Mitchell v. Jones (622 F. Supp. 2d 593, 2008)

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

WENDELL A. MILES, Senior District Judge.

On September 2, 2008, United States Magistrate Judge Hugh W. Brenneman, Jr. issued a Report and Recommendation (“R & R”) recommending that Robert Cleveland Mitchell Ill’s petition for writ of habeas corpus be denied. Petitioner has filed objections to the R & R. The court, having reviewed the R & R filed by the United States Magistrate Judge in this action as well as the amended petition, the respondents’ answer, and the relevant portions of the file, agrees with the recommended disposition contained in the R & R.

The bulk of petitioner’s objections is directed to the Magistrate Judge’s analysis of petitioner’s claim that the prosecution’s presentation of a tape recording of a 911 call made by the victim’s daughter-in-law violated his constitutional rights. Petitioner argues that the Magistrate Judge erred in analyzing this due process claim as one based on “false testimony” as opposed to “false evidence.” According to petitioner, his claim has nothing to do with supposedly perjured testimony by the victim and her daughter-in-law, but instead involves the presentation of the 911 tape, which petitioner argues was “false and fabricated.” Under the circumstances, petitioner argues, the Magistrate Judge applied the wrong analysis in addressing this claim.

Without question, “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (citations omitted). “The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Id. Here, the Magistrate Judge applied the proper analysis to petitioner’s claim, and reached a correct result.

To the extent that petitioner contends that the 911 tape was somehow staged or altered, he has not pointed to any evidence indicating that the tape was not authentic. It is noted that at trial, defense counsel did not object to the prosecution’s playing of the 911 tape, which was presented during the testimony of the 911 dispatcher. Transcript of Jury Trial, Yol. Ill, Feb. 21, 2002 (docket no. 30) at 55-57. At one point during the cross-examination of the victim’s daughter-in-law, Nicole Sparks, who testified immediately before the dispatcher, defense counsel even indicated that he himself wanted to play the tape for the jury. Id. at 53. In addition, although Sparks testified that she did not remember everything she said to the dispatcher during the 911 call, id. at 52, she also repeatedly testified that before she made the call, her mother-in-law had identified petitioner as the person who had injured her. Id. at 30, 45. Sparks also testified that she told the dispatcher it was petitioner who had beaten her mother-in-law. Id. at 33. Because petitioner has failed to demonstrate that the tape of the 911 call was anything other than what it purported to be, i.e., an actual recording of the call made by Sparks, the Magistrate Judge was correct in concluding that petitioner had entirely failed to demonstrate that the prosecution’s use of the tape violated petitioner’s right to due process.

The remainder of petitioner’s objections to the R & R are similarly without merit. The court takes the occasion here to mention only one of these additional objections: that the court never ruled on petitioner’s motion for evidentiary hearing and appointment of counsel. On April 25, 2007, petitioner filed a “Motion for Federal Evidentiary Hearing and Appointment of Counsel” (docket no. 54), seeking a hearing on the issue of ineffective assistance of counsel. On May 4, 2007, the Magistrate Judge entered an order denying petitioner’s request for appointment of counsel (docket no. 55). In his order, the Magistrate Judge also indicated that the court could appoint counsel at a future time if an evidentiary hearing was necessary “or if other circumstances warrant.” Therefore, although the order did not expressly deny petitioner’s motion for evidentiary hearing, the denial was implied.

The Magistrate Judge did not err in failing to grant petitioner an evidentiary hearing. The Antiterrorism and Effective Death Penalty Act (“AEDPA”) has greatly curtailed federal habeas court discretion to conduct evidentiary hearings. “AEDPA generally prohibits federal habeas courts from granting evidentiary hearings when applicants have failed to develop the factual bases for their claims in state courts.” Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1939 n. 1, 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(2)). “If a habeas petitioner has ‘failed to develop the factual basis of a claim in State court proceedings,’ he can only get an evidentiary hearing in federal district court on that claim in extremely narrow circumstances.” Alley v. Bell, 307 F.3d 380, 389 (6th Cir. 2002). None of these circumstances are applicable here. See 28 U.S.C. § 2254(e)(2).

Assuming that petitioner could avoid the 28 U.S.C. § 2254(e)(2) bar, the court nonetheless concludes that petitioner has not alleged sufficient facts to warrant an evidentiary hearing on the issue of ineffective assistance of counsel. The Supreme Court recently explained that, “[i]n deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro, 127 S.Ct. at 1940. Here, petitioner sought an evidentiary hearing on the issue of counsel’s performance, namely, counsel’s action (or inaction) in failing to provide certain documents to the prosecution. However, the Magistrate Judge properly disposed of petitioner’s ineffective-assistance claim on the second prong of the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), concluding that petitioner could not demonstrate the he was prejudiced by counsel’s alleged errors. Under the circumstances, an evidentiary hearing directed to the first prong of the Strickland test — counsel's performance— would not enable petitioner to succeed on his claim even if he could satisfy the requirements of section 2254(e)(2).

The court adopts the Magistrate Judge’s R & R as the decision of the court. Judgment will be entered accordingly.

REPORT AND RECOMMENDATION

HUGH W. BRENNEMAN, Jr., United States Magistrate Judge.

This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a Calhoun County jury of one count each of kidnaping, Mich. Comp. Laws § 750.349, assault with intent to commit great bodily harm less than murder, Mich. Comp. Laws § 750.84, assault with a dangerous weapon, Mich. Comp.- Laws § 750.82, and felon in possession of a firearm, Mich. Comp. Laws § 750.224Í, together with two counts of felony firearm, Mich. Comp. Laws § 750.227b. On March 14, 2002, he was sentenced as a fourth habitual offender, Mich. Comp. Laws § 750.769.12, to respective terms of imprisonment of 35 to 60 years, 8 to 20 years, 4 to 15 years, 4 to 10 years and 2 years. In his amended pro se petition, Petitioner raises five grounds for relief, as follows:

I.PETITIONER ROBERT C. MITCHELL’S CONSTITUTIONALLY IMPERMISSIBLE CONVICTIONS AND SENTENCES MUST BE REVERSED AND VACATED FOR NEW TRIAL SINCE HE WAS DELIBERATELY AND INTENTIONALLY DEPRIVED OF HIS FUNDAMENTALLY PROTECTED SIXTH AMENDMENT RIGHT TO A FAIR TRIAL BEFORE A FAIR AND IMPARTIAL TRIBUNAL WHERE THE GOVERNMENT KNOWINGLY USED MATERIAL FABRICATED EVIDENCE DIRECTLY BEARING UPON THE CREDIBILITY AND RELIABL[ITY] OF ITS[] TWO KEY WITNESSES IN ORDER TO OBTAIN A TAINTED CONVICTION, AND, ALTHOUGH THE GOVERNMENT KNEW OR SHOULD HAVE KNOWN OF THE FALSITY, THEY DID ABSOLUTELY NOTHING TO CORRECT THE FALSE IMPRESSION OF FACTS LEFT WITH THE JURY, THEREBY VIOLATING PETITIONER’S CONSTITUTIONAL RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENT[S], U.S.C.A. CONST, AMS VI, XIV.

II. THE TRIAL COURT COMMITTED AN OUTCOME DETERMINATIVE ABUSE OF DISCRETION AND VIOLATED PETITIONER’S SIXTH AND FOURTEENTH AMENDMENT DUE PROCESS AND CONFRONTATION CLAUSE RIGHTS BY EXCLUDING, AS AN EXCESSIVE REMEDY FOR TRIAL COUNSEL’S DISCOVERY VIOLATIONS, SUBSTANTIAL EVIDENCE BEARING UPON THE COMPLAINANT’S PROPENSITY TO OUTRIGHT LIE, BIAS AND VINDICTIVENESS, THEREBY DENYING PETITIONER’S VESTED CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND TO “EFFECTIVELY” PARTICIPATE IN THE ADVERSARIAL TESTING PROCESS VIOLATIVE OF U.S.C.A. CONST, AMS VI, xrv.

III. THE TRIAL COURT COMMITTED AN OUTCOME DETERMINATIVE ABUSE OF DISCRETION AND VIOLATED PETITIONER MITCHELL’S FUNDAMENTALLY PROTECTED DUE PROCESS AND CONFRONTATION CLAUSE RIGHTS TO “EFFECTIVELY” CROSS-EXAMINE THE COMPLAINANT BY EXCLUDING MATERIAL EVIDENCE OF THE COMPLAIN[AN]T’S MENTAL HEALTH DISORDER OFFERED TO ESTABLISH WHY SHE WOULD FALSELY ACCUSE PETITIONER, THEREBY DEPRIVING HIM OF A FAIR TRIAL VIOLATIVE OF U.S.C.A. CONST, AMS VI, XIV.

IV. DEFENSE COUNSEL’S DEFICIENT PRETRIAL PREPARATION PERFORMANCE VIOLATED PETITIONER MITCHELL’S CONSTITUTIONALLY PROTECTED SIXTH AMENDMENT RIGHT TO A FAIR AND IMPARTIAL TRIAL, WHERE COUNSEL FAILED TO DISCLOSE TO THE GOVERNMENT CRITICAL DEFENSE DISCOVERY MATERIALS BEARING UPON THE COMPLAINANT’S BIAS, PREJUDICE, VINDICTIVENESS, AND PROPENSITY TO PURPOSEFULLY AND WILLINGLY LIE UNDER OATH AND MALICIOUSLY FABRICATE EVIDENCE, RESULTING IN THE TRIAL COURT’S EXCESSIVE DISCOVERY SANCTION EXCLUDING THE DEFENSE EVIDENCE, THEREBY NOT ONLY UNDERMINING CONFIDENCE IN THE RESULTS OF THE TRIAL, BUT DENYING PETITIONER THE “EFFECTIVE” ASSISTANCE OF COUNSEL, U.S.C.A. CONST, AMS VI, XIV.

V. DEFENSE COUNSEL’S DEFICIENT PRETRIAL PREPARATION PERFORMANCE VIOLATED PETITIONER MITCHELL’S CONSTITUTIONALLY PROTECTED SIXTH AMENDMENT RIGHT TO A FAIR AND IMPARTIAL TRIAL, WHERE COUNSEL FAILED TO DISCLOSE TO THE GOVERNMENT CRITICAL DEFENSE DISCOVERY MATERIALS BEARING UPON THE COMPLAINANT’S BIAS, PREJUDICE, VINDICTIVENESS, AND PROPENSITY TO PURPOSEFULLY AND WILLINGLY LIE UNDER OATH AND MALICIOUSLY FABRICATE EVIDENCE, RESULTING IN THE TRIAL COURT’S EXCESSIVE DISCOVERY SANCTION EXCLUDING THE DEFENSE EVIDENCE, THEREBY NOT ONLY UNDERMINING CONFIDENCE IN THE RESULTS OF THE TRIAL, BUT DENYING PETITIONER THE “EFFECTIVE” ASSISTANCE OF COUNSEL, U.S.C.A. CONST, AMS VI, XVI.

(Am. Pet. ¶ 3.) Respondent filed an answer to the petition (docket # 18) stating that the grounds should be denied because they are without merit. Upon review and applying the AEDPA standards, I find that all of Petitioner’s grounds lack merit. Accordingly, I recommend that the petition be denied.

Procedural History

A. Trial Court Proceedings

The state prosecution arose from an incident involving Deborah Gordon, with whom Petitioner had been romantically involved. Petitioner tied Gordon up, restrained her for nearly eight hours, physically assaulted her and threatened her with her own gun. Petitioner’s defense was that Gordon fabricated the incident because she was vindictive and angry at the fact that Petitioner had not broken off his engagement with his girlfriend. Petitioner also contended that he was an activist paralegal in Battle Creek who was involved in various lawsuits against the City of Battle Creek and that his prosecution was based on a conspiracy among city police and other officials designed to end Petitioner’s litigation efforts.

Petitioner was charged with one count each of kidnaping, assault with intent to commit great bodily harm less than murder, felonious assault and being a felon in possession of a firearm, together with two counts of felony firearm. Following a preliminary examination on May 21, 2001, he was bound over on all charges. A supplemental information was filed charging petitioner as a habitual offender, fourth offense. Petitioner was tried before a jury beginning February 19, 2002, and concluding on March 1, 2002.

Deborah Lynn Gordon testified that she met Petitioner in August 1999, and they became sexually involved in October 1999. (Tr. II at 10-11, 13.) Petitioner informed Gordon early in their relationship that he was living with another woman, Grace Cowens. (Tr. II at 12.) The sexual encounters between Gordon and Petitioner nearly always occurred at Gordon’s home, and the relationship was secret from his friends and family. (Tr. II at 13-14.) Gordon testified that, since the time she complained of Petitioner’s criminal actions, she had received continuous threatening and obscene telephone calls about her allegations. (Tr. II at 16.) As a result of those calls, Gordon moved out of state for nearly nine months. (Tr. II at 16.)

When Gordon met Petitioner, he did not have a steady job and did not own a vehicle. (Tr. II at 17.) He sometimes drove either Grace Cowen’s car or Mary Gault’s car. (Tr. II at 17.) Petitioner usually came to Gordon’s house between 8:30 and 9:30 a.m. and left by 2:00 or 2:30 p.m. because those were the hours Cowen was teaching school. (Tr. II at 18.) At the end of June 2000, Gordon decided to tell Cowen of her relationship with Petitioner. She did so because Petitioner had promised to leave Cowen but had not done so, and Gordon was tired of the lies. (Tr. II at 19.) She wrote two letters to Cowen, describing her relationship and becoming explicit about her sexual relationship with Petitioner. (Tr. II at 19.) On Monday, July 10, 2000, Petitioner came to Gordon’s house to tell her he did not like the fact that she had written the letter to Cowen. After discussion, the two made love, and Petitioner spent the night. (Tr. II at 20-21.) Petitioner never again mentioned Gordon’s letter to Cowen. (Tr. II at 35.) Petitioner at some point moved three suitcases of clothing and a box of paperwork to Gordon’s home. (Tr. II at 21.) On the morning of July 11, Gordon had a doctor appointment and Petitioner was scheduled to have a meeting with community activists. (Tr. II at 22.) She returned from the doctor’s office at about noon, and Petitioner also eventually returned home. At about 11:30 that night, at Petitioner’s request, Gordon called Grace Cowen to try to explain that the letters were a lie, but Cowen did not want to talk and cursed Gordon. (Tr. II at 23-24.) Shortly thereafter, the police came to the house. When the police arrived, Petitioner hid. Gordon promised not to call Cowen again. (Tr. II at 23-25.) Gordon and Petitioner made love again. (Tr. II at 24.)

On the morning of July 12, Gordon picked up her son at about 7:45 to take him to the Detroit airport. (Tr. II at 25-26.) Shortly before noon, she stopped at her doctor’s office to pick up new medication and then went to the Rite Aid. (Tr. II at 26.) She returned home at about 1:20 p.m. From a conversation with Petitioner, she knew that Petitioner planned to have lunch with Cowen and that he had a meeting with an attorney in the afternoon. (Tr. II at 27.) As Gordon drove from the Rite Aid toward home, she saw Cowen’s vehicle parked in a restaurant parking lot. (Tr. II at 28.) She did not know if Petitioner was at the restaurant, but she continued driving to Cowen’s house. She told a man sitting on Cowen’s porch, “If Mr. Mitchell should happen to come back would you please have him come to my home and pick up his stuff.” (Tr. II at 29.) Gordon then drove home. (Tr. II at 30.) After arriving home, she called Grace Cowen’s house twice. (Tr. II at 30.) At approximately 2:00 or 2:15 p.m., a black woman driving a blue car, whom Gordon now knows to be Peggy Dean, dropped Petitioner off at Gordon’s home. (Tr. II at 31-32.) Gordon testified that, after arriving, Petitioner told Gordon about his lunch with Cowen and used the phone a few times. At about 3:30 or 4:00 p.m., Nicole Sparks (Gordon’s daughter-in-law) and Sparks’ father, Ricky Horton, stopped at the house and they sat talking at the table. Ricky made a call to the Veteran’s Administration Hospital at about 4:30 p.m. (Tr. II at 33.) Petitioner told Nicky that he and Gordon were going to the Wooten’s home in Marshall, and Nicky invited Petitioner and Gordon to stop at her house in Marshall if they had a chance. (Tr. II at 34.)

Petitioner and Gordon left for Marshall at approximately 5:00 or 5:30 p.m. They stayed at the Wooten’s house not more than ten minutes. (Tr. II at 35.) Petitioner gave Sue Wooten some paperwork, and Gordon and Petitioner returned home. (Tr. II at 36.) Gordon prepared dinner and they ate. At about 7:00 or 7:30 p.m., Gordon told Petitioner she was going to take a shower because she was not feeling well. (Tr. II at 36-37.) She showered and laid down in her daughter’s room because Petitioner was on the telephone downstairs. She awoke and went downstairs at approximately 10:30 p.m. She found Petitioner sitting at the kitchen table with his head in his hands. (Tr. II at 37, 53.) When he saw Gordon, Petitioner told her that they needed to talk. (Tr. II at 37.) Petitioner told Gordon that Cowen was not going to take him back and that he loved Cowen. Gordon told Petitioner that she did not want to hear it, as it was between them. Petitioner stated, “I didn’t know who I was fuckin with, I didn’t know who her family was or what they would do to me.” (Tr. II at 37.) Gordon had the phone in her hand. (Tr. II at 38.) Petitioner then slammed his hands on the table and said he was going to sleep somewhere else. He asked to use her phone, and she told him to use the pay phone. (Tr. II at 38.) She backed out of the kitchen to the dining room with the phone and told him that he could stay downstairs and she would sleep upstairs. (Tr. II at 38.) She started to dial 911 and told Petitioner that he was scaring her. (Tr. II at 38.) Petitioner took the phone from her hands, hit her across the face, and told her, “He would call 911 after he got done killing me.” (Tr. II at 38.) Gordon asked him to stop, but he told her, “No, bitch you took away my car, you took away my house, you took away the money, anything I had because Grace had you taking it away from me now, and you’re going to pay for it.” (Tr. II at 39.) Gordon testified that she next remembered sitting on the couch with Petitioner straddling her and hitting her in the face. (Tr. II at 39-40.) He then began to strangle her, and she remembered reaching up with her hand to scratch him so that, if he killed her, there would be some DNA. She was not sure if she succeeded in scratching him. (Tr. II at 40.) Gordon fought Petitioner and tried to pry his fingers off her throat. (Tr. II at 41.) He was only using one hand at that time. (Tr. II at 42.) She became lightheaded and dizzy. (Tr. II at 42.) Gordon testified that she believed she lost consciousness at that time. (Tr. II at 42.) Petitioner released his grip and stood up, and Gordon attempted to kick him in the groin. (Tr. II at 43, 211.) Gordon repeatedly asked Petitioner to stop, telling him that she had had enough. (Tr. II at 43.) He came back at her again and began to choke her again, this time with two hands. (Tr. II at 43-44.) Gordon passed out. When she came to, she was lying on her stomach about four feet from the sofa in front of the television. (Tr. II at 44, 47.) Petitioner was trying to stuff the batting from a torn pillow into her mouth. (Tr. II at 45.) Gordon kept pulling the batting from her mouth, and Petitioner eventually stopped trying to put it back into her mouth. (Tr. II at 46) As she struggled, he said, ‘You fuckin bitch you’re not going to lay still I’m going to have to beat your ass some more.” When Gordon would not lie still, Petitioner lifted her head by her hair and smashed her face into the floor. (Tr. II at 45, 47.) Gordon lost consciousness and she does not remember anything else until she woke up again on the couch. (Tr. II at 47-48.)

Once Gordon was lying on the couch, Petitioner removed an extension cord from behind the loveseat. (Tr. II at 48.) He then tied Gordon’s arms tightly over her head and attached the cord to the stair doorknobs. (Tr. II at 49-51.) Gordon attempted to loosen the cord but was unable to do so. (Tr. II at 51.) Petitioner then tied Gordon’s feet to the bottom of the couch legs. (Tr. II at 52.) Petitioner tore a sheet into strips and gagged Gordon. (Tr. II at 52.) She remained tied up until approximately 6:00 a.m. the following day. Petitioner came back into the room about five or six times that night. At some point, Petitioner untied the gag and asked Gordon where her .22 caliber handgun was, intending to kill himself. (Tr. II at 53-55.) Gordon lied at first, telling Petitioner the gun was upstairs in her daughter’s bedroom. As he went toward the stair door, Petitioner said, “If you’re lying you fuckin bitch I’m going to beat you till you’re dead.” She replied by telling him the correct location: the downstairs dresser drawer of Gordon’s bedroom, left hand top corner. (Tr. II at 55.) Petitioner left and returned holding her gun and some shells. (Tr. II at 55.) At Petitioner’s demand, Gordon told him how to load the handgun. (Tr. II at 56.) Petitioner put the gun to Gordon’s right temple and asked her if she had ever wondered what it would be like to be shot in the head. (Tr. II at 56-57.) After scaring her, Petitioner took the gun away from her head. Over the next period of time put the gun into his own mouth a couple of times saying, “He ought to shoot his own self.” (Tr. II at 57.) During the time between getting the gun and eventually leaving Gordon’s house, Petitioner only struck Gordon one more time, in the face. (Tr. II at 58.) She eventually asked Petitioner for a glass of water and to be released to use the bathroom. She did not recall the order of her requests. (Tr. II at 58-59.) Although Petitioner told her she did not need a glass of water, he brought her one. (Tr. II at 59.) He moved her gag slightly and then just dumped the water in her face. (Tr. II at 59.) He did not, however, allow her to go to the bathroom, telling her to urinate on herself, which she eventually did. (Tr. II at 60-61.) At approximately 5:30 and 5:45 a.m., Petitioner told Gordon that he was going to call Cowen again and that, when he got back, he would untie Gordon. She asked for his promise, which he gave her. (Tr. II at 63.)

When Petitioner returned about 15 minutes later, he untied Gordon. (Tr. II at 64.) Gordon’s hands were swollen and bruised, and Petitioner kissed her hands and told her not to worry, the swelling would go down. (Tr. II at 64.) Petitioner’s demeanor was calmer, and, after lying on the couch for awhile, Gordon asked if she could get a shower at about 6:30 a.m. Petitioner agreed. Petitioner followed Gordon to the bathroom, and she told him that her daughter-in-law Nicole was supposed to come to see her that day, but that she had better not because of the way Gordon looked. (Tr. II at 65.) Petitioner brought the phone to Gordon in the bathroom and she called Nicole. (Tr. II at 65.) Gordon then took a quick shower, putting her nightgown and panties in the laundry basket under the sink and then putting on a fresh nightgown and panties. (Tr. II at 66.) Gordon testified that she usually was not up until several hours later, and her intention was to tip Nicole off that something was wrong. (Tr. II at 71-72.) After she got out of the shower, Gordon looked in the mirror. She saw many bruises, swollen eyes, busted lips, strangulation marks on her throat, scratches and welts on her knees and ankles. (Tr. II at 67.) She then went into the kitchen, where Petitioner was standing. (Tr. II at 66-67.) Petitioner hugged Gordon and told her that he was sorry and he loved her, but she should listen to what he had to say. (Tr. II at 67.) He told her that he had prepared a spot for her on the sofa and that he would take care of her for the rest of the day. (Tr. II at 67.) She went and sat on the sofa. (Tr. II at 68.)

At approximately 7:30 a.m., Jerry Ball called from the Battle Creek Fire Department, and Petitioner let Gordon take the call. (Tr. II at 65, 69.) Ball inquired if Gordon had made a call to his home or to the fire department, and she told Ball that she had not, but that Robert Mitchell uses her phone. He asked if Petitioner was at the house, and she said, “No.” (Tr. II at 69.) After she hung up, the phone rang again, and Petitioner took the call, which again was from Ball. Petitioner told Ball that “there was a problem going on and he would meet with them at 9 o’clock.” (Tr. II at 69.) Petitioner called and talked to Ball again somewhat later. (Tr. II at 71.) At about 8:30 a.m., Gordon told Petitioner that she would like a popsicle or something that was cold. (Tr. II at 68, 251.) He told her that he would go get something if she came with him, but she declined, saying that people would see her face and know what happened. She encouraged him to take the phones and take the car keys, knowing that she had a spare set of keys to the other car in the back room. (Tr. II at 68.) Petitioner took both telephones and the keys to all the vehicles and left the house at about 8:45 a.m. (Tr. II at 73-74, 255.) As soon as Petitioner reached the yield sign a short distance from the house, Gordon went to the laundry room to get the spare set of keys. She was in her other car by the time he reached the second block, and she headed toward Marshall. (Tr. II at 75.)

When Gordon reached her daughter-in-law’s house in Marshall, her daughter-in-law, Nicky Sparks, Gordon’s two grandsons and Nicky’s father, Ricky, were all present. (Tr. II at 75.) Gordon had been terrified during the drive, thinking that Petitioner was behind her. Nicky made some phone calls and got her ice. (Tr. II at 76.) By that time, a Michigan State Police trooper arrived. (Tr. II at 76.) Other officers and an ambulance came to the house. The ambulance drivers told Gordon that she had a concussion and needed to go to the hospital. (Tr. II at 257.) Gordon declined ambulance transport to the hospital, and Nicky subsequently drove her there. (Tr. II at 76, 257-58.) She briefly returned to her own home at 2:30 or 3:00 p.m., in order to pick up some clothing. (Tr. II at 77.) When she arrived, the house was full of police officers. (Tr. II at 77.) Gordon then went back to the home of her son, Eric, and his wife, Nicky, where she stayed until her daughter could fly home from Utah. (Tr. II at 77, 200.) She then stayed in a motel with her daughter for 14 days until she felt able to return home. (Tr. II at 77.) On July 21 or 22, she and her daughter Pam put locks on all the windows and bought new furniture. (Tr. II at 77). After she returned home, she found in her laundry basket the white shirt Petitioner had worn on the night of the assault. (Tr. II at 78.) She gave the shirt to police officer Láveme Brann. (Tr. II at 78.)

Upon questioning, Gordon testified that she had three natural children and could have no more as the result of surgery. She admitted, however, that she made a sarcastic comment about having Petitioner’s child to Trace Christianson. (Tr. II at 78-79.) She also acknowledged that she had two convictions for writing checks without sufficient funds, in 1991 and 1992. (Tr. II at 79.) Gordon identified various exhibits, including her gun and clip, which Petitioner had used; her bed sheet, which had been on her bed before the assault; the strips of bed sheet used to gag her; her telephone cradle, which she denied knowing had been put in the kitchen wastebasket; cotton batting similar to what had been placed in her mouth, which she denied knowing had been put in the wastebasket; a pillow cover that was on her loveseat on the morning before the assault; her comforter, which had been on her bed that morning; her duvet cover, which she last saw folded across the end of her bed on the morning of the assault; green crocheted blanket from her couch; the cover for her sofa, which was on the sofa as part of the furniture; the base of her other cordless phone, which had been on the dining room wall before the assault; a drinking glass; the extension cord that was used to tie her arms; the nightgown and panties she had been wearing at the time of the assault and which she left in the downstairs bathroom clothes basket; her telephone, which she had last seen the morning Jerry Ball called; the shirt Petitioner had been wearing the night of the assault and which he had removed before leaving the house. (Tr. II at 80-95.) She also identified photographs of various parts of her house, as well as photographs of the injuries to her face, tongue, hands, wrists, shoulder and chin. (Tr. Ill at 96-130.)

On cross-examination, defense counsel attempted to introduce into evidence the letters written by Gordon to Cowen to impeach Gordon. (Tr. II at 145-46.) The prosecutor objected because the letters had not been produced as requested by the prosecution and were in violation of the disclosure rules. (Tr. 11,146-47.) The court held that the letters would not be permitted into evidence because of the clear discovery violation. The defense was permitted to use the general content of the letters for purposes of cross-examination, but the court refused to permit defense counsel from asking questions that quoted the letters themselves. (Tr. II at 150-53.) Thereafter, Gordon was cross-examined about the letters she sent to Cowen and about the motive for sending those letters. (Tr. II at 153-61,165-66.)

Nicole Sparks testified that she had been Gordon’s daughter-in-law for two years. (Tr. Ill at 23.) Through Gordon, she came to know Petitioner about three years before the trial. (Tr. Ill at 24.) On July 12, 2000, she went to Gordon’s house with her father and her two sons, ages six months and two years. (Tr. II at 24.) At about 5:00 p.m., Sparks was returning from taking her father for a doctor’s visit and stopped to make a telephone call about one of her father’s prescriptions. (Tr. Ill at 25.) Petitioner was present at the home. Contrary to his usual practice, Petitioner did not hug her or talk to her. (Tr. Ill at 25-26.) They stayed approximately 15 to 20 minutes. (Tr. Ill at 27.) Sparks next spoke to Gordon the following morning at approximately 8:00 a.m. (Tr. Ill at 28.) Sparks thought the call was strange, as Gordon usually slept late, and she laughed about it at first. (Tr. Ill at 28.) When she hung up, she felt that something was not right. (Tr. Ill at 28.) At about 9:00 a.m., Gordon arrived at Sparks’ house, looking “roughed up.” (Tr. Ill at 29.) Sparks testified that Gordon’s eye was swollen, as was the rest of her face. As soon as she looked at Sparks, Gordon began to cry. Sparks asked who had caused the injuries and Gordon did not immediately reply. When Sparks stated, “It was Robert,” Gordon admitted, “It was Robert.” (Tr. Ill at 80.) Gordon was wearing a nightgown, her son’s high school jacket and flip-flops. (Tr. Ill at 30.) Sparks was angry, not only that it had happened, but that her children had had to see their grandmother in that condition. (Tr. Ill at 30.) Sparks brought Gordon into the house and sat her down on the couch. Sparks called Gordon’s house, and the phone was answered immediately and then hung up. (Tr. Ill at 31.) She called again a minute later and left a message for Petitioner, called him names and telling him that she hoped that terrible things happened to him and that he went to prison. (Tr. Ill at 32.) Sparks got ice and her father took it into Gordon in the living room. (Tr. II at 32.) Right after she left the message, Sparks called 911, telling the dispatcher that Robert Mitchell had beaten Gordon. (Tr. Ill at 33.) The police and an ambulance arrived. After the ambulance paramedics talked to Gordon, they wanted to transport her to the hospital. Gordon, however, wanted to go on her own, and she asked Sparks to drive her. (Tr. Ill at 33.) Sparks drove Gordon to the hospital, where she was treated and pictures were taken. (Tr. Ill at 34.) After Gordon was discharged, the two drove to Gordon’s home, where a number of police officers were still present. (Tr. Ill at 34.) She then drove Gordon to Sparks’ home. (Tr. Ill at 34.) Until her mother-in-law told her, Sparks did not realize that Gordon had been confined at her home the preceding night and that morning. (Tr. Ill at 34.) Prior to the incident, Sparks liked Petitioner and thought he was nice. (Tr. Ill at 25, 35.)

The audiotape of the 911 call was played for the jury. When Sparks told the 911 dispatcher that Petitioner had committed the assault, the dispatcher did not immediately realize whom she meant, though he knew who Mitchell was. (Tr. Ill at 58.)

Michigan State Trooper Denise Rule testified that she responded to Sparks’ Marshall address within two to three minutes of being called by the 911 dispatcher. (Tr. Ill at 65.) She observed that Gordon had a black eye and had swollen wrists with what appeared to be rope marks around them. (Tr. Ill at 66.) She also observed that Gordon’s tongue was blue. (Tr. Ill at 87.) Rule testified that the photos taken of Gordon in People’s Exhibits ## 15A, 15B, 15F and 15G were all consistent with what she had observed. (Tr. Ill at 86.) Rule contacted the Battle Creek Police Department and then called an ambulance. (Tr. Ill at 66.) A sergeant from the Battle Creek Police Department called back to the home and told Rule that Gordon needed to go back to Battle Creek to file a complaint. (Tr. Ill at 84-85.)

Marshall paramedic Brent Cornwell testified that he and his partner Bob Hale were dispatched in an ambulance to Sparks’ Marshall address on a reported assault. Cornwell and Hale met with a woman identified on the report as Deborah “Gourdir.” (Tr. Ill at 92, 94-95.) The woman was distraught and had abrasions around her mouth, a swollen and lacerated tongue, and red marks on the right side of her face and neck. (Tr. Ill at 93.)

Battle Creek Police Sergeant McClenney spoke with Trooper Rule after she had called the Battle Creek Police Department. (Tr. Ill at 111-12.) McClenney initiated a complaint, and he left the Battle Creek Police Department accompanied by Officer Tom Rivera to meet Gordon at the Battle Creek Health Care System. (Tr. Ill at 112, 129.) The officers went to the hospital to meet Gordon. (Tr. Ill at 112, 130.) McClenney testified that he knew Deborah Gordon, who was married to one of his uncles. (Tr. Ill at 122.) Because of the family relationship, McClenney asked Officer Rivera to conduct the interview, to be certain of objectivity. (Tr. Ill at 122.) Gordon was very upset and told the officers that she had been assaulted by Petitioner. (Tr. Ill at 112-14, 127.) McClenney was aware that Petitioner was well known in the community and had some prior history challenging the police department, so he called Detective Brann to make sure that everything was handled without mistakes. (Tr. Ill at 114, 169.) After they interviewed Gordon, McClenney and Rivera went to her home at 87 Nelson in Battle Creek. (Tr. Ill at 135.) He also asked for additional units to meet him at the address. (Tr. Ill at 135.) Four other officers responded. (Tr. Ill at 136-37.) McClenney testified that he understood that Robert Mitchell was armed and could be in the house. (Tr. Ill at 115, 137.) After entering the house and determining that Mitchell was not there, McClenney and Rivera went to Grace Cowen’s address at 180 Kingman. (Tr. Ill at 117, 145.) McKenney testified that he knew Cowen and asked her for permission to search the house. (Tr. Ill at 117.) McClenney was concerned about the possible danger of a suspect wielding a firearm in a neighborhood filled with children. (Tr. II at 117.)

Dr. Elaine Schniderman testified that she was an emergency department physician at Battle Creek Health Care System. (Tr. Ill at 173.) On July 13, 2000, she examined Deborah Gordon in the emergency room. (Tr. Ill at 174.) Gordon had bruising around her eyes, abrasions to her neck, areas of redness on her neck, and bruising of her tongue. (Tr. Ill at 177.) She also had a punctured wound on her right hand, swelling of both hands and redness of both wrists. (Tr. Ill at 177-78.) Schniderman ordered a CAT scan of Gordon’s brain and facial bones and x-rays of her left shoulder and right wrist. (Tr. Ill at 178.) Gordon was given a milligram of Ativan for anxiety and a tetanus shot. (Tr. Ill at 178-79.) She also was given a prescription of Augmentin, an antibiotic, and Vicodin for pain. (Tr. Ill at 179.) A nurse, Paula Kohlhaas, testified similarly about Gordon’s injuries. (Tr. Ill at 182-186.) Kohlhaas also obtained fingernail scrapings, which she gave to Officer Diepenhorst. (Tr. Ill at 185-86.)

Battle Creek forensic technician Jennifer Diepenhorst testified that she met Officers Rivera and McClenney at Battle Creek Health Systems. She took the exhibit photographs of Gordon’s injuries. (Tr. Ill at 188-89.) She also assisted Nurse Kohlhaas in obtaining nail scrapings, which she transported back to the station. (Tr. Ill at 191.)

Battle Creek Police Officer Tom Rivera testified that, on July 13, 2000, he accompanied Sergeant McClenney to the Battle Creek Health system, where he interviewed Deborah Gordon. (Tr. Ill at 209.) He observed that Gordon was dressed in a nightgown and had obvious bruises and swelling on her face and neck. (Tr. Ill at 209-10.) Gordon was crying and clearly upset. Rivera asked who had caused the injuries and Gordon identified Petitioner as the assailant. (Tr. Ill at 210.) Gordon gave the officers permission to go to her house. Rivera and McClenney went to secure the crime scene and to look for Petitioner. (Tr. Ill at 210-11.) The Detective Bureau had arrived at the hospital by this time and Rivera turned the interview of Gordon over to them. (Tr. Ill at 213.) When McClendon and Rivera arrived at Gordon’s home, the front door was open, but Petitioner was not at the house. (Tr. Ill at 211.) Other officers also were present, including Esteven Rivera. (Tr. Ill at 211.) Tom Rivera denied that the Emergency Response Team was present at Gordon’s address. (Tr. Ill at 212.) After searching the house, Tom Rivera, McClendon, Esteven Rivera and Officer Wise, as well as other officers, went to 180 Kingman, Grace Cowen’s address, seeking Petitioner. (Tr. Ill at 211.)

Battle Creek Police Officer Thomas Cor-bin testified as the crime scene technician who processed the scene at Gordon’s address. (Tr. Ill at 218.) Under the direction of lead investigator Detective Brann, Corbin searched the residence, photographed the scenes and collected evidence. (Tr. Ill at 219.) Corbin identified the nickel-plated .22 caliber semi-automatic pistol he collected from the washing machine on the first floor of the residence, to which he had been directed by Sergeant Detective Bright. (Tr. Ill at 221; Tr. IV at 17, 21.) He ran a Law Enforcement Information Network (LEIN) check on the weapon and found it was registered to Deborah Gordon. (Tr. Ill at 221.) Corbin also identified various other exhibits and photographs (Tr. Ill at 222-44.) Among others, he identified Exhibits ID and IE, which were portions of a torn bed sheet collected from the washing machine. (Tr. Ill at 222-23.) He identified an 86%-inch piece of telephone cord as Exhibit 2A, which he collected from the wastepaper, basket in the kitchen, and a white extension cord as Exhibit 6, which he collected from the living room floor. (Tr. Ill at 223.) In addition, he identified Ex. 2B as white pillow stuffing and Ex. 2C as a maroon pillow case with a torn edge, both of which he found in the kitchen waste basket. (Tr. Ill at 224; Tr. IV at 8.) Corbin identified Exhibits 7B and 7C as a woman’s nightgown and panties, respectively, both of which were found in the bathroom laundry basket. (Tr. Ill at 229.) The locations of these and many other exhibits closely corresponded with Gordon’s descriptions of the incident. Corbin also identified a telephone handset that was found between the seats of the Nissan car parked in Gordon’s driveway. (Tr. Ill at 230, 243.)

Aire Malynn Pratt testified that she became acquainted with Petitioner at the C-Store on East Columbia Street approximately two years before the trial. (Tr. IV at 76-77.) Pratt worked second shift, and Petitioner' typically came into the store every day after 5:00 p.m. to get a Detroit newspaper and an Inquirer. (Tr. IV at 77.) Pratt later started working first shift, from 5:00 a.m. to 2:00 p.m. On July 13, 2000, she was working first shift. (Tr. TV at 77-78.) At some time between 6:00 a.m. and 7:00 a.m., Petitioner came into the store and asked for change for the pay phone. (Tr. IV at 79.) Pratt testified that it was unusual for Petitioner to be at the store at that hour. (Tr. IV at 79.) Petitioner appeared sweaty, shaky and kind of distraught. He was dressed in a gray sweatshirt and sweatpants and wearing sunglasses instead of his usual patch. (Tr. IV at 79.) Petitioner talked with another man in the store, and Pratt overheard Petitioner say that “he was going to have to leave town, maybe Detroit.” (Tr. IV at 80.) Petitioner was in the store for 15 minutes or less. Pratt then saw him use the pay phone across the parking lot. He remained on the phone for about three hours. (Tr. IV at 80.) Pratt identified the vehicle Petitioner was driving as that pictured in Exhibit 14B, the vehicle Corbin saw parked in Gordon’s driveway. (Tr. IV at 81.)

Sergeant Pierce of the Battle Creek Police Crime Lab testified that he was assigned to assist in the investigation of the crime scene at Gordon’s house. (Tr. TV at 92.) Pierce videotaped the search with the sound turned off, except for the time during which he played the messages on the answering machine. (Tr. IV at 93-94.) The videotape was admitted as Exhibit 11 A. (Tr. IV at 95.) Pierce also processed the scene for fingerprints, including the telephone, doorknobs and common areas upon which the suspect may have left prints. (Tr. IV at 96-99.) He found no latent identifiable prints on anything he checked. (Tr. IV at 98.) Pierce did not recall whether he dusted for fingerprints on the internal surfaces of the car that was parked in the driveway, though he acknowledged that dusting the vehicle would have been standard procedure. (Tr. IV at 99, 103.) On cross-examination, Pierce also acknowledged that his brother had been the subject of a police complaint that was filed with the assistance of Petitioner. (Tr. IV at 102,106.)

Sandra Sue Wooten testified that she had known Petitioner since 2000, when her son was in some trouble with the law and Petitioner became involved in an attempt to help him. (Tr. IV at 108.) Petitioner came to Wooten’s house on the afternoon of July 12, 2000, to give her some papers to send to her son. (Tr. IV at 110.) Petitioner got out of the passenger side of a vehicle that was being driven by a white woman whom Wooten did not know. Wooten noticed because she was aware that Petitioner was engaged to Grace Cowen, a black woman. (Tr. IV at 111.) She later learned that the white woman was Deborah Gordon. (Tr. TV at 111.) As Petitioner was leaving, Wooten mentioned that she would see him at his wedding to Grace, to which she had been invited. Petitioner responded that he and Grace were not getting along well at that time. (Tr. IV at 112-13.)

Battle Creek Police Detective Laverne Brann testified that after being paged by the department, he responded to the Battle Creek Health Center, where he spoke with Gordon. (Tr. IV at 118-19.) He observed that her eyes and the right side of her face were swollen, she had a cut lip, her tongue was swollen, and she had red marks or welts on her wrists. (Tr. IV at 119.) He then went to her address. (Tr. IV at 119.) Brann was the lead investigator at the scene, and, based on what Gordon had told him, he collected relevant evidence. (Tr. TV at 120.) The house was neat, with the exception of disarray of bedding in the living room, consistent with the story Gordon told. (Tr. TV at 121.) He testified that the stairway door had an extension cord wrapped around the door handle, also consistent with Gordon’s story, and he identified the photographic exhibit showing that scene. (Tr. IV at 122.) Brann also identified the picture of the stuffing and the phone cord that Gordon had described being torn out. (Tr. IV at 123.) In addition, he testified that he had listened to the telephone message on the answering machine to find a phone message from Nicole Sparks consistent with the message she claimed to have left. (Tr. IV at 124-25.) Brann identified the gun found in the washing machine as consistent to the gun Gordon had described. (Tr. IV at 125.) He found a towel with melting ice and some popsicle wrappers on the dining room table. (Tr. IV at 126-27.) Brann testified that the cordless phone found between the seats of the black Nissan Altima in the driveway was consistent with Gordon’s statement that the phone had been removed from the house when Petitioner left to get popsicles. (Tr. IV at 127-28.)

Brann eventually examined Gordon’s telephone records for July 12 and 13, 2000. (Tr. IV at 129.) Using those records, he found the telephone numbers of Peggy Dean, George Kendall, and the Veteran’s Administration in Battle Creek. (Tr. TV at 130-31.) Gordon later gave a t-shirt to Brann, which she reported Petitioner had worn the night of the incident. (Tr. IV at 133.) He also participated in obtaining a search warrant for blood samples from Petitioner. (Tr. IV at 132.) The results were compared to the DNA taken from the t-shirt. (Tr. IV at 133.) Brann testified that, after July 13, 2000, Petitioner was sought by police. Nine months later, after Petitioner was featured on “America’s Most Wanted” on March 18, 2001, the police received a number of tips that Petitioner was living in Lansing. (Tr. IV at 135.) Working from those tips and in conjunction with the Michigan State Police, Brann found Petitioner at a Lansing address, where he was placed under arrest. (Tr. IV at 135.)

Battle Creek Fireman Jerry Ball testified that he was on duty at a Battle Creek fire station on the morning of July 13, 2000, scheduled to go off shift at 8:00 a.m. (Tr. Excerpt 2/22/02 at 5-6, docket # 32.) At 7:20 a.m., he received a telephone call from Petitioner, whom Ball knew through Petitioner’s assistance concerning allegations of racial and gender bias within the fire department. (Id. at 4, 7,15.) According to Ball, his relationship with Petitioner had caused him problems with the police chief. (Id. at 5, 15.) Ball testified that Petitioner seemed upset about something and did not sound like his usual self. (Id. at 8-9.) According to Ball, Petitioner also sounded like he was calling from outside because of traffic noises. (Id. at 13.) Petitioner told Ball that something was wrong and he wanted to talk with Ball, and they arranged for Petitioner to call Ball in an hour at a number Ball gave him. (Id. at 9, 11.) Petitioner never called. (Id. at 11.) Ball denied any memory of having called Petitioner shortly before the 7:20 a.m. call, despite Gordon’s phone record showing two brief calls from the station’s private number and Ball’s belief that no other officers at the station communicated with Petitioner. (Id. at 7-8,11.)

Daniel Freehling testified that he had been Petitioner’s parole officer since June 1999. (Tr. TV at 215.) Freehling identified a certificate of judgment against Petitioner for the offense of false pretenses over $100. (Tr. IV at 216.) Freehling testified that, on July 12-13, 2000, Petitioner was subject to standard parole conditions that barred him from possessing a firearm. (Tr. IV at 217-18.) In July 2000, Petitioner suddenly ceased reporting for his parole meetings and was placed on absconder status. (Tr. IV at 222.)

On the morning of the fifth day of trial, February 26, 2002, defense counsel raised numerous complaints about prosecution comments and late discovery that had prejudiced Petitioner. (Tr. V at 5-7.) The court construed the narrative as a motion for mistrial, which it denied for lack of merit. (Tr. V at 8.)

Laurence Simson testified as an expert in pathology and specialized forensic pathology. (Tr. V at 10, 15.) Simson testified that he examined the photographs of Gordon’s injuries and had been able to determine the causes of those injuries. (Tr. V at 17.) Simson identified a black eye, reflecting a hemorrhage in the upper eyelid, which seeps down into the soft tissue below the eye. He also identified bruising to the right side of the face and an abrasion on the chin. (Tr. V at 17.) The black eye was caused by a blow to the eye area, whether with a fist, an elbow or other source. The eye injury was caused by something that would get inside the orbit of the eye without striking the nose. (Tr. V at 18.) He also identified pinpoint hemorrhages or petechia hemorrhages, which are caused by compression to the neck of a living person. (Tr. V at 18-19.) Simson testified that the photos also showed bruising to the right side of Gordon’s neck, which were consistent with pressure being placed on the neck. (Tr. V at 19.) According to Simson, Gordon also had a large bruise on the right side of the tongue. (Tr. V at 20.) The bruise could not have been caused by biting and required a considerable amount of force. (Tr. V at 20.) In addition, Gordon had a scrape on the inside of both the upper and lower lips consistent with having something compressed in the area. The mouth injuries were consistent with a person having been gagged, forcing the tongue between the teeth, after which force applied upward on the bottom jaw caused the teeth to compress the tongue. (Tr. V at 21, 29.)

With respect to Gordon’s other injuries, Simson testified that the hands were very swollen and bound by a ligature with two bands, which could have been the extension cord found at Gordon’s address. (Tr. V at 23-24.) The hands were tied tightly enough to allow blood in but to restrict flow out, which could have produced numbness in the hands. (Tr. V at 24-26.) Simson testified that he did not believe it was possible for the combination of injuries to have been produced by the individual herself. (Tr. V at 26.) In addition, Simson testified that if soft material had been pressed into a person’s mouth, it would not necessarily contain condensed moisture if removed quickly. (Tr. V at 27.) The injury to the chin was consistent with having the face sideways toward the floor and being struck against the floor. (Tr. V at 30.) On cross-examination, Simson testified that there should have been a considerable amount of saliva on the material used to gag Gordon if she was bound for five to six hours. There also should have been some detectable skin residue from the rubbing against the tongue and lips. (Tr. V at 37.)

Ann Elizabeth Chamberlain testified that she was employed by the Michigan State Police Forensic Science Lab in the Biology Unit, where she performed serology processing of crime scene evidence for DNA analysis. (Tr. Y at 43-44.) Chamberlain tested fingernail scrapings from Gordon but found no tissue or blood. (Tr. V at 46-47.) She tested the collar and armpit areas of a white t-shirt for the presence of blood and skin sluffage to identify the wearer. (Tr. V at 47-49.) She found a tiny amount of blood on the left side of the collar, which, had she sampled it, would have depleted the sample so as to prevent DNA analysis. She forwarded it forensic scientist Jeffrey Nye. (Tr. V at 49.) She also tested Gordon’s panties for the presence of urine. (Tr. V at 50-51.) In a sample taken from the back of the panties, she found a large amount of creatinine, indicating urine, and the panties also had a strong odor of urine and a yellowish stain. (Tr. V at 51-52.) She did not, however, find the same results on the nightgown. (Tr. V at 52-53.) The amount of urine found on the panties was consistent with someone urinating on themselves rather than someone having a small amount of leakage. (Tr. V at 60.) Chamberlain also tested the comforter and found creatinine in one area and not in another. (Tr. V at 53.) The parties stipulated to the introduction of Jeffrey Nye’s forensic report in lieu of his testimony at trial. (Tr. V at 54.)

Battle Creek Detective Sergeant Carter Bright testified that, as of July 13, 2000, he had held the position of sergeant in charge of the detective bureau for approximately three-and-one-half years. (Tr. V at 67.) On that date, he reported to Gordon’s address to supervise the investigation that was then underway. (Tr. V at 68.) Bright stayed for a few minutes and then went to Cowen’s house on Kingman Street, where a number of other officers had gone to look for Petitioner. (Tr. V at 69.) Bright stayed only a short while and then returned to Gordon’s house on Nelson Street. Bright had not yet entered Gordon’s house when crime scene technician Corbin arrived. He entered the home behind Corbin to assist in the priority search for the gun officers understood that Petitioner had used. (Tr. V at 70.) Bright did not seize anything, but began to look for the pistol. (Tr. V at 72.) After looking in the bedroom and living room, Bright noticed the laundry room, where the lid was up on the washing machine, revealing some dry bedding sticking up. (Tr. V at 72-73.) Bright thought the circumstances were unusual for the handling of laundry. He went over to the machine and pulled some of the material slightly, when he heard a “thunk.” He looked into the drum and saw a small caliber firearm. (Tr. V at 73.) Bright told Officer Corbin that he had found the gun, but Bright did not touch it. (Tr. V at 74.) Bright also called Sergeant McClenney to inform him that they had recovered the weapon. (Tr. V at 74.) Under standard policy, it was important to let McClenney, who was looking for Petitioner, know that Petitioner did not have the weapon with him. (Tr. V at 75.) Bright testified that, as a result of his involvement in the investigation, he had been made the subject of a federal lawsuit, which was subsequently dismissed. (Tr. V at 75-77.)

Michigan State Police DNA Analyst Stephen Milligan testified that he obtained DNA profile information from the samples sent by Chamberlain from the armpit and collar areas of the t-shirt. (Tr. V at 139.) He later received blood samples taken from Deborah Gordon and Petitioner, from which he obtained DNA profile information for comparison purposes. (Tr. V at 140 — 41.) Both the collar cutting and the underarm cutting indicated that there was more than one donor for the samples. (Tr. V at 141^13.) Petitioner’s DNA had the probability of at least one in 120 quadrillion of being one of the donors on both samples. (Tr. V at 143-45.)

Renee Garcia of Ameritech SPC authenticated the telephone records for Deborah Gordon’s home phone number for July 12 to July 13, 2000, and those records were introduced into evidence. (Tr. V at 163.)

State Police Trooper William Ford testified as commander of the Fifth District Fugitive Team about the efforts made to apprehend Petitioner between July 2000 and March 2001, when Ford and Battle Creek Detective Brann arrested Petitioner in Lansing, Michigan. (Tr. V at 181-194.)

Battle Creek Police Officer Julie Hubbard testified that on July 12, 2000, she was investigating a complaint filed by Grace Cowens against Deborah Gordon. (Tr. VI at 5.) With the help of Deborah Gordon’s telephone records, Hubbard recalled that she had attempted to telephone Gordon twice on July 12, once at 3:03 p.m. and again at 3:20 p.m. (Tr. VI at 6-7.) Hubbard testified that, when she reached Gordon, Gordon was argumentative. (Tr. VI at 10.) Shortly before calling Gordon, Hubbard had taken the complaint in person from Cowen at Cowen’s home address. (Tr. VI at 8.) Hubbard testified that Cow-en’s caller ID reflected two calls from Gordon’s number on July 11, 2000 and 17 calls from Gordon’s number on July 12, 2000. (Tr. VI at 11-12.)

Battle Creek Police Officer Alan Marlow testified that on July 14, 2000, he took photographs of Deborah Gordon’s injuries. (Tr. VI at 14.) Gordon had several bruises, mainly in her whole face area, together with some bruising on her neck and hands. (Tr. VI at 15.) Marlow then identified certain picture exhibits as those he had taken. (Tr. VI at 16.) Civilian Crime Technician Tara Wesseldyk testified that she took additional pictures of Gordon’s injuries on July 17, 2007. (Tr. VI at 17.) She identified other picture exhibits, showing an increase in the demonstrable bruising to Gordon’s face. (Tr. VI at 18.)

Battle Creek Police Laboratory Specialist Joel Shepperly testified as an expert in fingerprint analysis and identification. (Tr. VI at 22-23.) Shepperly testified that he conducted fingerprint evaluations on the gun and cartridges but found only partial prints insufficient for identification. (Tr. VI at 31.) He testified that in only one in one hundred instances are identifiable prints found on handguns. (Tr. VI at 31.) Shepperly also examined six areas of fingerprint ridge detail on a green glass taken from Gordon’s house. From those examinations, he identified Deborah Gordon’s prints. (Tr. VI at 33-34.) Shepperly explained that frequently the prints of an individual who held a glass are obliterated by those of the person to whom the glass is subsequently handed. (Tr. VI at 35.) Shepperly obtained no identifiable prints from the cordless phone. (Tr. VI at 36.) .The prosecution rested. (Tr. VI at 55.)

Petitioner moved for mistrial on the basis of the prosecution’s introduction of evidence of other bad acts, including evidence of Petitioner’s flight. The motion was denied. (Tr. VI at 56-57.) Petitioner then moved for directed verdicts on all charges. (Tr. VI at 57-58.) Those motions were also denied. (Tr. VI at 60-62.) The court also granted the prosecution’s motion to exclude evidence of the PPO subsequently obtained by Grace Cowen against Deborah Gordon. (Tr. YI at 65-66.) Petitioner engaged in a series of outbursts at the court’s rulings and was escorted from the courtroom. (Tr. VI at 68-69.) Defense counsel was warned to advise Petitioner that any further outbursts would have him removed during the remainder of the trial proceedings. (Tr. VI at 69-70.) Petitioner returned before the presentation of the defense case. (Tr. VI at 71.)

Mary Gault testified that she had known Petitioner since 1998. (Tr. VI at 72.) She also knew Grace Cowen and was very familiar with their relationship. (Tr. VI at 73.) The relationship between Petitioner and Cowen began to deteriorate in June 2000. (Tr. VI at 75.) Gault testified that she was aware of two letters from Deborah Gordon to Grace Cowen. (Tr. VI at 75.) Gault called Gordon in June or July 2000, and Gordon was threatening and rude. (Tr. VI at 78.) Gordon called Gault numerous times thereafter. (Tr. VI at 79.) Gault testified that, on July 10, 2000, she picked Petitioner up from Cowen’s house at about 11:00 or 11:30 a.m. (Tr. VI at 79-80.) At that time, both Petitioner and Cowen appeared calm and collected. (Tr. VI at 80-81.) Petitioner loaded some suitcases and files into Gault’s car. She drove him to the church at which she served as minister, and Petitioner unloaded his belongings. She had agreed to allow Petitioner to stay at the church while she was at her annual church conference for the next week. (Tr. VI at 81, 84.) Petitioner then asked Gault to drop him off at Gordon’s house. (Tr. VI at 82.) Petitioner was carrying a stack of papers with him. (Tr. VI at 82.) Gault agreed to pick Petitioner up at Gordon’s at 9:30 a.m. on July 11, 2000. (Tr. VI at 83.) When she arrived, Petitioner was at the kitchen table making a list of telephone numbers, including that of Jerry Ball. (Tr. VI at 83.) Petitioner handed the list to Gordon, and Gault remembered to give Petitioner the phone card she had for him. (Tr. VI at 84.) Gault went to the grocery store to pick up items Petitioner needed while she was gone. (Tr. VI at 84.) She also stopped to get keys made so that Petiti