead body with impunity, unless it could be proved that the death had been caused by violence. The only evidence might be the examination of the body itself. It might be that the only witness of the death was the murderer of the person found dead. To hold it no offense to prevent the administration of the law by preventing an inquest being held, unless proof could be given of the cause of death, and that it was a violent cause, would set at naught the protection which there is at present to the public.
Justice Stephen concurred in Justice Grove’s opinion, stating: “It is an obstruction of an officer of justice; it prevents the doing of that which the statute authorizes him to do.”
Stephenson32 supports a common law charge for obstruction of justice under the circumstances of this case.33 The substance of the offense charged in Stephenson was that the
30 People v Jenkins, 244 Mich App 1, 15; 624 NW2d 457 (2000). 31 R v Stephenson, 13 Law Rep, Q B Div, 331. 32 Id. 33 Contrary to Danielak and Rand’s argument, common law is not limited to Michigan precedent. “Common law” means “[t]he body of law derived from judicial decisions, rather than from statutes or constitutions.” Black’s Law Dictionary (9th ed). And our Supreme Court has repeatedly referenced precedent from other jurisdictions when discussing what the common law
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App. 44 defendants prevented the administration of law by disposing of a human body to prevent an inquest into the cause of death. In the case at bar, the victim died under circumstances that required an inquest into the cause and manner of death.34 The object behind the crime was the same as it was in Stephenson, to prevent or, at minimum, delay an inquest into the cause of death. Thus, we reject Danielak and Rand’s argument that common law precedent for the specific offense charged as an obstruction of justice does not exist.
Rand also argues that her conviction cannot be sustained because the conduct in this case is more properly charged under a different statute. Danielak and Rand were charged under MCL 750.505, but Rand argues that the conduct in this case is more properly charged under MCL 52.204, which provides in relevant part:
It shall be unlawful for any funeral director, embalmer or other person to remove the body from the place where death occurred, or to prepare the body for burial or shipment, when such funeral director, embalmer or other person knows or upon reasonable investigation should know that death may have occurred in a manner as indicated in section 3,[35] without first notifying the county medical is. Indeed, in People v Boyd, 174 Mich 321, 325-326; 140 NW 475 (1913), our Supreme Court cited State v Carpenter, 20 Vt 9 (1847), and Commonwealth v Berry, 133 SW 212 (Ky App, 1911), when discussing the common law offense of obstruction of justice. Similarly, in Davis, 408 Mich at 255, Justice Levin, in his concurrence, relied on precedent from numerous jurisdictions to come to the conclusion that common law obstruction of justice was not a singular offense: An overview of the early American cases suggests that the courts initially recognized that many distinct offenses could be described as “offenses against public justice” or “obstruction of justice,” but later began to disregard the distinctness of the various crimes and to employ the generic term “obstruction of justice” as if it described one offense rather than many. [Id. at 288 (Levin, J., concurring).]
34 See MCL 52.202. 35 MCL 52.203 provides in relevant part: (1) Except as otherwise provided in this section, a physician, an individual in charge of any hospital or institution, or any other individual who has first knowledge of any of the following shall immediately notify the county medical examiner or deputy county medical examiner of that fact:
(a) An individual who died suddenly, unexpectedly, accidentally, violently, or as the result of any suspicious circumstances.
(b) An individual who died without medical attendance during the 48 hours prior to the hour of death unless the attending physician, if any, is able to determine accurately the cause of death.
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examiner or his deputy and receiving permission to remove, prepare for burial or ship such body.
MCL 52.204 is similar to the common law offense discussed in Stephenson.36 Stephenson was based, in part, on the coroner’s jurisdiction to hold an inquest. Justice Stephens noted that the coroner only has jurisdiction upon “a reasonable suspicion that there may have been something peculiar in the death, that it may have been due to other causes than common illness.” Thus, concealing a body was not a crime in itself. Rather, it was only a crime when the coroner had jurisdiction, i.e., when there was something peculiar about the death.
Likewise, under MCL 52.204, the removal of a body is not in itself a crime. It is only a crime when the person knows that the death may have occurred “suddenly, unexpectedly, accidentally, violently . . . as the result of any suspicious circumstances” or “without medical attendance during the 48 hours prior to the hour of death unless the attending physician, if any, is able to determine accurately the cause of death.”37 The scope of MCL 52.204, however, is narrower than that of the common law offense. MCL 52.204 only makes it a crime to “remove the body from the place where death occurred, or to prepare the body for burial or shipment.” The common law offense is broader and applies to any conduct that prevents an inquest. For example, under MCL 52.204 it likely would not be a crime to conceal a body after it has already been removed from the place where death occurred, which would be a crime under common law. Therefore, although the offenses address a similar subject matter, they are not the same. As such, the conduct in this case was properly charged under MCL 750.505.
II. TAMPERING WITH EVIDENCE
Danielak next argues38 that there was insufficient evidence to convict her of tampering with evidence, the statute for which provides as follows:
(5) A person shall not do any of the following:
(a) Knowingly and intentionally remove, alter, conceal, destroy, or otherwise tamper with evidence to be offered in a present or future official proceeding.39
The basis for Danielak’s conviction for tampering with evidence is the same as that for her conviction of obstruction of justice—the removal and concealment of the victim’s body. For the reasons discussed above, there was sufficient evidence to convict Danielak under an aiding and abetting theory.
36 Stephenson, 13 Law Rep, Q B Div, 331. 37 MCL 52.203(1). 38 Docket No. 305491. 39 MCL 750.483a(5)(a).
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Danielak and Rand also argue that their convictions of tampering with evidence were improper because there was no “present or future official proceeding.”40 Danielak and Rand focus on the existence of a future official proceeding, arguing that the future proceeding must actually occur. They argue that the future proceeding used to sustain their convictions was a hypothetical coroner’s inquest, which was not necessary and never occurred, and so their convictions must be reversed.
Danielak and Rand’s arguments are unpersuasive. Danielak and Rand focus on the lack of a coroner’s inquest, but they completely fail to discuss the criminal trial that occurred. The relevant statute defines “[o]fficial proceeding” as “a proceeding heard before a legislative, judicial, administrative, or other governmental agency or official authorized to hear evidence under oath, including a referee, prosecuting attorney, hearing examiner, commissioner, notary, or other person taking testimony or deposition in that proceeding.”41 A criminal trial falls with the definition of “official proceeding.” Additionally, the victim’s body was indirectly offered as evidence during the criminal trial. Therefore, relief is not warranted.
III. REMOVAL OF A BODY WITHOUT PERMISSION
Danielak next argues42 that there was insufficient evidence to convict her of removing a body without medical examiner permission.43 The basis for Danielak’s conviction of removing a body without permission is the same as that for her convictions of obstruction of justice and tampering with evidence. For the reasons discussed above, there was sufficient evidence to convict Danielak under an aiding and abetting theory.
Danielak also argues that her conviction cannot be sustained by the facts of this case because the relevant statute44 only applies to medical examiners, their agents, or their equivalents. This argument is without merit. By its plain language, MCL 52.204 applies to “any funeral director, embalmer or other person . . . .” “Other person” is extremely broad and obviously encompasses Danielak. A contrary interpretation would hinder the purpose of the act. The title of 1953 PA 181 provides in part: “AN ACT relative to investigations in certain instances of the causes of death within this state due to violence, negligence or other act or omission of a criminal nature . . . .” Interpreting “other person” narrowly, as Danielak suggests, would allow almost anyone to remove a body from the place where death occurred, thus hindering the investigation into the cause of death. This was clearly not the intent of the Legislature based on the words of the statute.45 Therefore, Danielak is not entitled to reversal.
40 Docket Nos. 305491 and 305493. 41 MCL 750.483a(11)(a). 42 Docket No. 305491. 43 MCL 52.204. 44 Id. 45 People v Haynes, 281 Mich App 27, 29; 760 NW2d 283 (2008).
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IV. DELIVERY OF A CONTROLLED SUBSTANCE CAUSING DEATH
A. SUFFICIENCY OF THE EVIDENCE
Danielak argues46 that there was insufficient evidence to sustain her conviction of delivery of a controlled substance causing death.47 Sufficiency of the evidence is a constitutional issue that is reviewed de novo by this Court.48
When reviewing a claim that the evidence presented was insufficient to support the defendant’s conviction, this Court must view the evidence in a light most favorable to the prosecution to determine if a rational trier of fact could find beyond a reasonable doubt that the prosecution established the essential elements of the crime.49
It is undisputed that Danielak did not sell or personally deliver heroin to the victim. At trial, the prosecution argued that Danielak was guilty under a theory of aiding and abetting. Aiding and abetting in this context was recently addressed by our Supreme Court in People v Plunkett.50 In Plunkett, the defendant drove Tracy Corson from Ann Arbor to Detroit for the purpose of engaging in a drug transaction.51 The defendant gave Corson money, and Corson completed the transaction with the drug dealer.52 The defendant then drove back to Ann Arbor with Corson and partied with Corson and his ex-girlfriend.53 Later that night, the victim came to the defendant’s apartment seeking drugs.54 The four smoked crack-cocaine together and then Corson and the victim went into the bathroom and injected themselves with heroin.55 The victim died of heroin overdose.56
The issue in Plunkett, was whether there was sufficient evidence to bind the defendant over on a charge of delivery of a controlled substance causing death. Our Supreme Court
46 Docket No. 305491. 47 MCL 750.317a. 48 Hawkins, 245 Mich App at 457. 49 Kissner, 292 Mich App at 533-534. 50 People v Plunkett, 485 Mich 50; 780 NW2d 280 (2010). 51 Id. at 63. 52 Id. at 53. 53 Id. 54 Id. 55 Id. 56 Id. at 53-54.
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concluded there was probable cause to support the bind-over on an aiding and abetting theory.57 The Supreme Court stated that the appropriate inquiry is not whether the defendant aided and abetted the drug dealer in the transaction.58 “Instead, the crux of the appropriate inquiry is whether [the] defendant aided and abetted the delivery itself by assisting any party to that transaction. Such assistance to any party to an illegal transaction necessarily ‘encourage[s], support[s], or incite[s] the commission of that crime.’”59
Here, it is undisputed that the crime charged was committed by a subject identified as Chill, Danielak’s drug dealer. Additionally, like the defendant in Plunkett, Danielak performed acts that assisted in the commission of the crime. The testimony at trial established that Danielak took the victim to the Abbey Villa Apartments so that they could purchase heroin. Danielak admitted to a police officer that she introduced the victim to Chill so that the victim could purchase heroin from him at a later date if necessary. By introducing the victim to Chill, Danielak assisted both the victim and Chill in the transaction. Had it not been for Danielak’s introduction, the victim would have been unable to purchase heroin from Chill. Moreover, Danielak intended or had knowledge that Chill would deliver heroin to the victim. Therefore, sufficient evidence was presented to convict Danielak of delivery of a controlled substance causing death under an aiding and abetting theory.
Danielak also argues that the prosecution failed to prove that the victim’s death was caused by a heroin overdose. At trial, the medical examiner testified that the victim had lethal amounts of both cocaine and heroin in her system; therefore, he could not say which drug killed her. Because the medical examiner could not say with absolute certainty which drug killed the victim, Danielak argues that the prosecution failed to establish causation. This argument is unpersuasive.
Viewed in the light most favorable to the prosecution, a rational jury could find beyond a reasonable doubt that the victim’s cause of death was a heroin overdose. The medical examiner stated that the victim suffered a pulmonary edema. Though he was unable to say which drug killed the victim, the autopsy results indicate that her death was more consistent with a heroin overdose. The medical examiner testified that heroin is an opiate and its primary function is to depress the central nervous system. The examiner further stated that heroin can depress the central nervous system’s drive to breathe, which is consistent with pulmonary edema. Cocaine, on the other hand, is a stimulant and disrupts the signals from the brain to the heart. The medical examiner stated that cocaine can cause the heart to stop beating, but he saw no evidence that the victim died from a heart attack. Based on this evidence, a rational jury could find beyond a reasonable doubt that the victim died from a heroin overdose.
57 Id. at 62-63. 58 Id. at 65. 59 Id.
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B. STRICT LIABILITY
Danielak next argues that her conviction of delivery of a controlled substance causing death60 violates her due process rights by imposing strict liability without requiring any showing of mens rea. MCL 750.317a is part of the “homicide” chapter in the Penal Code and provides:
A person who delivers a schedule 1 or 2 controlled substance, other than marihuana, to another person in violation of section 7401 of the public health code, 1978 PA 368, MCL 333.7401, that is consumed by that person or any other person and that causes the death of that person or other person is guilty of a felony punishable by imprisonment for life or any term of years.
In Plunkett, our Supreme Court concluded that delivery of a controlled substance causing death is a general intent crime.61 The Supreme Court stated that the statute “does not require the intent that death occur from the controlled substance first delivered in violation of MCL 333.7401. Rather, the general intent required to violate MCL 750.317a is identical to the general intent required to violate MCL 333.7401(2)(a): the delivery of a schedule 1 or 2 controlled substance.”62 “[W]here a statute requires a criminal mind for some but not all of its elements, it is not one of strict liability[.]”63 Therefore, contrary to Danielak’s argument, delivery of a controlled substance causing death is not a strict liability offense.
Further, the relevant statute64 does not require a showing of malice as to the element of death. In People v Aaron, our Supreme Court concluded that malice is an essential element to any murder, including felony-murder.65 Danielak argues that Aaron is applicable and that MCL 750.317a also requires a showing malice. This argument is unpersuasive. The decision in Aaron was premised on the Legislature’s use of the undefined term “murder” in MCL 750.316(1). The Supreme Court stated that “malice is an essential element of any murder, as that term is judicially defined, whether the murder occurs in the course of a felony or otherwise.”66 In contrast to the felony-murder statute, MCL 750.317a does not define a degree of murder. It imposes criminal liability regardless of whether the defendant had a culpable state of mind with respect to the resulting death.
60 MCL 750.317a. 61 Plunkett, 485 Mich at 60. 62 Id. 63 People v Quinn, 440 Mich 178, 187; 487 NW2d 194 (1992). 64 MCL 750.317a. 65 People v Aaron, 409 Mich 672, 728; 299 NW2d 304 (1980). 66 Id.
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Danielak also argues that MCL 750.317a contravenes due process because it provides a penalty of life or any term of years without requiring a culpable state of mind as it relates to the resulting death. We disagree. The statute at issue “is social legislation enacted under the state’s traditional police power to regulate public safety, public health, morality, and law and order[;]” therefore, rational basis review is appropriate.67 Under rational basis review, courts “do not consider the effects of the statute or its consequences, only its purpose.”68 “[T]he legislation must be upheld unless the challenger can show that it is arbitrary, and wholly unrelated in a rational way to the objective of the statute.”69
The purpose of MCL 750.317a is to protect the public from dangerous controlled substances. The statute is rationally related to this purpose because it seeks to further deter individuals from delivering controlled substances. Therefore, the statute is constitutional.70
V. RIGHT TO PRESENT A DEFENSE
Danielak’s final argument is that she was denied her right to present a defense when the trial court excluded hearsay statements made by Darryl Irving, the victim’s husband. In a separate record, Detective Brett Stiles stated that Irving indicated during an interview that the victim had a large cocaine habit. Irving said that the victim took all the money out of their bank account and used it for cocaine. Irving also stated that the victim would do whatever she needed to do to get her drugs. Danielak sought to introduce these statements through Detective Stiles, arguing that they were necessary to her defense. The trial court concluded that the statements were hearsay and were not necessary to Danielak’s defense.
A trial court’s decision to admit evidence is reviewed for an abuse of discretion.71 A trial court abuses its discretion when its decision “falls outside the range of reasonable and principled
67 People v Derror, 475 Mich 316, 338; 715 NW2d 822 (2006), overruled in part on other grounds People v Feezel, 485 Mich 184; 783 NW2d 67 (2010). 68 Derror, 475 Mich at 340. 69 Id. at 338 (citations and quotation marks omitted). See also State v Maldonado, 137 NJ 536, 552; 645 A2d 1165 (1994) (“Society has targeted drug distribution that causes death for enhanced punishment to protect the safety of the public. This judgment is for the Legislature to make. All that is needed is a ‘conceivable rational basis’ for their conclusion that such added deterrent effect is warranted to protect society.”) 70 See Maldonado, 137 NJ at 536 (upholding the constitutionality of a statute authorizing a prison sentence of 20 years for distribution of drugs that results in death).
71 People v Benton, 294 Mich App, 191, 195; 817 NW2d 599 (2011).
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outcomes.”72 We review de novo whether a defendant was denied her constitutional right to present a defense as a question of law.73
“[A] criminal defendant has a state a federal constitutional right to present a defense.”74 “Few rights are more fundamental than that of an accused to present evidence in . . . her own defense.”75 “However, an accused’s right to present evidence in [her] defense is not absolute.”76
The right to present a complete defense “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.”[77] Michigan, like other states, “has a legitimate interest in promulgating and implementing its own rules concerning the conduct of trials.”[78] And, our Supreme Court has “broad latitude under the Constitution to establish rules excluding evidence from criminal trials.”[79] Thus, an “accused must still comply with ‘established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’”[80] Michigan’s Rules of Evidence do not infringe a defendant’s constitutional right to present a defense unless they are “‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’”[81]82
The trial court correctly concluded that the Irving’s statements were hearsay. They were out-of-court statements offered “to prove the truth of the matter asserted.”83 Therefore, they were inadmissible.84 Though Danielak argues that the evidentiary rule must bow to her right
72 People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). 73 Id. at 247. 74 Id. at 249-250 (citation and quotations omitted). 75 Id. at 249. 76 Id. at 250. 77 Chambers v Mississippi, 410 US 284, 295; 93 S Ct 1038; 35 L Ed 2d 297 (1973). 78 Unger, 278 Mich App at 250. 79 US v Scheffer, 523 US 303, 308; 118 S Ct 1261; 140 L Ed 2d 413 (1998). 80 People v Hayes, 421 Mich 271, 279; 364 NW2d 635 (1984), quoting Chambers, 410 US at 302. 81 Scheffer, 523 US at 308, quoting Rock v Arkansas, 483 US 44, 56; 107 S Ct 2704; 97 L Ed 2d 37 (1987). 82 People v King, __ Mich App __; __ NW2d __ (Docket No. 301793, issued July 31, 2012), slip op, p 4. 83 MRE 801(c). 84 MRE 802.
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present a defense, she presents no argument that any particular evidentiary rule is “arbitrary” or “disproportionate to the purposes [it is] designed to serve.”85 “An appellant’s failure to properly address the merits of [her] assertion of error constitutes abandonment of the issue.”86
Moreover, the record reveals that Danielak was allowed to present a complete defense. Danielak argued that there was insufficient evidence that the victim died of a heroin overdose because she also had lethal amounts of cocaine in her system. Irving’s statements regarding the victim’s cocaine habit were not necessary to this defense. Indeed, they likely would have been harmful to the defense. The medical examiner testified that a “naïve” drug user is a first time or infrequent drug user, meaning “that their body is naïve to the . . . effects” of the drug. The medical examiner further stated that a naïve drug user would be more susceptible to a drug overdose. Evidence that the victim had a large cocaine habit would tend to indicate that she was not a naïve cocaine user, therefore making it more likely that the heroin, not the cocaine, killed her. Consequently, Danielak was not denied her constitutional right to present a defense.
Affirmed.
/s/ Michael J. Talbot /s/ Jane M. Beckering /s/ Michael J. Kelly
85 Scheffer, 523 US at 308. 86 People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004).
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CASE NO. 16-2215
IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
MARY DANIELAK, Petitioner-Appellant
–vs–
SHAWN BREWER, Respondent-Appellee
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
OPENING BRIEF OF PETITIONER-APPELLANT MARY DANIELAK
MELISSA M. SALINAS (MI - P69388) University of Michigan Law School Federal Appellate Litigation Clinic 363 Legal Research Building, 801 Monroe Street Ann Arbor, MI 48109-1215 734-763-4319 [email protected] Counsel for Mary Lyn Danielak
FACUNDO BOUZAT JOSHUA ROTHENBERG University of Michigan Law School Federal Appellate Litigation Clinic Law Students on Brief Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 2
App. 54
TABLE OF CONTENTS Table of Contents ...... i Table of Authorities ...... iii Statement Regarding Oral Argument ...... vi Statement of Jurisdiction ...... 1 Issues Presented for Review ...... 2 Statement of the Case ...... 3 I. The Facts Found by the Michigan Court of Appeals and Adduced at Trial ...... 5 A. The Delivery of a Controlled Substance Charge...... 5 B. The Obstruction of Justice, Tampering with Evidence, and Removing a Body Without Permission Charges ...... 7 II. Sentencing and Procedural Posture ...... 9 Summary of Argument ...... 11 Standard of Review ...... 13 Argument...... 14 I. The MCOA Unreasonably Applied Jackson v. Virginia by Upholding Danielak’s Conviction for Aiding and Abetting the Delivery of a Controlled Substance Causing Death ...... 15 II. The MCOA Unreasonably Applied Jackson v. Virginia by Upholding Danielak’s Convictions for Aiding and Abetting Obstruction of Justice, Tampering with Evidence, and Removal of a Body without Permission ...... 23 A. The MCOA Unreasonably Applied Jackson when it Determined Danielak Aided and Abetted Obstruction of Justice ...... 24 i. There Was Insufficient Evidence that Danielak Encouraged Reeser and Rand’s Obstruction of Justice ...... 25 ii. There Was Insufficient Evidence that Danielak Shared or Knew of Reeser and Rand’s Intent to Obstruct Justice ...... 30 Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 3
App. 55
B. The MCOA Unreasonably Applied Jackson when it Determined Danielak Aided and Abetted Tampering with Evidence ...... 35 i. There Was Insufficient Evidence that Danielak Encouraged Tampering with Evidence ...... 36 ii. There Was Insufficient Evidence that Danielak Shared or Knew of Reeser and Rand’s Intent to Tamper with Evidence ...... 37 C. The MCOA Unreasonably Applied Jackson when it Determined Danielak Aided and Abetted the Removal of a Body Without the Medical Examiner’s Permission ...... 38 i. There Was Insufficient Evidence that Danielak Encouraged the Removal of a Body Without the Medical Examiner’s Permission ...... 39 ii. There Was Insufficient Evidence that Danielak Shared or Knew of Resser and Rand’s Intent to Remove a Body Without the Medical Examiner’s Permission ...... 40 D. Even if this Court Denies Relief on the Delivery of a Controlled Substance Causing Death Charge, Relief on this Count Is not Moot ...... 40 Conclusion ...... 42 Certificate of Compliance and Service ...... 43 Designation of District Court Documents ...... 44 Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 4
App. 56
TABLE OF AUTHORITIES Cases
Brown v. Palmer, 441 F.3d 347 (6th Cir. 2006) ...... passim
Brust v. Money, 100 F. App’x 437 (6th Cir. 2004) ...... 21
Burrage v. United States, 134 S. Ct. 881 (2014) ...... 22
Danielak v. Warren, No. 1411131, 2016 WL 3971209 (E.D. Mich. July 25, 2016) ...... passim
Fuller v. Anderson, 662 F.2d 420 (6th Cir. 1981), cert. denied 455 U.S. 1028 (1982) ...... passim
Harris v. Stoval, 212 F.3d 940 (6th Cir. 2000) ...... 13
Hopson v. Foltz, No. 86-1155, 1987 WL 37432 (6th Cir. May 20, 1987) ...... passim
In re Winship, 397 U.S. 358 (1970)...... 14, 18
Jackson v. Virginia, 443 U.S. 307 (1979)...... passim
Joseph v. Coyle, 469 F.3d 441 (6th Cir. 2006) ...... 19
People v. Burrel, 253 Mich. 321 (1931) ...... 26
People v. Danielak, 494 Mich. 852 (2013) ...... 10 Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 5
App. 57
People v. Danielak, No. 305491, 2012 WL 6913789 (Mich. Ct. App. Nov. 20, 2012) ...... passim
People v. Lucas, 402 Mich. 302 (1978) ...... 32, 38
People v. Plunkett, 485 Mich. 50 (2010) ...... 15
People v. Schaefer, 473 Mich. 418 (2005) ...... 16
Weaver v. Foltz, 888 F.2d 1097 (6th Cir. 1989) ...... 33
Williams v. Taylor, 529 U.S. 362 (2000)...... 13
Constitutional Provisions
U.S. Const. amend. V ...... 12
U.S. Const. amend. XIV ...... 12
Statutes
28 U.S.C. § 1291 ...... 1
28 U.S.C. § 2253(a) ...... 1
28 U.S.C. § 2254 ...... passim
Mich. Comp. Laws § 52.203 ...... 38
Mich. Comp. Laws § 52.204 ...... 4, 38 Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 6
App. 58
Mich. Comp. Laws § 750.317a ...... 3, 15
Mich. Comp. Laws § 750.483a(5)(a) ...... 36
Mich. Comp. Laws § 750.483a(6)(a) ...... 4
Mich. Comp. Laws § 750.505 ...... 4
Mich. Comp. Laws § 767.39 ...... 38
Rules
Fed. R. App. 4 ...... 1
Fed. R. App. 34(a) ...... vi Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 7
App. 59
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Federal Rule of Appellate Procedure 34(a) and Sixth Circuit
Rule 34(a), Petitioner-Appellant Mary Lyn Danielak requests oral argument. This case meets the standards in Fed. R. App. 34(a)(2) because (1) this appeal is not frivolous, and (2) as described in this brief, this Court’s review and decision- making would be significantly aided by oral argument. This appeal concerns complex, fact-specific issues related to the denial of Danielak’s due process right that all claims against her be based on evidence beyond a reasonable doubt. Thus, the Court would benefit from counsel’s familiarity with the record in this case.
Further, Danielak’s appeal is being litigated with the assistance of the
University of Michigan Law School’s Federal Appellate Litigation Clinic. Should oral argument be granted, undersigned counsel intends to request that this Court allow the students on the brief to argue this case. Student arguments serve an important educational purpose, and the assigned students will engage in exhaustive preparation for the oral argument. Because the Clinic requires student attorneys to undertake rigorous oral preparation for their cases, oral argument is anticipated to be particularly thorough and useful to the Court. Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 8
App. 60
STATEMENT OF JURISDICTION This Court has appellate jurisdiction over the district court’s denial of a petition for a writ of habeas corpus under 28 U.S.C. §§ 1291, 2253(a), and Federal
Rule of Appellate Procedure 4. The district court granted a certificate of appealability on Ground One in Danielak’s habeas petition, giving this Court authority to rule on that Ground. Danielak v. Warren, No. 14-11131, 2016 WL
3971209, at *11 (E.D. Mich. July 25, 2016). This Court granted Ms. Danielak’s request for an expanded certificate of appealability on June 8, 2017, giving it the authority to consider Ground Three of Danielak’s habeas petition. Danielak v.
Stewart, No. 16-2215 (June 8, 2017). Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 9
App. 61
ISSUES PRESENTED FOR REVIEW Certificates of appealability were granted on the following two issues:
1. Whether the Michigan Court of Appeals violated clearly established federal law in holding Danielak’s conviction for delivery of a controlled substance causing death did not violate her due process rights when there was insufficient evidence, as required in Jackson v. Virginia, to establish the controlled substance was the factual cause of the decedent’s death.
2. Whether the Michigan Court of Appeals violated clearly established federal law in holding Danielak’s convictions for obstructing justice, interfering with evidence, and removing a body without the medical examiner’s permission did not violate due process where there was insufficient evidence, as required in Jackson v. Virginia, to establish Danielak aided and abetted the three crimes because:
a. Danielak did not encourage the principals to commit the three crimes in question, and
b. Danielak did not intend or have knowledge that the principals would commit the crimes before the fact. Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 10
App. 62
STATEMENT OF THE CASE
This case arises from the death of Cherie Irving (19 years old) on October 3,
2010 from a drug overdose. People v. Danielak, No. 305491, 2012 WL 6913789, at *1 (Mich. Ct. App. Nov. 20, 2012). Early in the morning of October 3, Irving, who was dealing with personal problems, went to speak with her friend, Mary Lyn
Danielak (then 21 years old). Danielak and Irving visited a drug dealer known to
Danielak and purchased heroin. Id. They both injected the opiate. Id. Irving also ingested a lethal dose of cocaine, although it is not clear whether she consumed it before or after purchasing the heroin and no evidence suggests Danielak was aware of that fact. (R. 11-7, Trial Tr., PageID# 652-53; R. 11-8, Trial Tr., PageID# 843.)
Irving passed away sometime before 4:30 p.m. in the shared apartment of
Appellant Danielak and her then-boyfriend, Randy Reeser. See Danielak, 2012 WL
6913789, at *1; see also (R. 11-8, Trial Tr., PageID# 843-45.) In shock upon discovering Irving had passed away, Danielak left the apartment on October 3, and subsequently Reeser and his mother, Anna Marie Rand, moved Irving’s body.
Danielak, 2012 WL 6913789, at *1; see also (R. 11-8, Trial Tr., PageID# 845–46,
877–78.)
Count I of the indictment charged Danielak with delivery of a controlled substance causing death, under an aiding and abetting theory, in violation of Mich.
Comp. Laws § 750.317a (2010). At trial, the prosecution argued Danielak aided Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 11
App. 63 and abetted the delivery of the heroin simply by introducing Irving to a drug dealer on October 3. (R. 11-7, Trial Tr., PageID# 598-99.)
Count II of the indictment charged Danielak with common law obstruction of justice in violation of Mich. Comp. Laws § 750.505 (2010), Count III with tampering with evidence in violation of Mich. Comp. Laws § 750.483a(6)(a)
(2010), and Count IV with removing a body without the medical examiner’s permission in violation of Mich. Comp. Laws § 52.204 (2010). The foundation for these three charges was the allegation that Danielak aided and abetted Reeser and
Rand moving Irving’s body. Danielak, 2012 WL 6913789, at *6 (“The basis for
Danielak’s conviction of removing a body without permission is the same as that for her convictions of obstruction of justice and tampering with evidence.”). The prosecution alleged Danielak encouraged Reeser and Rand to move the body because instead of calling the police after discovering Irving’s body, she spoke with Reeser and subsequently went to work. (R. 11-7, Trial Tr., PageID# 602-03.)
The Michigan Court of Appeals specifically held a rational jury could have found
Danielak knew Reeser and Rand intended to remove Irving’s body from the apartment because Danielak sent text messages on October 3 and October 4 to
Irving—which Danielak admitted during an interview with law enforcement.
Danielak, 2012 WL 6913789, at *2. A jury convicted Danielak of all four counts.
Id. at *1. After fully appealing the sufficiency of the evidence through the Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 12
App. 64
Michigan courts and challenging it in the Eastern District of Michigan, Danielak now asks this Court to reverse the district court’s denial of habeas corpus on the sufficiency of the evidence for all Counts.
The following factual findings from the Michigan Court of Appeals, as well as additional facts from the trial court transcripts, are germane to the analysis of the certified issues. These facts show how the Michigan Court of Appeals unreasonably applied clearly established law under Jackson v. Virginia, 443 U.S.
307 (1979), in finding the evidence presented at trial was sufficient to support convictions beyond a reasonable doubt on Counts I, II, III, and IV.
I. THE FACTS FOUND BY THE MICHIGAN COURT OF APPEALS AND ADDUCED AT TRIAL A. The Delivery of a Controlled Substance Charge
The Michigan Court of Appeals made the following findings of fact, which are presumed correct in federal habeas corpus petitions filed under 28 U.S.C. §
2254(e)(1):
Danielak and [codefendant] Rand’s convictions stem from the death of Cherie Irving (“the victim”). In the early morning hours of October 3, 2010, the victim drove to Danielak’s apartment in Jackson, Michigan. Danielak and the victim then went to the Abbey Villa Apartments to meet a drug dealer named “Chill.” Sergeant Brian Russell testified that Danielak told him that she had purchased cocaine and heroin from Chill in the past, and that she was going to introduce the victim to Chill so the victim could purchase heroin in the future if needed. Danielak purchased three bindles of heroin from Chill and the victim purchased four bindles. Danielak and the victim went back to Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 13
App. 65
Danielak’s apartment and used a syringe to inject themselves with heroin. Danielak woke up late in the afternoon of October 3, 2010, and found the victim dead on the bathroom floor.
People v. Danielak, No. 305491, 2012 WL 6913789, at *1 (Mich. Ct. App. Nov.
20, 2012).
In holding a “rational jury could find beyond a reasonable doubt that the victim died from a heroin overdose,” the Court of Appeals relied primarily, if not solely, on the testimony of the prosecution’s medical expert. Danielak, 2012 WL
6913789, at *7. The medical expert testified that because Irving had lethal doses of both cocaine and heroin in her system, “he could not say which drug killed her.”
Id. However, he determined Irving died from a pulmonary edema, which “was more consistent with a heroin overdose.” Id.
In addition to those facts discussed by the Court of Appeals, several other facts are germane to these claims. The night before October 3, Irving had been upset over a number of traumatic events that had transpired in her life, including
“losing a large sum of money and over an incident where she may have potentially been raped by a subject earlier that week.” (R. 11-8, Trial Tr., PageID# 830.)
Danielak reached out to Irving and told her “if she wanted someone to talk with that she could call her.” (R. 11-8, Trial Tr., PageID# 830.) At some point that night, Irving ingested a dose of cocaine that the prosecution’s medical expert testified was lethal. (R. 11-7, Trial Tr., PageID# 652-53; R. 11-8, Trial Tr., Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 14
App. 66
PageID# 843.) No evidence introduced at trial suggests Danielak was in any way involved with Irving’s acquisition of cocaine.
Later, in the early morning of October 3, Irving went to Danielak’s apartment, and they proceeded to purchase heroin from “Chill.” At some point after injecting the heroin in Danielak’s apartment, Irving began to feel sick, went into the bathroom, and vomited. (R. 11-8, Trial Tr., PageID# 844.) “Irving laid down on the floor in the bathroom,” and Danielak checked on her “throughout the night several times” and got “a blanket and a pillow for her.” (R. 11-8, Trial Tr.,
PageID# 844.) Eventually Danielak fell asleep, and when she woke around 4:30 p.m., Irving had passed away in the bathroom. (R. 11-8, Trial Tr., PageID# 844.)
B. The Obstruction of Justice, Tampering with Evidence, and Removing a Body Without Permission Charges
The Michigan Court of Appeals made the following findings of fact in affirming Danielak’s conviction for aiding and abetting Reeser and Rand’s obstruction of justice, tampering with evidence, and removing a body unlawfully.
When Danielak found Irving’s body, she woke Reeser rather than notifying the police. Danielak, 2012 WL 6913789, at *1. Reeser told Danielak to go to his mother’s house to get ready for work and he would “take care of it.” Id.
Later that evening, Reeser went to Rand’s house and informed her that there was a dead body in Danielak’s apartment [the apartment was shared with Reeser]. Reeser and Rand drove to Danielak’s apartment and placed the victim’s body in the back seat of Rand’s car. Later, Reeser and Rand moved the body to the trunk and drove to the Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 15
App. 67
Sandstone Creek Bridge. Rand parked on the side of the road and Reeser removed the victim’s body from the trunk. Reeser placed the victim’s body on the side of road, but it later slipped down an embankment and fell into the creek.
Danielak, 2012 WL 6913789, at *1. The Michigan Court of Appeals emphasized Danielak’s failure to call the police, noting she instead woke Reeser. Id. at *2. The state court also focused on
Danielak acquiescing to Reeser’s instructions by using Rand’s apartment to shower and then going to work. Id. at *1. And, the court found the text messages Danielak sent to Irving’s phone “were a clear attempt to hide Danielak’s knowledge of the victim’s death.” Id. at 2. The court stated “it appears that the text messages were sent before Reeser and Rand removed the victim’s body,” which it took to indicate that Danielak knew Reeser intended to conceal the body. Id.
In addition to the Michigan Court of Appeals’ facts, the following are relevant to determining Danielak’s alleged role in aiding Reeser and Rand.
Sergeant Russell, the only witness at trial to testify about Danielak and Reeser’s conversation upon discovering Irving’s body, did not provide any specific details as to the contents of the conversation, besides Reeser’s telling Danielak to “go to
[Rand’s] house, get ready for work, and that he would take care of it.” (R. 11-8,
Trial Tr., PageID# 846, 878.) Nothing in the record reveals what Danielak might have interpreted “take care of it” to mean. The testimony indicated Danielak went to shower at Rand’s house before work because “she needed to go somewhere else Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 16
App. 68 to take a shower because Ms. Irving was dead on the bathroom floor.” (R. 11-8,
Trial Tr., PageID# 877–78.)
Evidence also showed that Danielak sent text messages to Irving’s phone on
October 3 and 4, 2010. (R. 11-8, Trial Tr., Page ID# 847, 882.) Heidi Cain,
Danielak’s coworker, testified Danielak came into work at or around 9:00 p.m. on
October 3. (R.11-7, Trial Tr., PageID# 724.) At some unspecified point that night,
Danielak told Cain she had sent Irving text messages. (R.11-7, Trial Tr., PageID#
724.) Acknowledging the haziness of this timeline, the Michigan Court of Appeals stated “it appears that the text messages were sent before Reeser and Rand removed the victim’s body.” Danielak, 2012 WL 6913789, at *2.
II. SENTENCING AND PROCEDURAL POSTURE
In May 2011, a jury found Danielak guilty of aiding and abetting the obstruction of justice (Count II), tampering with evidence (Count III), and moving a body without the medical examiner’s permission (Count IV), as well as aiding and abetting the delivery of a controlled substance causing death (Count I). (R. 11-
10, Trial Tr. & Jury Verdict, PageID# 1076–77.) The court sentenced Danielak to concurrent terms of ten to twenty years in prison for Count I, three to five years in prison for Count II, two to four years in prison for Count III, and one year in jail or prison for Count IV. Danielak v. Warren, No. 14-11131, 2016 WL 3971209, at *2
(E.D. Mich. July 25, 2016). As described by the trial court, the “sentence Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 17
App. 69 represents the maximum within the sentencing guidelines.” (R. 11-11, Sentencing
Tr., PageID# 1105.)
On appeal to the Michigan Court of Appeals,1 Danielak raised a sufficiency of evidence claim challenging all counts for which she was found guilty, among other issues. (R. 11-12, Mich. Court of App. Brief, PageID# 1140–47.) The
Michigan Court of Appeals affirmed the trial court’s conviction. Danielak, 2012
WL 6913789, at *10.
The Michigan Supreme Court denied Danielak’s application for leave to appeal. People v. Danielak, 494 Mich. 852 (2013). Danielak filed a petition for writ of habeas corpus in the Eastern District of Michigan, and the district court denied relief. Danielak, 2016 WL 3971209, at *11. The district court granted a
Certificate of Appealability on Ground One, which challenged the sufficiency of evidence supporting the convictions for Counts II-IV. Id. This Court granted a
Certificate of Appealability on Ground Three, which challenged the sufficiency of evidence for Count I. Danielak v. Stewart, No. 16-2215, 5 (6th Cir. June 8, 2017)
(order granting in part an expansion of the certificate of appealability). Because the facts presented at trial did not support a conviction beyond a reasonable doubt on any count, Danielak asks this Court to reverse the district court’s denial of habeas relief.
1 Danielak’s appeal to the Michigan Court of Appeals was consolidated with Rand’s appeal. See Danielak, 2012 WL 6913789, at *1. Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 18
App. 70
SUMMARY OF ARGUMENT The Michigan Court of Appeals (“MCOA”) unreasonably applied Jackson v.
Virginia, 443 U.S. 307 (1979), in determining the prosecution presented sufficient evidence to convict Danielak of aiding and abetting in the delivery of a controlled substance causing death, as well as aiding and abetting Reeser and Rand’s removal of Irving’s body.
The state court could not have reasonably found sufficient proof existed to establish heroin, rather than cocaine, caused Irving’s death. Specifically, the prosecution had the burden of proving that despite the presence of a lethal dose of cocaine in Irving’s body, Irving’s death was caused by the heroin Danielak helped her acquire. The prosecution’s own expert witness testified he could not determine whether Irving died due to the cocaine or the heroin present in her system at the time of autopsy, and the court acknowledged no evidence in the record suggested the drugs had any synergistic effect. Consequently, no reasonable jury could have found, beyond a reasonable doubt, heroin was the “but for” cause of Irving’s death.
Moreover, the court unreasonably found there was sufficient evidence to support Danielak’s conviction for aiding and abetting Reeser and Rand’s removal of Irving’s body. Under Michigan aiding and abetting law, the prosecution must show beyond a reasonable doubt the defendant performed an act or gave encouragement to the principal either intending the principal to commit the crime Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 19
App. 71 or knowing the principal intended to commit the crime. Citing only Danielak’s failure to alert the police to Irving’s death and choice to shower and go to work, the
MCOA found sufficient evidence for a jury to conclude beyond a reasonable doubt that Danielak encouraged Reeser to commit the crimes.
To establish Danielak had the required mental state of an aider and abettor, the MCOA added only that Danielak had sent text messages to Irving after her death, and that Danielak heard Reeser say he would “take care of it.” In both instances, the MCOA unreasonably applied the Due Process Clause of the Fifth and Fourteenth Amendments construed under Jackson. Absent speculation, no rational trier of fact could have found the challenged element beyond a reasonable doubt, and no reasonable jurist could agree that the Jackson standard allows for speculation. See Fuller v. Anderson, 662 F.2d 420 (6th Cir. 1981); Hopson v. Foltz,
No. 86-1155, 1987 WL 37432 (6th Cir. May 20, 1987) (per curiam) (unpublished);
Brown v. Palmer, 441 F.3d 347 (6th Cir. 2006). Danielak was entitled to habeas corpus relief on her claims of insufficient evidence. This Court should thus reverse the district court’s denial of habeas corpus on Grounds One and Three of
Danielak’s petition. Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 20
App. 72
STANDARD OF REVIEW
This Court reviews district court decisions de novo in habeas corpus proceedings. Harris v. Stoval, 212 F.3d 940, 942 (6th Cir. 2000) (citations omitted). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), habeas corpus relief is warranted where the adjudication in state court “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.”
28 U.S.C. § 2254(d)(1). A state court decision is contrary to clearly established law where it arrives at a conclusion opposite to the one reached by the Supreme Court on a question of law or applying law to “facts that are materially indistinguishable from a relevant Supreme Court precedent.” Williams v. Taylor, 529 U.S. 362, 405
(2000). An unreasonable application of clearly established federal law occurs when the decision “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Id. at 407–08. Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 21
App. 73
ARGUMENT
The Supreme Court has clearly and repeatedly held due process requires “the prosecution must convince the trier [of fact] of all the essential elements of guilt” beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361 (1970) (citations and quotation marks omitted). This rule applies in federal habeas corpus review:
[I]n a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 . . . the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.
Jackson, 443 U.S. at 324.
In reviewing the sufficiency of the evidence supporting Danielak’s convictions under the Jackson standard, this Court “review[s] the evidence in the light most favorable to the prosecution.” Fuller v. Anderson, 662 F.2d 420, 423
(6th Cir. 1981), cert. denied 455 U.S. 1028 (1982). Further, when sitting in habeas, this Court assesses the sufficiency of the evidence adduced at trial “with explicit reference to the substantive elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16.
In this case, Danielak’s conviction for aiding and abetting the delivery of a controlled substance causing death and the convictions related to moving Irving’s body should be reversed because the MCOA unreasonably applied the Jackson standard. As explained below, Danielak’s due process rights were violated because no reasonable jury could have found heroin was the “but for” cause of Irving’s Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 22
App. 74 death amid so much uncertainty as to the role of the concurrent lethal dose of cocaine in Irving’s body. Furthermore, no reasonable jury could have found beyond reasonable doubt Danielak aided and abetted the removal of Irving’s body where no act was adduced at trial showing Danielak encouraged Reeser and Rand to move Irving’s body before the fact. Consistent with the arguments below, this
Court should reverse the denial of habeas relief because the MCOA unreasonably applied Jackson and its progeny.
I. THE MCOA UNREASONABLY APPLIED JACKSON v. VIRGINIA BY UPHOLDING DANIELAK’S CONVICTION FOR AIDING AND ABETTING THE DELIVERY OF A CONTROLLED SUBSTANCE CAUSING DEATH.
The MCOA unreasonably applied Jackson when it found the evidence at trial was sufficient to establish beyond a reasonable doubt that heroin was the cause of Irving’s death. Because causation is an essential element of the delivery of a controlled substance causing death statute, the conviction should be vacated.
Section 750.317a is comprised of two elements: (1) the delivery “[of] a controlled substance” and (2) “when that substance is subsequently consumed by
‘any . . . person . . .’ it causes that person’s death.” People v. Plunkett, 485 Mich.
50, 60 (2010). Here, the state court erred in determining there was sufficient evidence of the causation element, specifically “but for” causation. The Michigan
Supreme Court has defined causation as follows: Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 23
App. 75
In criminal jurisprudence, the causation element of an offense is generally comprised of two components: factual cause and proximate cause. The concept of factual cause is relatively straightforward. In determining whether a defendant’s conduct is a factual cause of the result, one must ask, ‘but for’ the defendant’s conduct, would the result have occurred? If the result would not have occurred absent the defendant’s conduct, then factual causation exists . . . For a defendant’s conduct to be regarded as proximate cause, the victim’s injury must be a ‘direct and natural result’ of the defendant’s actions. People v. Schaefer, 473 Mich. 418, 435–36 (2005).
Thus, in addition to merely showing Irving’s death was a direct and natural result of ingesting heroin, the prosecution was required to show beyond a reasonable doubt that “but for” the heroin, Irving would not have died.
In denying Danielak’s appeal, the MCOA found:
Viewed in the light most favorable to the prosecution, a rational jury could find beyond a reasonable doubt that the victim’s cause of death was a heroin overdose. The medical examiner stated that the victim suffered a pulmonary edema. Though he was unable to say which drug killed the victim, the autopsy results indicate that her death was more consistent with a heroin overdose. The medical examiner testified that heroin is an opiate and its primary function is to depress the central nervous system. The examiner further stated that heroin can depress the central nervous system’s drive to breathe, which is consistent with pulmonary edema. Cocaine, on the other hand, is a stimulant and disrupts the signals from the brain to the heart. The medical examiner stated that cocaine can cause the heart to stop beating, but he saw no evidence that the victim died from a heart attack.
Danielak, 2012 WL 6913789, at *7. Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 24
App. 76
The MCOA found Irving’s “death was more consistent with a heroin overdose” than cocaine. Danielak, 2012 WL 6913789, at *7 (emphasis added).
From that factual finding, the court assumed a rational jury could find “but for
“causation beyond a reasonable doubt. However, such a leap was unreasonable.
Although the prosecution’s medical expert answered “yes” when asked whether heroin was “consistent with . . . pulmonary edema,” the prosecution’s evidence did not show how much more likely heroin was to be the cause of death, or whether cocaine was inconsistent with pulmonary edema. (R. 11-7, Trial Tr., PageID# 654,
664; see also R. 11-7, Trial Tr., PageID# 660–61, 675–77.) Without testimony about the ability of cocaine to cause pulmonary edema or the likelihood in this particular case, the jury lacked a basis from which to infer beyond a reasonable doubt which of the two substances was the “but for” cause of Irving’s death.
Instead, the prosecution’s medical expert testified repeatedly that either narcotic could have killed Irving independently and he could not determine which drug killed Irving. (R. 11-7, Trial Tr., PageID# 654; see also R. 11-7, Trial Tr.,
PageID# 660–61, 675–77.) More specifically, when asked, “And there’s nothing that you can say to determinately say the heroin was the cause of death” the medical examiner responded, “Yes. That’s correct.” (R.11-7, Trial Tr., PageID#
676–77.) When asked to confirm “there’s nothing you can definitively say that it Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 25
App. 77 was the cocaine that caused the death . . . Because you don’t know,” the medical examiner responded, “That’s correct.” (R. 11-7, Trial Tr., PageID# 677.)
Although the MCOA recited the beyond a reasonable doubt standard, by holding a reasonable juror could find heroin was “more consistent” to supplant the requirement that a juror be able to find this “beyond a reasonable doubt,” the court undermined the presumption of innocence. The Supreme Court has explained the role of the reasonable doubt standard. It “is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law.” Winship, 397 U.S. at 363 (citations and internal quotation marks omitted). Preserving that bedrock requires more than a preponderance of evidence showing that one explanation is more consistent than another. In short, the MCOA did not require proof beyond a reasonable doubt.
As the MCOA acknowledged, evidence of causation in this case arose entirely from the testimony of one expert witness, and amounted to the following facts: (1) Irving’s death was certainly caused by drug abuse; (2) Irving likely died from pulmonary edema; (3) Irving had potentially fatal doses of both heroin and cocaine; (4) pulmonary edema is consistent with heroin overdose; (5) cocaine overdose can cause heart failure; (6) the medical examiner was unable to find Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 26
App. 78 evidence of heart attack; and (7) the medical examiner admitted he could not determine which drug actually killed Irving. See Danielak, 2012 WL 6913789, at
*1; see also (R. 11-7, Trial Tr., PageID# 660-66.) Danielak does not contest these facts. Rather, taking all of these facts in the light most favorable to the prosecution, the facts are not strong enough for any jury to find heroin was the “but for” cause of Irving’s death beyond a reasonable doubt.
This Court addressed similar circumstances in Joseph v. Coyle, 469 F.3d 441
(6th Cir. 2006). In Joseph, an Ohio statute required proof that the defendant struck the killing blow in a homicide case. Id. at 454–55. There, the prosecution could not demonstrate with certainty through witness testimony whether the defendant or a coconspirator was the actual, but for, cause of the victim’s death. Id. at 455–56.
Consequently, this Court held—notwithstanding AEDPA’s deferential standard— because “defendant and a coconspirator [were] both present at the scene,” the evidence of simple involvement in the homicide was insufficient under Jackson.
Id.; see also Fuller, 662 F.2d at 424 (finding insufficient evidence in the absence of direct evidence of intent).
Just as the Ohio statute in Joseph required the defendant be the “but for” cause of the victim’s death, here the Michigan statute requires evidence that the controlled substance delivered by a defendant was the “but for” cause of the victim’s death. As in Joseph, two “killers” were present at the scene: cocaine and Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 27
App. 79 heroin. While it might be possible to infer one or the other was more likely to have been the factual cause of death, the lack of further evidence makes it impossible to determine which was the “but for” cause. As Joseph elucidates, Jackson does not allow a finding of factual causation beyond reasonable doubt when doubt exists as to which of two possible causes was the true cause of death. Here, testimony from the medical examiner revealed either drug could have independently caused
Irving’s death, and even the medical examiner could not say beyond a reasonable doubt which substance actually caused death.
Moreover, the jury could not have concluded that the combination of substances caused Irving’s death. While discussing the proper response to a juror question, the trial court acknowledged the lack of testimony about cocaine and heroin working in concert to cause Irving’s death. The record reads:
[Prosecution]: . . . If in fact there’s some kind of synergistic effect that the heroin happened to speed up the death then the Defendant is guilty. . . .
[Defense]: There was no testimony of that whatsoever.
The Court: I know.
(R. 11-10, Trial Tr. and Jury Verdict, PageID# 1073.)
As this Court has explained, “reasonable speculation” is “insufficient to establish beyond a reasonable doubt” an element of a crime. Fuller, 662 F.2d at
424 (discussed at length above). Here, it may be debatable whether a reasonable jury could, viewing the evidence in the light most favorable to the prosecution, Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 28
App. 80 have inferred heroin was more likely to have caused Irving’s death. But this is far shy of “but for” causation beyond a reasonable doubt. To reach the beyond a reasonable doubt threshold, the jurors would have needed to speculate by piling inference upon inference. They must assume that because a heart attack is a potential cause of death from cocaine use, cocaine cannot also cause pulmonary edema. Because the prosecution presented no evidence of the relationship between cocaine and pulmonary edema, this assumption would be mere speculation by the jury.
In Brust v. Money, 100 F. App’x 437 (6th Cir. 2004), this Court considered a sufficiency of the evidence challenge to a finding of “but for” causation on collateral review. In Brust, “[t]he state court noted that, although there was conflicting testimony about the appropriateness of the victim’s treatment, there was also testimony about the nature of the wound and that it was the cause of death.”
Id. at 439. Thus, the evidence of “but for” causation met the Jackson sufficiency of evidence standard solely because the direct testimony of a medical expert established beyond a reasonable doubt that the wound was caused by the defendant. Here, the opposite is true. Far from expert testimony establishing “but for” causation, the prosecution’s expert witness said it was not possible to determine whether cocaine or heroin was the “but for” cause of Irving’s death. Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 29
App. 81
Much of the district court’s opinion on the sufficiency of the evidence on the
“but for” cause element focused on Danielak’s pro se argument regarding Burrage v. United States, 134 S. Ct. 881 (2014). Danielak, 2016 WL 3971209, at *6-7.
However, as the district court recognized and Danielak concedes, “Burrage is not controlling here . . . [because] the Supreme Court was interpreting the penalty enhancement of a federal statute, not the Michigan statute in question here.” Id. at
*7.
The Supreme Court has clearly established that due process requires evidence of every element be found beyond a reasonable doubt. Jackson, 443 U.S. at 324. Finding heroin was the “but for” cause of Irving’s death relies on unreasonable inferences which, at best, amount to no more than speculation.
Further, the record contains direct evidence that it was not possible, even for an expert medical examiner, to determine beyond a reasonable doubt that “but for” the heroin, Irving would be alive. Thus, the MCOA unreasonably applied Jackson in determining the prosecution had entered sufficient evidence of causation for any rational jurist to find Danielak guilty beyond a reasonable doubt. The denial of habeas relief should be reversed on this count, with instructions that Danielak’s conviction and ten to twenty year concurrent sentence be vacated. Moreover, because the conviction on one count bears on a court’s sentencing decisions on all other counts, this Court should vacate all counts for resentencing. Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 30
App. 82
II. THE MCOA UNREASONABLY APPLIED JACKSON v. VIRGINIA BY UPHOLDING DANIELAK’S CONVICTIONS FOR AIDING AND ABETTING OBSTRUCTION OF JUSTICE, TAMPERING WITH EVIDENCE, AND REMOVAL OF A BODY WITHOUT PERMISSION.
Danielak’s convictions for aiding and abetting obstruction of justice, tampering with evidence, and removal of a body without the permission of the medical examiner were similarly based upon speculation, rather than evidence proving guilt beyond a reasonable doubt. The prosecution failed to prove either the intent or act in furtherance/encouragement elements of aiding and abetting with regard to these three charges.
The instant case is governed by Jackson, although the MCOA did not cite to
Jackson nor any Sixth Circuit case elucidating how to apply Jackson. See
Danielak, 2012 WL 6913789, at *1–3. Jackson’s proper application is demonstrated in the unbroken chain of this Court’s precedent in Fuller, Hopson, and Brown. As in those cases, this Court is faced with a defendant charged in
Michigan with aiding and abetting. Like those cases, here the prosecution failed to introduce evidence sufficient to convince any reasonable jury that she took an act or gave encouragement in support of the crimes being committed or had the requisite intent. Once again, the state courts unreasonably applied Jackson in allowing the jury’s speculation to fill the gaps in the prosecution’s case. Therefore, Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 31
App. 83 this Court should reverse the district court’s denial of habeas corpus relief on
Ground One of Danielak’s petition.
A. THE MCOA UNREASONABLY APPLIED JACKSON WHEN IT DETERMINED DANIELAK AIDED AND ABETTED OBSTRUCTION OF JUSTICE.
The MCOA’s application of Jackson was unreasonable because it found the prosecution had entered sufficient evidence of two elements of aiding and abetting obstruction of justice where the evidence did not prove them beyond a reasonable doubt. Danielak’s conviction of aiding and abetting obstruction of justice led to a concurrent sentence of five years. (R. 11-11, Sentencing Tr., PageID# 1105.)
To convict Danielak of obstruction of justice on an aiding and abetting theory, the prosecution was required to prove: (1) Reeser and/or Rand removed a body where the circumstances required an inquest into the cause and manner of death; (2) Danielak performed acts or gave encouragement that assisted the obstruction of justice (“act/encouragement element”); and (3) Danielak intended the obstruction of justice or had knowledge the principal intended its commission at the time that the defendant gave aid and encouragement (“intent element”).
Danielak, 2012 WL 6913789, at *3. While Danielak concedes the prosecution introduced evidence sufficient to show Reeser and/or Rand removed Irving’s body, it failed to introduce sufficient evidence of either the act/encouragement element or the intent element. Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 32
App. 84
i. There Was Insufficient Evidence that Danielak Encouraged Reeser and Rand’s Obstruction of Justice. The MCOA unreasonably applied Jackson in determining Danielak performed acts that furthered or encouraged Reeser and Rand’s crime. The MCOA found the evidence to be sufficient based on the following reasoning:
Danielak was charged with obstruction of justice for the removal and concealment of the victim’s body… Although evidence that Danielak aided and abetted the removal and concealment of [Irving’s] body was circumstantial, it was sufficient to convict her. On discovering that [Irving] was dead, Danielak did not call the authorities to report what happened. Rather, she called Reeser. Her decision to contact Reeser, as opposed to the authorities, supports that she intended to cover up [Irving’s] death and was seeking help in doing so. Additionally, after speaking with Reeser, she did exactly as instructed—went to Rand’s apartment and got ready for work. Thus, a rational jury could find beyond a reasonable doubt that Danielak gave encouragement to Reeser that assisted in the commission of the crime.
Danielak, 2012 WL 6913789, at *2.
The MCOA held that Danielak’s waking Reeser and following his instructions, instead of calling the police, was sufficient to find beyond a reasonable doubt that Danielak acted or encouraged Reeser and Rand to conceal the body. The Eastern District of Michigan similarly explained the prosecution’s theory: Danielak “aided and abetted Reeser and Rand in committing the other three crimes because she knew what Reeser and Rand intended to do and did nothing to stop it.” Danielak, 2016 WL 3971209, at *2. However, in Michigan “[m]ere presence, even with knowledge that an offense is about to be committed or is being Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 33
App. 85 committed,” cannot suffice to make someone an aider and abettor, nor can
“‘passive acquiescence or consent.’” Fuller, 662 F.2d at 424 (quoting People v.
Burrel, 253 Mich. 321, 323 (1931)); see also Brown v. Palmer, 441 F.3d 347, 351
(6th Cir. 2006). Knowing a crime will occur and failing to stop it is not encouragement. See Burrel, 253 Mich. at 323.
The trial evidence indicates only that Danielak was present at the scene before the crime—the removal of Irving’s body—was committed. Even in the light most favorable to it, the prosecution provided no evidence of anything beyond passive acquiescence—not calling the police and preparing for work. The jury was required to speculate as to what Danielak might have said or done to give encouragement. This is less evidence than presented in Fuller, where this Court affirmed the grant of habeas relief on an insufficiency of evidence claim because the evidence was too speculative to support a conviction beyond a reasonable doubt. See Fuller, 662 F.2d at 424.
In Fuller, the defendant and several others entered a gated backyard and one individual threw a “Molotov cocktail” into the house, setting it ablaze and killing two children. Fuller, 662 F.2d. at 421. Defendant Fuller was not tried as a principal; a witness testified Meadows, one of Fuller’s comrades, had lit and thrown the cocktail. Id. As Meadows threw the explosive weapon, Fuller stood by Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 34
App. 86 the gate looking back and forth between Meadows and the street, and after the cocktail was thrown, Fuller and Meadows fled together. Fuller, 662 F.2d. at 422.
Whereas the defendant’s presence prior to the crime in Fuller was accompanied by suspicious movements which “suggested . . . the petitioner may have been acting as a lookout for Meadows,” here there were no prior acts suggesting Danielak encouraged Reeser and Rand in moving Irving’s body. Id. at
424. This Court in Fuller opined that Fuller’s conspicuous presence at the time of
Meadow’s criminal conduct gave rise only to “reasonable speculation,” from which the court could not infer guilt beyond a reasonable doubt under Jackson. Id.
This case requires more speculation than Fuller to conclude from Danielak’s awakening Reeser to inform him of Irving’s death that Danielak encouraged him to move Irving’s body. Fuller suspiciously standing on the street while the crime was committed and fleeing the scene with the principal was insufficient to prove his role in the crime. Surely Danielak leaving the scene alone prior to any criminal act committed by Reeser is similarly insufficient. Evidence that Danielak acted or gave encouragement to Reeser or Rand is entirely absent from the record.
Similarly, in Brown, 441 F.3d 347 (6th Cir. 2006), this Court found insufficient evidence under the Jackson standard that defendant Brown aided and abetted armed robbery and carjacking where:
(1) Brown was present before and during [a] carjacking, (2) he and the perpetrator were in the car together before the perpetrator Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 35
App. 87
committed the offenses, (3) he stared at the victims while the perpetrator fired the shots, (4) he never got gas even though he was parked near a gas pump, (5) he attempted to flee as soon as the perpetrator drove off in the car, and (6) he failed to contact the police to retrieve his car.
Brown, 441 F.3d at 351. Construing the evidence in the light most favorable to the prosecution, this Court held the evidence established Brown was present and knew the principal. Id.
The circumstantial evidence arrayed against Danielak to show she encouraged or aided Reeser is far less than was presented against Brown. Danielak admittedly was close with the principal and was present prior to the offense. But she did not flee; rather, she went to her scheduled shift at work. Like Brown, she did not contact the police. Just as Brown passively acquiesced when he stared into the victims’ eyes while the principal fired a gun and stole a car, here Danielak passively acquiesced by showering and going to work. Indeed, whereas Brown was actually present for the offense, Danielak left before any crime was committed. As in Brown, beyond the fact that Danielak failed to contact the police, evidence allegedly “pointing to [the defendant’s] guilt becomes quite speculative.” Brown,
441 F.3d at 351.
The jury could only conclude Danielak encouraged the commission of obstruction of justice, and thus that she was guilty of aiding and abetting, through speculation. The prosecution entered evidence of only one conversation between Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 36
App. 88
Reeser and Danielak on October 3 and no evidence of any conversation between
Rand and Danielak on that day. The only concrete statement entered into evidence from this conversation was Reeser’s telling Danielak he would “take care of it.”
(R. 11-8, Trial Tr., PageID# 845–46, 878.) The prosecution entered no evidence regarding what Danielak said to Reeser in response, let alone evidence that the conversation addressed moving the body in a manner contrary to law. The record does not reveal what exactly Danielak said to Reeser in that conversation beyond informing him Irving had died.
Nothing established Danielak said anything to approve of Reeser’s plan or actively encouraged him in any way. The prosecution’s evidence only showed that after speaking to him she showered and went to work. Just as it was impermissible for the juries in Fuller and Brown to invent a conversation from circumstantial evidence to find encouragement, here the Jackson standard bars the jury from assuming Danielak’s side of the conversation. Therefore, no rational trier of fact could have found Danielak committed the act/encouragement prong of aiding and abetting, and the MCOA unreasonably applied Jackson when it nonetheless upheld
Danielak’s conviction of aiding and abetting obstruction of justice. Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 37
App. 89
ii. There Was Insufficient Evidence that Danielak Shared or Knew of Reeser and Rand’s Intent to Obstruct Justice. Not only was there insufficient evidence of the act/encouragement element of aiding and abetting obstruction of justice. The MCOA also unreasonably applied
Jackson in determining Danielak intended Reeser and Rand obstruct justice, or knew of their intent to do so (“intent element”). With regard to the intent prong of the aiding and abetting statute, the MCOA explained:
There was also sufficient evidence that Danielak intended the commission of the crime or had knowledge that Reeser intended the commission of the crime. . . . Again, Danielak did not contact authorities to report [Irving’s] death; rather, she contacted Reeser. A rational jury could thus conclude that she contacted Reeser because she intended to conceal the victim’s body. Additionally, Danielak told Sergeant Russell that Reeser told her that he would “take care of it.” Though Danielak argues that the phrase “take care of it” could mean any number of things, a reasonable jury could conclude that, under the circumstances, “take care of it” meant that Reeser would get rid of the victim’s body. The evidence also shows that Danielak sent text messages to the victim after she died in an effort to conceal her knowledge of the victim’s death. The victim died sometime in the early morning hours of October 3, 2010. A co-worker stated that Danielak came to work at approximately 9:00 p.m. that night and told her that she had sent text messages to the victim advising the victim that she had her car keys. These messages were a clear attempt to hide Danielak’s knowledge of the victim’s death and to help explain why the victim’s vehicle was at Danielak’s apartment. Moreover, it appears that the text messages were sent before Reeser and Rand removed the victim’s body. That Danielak sent text messages to [Irving’s] before [Irving’s] body was removed indicates Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 38
App. 90
that Danielak knew that Reeser intended to conceal [Irving’s] body. Therefore, a rational jury could find beyond a reasonable doubt that Danielak either intended the commission of the crime or knew that Reeser intended the commission of the crime.
Danielak, 2012 WL 6913789, at *4.
As in Brown, the MCOA unreasonably applied Jackson in determining there was sufficient evidence of intent to aid the principals’ commission of the crime. In
Brown, the defendant’s failure to contact the police over his car was not enough to show intent. Danielak’s similar failure cannot establish a criminal mental state;
Danielak woke Reeser and told him what had happened, rather than calling the police. That Reeser told Danielak he would “take care of it” to encourage Danielak to go to work is similarly insufficient. The trier of fact would need to find beyond a reasonable doubt that when Reeser uttered those words, Danielak understood them as a plan to obstruct justice. Moreover, the mental state needed to exist at the time
Danielak encouraged Reeser to obstruct justice. Given the evidence adduced at trial, no reasonable jury could have made these findings without speculating. See
Fuller, 662 F.2d at 424 (finding that a jury’s “reasonable speculation” as to facts required to establish guilt beyond reasonable doubt cannot form the basis to satisfy
Jackson).
In addition, the MCOA stated Danielak’s text messages could have provided evidence of intent or knowledge of Reeser and Rand’s intent. At trial, Sergeant
Russell testified Danielak sent Irving text messages on October 3 and October 4. Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 39
App. 91
Yet, the evidence did not establish the texts were sent before Reeser and Rand moved the body and obstructed justice. In Michigan, “an accessory [after the fact] is not an aider and abettor.” People v. Lucas, 402 Mich. 302, 303 (1978) (per curiam). Although at least one text was sent on October 3, the lack of evidence regarding whether the texts occurred before or after Reeser and Rand moved the body required the jury to fill in the gaps in the timeline through speculation. But speculation cannot form the basis for a finding of guilt beyond reasonable doubt.
Fuller, 662 F.2d at 424.
This Court’s decision in Hopson v. Foltz, No. 86-1155, 1987 WL 37432 (6th
Cir. 1987) (per curiam) (unpublished), also demonstrates how the MCOA unreasonably applied the Jackson standard in reviewing Danielak’s convictions. In
Hopson, this Court reviewed a sufficiency of evidence case involving, as here,
Michigan’s aiding and abetting statute. Id. at *1. Hopson was convicted as an accessory to second degree murder, and the MCOA affirmed his conviction. Id.
Trial testimony “indicate[d] at most that Hopson was present at the shooting, that he may have argued with the victim . . . prior to the shooting, that he may have known that someone else intended to harm [the victim], and that he may hav [sic] taken the empty shell casings after the shooting.” Id. at *2.
However, there was no proof Hopson “acted in pre-concert” with the principal, or provided encouragement: “His alleged statements . . . while showing Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 40
App. 92 animus towards the victim cannot be construed as providing encouragement to the principal.” Hopson, 1987 WL 37432, at *2. Therefore, this Court found “the evidence presented against Hopson insufficient to establish beyond a reasonable doubt that he took conscious action to aid in the shooting.” Hopson, 1987 WL
37432, at *2; see also Weaver v. Foltz, 888 F.2d 1097, 1099 (6th Cir. 1989)
(reversing the denial of habeas relief to one of Hopson’s codefendants on the same grounds and stating “Hopson’s actions, perhaps sufficient to make him an accessory after the fact, did not rise to the level of an aider and abettor in the killing”). Thus, habeas relief was warranted. Hopson, 1987 WL 37432, at *2; see also Brown, 441 F.3d at 352 (holding Hopson remains good law). To find beyond a reasonable doubt Danielak intended, or knew Reeser and Rand intended, to move
Irving’s body, a jury would have to speculate about things Reeser and Danielak might have discussed that the prosecution simply failed to present at trial.
The trial record does not establish when Danielak sent Irving text messages.
At trial, Sergeant Russell, testified Danielak had sent Irving text messages on the evening of October 3, 2010 and on October 4, 2010. (R11. 11-8, Trial Tr., PageID#
847, 882.) Reeser and Rand moved Irving’s body from the apartment on the night of October 3, 2010. Nothing in Russell’s testimony established whether Danielak’s texts to Irving—specifically those from October 3—occurred before or after
Reeser and Rand removed the body. Heidi Cain, Danielak’s coworker, testified Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 41
App. 93
Danielak arrived at work around 9:00 p.m. on October 3, but she did not state the exact time she spoke with Danielak. (R. 11-7, Trial Tr., PageID# 724.) Thus the record only suggests they spoke sometime after 9:00 p.m. (R. 11-7, Trial Tr.,
PageID# 724.)
The MCOA recognized the haziness of the timeline of Danielak’s texts, noting quite tentatively “it appears that the text messages were sent before Reeser and Rand removed the victim’s body.” Danielak, 2012 WL 6913789, at *2. No text message was entered into evidence showing Danielak encouraged Reeser or Rand to move Irving’s body. (R. 11-8, Trial Tr., PageID# 847, 882.)
Without a clear timeline regarding the text messages, the state court’s application of Jackson is as unreasonable here as it was in Hopson. Although it had the opportunity to elicit more evidence as to the content and timing of Danielak’s texts in order to verify whether the texts were sent before or after Reeser and Rand moved Irving’s body, the prosecution did not introduce further evidence of the text messages into the record. (R. 11-7, PageID# 580–81.) Irving’s phone was “never found” and the prosecution itself admitted Danielak’s texts had “no effect on the investigation.” (R. 11-7, PageID# 581.) Much like in Hopson, where the defendant took the shell casings from the crime scene after the shooting, the evidence at trial leaves open the possibility that Danielak sent all of her texts to Irving after Reeser and Rand moved the body. But any of Danielak’s texts after the removal of the Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 42
App. 94 body “cannot form the basis for a conviction as aider and abettor.” Hopson, 1987
WL 37432, at *2.
Further, the Hopson court found insufficient evidence under Jackson where the defendant “may have known that someone else intended to harm” the victim.
Hopson, 1987 WL 37432, at *2 (emphasis added). Therefore, even if the text messages may have indicated that Danielak knew Irving’s body would be moved, the lack of certainty precludes a finding beyond reasonable doubt as Jackson requires. Consequently, Hopson, as well as this Court’s precedent in Brown and
Fuller, militate a finding that no rational trier of fact could have found Danielak intended, or had knowledge of Reeser’s intent, to move Irving’s body.
Danielak was thus denied due process when the MCOA unreasonably applied Jackson and found the evidence at trial sufficient to establish both act/encouragement and intent in aiding and abetting obstruction of justice.
B. THE MCOA UNREASONABLY APPLIED JACKSON WHEN IT DETERMINED DANIELAK AIDED AND ABETTED TAMPERING WITH EVIDENCE. Similarly, the MCOA unreasonably applied Jackson in affirming Danielak’s conviction for tampering with evidence under an aiding and abetting theory. To convict her under such a theory, the prosecution needed to prove beyond a reasonable doubt: (1) Reeser and/or Rand “[k]nowingly and intentionally remove[d], alter[ed], conceal[ed], destroy[ed], or otherwise tamper[ed] with Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 43
App. 95 evidence to be offered in a present or future official proceeding,” Mich. Comp.
Laws § 750.483a(5)(a) (2010), (2) Danielak “performed acts or gave encouragement” that assisted the tampering with evidence, and (3) Danielak intended the tampering with evidence or had knowledge that Reeser and Rand
“intended its commission at the time that [Danielak] gave aid and encouragement.”
Danielak, 2012 WL 6913789, at *2.
As with obstruction of justice, while the jury had sufficient evidence to convict Reeser and Rand of tampering with evidence, it did not have sufficient evidence that Danielak encouraged the tampering or intended it occur. Danielak’s conviction of tampering with evidence led to a concurrent sentence of three years.
(R. 11-11, Sentencing Tr., PageID# 1105.) The MCOA explained “[t]he basis for
Danielak’s conviction for tampering with evidence is the same as that for her conviction of obstruction of justice—the removal and concealment of the victim’s body.” People v. Danielak, No. 305491, 2012 WL 6913789, at *5 (Mich. Ct. App.
Nov. 20, 2012). For the reasons discussed above, the MCOA failed to reasonably apply Jackson in finding the prosecution satisfied the act/encouragement and intent elements of aiding and abetting the tampering of evidence.
i. There Was Insufficient Evidence that Danielak Encouraged Tampering with Evidence The MCOA’s finding that Danielak encouraged or aided Reeser and Rand when they moved Irving’s body—and thus tampered with evidence—resulted from Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 44
App. 96 an unreasonable application of Jackson. As explained above, the evidence adduced at trial only established Danielak did not call the police and instead, at Reeser’s suggestion, went to Rand’s house and then to work. But merely passively acquiescing is not sufficient in Michigan to prove act or encouragement. Brown,
441 F.3d at 351. Therefore, for the same reasons as above, this evidence does not suffice under Jackson to establish accomplice liability for tampering with evidence beyond a reasonable doubt. This Court should reverse the denial of habeas relief and vacate Danielak’s conviction for tampering with evidence.
ii. There Was Insufficient Evidence that Danielak Shared or Knew of Resser and Rand’s Intent to Tamper with Evidence The MCOA’s finding that Danielak shared or knew of Reeser’s intent to tamper with evidence resulted from an unreasonable application of Jackson.
Allowing the jury to find an element of a crime beyond a reasonable doubt through speculation is not permissible under Jackson. Fuller, 662 F.2d at 424. Absent speculation, no reasonable juror could have concluded Danielak intended or knew of Reeser’s intent to move the body. There is no evidence establishing Danielak sent Irving text messages before Reeser and Rand moved the body; therefore, it is impossible to infer from the text messages beyond a reasonable doubt that
Danielak intended to aid Reeser and Rand’s removal of the body at the time Reeser and Rand were moving the body. Any text messages sent after 11:00 p.m. on Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 45
App. 97
October 3—after the removal of the body—are not relevant as to her mental state with regard to an aiding and abetting charge. Lucas, 402 Mich. at 303 (holding “an accessory [after the fact] is not an aider and abettor under [Mich. Comp. Laws §
767.39]”). Moreover, Reeser’s communication with Danielak on October 3 did not establish Danielak’s intent, and no other evidence in the record bears upon
Danielak’s mental state.
C. THE MCOA UNREASONABLY APPLIED JACKSON WHEN IT DETERMINED DANIELAK AIDED AND ABETTED THE REMOVAL OF A BODY WITHOUT THE MEDICAL EXAMINER’S PERMISSION. The MCOA’s application of Jackson was also unreasonable with respect to the charge of removing a body without the medical examiner’s permission. Also charged under an aiding and abetting theory, the prosecution bore the burden of proving beyond a reasonable doubt that: (1) Reeser and/or Rand “remove[d] the body from the place where death occurred” without the permission of the medical examiner if the individual died in a sudden or unexpected manner, Mich. Comp.
Laws §§ 52.204, 52.203 (2010), (2) Danielak performed acts or gave encouragement that assisted the removal of the body without the medical examiner’s permission, and (3) Danielak intended the removal of the body without the medical examiner’s permission or had knowledge the principal intended its commission at the time that Danielak gave aid and encouragement. Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 46
App. 98
The conviction on this count led to a concurrent sentence of one year. (R.
11-11, Sentencing Tr., PageID# 1105.) The MCOA’s reasoning in relation to the sufficiency of evidence supporting the removal of the body charge was as follows:
The basis for Danielak’s conviction of removing a body without permission is the same as that for her convictions of obstruction of justice and tampering with evidence. For the reasons discussed above, there was sufficient evidence to convict Danielak under an aiding and abetting theory.
Danielak, 2012 WL 6913789, at *6. As with the other two charges, the prosecution entered sufficient evidence that Resser or Rand removed the body without permission under the requisite circumstances. However, the MCOA unreasonably applied Jackson in determining there was sufficient evidence for the act/encouragement and intent prongs.
i. There Was Insufficient Evidence that Danielak Encouraged the Removal of a Body Without the Medical Examiner’s Permission
For the same reasons as above, the MCOA unreasonably applied Jackson when it found, beyond a reasonable doubt, that Danielak aided and abetted the removal of the body without the medical examiner’s permission. Danielak committed no acts which would be sufficient under Jackson to establish she encouraged Reeser and Rand. Supra Section I.A.i. As previously discussed, no evidence adduced at trial demonstrated Danielak said anything encouraging
Reeser, nor is passively acquiescing by showering and going to work legally Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 47
App. 99 sufficient to establish guilt. Consequently, this Court should reverse her conviction for removal of a body without the medical examiner’s permission.
ii. There Was Insufficient Evidence that Danielak Shared or Knew of Reeser and Rand’s Intent to Remove a Body Without the Medical Examiner’s Permission
For the same reasons as above, the MCOA unreasonably applied Jackson when it found Danielak intended or knew of Reeser’s intent to remove the body without the medical examiner’s permission. The prosecution did not enter evidence to establish consistent with Jackson that Danielak intended or knew of Reeser’s intent to move the body. Supra Section I.A.ii. Reeser’s saying he would “take care of it” did not establish Danielak understood him to be proposing to move the body without first calling the medical examiner. Moreover, the evidence adduced at trial did not clearly show Danielak’s text messages were sent before the body was moved. Consequently, this Court should reverse her conviction for removal of a body without the medical examiner’s permission.
D. EVEN IF THIS COURT DENIES RELIEF ON THE DELIVERY OF A CONTROLLED SUBSTANCE CAUSING DEATH, RELIEF ON THIS COUNT IS NOT MOOT The trial judge sentenced Danielak to ten to twenty years in prison for aiding and abetting delivery of a controlled substance causing death, three to five years for obstruction of justice, two to four years for tampering with evidence, and one year for removing the body. The judge made clear he was sentencing Danielak to Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 48
App. 100 the maximum sentence he could because of the multiple sentences she was receiving and the egregious nature of the purported crimes:
Ms. Danielak . . . you have the highest level of culpability . . . [Y]ou get up the next morning you discover [Irving’s] lifeless body, and then you begin a whole series of events that just rapidly escalates out of control, with little regard to it’s [sic] consequences on the family, on, you know, what it was going to do to you. You know, the shock it causes some poor man who is out fishing [and found the body]. You know, the shock to an entire community . . . And, so, I’m going to sentence you to the maximum prison.
(R. 11-11, Sentencing Tr., PageID# 1104–05.) A reversal on obstruction of justice, tampering with evidence, and removal of the body calls the entire sentence into question. A reversal of these convictions alone would require resentencing. Therefore, this Court should reverse the district court’s denial of habeas corpus relief on Ground Three of Danielak’s petition.
In summary, as a result of assertions at trial of attenuated connections between Irving’s death and Danielak’s conduct, Danielak is forced to spend the majority of her young adulthood behind bars and the rest of her life with the brand of a felon. The prosecution failed to introduce evidence sufficient to prove aiding and abetting the delivery of a controlled substance causing death or aiding and abetting obstruction of evidence, tampering with evidence, and removing a body without the permission of a medical examiner beyond a reasonable doubt under the
Jackson standard. As such, the Michigan Court of Appeals was objectively Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 49
App. 101 unreasonable in its application of Jackson, and the district court erred its denial of
Danielak’s petition.
CONCLUSION
For the foregoing reasons, this Court should reverse the district court’s denial of habeas relief on Grounds One and Three in Danielak’s habeas corpus petition.
Respectfully submitted,
/s/ Melissa M. Salinas Melissa M. Salinas (MI - P69388) University of Michigan Law School Federal Appellate Litigation Clinic 363 Legal Research Building 801 Monroe Street Ann Arbor, Michigan 48109-1215 (734) 763-4319 [email protected]
Facundo Bouzat and Joshua Rothenberg Student Attorneys on Brief Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 50
App. 102
CERTIFICATE OF COMPLIANCE AND SERVICE
I hereby certify:
1. The above brief has been prepared using Microsoft Word 14-point Times New Roman font. Excluding the cover page, table of contents, table of authorities, statement with respect to oral argument, certificate of compliance, certificate of service, and designation of relevant district court documents, the brief is comprised of 9801 words, and, therefore, complies with Fed. R. App. P. 32(a)(7)(B).
2. This brief was filed on July 18, 2017, using the Court’s ECF system, which will send notice of this filing to all counsel of record indicated on the electronic receipt.
/s/Melissa Salinas Melissa M. Salinas (MI - P69388) University of Michigan Law School Federal Appellate Litigation Clinic 363 Legal Research Building
Case: 16-2215 Document: 14 Filed: 07/18/2017 Page: 51
App. 103
DESIGNATION OF DISTRICT COURT DOCUMENTS
Pursuant to 6 Cir. R. 28(c) and 30(b), petitioner-appellant Mary Lyn
Danielak hereby designates the following relevant district court documents:
DESCRIPTION RECORD PAGE ID # OF ENTRY DATE ENTRY NO. RANGE Petition Under 28 03/13/2014 1 1-28 U.S.C § 2254 for Writ of Habeas Corpus (pro se) Trial Transcript 05/18/2011 11-7 567-755 Trial Transcript 05/19/2011 11-8 756-908 Trial Transcript 05/23/2011 11-10 1068-1082 Trial and 07/21/2011 11-11 1083-1107 Sentencing Transcript Michigan Court of 11/20/2011 11-12 1109-1213 Appeals Order Denying Relief and Appellant’s Brief Michigan Supreme 05/22/2013 11-13 1214 Court Order Denying Leave to Appeal Opinion and Order 07/25/2016 16 1508-1529 Denying Petition for Writ of Habeas Corpus, Granting in Part a Certificate of Appealability Case: 16-2215 Document: 31 Filed: 12/12/2017 Page: 1
App. 104
CASE NO. 16-2215
IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
MARY DANIELAK, Petitioner-Appellant
–vs–
SHAWN BREWER, Respondent-Appellee
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SUPPLEMENTAL BRIEF ______
MELISSA M. SALINAS (MI - P69388) University of Michigan Law School Federal Appellate Litigation Clinic 363 Legal Research Building, 801 Monroe Street Ann Arbor, MI 48109-1215 734-763-4319 [email protected] Counsel for Mary Danielak
JOSHUA ROTHENBERG University of Michigan Law School Federal Appellate Litigation Clinic Law Student on Brief Case: 16-2215 Document: 31 Filed: 12/12/2017 Page: 2
App. 105
INTRODUCTION
At oral argument on November 30, 2017, the Panel asked about a theory of causation sounding in Michigan’s substantive criminal law as a potential ground for affirming the denial of habeas on the ground of insufficient evidence to prove aiding and abetting the delivery of a controlled substance causing death. Danielak sought leave to file a supplemental brief addressing this theory because it was not analyzed by any lower court or the briefed by any party in this case. Mot. for Leave to File a
Suppl. Resp. to an Issue Raised at Oral Argument, ECF No. 27. The Court granted the motion. Order, ECF No. 30-2. Danielak now submits this supplemental brief to discuss how concurrent causation in Michigan law is a doctrine of proximate causation that does not apply to establishing but for causation, the element at issue in this appeal.
SUPPLEMENTAL ARGUMENT
This Court sitting in habeas must apply the sufficiency of the evidence standard “with explicit reference to the substantive elements of the criminal offense as defined by state law.” Jackson, 443 U.S 307, 324 n.16 (1979). In Michigan, causation is “comprised of two components: factual cause and proximate cause.”
People v. Schaefer, 473 Mich. 418, 435 (2005). Factual causation exists only if “the result would not have occurred absent [or but for] the defendant’s conduct.” Id. at
435–36. Concurrent causation is allowed where there are multiple proximate, not Case: 16-2215 Document: 31 Filed: 12/12/2017 Page: 3
App. 106 factual causes. People v. Tims, 449 Mich. 83, 95–96 (1995) (Proximate cause “does not imply that a defendant is responsible for harm only when his act is the sole antecedent”). Put another way, it is a doctrine determining when a but for cause is also a proximate cause, not whether a defendant’s conduct was a but for cause.
In the two cases underlying the consolidated appeal in Tims, the defendants conceded their “culpable conduct was ‘a’ cause” but argued “the negligence of either the victim or a third party, if it was also a proximate cause of death, would be a complete defense.” Id. at 95. Defendant Tims claimed the victim had “darted out in front of [his] car” such that the victim contributed to his own death. Id. at 91–92. In the consolidated case, defendant Kneip hit a pedestrian while driving drunk, throwing the pedestrian into another lane where a second car negligently hit him. Id. at 92–94. Both defendants argued they were not the proximate cause, but neither denied being a but for cause. Id. at 91–94.
The Michigan Supreme Court held “it was proper to instruct the jury that the defendant’s conduct need only be ‘a’ proximate cause of death.” Id. at 99 (emphasis added). Where multiple acts actually caused the result, either concurrently or in one causal chain, “all acts that proximately cause the harm are recognized by the law.”
People v. Bailey, 451 Mich. 657, 676 (1996). While a defendant’s act need not be
“‘the’ cause of death,” his culpable conduct must be “‘a’ cause of death.” Tims, 449
Mich. at 95–96; see also Bailey, 451 Mich. at 676 (“[I]t is not necessary that the Case: 16-2215 Document: 31 Filed: 12/12/2017 Page: 4
App. 107 party convicted of a crime be the sole cause of that harm,” so long as “[s]he be a contributory cause that was a substantial factor in producing the harm.”). Therefore, while more than one proximate cause may exist, all must be part of the chain of acts causing the result.
In this respect, Tims did not alter “the relevant rules [which] have been the same for at least a century. First, the defendant’s conduct must be a cause of the harm sine qua non. Second, the harm must be a foreseeable risk of the defendant’s conduct.” 449 Mich. at 105 (citations omitted); People v. Mott, No. 280671, 2009
WL 387738, at *7 n.3 (Mich. App. Feb. 17, 2009) (“Sine qua non is defined as a cause without which the harm would not have happened.”).
The prosecution in this case failed to present sufficient evidence for any rational trier of fact to conclude beyond a reasonable doubt that heroin was a but for
(factual, sine qua non) cause of Cherie Irving’s death. See Danielak Op. Br. at 15–
23. The jury was presented with evidence that either heroin or cocaine resulted in a fatal pulmonary edema. (R. 11-7, Trial Tr., Page ID# 643, 648, 660–61). The trial court found there was no evidence establishing the two substances worked in tandem to cause Irving’s death. (R. 11-10, Trial Tr. and Jury Verdict, PageID# 1073).
Therefore, the prosecution’s failure to enter sufficient evidence that heroin was a but for cause of death is not excused by the Tims doctrine. Case: 16-2215 Document: 31 Filed: 12/12/2017 Page: 5
App. 108
At oral argument, Judge Rogers raised the two hypothetical scenarios in Tims.
The scenarios presented in Tims were hypothesized situations where but for causation was not in doubt. Tims, 449 Mich. at 97. One of the Michigan Supreme
Court’s examples was that “if a guest died in a hotel fire that began because another guest was setting off firecrackers in a room” the second guest’s conduct would not be excused if “another person doing the same thing also set a fire accidentally at the other end of the hotel.” Id. (emphasis added). In the other example, the Michigan
Supreme Court assumed “an infant died because it was [left] in a hot car on a sunny day . . . by two parents rather than one . . . .” Id. (emphasis added). In the first scenario the court assumed that both parents were but for causes of the infant’s death, in the second that both firecrackers were factual causes of the fire. And, the court implied, in both cases the causal chain was not severed from one but for cause by another’s acts which contributed to the injury.
Danielak’s case is not akin to those scenarios, but rather a modified version of the first scenario in which an infant died because she was left in a hot car on a sunny day by only one parent—but the prosecution failed to enter sufficient evidence of which. In that context, the fact that one parent left the infant in the car does not subject both parents to criminal liability, unlike the scenario in which both parents did so. Similarly, Danielak’s case is like a situation where two persons were setting off firecrackers and only one started a fire, but the evidence did not show which one. Case: 16-2215 Document: 31 Filed: 12/12/2017 Page: 6
App. 109
The question in the first scenario is which parent actually left the child in the car and in the second scenario which firecracker actually started the fire, just as the question here is which substance actually caused Irving’s death.
In sum, Tims establishes that where there are multiple but for causes of a victim’s death, more than one may be a proximate cause yielding criminal liability.
However, where the defendant’s conduct was not a but for or sine qua non cause,
Tims does not apply. Since Tims is a doctrine of proximate, not but for causation, the
Michigan Court of Appeals could not have reasonably held that Tims applied here, in a challenge to but for causation—nor did it. People v. Danielak, No. 305491, 2012
WL 6913789, at *7 (Mich. App. Nov. 20, 2012). Simply put, no reasonable jurist could find the prosecution established heroin was a but for cause of Irving’s death.
Accordingly, this Court should find Danielak’s claim of insufficient evidence to prove but for causation is unaffected by Tims and its progeny.1
1 Danielak recognizes this Court has held under 28 U.S.C. § 2254(d)(1) it must assess whether the state court’s decision was objectively unreasonable, even with regards to theories the state court did not rely upon. Davis v. Carpenter, 798 F.3d 468, 475 (6th Cir. 2015). However, it is Danielak’s position that AEDPA deference applies only to the theories relied upon in the state court opinion. Members of the Supreme Court and at least four of this Court’s sister circuits have reasoned that “where the state court’s real reasons can be ascertained, the § 2254(d) analysis can and should be based on the actual ‘arguments or theories [that] supported . . . the state court’s decision.’” Hittson v. Chatman, 135 S. Ct. 2126, 2127-28 (2015) (Ginsburg, J. and Kagan J., concurring in the denial of cert) (alteration in original) (quoting Harington v. Richter, 562 U.S. 86, 102 (2011)); see also Dennis v. Secretary, Pennsylvania Dep’t of Corrections, 834 F.3d 263, 283 (3d Cir. 2016) (en banc) (“[W]hen the state court pens a clear, reasoned opinion, federal habeas courts may not speculate as to Case: 16-2215 Document: 31 Filed: 12/12/2017 Page: 7
App. 110
CONCLUSION
For the reasons set forth above and in her opening brief, reply brief, and oral argument, Mary Danielak requests this Court reverse the district court’s denial of her petition for a writ of habeas corpus.
Respectfully submitted,
/s/ Melissa M. Salinas Melissa M. Salinas (MI – P69388) University of Michigan Law School Federal Appellate Litigation Clinic 363 Legal Research Building, 801 Monroe Street Ann Arbor, MI 48109-1215 Phone: (734) 763-4319 [email protected] Counsel for Mary Danielak
Joshua Rothenberg Law Student on Brief
theories that ‘could have supported’ the state court’s decision.”); Wooley v. Rednour, 702 F.3d 411, 422 (7th Cir. 2012) (“By its terms, Harrington applies ‘[w]here a state court’s decision is unaccompanied by an explanation . . .’” (quoting Harrington, 562 U.S. at 98)); Hall v. Haws, 861 F.3d 977, 991 n.10 (9th Cir. 2017) (“The Harrington gap-filling approaches applies when the state court fails to set forth any reasoning for denying a claim.”); Wilson v. Warden, Georgia Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016) (en banc) (“When the last adjudication on the merits provides a reasoned opinion, federal courts evaluate the opinion,” otherwise the federal courts look to hypothetical reasoning) cert. granted sub nom. Wilson v. Sellers, 137 S. Ct. 1203 (2017). This Court need not reach this issue here because Danielak’s argument prevails under both standards. However, Danielak does not waive the argument that the Tims causation theory or any other theory not relied upon the Michigan Court of Appeals is not accorded AEDPA deference. Case: 16-2215 Document: 31 Filed: 12/12/2017 Page: 8
App. 111
CERTIFICATE OF SERVICE AND COMPLIANCE
I hereby certify:
1. This supplemental brief was filed on December 12, 2017 using the Court’s ECF system, which will send notice of this filing to all counsel of record indicated on the electronic receipt.
2. The above brief has been prepared using Microsoft Word 14-point Times New Roman font and contains 1689 words. It therefore complies with Fed. R. App. P. 32(a)(7)(B).
/s/ Melissa M. Salinas Melissa M. Salinas (MI – P69388) University of Michigan Law School Federal Appellate Litigation Clinic Counsel for Mary Danielak Case: 16-2215 Document: 36 Filed: 04/24/2018 Page: 1
App. 112
CASE NO. 16-2215
IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
MARY DANIELAK, Petitioner-Appellant
–vs–
SHAWN BREWER, Respondent-Appellee
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
TENDERED SECOND SUPPLEMENTAL BRIEF ______
MELISSA M. SALINAS (MI - P69388) University of Michigan Law School Federal Appellate Litigation Clinic 363 Legal Research Building, 801 Monroe Street Ann Arbor, MI 48109-1215 734-763-4319 [email protected] Counsel for Mary Danielak
JOSHUA ROTHENBERG University of Michigan Law School Federal Appellate Litigation Clinic Law Student on Brief Case: 16-2215 Document: 36 Filed: 04/24/2018 Page: 2
App. 113
INTRODUCTION
The United States Supreme Court’s April 17, 2018 decision in Wilson v.
Sellers, No.16–6855, 2018 WL 1800370 (U.S. Apr. 17, 2018) instructs federal courts sitting in habeas to limit Antiterrorism and Effective Death Penalty Act (AEDPA) deference to the reasons in the state court’s opinion. Therefore, this Panel should review de novo all theories not expressed in the Michigan Court of Appeals (MCOA) opinion. Specifically, it should review de novo new theories supporting Danielak’s conviction, including: the Panel’s suggestion that concurrent causation may apply; the State’s claim that evidence of heroin’s half-life and that Cherie Irving was a naïve heroin user provided sufficient evidence that heroin caused her death; the State’s novel theory of conspiratorial liability; and the State’s assertion that the text messages were evidence of the actus reus of aiding and abetting the obstruction of justice-related counts.1
In Mary Danielak’s supplemental briefings, she argued AEDPA deference applied only to the state court’s opinion, but she acknowledged then-current Circuit precedent deferred to even hypothetical reasons supporting the state court’s conclusion. See Davis v. Carpenter, 798 F.3d 468, 475 (6th Cir. 2015). Wilson
1 While this Brief asks the Court to review these arguments de novo, Danielak does not waive the argument that these theories also constitute an unreasonable application of Jackson v. Virginia, 443 U.S. 307 (1979), and therefore relief is warranted even under AEDPA deference. Case: 16-2215 Document: 36 Filed: 04/24/2018 Page: 3
App. 114 removes any ambiguity, making clear that this Court should apply AEDPA deference only to the reasoning in the MCOA’s opinion.
SUPPLEMENTAL ARGUMENT
The Supreme Court’s decision in Wilson directs this Panel to depart from this
Court’s prior erroneous interpretation of Harrington v. Richter, 562 U.S. 86 (2011) and apply AEDPA deference solely to grounds used in the MCOA’s opinion. The
Supreme Court explained, “[d]eciding whether a state court’s decision ‘involved’ an unreasonable application of federal law . . . requires the federal habeas court to ‘train its attention on the particular reasons—both legal and factual—why state courts rejected a state prisoner’s federal claims . . . .’ ” Wilson, 2018 WL 1800370, at *2
(quoting Hittson v. Chatman, 135 S. Ct. 2126, 2126 (2015) (Ginsburg, J., concurring in denial of certiorari)). Indeed, the Supreme Court detailed the “straightforward inquiry” to be performed: “a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable.” Id. The
Supreme Court has “affirmed this approach time and again.” Id. (citing cases using this method).
In light of Wilson, this Court should reverse its practice of applying AEDPA deference to any argument which might support upholding the conviction in reliance on Richter. Richter did not alter the ordinary approach “for in Richter, there was no lower court opinion to look to.” Id. at *6. The Supreme Court bluntly explained, Case: 16-2215 Document: 36 Filed: 04/24/2018 Page: 4
App. 115
“[h]ad we intended Richter’s ‘could have supported’ framework to apply even where there is a reasoned decision by a lower state court, our opinion in Premo [v. Moore,
562 U.S. 115 (2011)] would have looked very different.” Id. at *7. Rather than hypothesizing reasons, in that case the Supreme Court “focused exclusively on the actual reasons given by the lower state court, and . . . deferred to those reasons under
AEDPA.” Id.
When a Supreme Court decision contradicts a decision of this Court, a subsequent panel should depart from even a prior published opinion. “Generally, a prior published decision binds a later panel of this [C]ourt unless it is overturned by the Supreme Court or overruled en banc, but departure is also warranted if an inconsistent ruling of the United States Supreme Court requires modification of the decision.” United States v. Ritchey, 840 F.3d 310, 316 (6th Cir. 2016) (internal citation and quotation omitted). Wilson presents this Court with the necessary “clear directive from the Supreme Court” to depart from its precedent. Brown v. Cassens
Transport Co., 492 F.3d 640, 646 (6th Cir. 2007) vacated on other grounds, 554
U.S. 901 (2008).
This Court has previously applied deference to any hypothetical argument that might have supported the state court’s ultimate conclusion, conflicting with Wilson.
See, e.g., Davis v. Carpenter, 798 F.3d 468, 475 (6th Cir. 2015) (citing Richter, 562
U.S. at 101); Holland v. Rivard, 800 F.3d 224, 235–37 (6th Cir. 2015). However, in Case: 16-2215 Document: 36 Filed: 04/24/2018 Page: 5
App. 116
Davis this Court relied solely on Richter to conclude that AEDPA deference was applied to hypothetical reasoning. See Davis, 798 F.3d at 475; see also Holland, 800
F.3d 235–37 (“[I]n light of the Supreme Court’s decision in Richter [sic] and 28
U.S.C. § 2254(d)(1), AEDPA deference applies to the state court’s decision . . . not its particular reasoning.”)2
Under Wilson, this Court should defer only to the reasons in the MCOA’s opinion. All other theories should be reviewed de novo. This includes but is not limited to: the concurrent causation theory; the State’s claims that Irving being a naïve heroin user and heroin’s half-life provide sufficient evidence of causation; the conspiratorial liability theory; and the use of the text messages as sufficient evidence for the actus reus, as opposed to mens rea, prong of aiding and abetting the crimes related to the removal of Irving’s body.
CONCLUSION
For the reasons set forth above and in her opening brief, reply brief, supplemental brief, and oral argument, Mary Danielak requests this Court reverse the district court’s denial of her petition for a writ of habeas corpus.
Respectfully submitted,
/s/ Melissa M. Salinas Melissa M. Salinas (MI – P69388)
2 In addition to Davis and Holland, the State has pointed out that Perrault v. Smith, 874 F.3d 516, 521 (6th Cir. 2017) also follows this theory. However, that case merely restates the holding in Davis and cites to Richter. Id. Case: 16-2215 Document: 36 Filed: 04/24/2018 Page: 6
App. 117
University of Michigan Law School Federal Appellate Litigation Clinic 363 Legal Research Building, 801 Monroe Street Ann Arbor, MI 48109-1215 Phone: (734) 763-4319 [email protected] Counsel for Mary Danielak
Joshua Rothenberg University of Michigan Law School Federal Appellate Litigation Clinic Law Student on Brief
April 24, 2018
CERTIFICATE OF SERVICE AND COMPLIANCE
I hereby certify:
1. This tendered supplemental brief was filed on April 24, 2018 using the Court’s ECF system, which will send notice of this filing to all counsel of record indicated on the electronic receipt.
2. The above brief has been prepared using Microsoft Word 14-point Times New Roman font and contains 995 words. It therefore complies with Fed. R. App. P. 32(a)(7)(B). /s/ Melissa M. Salinas Melissa M. Salinas (MI – P69388) University of Michigan Law School Federal Appellate Litigation Clinic Counsel for Mary Danielak Case: 16-2215 Document: 40 Filed: 08/21/2018 Page: 1
App. 118
No. 16-2215
In the UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
MARY DANIELAK, Petitioner-Appellant, v. SHAWN BREWER, Respondent-Appellee.
Appeal from the United States District Court Eastern District of Michigan, Southern Division Honorable Robert Cleland
SECOND SUPPLEMENTAL RESPONSE BRIEF
Jerrold Schrotenboer (P33223) Special Assistant Attorney General 312 S. Jackson Street Jackson, MI 49201-2220 (517) 788-4238 [email protected] Case: 16-2215 Document: 40 Filed: 08/21/2018 Page: 2
App. 119
SUPPLEMENTAL ARGUMENT
Although Danielak correctly states that this Court should consider Wilson v.
Sellers, 138 S. Ct. 1188 (2018), she overstates what it stands for. The presumption that the highest state court rested on the lower court’s analysis can be overcome by pointing to alternative arguments (“or equivalent evidence”) showing that the highest court relied on a different ground: “such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.” 138 S. Ct. 1192. The dissent makes clear that the majority opinion did not change all that much:
Even so, some good news can be found here. While the Court agrees to adopt a “look through” presumption, it does so only after making modifications to petitioner’s proposal. The Court tells us that the presumption should count for little in cases “where the lower court state decision is unreasonable” because it is not “likely” that a state supreme court would adopt unreasonable reasoning. . . . In cases like that too, the Court explains, federal courts remain free to sustain state court convictions whenever reasonable “ground[s] for affirmance [are] obvious from the state-court record” or appear in the parties’ submissions or the federal habeas proceeding. . . . Exactly right, and exactly what the law has always demanded. So while the Court takes us on a journey through novel presumptions and rebuttals, it happily returns us in the end very nearly to the place where we began and belonged all along. 138 S. Ct. 1197.
The State stands by its arguments. At every step, it has argued a reasonable ground for why Danielak’s convictions should stand. First, because she delivered a fatal heroin dose to the victim and evidence Case: 16-2215 Document: 40 Filed: 08/21/2018 Page: 3
App. 120 shows that the victim more likely died from a heroin overdose as opposed to a cocaine overdose, the state courts did not unreasonably apply their own laws in finding the evidence legally sufficient for delivery causing death. Second, because she did not call police when she found her friend dead but went to her boyfriend instead and sent text messages to make it look like the victim was still alive, the state courts did not unreasonably apply Michigan law in finding the evidence sufficient for obstructing justice, evidence tampering, and removing a dead body. (In any event, vacating the last three convictions would not do her any good anyway. Each of these three sentences is concurrent to the much longer sentence for delivery causing death.) Case: 16-2215 Document: 40 Filed: 08/21/2018 Page: 4
App. 121
CONCLUSION
ACCORDINGLY, once again, the State asks this Court to affirm.
August 21, 2018 Respectfully submitted,
s/Jerrold Schrotenboer (P33223) Special Assistant Attorney General 312 S. Jackson Street Jackson, MI 49201-2220 (517) 788-4238 [email protected] Case: 16-2215 Document: 40 Filed: 08/21/2018 Page: 5
App. 122
CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was filed on August
21, 2018 using the Court’s ECF system, which will send notice of this filing to all counsel of record indicated on the electronic receipt.
/s/ Brooke Slusher Brooke Slusher Legal Secretary Case: 16-2215 Document: 45-1 Filed: 09/10/2018 Page: 1
App. 123
CASE NO. 16-2215 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
MARY DANIELAK, Petitioner-Appellant,
–vs–
SHAWN BREWER, Respondent-Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
PETITION OF PEITIONER-APPELLANT MARY DANIELAK FOR REHEARING EN BANC
MELISSA M. SALINAS (MI - P69388) University of Michigan Law School Federal Appellate Litigation Clinic 363 Legal Research Building, 801 Monroe Street Ann Arbor, MI 48109-1215 734-763-4319 [email protected] Counsel for Mary Lyn Danielak Case: 16-2215 Document: 45-1 Filed: 09/10/2018 Page: 2
App. 124
Statement In Support Of Rehearing En Banc
Under Federal Rule of Appellate Procedure 35(b)(1)(A) and (B), Mary
Danielak petitions this Court for en banc review of a panel opinion that directly conflicts with the Supreme Court’s recent decision in Wilson v. Sellers, 138 S. Ct.
1188 (2018). Wilson made clear that deference under the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”) applies only to the rationale actually given in the last reasoned state court opinion. In violation of Wilson, the panel followed this Court’s now-abrogated precedent by applying AEDPA deference to a theory first raised by this Court at oral argument. The panel then used the new theory to affirm Danielak’s conviction for aiding and abetting the delivery of a controlled substance causing death.
Even under the double deference of sufficiency of the evidence review under
AEDPA, the panel acknowledged Danielak’s appeal presented a “very close question.” Panel Op. at 13. The improper deference was fatal to Danielak’s appeal and, if not corrected, sets a precedent that will confuse future panels and harm future habeas petitioners whose appeals present similarly close questions. This Court should grant en banc review because the panel’s mistaken use of this Court’s precedent conflicts with a decision of the Supreme Court and involves a question of exceptional importance. Federal Rule of Appellate Procedure 35(b)(1)(A) and (B). Case: 16-2215 Document: 45-1 Filed: 09/10/2018 Page: 3
App. 125
Background
Mary Danielak was convicted of aiding and abetting the delivery of a controlled substance causing death (carrying a sentence of ten to twenty years in prison), aiding and abetting obstruction of justice (three to five years), tampering with evidence (two to four years), and removal of a body without the permission of a medical examiner (one year). Her sentences run concurrently. R. 16, Dist. Ct. Op.,
PageID# 1511.
The prosecution’s case for the delivery charge was based on the theory that the victim, Cherie Irving, died from a heroin overdose after Danielak introduced
Irving to a dealer who sold the two young women heroin. R. 11-12, MCOA Op.,
PageID# 1119. The events surrounding Irving’s purchase and consumption of heroin are not disputed, but whether Irving’s fatal overdose was caused by heroin is.
The autopsy revealed that Irving also had a lethal dose of cocaine in her system when she died. R. 11-12, MCOA Op., PageID# 1119. The prosecution did not argue Danielak had any role in furnishing cocaine to Irving, and the defense argued there was reasonable doubt as to whether cocaine, rather than heroin, caused
Irving’s death. R. 11-9, Trial Tr., PageID# 1001–02. The only witness to testify to but-for causation—the prosecution’s medical expert—stated he could not determine which substance was the cause of death. R. 11-12, MCOA Op., PageID# 1119. Case: 16-2215 Document: 45-1 Filed: 09/10/2018 Page: 4
App. 126
The jury convicted Danielak on all counts. R. 11-10, Trial Tr. & Jury Verdict,
PageID# 1076–77. The MCOA affirmed, holding “a rational jury could find beyond a reasonable doubt that the victim died from a heroin overdose,” and the Michigan
Supreme Court declined to hear Danielak’s case. R. 11-12, MCOA Op., PageID#
1119; R. 11-13, Order Denying Application For Leave To Appeal, PageID# 1214.
After exhausting her state remedies, Danielak filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of
Michigan, which was denied. R. 16, Dist. Ct. Op., PageID# 1508–29. From the beginning, Danielak has argued the state offered insufficient evidence to show that heroin (rather than cocaine) was the but-for cause of Irving’s death beyond a reasonable doubt. R. 16, Dist. Ct. Op., PageID# 1518. Her conviction for aiding and abetting the delivery of a controlled substance causing death, she argued, was therefore invalid. R. 16, Dist. Ct. Op., PageID# 1518.
At oral argument, the panel raised a theory of causation that had not been briefed by either party or relied upon by the Michigan courts. The panel suggested
Michigan had a doctrine of concurrent causation under People v. Tims that obviated the prosecution’s need to prove heroin had actually caused Irving’s death. 534
N.W.2d 675 (Mich. 1995). The panel recognized this theory was new to the case and that subsequent questions on concurrent causation “may be difficult, because it’s not exactly what the Michigan Court reasoned.” Oral Argument at 22:48, Danielak v. Case: 16-2215 Document: 45-1 Filed: 09/10/2018 Page: 5
App. 127
Brewer, No. 16-2215 (Nov. 30, 2017), http://www.opn.ca6.uscourts.gov/ internet/court_audio/aud2.php?link=audio/11-30-2017%20-%20Thursday/16-2215
%20Mary%20Danielak%20v%20Shawn%20Brewer.mp3&name=16-2215%20
Mary%20Danielak%20v%20Shawn%20Brewer; Panel Op. at 10 ( “presume[ing]” the MCOA “was aware of Tims’ teaching”)1.
Following oral argument, the panel accepted supplemental briefing challenging the suggested application of Tims. Danielak argued Tims was inapplicable because it discussed a proximate cause doctrine, not a doctrine of but- for causation. See generally Suppl. Br., ECF No. 31; Suppl. Reply Br., ECF No. 33.
Danielak also informed the panel that several circuits applied AEDPA deference only to the rationale expressed in the state court opinion. While acknowledging this
Court’s decisions to the contrary, Danielak notified the panel that the Supreme Court was considering this very issue in Wilson. Suppl. Br. at 6–7 n.1, ECF No. 31.
In April, the panel accepted supplemental briefing detailing Wilson’s holding that AEDPA deference does not apply to theories beyond those in the state court’s opinion. Order Granting Mot. to File Suppl. Br., ECF No. 37. Danielak argued the panel was empowered and required to depart from contrary law of the Circuit.
Second Suppl. Br. at 1–6, ECF No. 36.
1 ECF citations refer to the appellate docket of the instant case, Sixth Circuit Case No. 16-2215. Case: 16-2215 Document: 45-1 Filed: 09/10/2018 Page: 6
App. 128
The panel affirmed the district court’s denial of habeas corpus relief by relying on its new Tims concurrent-causation theory. Panel Op. at 9–10. Although it viewed the causation issue as “a very close question,” Panel Op. at 13, the panel applied
AEDPA deference to the Tims theory without reference to Danielak’s second supplemental brief or Wilson. Panel Op. at 9–10.
Argument
The panel erred in applying AEDPA deference to a line of reasoning not relied on by the MCOA. The Supreme Court’s decision in Wilson details the
“straightforward inquiry” to be performed where “the last state court to decide a prisoner’s federal claim explains its decision on the merits in a reasoned opinion.”
138 S. Ct. at 1192. In such cases, including this one, “a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable.” Id. Federal courts are therefore directed to “‘train [their] attention on the particular reasons—both legal and factual—why state courts rejected a state prisoner’s federal claims’ . . . ‘and to give appropriate deference to that decision.’” Id. at 1191–92 (quoting Hittson v. Chatman, 135 S. Ct. 2126, 2126
(2015) (Ginsburg, J., concurring in denial of certiorari) and Harrington v. Richter,
562 U.S. 86, 101–102 (2011)). The Supreme Court has “affirmed this approach time and again.” Wilson, 138 S. Ct. at 1192. Case: 16-2215 Document: 45-1 Filed: 09/10/2018 Page: 7
App. 129
Here, the panel did not “train its attention on the particular reasons,” given by the MCOA. Instead, it offered a theory of its own about how the state court could have decided the case.
In the MCOA opinion, the court acknowledged that the state’s medical examiner “could not say which drug killed [Irving],” and that the examiner merely opined that Irving’s death “was more consistent with a heroin overdose.” R. 11-12,
MCOA Op., PageID# 1119. Despite this lack of certainty, the court held “a rational jury could find beyond a reasonable doubt that the victim died from a heroin overdose.” R. 11-12, MCOA Op., PageID# 1119.
The MCOA opinion did not consider the possible existence of joint mutual causes. And notably, the trial judge recognized there was no testimony suggesting a synergistic effect between cocaine and heroin caused Irving’s death. R. 11-10,
Trial Tr., PageID# 1073.
The panel opinion, in contrast, introduced a theory of joint causation never used by the state court. It “presume[d] the Michigan Court of Appeals was aware of
Tims’ teaching that, where there are two independent culpable causes it is sufficient to prove that the actions of petitioner . . . were a joint mutual cause.” Panel Op. at
10 (citing Tims, 534 N.W.2d at 681–82). Though neither party nor the MCOA relied on the Tims theory, the panel affirmed after applying Tims’ theory of joint-mutual- proximate-causation to the question of but-for causation. Panel Op. at 10. Case: 16-2215 Document: 45-1 Filed: 09/10/2018 Page: 8
App. 130
Despite its reliance on a new theory not considered by the state court, the panel concluded: “[i]n light of the double deference barrier . . . petitioner has failed to meet either of the factors required to merit habeas relief under 28 U.S.C. § 2254(d).”
Panel Op. at 10 (emphasis added).
Prior to Wilson, this Court interpreted Harrison v. Richter, 562 U.S. 86
(2011), and held that it would apply AEDPA deference to any theory which “could have supported” the state court’s rejection of the defendant’s argument. Davis, 798
F.3d at 475 (quoting Richter, 562 U.S. at 102) (italicization in original). While this
Court’s precedent may have been a fair interpretation of Richter prior to Wilson’s clarification, it is now clearly abrogated.
Wilson made clear that Richter’s “could have supported” framework was not intended to apply “where there is a reasoned decision by a lower state court.” 138 S.
Ct. at 1195 (“In our view, however, Richter does not control here . . . [because] in
Richter, there was no lower court opinion to look to. . . . Had we intended Richter’s
“could have supported” framework to apply even where there is a reasoned decision by a lower state court, our opinion in Premo2 would have looked very different.”).
When a federal court sitting in habeas applies a theory not relied upon in the last
2 The Court notes “We decided . . . Premo[] on the same day we decided Richter. And in our opinion in Richter we referred to Premo.” In Premo, “[w]e did not even cite the reviewing state court’s summary affirmance. Instead, we focused exclusively on the actual reasons given by the lower state court, and we deferred to those reasons under AEDPA.” Wilson, 135 S. Ct. at 1195–96. Case: 16-2215 Document: 45-1 Filed: 09/10/2018 Page: 9
App. 131 reasoned state court opinion, Wilson precludes the court from applying AEDPA deference to the theory.
The application of AEDPA deference to reasons outside of the MCOA’s opinion was therefore erroneous. The level of deference is of paramount importance.
Under the double deference of AEDPA and Jackson v. Virginia, 443 U.S. 307, 319
(1979), “a habeas petitioner ‘who challenges the sufficiency of the evidence to sustain his conviction faces a nearly insurmountable hurdle.’” Salters v. Burt, No.
17-2426, 2018 WL 2341746, at *2 (6th Cir. May 23, 2018) (quoting Davis v. Lafler,
658 F.3d 525, 534 (6th Cir. 2011) (en banc)). In many cases, as in this one, AEDPA deference turns what would be a victory for the petitioner into a close call won by the State. If this Court does not correct the panel’s error, improper deference will harm future habeas petitioners; confuse future panels and litigants; and place this
Court in conflict with Supreme Court authority.
The panel did not accept and apply Wilson as supervening authority and instead applied AEDPA deference in accordance with Davis and Holland. Even under this incorrect and doubly-deferential standard, the panel found Danielak’s claim “presented a very close question.” Panel Op. at 13. This Court should rehear this case en banc to correct the panel’s misapplication of law, and recognize
Danielak is entitled to de novo review of the joint-concurrent-causation theory. Case: 16-2215 Document: 45-1 Filed: 09/10/2018 Page: 10
App. 132
Conclusion
Mary Danielak respectfully requests rehearing en banc.
Respectfully submitted,
/s/ Melissa M. Salinas Melissa M. Salinas (MI – P69388) University of Michigan Law School Federal Appellate Litigation Clinic 363 Legal Research Building, 801 Monroe Street Ann Arbor, MI 48109-1215 Phone: (734) 763-4319 [email protected] Counsel for Mary Danielak
September 7, 2018
CERTIFICATE OF COMPLIANCE AND SERVICE
I hereby certify that this Petition contains 1910 words and therefore complies with Sixth Circuit Rule 35(b)(2)(A). It was filed on September 7, 2018 using the Court’s ECF system, which will send notice of this filing to all counsel of record indicated on the electronic receipt.
/s/ Melissa M. Salinas Melissa M. Salinas (MI – P69388) University of Michigan Law School Federal Appellate Litigation Clinic Counsel for Mary Danielak App. 133
Excerpt of the Court of Appeals for the Sixth Circuit November 30, 2017, Oral Argument
***
Judge Rodgers: I’d like to ask you a question which I think may difficult because it’s not exactly what the Michigan court reasoned. But doesn’t your argument depend on the idea that under MI law if you have two concurrent criminal causes each one can keep the other one from being the cause?
Counsel1: Yes, your honor we do and for that we’d cite People v. Schaefer, which is a MI Supreme Court case.
***
Judge Rogers: My clerk came up with a case, that may be distinguishable, I don’t know, but in it, the suggestion is that, this is People v. Tims, that you can have concurrent criminal causation and that’s acceptable under MI law.
They give us an example: if an infant died because it was locked in a hot car on a sunny day. And the child was left there by two parents rather than one, neither could be found criminally responsible. And they say they reject that. So, if the law were what that seems to suggest that would undermine your argument then wouldn’t it?
Counsel: No, your honor.
Judge Rogers: Why not?
Counsel: I believe Tims is about concurrent causes in the sense of synthetic causes. That both parents could have done something and failed to do it. So, both parents bear the responsibility. The equivalent here would be if there were testimony that heroin and cocaine…
Judge Rogers: But heroin could’ve killed him and caused by one criminal. And cocaine is caused by another criminal. Why isn’t that the same?
They give us another example: if a guest died in a hotel fire because another guest set off firecrackers would that guest be exonerated by the fact that some other hotel guest somewhere else set a fire, and either fire would’ve burnt the hotel down.
1 Counsel for the Appellant Mary Danielak App. 134
Why isn’t that the same as one person provided cocaine which is presumably illegal? Another person provided heroin and that’s presumably illegal. And they’re concurrent causes. Is there a difference there?
***
Oral Argument at 22:48, Danielak v. Brewer, No. 16-2215, 2018 WL 4049076 (6th Cir. Nov. 30, 2017), http://www.opn.ca6.uscourts.gov/internet/court_audio/aud2.php?link=audio/11-30- 2017%20-%20Thursday/16- 2215%20Mary%20Danielak%20v%20Shawn%20Brewer.mp3&name=16- 2215%20Mary%20Danielak%20v%20Shawn%20Brewer