        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206             2    Rockwell v. Yukins                         No. 00-1992
    ELECTRONIC CITATION: 2003 FED App. 0307P (6th Cir.)
                File Name: 03a0307p.06                      GENERAL, Lansing, Michigan, for Appellant. Craig A.
                                                            Daly, Detroit, Michigan, for Appellee.
UNITED STATES COURT OF APPEALS                                NELSON, J., delivered the opinion of the court, in which
                                                            MARTIN, C. J., BOGGS, BATCHELDER, GILMAN,
              FOR THE SIXTH CIRCUIT                         GIBBONS, and ROGERS, JJ., joined. CLAY, J. (pp. 12-29),
                _________________                           delivered a separate dissenting opinion, in which
                                                            DAUGHTREY, MOORE, and COLE, JJ., joined.
 SHARON MAY ROCKWELL ,            X
          Petitioner-Appellee, -                                               _________________
                                   -
                                   -  No. 00-1992                                  OPINION
           v.                      -                                           _________________
                                    >
                                   ,                          DAVID A. NELSON, Circuit Judge. The petitioner in this
 JOAN YUKINS,                      -                        habeas corpus action, Sharon Rockwell, was convicted at trial
       Respondent-Appellant. -                              in a state court of conspiring with her sons to murder the
                                  N                         boys’ father, her husband. A federal writ of habeas corpus
      Appeal from the United States District Court          was subsequently granted on the ground that her Sixth
     for the Eastern District of Michigan at Detroit.       Amendment right to present a complete defense precluded
   No. 97-71072—Avern Cohn, Senior District Judge.          the state trial court from barring evidence that Mr. Rockwell
                                                            had abused his sons sexually. Under the legal standard
              Argued: December 11, 2002                     prescribed by the Antiterrorism and Effective Death Penalty
                                                            Act of 1996, the writ should not have been issued unless
          Decided and Filed: August 27, 2003                exclusion of the evidence in question involved an
                                                            “unreasonable” application of, or was contrary to, federal law
   Before: MARTIN, Chief Circuit Judge; NELSON,             clearly established by the United States Supreme Court.
  BOGGS, BATCHELDER, DAUGHTREY, MOORE,                      Concluding that the result reached in the state court passes
  COLE, CLAY, GILMAN, GIBBONS, and ROGERS,                  muster under the statutory test, we shall reverse the grant of
                 Circuit Judges.                            habeas relief.

                  _________________                                                       I

                       COUNSEL                                As we noted in an earlier appeal in this case, Rockwell v.
                                                            Yukins, 217 F.3d 421, 422-23 (6th Cir. 2000), Sharon and
ARGUED: Laura Graves Moody, OFFICE OF THE                   Edward Rockwell had three sons. One of the sons, acting
ATTORNEY GENERAL, Lansing, Michigan, for Appellant.         with two friends, attempted to kill Mr. Rockwell by cutting
Craig A. Daly, Detroit, Michigan, for Appellee. ON BRIEF:   the brake lines on his car. The attempt failed. Then, in a
Laura Graves Moody, OFFICE OF THE ATTORNEY                  second unsuccessful attempt on Mr. Rockwell’s life, the two

                            1
No. 00-1992                                Rockwell v. Yukins           3    4        Rockwell v. Yukins                              No. 00-1992

friends hit him on the head with a baseball bat. Although                    Rockwell was sentenced to imprisonment for life. An appeal
Mrs. Rockwell was not present on either occasion, she had                    to the Michigan Court of Appeals followed.
engaged in discussions with one or more of her sons about
killing Mr. Rockwell. On the strength of these discussions,                    The Court of Appeals affirmed the conviction, succinctly
the State of Michigan charged Mrs. Rockwell with conspiracy                  explaining its rationale as follows:
to commit murder.
                                                                                 “We find no abuse of discretion in the trial court’s
  Mrs. Rockwell’s defense, as her lawyer described it at a                       exclusion of evidence of the victim’s alleged prior acts of
pretrial hearing, was that her participation in the talk of                      abuse against defendant’s and the victim’s children.
killing Mr. Rockwell was not intended to further an actual                       People v. Watkins, 176 Mich. App. 428; 440 NW2d 36
murder; rather, according to counsel, Mrs. Rockwell’s                            (1989). Defendant was merely limited in the method
purpose had been to let the boys vent the extreme and abiding                    with which to present her defense and not deprived [of]
hatred they harbored against their father for having abused                      the opportunity to present the same.            Although
them, sexually and otherwise, when they were younger.                            marginally relevant, the evidence was properly excluded
“[Mrs. Rockwell] felt in her heart that the only way she could                   under MRE 403.”2
keep the situation under control,” defense counsel explained,
“was to allow the boys to talk and fantasize about [killing the              Mrs. Rockwell applied to the Michigan Supreme Court for
hated Mr. Rockwell.]” Far from agreeing to a murder, the                     leave to appeal the affirmance of her conviction, but further
theory went, Mrs. Rockwell hoped to forestall a murder                       review was denied.
through what her lawyer seems to have viewed as some sort
of talk therapy.                                                                Mrs. Rockwell then filed her habeas action in the United
                                                                             States District Court for the Eastern District of Michigan.
   In connection with this “therapy defense,” as we                          The initial pleading raised two issues, insufficiency of the
characterized it in our earlier opinion, Mrs. Rockwell wanted                evidence and improper exclusion of the evidence of sexual
to show at trial that Mr. Rockwell had sexually abused his                   abuse, both of which had been exhausted in the state courts.
sons. The prosecution wanted to exclude evidence of the                      The district court eventually granted Mrs. Rockwell leave to
alleged abuse. The state trial court ordered briefing and heard              amend her petition to include an unexhausted claim as well.
argument on the admissibility of the evidence of abuse, after                Following a hearing at which arguments were presented on
which it ordered the evidence excluded as not “material”                     the merits, the district court granted the writ on the ground
under Mich. Rule of Evid. 404.1                                              that the state trial court’s decision to exclude evidence of the
                                                                             alleged sexual abuse clearly violated Mrs. Rockwell’s
  When the case went to trial, Mrs. Rockwell elected not to                  constitutional right to present a defense – and “[n]o
take the stand. The jury returned a verdict of guilty, and Mrs.              reasonable jurist could conclude otherwise.”


    1                                                                             2
      Although the prosecution ha d cited Rule 4 04 in argum ent, its              Rule 403 – which had also been cited in argume nt befo re the state
relevance is not readily apparent. R ule 40 4 provides that evidenc e of a   trial court – pro vides that relevant evid ence may be exclude d if its
perso n’s character is generally inadmissible for the purpose of proving     probative value is substantially outweighed by the danger of unfair
that the person acted in conformity therewith on a particular occasion.      prejudice.
No. 00-1992                           Rockwell v. Yukins       5    6        Rockwell v. Yukins                                No. 00-1992

   The soundness of this proposition was not decided in the         This version of the statute applies to habeas applications filed,
initial appeal to our court. The panel that heard the appeal        as Mrs. Rockwell’s was, after April 24, 1996, the effective
vacated the judgment on the ground that the district court          date of AEDPA. See Lindh v. Murphy, 521 U.S. 320 (1997).
should not have reviewed a “mixed” petition containing an
unexhausted claim in addition to the exhausted claims. The              The statute means what it says. See Williams v. Taylor,
first panel remanded the case with a suggestion that the            529 U.S. 362, 402-13 (2000). What the statute says, to
district court could reenter its original decision after allowing   repeat, is that habeas relief may not be granted unless the state
Mrs. Rockwell to dismiss her unexhausted claim. See                 court’s decision was either “contrary to . . . clearly established
Rockwell v. Yukins, 217 F.3d at 425.                                federal law, as determined by the Supreme Court of the
                                                                    United States,”3 or “involved an unreasonable application of
  On remand, the district court accepted this suggestion.           . . . [such] law.”
Mrs. Rockwell moved for dismissal of her unexhausted claim
and reentry of the habeas judgment, and the district court            Mrs. Rockwell does not contend that the affirmance of her
granted the motion.                                                 conviction by the state court of appeals was “contrary to”
                                                                    clear Supreme Court caselaw. She does contend, however,
  The warden again appealed to our court. Reaching the              that it involved an unreasonable application of such law.
merits of the case, a divided three-judge panel reversed the
district court’s judgment. The full court then voted to rehear        For this contention to be accepted, Mrs. Rockwell must do
the case en banc. Supplemental briefs having been filed, and        more than persuade us that the Michigan judiciary’s
the case having been reargued, the appeal is now ready for          application of federal law was incorrect. As Justice
decision by the full court.                                         O’Connor said, speaking for the Court in Williams:

                               II                                       “In § 2254(d)(1), Congress specifically used the word
                                                                        ‘unreasonable,’ and not a term like ‘erroneous’ or
  As amended by the Antiterrorism and Effective Death                   ‘incorrect.’    Under § 2254(d)(1)’s ‘unreasonable
Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110                   application’ clause, then, a federal habeas court may not
Stat. 1214 (1996), subsection (d) of 28 U.S.C. § 2254                   issue the writ simply because that court concludes in its
provides, in relevant part, as follows:                                 independent judgment that the relevant state-court
                                                                        decision applied clearly established federal law
  “(d) An application for a writ of habeas corpus on behalf             erroneously or incorrectly. Rather, that application must
  of a person in custody pursuant to the judgment of a State            also be unreasonable.” Williams, 529 U.S. at 411
  court shall not be granted with respect to any claim that             (emphasis supplied).
  was adjudicated on the merits in State court proceedings
  unless the adjudication of the claim –
  (1) resulted in a decision that was contrary to, or                    3
                                                                          The condition of this “contrary to” clause would be met if “the state
  involved an unreasonable application of, clearly                  court arrive[d] at a conclusion opposite to that reached by [the U.S.
  established Federal law, as determined by the Supreme             Supreme] Court on a question of law or if the state court decide[d] a case
  Court of the United States . . . .”                               differently than [the U.S. Supreme Court has] o n a set of materially
                                                                    indistinguishable facts.” Williams, 529 U.S. at 413.
No. 00-1992                           Rockwell v. Yukins       7    8      Rockwell v. Yukins                         No. 00-1992

“[A]n unreasonable application of federal law is different          gloss Mrs. Rockwell would have us put on the case flies in
from an incorrect or erroneous application of federal law.”         the face of a line of authority (to which we shall turn shortly)
Id. at 412 (emphasis in original). And in making the                culminating in United States v. Scheffer, 523 U.S. 303 (1998),
“unreasonable application” inquiry, we “should ask whether          we reject the claim that the Michigan court’s decision
the state court’s application of clearly established federal law    represented an unreasonable application of Davis.
was ‘objectively’ unreasonable.” Id. at 409.
                                                                      Mrs. Rockwell attempts to extract from Davis and other
  In Mrs. Rockwell’s case, as we have seen, the Michigan            Supreme Court cases a general rule that a criminal defendant
Court of Appeals concluded that the probative value of the          must be permitted to present any evidence that she deems
evidence of Edward Rockwell’s alleged abuse of his sons was         critical to her defense. In this connection she cites Crane v.
substantially outweighed by the danger that unfair prejudice        Kentucky, 476 U.S. 683 (1986), which holds that “the
would ensue were the evidence to be admitted. This                  Constitution guarantees criminal defendants ‘a meaningful
conclusion may or may not have been erroneous, but we               opportunity to present a complete defense.’” Id. at 690
cannot say that it represented an objectively unreasonable          (citations omitted).
application of clearly established Supreme Court precedent.
                                                                       But the Supreme Court has made it perfectly clear that the
   A Supreme Court decision that the district court found           right to present a “complete” defense is not an unlimited right
“particularly instructive,” Davis v. Alaska, 415 U.S. 308           to ride roughshod over reasonable evidentiary restrictions. A
(1974), held that the defendant in a burglary case had a            defendant “does not have an unfettered right to offer
constitutional right to cross-examine a crucial prosecution         testimony that is incompetent, privileged, or otherwise
witness about a juvenile burglary adjudication for which the        inadmissible under standard rules of evidence.” Taylor v.
witness was on probation, notwithstanding a state rule making       Illinois, 484 U.S. 400, 410 (1988). Rather, she “must comply
evidence of juvenile adjudications inadmissible. The Court          with established rules of procedure and evidence designed to
emphasized that “[c]ross-examination is the principal means         assure both fairness and reliability in the ascertainment of
by which the believability of a witness and the truth of his        guilt and innocence.” Chambers v. Mississippi, 410 U.S. 284,
testimony are tested,” adding that the juvenile’s testimony         302 (1973).
“provided ‘a crucial link in the proof . . . of [the defendant’s]
act.’” Id. at 316 and 317 (citation omitted). “In this setting,”        As the Supreme Court explained in Scheffer:
the Court concluded, “. . . the [Sixth Amendment] right of
confrontation is paramount to the State’s policy of protecting          “state and federal rulemakers have broad latitude under
a juvenile offender.” Id. at 319.                                       the Constitution to establish rules excluding evidence
                                                                        from criminal trials. Such rules do not abridge an
  In the case at bar, by contrast, the evidence of sexual abuse         accused’s right to present a defense so long as they are
was not being proffered to attack the believability of a crucial        not ‘arbitrary’ or ‘disproportionate to the purposes they
witness against Mrs. Rockwell. The rule under which the trial           are designed to serve.’” 523 U.S. at 308 (citations
court excluded the evidence, moreover, is not aimed at                  omitted).
protecting juvenile offenders. The interests at stake in this
case are entirely different than those at stake in Davis.           A defendant’s right to present a “complete” defense, in other
Because Davis is readily distinguishable, and because the           words, does not automatically trump state evidentiary rules.
No. 00-1992                                  Rockwell v. Yukins            9    10       Rockwell v. Yukins                                No. 00-1992

The competing interests must be balanced, and “a defendant’s                    would not have barred her from telling the jury that she
interest in presenting . . . evidence may [have to] bow to                      thought such talk had a healthy prophylactic effect; that she
accommodate other legitimate interests in the criminal trial                    did not think it would lead to overt action; and that she had
process.” Id. (Internal quotation marks and citations                           never been a party to any mutual understanding or agreement
omitted.)                                                                       to commit murder. The court’s ruling barred Mrs. Rockwell
                                                                                only from testifying that her husband’s abuse of her sons was
  It was not objectively unreasonable, in our view, for the                     sexual in nature.
Michigan court to conclude that “other legitimate interests in
the criminal trial process” outweighed Mrs. Rockwell’s                            Explication of the sexual aspect of the abuse, in short, did
interest in presenting evidence of her husband’s prior conduct.                 not go to the essence of the “talk therapy” defense. Rather, it
The evidence of sexual abuse posed a substantial danger of                      was a detail – an important detail, to be sure, but a detail
unfair prejudice – a risk that the jury would be tempted to                     nonetheless.
acquit Mrs. Rockwell not because of any sense that she was
innocent of conspiring with her sons to kill Mr. Rockwell but                      It is far from certain, moreover, that presentation of this
because of a sense that killing would be too good for such a                    detail to the jury would have increased the likelihood of Mrs.
man.                                                                            Rockwell’s acquittal. The more heinous Mr. Rockwell’s
                                                                                offenses, the jury could reasonably have concluded, the more
  In addition to the danger of unfair prejudice, the sexual                     likely it was that Mrs. Rockwell understood the talk of
abuse evidence presented a risk of undue delay and confusion                    murder to be in earnest. If, on the other hand, testimony that
of the issues. The facts that Mrs. Rockwell wished to                           the abuse was sexual would have made the jury more likely
introduce into evidence were disputed. Resolution of this                       to acquit Mrs. Rockwell, it might well have done so on the
tangential dispute would have complicated the trial and could                   improper basis mentioned above – a sense that the conspiracy
have tended to mislead the jury.                                                was justified – rather than on any legitimate basis. In these
                                                                                circumstances, we believe it was not unreasonable for the
  It is true that the chances of the jury’s accepting Mrs.                      Michigan Court of Appeals to weigh the competing interests
Rockwell’s “therapy defense” may have been diminished by                        as it did.5
exclusion of the sexual abuse evidence. But it would not be
correct to say that Mrs. Rockwell was deprived of her
defense. Exclusion of the evidence would not have prevented
her from testifying that her sons hated their father because of                 Mrs. Rockwell to present evid ence of the alleged sexual misconduc t.
his unspeakable behavior toward them over the years.4 It
                                                                                     5
                                                                                       Even if the Michigan court acted unreasonably in concluding that
                                                                                exclusion of the sexual abuse evidence was constitutional, any error was
    4
                                                                                probab ly harmless. There was evidence at trial that M rs. Rockwell herself
       By the sam e token, the ruling did no t bar M rs. Rockwell from          had attempted to acquire a bomb, that she had continued to discuss killing
simply testifying that the boys had an intense hatred of their father. If       her husband even after she knew there ha d been an a ctual attem pt on his
such testimony had gone unchallenged, the jury might well have accepted         life, and that, on the night of the second attempt, she had taken her
it. If the pro secutio n had cross-examined M rs. Rockwell as to the b asis     younger children out of the house so that they would not be present
of the hatred, on the other hand , or if it had presented the husb and as a     during the attack. This evidence severely undercuts th e defense theory
witness and evoked a denial that he had done anything to cause the b oys        that Mrs. Rockwell believed he r sons were m erely engaging in harmless
to hate him, the doo r would then have b een o pened, in all probability, for   talk.
No. 00-1992                          Rockwell v. Yukins     11    12   Rockwell v. Yukins                           No. 00-1992

The decision made by the Michigan court was a judgment call                             ______________
of the sort that judges make all the time. Some members of
this court, had they been on the state bench, would have made                              DISSENT
a different call. We cannot say they would have acted                                   ______________
unreasonably in doing so, particularly in view of the fact that
the danger of undue prejudice could have been minimized by           CLAY, Circuit Judge, dissenting.           The majority’s
a cautionary instruction. See Lewis v. Wilkinson, 307 F.3d        conclusion that the Michigan Court of Appeals did not
413, 422 (6th Cir. 2002). What we can say, however, is that       unreasonably apply Supreme Court precedent in rejecting
the call made by the Michigan court was well within that          Petitioner’s claim that she was denied her Fifth Amendment
court’s discretion. The decision to exclude evidence of the       right to present a complete defense rests upon an
sexual nature of the victim’s mistreatment of his sons did not,   interpretation of § 2254(d)(1) that has no basis in the law. As
in our opinion, involve an unreasonable application of clearly    the term “unreasonable” is commonly known and applied in
established federal law as determined by the Supreme Court        the jurisprudence, the state appellate court’s decision
of the United States.                                             represented an objectively unreasonable application of the
                                                                  Court’s precedent.
  The decision of the district court is REVERSED, and the
case is REMANDED with instructions to dismiss the                    Petitioner sought to introduce evidence of Edward
petition.                                                         Rockwell’s alleged sexual abuse of his sons for the purpose
                                                                  of establishing that she engaged in talk of killing Rockwell
                                                                  with her sons, not for the purpose of forming an agreement to
                                                                  kill, but for the purpose of allowing the boys to vent their
                                                                  anger and hatred of Rockwell. Thus, evidence of Rockwell’s
                                                                  alleged sexual abuse provided the substantive basis of
                                                                  Petitioner’s defense and, without the evidence, Petitioner was
                                                                  prevented from establishing any defense at all. The state
                                                                  appellate court’s finding that omission of this evidence
                                                                  merely limited Petitioner in the “method” of presenting her
                                                                  defense thereby constitutes an objectively unreasonable
                                                                  application of Supreme Court precedent. As a result, the state
                                                                  appellate court’s conclusion that the evidence was properly
                                                                  excluded on evidentiary grounds constitutes an objectively
                                                                  unreasonable application of the Court’s precedent as well. I
                                                                  would therefore affirm the district court’s order granting the
                                                                  petition for a writ of habeas corpus filed by Petitioner, Sharon
                                                                  May Rockwell.
No. 00-1992                          Rockwell v. Yukins      13    14   Rockwell v. Yukins                           No. 00-1992

I. “Unreasonable Application” Prong of 28 U.S.C.                      We are not without guidance, however, as to when a state
   § 2254(d)(1)                                                    court’s decision rises to the level of being “objectively
                                                                   unreasonable” for purposes of granting a petitioner habeas
    This Court’s review of the Michigan Court of Appeals’          relief under § 2254(d)(1). In Wiggins v. Smith, 123 S. Ct. at
decision regarding Petitioner’s claim is circumscribed by          2538-539, a death penalty case, the Supreme Court held that
§ 2254(d)(1) of the Antiterrorism and Effective Death Penalty      the Maryland Court of Appeals unreasonably applied the
Act of 1966 (“AEDPA”), meaning that the state court’s              governing principles of Strickland v. Washington, 466 U.S.
decision will not be disturbed on habeas review unless the         668 (1984) in rejecting the petitioner’s claim that he had been
decision was “contrary to, or involved an unreasonable             denied his Sixth Amendment right to effective assistance of
application of, clearly established Federal law, as determined     counsel. The Court found that the state court of appeals’
by the Supreme Court of the United States . . . .” In this case,   conclusion that counsel’s performance was within
it is the “unreasonable application” prong of § 2254(d)(1) that    professional norms was objectively unreasonable under
guides our review. Under this prong, “‘a federal habeas court      Strickland inasmuch as counsel had failed to make a
may grant the writ if the state court identifies the correct       reasonable investigation into the petitioner’s social history.
governing legal principle from [the] [Supreme] Court’s             Id. (noting that under Strickland, “strategic choices made after
decisions but unreasonably applies that principle to the facts     a less than complete investigation are reasonable precisely to
of the prisoner’s case.’” Lockyer v. Andrade, ___ U.S. ___,        the extent that reasonable professional judgments support the
123 S. Ct. 1166, 1174 (2003) (quoting Williams v. Taylor,          limitations on investigation”) (citation and internal quotation
529 U.S. 362, 413 (2000)). Said differently, “a federal court      marks omitted). This, in turn, made the state court’s
may grant habeas relief [under this prong] based on an             deference to counsel’s strategic decision not to present
application of a governing legal principle to a set of facts       mitigating evidence of the petitioner’s social history
different from those of the case in which the principle was        objectively unreasonable as well. Wiggins, 123 S. Ct. at
announced.” Id. (citing Williams, 529 U.S. at 407).                2538-539 (“[C]ounsel chose to abandon their investigation at
                                                                   an unreasonable juncture, making a fully informed decision
  “‘[A] federal habeas court may not issue the writ simply         with respect to sentencing strategy impossible.”).
because that court concludes in its independent judgment that
the state-court decision applied [a Supreme Court case]               The Wiggins majority rejected the dissent’s contention that
incorrectly.’” Price v. Vincent, ___ U.S. ___, 123 S. Ct.          “the Court’s hands [were] tied under § 2254(d), by the state
1848, 1853 (2003) (alteration in Price) (quoting Bell v. Cone,     court’s factual determinations that [the petitioner’s] trial
535 U.S. 685, 699 (2002)). Rather, “[i]n order for a federal       counsel did investigate and were aware of [the petitioner’s]
[habeas] court to find a state court’s application                 background.” Id. at 2539 (internal quotation marks and
‘unreasonable,’ the state court’s decision must have been          citation omitted; emphasis in original). The Court reasoned
more than incorrect or erroneous[,] [it] must have been            that the dissent’s position was unfounded because the state
‘objectively unreasonable.’” Wiggins v. Smith, ___ U.S. ___,       appellate court’s conclusion that “the scope of counsel’s
123 S. Ct. 2527, 2534 (2003) (citing Lockyer, 123 S. Ct. at        investigation into petitioner’s background met the legal
1175; Williams, 529 U.S. at 409); see also Woodford v.             standards set in Strickland represented an objectively
Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam).                 unreasonable application of our precedent.” Id. (emphasis in
                                                                   original). In other words, the state court’s finding that
                                                                   counsel investigated and knew of the petitioner’s social
No. 00-1992                          Rockwell v. Yukins      15    16   Rockwell v. Yukins                           No. 00-1992

history did not tie the Court’s hands because the scope of             The majority opinion agrees that the evidence in
counsel’s investigation was objectively unreasonable under          question is relevant. If it is relevant it is only so because
the principles of Strickland. Id.                                   it relates to a legally recognized defense. That defense is
                                                                    that defendant’s participation in the conversations was
  Thus, Wiggins instructs us that while we defer to state court     not, from her perspective, part of the conspiracy or
decisions under § 2254(d)(1), the deference is not absolute         agreement to commit murder, but, rather, it was her way
inasmuch as a petitioner may be afforded habeas relief when         of allowing her sons to ventilate their anger at the sexual
the state court’s decision reaches a result not supported by        abuse her husband had been perpetrating on the boys
Supreme Court precedent. See id.                                    over a period of time. Her defense might not be accepted
                                                                    by a jury and her belief, if, indeed, she had such a belief,
II. Michigan Court of Appeals’ Ruling                               that the boys should be allowed to express their rage
                                                                    through such conversations may have been misguided.
  The Michigan Court of Appeals issued a divided ruling in          Nevertheless, I believe she should have been allowed to
this case. While the two-judge majority found that Petitioner       tell her version of the events to the jury and to submit
was not entitled to relief on her claim that the trial court        evidence it support of it.
abused its discretion in excluding evidence of Edward
Rockwell’s prior acts of alleged sexual abuse against                 I come to this conclusion because I believe her version
Rockwell’s and Petitioner’s children, a dissenting judge            goes to the very heart of her defense, i.e., that there was
sharply disagreed. See People v. Rockwell, No. 124359               no conspiracy between her and anyone else. The absence
(Mich. Ct. App. May 23, 1991) (unpublished).                        of a conspiracy, i.e., an agreement, depends on whether
                                                                    she had a factual basis for allowing the boys to express
  Specifically, as to Petitioner’s claim on this issue, the two-    their anger in this manner and this, in turn, depends on
judge majority opined:                                              whether the sexual abuse actually occurred. If it did not
                                                                    occur, her defense disappears and if it did occur, she has
    We find no abuse of discretion in the trial court’s             an explanation, however tenuous it might be, for why she
  exclusion of evidence of the victim’s alleged prior acts of       participated in the conversations and for her theory that
  abuse against defendant’s and the victim’s children.              she was not seriously conspiring to murder her husband.
  People v Watkins, 176 Mich App 428; 440 NW2d 36
  (1989). Defendant was merely limited in the method                   From this perspective, the need to establish the sexual
  with which to present her defense and not deprived the            abuse becomes crucial. I would not want the trial to
  opportunity to present the same. Although marginally              deteriorate into a criminal sexual conduct case with each
  relevant, the evidence was properly excluded under MRE            allegation of sex abuse being proved and then being
  403.                                                              disproved by other witnesses but I am satisfied that the
                                                                    trial judge can place adequate controls and limits on the
Id. In sharp contradistinction, the dissenting judge found          flow of testimony given the purpose of such testimony.
Petitioner’s claim on this issue meritorious and would have         It would be sufficient for the trial judge to allow enough
reversed Petitioner’s conviction and remanded for a new trial.      evidence to establish that defendant’s view of the
That judge persuasively refutes the majority’s argument as          situation was supported by an adequate factual basis.
follows:
No. 00-1992                          Rockwell v. Yukins      17    18   Rockwell v. Yukins                           No. 00-1992

    If all she can show is that her behavior was based on          determination as to Petitioner’s ability to present her defense
  a vague and generalized hatred for her husband by                in the absence of this evidence, the decision to exclude the
  herself and by the boys, she is deprived of the essence of       evidence under the rule is itself unreasonable. See Wiggins,
  her defense. A defendant must be permitted to offer              123 S. Ct. at 2538-539 (holding that if the court makes an
  proofs of each element of a valid defense. See                   unreasonable determination as to the basis for counsel’s
  Washington v Texas, 388 US 14, 19; 87 S Ct 1920; 18 L            strategy, the decision to defer to counsel’s strategic choice is
  Ed 2d 1019 (1967); People v Callington, 123 Mich App             itself unreasonable).
  301, 305; 333 NW2d 260 (1983). I wish to emphasize
  that I do not take the position that defendant would be            A. Petitioner’s Right to Present a Defense
  justified in conspiring to kill her husband if he had
  perpetrated sexual abuse upon the boys. Rather, my                  The state appellate court held that Petitioner was not denied
  position is that she must be permitted to argue and              her constitutional right to present a defense because the
  submit proofs that the existence of the sexual abuse             exclusion of evidence regarding Rockwell’s sexual abuse
  formed a basis for her belief that she was not a knowing         “merely limited [] the method” by which Petitioner could
  participant in a conspiracy at all.                              present her defense theory. Under clearly established
                                                                   Supreme Court precedent, the state appellate court’s holding
    I would reverse and remand for a new trial.                    was objectively unreasonable because evidence of Rockwell’s
                                                                   alleged sexual abuse provided the substantive basis for
Id. (Shepherd, J., dissenting) (emphasis added).                   Petitioner’s defense such that without this evidence Petitioner
                                                                   was left with no defense at all.
III. Analysis
                                                                     The Court has long held that an accused’s right to
    At the outset, it should be noted that although the state      “establish a defense” is a “fundamental element of due
appellate court’s reason for concluding that the evidence was      process.” Washington v. Texas, 388 U.S. 14, 19 (1967). In
properly excluded under Rule 403 is significant, what is most      Washington, the Court was called upon for the first time “to
significant is the court’s finding that the exclusion of           decide whether the right of an accused to have compulsory
Rockwell’s sexual abuse of his sons merely limited the             process for obtaining witnesses in his favor, guaranteed in
“method” by which Petitioner could present her defense.            federal trials by the Sixth Amendment, is so fundamental and
This is so because the state appellate court made an               essential to a fair trial that it is incorporated in the Due
objectively unreasonable determination under Supreme Court         Process Clause of the Fourteenth Amendment.” Id. at 17-18.
precedent that Petitioner was only limited in the “method”         Relying on In re Oliver, the Court observed that, among other
and not the substance of her defense through the exclusion of      things, an accused’s right “‘to offer testimony’” is a basic
this evidence, which thereby rendered the court’s conclusion       component of his right to offer a defense. Id. at 18 (quoting
that the evidence was properly excluded under Rule 403             In re Oliver, 333 U.S. 257, 273 (1948)). The Court therefore
objectively unreasonable as well. Said differently, although       concluded that “[t]he right to offer testimony of witnesses and
it is true that Supreme Court precedent indicates that the right   to compel their attendance [] is in plain terms the right to
to present a defense is at times limited by reasonable             present a defense” because “[j]ust as an accused has the right
evidentiary rules, if in deciding to exclude evidence under an     to confront the prosecution’s witnesses for the purpose of
evidentiary rule the court makes an objectively unreasonable       challenging their testimony, he has the right to present his
No. 00-1992                          Rockwell v. Yukins      19    20   Rockwell v. Yukins                            No. 00-1992

own witnesses to establish a defense.” Id. at 19. It is then up    to his probationary status as a juvenile offender based on a
to the jury to “decide where the truth lies.” Id.                  state statute protecting the anonymity of juvenile offenders.
                                                                   Id. at 311. As a result, the petitioner’s counsel “did his best”
   The Court spoke again on the constitutional significance of     to expose the witness’s state of mind at the time, but much of
allowing a defendant to present testimony in connection with       the witness’ testimony went unchallenged. Id. at 312-14.
his defense in Crane v. Kentucky, 476 U.S. 683 (1986).             The petitioner was convicted, and his appeal made its way to
Specifically, in Crane, the Court held that the exclusion of       the Alaska Supreme Court which affirmed the petitioner’s
testimony surrounding the circumstances of a defendant’s           conviction, concluding that “‘counsel for the defendant was
confession deprived the defendant of his fundamental               able adequately to question the youth in considerable detail
right—whether under the Due Process Clause of the                  concerning the possibility of bias or motive.’” Id. 314-15.
Fourteenth Amendment or under the Compulsory Process or
Confrontation Clauses of the Sixth Amendment—to present               The Supreme Court granted certiorari limited to the
a defense. Id. at 690-91. The Court reasoned that the              question of whether the petitioner was denied his
opportunity to be heard “would be an empty one if the State        constitutional right to adequately cross-examine the witness,
were permitted to exclude competent, reliable evidence             which “turn[ed] on the correctness of the Alaska court’s
bearing on the credibility of a confession when such evidence      evaluation of the ‘adequacy’ of the scope of cross-
is central to the defendant’s claim of innocence.” Id. As a        examination permitted.” Id. The Court reversed, finding that
result, the Court concluded that the “exclusion of this kind of    it could not “accept the Alaska Supreme Court’s conclusion
exculpatory evidence deprives a defendant of the basic right       that the cross-examination that was permitted defense counsel
to have the prosecutor’s case encounter and ‘survive the           was adequate to develop the issue of bias properly to the
crucible of meaningful adversarial testing.’” Id. at 690-91        jury.” Id. at 318. The Court reasoned:
(quoting United States v. Cronic, 466 U.S. 648, 656 (1984)).
                                                                     While counsel was permitted to ask [the witness]
  In Davis v. Alaska, 415 U.S. 308, 315-16 (1974), the Court         whether he was biased, counsel was unable to make a
examined an accused’s right to present a defense in the              record from which to argue why [the witness] might have
context of the cross-examination of witnesses offered against        been biased or otherwise lacked that degree of
him. The Court recognized that “[c]ross-examination is the           impartiality expected of a witness at trial. On the basis
principal means by which the believability of a witness and          of the limited cross-examination that was permitted, the
the truth of his testimony are tested[,]” and that several means     jury might well have thought that defense counsel was
of discrediting a witness are essential to effective cross-          engaged in a speculative and baseless line of attack on
examination. Id. at 316. The petitioner in Davis sought to           the credibility of an apparently blameless witness or, as
discredit a government witness by showing the existence of           the prosecutor’s objection put it, a ‘rehash’ of prior cross-
possible bias and prejudice. Id. Specifically, the petitioner        examination. On these facts, it seems clear to us that to
sought to question a key witness for the prosecution regarding       make any such inquiry effective, defense counsel should
the witness’ adjudication as a juvenile delinquent and his           have been permitted to expose to the jury the facts from
probation status in order to demonstrate that the witness            which jurors, as the sole triers of fact and credibility,
identified the petitioner as the perpetrator out of fear of          could appropriately draw inferences relating to the
possible probation revocation. Id. at 310-11. The trial court        reliability of the witness.
refused to allow the petitioner to cross-examine the witness as
No. 00-1992                          Rockwell v. Yukins      21    22   Rockwell v. Yukins                          No. 00-1992

Id. (emphasis added).                                                she knew the situation was a volatile, explosive situation
                                                                     and she felt in her heart that the only way she could keep
   Against this backdrop, it is clear that the Michigan Court of     this situation under control was to allow the boys to talk
Appeals’ ruling—that exclusion of Rockwell’s sexual abuse            and fantasize about these things that were apparently in
of the boys “merely limited [Petitioner] in the method” by           their minds. And, therefore, her attitude was talk will
which she could present her defense—was objectively                  diffuse the situation rather than silence causing an
unreasonable inasmuch as this evidence was at the very               explosion. So her defense is that she did not make an
substance of Petitioner’s defense. Through the exclusion of          agreement with anyone. She allowed this talk because it
this evidence, Petitioner was deprived of her right to present       was just talk.
testimony in connection with and in support of her defense
pursuant to Washington and Crane, and she was denied her               Now, the sex acts involved in this case and father’s
right to effectively cross-examine key witnesses and                 prior conduct in treating his family so shabbily will show
demonstrate the accuracy and truthfulness of her defense             that this hatred was real and will show that why this talk
under Davis, all of which ultimately denied Petitioner her due       was engaged in.
process right to present a defense.
                                                                   (Trial Tr., Vol. I at 12-13.) The following colloquy then
   Indeed, at the hearing on the motion in limine before the       occurred between the trial court and Petitioner’s counsel:
trial court, Petitioner’s counsel argued the substantive
significance of the sexual abuse evidence as it related to           THE COURT: Assuming everything you say is true, []
Petitioner’s defense:                                                           assuming that there was hated [sic] based
                                                                                upon all these activities, what type of a
     Your Honor, in this case, my client, Sharon Rockwell,                      legal defense is it?
  is charged with conspiracy to murder Edward Rockwell,
  her husband. The facts will show in this case that there                                       ***
  were several conversations throughout the period of the
  conspiracy in which my client and the other conspirators           PETITIONER’S COUNSEL:         Because   mother
  and the other parties discussed death, ways of                                [Petitioner] says there was not an
  accomplishing death of father.                                                agreement to murder. Mother says this
                                                                                was nothing more than talk.
    The prosecution intends to show that my client
  engaged in these conversations in an effort to convince            THE COURT: Then how is your client harmed by not
  the jury that my client is guilty of conspiring to murder.                    including the sexual—prior sexual
                                                                                conduct?
                               ***
                                                                     PETITIONER’S COUNSEL: Because then a finder of
    My client knew of the extreme—and I                                         fact says, well, if there was—You know,
  underline—extreme hatred her children had for their                           the finder of fact concludes that this is
  father. She knew this because she lived with it every day                     just nothing more than a smoke screen
  she raised the children. Her defense, you Honor, is that                      by the Defendants. My client must show
No. 00-1992                           Rockwell v. Yukins      23    24   Rockwell v. Yukins                           No. 00-1992

                   that, in fact, this is true, her defense is      witnesses, including her co-defendants who testified at trial.
                   true, because otherwise, a rational finder       In other words, the trial court’s ruling deprived Petitioner of
                   of fact can believe that mother is just          “the right to present [her] own witnesses to establish a
                   making up a story to get out of                  defense[,] thus depriving Petitioner of a “fundamental
                   something.                                       element of due process of law.” Washington, 388 U.S. at 19.
                                                                    Accordingly, the state appellate court’s ruling that Petitioner
                                ***                                 was merely limited in the method by which she could present
                                                                    her defense was objectively unreasonable under Washington.
                   My client’s argument is that there was
                   no agreement; this was just talk. And              The same may be said of the state appellate court’s ruling
                   that’s very critical in this case because        under Crane v. Kentucky, inasmuch as without the evidence
                   the evidence and the facts will show that        of Rockwell’s abuse, Petitioner’s defense had no foundation
                   this talk occurred because of this               and “deprive[d] [Petitioner] of the basic right to have the
                   extreme hatred.                                  prosecutor’s case encounter and ‘survive the crucible of
                                                                    meaningful adversarial testing.’” Crane, 476 U.S. at 690-91
                   Her entire defense is built around               (quoting United States v. Cronic, 466 U.S. 648, 656 (1984)).
                   showing that, in fact, this was nothing          Similar to Crane, evidence of why Petitioner participated in
                   but talk, and to disallow the evidence to        the talk of Rockwell’s death—that it was a means of allowing
                   come in makes it—makes her defense               the boys to vent their hatred for their father that had resulted
                   one so weak that it is of dubious nature         from his sexual abuse—was “central to [Petitioner’s] claim of
                   at best.                                         innocence” because without the evidence as to why the boys
                                                                    hated their father, Petitioner’s defense had little chance of
(Id. at 14, 24.) Ruling on the record, the trial court excluded     succeeding. See id. at 691. Indeed, without more,
the evidence, stating as follows: “The Court will not allow         Petitioner’s “talk therapy” defense may very well have
inquiry into the collateral issues with regard to sexual matters.   worked against Petitioner inasmuch as the jury may have
The Court finds that it is not material under [MRE] 404.”           believed that Petitioner’s sons hated their father because he
(Trial Tr., Vol. I at 24.)                                          demanded that they excel in school, or because he strictly
                                                                    prevented them from using drugs or alcohol. In other words,
  Thus, the exclusion of this evidence did not merely limit         without more, the jury may have thought the sons hated
Petitioner “in the method” by which she could present her           Rockwell because he was being a good, albeit perhaps strict,
defense; rather, the exclusion of this evidence prevented           father, such that Petitioner’s approval of the boys speaking of
Petitioner from establishing her defense. As argued by her          killing Rockwell as a form of “talk therapy” may have hurt
counsel before the trial court, testimony of Rockwell’s sexual      her defense as opposed to helping it. Without knowing the
abuse provided the very basis as to why Petitioner allowed          reason behind the boys’ hatred of Rockwell, the jury may also
and participated in conversations with her sons regarding           have believed that they hated him at Petitioner’s behest,
Rockwell’s death, and why these conversations did not               thereby adding credence to the prosecution’s claim that
amount to an agreement to kill. Petitioner could not establish      Petitioner formed an agreement with her sons to kill
her defense without such testimony, which she could have            Rockwell. Thus, evidence of why the boys hated their father
introduced through her own testimony as well as that of other       and why Petitioner allowed or participated in talk of
No. 00-1992                            Rockwell v. Yukins      25    26       Rockwell v. Yukins                                No. 00-1992

Rockwell’s death was “all but indispensable to any chance of         gained credence thus making it less “speculative.” Davis, 415
[her defense] succeeding” thereby rendering the state                U.S. at 317-18. Accordingly, Davis is further indication that
appellate court’s ruling objectively unreasonable under              excluding evidence of Rockwell’s sexual abuse deprived
Crane. Id. at 691.                                                   Petitioner of the substance of her defense, making the state
                                                                     appellate court’s determination that Petitioner was merely
    Davis v. Alaska provides further support as to why the state     limited in the “method” of presenting her defense objectively
appellate court’s ruling that Petitioner was merely limited in       unreasonable.1
the “method” by which she could present her defense was
objectively unreasonable. This is so because, as indicated, the        B. Excluding the Evidence Under Rule 403
Court in Davis held that “the jurors were entitled to have the
benefit of the defense theory before them so that they could           The majority contends that the Michigan Court of Appeals
make an informed judgment as to the weight to place on [the          excluded evidence of Rockwell’s sexual abuse of his sons
witness’] testimony which provided a crucial link in the proof       because the court found that the probative value of the
. . . of petitioner’s act.” Id. at 317 (internal quotation marks     evidence was substantially outweighed by the danger that
and citation omitted; emphasis in original). The Court               unfair prejudice would have ensued had the evidence been
reasoned that “[t]he accuracy and truthfulness of [the key           admitted. The majority goes on to hold that it was not
witness’] testimony were key elements in the State’s claim           objectively unreasonable for the state appellate court to
against the petitioner.” Id.                                         exclude the evidence on this basis because, “[t]he evidence of
                                                                     sexual abused posed a substantial danger of unfair
   The accuracy and truthfulness of testimony provided by the        prejudice—a risk that the jury would be tempted to acquit
prosecution’s witnesses in connection with Petitioner’s              Mrs. Rockwell not because of any sense that she was innocent
participation in discussions to kill Rockwell were key               of conspiring with her sons to kill Mr. Rockwell, but because
elements in the state’s conspiracy case against Petitioner.          of a sense that killing would be too good for such a man.”
Indeed, without such evidence, the state would have been at          However, the majority’s conclusion in this regard is based on
a loss in proving that Petitioner formed an agreement to kill.       pure speculation and what amounts to an inappropriate de
For example, prosecution witness Peter Earl Granger, who             novo review of the case inasmuch as the Michigan Court of
identified himself as a family friend, testified at length that he   Appeals’ two-judge majority merely stated that “[a]lthough
had been privy to discussions that Petitioner had with her sons      marginally relevant, the evidence was properly excluded
about killing Rockwell. (Trial Tr. Vol. IV. at 96-117.) If           under MRE 403.” Indeed, the same be said for the majority’s
Petitioner had been allowed to cross-examine Granger as to           speculation that the evidence was properly excluded under
the context or circumstances under which these discussions to        Rule 403 because it would have complicated the trial or have
kill arose—the boys’ hatred of Rockwell due to his alleged           tended to mislead the jury. There is nothing to support this
sexual abuse—Granger’s statements may have served to aid
Petitioner and not the state. Similarly, co-defendant Jeffrey
Greene, the young man upon whom Rockwell had allegedly                    1
                                                                            The majo rity’s conclusion tha t Da vis is “readily distinguishable”
made a sexual advance on the night in question, testified at         flies in the face of habeas review under the unreasonable application
trial; and had Petitioner been allowed to question Greene as         prong of § 2254(d)(1) inasmuch as under this prong, relief may be granted
to Rockwell’s history of sexual abuse on the Rockwell                “based on an application of a governing legal princip le to a set of facts
                                                                     different from those of the case in which the principle was announced.”
children, Petitioner’s “talk therapy” defense would have             Lockyer v. Andrade, 123 S. Ct. at 1174.
No. 00-1992                               Rockwell v. Yukins         27    28       Rockwell v. Yukins                             No. 00-1992

conclusion, particularly where the decision whether to admit               court of appeals overall application of Strickland was
the evidence was decided in a motion in limine and the trial               objectively unreasonable because 1) the court’s finding that
court could easily have limited the parameters of the evidence             defense counsel had adequately investigated the petitioner’s
while cautioning the jury as to the scope of its consideration.            background was objectively unreasonable under Strickland
                                                                           which 2) thereby made the state court’s subsequent deference
  Michigan’s Rule of Evidence 403 is identical to Federal                  to counsel’s strategic choice objectively unreasonable as
Rule of Evidence 403 and provides: “Although relevant,                     well).
evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,                   It is true, as the majority contends, that the Supreme Court
confusion of the issues, or misleading the jury, or by                     has held that a defendant’s right to present relevant evidence
considerations of undue delay, waste of time, or needless                  is subject to reasonable restrictions for the purpose of
presentation of cumulative evidence.” MICH. R. EVID . 403.                 accommodating “‘other legitimate interests in the criminal
Thus, the Michigan Court of Appeals may have excluded the                  trial process.’” United States v. Scheffer, 523 U.S. 303, 308
evidence under Rule 403 for any of the reasons provided                    (1998) (quoting Chambers v. Mississippi, 410 U.S. 284, 295
under the rule. Indeed, there is nothing in the state court’s              (1973)). To the extent that the Michigan Court of Appeals
majority opinion to indicate that it excluded the evidence                 excluded the evidence under Rule 403, for whatever reason,
because the probative value of the evidence was substantially              it would appear that under the deferential standard set forth by
outweighed by the danger of unfair prejudice.2 In fact, when               AEDPA, this Court would be in a position to conclude that
considering the sentence in the state appellate court’s opinion            the state appellate court’s decision was not unreasonable.
immediately proceeding the sentence where it is found that                 However, inasmuch as the state court was objectively
the evidence was properly excluded under Rule                              unreasonable in concluding that exclusion of the evidence
403—“Defendant was merely limited in the method with                       merely denied Petitioner the “method” by which she could
which to present her defense and not deprived the opportunity              present her defense, its conclusion that the evidence was
to present the same”—it logically follows that evidence was                properly excluded under Rule 403 was objectively
excluded as being cumulative.                                              unreasonable as well.3 See Wiggins, 123 S. Ct. at 2538-539;
                                                                           see also Scheffer, 523 U.S. at 308 (recognizing that it is
  That aside, the state appellate court’s ruling that the                  unconstitutionally arbitrary or disproportionate to exclude
evidence was properly excluded under Rule 403, for whatever                evidence if, in doing so, an accused’s weighty interest is
reason, is objectively unreasonable inasmuch as its conclusion             infringed).
that Petitioner was “merely limited in the method with which
to present her defense and not deprived the opportunity to
present the same” was in itself objectively unreasonable. See
Wiggins, 123 S. Ct. at 2538-539 (concluding that the state

    2                                                                           3
     There is nothing in the trial court’s decision granting the state’s        Because the denial of her right to p resent a defense would be
motion in limine to indicate that the evidence was excluded because its    “constitutional error of the first magnitude and no amount of showing of
probative value was substantially outweighed by the d anger of unfair      want of prejudice would cure it,” see Davis v. Alaska, 415 U.S. 308, 318
prejudice inasmuch as the state trial court excluded the evidence under    (1974), the majority’s co ntention that such error would have been
Michigan Rule o f Evidence 404 . (J.A. at 3 6.)                            harmless is unfounded.
No. 00-1992                           Rockwell v. Yukins      29

IV. Conclusion
  The Constitution guarantees criminal defendants “a
meaningful opportunity to present a complete defense.”
California v. Trombetta, 467 U.S. 479, 485 (1984). Because
the exclusion of evidence regarding Rockwell’s sexual abuse
deprived Petitioner of her opportunity to be heard for
purposes of establishing a defense and claiming her
innocence, the Michigan Court of Appeals’ ruling that
Petitioner was merely limited in the “method” of presenting
her defense was objectively unreasonable, thereby making its
ruling that the evidence was properly excluded under Rule
403 objectively unreasonable as well. I therefore would
affirm the district court’s grant of Petitioner’s application for
a writ of habeas corpus, and respectfully dissent.
