DeBORAH J. GOLTZ, Judge.
This matter is before the Court on William Knappenberger's petition for a writ of habeas corpus, filed under 28 U.S.C. § 2254. Knappenberger, who is presently incarcerated at the Mid-Michigan Correctional Facility in St. Louis, Michigan, challenges his conviction for second-degree criminal sexual conduct on the grounds that the trial court (i) failed to properly swear in the complaining witness, and (ii) improperly constructively amended the information when it instructed the jury on the cognate offense of second-degree criminal sexual conduct. The Court denies habeas relief, grants in part and denies in part a certificate of appealability, and grants Petitioner leave to appeal
Knappenberger's conviction arises from events that transpired at the home of his work supervisor, Larry W.,
Nicholas W., who was six years old at the time of the incident, testified at trial as follows: After the party, he and his brother played football with Knappenberger in their backyard. The boys both wore their pajamas. At one point, they began playing the "doggie game," during which Knappenberger was a dog, and the boys were running around. Nicholas W. fell to the ground. Knappenberger then pulled Nicholas' pants down and licked Nicholas' "butt." Specifically, Nicholas testified that Knappenberger licked inside "the butt crack." He also testified that he observed Knappenberger doing the same thing to Nathan.
Jennifer W. testified that, on the night of the party, her sons mingled with the guests until approximately 9:00 p.m., when she took her sons upstairs for a bath. After getting the boys into the bathtub, she returned to the lower level of the house where the party was being held to speak to her husband. When she began to return upstairs, Knappenberger stopped her and asked where the boys were. Jennifer W. told him they were upstairs taking a bath. Knappenberger indicated that he had something to tell the boys and began walking upstairs. Jennifer W. told him that the boys were taking a bath and he could not go upstairs.
After the boys finished their bath, they and Jennifer W. returned downstairs. All of their guests had left, including Knappenberger, so Jennifer and her husband started cleaning up, while the boys played in the backyard. Knappenberger then returned to their home, saying that he returned to help clean up. Jennifer testified that Knappenberger did very little to assist with the cleanup, instead, playing with the boys. She could hear them playing in the backyard, but could not really see them because it had become dark. At some point, she heard Knappenberger barking, but could not see him or the boys. Jennifer testified that she found the barking unsettling, so she called the boys in to go to bed. She prompted them to say goodbye to Knappenberger and was troubled when they called him "Uncle Bill." As she was walking upstairs to take the boys to their bedrooms, Nicholas told her that Knappenberger had licked their "butts." Jennifer asked him whether he meant Knappenberger had licked their pajamas. Nicholas agreed that was what he had meant. Jennifer testified that she did not pursue the matter with the boys at that point. She testified she regretted that decision immensely and had no logical reason for failing to further question Nicholas.
Knappenberger testified in his own defense. He testified that, as the party was winding down, he drove back in the group van to the nearby hotel where other employees were staying. After arriving at the hotel, Knappenberger drove his vehicle back to the W.'s home because he thought it would be polite to assist with cleanup from the party. When he arrived at the home, Larry and Jennifer W. were cleaning up the patio area of the home. The boys were playing football in the backyard in their pajamas. Knappenberger began putting away folding chairs on the patio, when Nicholas W. threw a football in his direction. Knappenberger interpreted this as an invitation to play football and began playing football with them while the parents continued to clean. He played with them for about ten or fifteen minutes, until their mother called them inside. Knappenberger was told that the W.'s did not require any further help, so he said good-bye and returned to the hotel. Knappenberger denied any sexual contact with the boys. He denied trying to see the boys when they were taking a bath. He also denied playing a game called "doggie" with the boys or barking.
Knappenberger was charged with two counts of first-degree criminal sexual conduct involving two minor children under the age of thirteen. He was convicted by a jury in Wayne County Circuit Court of one count of second-degree criminal sexual conduct with respect to Nicholas W. and acquitted of the charge related to Nathan W. On April 21, 2006, he was sentenced to seven to fifteen years in prison. Knappenberger filed in the trial court a motion to set aside judgment, for directed verdict/judgment of acquittal, for new trial or correction of sentence. The trial court denied the motion.
Knappenberger filed an appeal of right in the Michigan Court of Appeals. He raised five claims: (i) the conviction for second-degree criminal sexual conduct must be vacated because Knappenberger was not charged with that crime and it is not a necessarily included lesser offense of first-degree criminal sexual conduct; (ii) the trial court erred in failing to assess the six-year-old complainant's competence to testify and failing to properly swear in this witness; (iii) counsel was ineffective in failing to object to the trial court's handling of the minor witness; (iv) due process requires resentencing because the trial court exceeded the guidelines based on disputed facts not proven to a jury beyond a reasonable doubt; and (v) the trial court improperly scored offense variable 10. The Michigan Court of Appeals affirmed Knappenberger's conviction, but remanded for resentencing based upon a factor relied upon by the trial court for its upward departure from the sentencing guidelines.
The trial court resentenced Knappenberger on September 11, 2008, to four to fifteen years in prison. Knappenberger did not appeal this sentence.
Knappenberger then filed the pending habeas petition. He raises these claims:
The petitioner's claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA provides:
28 U.S.C. § 2254(d).
"A state court's decision is `contrary to' . . . clearly established law if it `applies a rule that Pg 61254 contradicts the governing law set forth in [Supreme Court cases]' or if it `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'"
Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision.
Lastly, a federal habeas court must presume the correctness of state court factual determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with clear and convincing evidence.
Knappenberger's first claim centers on the trial judge's failure to swear in Nicholas before testifying and whether Nicholas was competent to testify. Before Nicholas — who was six years old at the time of trial — testified, the trial court judge engaged him in the following colloquy:
Tr. 4/3/06 at 152.
Nicholas testified without objection from defense counsel. The next day, after Nicholas had been excused as a witness, defense counsel objected to Nicholas' testimony on the ground that Nicholas was not properly sworn in accordance with Michigan Rule of Evidence 603.
Knappenberger argues that the trial court's alleged failure to properly swear in Nicholas and to assess Nicholas' competence violated his rights to due process, a fair trial, and confrontation of witnesses. In particular, Knappenberger asserts that the trial court failed to elicit from Nicholas a promise to tell the truth and failed to ascertain whether Nicholas understood the consequences of failing to tell the truth. He further argues that Nicholas's trial testimony contradicted itself, evidencing an inability to be a reliable and competent witness. Respondent argues that this claim is procedurally defaulted because defense counsel did not timely object, and that the Michigan Court of Appeals relied upon counsel's failure to timely object in denying relief.
The Court need not determine whether the claim is procedurally defaulted because, regardless, Knappenberger is not entitled to relief.
The Sixth Amendment's Confrontation Clause states that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." "The right guaranteed by the Confrontation Clause . . . insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury."
The Sixth Circuit considers the minimum capacity for recording and relaying truthful information "satisfied for purposes of the Confrontation Clause if the witness is able to understand the concept of the truth and his duty to present truthful information to the Court."
In
Federal Rule of Evidence 603, on which Michigan Rule of Evidence 603 is modeled, provides: "Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience."
In this case, the state court reviewed this claim for plain error. A state court's review of a claim for plain error is entitled to deference under the AEDPA.
The Michigan Court of Appeals held that the colloquy between the trial court and Nicholas was sufficient to impress upon Nicholas his duty to testify truthfully. The trial court, which had the opportunity to observe Nicholas' demeanor and comprehension, credited his understanding of his obligation to testify truthfully. As discussed above, there is no Supreme Court precedent requiring a particular form of oath to satisfy the Confrontation Clause. "`[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by the Court.'"
In addition, Knappenberger argues that the trial court erred in failing properly to evaluate Nicholas's competence to testify prior to his testifying. He argues that, while testifying, Nicholas continually contradicted himself, evidencing an inability to function as a reliable or competent witness. A witness is competent "if the witness is able to understand the concept of the truth and his duty to present truthful information to the court."
The Michigan Court of Appeals held that the record indicated Nicholas' competence to testify, and that any inconsistency in Nicholas' testimony affected his credibility and not his competence. This holding does not violate clearly established federal law. At the preliminary examination, Nicholas was questioned at length about the difference between a lie and the truth. He stated that it was better to tell the truth and that lying would result in getting in trouble, for example, going to the principal's office. Additionally, he exhibited a strong understanding about what it would mean to guess at an answer and an understanding that he should not do so during his testimony. In addition, when defense counsel cross-examined Nicholas, he was responsive to the cross-examination. The record shows that Nicholas understood the concept of the truth and his duty to testify truthfully. Accordingly, the Court rejects Knappenberger's claim that he is entitled to habeas relief based on Nicholas' purported incompetence.
Knappenberger next claims that his rights to due process and a fair trial were violated when the trial court instructed the jury on the cognate offense of second-degree criminal sexual conduct. Knappenberger argues that this instruction violated Mich. Comp. Laws § 768.32 because it constituted a constructive amendment to the information, which charged only two counts of first-degree criminal sexual conduct. He further argues that the constructive amendment violated the Due Process Clause because he was not provided with notice that he would need to defend against a charge of second-degree criminal sexual conduct, a cognate offense, rather than a necessarily included lesser offense of first-degree criminal sexual conduct. The Court denies this claim for three reasons. First, Knappenberger invited the error of which he now complains. Second, habeas relief is not available for alleged violations of state law. Third, the second-degree criminal sexual conduct charge could not have unfairly surprised Knappenberger.
First, defense counsel requested a second-degree criminal sexual conduct instruction. "The doctrine of `invited error' is a branch of the doctrine of waiver by which courts prevent a party from inducing an erroneous ruling and later seeking to profit from the legal consequences of having the ruling set aside."
Second, even if the doctrine of invited error does not bar relief on this claim, the claim fails on the merits. The bulk of Knappenberger's argument in his habeas petition focuses on the alleged violation of Mich. Comp. Laws § 767.76. "A federal court may not issue the writ on the basis of a perceived error of state law."
Finally, Petitioner's claim of unfair surprise is meritless. The Sixth Amendment guarantees a criminal defendant a right to be clearly informed of the nature and cause of the charges against him in order that he may prepare a defense.
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the Rules Governing Section 2254 Proceedings now requires that the Court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."
A COA may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. §2253(c)(2). A petitioner must show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further."
For the foregoing reasons, it is ORDERED as follows:
1. The petition for a writ of habeas corpus is denied.
2. A COA is granted as to the oath claim, but denied as to the amendment-of-the-information claim.
3. Petitioner is granted leave to appeal in forma pauperis.
