Pann v. Warren, CASE NO. 5:08-CV-13806

ROBERT PANN, #254048, Petitioner,

v.MILLICENT WARREN, Respondent.

CASE NO. 5:08-CV-13806

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Date: September 29, 2011

HONORABLE JOHN CORBETT O'MEARA

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS

CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Robert William Pann ("Petitioner") was convicted of first-degree premeditated murder, MICH. COMP. LAWS § 750.316(1)(a), and possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b, following a jury trial in the Macomb County Circuit Court in 2001. He was sentenced to life imprisonment without the possibility of parole and a consecutive term of two years imprisonment. In his pleadings, Petitioner raises claims concerning the admission of certain evidence, the sufficiency of the evidence, the conduct of the prosecutor, and the effectiveness of trial counsel. For the reasons set forth herein, the Court denies the petition for a writ of habeas corpus and denies a certificate of appealability.

II. Facts and Procedural History

Petitioner's convictions arise from the shooting death of Bernice Gray, his estranged girlfriend and the mother of his daughter, in St. Claire Shores, Macomb County, Michigan onDecember 26, 1991. Petitioner was not tried until January of 2001. The prosecution's theory at trial was that Petitioner shot Bernice in her car early that morning after she took their daughter to daycare and that he buried her body, which has never been found. The prosecution claimed that Petitioner shot Bernice because she rejected his marriage proposal and wanted to date other men. Petitioner challenged the circumstantial nature of the prosecution's case and denied committing the crime.

The prosecution presented several witnesses at trial. Bernice Gray's father, Thomas Gray, testified that he last saw Bernice on December 25, 1991. He also testified that he bailed Petitioner out of jail in late 1989 or early 1990 at Bernice's request. Petitioner had been arrested for failure to pay child support as to his first marriage and was upset. Petitioner told Gray that he knew a man who killed his old lady, disposed of her body, and got away with it, which he described as "no body, no crime, the perfect crime." Gray also recalled seeing two pistols at Petitioner's house prior to December, 1991, but did not know their caliber.

Thomas Gray's long-term girlfriend, Sandra Dzwonik, testified that she first met Petitioner in November, 1988. She helped Bernice and her daughter move out of Petitioner's home on December 12 or December 13, 1991. When she saw Petitioner at a family gathering on December 25, 1991, he was unhappy and told her that Bernice had turned down his marriage proposal and wanted to date other men.

Gary Chupailo, who resided on Florence Street two houses from Gordon Street (near Bernice's daycare provider) in St. Clair Shores, testified that he awoke at about 6:00 a.m. on December 26, 1991 to get ready for work. He heard a sound like a gunshot coming from the direction of Gordon Street around 6:30 a.m. or 6:35 a.m. He contacted the police a few days later after seeing a flyer about Bernice Gray's disappearance.

Kathy Petrik, a supervisor at Henry Ford Healthcare in Southfield, testified that Bernice Gray was a conscientious work and usually arrived early for work. Bernice was scheduled to work at 8:00 a.m. on December 26, 1991, but never arrived that day. Petrik telephoned Petitioner's home and left a message. Petitioner returned her call at 8:34 a.m. and told her that Bernice had stayed at her mother's house and might have overslept. He said that he did not know her whereabouts. Petrik then telephoned Jean Ulmer's home to report that Bernice had not appeared for work.

Bernice's best friend, Monique Diederich, testified that Bernice and Petitioner began dating in 1987, moved in together at Petitioner's home on Alexander Street in St. Clair Shores in late 1987 or early 1988, and had a daughter in 1990. In December, 1991, Bernice became interested in another man, moved out of Petitioner's home, and said that her parents were setting up a house for her and her brother. Diederich also testified that Bernice called her between 8:00 p.m. and 9:00 p.m. on December 24, 1991 and told her that Petitioner had proposed to her and given her a ring, but she had declined the marriage proposal. Petitioner then threatened to kill her and said that such action would solve any child custody issues. Diederich spoke to Bernice again around 10:00 p.m. on December 25, 1991 about their plans to attend a concert on New Years' Eve. Bernice told her that Petitioner would join them at the concert. Diederich called Bernice's office at 11:00 a.m. on December 26, 1991 and learned that Bernice had not arrived at work and her family did not know her whereabouts. Diederich called Bernice's mother, Jean Ulmer, and went to Ulmer's home after work. Petitioner arrived sometime thereafter, was greeted with suspicion, and left after five minutes. Diederich testified that she has not seen or heard from Bernice since their conversation on December 25, 1991. Diederich did not believe that Bernice would leave her daughter.

Robert Reich testified that he worked for Petitioner in 1991 doing basement waterproofingand cement work. Petitioner had a backhoe with a front-end loader, but it was stolen in November, 1991. Petitioner kept several vehicles at a storage yard and owned rental properties on the east side of Detroit in 1991. Reich testified that Petitioner picked him up at his home in Warren around 9:30 a.m. on December 26, 1991. This was unusual because Reich normally met Petitioner at the yard where his equipment was stored. He and Petitioner went to Petitioner's home. Jean Ulmer arrived, was upset, and said that Bernice was missing. Petitioner did not go look for her. Reich and Petitioner then drove to an office building to repair a basement wall crack. Reich said that the job could have been performed by one person, but he and Petitioner shared the work and it took three or four hours. Petitioner drove him home at 3:00 or 3:30 p.m. Reich also testified that he worked with Petitioner from 2:30 p.m. to 6:30 or 7:00 p.m. on December 27, 1991. They did a roofing job and then stopped at some of his rental houses.

The parties stipulated that Bernice Gray's car, a Pontiac 6000, was found on Eastlawn Street near Mack in Detroit, Michigan at 12:45 p.m. on December 30, 1991, that blood was found in the car, that DNA testing showed it to be Bernice's blood, and that two shell casings and a spent bullet were recovered from the car.

Dr. Werner Spitz, the former Wayne County medical examiner, testified that he examined Bernice Gray's car in January, 1992 and prepared a report dated February 6, 1992. He observed a large pool of blood on the passenger's seat but none on the driver's seat, blood on the top of the steering wheel, and blood splatters on the driver's side door window, the windshield, and the driver's side sun visor. He also found two shell casings and a spent bullet in the car. It was Dr. Spitz's opinion that Bernice was shot in the head while sitting in the driver's seat, that two shots were fired with one bullet remaining in the body, and that the shooter was either in the car or outsidethe car with the gun hand inside the car. He believed that Bernice dropped forward onto the steering and either fell or was pushed over onto the passenger seat. He testified that she would have been brain dead upon impact and that her heart would have stopped beating within five to ten minutes.

A Macomb County Probate Court order by Judge James Nowicki dated January 25, 1995 declaring the death of Bernice Gray was admitted into evidence. The court found that Bernice Gray was killed or may be presumed to have died by accident or disaster on Gordon Street near Florence Street in St. Clair Shores at or about 6:40 a.m. on December 26, 1991. The order provided that an intentional homicide was within the definition of an accident or disaster.

Candace Fulgenzi-Kingston testified that she was living with her family on Linwood Street in Roseville, Michigan on April 19, 1986. At about 9:30 p.m., she saw a black car like a Trans Am parked across the street and heard a woman screaming for help and saying he's going to kill me. She also heard a male voice making threats and saying, "I'm going to kill you and you're going to die tonight." In the middle of the threats, she heard the man tell the woman to "suck his dick," heard crying, and a few minutes later heard the man yell, "you bit me, you bitch, you bit me." The threats continued. Fulgenzi-Kingston called 911 and reported the incident. She saw a police car arrive a few minutes later. When the officer parked and exited his car, the couple's car sped away. The officer followed the car.

Karim Charara, the manager at Merksamer Jewelers at Lakeside Mall in Sterling Heights, testified that Petitioner came to the store alone at about 9:30 a.m. on December 26, 1991 to return an engagement ring that he had purchased on December 19, 1991. A store video showed that Petitioner was in the store at 9:42 a.m. Charara said that he tried to save the sale, but Petitioner said that he wouldn't be needing the ring or the relationship wasn't going to work. The jewelry store hada 30-day return policy. The ring cost $ 2,000. Petitioner paid $500 toward the ring and financed the remaining $1,500 at an 18% interest rate. Charara further testified that Petitioner had tracked dirt and mud on the store's carpet, which required vacuuming after he left the premises.

Roseville Police Officer John Naples testified that he responded to the assault call on April 19, 1996. As he approached the car, an Iroq Camaro, he saw a man and another person in the car. He then heard the words "no way" and the car took off. He...