Lautner v. Berghuis (694 F. Supp. 2d 698, 2010)

ORDER APPROVING REPORT AND RECOMMENDATION

ROBERT J. JONKER, District Judge.

The court has reviewed the Report and Recommendation filed by the United States Magistrate Judge in this action. The Report and Recommendation was duly served on the parties on February 16, 2010. No objections have been filed pursuant to 28 U.S.C. § 636(b)(1)(C).

THEREFORE, IT IS ORDERED that the Report and Recommendation of the Magistrate Judge, filed February 16, 2010, is approved and adopted as the opinion of the court.

IT IS FURTHER ORDERED that the habeas corpus petition is DENIED.

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 in the Kalkaska County Circuit Court of the following eleven offenses arising out of a crime spree that occurred on March 15, 2003: (1) unlawfully taking possession of and driving away motor vehicle, Mich. Comp. Laws § 750.413; (2) third-degree fleeing and eluding, Mich. Comp. Laws § 257.602a(3); (3) assault with the intent to commit great bodily harm less than murder, Mich. Comp. Laws § 750.84; (4) carrying or possessing a firearm while committing or attempting to commit the felony stated in count three (felony-firearm), Mich. Comp. Laws § 750.227b; (5) first-degree home invasion, Mich. Comp. Laws § 750.110a(2); (6) armed robbery, Mich. Comp. Laws § 750.529; (7) carjacking, Mich. Comp. Laws § 750.529a; (8) felony-firearm during the commission of either or both of counts 6 and 7, Mich. Comp. Laws § 750.227b; (9) assault with the intent to commit murder, Mich. Comp. Laws § 750.83; (10) carjacking, Mich. Comp. Laws § 750.529a; and (11) felony-firearm during the commission of either or both of counts 9 and 10, Mich. Comp. Laws § 750.227b. On August 3, 2004, Petitioner was sentenced as a second habitual offender to the following periods of imprisonment: 36 to 90 months for Count 1, 36 to 90 months for Count 2, 30 to 72 months for Count 3, 2 years for Count 4, 14 to 30 years for Count 5, 20 to 40 years for Count 6, 20 to 40 years for Count 7, 2 years for Count 8, 20 to 40 years for Count 9, 20 to 40 years for Count 10, and 2 years for Count 11. In addition, Petitioner was ordered to make payments totaling $13,945.03.

In his pro se petition, Petitioner raises six grounds for relief, as follows:

I. DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL WHERE EXPERT TESTIMONY WAS PRESENTED THAT DEFENDANT LACKED SUBSTANTIAL CAPACITY TO APPRECIATE THE NATURE AND QUALITY OR THE WRONGFULNESS OF HIS CONDUCT, BUT THAT DEFENDANT COULD CONFORM HIS CONDUCT TO THE REQUIREMENTS OF THE LAW, AND COUNSEL ARGUED ONLY THAT DEFENDANT COULD NOT CONFORM HIS CONDUCT TO THE REQUIREMENTS OF THE LAW AND DID NOT ARGUE THAT DEFENDANT LACKED SUBSTANTIAL CAPACITY TO APPRECIATE THE NATURE AND QUALITY OR THE WRONGFULNESS OF HIS CONDUCT.

II. DEFENDANT WAS DENIED A FAIR TRIAL BY THE PROSECUTOR’S MISCONDUCT IN CROSS-EXAMINATION OF DEFENDANT IMPLYING THAT A VERDICT OF NOT GUILTY BY REASON OF INSANITY WOULD RESULT IN HIM BEING SET FREE.

III. DEFENDANT’S FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS WERE VIOLATED WHEN HIS TRIAL ATTORNEY FAILED TO HAVE THE CLINICIAN OF HIS CHOICE PERFORM A FULL PSYCHIATRIC EVALUATION.

IV. DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO HAVE THE CLINICIAN OF DEFENDANT’S CHOICE PERFORM A FULL PSYCHIATRIC EVALUATION.

V. DEFENDANT’S FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS WERE VIOLATED WHEN THE TRIAL JUDGE RULED THAT AN EXPERT WITNESS’S TESTIMONY AT TRIAL BE LIMITED TO EXCLUDE HIS OPINIONS OF DEFENDANT’S STATE OF MIND AT THE TIME OF THE INSTANT OFFENSES.

VI. THE PROSECUTION’S TAMPERING OF [SIC] EVIDENCE WAS A VIOLATION OF DEFENDANT’S FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS.

Respondent has filed an answer to the petition (docket # 5) stating that the grounds should be denied because they are procedurally defaulted or have no merit. Petitioner filed a reply (docket # 6). Upon review and applying the AEDPA standards, I find that Petitioner’s grounds for habeas corpus relief are without merit. Accordingly, I recommend that the petition be denied.

Procedural History

A. Trial Court Proceedings

The charges against Petitioner arose from a crime spree that occurred on March 15, 2003, over several northern Michigan counties. Petitioner was tried before a jury on June 14-18, 2004. The defense theory was that Petitioner was criminally insane at the time he committed the offenses, and, thus, should be found not guilty of the charges by reason of insanity. Specifically, Petitioner asserted that he was acting under the belief that God was directing his conduct through the use of various signs. He further claimed that his primary motivation on the day the offenses occurred was to get the police officers to chase him, engage him in a shootout, and kill him.

Mark Soper testified that he worked at Bill Marsh Auto Sales on March 15, 2003. (Tr. I, 198.) Soper identified Petitioner as the man who came into the dealership and asked to take a truck for a test drive. (Tr. 1, 199, 204.) Petitioner wanted to drive the truck alone, but Soper explained that it was company policy for a sales person to ride along for test drives. (Tr. I, 200.) Petitioner drove the truck while Soper sat in the passenger seat. (Id.) Petitioner drove the truck very fast and in a manner that made Soper uncomfortable. When they returned to the dealership, Petitioner thanked Soper and said something to the effect that he did not seem to want to help him out. (Tr. I, 202.) Petitioner left the dealership in an older-model Jeep Wrangler. (Tr. I, 204.)

Greg Morley testified that he was employed by Williams Chevrolet in March 2003. (Tr. I, 207). On March 15, 2003, a man Morley identified as Petitioner came into the dealership and said he was interested in buying a used red Sonoma truck that was on the lot. (Tr. I, 207-209, 214.) There already was a set of keys in the truck, but Morley went inside to get the dealer plates. Morley also mentioned that he needed to make a copy of Petitioner’s driver’s license. (Tr. I, 209-10.) When Morley went back outside, Petitioner was gone and he could see the red Sonoma truck driving away. (Tr. I, 211.) Morley got into his car and followed the truck. (Tr. I, 212.) When he got near the truck, it picked up speed and started to run the lights and stop signs. (Id.) Morley called 911. (Tr. I, 213.) The next time Morley saw the truck was at the sheriffs department. (Tr. I, 214.) Morley testified that nothing seemed unusual about Petitioner before he stole the truck. (Tr. I, 217.)

Kalkaska Police Officer Mark Bonfiglio testified that he received the call about a stolen truck at about 3:20 p.m. on March 15, 2003. (Tr. I, 222-23.) Bonfiglio spotted the stolen truck an hour or two later on Cedar Road when Bonfiglio was stopped at a traffic light. (Tr. I, 223-24.) As Bonfiglio prepared to pursue the truck, a state trooper also saw the truck and made a U-turn to follow it. Bonfiglio activated his lights and began to follow the state trooper. (Tr. I, 224.) Both police cars were marked and had their lights and sirens activated. (Tr. I, 225-27.) At some point, a county sheriffs department car also joined the pursuit. (Tr. I, 226.) The driver of the truck began to fire shots out of the driver’s side window toward the police cars. (Tr. I, 228.) The police officers continued to chase the truck for twenty-two miles until the truck reached a dead end on a dirt road. (Tr. I, 229-34.) By the time the officers arrived, the driver had fled the truck. (Tr., 235.) Bonfiglio conducted a cursory inspection of the truck while the other officers went into the woods looking for the driver. (Tr. I, 237-38.) Bonfiglio found an empty shotgun case, some shotgun shells, a box of shotgun shells, a half-empty bottle of Jack Daniels, and a backpack containing clothing and a water purifier. (Tr. 238-39.)

Jedidiah Flynn testified that he was at home in Mancelona on the afternoon of March 15, 2003. (Tr. I, 251-52.) His wife, Bonnie Flynn, and brother, Benjamin Flynn, also were at the home when Jedidiah heard a knock at the door. (Tr. I, 253.) Jedidiah walked toward the front door and saw a man he did not recognize standing outside. (Tr. I, 255.) At trial, Jedidiah identified Petitioner as the man who came to the door. (Tr. I, 269.) Jedidiah was not certain whether he or Petitioner opened the door, but Jedidiah saw that Petitioner was carrying a shotgun. (Tr. I, 255.) At some point, Petitioner entered the house without an invitation. (Tr. I, 255.) Petitioner said that he needed a vehicle and told Jedidiah to get the keys to his brother Ben’s Ford Ranger truck parked out front. (Tr. I, 256-57.) When Jedidiah did not respond quickly, Petitioner raised his voice and told him that he needed the keys. (Tr. I, 257-58.). Jedidiah went to tell his brother that he needed his car keys. (Tr. I, 258-59.) While his brother was getting the keys, Petitioner told Jedidiah to get him a pair of scissors so he could cut the phone line in the kitchen. (Tr. I, 260-61.) After he cut the phone line, Petitioner walked out the door, but came back and asked if there were any more phones in the house. (Tr. I, 263.) Jedidiah gave Petitioner his wife’s cell phone, but did not disclose the fact that there were additional telephones in the master bedroom and office. (Tr. I, 263-64.) Petitioner took the cell phone and left in Ben’s truck. (Tr. I, 262.)

Bonnie Flynn testified that she was in her bathroom changing clothes when she heard the knock at the door. She heard her husband answer the door and then heard another voice she did not recognize saying “get the keys now” or something to that effect. (Tr. II, 6.) When she finally walked out into the living room, she saw only her husband and brother-in-law, who both were looking at the door. (Tr. II, 6-7.) They told her that a man had cut the kitchen phone line and was trying to steal Ben’s truck. (Tr. II, 7.) Bonnie testified that as she was turning back toward the bedroom to call the police, the man came back in through the door with a shotgun and asked if there were any other phones in the house. (Tr. II, 8.) Bonnie identified Petitioner as the man who was in her house. (Tr. II, 9.) Bonnie saw Petitioner coming and tried to hide under a blanket in the living room. (Tr. II, 8.) Her husband gave Petitioner her cell phone, which was sitting on the kitchen island. (Id.) Before he left, Petitioner apologized for taking the truck and told them not to call the police for at least an hour. (Tr. II, 11, 15.) As soon as Petitioner reached the end of the driveway, Bonnie called 911. (Tr. II, 11.)

Benjamin Flynn testified that his blue Ford Ranger pickup truck was stolen from his brother’s house on March 15, 2003. (Tr. II, 17.) Ben testified that his brother went to answer the door and then came back and asked for his car keys. (Tr. II, 20.) Ben’s keys were in his duffel bag in the kitchen. (Tr. II, 21.) When Ben came out of the room where he had been playing video games with his brother, he saw Petitioner standing in the middle of the kitchen with a shotgun in his hand. (Tr. II, 20.) As Ben was handing Petitioner the keys, Petitioner said, “I’m sorry to do this to ya, fellas.” (Tr. II, 22.) Petitioner told them that he needed scissors or a knife. When they did not respond, Petitioner repeated his demand in a louder voice. (Id.) When his brother gave Petitioner a pair of scissors, he cut the phone line in the kitchen. (Id.) On his way out the door, Petitioner told Benjamin that he would be dropping the truck off, and then paused as if he was going to tell him where, but then changed his mind. (Tr. II, 23.) Petitioner also told them to wait an hour before trying to contact the police. (Id.) A few moments later, Petitioner came back in the front door and asked if there were other phones in the house. (Tr. II, 24.) Ben’s brother initially responded “no,” but when Petitioner seemed to be getting angry, Jedidiah gave him a cell phone that was sitting on the kitchen counter. (Tr. II, 24-25.) Petitioner took the cell phone and left. (Tr. II, 25.)

Michigan State Police Officer Steven Porter testified that he became involved in the pursuit of a stolen truck on March 15, 2003. (Tr. II, 30.) After the truck stopped and the driver fled into the woods, Porter took a long gun from his patrol ear and joined the other officers who had gone into the woods to search for the driver. (Tr. II, 33.) Porter could see a man walking in the woods ahead of Trooper Wise. Trooper Wise was instructing the man to stop and put down his weapon, but the man continued to walk away. (Id.) The officers lost the man in the woods, but continued to look for him until they received a radio call that he had stolen another vehicle. (Tr. II, 36.) Porter went back to his car and went to join the pursuit. (Id.) When Porter arrived near the end of the pursuit, the man was driving a stolen Kalkaska County Sheriffs Department car. (Tr. II, 37.) A state trooper stopped the stolen car by ramming into it and then boxing it in. (Id.) Porter identified Petitioner as the man who got out of the stolen police car. (Tr. II, 37-38.) Petitioner stood outside the car, but refused orders to get down on the ground. (Tr. II, 65.) He was unarmed and eventually was tackled by police officers. (Tr. II, 39.) Petitioner fought, kicked and yelled at police until he was placed in handcuffs and leg restraints. (Id.) A shotgun was found on the passenger seat of the stolen police car. (Tr. II, 52.) The gun was not department issued and was not in a holder. (Tr. II, 53.)

Officer Porter inventoried the items found in the red Sonoma truck. (Tr. II, 40.) He found camping equipment, including a sleeping bag, a camping mattress and a tent. (Tr. II, 40-42.) Poter also found some clothing. The following day, Officer Bonfiglio turned over the backpack and shotgun shells that he seized from the truck after the initial stop. (Tr. II, 44.) Porter testified that the ammunition found in the red Sonoma was sixteen-gauge, number 4 shot, which is commonly used for bird hunting. (Tr. II, 60-61.) The backpack contained clothing and a water purifier. (Tr. II, 45.) Porter was present when Morley came to identify the Sonoma truck. (Tr. II, 54-55.) He and Morley discussed the amount of gas in the truck at the time it left the dealership. (Tr. II, 55.) According to Porter, the truck had three-quarters of a tank of gas when it was recovered. (Id.) Porter also examined a Jeep Wrangler that was recovered from Williams Chevrolet. (Tr. II, 46-48.) The Jeep did not have side mirrors or a rear-view mirror and had cracks in the windshield and driver’s side window, which would be grounds for a police officer to stop the vehicle. (Tr. II, 48-50.)

Michigan State Police Officer Shawn Wise testified that he spotted the stolen Sonoma truck as he was driving on U.S. 131. (Tr. II, 71.) Wise turned around and pursued the truck. (Id.) The truck picked up speed and began to weave in and out of traffic. (Tr. II, 72.) As Wise continued the follow the truck with his lights and siren activated, he could see the driver handling a long gun inside the truck. (Tr. II, 73.) The gun came out of the driver’s window and shots were fired in the direction of Wise’s patrol car. (Tr. II, 73-75.) Wise could hear gunshots striking his car. (Tr. II, 73-74, 105.) One shot hit on the pillar portion of the door between the windshield and the driver’s side window. (Tr. II, 98-99.) Wise testified that when the driver slowed down to make a turn, he waived at Wise and flipped him off, which struck Wise as strange behavior. (Tr. II, 104.) Due to the poor road conditions, the truck, which was equipped with four-wheel drive, moved ahead of the patrol cars, which did not have four-wheel drive. (Tr. II, 77-78.) After the truck came to a stop at a dead end, Wise pulled up and saw the driver standing on the passenger side of the truck with a back pack and a long gun. (Tr. II, 84.) The man looked at Wise and walked into the woods. (Id.) Wise shouted at him to “drop the gun,” but he just looked back at Wise and continued to walk away. (Tr. II, 85.) Wise took the rifle from his patrol car and followed the man into the woods. (Id.) Wise did not shoot at the man because he was not pointing his gun or shooting at the officers. (Tr. II, 86.) The officers lost the man after he went over a ridge into a ravine. (Id.) The officers received a call ten or fifteen minutes later that another truck had been stolen. (Tr. II, 87.)

Wise testified that he caught up with the pursuit just before the man was captured. At that time, the man was driving a Kalkaska County Sheriffs Department car. (Tr. II, 88.) Wise assisted with the apprehension. (Tr. II, 89.) After the man was subdued and handcuffed, he said something about having a gun. (Id.) The man had been shot in the leg, so EMS transported him to the hospital for treatment. (Tr. II, 91.) Wise identified Petitioner as the driver of the truck who was pursued and apprehended. (Id.)

Kalkaska County Sheriffs Deputy Aaron Popa testified that he also became involved in the pursuit of the stolen red Sonoma truck. (Tr. II, 112.) Popa attempted to use his patrol car to block the truck, but the driver was able to get around Popa. (Tr. II, 115.) When the truck reached a dead end and stopped, Popa saw the driver exit the vehicle with a long gun and backpack and walk into the woods. (Tr. II, 115, 122.) Popa did not shoot at the man because he did not raise his gun or threaten the officers. (Tr. II, 116.) After the man was apprehended, Popa photographed an unlocked shotgun laying on the passenger seat of the stolen patrol car. (Tr. II, 117.) Popa then removed the shotgun from the car to secure it. (Tr. II, 118.) The gun was loaded, but there were no rounds in the chamber. (Tr. II, 119.)

Kalkaska County Detective Abe Devol testified that he also was involved in the long-distance pursuit of Petitioner. (Tr. II, 128.) Devol was working under cover at the time, so he was driving an unmarked ear. (Id.) When Devol heard that the suspect fled into the woods, he took up a position on the other side of the wooded area and used binoculars to watch for anyone emerging from the wood line. (Tr. II, 129-30.) While he was watching, Devol saw a blue Ford Ranger pickup truck speed out of the driveway of a nearby house. (Tr. II, 130.) The man driving the truck matched the description of the suspect, so Devol followed the truck for some distance. (Tr. II, 131.) The suspect unexpectedly slammed on his breaks and stopped. (Tr. II, 132.) Devol stopped behind the truck. The suspect got out of truck and starting advancing toward Devol’s car. (Id.) Devol identified Petitioner as the driver of the truck. (Tr. II, 142.) Devol testified that Petitioner held his hands up and did not appear to have any weapons in his possession. Devol got out of his ear and identified himself as a police officer. (Tr. 11,133.) At that point, Devol’s Sheriffs Department jacket and badge were in plain view. Petitioner looked bewildered and ran back to his truck. (Id.) Devol ordered him to stop and lay down on the ground, but he did not comply. (Tr. II, 133-34.) Petitioner got back in the truck and locked the door before Devol could catch him. (Tr. 134.) Petitioner dove away while Devol was trying to open the truck door. (Tr. II, 134.)

Devol continued to pursue Petitioner. (Tr. II, 134.) A marked Sheriffs Department car joined the pursuit and positioned itself immediately behind the truck. (Tr. II, 136-37.) After about ten miles Devol lost control of his car and spun out due to the poor road conditions. (Tr. II, 137-38.) When Devol was able to re-join the pursuit, he saw the blue Ford Ranger stuck in a ditch. (Tr. II, 139.) He then saw Deputy Griffith walking down the roadway with his gun out and blood running down his arm. (Tr. II, 139.) Griffith’s patrol car was not in sight. Devol determined that Griffith was not seriously injured and went after Petitioner, who now was driving Griffith’s patrol car. (Tr. II, 140.)

Kalkaska County Sheriffs Deputy Scott Alan Griffith testified that he was chasing the blue Ford Ranger truck when it lost control and slid into a snowbank. (Tr. II, 154-55.) Griffith stopped behind the truck. Petitioner got out of the truck with a long gun and started advancing toward Griffith’s car. (Tr. II, 158.) Griffith got out of his car armed with his handgun raised and moved toward the rear of his patrol car. (Tr. II, 158-59.) Griffith began firing shots at Petitioner, but he continued to advance. Petitioner was yelling something at Griffith, but Griffith could not hear him over the siren on his patrol car. (Tr. II, 160.) Griffith moved around to the passenger side of the vehicle and could see Petitioner through the windows. (Tr. II, 161.) Griffith began shooting across the car through the windows. (Tr. II, 161.) He shot until he was out of ammunition; his gun held twelve shots. (Tr. II, 161-62.) As Griffith was planning to reload his gun, his car began to move away. (Tr. II, 163.) After the confrontation was over, Griffith realized that he had been shot and had shotgun pellets lodged all over the right side of his body, including his leg, side, arm, shoulder and head. (Tr. II, 160,164.) Most of the pellets were concentrated in his right arm. (Tr. II, 164.) He was wearing a bullet proof vest when he was shot. (Tr. II, 168.) At the time of trial, Griffith still had nine or ten pellets left in his body. (Tr. II, 166.)

Linden Bielecki testified that he was employed as the Constable for the Township of Mancelona. (Tr. II, 173.) As Constable, Bielecki was responsible for ordinance enforcement in the Township, but could not enforce state laws and did not carry a firearm. (Tr. II, 174.) Bielecki had been driving behind Devol when Petitioner stopped, got out of the truck and began advancing quickly toward Devol’s car. (Tr. II, 179.) Bielecki heard Devol say something and then saw Petitioner run back to the truck. Devol instructed Bielecki to use his car to cut off the truck, but Petitioner got around him and drove away. (Tr. II, 179-180.) Bielecki and Devol continued to follow Petitioner, who was ignoring traffic signs and signals. (Tr. II, 180.) Bielecki continued the pursuit to the location where Petitioner went off the road. (Tr. II, 182.) By the time he approached, any exchange of gunfire had already occurred and Deputy Griffith’s car was gone. (Tr. II, 182.) Bielecki stayed with Griffith and administered first aid until more assistance arrived. (Tr. II, 183-84.)

Steven Hickman of the Michigan State Police Forensic Crime Lab testified that he was involved in the investigation of the scene where Deputy Griffith was shot. (Tr. II, 189.) Hickman created a sketch of the scene, which included the location of the blue Ford Ranger truck, broken glass, tire tracks, blood droplets and ten spent cartridge cases. (Tr. II, 190.) There were two bullet holes in the back of the truck. (Tr. II, 191.) Hickman also examined two guns in connection with the shooting-the officer’s weapon and a Remington shotgun. (Id.) The shotgun was recovered from the front seat of the stolen patrol car. (Tr. II, 192. ) It was a sixteen-gauge semiautomatic shotgun. (Id.) At the time the shotgun was recovered, it had a round inside the chamber and was ready to fire. (Tr. II, 193. ) There was no other ammunition in the gun. (Id.) Because the extractor was missing from the gun, it jammed when multiple test shots were fired. (Tr. II, 194-96.) As a result, the gun had to be reloaded after each shot to prevent jamming. Hickman compared three spent shell casings from the scene of the shooting to the shotgun. He also compared live and spent shotgun shells recovered from inside the red Sonoma truck. (Tr. II, 196-97.) Hickman determined that the two spent shotgun shells recovered from the Sonoma truck were fired from the shotgun. (Tr. II, 197.) A third spent shell found in the stolen patrol car also was fired by that shotgun. (Tr. II, 198-99.) All three shells were Remington number 6 shot. (Tr. II, 200.) According to Hickman, each 6 shot shell contains 225 pellets. (Id.) By measuring the pellet pattern on Deputy Griffith’s clothing, Hickman opined that the shot that hit Griffith was fired from between twenty and thirty-six feet away. (Tr. II, 204-05.) Twenty-nine pellets hit Griffith’s shirt. (Tr. II, 205.) Hickman testified that a load of number 6 shot could be considered a lethal weapon. (Tr. II, 210.) Hickman also matched two bullets and two bullet fragments taken from the scene of the shooting to the officer’s service weapon. (Id.)

Michigan State Police Detective Sergeant Kevin Day testified that he assisted with the investigation in this case. (Tr. II, 230.) Day went to Charlevoix Community hospital, where Petitioner was taken for treatment following his arrest. (Tr. II, 231.) Shortly before he arrived, Day heard that Petitioner attempted to grab an officer’s weapon either at the hospital or on the way to the hospital. (Tr. II, 234-25.) After receiving clearance from the doctor treating Petitioner, Day initially spoke with Petitioner while he was still in the emergency room. (Tr. II, 232.) Day was not sure what medication Petitioner had received at that point, but he may have received some pain medication. (Tr. II, 251.) Day introduced himself and Petitioner responded appropriately to his questions. (Tr. II, 233.) Day asked Petitioner to consent to a blood test. Petitioner appeared to understand the request and gave his consent. (Id.)

Day attempted to conduct a more thorough interview after Petitioner was moved to a private room. (Tr. II, 235.) Another officer informed Petitioner of his Miranda rights in the ambulance, but Day wanted to inform him of his rights again before asking any further questions about what had occurred. (Tr. II, 235.) In response to the Miranda rights, Day testified that Petitioner gave an ambiguous statement that he needed some time to think about it and “might” want to talk to an attorney. (Tr. II, 236.) Day asked Petitioner what he thought he might be charged with and Petitioner responded, “attempted murder,” and was concerned about going to prison for the rest of his life. (Tr. II, 236.) During the conversation, Petitioner talked about his problems and said that God let him down. (Tr. II, 252.) Petitioner also said that if he talked to the police, “people would get hurt.” (Tr. II, 253.) After forty-five minutes to an hour of discussion about whether Petitioner was going to waive his rights, Day left Petitioner’s room to give him some time to think. (Tr. II, 252.) When Day went back ten or fifteen minutes later, Petitioner stated that he better not talk about the situation. (Tr. II, 237.) In light of his interaction with Petitioner, Day believed that Petitioner understood everything they discussed. (Tr. II, 237.) Day did not tape his conversation with Petitioner. (Tr. II, 253.)

Day took possession of all the clothing that Petitioner was wearing at the time of his arrest. (Tr. II, 238.) Day found a cell phone in the pants pocket. (Tr. II, 238.) Petitioner also had over $200 in cash on his person. (Tr. II, 239). Day prepared search warrants for a 1987 Jeep belonging to Petitioner and for his residence in Traverse City. (Tr. II, 241.) Day recovered a sixteen-gauge shotgun and a box of number 6 birdshot-size shells from the Jeep. (Tr. II, 242.) From the residence, officers found a handwritten note between the bed mattresses, which contained handwritten notations stating, “w/a silencer and steal it” and “fix shotgun.” (Tr. II, 244^5.) Police also seized a black and white composition notebook and a brown notebook from Petitioner’s bedroom, which contained hand-written entries. (Tr. II, 246.)

Michigan State Trooper Dave Meder testified that he used a special ramming maneuver that caused the stolen patrol car Petitioner was driving to spin out. (Tr. II, 259-262.) When the car came to a stop, it was blocked in by Meder and other police vehicles. (Tr. II, 262.) Petitioner got out of the car unarmed and began to walk slowly toward the river, which was directly south of the car. (Tr. II, 263.) Several officers were yelling at him, but he did not appear to be listening. (Id.) After Petitioner walked about fifteen feet, Trooper Halverson tackled Petitioner to the ground. (Tr. II, 264, 267.) Meder could see Petitioner’s mouth moving, but he could not hear what Petitioner was saying over the sirens. (Tr. II, 268.) Meder testified that if Petitioner had reached back into the patrol car for the shotgun, Meder would have shot him. (Id.)

Kenneth Berends testified that he lived at 3116 Six Mile Lake Road in East Jordan. (Tr. Ill, 22.) On March 15, 2003, Berends was out working on his truck when he heard a car pull up in the driveway. (Tr. Ill, 23.) Berends saw a police car that had shattered windows on the passenger side. (Tr. Ill, 24-25.) As Berends approached the car, Petitioner got out with a shotgun. (Tr. Ill, 23-24.) Petitioner asked Berends if he could take his truck for a joy ride. When Berends told him that his truck was not running, Petitioner got back in his car and left. (Tr. Ill, 24.) After Petitioner left, Berends heard what sounded like handgun fire in the distance. (Tr. Ill, 25.)

Atrim County Sheriffs Deputy Jonathan Wheatley testified that he joined the pursuit of Petitioner after he had stolen the police car. (Tr. Ill, 6-11.) As Wheatley was driving down Six Mile Lake Road looking for Petitioner, he spotted the stolen police car parked in a driveway. (Tr. Ill, 13.) Wheatley drove by slowly and observed two men standing in the driveway talking. (Id.) Wheatley did not want to risk confronting Petitioner at the residence. When Petitioner saw the police car passing by, he got back in the stolen car, backed out of the driveway and drove away. (Tr. Ill, 14.) Wheatley turned around to follow him. (Id.) During that part of the pursuit, Petitioner was not driving at an excessive rate of speed, but he did not stop at stop signs or red lights and showed no intent to stop. (Tr. Ill, 21.) After his car was stopped by police, Petitioner walked ten or fifteen feet from the car. (Tr. III, 19.) At that point, he started to move back toward the car. One of the officers kicked the car door closed. (Id.) Petitioner was yelling profanities when he was apprehended. (Tr. II, 20.)

Grand Traverse Sheriffs Deputy Roy Raska testified that he was present when the chase ended in East Jordan. (Tr. Ill, 29.) Raska rendered first aid to Petitioner after he was arrested and placed him in the back of a police car. (Tr. Ill, 29-30.) Petitioner had what appeared to be a gunshot wound to his left thigh. (Tr. Ill, 30.) Petitioner told Raska that he got shot when he was taking the patrol car. (Tr. Ill, 31.) During the first aid process, Raska and Sergeant Meachum discussed that a Kalkaska County deputy had been shot. When Petitioner heard that he stated, “Someone got shot? I didn’t shoot until they shot at me.” (Tr. Ill, 31.) An ambulance came and transported Petitioner to the hospital. (Tr. Ill, 30.) During the ambulance ride, Raska informed Petitioner of his Miranda rights and agreed to answer some questions. (Tr. Ill, 31.) Petitioner told Raska that he was living out of his Jeep, which was parked at Williams Chevrolet. (Tr. Ill, 32.) With regard to the deputy that got shot, Petitioner stated, “Did he get shot, I know I wasn’t aiming at him.” (Id.) Petitioner told Raska that he was test driving trucks at Williams Chevrolet because he did not think his Jeep could outrun the police. (Tr. Ill, 33.) Petitioner stated that he did not plan to return the truck when he took it for the test drive. Raska could smell alcohol on Petitioner’s breath and got his consent for a blood test after they arrived at the hospital. (Id.) Petitioner told Raska around 5:00 p.m. that he had his last drink around 2:00 p.m. (Tr. Ill, 35.) The blood test results were negative for alcohol. (Tr. Ill, 35-36.)

Antrim County Sheriffs Deputy Michael Harvey testified that he and Deputy McKinley were charged with guarding Petitioner while he was in the hospital. (Tr. Ill, 39.) Petitioner’s wrists were handcuffed to his bed rails, but the officers removed the handcuffs so that he could be moved to the X-ray table. (Tr. Ill, 39-40.) While the officers were moving Petitioner from the X-ray table back to his bed, Petitioner reached toward Harvey’s gun. (Id.) Harvey grabbed Petitioner’s hand before he actually reached the gun and he and Deputy McKinley placed Petitioner back in the handcuffs. (Tr. Ill, 41.)

Harvey further testified regarding the items found in the red Marlboro backpack that was left in the blue Ford Ranger truck. The backpack contained the following: an empty box of shotgun shells; a camera; a CD player and CDs; a bag containing Visine, Rolaids, Ibuprofin, etc.; sunglasses; a compass; a hatchet; a book of matches, lighters, a social security card for Tracy Lautner; telephone calling cards; and a flashlight. (Tr. Ill, 47-49.) In addition, the backpack contained a brown hardcover journal and a red spiral notebook. (Tr. Ill, 50.) Writings in the notebooks discussed a plan to steal a Dodge Dakota, which led the officers to the Bill Marsh Dodge Dealership. (Tr. Ill, 51-52.) The entries in the notebooks from March 14 and 15 indicated that Petitioner planned to travel to Wacora, Oklahoma. (Tr. Ill, 54.) There was nothing in those entries suggesting that Petitioner planned to kill himself or to have the police do it for him. (Id.)

Steven Carl Goeke was the first witness called by the defense. He testified that Petitioner was his roommate between April and October of 2002. (Tr. Ill, 66.) Petitioner became Goeke’s roommate after he responded to an advertisement in the newspaper. Petitioner seemed normal at first, but Goeke began to notice some unusual things about him after a few months. (Id.) For example, Petitioner expressed the belief that people could read his thoughts. (Tr. Ill, 67.) On one occasion, Petitioner was sitting in front of the television with his eyes closed and told Goeke that he was watching it with the third eye in his forehead. (Id.) Petitioner also complained of headaches while the third eye was growing out of his forehead. (Tr. Ill, 77.) When Petitioner read in the newspaper about bad things that had happened, like a flood or tornado, he believed that God was punishing him for something that he had done wrong. (Tr. Ill, 68.) During the time that they lived together, Petitioner worked for a landscaping company and delivered pizzas. (Tr. Ill, 69.) Petitioner told Goeke about a trip he took out west to get a message from God. A few days before Petitioner’s mother died from cancer, he took another trip for two or three weeks. (Id.) Petitioner believed that his mother’s cancer was his fault; a punishment from God. (Tr. Ill, 70.) When Petitioner left on his trip, he packed as much as he could in his Jeep and said that he was going to get a message from God. (Id.) Goeke did not allow guns in his house and never saw Petitioner with a gun. (Tr. Ill, 72.)

Kalkaska County Sheriffs Deputy Richard Gillisse testified that he worked as a corrections officer at the county jail where Petitioner had been incarcerated for fifteen months preceding his trial. (Tr. Ill, 79-80.) Petitioner was removed from his maximum security cell for one hour per day. (Tr. Ill, 80.) During that time, he often was taken to the multipurpose room where he could use the computers or watch television. (Id.) According to Gillisse, Petitioner got agitated when he watched television because he thought that the people on television were talking about him. (Tr. Ill, 80-81.) Petitioner asked for medication right away, but was refused until he was seen by the doctors required by the jail. (Tr. Ill, 81.) Petitioner was placed on suicide watch for a few weeks because he was very agitated and angry and was yelling and swearing a lot. (Tr. Ill, 82.) Petitioner began to improve after a couple of months when he started receiving medication. (Tr. Ill, 81.) Even after he went on medication, Petitioner occasionally had loud outbursts at the jail. (Tr. Ill, 86.) Gillisse testified that Petitioner received materials about mental illness from his attorney or Community Mental Health. (Tr. Ill, 87-89.)

Shirley Robertson, Petitioner’s Aunt, testified about an incident that occurred in early 2002, when Petitioner and his girlfriend showed up at her door. Robertson had not seen Petitioner for a couple of years. (Tr. III, 99.) Petitioner was very distressed about a paper that he was trying to show her because he had signed a contract with the devil. (Tr. Ill, 94.) The paper Petitioner showed her was about a truck repossession. (Tr. Ill, 96.) Petitioner was working as a surveyor at that time and used the truck for his survey work. Petitioner told Robertson that he was having trouble getting his survey jobs done because God was talking to him and he had to leave his job immediately to tend to whatever God wanted him to do. (Tr. Ill, 97.) Petitioner’s girlfriend told Robertson that she got calls from Petitioner during the night asking her to come over because he thought that the people going by his house were coming to get him. (Id.) Petitioner also asked Robertson about Cain and Abel from the bible because he had crossed paths with someone named Cain and believed that was a sign that there was something bad going on. (Tr. Ill, 96.) Robertson believed that Petitioner had a good relationship with his minor son and spent time with him on a regular basis. (Tr. Ill, 95, 100.) Robertson testified that she was concerned about the child’s welfare in light of Petitioner’s mental state, but only mentioned the issue to her family. (Tr. III, 101-103.)

Dr. Steven Norris testified that he was a forensic psychologist employed at the Center for Forensic Psychiatry. (Tr. Ill, 120.) Norris met with Petitioner on May 15, 2003, for a court-ordered forensic evaluation of his competency to stand trial and criminal responsibility. (Tr. Ill, 122.) At the time Norris interviewed Petitioner, he was not on medication and told Norris that he had not taken medication for some time before he committed the offenses in this case. (Tr. Ill, 139.) Norris believed that Petitioner was still psychotic when he conducted the evaluation. (Id.) Norris concluded that Petitioner was competent to stand trial. (Tr. Ill, 124.) Norris explained that competency concerns a person’s present ability to work with their attorney and the court, and is distinct from criminal responsibility, which concern’s a person’s mental state at the time of the criminal offense. (Tr. Ill, 125.) In order to be found criminally insane, a person must be mentally ill at the time of the offense and lack the substantial ability to appreciate the wrongfulness of their behavior or be unable to conform their behavior to the law. (Id.) In Norris’ opinion, Petitioner was legally insane at the time of the offenses charged in this case. (Tr. Ill, 126.) Norris further opined that Petitioner could conform his behavior at the time his committed the offenses, but he lacked the appreciation for the wrongfulness of his conduct because he believed that he was being directed by God. (Tr. Ill, 134.)

Norris testified that he reviewed the report prepared by the prosecutor’s expert, Dr. Clark, who found that Petitioner was mentally ill, but not criminally insane at the time of the offenses. (Tr. Ill, 142.) Their difference in opinion came down to the issue of whether Petitioner could appreciate the wrongfulness of his conduct. Norris explained that Petitioner did things like cutting telephone lines, telling people not to call the police and running away from the police because he knew how people were going to react to him, but his motivation was psychotic, i.e., he believed he was being directed by God. (Tr. Ill, 135, 142-43.) Norris opined that Petitioner had confused motives with regard to what he intended to do on March 15; he talked about being killed by police, jumping off the Mackinac Bridge and taking a trip out West. (Tr. Ill, 135.) According to Norris, his confused plans were consistent with his mental illness. (Tr. Ill, 136.) Norris testified that Petitioner’s behavior on March 15 may not have been consistent with that of a person trying to commit suicide or get killed because he was ambivalent about death. (Tr. Ill, 138.) Norris could not give an opinion regarding whether Petitioner was trying to hurt someone during the events of March 15. (Tr. Ill, 140.)

The prosecutor cross-examined Norris regarding inconsistencies with Petitioner’s alleged intent to die on the day he committed the offenses. Norris could not recall whether Petitioner’s journal entries from March 14 and 15 mentioned anything about committing suicide or getting killed by police. (Tr. Ill, 151-52.) The entries did include plans to take a trip to Oklahoma to kill a police officer and then to travel on to California. (Tr. Ill, 152-54.) Norris agreed that all of the gear in Petitioner’s truck was more consistent with taking a long trip than committing suicide. (Tr. Ill, 154.) Norris thought it was possible for Petitioner to fabricate his story that he was suicidal on March 15, 2003, but believed that Petitioner had multiple, confusing plans. (Id.) Norris also believed that Petitioner’s story was supported by the records from Petitioner’s previous hospitalization at Munson when he talked about being fearful of dying or having to die. (Tr. Ill, 156-57.) Norris agreed that it was common for mentally ill defendants to lie or give a self-serving version of the facts if they think it will help them. (Tr. Ill, 157-58.) At the same time, it was common for a mentally ill person to have trouble remembering events or to have confused memories. (Tr. Ill, 157-58.)

Norris testified that Petitioner was aware that the police would chase him if he stole the truck because he still understood cause and effect and how the police and people would react to him, but Petitioner still believed that he was carrying out God’s will. (Tr. Ill, 165.) Norris gave the same explanation when the prosecutor asked why Petitioner apologized to the Flynn’s when he stole the truck from their home. (Tr. Ill, 168-69.) Norris agreed that much of Petitioner’s behavior was not consistent with his alleged motive to get shot by the police, but believed that Petitioner had mixed motives regarding whether he wanted to kill himself or be killed. (Tr. Ill, 168, 172, 180.) Norris conceded that Petitioner never mentioned to anyone on March 15 that he was on a mission from God, nor did he tell anyone that he intended to commit suicide. (Tr. Ill, 169-71.) Norris also agreed that Petitioner made calculated, goal-oriented decisions throughout the day, but believed that the delusion motivated his conduct. (Tr. Ill, 182.) Norris testified that he had conducted thousands of evaluations and found the vast majority to be criminally sane. (Tr. Ill, 187.) None of the scenarios presented by the prosecutor on cross-examination caused Norris to change his opinion that Petitioner was criminally insane at the time he committed the charged offenses. (Tr. Ill, 189.)

Petitioner testified that he first became aware of having mental problems on January 1, 2002. (Tr. Ill, 192.) On that date, Petitioner was in a bar having a couple of beers when he realized that the band was singing songs about him. (Tr. Ill, 193.) When the drummer gave him a nod, Petitioner walked out of the bar and could hear one bouncer say to another bouncer, “look, he freaked out.” (Id.) Petitioner previously had his own business, Lautner Positioning. He conducted topographical surveys of cell towers in Michigan and Ohio. (Tr. Ill, 194.) Petitioner also had a minor son with whom he had regular visits up to 2002. (Tr. Ill, 193-94.) After the incident in the bar on January 1, 2002, Petitioner began receiving signs. For example, after he left the bar on January 1, he believed that the music on the radio was telling him that a woman he was dating, Tara Carol, was pregnant with his child and was going to get an abortion. As a result, he stayed up all night driving to different abortion clinics looking for Carol. (Tr. III, 195.) Petitioner found himself following signs almost every day and was only getting a few hours of sleep each night. (Tr. Ill, 195-96.) Because of the signs, he stopped working and spending time with his son. (Tr. Ill, 196.)

Petitioner described that on Valentine’s Day, he heard church bell’s ringing, which he took as a sign to go to the church. (Tr. Ill, 196.) During the service, the minister told him to go on a journey for forty days and forty nights with nothing but the clothes on his back. (Tr. Ill, 197.) Petitioner left his bicycle at the church and started running around town following signs. At one point, he sat down on a bench dedicated to Judge McCormick, which he took as a sign that he needed to find Judge McCormick. (Tr. Ill, 197.) When he went to the courthouse, they told him that McCormick no longer was a judge, which Petitioner took to mean that he had fulfilled his obligation to God. (Tr. Ill, 198.)

That night, Petitioner woke up and heard cars and traffic going by his window, which he took as a sign of evil. (Tr. Ill, 198.) Petitioner thought about a song on a CD that he had just bought called “Flee” and saw a bug in his bathroom that looked like a flea and took those as signs that he should flee his apartment. (Tr. Ill, 198-99.) Petitioner got into his truck and started driving. He believed that other cars were chasing him and egging him on. (Tr. III, 199.) The music playing in his truck told him to drive to New Orleans. Petitioner testified that he hated New Orleans, but he was going because he was told to go there, (Id.) Petitioner explained that he began to receive thoughts that “they” were tracking him due to all of the electronics in his truck, so he decided to ditch his truck and go on foot. (Tr. Ill, 199-200.) He remembers the minister’s words about going with nothing but the clothes on his back, so he abandoned his truck and left everything behind. (Tr. Ill, 200. ) He threw his keys, cigarettes and the contents of his back pack into the woods. He also took $450.00 out of wallet and threw it on the ground. (Tr. Ill, 200-201. ) Petitioner removed his coat and walked into the woods wearing only his shirt and vest. (Tr. Ill, 201.) As Petitioner walked along a railroad grade, he saw peripheral lights flashing, which he took to be fairies. (Id.)

Later, Petitioner saw a light glowing in the forest, which turned out to be a house. (Tr. Ill, 202.) As he got closer to the house, he was transfixed by the glow that turned into a really bright Jesus Christ. (Tr. Ill, 202.) Petitioner could see that a man was still up in the house watching television. (Tr. Ill, 203.) Petitioner believed that he was supposed to talk to the man so he knocked on the door. The man told Petitioner that he’d better go and closed the door. (Tr. Ill, 203.) Petitioner continued on for a while, but he was very cold and his feet were wet, so he decided to stop following the signs and went back to the house. (Tr. Ill, 203.) The man did not answer the door, but a short time later, two police officers drove up. Petitioner did not tell them what he was doing because he did not trust them and thought they were clones. (Tr. Ill, 203.) Petitioner went with the officers voluntarily and they took him to the hospital in Manistee. (Tr. Ill, 203-04.) After some testing, he was voluntarily admitted to Traverse City Center One for psychiatric treatment. (Tr. Ill, 204.) He was in the center for five days. (Tr. Ill, 204.) He was prescribed Risperdal and Ativan, but they did not help him. (Tr. Ill, 205.)

After his release from Center One, Petitioner continued to receive signs. (Tr. Ill, 207.) At that point, the signs were telling him to go to Florida. (Id.) Petitioner was frightened and had only $120.00, but believed that he must go. (Tr. Ill, 209.) He packed a backpack and drove to a friend’s house, where he left his truck. Petitioner hitchhiked all the way to Florida in less than a week. (Tr. Ill, 210.) The truckers Petitioner met were Christians and one of them told him about a church in Brownsville, Florida, that was having a seven-year revival. Petitioner thought that was where God wanted him to go and made that his destination. (Tr. Ill, 211.) After a few days staying at shelters in Florida, Petitioner called his mother. She was worried about him and told him to come home. (Id.) After Petitioner returned home, he moved in with Steve Goeke and got a job with Grand Traverse Organic Landscaping. (Tr. Ill, 212.) Petitioner lost his job because he was unable to concentrate due to the signs. (Id.) Petitioner also was disturbed by his belief that everyone could read his mind. (Tr. Ill, 212-13.)

Petitioner testified that he believed that he caused his mother’s ovarian cancer. (Tr. Ill, 213.) When she took a turn for the worse, he left town again to see if her condition would improve. (Tr. IV, 214.) This time, God was telling him to go to Cadillac, Michigan. (Id.) Petitioner drove his Jeep to Cadillac and spent the night in a camp ground. The following day he starting driving south and ended up in Albuquerque, New Mexico. (Tr. Ill, 215.) Petitioner spent a couple of weeks there and worked odd jobs to earn enough money to drive home. (Tr. III, 216.) When he returned home, he got a bed at a homeless shelter in Traverse City. (Id.)

With regard to the events of March 15, 2003, Petitioner testified that he had written several plans in his journals. (Tr. Ill, 217.) Petitioner testified that he wanted to die on March 15, 2003. (Tr. Ill, 267.) Petitioner did not know where he was going in the stolen truck, but he decided to head south where it was warm. (Tr. Ill, 217.) Petitioner saw a police officer in Kingsley, Michigan. (Tr. Ill, 218.) He thought that was going to be it and made sure his gun was loaded. Petitioner stated that the officer looked right at him and waived, which Petitioner constxmed as a sign that they were proud of him and would not stop him. (Id.) At that point, Petitioner decided to jump off the Mackinac Bridge, so he turned around and started heading north. He stopped at a store to buy a pint of bourbon to give him courage. (Id.) Petitioner chose the Mackinac Bridge because he had read in the paper about a girl who jumped off the Mackinac Bridge with her baby and believed that it was his fault. (Tr. Ill, 219.)

Petitioner testified that he shot his gun out the truck window at the officers because he wanted them to shoot back at him, not because he wanted to hurt them. (Tr. Ill, 220-21, 278.) Petitioner claimed that he had access to other guns and ammunition that could have inflicted much more serious wounds. (Tr. Ill, 221.) When Petitioner got out of the first truck and went into the woods, he was surprised that the officers did not shoot at him. (Tr. Ill, 225.) When he walked down into the ravine and did not see any police officers behind him, he took that as a sign that he was supposed to get away. (Id.) Petitioner testified that there were signs along the route he took during the police pursuit that made him think he was on the right path, although there also were times when he did not get signs. (Tr. Ill, 223-24.) When he saw Mrs. Flynn go down the driveway to her home, he took that as a sign that he was supposed to take that vehicle (Tr. Ill, 226), although he ultimately stole another vehicle from the residence. Petitioner thought the police had given up and walked to the Flynn’s house. (Id.) Petitioner told the Flynns he was soxry when he stole the truck from their house because they seemed like nice people. (Tr. Ill, 271.) Petitioner did not feel that he was hurting them because he did not point his gun at them. (Id.)

After he left the Flynn’s house with the truck, Petitioner saw Officer Devol following him. (Tr. Ill, 227.) Petitioner testified that he stopped and got out of the car because he thought that it was time for him (Petitioner) to get shot. (Id.) Petitioner saw that Devol was wearing a police jacket, but thought that he was off duty since he was driving an unmarked car. Petitioner also did not know if Devol had a weapon on him, so he decided to go back to the truck. (Tr. Ill, 228.) Petitioner denied locking the doors to keep Devol out of the truck. (Id.)

When the truck Petitioner stole from the Flynn’s home slid into a ditch, he believed that it was time for a shootout with police. (Tr. Ill, 229.) Petitioner’s gun could shoot only one shot at a time and he thought he had only one shot with him. Petitioner grabbed his shotgun, got out of the truck and started walking toward Deputy Griffith. (Id.) As Petitioner approached him, Griffith ran around to the passenger side of the car and shot at Petitioner through the windows of the patrol car. (Tr. Ill, 230.) Petitioner did not realize that he fired a shot until he was driving the police car and saw that his shotgun ejector was jammed. (Id.) Griffith shot at Petitioner twelve times at close range and only him hit once in the left thigh. (Tr. Ill, 231.) Petitioner took that as a sign that he was not supposed to die in a gun fight, although he still intended to go to the Mackinac Bridge. (Id.) When Deputy Griffith ran out of ammunition, Petitioner was standing right at the door of his patrol car, so he decided to take it. (Tr. Ill, 231-32.)

Petitioner stopped at the Berends’ house because he wanted a less conspicuous car; he knew the police would be looking for the stolen patrol car. (Tr. Ill, 232.) Petitioner did not persist in getting the truck from Mr. Berends because Berends told him that the truck was not running and there was a child present. As Petitioner backed out of the driveway, he saw a deputy drive by and then make a U-turn. (Id.) There was a police radio in the patrol car he was driving, but all Petitioner could hear was a lady’s voice telling him something about “the king is going home.” (Tr. Ill, 233-34.)

After Petitioner was stopped by police in East Jordan, he got out of the car expecting to get shot by police. (Tr. Ill, 244.) Petitioner acknowledged that the officers would have been more likely to shoot him if he was armed, but he did not take the gun with him. (Tr. Ill, 276.) When Petitioner walked several feet without being shot, he tried to go back to the stolen patrol car for his gun so that the police would shoot him. (Tr. Ill, 244.) Petitioner admitted that he did not say anything about his suicidal thoughts following his arrest, but believed that he was not supposed to talk about what was happening to him. (Tr. Ill, 269.) The first person Petitioner told about his plan to be killed by police or to jump off the Mackinac Bridge was Dr. Norris, about two months after his arrest. (Tr. Ill, 277.)

With regard to the incident in the hospital where Petitioner attempted to steal the deputy’s gun, Petitioner testified that the deputy brushed up against him several times with his gun. (Tr. Ill, 281.) In addition, Petitioner claimed that the deputy said, “I’ll give you one more chance,” which Petitioner took to mean that he had one more chance to kill himself, but he was too slow to react. (Tr. Ill, 282.) At the time of trial, Petitioner was not receiving signs and was seeing things much more clearly than on the date of the offenses at issue in this case. (Tr. Ill, 256-58.) Petitioner testified that he was not on medication when he met with Dr. Norris. (Tr. III, 235.) When he talked to Dr. Clark, Petitioner was on Geodon, which was an effective treatment for him. (Tr. Ill, 205-06, 236.)

Kim Curths testified that she and Petitioner had a ten-year-old son together, but they had not lived together since their son, Trevor, was ten months old. (Tr. IV, 6, 10.) Because of their son, Curths communicated with Petitioner between February 2002 and March 2003. (Tr. IV, 6.) During that time, Curths became concerned about Petitioner having parenting time because he was saying strange things that she did not understand. (Tr. IV, 7-8.) Petitioner told her that he was being called to go places and felt compelled to go. (Id.) Before he left for New Mexico, Petitioner told Curths that he had a third eye. (Tr. IV, 8-9.) Notwithstanding Petitioner’s odd behavior, she allowed him to continue having visits with their son. (Tr. IV, 11-12.) Petitioner did not have a regular visitation schedule during that time. He showed up when he wanted to spend time with Trevor, and then took off for Florida or New Mexico because he had been called. (Tr. IV, 15.) Petitioner did not share the full details of the event that resulted in his psychiatric hospitalization in 2002. (Tr. IV, 14-15.) Sometime after he was hospitalized, Curths told Petitioner that he needed help, but Petitioner told her that he could handle it. (Tr. IV, 16.)

Dr. Charles Clark was called by the prosecution as an expert witness in forensic psychology. (Tr. IV, 24.) Clark conducted a forensic examination of Petitioner in September 2003, about six months after the charged offenses were committed. (Tr. IV, 24.) Dr. Clark was aware that Petitioner was taking Geodon, an anti-psychotic drug, at the time he conducted his evaluation. (Tr. IV, 30-31.) As part of his evaluation, Clark reviewed Dr. Norris’ report and opinion regarding Petitioner’s case. (Tr. IV, 28.) Clark believed that there were more inconsistencies in the version of the events that Petitioner gave to Clark than the version Petitioner gave to Norris. (Tr. IV, 114.) The fact that Petitioner was medicated typically would not prevent him from evaluating Petitioner’s condition at the time he committed the charged offenses. (Tr. IV, 30.) When Clark asked Petitioner if he believed the signs or messages that he was receiving were true, Petitioner responded, “I don’t know, I believe there was a force.” (Tr. IV, 44.) Petitioner understood that he had Schizophrenia, but also continued to believe that his experiences were true. (Id.) Petitioner told Clark that he was not thinking about the law on the day he committed the offenses and nothing that he did felt wrong. (Tr. IV, 45.) He thought the police were chasing him because they could read his mind. (Id.)

Petitioner told Clark that he did not recall writing the journal passages from March 14 and 15, which concerned activities like stealing a truck and driving to California. (Tr. IV, 46^47.) Petitioner also told Clark that he made journal entries on March 12 and 13 concerning pleasant, encouraging dreams, but the prosecutor ripped those pages out of his journal. (Tr. IV, 45.) When Clark questioned Petitioner about stealing the truck from Williams Chevrolet, Petitioner stated that he did not simply demand the keys from the sales agent because he did not think he would cooperate. (Tr. IV, 50-51.) Petitioner told Clark that he stole the truck because he wanted the police to chase him and shoot him. (Tr. TV, 49-50.) Petitioner took the camping gear because he did not know how far he would get. (Tr. IV, 51-52.) Petitioner said that he took the shotgun because “if they [the police] didn’t end it, [he] was going to end it.” (Tr. IV, 52.) Petitioner claimed that he dropped down to a very slow speed when he fired the shots at Trooper Wise because he wanted to make it easier for the officer to shoot him. (Tr. IV, 53.) Petitioner could not explain why, if he just wanted to get shot, he did not point an unloaded weapon at a police officer. Petitioner told Clark that it was not his intention to shoot Trooper Wise or Deputy Griffith. (Id.)

With regard to the truck Petitioner stole from the Flynn residence, Petitioner denied that he burst into the house or yelled, but told Clark that he carried the shotgun with him “for compliance.” (Tr