                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0259n.06
                                                                                        FILED
                                      Nos. 10-1041/10-1104
                                                                                   Mar 07, 2012
                            UNITED STATES COURT OF APPEALS                   LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT


RONALD CLARENCE BABCOCK                              )
                                                     )
       Petitioner-Appellee/Cross-Appellant           )
                                                     )    ON APPEAL FROM THE UNITED
               v.                                    )    STATES DISTRICT COURT FOR
                                                     )    THE EASTERN DISTRICT OF
LINDA M. METRISH                                     )    MICHIGAN
                                                     )
       Respondent-Appellant/Cross-Appellee           )
                                                     )



Before: GIBBONS and SUTTON, Circuit Judges; ADAMS, District Judge.*

       ADAMS, J. Appellant, Linda Metrish, appeals the district court’s grant of Appellee, Ronald

Babcock’s, writ of habeas corpus. In her appeal, Metrish asserts that the district court erred when

it concluded that the admission of Trooper Hare’s testimony in violation of Babcock’s Sixth

Amendment right to confrontation was not harmless error. Babcock filed a cross-appeal, essentially

asserting violations of the Uniform Commercial Code. For the reasons set forth below, we AFFIRM

the judgment of the district court.

                                         I. Background

       On December 8, 2004, Babcock was found guilty by a jury of possession of a firearm by a

felon, in violation of Mich. Comp. Laws § 750.224f and possession of a firearm during the



* The Honorable John R. Adams, United States District Judge for the Northern District of Ohio,
sitting by designation.
commission of a felony, in violation of Mich. Comp. Laws § 750.227b. Babcock was sentenced to

46 months to 360 months of imprisonment.

       The Michigan Court of Appeals summarized the facts in this case as follows:

                Defendant is a convicted felon. He was ineligible to possess a firearm at all
       times relevant to this case. Defendant’s former girlfriend, Shawn Lester, testified
       that while they were still dating, defendant selected a .22 rifle from Wal-Mart and
       gave her money with instructions to purchase it for him. She purchased the gun and
       some ammunition and took it to her home, where defendant took the gun and
       demonstrated to her how to load it. She insisted that defendant not remove the gun
       from her home because she knew he was a felon and ineligible to possess it, but he
       nevertheless took it and the ammunition out with him the next day. Cindy Pero, the
       sister of one of defendant’s friends testified that defendant took the gun to her house
       because he and his friend were going to shoot skeet with it. Lester later retrieved the
       gun from Pero’s house after reporting the matter to a police officer. Lester took the
       gun to Stella Sherman, who placed it in her husband’s gun safe. Lester admitted that
       this was some time after she and defendant had broken up. State Police Officer
       Hilary Hare retrieved the gun from Sherman’s house and later interviewed defendant
       at jail.

               Subsequent to his arrest, but prior to trial, Hare informed the prosecutor that
       she would be unavailable to testify at trial because she would be on her honeymoon.
       See MRE 804(b)(5)(A). The prosecutor sought to adjourn the trial. In lieu of an
       adjournment, the trial court ordered that the officer’s video deposition be taken.
       Defendant objected, but was present at and cross-examined the officer during the
       deposition. At the deposition, Hare testified, among other things, that defendant
       admitted to her at the jail interview that he had had Lester purchase a .22 rifle, which
       he later removed from Lester’s residence and took to Pero’s residence. An edited
       transcript of the deposition was read before the jury, again over defendant’s
       objection. The videotape itself was not played for the jury, although the record is
       unclear whether some portion of it may have been played.

People v. Babcock, 2006 WL 2739328, at *1 (Mich. Ct. App. Sept. 26, 2006) (per curiam).

       Babcock appealed his conviction to the Michigan Court of Appeals. He argued that the

reading of Trooper Hare’s testimony in lieu of live appearance at the trial violated his Sixth

Amendment right to confrontation. The Michigan Court of Appeals agreed. It further concluded,

however, that the error was harmless. Id. at *3. In reaching this conclusion, the Michigan Court


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of Appeals conducted an examination of the record “to evaluate whether it is clear, beyond a

reasonable doubt, that the jury verdict would have been the same absent the error.” Id. (internal

citations and quotations omitted.) Specifically, the Court concluded that Trooper Hare’s testimony

was “sufficiently redundant that we do not believe defendant suffered any prejudice as a result.” Id.

Babcock filed leave to appeal this decision with the Michigan Supreme Court. In May of 2007, the

Michigan Supreme Court denied Babcock’s application for leave “because we are not persuaded that

the questions presented should be reviewed by this Court.” People v. Babcock, 730 N.W. 2d 474,

474 (Mich. 2007) (Markman, J., concurring).

       In July of 2007, Babcock filed an application for a writ of habeas corpus with the United

States District Court in the Eastern District of Michigan, Southern Division. The matter was referred

to a Magistrate Judge. Relevant to the instant appeal, Babcock argued that his right to confrontation

had been violated. Metrish responded. On October 28, 2009, the Magistrate Judge issued a report

and recommendation (“R&R”), recommending that the district court grant Babcock’s petition. The

R&R concluded that the use of Trooper Hare’s deposition testimony at trial violated Babcock's Sixth

Amendment right to confrontation and that the error was not harmless. Metrish filed objections to

the R&R and Babcock responded. On December 11, 2009, the district court overruled Metrish’s

objections, adopted the R&R, and conditionally granted Babcock’s writ. The matter was stayed

pending appeal.

       Metrish appealed the district court’s decision. Babcock filed a cross-appeal. The matter is

now before this Court. Upon review, we AFFIRM the judgment of the district court.




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                                      II. Standard of Review

        This case is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of

1996.

                 "In reviewing a district court’s decision to grant or deny habeas relief, this
        Court reviews questions of fact under a ‘clearly erroneous’ standard and questions
        of law de novo.” Johnson v. Sherry, 586 F.3d 439, 443 (6th Cir. 2009) (citation
        omitted). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
        federal courts may grant habeas relief if the state court’s adjudication of the claim
        resulted in a decision contrary to, or unreasonably applying, clearly established
        federal law, as determined by the Supreme Court. 28 U.S.C. § 2254(d). Yet
        AEDPA’s “highly deferential standard ... demands that state-court decisions be given
        the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357, 154
        L. Ed. 2d 279 (2002) (per curiam) (internal quotation marks and citation omitted).
        “[A] federal habeas court may not issue the writ simply because that court concludes
        in its independent judgment that the state-court decision applied [a Supreme Court
        case] incorrectly.” Price v. Vincent, 538 U.S. 634, 641, 123 S. Ct. 1848, 155 L. Ed.
        2d 877 (2003) (alterations in original) (internal quotation marks and citation
        omitted). “Rather, it is the habeas applicant’s burden to show that the state court
        applied [that case] to the facts of his case in an objectively unreasonable manner.”
        Woodford, 537 U.S. at 25, 123 S. Ct. 357.

Dittrich v. Woods, 419 F.App'x. 573, 576 (6th Cir. 2011).

        The particular issue on appeal is whether the admission of Trooper Hare’s testimony in

violation of Babcock’s Sixth Amendment right to confrontation was harmless error. “We review

a habeas petitioner’s claim of Confrontation Clause violations for harmless error.” Id. (citing

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). Accordingly, the appropriate inquiry “is

whether the error ‘had substantial and injurious effect or influence in determining the jury’s

verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 637 (quoting Kotteakos v. United States, 328 U.S.

750, 776 (1946)).

        The standard as set forth in Brecht does not require the petitioner to bear the burden of

establishing whether the error was prejudicial. Rather, the United States Supreme Court has


                                                  4
explained that the district court judge should ask him or herself “'Do I, the judge, think that the error

substantially influenced the jury’s decision?'” O’Neal v. McAninch, 513 U.S. 432, 436 (1995). “If

the judge is certain that the error had no or a small effect, the verdict must stand. However, if the

matter is so evenly balanced that the judge has ‘grave doubts’ as to whether the trial error had

substantial or injurious effect or influence in determining the jury’s verdict, such that the matter is

so evenly balanced that he feels himself in a ‘virtual equipoise’ as to harmlessness, the judge must

treat the error as if it were harmful and grant the petitioner’s writ.” Jensen v. Romanowski, 590 F.3d

373, 378 (6th Cir. 2009), quoting O’Neal, 513 U.S. at 435 & 445; Stallings v. Bobby, 464 F.3d 576,

582 (6th Cir. 2006).

        At oral argument, Metrish argued that the applicable standard of review would be to first do

the AEDPA analysis and then, if successful, conduct the “harmless beyond a reasonable doubt”

standard error analysis as stated in Chapman v. California, 386 U.S. 18 (1967). Metrish conceded

that she did not assert this argument below. Accordingly, Metrish’s assertion of a double layer

standard of review has been forfeited. See United States v. Tristan–Madrigal, 601 F.3d 629, 636 n.2

(6th Cir. 2010); Armstrong v. City of Melvindale, 432 F.3d 695, 699–700 (6th Cir. 2006) (“the failure

to present an issue to the district court forfeits the right to have the argument addressed on appeal.”).

                                           III. Discussion

        a. Metrish’s Assignment of Error

        Metrish concedes that the introduction of Trooper Hare’s testimony at trial violated

Babcock’s Sixth Amendment right to confrontation. As such, we limit our review to whether the

district court erred in determining that there was more than a “grave doubt” as to whether the

admission of Trooper Hare’s testimony had a substantial and injurious effect on the jury’s verdict.


                                                   5
               In determining whether a Confrontation Clause violation is harmless under
       Brecht, this Court has repeatedly referred to the factors laid out in Delaware v. Van
       Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Those factors
       include: (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. Id.

Jensen, 590 F.3d at 379.

       Accordingly, we assess the prejudicial impact of the admission of Trooper Hare’s testimony

under Brecht’s “substantial and injurious effect” standard by examining the error through application

of the factors set forth in Van Arsdall to the facts in this case. Jensen, 590 F.3d at 379.

               i. The Importance of Trooper Hare’s Testimony in the Prosecution’s Case

       The Court initially notes that at the outset of trial, the jury was informed the parties stipulated

that Babcock was a felon and ineligible to possess a firearm on the date in question. Thus, the jury

was left with the question of whether Babcock actually possessed the firearm. It is clear that Trooper

Hare’s testimony was very important to the prosecution’s case. Although the prosecution presented

the eyewitness testimony of Babcock’s ex-girlfriend, Shawn Lester, her testimony became much

more credible after the admission of Trooper Hare’s testimony. Trooper Hare explained that

Babcock confessed that he transported the firearm and that his fingerprints would be on the gun. The

prosecution could have easily foreseen that Lester’s credibility as Babcock’s ex-girlfriend would be

called into question, particularly in light of the fact that she reported Babcock to police seemingly

simultaneously with the demise of their relationship.

       The prosecution further presented the testimony of Cindy Pero. Pero explained that Babcock

brought the gun to her home. Pero testified that she had been friends with Lester for at least seven



                                                   6
years. She further explained that she and Lester had discussed the case the morning of trial. She

explained that she became reacquainted with Babcock about a year and a half prior to the trial. She

testified that she considered him an acquaintance rather than a friend. Again, the prosecution could

have reasonably foreseen a potential bias issue with Pero’s testimony.

       The prosecution presented the testimony of Stella Sherman. She explained that Lester

brought the gun to her at work and asked her to take it to her home so that Babcock could not locate

it. The next day, Sherman turned the gun over to Trooper Hare. Finally, Sherman testified that her

husband is Lester’s cousin. The prosecution could have reasonably foreseen a bias issue with

Sherman's testimony.

       The jury heard portions of Trooper Hare’s video deposition. Trooper Hare stated that on

August 6, 2003, she interviewed Babcock at the County Jail about possibly possessing a firearm.

She verified that Babcock informed her that he had been living with Lester and that they had been

in a relationship. Babcock informed her that he looked at guns at Wal-Mart for Lester. He explained

that he wanted Lester to have protection. Babcock confirmed Lester’s version of the events; that he

picked the gun out, gave her money and told her what to purchase. Notably, Trooper Hare testified

that she asked Babcock whether he handled the gun, and he indicated that his fingerprints would be

on the rifle because he was showing Lester how to use it. He further confirmed that he removed the

gun from the home because Lester did not feel comfortable with it in her home. After refreshing her

memory with her police report, Trooper Hare testified that Babcock told her that “like a dummy I

took it to Cindy Knowland’s residence, or Cindy Knowland at Sue Churchill’s residence in Akron.”

Trooper Hare stated that Babcock told her that Cindy Knowland was Cindy Pero. Trooper Hare




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verified that she retrieved the gun from Stella Sherman’s residence. She retrieved the ammunition

from Lester.

       On cross-examination, Trooper Hare stated that she did not personally observe Babcock with

the gun. She explained that she interviewed Lester. Trooper Hare testified that Lester told her that

she had fallen in love with Babcock and he moved into her home shortly thereafter. Lester stated

that she made a big mistake on the date in question and that three days later she and Babcock broke

up. Lester told Trooper Hare that either the day of or the day after she bought the gun, Babcock

moved out of her home.

       Accordingly, it is very clear that Trooper Hare’s testimony was extremely important to the

prosecution’s case. It was necessary to overcome the perceived bias of all of the prosecution’s

witnesses. More importantly, it was the only method by which the prosecution could inform the jury

of Babcock’s confession that he had handled the gun and that he had transported the gun from

Lester’s home to Pero’s home. The prosecutor highlighted the importance of this testimony on

rebuttal during closing statements. The prosecutor explained that Trooper Hare testified as to

Babcock’s confession. Specifically, the prosecutor stated:

               There’s your verification from the defendant himself. What better
       verification could you have? Sure we can go and send this to the lab to get prints off
       from it. Why? Take more people’s time, more people’s money, when you have the
       evidence that you need already before you? Evidence! The defendant’s own
       statement. What would you rather have, what somebody told you happened? And
       especially when that person is the person who’s on trial, the defendant, his own
       statements, his own statements to Trooper Hilary Hare.

               ii. Cumulative Evidence

       As explained above, the prosecution presented the live witness testimony of Lester, Pero, and

Sherman. Lester and Pero both testified that they observed Babcock with a gun. Pero testified that


                                                 8
Babcock brought the gun to her house. Coupled with the stipulation that Babcock was ineligible to

possess a firearm on the date in question, the Michigan Appeals Court noted, “[t]his evidence alone

would be sufficient to conclude that the verdict was unaffected by Officer Hare’s testimony,

particularly given that she did not personally witness defendant in possession of the rifle.” Babcock,

2006 WL 2739328, at *3 (Sept. 26, 2006).

       That there was sufficient evidence for a conviction without Trooper Hare's testimony,

however, does not prove an absence of prejudice. The evidence became overwhelming with the

addition of Trooper Hare’s testimony. As such, Trooper Hare’s testimony bolsters the credibility

of the other testimony as it corroborates much of the live eye-witness testimony.

       Further, Trooper Hare testified to Babcock’s confession. Admission of a confession is not

merely cumulative of other testimony. “A confession is like no other evidence. Indeed, the

defendant’s own confession is probably the most probative and damaging evidence that can be

admitted against him.” Arizona v. Fulminante, 499 U.S. 279, 296 111 (1991). While it is possible

to believe the jury could have found Babcock guilty without the offending testimony, we have grave

doubts as to whether the unconstitutional admission of his confession via Trooper Hare’s testimony

did not have a substantial effect on the jury's verdict. O'Neal, 513 U.S. at 436.

               iii. Corroborating or Conflicting Evidence

       Defense counsel attempted to impeach Lester’s testimony by highlighting inconsistencies

with Trooper Hare’s video deposition. These inconsistencies were very minor and do not take away

from the fact that Trooper Hare’s testimony regarding Babcock’s confession was corroborated by

Lester and Pero’s testimony. However, the fact that Lester’s testimony varied slightly from her

previous statements is all the more proof of the importance of Trooper Hare’s testimony. Without


                                                  9
it, the jury was left with the impression after Defense Counsel’s cross-examination that Lester was

not being entirely truthful. Read in conjunction with Trooper Hare’s larger corroborative video

deposition testimony, however, the inconsistencies, in Lester's testimony appear to be very minor

and could be easily overlooked.

       The jury submitted a question to the court that clearly indicated that they questioned the

testimony presented. Specifically, the jury asked; “Did Mr. Babcock admit taking the gun from the

house?” The court issued a written response that stated: “Answer, yes.” The jury also asked for the

legal definition of “possessed.”1 As the Magistrate Judge stated in his R&R, these questions when

viewed together “strongly indicate[] that the jury relied particularly on Hare’s testimony in reaching

its verdict.” The Magistrate Judge noted that the question was a “specific, targeted question-whether

petitioner had confessed to possessing the guns-that was answered only by Hare’s testimony.” We

agree with the Magistrate Judge’s view of these questions. It becomes clear that in light of the

varying testimony, the jury placed weight on Trooper Hare’s statements. Although the Michigan

Court of Appeals declined to infer from these notes that the jury found the live testimony to be

unconvincing, this is not the standard this Court must apply. Rather, this Court must ask itself “Do

I, the judge, think that the error substantially influenced the jury’s decision?” O'Neal, 513 U.S. at

436. The answer is unequivocally “yes.”

               iv. Extent of Cross-Examination Otherwise Permitted

       While Babcock was given the chance to cross examine Trooper Hare, this cross examination

was not effective. It appears that the video deposition was taken prior to the trial court’s ruling on



1 Although the transcript reflects that the Court and the parties argued over the best way to answer
this question, the answer eventually given to the jury was not read into the record.

                                                 10
Babcock’s motion to suppress his statements to Trooper Hare. Therefore, Babcock’s counsel was

forced to cross examine on the issue of admissibility and to focus energy and time on issues that

were soon thereafter deemed unnecessary. Further, Babcock’s counsel stated on the record that he

believed he was “at a little bit of a disadvantage because we didn’t know what the evidence was

going—how the evidence was going to come out at the trial[.]” As such, it would have been very

difficult for Babcock’s counsel to have been adequately prepared to cross examine Trooper Hare as

if she were testifying live before the jury at trial.

                v. Strength of Prosecution’s Case

        Without Trooper Hare’s testimony, the prosecution’s case was substantial but not

overwhelming. There was no physical evidence and the remaining witnesses were potentially biased.

As the Michigan Court of Appeals noted, the jury could have found sufficient evidence to convict

Babcock without Trooper Hare’s testimony. But, Trooper Hare’s testimony, in conjunction with the

live witness testimony, created an even stronger case for the prosecution.

        After a thorough analysis of the factors set forth in Van Arsdall, this Court concludes that

Babcock suffered a substantial and injurious effect from the inappropriate admission of Trooper

Hare’s testimony.

        b. Babcock’s Cross Appeal

        Much of Babcock’s cross appeal is nonsensical. However, the Court construes that Babcock

has asserted several arguments under the Uniform Commercial Code (U.C.C.). He repeatedly insists

that his case is governed by the U.C.C. This belief is incorrect. As explained above, the instant case

is governed by the AEDPA. “As its title implies, the Uniform Commercial Code (UCC) governs

commercial transactions. See Mich. Comp. Laws § 440.1102(2) (describing the purposes of


                                                    11
Michigan’s UCC). It is not a source of substantive rights in a criminal action.” Thompson v. Scutt,

2011 WL 2745934 (July 13, 2011, W.D. Mich). Accordingly, Babcock’s arguments in his cross

appeal are rejected.

                                         IV. Conclusion

        The Court has reviewed both Metrish’s and Babcock’s arguments on appeal. Finding no

merit in either, for the reasons described above, we AFFIRM the district court’s grant of Babcock’s

petition.




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