Farris v. Chapman

DAVID LEE FARRIS, Petitioner, v. WILLIS CHAPMAN, Respondent.

Civil No. 2:19-CV-10265

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

April 1, 2020

HONORABLE SEAN F. COX UNITED STATES DISTRICT JUDGE

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

David Lee Farris, ("petitioner"), confined at the Thumb Correctional Facility in Lapeer, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for three counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(b)(ii), and being a fourth felony habitual offender, Mich. Comp. Laws § 769.12. For the reasons that follow, the petition for a writ of habeas corpus is DENIED.

I. Background

Petitioner was convicted following a jury trial in the Macomb County Circuit Court. This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals' opinion, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See e.g. Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

This case arises from the victim's allegations that defendant, her stepfather, sexually assaulted her when she was 15 years old. On May 8, 2013, the victim's mother was out of town and defendant entered the victim's room in the late evening. He was not wearing any clothing, had a jacket covering his penis, and was carrying candy and what appeared to be a gun. Defendant held the object that resembled a gun to the victim's head and told her to shut up. Defendant took the victim to the basement and ordered her to remove her clothing. He told the victim to lie down and he licked the victim's vagina and touched her breasts. He then ordered the victim to get on her knees and suck his penis, and the victim complied. Afterwards, defendant gave the victim a pill and told her to swallow it with beer, but the victim hid the pill in her mouth and put it in the couch when defendant was not looking. She later put the pill in a makeup case in her room. The victim asked defendant whether he had ever done the same thing to his older daughters, and defendant said that he had and "they loved him for doing that to them." Defendant was smoking something out of a pipe. He eventually allowed the victim to go upstairs to her room.

Later that night, defendant again came into the victim's room. Defendant was naked and he got on top of the victim and started choking her. He told the victim to get on her knees and take off her clothing. Defendant said that he was going to take the victim's virginity and he tried to use a condom, but the victim said that she would "rather just do what happened in the basement." Defendant then told the victim to get on her knees, and after she removed her clothing, he told her to suck his penis again. Defendant ejaculated in the victim's mouth and she spit out the semen next to her bed.

The next morning, the victim got herself and her younger sisters ready for school. The victim did not tell anyone at school what had happened. After school, she called her mother, but did not tell her what had happened. The victim called her grandmother and two of her cousins and told them what happened, but no one came to help her. The victim then went home and packed clothes for herself and her sisters. She went to a neighbor's house and asked if she could go inside because she did not know if defendant was coming home, but the neighbor would not let her inside of his house, so the victim called the police from outside. The neighbor testified that the victim appeared agitated and nervous, and she said that she had been sexually abused by her stepfather the night before. The neighbor did not observe any physical injuries to the victim.

After the police arrived, the victim told them what had happened and let them inside her house. The victim directed the police to the area where she spit out the semen; the victim later told the police about a gray shirt that defendant had used to wipe himself and the floor.

Officer Brett Mosher, of the Centerline Police Department, was dispatched to the victim's location. The victim was crying, upset, and scared. Officer Mosher observed cuts on the inside of the victim's lip. The victim took Officer Mosher to her house, and he entered in order to see if the suspect was there and to secure the residence for any evidence. After a search warrant was obtained, the evidence was collected.

The victim was taken to be examined by a Sexual Assault Nurse Examiner (SANE). Marnie Vandam examined the victim. The victim recalled telling the nurse that she felt little cuts on the inside of her mouth and her neck hurt from being choked.

Vandam did not observe any physical injuries on the victim, including her lips and mouth, but she had areas of tenderness on her neck, throat, chest, arms, and back. Vandam swabbed the victim's mouth, vagina, anus, and breasts, and flossed her teeth.

Sergeant William Dempsey, of the Centerline Police Department, took pictures and collected evidence from the victim's house. Sergeant Dempsey collected the makeup compact and the pill inside of it, which was identified as Seroquel; the pill did not appear to be fresh. He also collected an area of the carpet where the victim said that she spit out the semen, a pack of Seroquel pills with one missing, a lighter that resembled a gun, packs of Seroquel prescribed to defendant, and a gray shirt that the victim said defendant had used to wipe himself and the floor.

Jodi Corsi, a forensic scientist with the Michigan State Police, processed the evidence that was collected in this case for the presence of bodily fluids. She testified that the victim's vaginal swabs were negative for saliva, and the victim's oral swabs were negative for sperm cells, but two sperm cells were found on the dental floss. In order to extract DNA from sperm cells, generally 30 to 100 sperm cells are required. Seminal fluid and sperm cells were also found on the gray shirt. The carpet sample also tested positive for saliva and seminal fluid.

Jennifer Morgan, also a forensic scientist with the Michigan State Police, processed the DNA in this case and testified that the DNA profile from the sperm on the gray shirt and the tan carpet matched defendant's DNA type. The victim also could not be excluded as a donor of the DNA found on the carpet. Morgan was unable to produce a DNA type from the sperm on the dental floss because of the minimal amount of male DNA. Morgan testified that only the victim's DNA was detected on the dental floss, so defendant was excluded as the donor, as all males were excluded. Morgan was unable to say that defendant's sperm was not on the dental floss.

Defendant was arrested on May 18, 2013. Mark O'Riordan, a United States Secret Service agent, conducted a forensic interview with defendant.¹ Defendant initially stated that he had no sexual contact with the victim, but later in the interview stated that he had woken up on the couch to the victim putting his penis in her mouth and he stopped her. O'Riordan testified that he is not permitted by the policies of the Secret Service to videotape or audio record interviews. O'Riordan testified that he informed defendant that he could not videotape the interview and defendant agreed to continue the interview.

People v. Farris, No. 324324, 2016 WL 1125920, at *1-3 (Mich. Ct. App. Mar. 22, 2016).

Petitioner's conviction was affirmed but the case was remanded to the trial court pursuant to People v. Lockridge, 498 Mich. 358, 398, 870 N.W.2d 502 (2015), which had invalidated Michigan's Sentencing Guidelines, for the judge to determine whether or not he would have imposed the same sentence even without the sentencing guidelines. Id.; lv. den. 500 Mich. 896, 887 N.W.2d 191 (2016).

On remand, the trial court judge issued an order denying petitioner resentencing because he would not have imposed a materially different sentence absent the unconstitutional restraint on its sentencing discretion. People v. Farris, No. 2014-0433-FC (Macomb County Cir. Ct. March 2, 2017)(ECF No. 1, PageID.67-69). The judge's decision was affirmed. People v. Farris, No. 337821, 2018 WL 2746344 (Mich. Ct. App. June 7, 2018), lv. den. 503 Mich. 931, 920 N.W.2d 606 (2018).

Petitioner seeks a writ of habeas corpus on the following grounds:

I. Based on the totality of circumstances, the highly incriminating and prejudicial statements elicited from Mr. Farris after being transferred to the custody of a secret service agent for a purported polygraph examination were involuntary and violated his right to counsel, right against self-incrimination and right to due process of law. The evidence adduced at the Walker hearing shows that the prosecution failed to meet its burden of proving that Mr. Farris had waived his right to counsel and voluntarily made the alleged statements. The trial court compounded the error by prohibiting defense counsel from eliciting testimony at trial about the circumstances surrounding the alleged statements and refusing a jury instruction that law enforcement failure to preserve evidence creates an adverse inference.

II. The trial court abused its discretion and deprived Mr. Farris of a fair trial and due process of law, as well as his Sixth Amendment right to cross-examination, by denying a motion for mistrial and admitting, over objection, testimony regarding other alleged sexual assaults on his daughters, which were irrelevant, inadmissible as "prior bad acts" under MRE 404(b) and unfairly prejudicial.

III. The trial court denied Mr. Farris the right to provide proof from untested sperm on dental floss and from the scene, including sperm that was allegedly on the floor, that he was excluded from the donor profile and wastherefore innocent of these charges, violating his right to introduce evidence and cross-examine witnesses, and

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