                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0259n.06

                                           No. 11-4425
                                                                                         FILED
                          UNITED STATES COURT OF APPEALS                             Mar 13, 2013
                               FOR THE SIXTH CIRCUIT                           DEBORAH S. HUNT, Clerk


DELRICO ROBERTSON ,                                   )
                                                      )
       Petitioner-Appellant,                          )
                                                      )       ON APPEAL FROM THE UNITED
               v.                                     )       STATES DISTRICT COURT FOR
                                                      )        THE SOUTHERN DISTRICT OF
PHILLIP KERNS, Warden,                                )                  OHIO
                                                      )
       Respondent-Appellee,                           )
                                                      )
                                                      )


BEFORE: MARTIN and ROGERS, Circuit Judges, and TARNOW, District Judge.*

TARNOW, District Judge.

                                      I. INTRODUCTION

       Before this Court is Delrico Robertson’s appeal of the District Court’s dismissal of this

habeas corpus petition. Robertson argues that the testimony of Detective Upchurch was unlawfully

admitted at trial, and that this admission was prejudicial. The District Court found the testimony to

be inadmissible, but it held that its admission was harmless error. Robertson challenges the finding

of harmless error. Specifically, Robertson challenges his convictions for one count of felonious




       *
         The Honorable Arthur J. Tarnow, Senior United States District Judge for the Eastern
District of Michigan, sitting by designation.

                                                 1
assault, including a gun specification, and one count of having a weapon while under a disability.

For the reasons stated below, we AFFIRM the District Court’s judgment.


                              II. PROCEDURAL BACKGROUND

       In 2006, Robertson was indicted by the Hamilton County, Ohio Grand Jury on four counts

of felonious assault with a gun specification; three counts of having a weapon while under a

disability; and one count of murder, also with a gun specification. All the offenses were tried before

one jury. The jury found Robertson guilty on all counts. The trial court sentenced Robertson to an

aggregate term of fifty years to life in prison: a seven-year term for each count of felonious assault;

a three-year term for each gun specification; and eighteen years to life imprisonment for the one

count of murder with the gun specification.

       Robertson filed a timely appeal. In May 2008, the Ohio Court of Appeals merged the two

counts of felonious assault as to victim Andre Hayes and the two counts of felonious assault as to

victim Willis. The Court of Appeals otherwise affirmed the judgment of the trial court.

       Robertson then appealed the decision to the Ohio Supreme Court. The Court denied

jurisdiction and dismissed the appeal. In February 2009, Robertson was resentenced in accordance

with the merging of the counts of felonious assault. However, because these counts were run

concurrently, Robertson’s aggregate sentence was not altered. Robertson then appealed this

resentencing, which was affirmed by the Court of Appeals. The Ohio Supreme Court denied any

further review.




                                                  2
       Robertson then filed a Petition for Writ of Habeas Corpus in January 2010, in the United

States District Court for the Southern District of Ohio. Robertson asserted three separate grounds

for relief. These grounds for relief were:

       Ground one: The prosecutor committed prosecutorial misconduct when he (1) asked
       the jury to infer crimes based on the damage caused, (2) argued facts outside the
       record blaming the defendant for weaknesses in the State’s case, and (3) improperly
       asked the jury to use evidence in one joined charge as proof of separate charges as
       well. That misconduct violated Mr. Robertson’s due process right to a fair trial.

       Ground Two: Mr. Robertson’s confrontation rights were violated when the State
       introduced the testimony of non-testifying witnesses through third parties. Mr.
       Robertson was prejudiced by that introduction because the statements improperly
       bolstered the State’s case and represented the only unbiased eyewitness testimony
       regarding one of the discrete incidents.

       Ground Three: Mr. Robertson received ineffective assistance of counsel when
       counsel failed to maintain an objection to prejudicial hearsay in violation of Mr.
       Robertson’s confrontation rights and failed to object to prosecutorial misconduct
       th[at] violated Mr. Robertson’s due process right to a fair trial.

       In August 2011, the Magistrate Judge issued its Report and Recommendation, recommending

denial of the petition and a limited issuance of a certificate of appealability. Robertson filed

objections to the Report and Recommendation. The District Court Judge adopted the Report and

Recommendation, and certified appeal only as to the second ground for relief, pertaining to the

alleged violation of Robertson’s confrontation rights at trial.

       This second ground for relief addresses Detective Upchurch’s trial testimony as to Willis’

identification of Robertson as his shooter during the March 7, 2006 incident.

                                 III. STATEMENT OF FACTS




                                                  3
       In its review of the trial court proceedings, the state Court of Appeals included a thorough

recitation of facts as to the three shootings for which Robertson was tried and convicted. Those facts

relevant to the March 7, 2006 shooting of Michael Willis are included here:

       During the jury trial, the state alleged that, on March 7, two girls were fighting on the
       corner of 15th and Republic Streets in Cincinnati. According to Lawrence Maupin,
       Michael Willis attempted to break up the fight. Maupin testified that he had heard
       Robertson say, “Don't break it up.” Willis ignored Robertson, and Robertson shot
       Willis three or four times in the back. Jamisha Willis, Michael's sister, testified that
       she arrived at the scene after her brother had been shot, and that she saw bullet
       wounds to his buttocks and thigh....
               Detective Robin Upchurch investigated the Willis shooting. According to
       Detective Upchurch, she spoke with Willis, and he eventually identified the person
       who had shot him...Lawrence Maupin testified that he had witnessed both the Willis
       shooting and the Cox shooting, and he identified Robertson as the shooter in both
       incidents.
               After Robertson had been connected to Cox's murder, police officers searched
       for him in the Cincinnati area. They were unable to locate him. About two weeks
       after Cox was shot, Robertson was arrested in Detroit, Michigan.

                                 IV. STANDARD OF REVIEW

       This Court reviews a district court’s judgment in a habeas matter de novo. Staley v.

Jones, 239 F.3d 769, 775 (6th Cir. 2001).Under AEDPA, 28 U.S.C. § 2254(d), habeas relief may

not be granted unless the previous state adjudication of the claim:

       (1) resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the Supreme Court
       of the United States; or
       (2) resulted in a decision that was based on an unreasonable determination of the
       facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

       “This is a difficult to meet, and highly deferential standard for evaluating state-court rulings,

which demands that state-court decisions be given the benefit of the doubt.” Cullen, 131 S. Ct. 1388,

1398 (2011) (citation and internal quotation marks omitted). “[A] state prisoner must show that the


                                                  4
state court's ruling on the claim being presented in federal court was so lacking in justification that

there was an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-787 (U.S. 2011).

       Following Fry v. Pliler, 551 U.S. 112, 120 (2007), this Court held that the harmless error

standard of Brecht v. Abrahamson, 507 U.S. 619 (1993), “‘is broader and thus “subsumes” the

question’ of whether the state court's decision was ‘objectively unreasonable’” under AEDPA.

Jaradat v. Williams, 591 F.3d 863, 869 (6th Cir. 2010) (citing Ruelas v. Wolfenbarger, 580 F. 3d

403, 412 (6th Cir. 2009)).

       A. Sixth Amendment Confrontation Clause

       The Sixth Amendment to the United States Constitution provides: “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

U.S. Const. amend. VI. Testimonial hearsay is the “primary object” of the Sixth Amendment, and

“interrogations by law enforcement officers fall squarely within that class.”            Crawford v.

Washington, 541 U.S. 36, 53 & n.4 (2004)(holding that a “recorded statement, knowingly given in

response to structured police questioning, qualifies [as testimonial] under any conceivable

definition.”) Specifically, the Court noted that “[t]estimonial statements of witnesses absent from

trial have been admitted only where the declarant is unavailable, and only where the defendant has

had a prior opportunity to cross-examine.” Id. at 59.

       B. Prejudicial Effect

       Under Brecht, an error is harmless unless it “had substantial and injurious effect or influence

in determining the jury's verdict.” Brecht, 507 U.S. at 623.




                                                  5
        When reviewing Confrontation Clause violations for harmless error, this Court considers five

factors: (1) the importance of the witness' testimony in the prosecution's case; (2) whether the

testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting

the testimony of the witness on material points; (4) the extent of cross-examination otherwise

permitted; and (5) the overall strength of the prosecution's case. Couturier v. Vasbinder, 385 Fed.

Appx. 509, 515 (6th Cir. 2010)(citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986))(quotation

marks omitted).

                                         V. DISCUSSION

        Robertson appeals the second ground for relief listed in his habeas petition. Again, this

ground for relief states:

        Mr. Robertson’s confrontation rights were violated when the State introduced the
        testimony of non-testifying witnesses through third parties. Mr. Robertson was
        prejudiced by that introduction because the statements improperly bolstered the
        State’s case and represented the only unbiased eyewitness testimony regarding one
        of the discrete incidents.

This second ground for relief included the following supporting fact: “Officer Upchurch testified

about statements that Michael Willis, a victim, told him identifying Mr. Robertson. Michael Willis

did not testify.”

        The State Court of Appeals found that Willis’ statement to Detective Upchurch was

testimonial, but that its admission at trial is harmless error. The District Court also found Detective

Upchurch’s statement to be testimonial, and that it had insufficient prejudicial effect. We agree.

        In assessing the possible prejudicial effect of the testimonial statement, the Court considers

two pieces of witness testimony, other than that of Detective Upchurch. First is the testimony of

Lawrence Maupin, who witnessed the shooting of Willis on March 7, 2006. Maupin knew


                                                  6
Robertson, and identified him as the shooter. Maupin testified that he saw Robertson shoot Willis

in the back three or four times with a revolver. Maupin also testified that Willis then ran to the

corner and collapsed. The first police officer on the scene of this shooting confirmed that Willis had

made his way from the site where he was shot around the corner before he collapsed. The parties

dispute the credibility of Maupin’s testimony. However, witness credibility must be a determination

left to the jury. United States v. Graham, 622 F.3d 445, 448-49 (6th Cir. 2010).

       Second, is the testimony of Jamisha Willis, the sister of victim of Michael Willis. Jamisha

Willis testified that when she was walking outside with her brother, Michael saw Robertson and

identified him as the March 7 shooter. The parties dispute the propriety of admitting Jamisha Willis’

testimony at trial. On direct, Robertson’s defense counsel objected to the identification and the court

sustained the objection. The judge would later instruct the jury to disregard this testimony.

However, defense counsel reintroduced the testimony on cross-examination. Jamisha Willis

repeated several times on cross-examination, without objection, that “Rico” was the man who shot

her brother. The Magistrate Judge found that Jamisha Willis’s testimony did not violate the

Confrontation Clause because it was nontestimonial.            Robertson has not challenged that

determination.

       Jamisha Willis’ testimony identifying Robertson as the man who shot Michael Willis is

identical to, and therefore can take the place of, Detective Upchurch’s inadmissible testimony.

Moreover, Maupin’s eyewitness testimony corroborates this identification. Robertson does not

present any evidence to directly contradict Jamisha Willis or Maupin’s testimony.

       Therefore, on a weighing of the five factors, the admission of Detective Upchurch’s

testimonial evidence was harmless error, and was not substantially prejudicial to Robertson.


                                                  7
                                   VI. CONCLUSION

       The admission of Detective Upchurch’s testimony was harmless error. Therefore, we

AFFIRM the judgment of the District Court.




                                             8
