               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0792n.06

                                      Nos. 13-1262/1273

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                                 FILED
                                                                               Oct 20, 2014
DENNIS VESEY,                                        )                    DEBORAH S. HUNT, Clerk
                                                     )
       Petitioners-Appellant,                        )   ON APPEAL FROM THE
                                                     )   UNITED STATES DISTRICT
v.                                                   )   COURT FOR THE EASTERN
                                                     )   DISTRICT OF MICHIGAN
GREG MCQUIGGIN,                                      )
                                                     )
       Respondent-Appellee,                          )   OPINION
                                                     )
AND                                                  )
                                                     )
DAMEKO VESEY,                                        )
                                                     )
       Petitioner-Appellant,                         )
                                                     )
v.                                                   )
                                                     )
DEBRA SCUTT,                                         )
                                                     )
       Respondent-Appellee.                          )
                                                     )


BEFORE: KEITH, BATCHELDER, and STRANCH, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. In this habeas appeal, Petitioners Dameko Dwayne

Vesey and Dennis Wayne Vesey challenge their convictions of first-degree felony murder,

conspiracy to commit armed robbery, and conspiracy to commit first-degree home invasion. The

sole issue on appeal is whether the state court denied Petitioners their constitutional right to

present a complete defense in excluding evidence tending to establish third-party guilt. The
Vesey v. McQuiggin, 13-1262; Vesey v. Scutt, 13-1273


district court denied Petitioners’ writ of habeas corpus. Because we cannot conclude that any

errors in the state court ruling rise to the level required by 28 U.S.C. § 2254, we AFFIRM.

                                                           I.

        On April 5, 2003, at the Harris Park Apartments located on South Harris Road in

Ypsilanti, Michigan, Taurus Hill, his girlfriend Tayquelea Roberson, and their infant son, Taurus

Hill, Jr., were murdered. Hill and Roberson were shot to death; a wounded Hill fell on top of

Hill Jr., suffocating him to death.

        Petitioners Dameko and Dennis Vesey were charged with the murders and tried jointly.

Petitioners’ cousin, Michael McGaha, was a co-defendant but was acquitted on all counts by a

separate jury. Both Petitioners were found guilty of three counts of first-degree felony murder,

conspiracy to commit armed robbery, and conspiracy to commit first-degree home invasion.

Dennis Vesey was also found guilty of felon in possession of a firearm and felony firearm.

Dennis Vesey was sentenced to mandatory life without parole on each of the first-degree murder

convictions, 20 to 30 years for conspiracy to commit armed robbery and conspiracy to commit

home invasion, 40 to 90 months for felon in possession of a firearm and two years for felony

firearm. Dameko Vesey was sentenced to life in prison without parole on each of the felony

murder convictions, 15 to 30 years imprisonment on the conspiracy to commit armed robbery

conviction and 13 to 20 years on the conspiracy to commit first-degree home invasion

conviction. The following facts underlie these convictions.

        Tyranique Hill

        Three other minor children were in the home at the time of the murders: Hill’s daughter,

nine-year-old Tyranique Hill; Roberson’s daughter, Dakaisia Roberson; and Roberson’s niece,
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Vesey v. McQuiggin, 13-1262; Vesey v. Scutt, 13-1273


Jasmine Harris. Tyranique testified during trial that, on the night of the murders, she, Dakaisia,

and Jasmine were in the living room watching television when a man, whom she had never seen

before, came to visit her father. The man had a conversation with Hill at the kitchen table.

        Shortly after the first man left, an unidentified man knocked on the door. Some period of

time thereafter, there was a third knock on the door. Hill looked out the window, indicated that

he knew one of the visitors, and opened the door. Per Tyranique, two males entered the

apartment; one was standing by the door and the other was fighting with Hill. Tyranique

testified that the man fighting with Hill was wearing a mask. The three children fled the living

room into bedrooms. From the bedroom, Tyranique heard multiple gunshots. She then peered

into the other room and witnessed one of the assailants—described as the “skinny one”—

pointing a gun at Roberson.

        Tyranique testified that after hearing the gunshots she heard footsteps walking towards

the room in which Roberson and Hill, Jr. were located. She heard Roberson “swearing to God

on her life . . . [t]hat there wasn’t any money.” Tyranique stated that she recognized one of the

voices in the room in which Roberson was present as belonging to the first man who visited her

father that night. She then heard a gunshot from the same room. Sequentially, Tyranique heard

footsteps move towards the kitchen, running water, and then the door close. After the men left,

Tyranique, Dakaisia and Jasmine fled the apartment. Tyranique told a detective at the police

station that morning that she saw two cars—one described as white and “long like her dad’s car”

and the second, “cute, a nice car,” playing loud rap music—leave the adjacent trailer park and

come into her parking lot.



                                                       3
Vesey v. McQuiggin, 13-1262; Vesey v. Scutt, 13-1273


        A year after the murders, Tyranique, when presented a photo array, identified Dameko

Vesey as the first man who came to the door that night and sat at the kitchen table with her

father. At trial, Tyranique identified co-defendant Michael McGaha as the man who sat with

Hill at the table. When interviewed by police, Dakaisia and Jasmine provided similar details

about the entry of the masked men.

        Nerissa Pittman

        The state called Nerissa Pittman as its primary witness in the case.        Pittman was

originally charged as an accomplice, and eventually pleaded guilty to second-degree murder and

agreed to testify against the defendants. Pittman also lived in the Harris Park Apartments in

April, 2003. Pittman testified that she knew Hill: twice, she engaged in sexual relations with him

at a hotel. During one such encounter, Hill told Pittman to count some of his money for him,

which she did.       Pittman testified that she then told Darius Frazier, another neighbor, that

“someone has some money and they don’t know what to do with it.” She averred that she did

not say Hill’s name nor could she remember if she indicated to Frazier that it was Hill to whom

she was referring.

        A few days later, Pittman, Frazier, and Dennis Vesey congregated in Frazier’s mother’s

apartment, where Pittman observed guns in Frazier’s bedroom. Pittman testified that she saw

Frazier hand two guns to Dennis Vesey, Frazier’s cousin. Dennis Vesey then left the apartment

with the firearms. Pittman later saw Dennis Vesey in a champagne-colored SUV.

        Pittman testified that, on the night of April 4, 2003, she called Dennis Vesey to secure

marijuana. After arranging the transaction, she went to Dennis Vesey’s SUV, which she again

described as champagne-colored. Pittman testified that Dameko Vesey and McGaha were in the
                                                       4
Vesey v. McQuiggin, 13-1262; Vesey v. Scutt, 13-1273


car with Dennis Vesey. Dennis asked Pittman to knock on Roberson and Hill’s door for him,

while Dennis Vesey and McGaha waited nearby with firearms. Pittman stated that when she

knocked on the door, Hill answered and the Veseys and McGaha rushed the door, gaining access

to the apartment.

        Pittman ventured to the back of the apartment where she retrieved an unidentified amount

of ecstasy.     While inside, she witnessed McGaha pointing a gun at Roberson; Roberson

responded that “this is all we have.” Pittman then testified that she heard two gunshots from the

front room and saw Hill lying on the floor. After she left the apartment, she heard two more

gunshots.

        Pittman testified that the Veseys and McGaha were not wearing masks the night of the

murders. Officers interviewed Pittman twice after the murders and she lied to them both times

because she was “afraid of telling the truth at that time” and “didn’t want to have nothing to do

with it.” Pittman also lied to the prosecutor when first questioned incident to a subpoena.

Pittman recanted after she was incarcerated.

        Joyce Jordan

        Joyce Jordan, also a resident at the apartment complex, testified that on the evening of

April 4, 2003, she saw Hill, Roberson, and Dennis Vesey, whom she also knows as “Juan,”

arguing outside her window. Joyce observed Dennis Vesey go to his truck, which she described

as a silver Envoy or Yukon, reach under the seat, and grab a firearm. Joyce testified that she saw

one or two other passengers in the SUV, one of whom she believed to be Dameko Vesey. At this

point, Dennis, Dameko, and another passenger stood for a minute until Pittman walked past.

Pittman proceeded toward the back of the building; the Veseys followed her. Joyce testified that
                                                       5
Vesey v. McQuiggin, 13-1262; Vesey v. Scutt, 13-1273


minutes after she lost sight of the men, she heard a gunshot. She then saw the silver SUV and a

brownish-colored car with a light tan stripe pull out of the parking lot.

        Joyce testified that she had taken four shots of tequila that night. Joyce did not call 911

because it was “none of my business. I live there I didn’t care.” Joyce also admitted that when

the police officers first contacted her, she lied because she “wanted nothing to do” with the case.

On cross examination at trial, Joyce stated “I still haven’t said a lot of things that I know. It’s

none of your business.”1

        Joyce said she did not remember being shown a photo array that next morning. Joyce

testified that Detective Ralph did show her pictures when she arrived at the station on the

evening of April 6, 2003. Detective Ralph testified that Joyce identified the photographs of three

men as those she saw outside her apartment: Swanson, Byers, and Ricardo Pickens aka “Duan

Mason.” As for her identification of the Veseys, at trial, Joyce was shown a transcript of her

testimony from the preliminary examination, which reflected that she testified that she picked out

“Juan’s” photograph the morning of the shooting. Joyce admitted that, to her recollection, she

never picked out Dameko Vesey in any of the photos or gave a physical description of the

passenger who was with “Juan.”

        Tanet Jordan

        Tanet Jordan, Joyce’s daughter and also a resident of the apartment complex, testified

that on the night of April 4, 2003, she heard Pittman and multiple unidentified men arguing in

the apartment complex. She then observed Dennis Vesey—whom she knows as “Juan”—drive

        1
          Joyce also had a phone call with the prosecutor during which she stated, “you guys don’t know the half of
it. You think you got everyone that was there but you don’t. You got what you want. You got Nerissa. You got
them other guys but you didn’t get them all.” At trial, Joyce maintained that she has “always said that.” Per Joyce,
there were other people around the night of the incident but she did not know if they were involved or not.
                                                           6
Vesey v. McQuiggin, 13-1262; Vesey v. Scutt, 13-1273


his tan or silver SUV into the complex and congregate with various people. Dennis Vesey began

arguing with Hill, although Tanet stated that she could not hear the contents of the exchange.

She then observed Hill return to his own apartment. Thereafter, she witnessed Dennis Vesey and

Pittman conversing near the back of the building. Ten minutes later, Tanet heard gunshots, at

which point she observed Pittman flee the scene into a separate apartment.

        During the investigation, Tanet was also called to a photo array, where she identified

photos of Antone Swanson and Tomicko Byers as present at the scene just prior to the shooting.

Tanet testified that she could not remember if “Juan’s” photograph was amongst those provided

in the photo array. She also stated that while she did tell one of the detectives that she saw two

men run past her window that night, she did not know the identity of those individuals.

        At trial, Tanet also testified that, earlier that night, she saw a man by the name of Maurice

Robinson2 talking to “Juan” near the time of the shooting. She had plans to meet Robinson for

breakfast that morning, but he called her at 6:00 a.m., before the police arrived, to cancel.

However, the rest of Tanet’s proposed testimony regarding Robinson was excluded. According

to Tanet, during this phone call, Robinson indicated to her that he had knowledge of the crimes

and that he spent the night riding around with “Juan.” Robinson denied making the statement

out of the presence of the jury and denied even knowing Tanet.                         Because of the denial,

Petitioners’ counsel requested that Tanet be allowed to testify to the alleged statements from

Robinson for impeachment purposes. The trial court denied this request, concluding that Tanet’s

testimony would be inadmissible hearsay. The district court denied habeas relief as to this


        2
          Petitioner disputes whether the proper Maurice Robinson was secured at trial. Petitioner’s concern, raised
in the context of an ineffective-assistance-of-counsel claim, was denied on direct appeal and on federal habeas
review. This issue was not certified for appeal to this Court.
                                                           7
Vesey v. McQuiggin, 13-1262; Vesey v. Scutt, 13-1273


evidence on the basis that Robinson’s statement “did not exculpate Petitioner [Dameko Vesey]

or the other defendants, did not necessarily inculpate Robinson in the murders, and potentially

inculpated Dennis Vesey given the trial testimony that he was also known as ‘Juan.’”

         Tiffany Juneau

         Other excluded testimony comes from Tiffany Juneau. On April 15, 2003, Juneau spoke

to Antone Swanson while they were both in the Washtenaw County Jail. Per Juneau, Swanson

told her that he chauffeured the murderers to the scene and back, although he refused to provide

names.    Juneau then relayed this information to Washtenaw County detectives in a letter.

Petitioners contended that the third-party culpability exception for hearsay applied to the

statements allegedly made by Swanson to Juneau. The trial court arranged for Juneau to be

transported from Louisiana to Michigan to testify as to the contents of her letter. Swanson was

brought to court and testified outside of the presence of the jury; he denied both making the

statement to Juneau or even knowing Juneau.

         The defense contended that the statements should be admitted “because the defense is

third party culpability and the inference the jury could draw is that others had the motive and

opportunity and, in fact, even made admissions to involvement. And, therefore, makes the

defense theory more likely true. It becomes . . . an issue of simple relevance.” The trial court

rejected this argument, concluding that Juneau’s proposed testimony was inadmissible hearsay.

The Michigan Court of Appeals affirmed the exclusion of this testimony, concluding that as the

statement was made to a jail inmate and it did not involve a statement to police, it did not serve

to inculpate Swanson or exculpate defendants. Per the court, “[t]he vague statement does not, in

any manner, exculpate defendants as it neither confirms nor denies their involvement in the
                                                       8
Vesey v. McQuiggin, 13-1262; Vesey v. Scutt, 13-1273


crimes. Further, there is no corroboration regarding the existence or content of the alleged

statement to Juneau given Swanson’s absolute denial that it occurred.” People v. Vesey, 266617,

2008 WL 723918 at *8 (Mich. Ct. App. Mar. 18, 2008). The district court also denied habeas

relief as to Juneau’s testimony, concluding that the Michigan Court of Appeals’ decision was

neither contrary to Supreme Court precedent nor an unreasonable application thereof.

                                                           II.

        We review the District Court’s decision to deny the writ of habeas corpus de novo.

Ruimveld v. Burkett, 404 F.3d 1006, 1010 (6th Cir. 2005). Because Petitioners appeal from a

state court proceeding, their petitions are subject to the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) and the “Supreme Court opinions interpreting it.” Jones v.

Bagley, 696 F.3d 475, 482 (6th Cir. 2012). The AEDPA standard is “highly deferential.” Cullen

v. Pinholster, 131 S. Ct. 1388, 1398 (2011).

        The deferential standard is formidable. Under the AEDPA, we may not grant a habeas

petition unless the last reasoned state court decision “(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); O’Neal v. Bagley, 743 F.3d 1010, 1020 (6th Cir. 2013).

        A state court decision is contrary to clearly established federal law if the state court

applies a rule that contradicts the governing law set forth by the United States Supreme Court.

Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision will also be contrary to

clearly established federal law if the state court confronts a set of facts that are materially
                                                       9
Vesey v. McQuiggin, 13-1262; Vesey v. Scutt, 13-1273


indistinguishable from a decision of the United States Supreme Court and nevertheless arrives at

a result different from that decision. Id. at 406. Such a decision unreasonably applies federal

law if the state court identifies the correct governing legal principle from the Supreme Court’s

decisions but unreasonably applies that principle to the facts. Id. at 407-08. A federal court

making the “unreasonable application” inquiry should ask whether the state court’s application

of clearly established federal law was “objectively unreasonable.” Id. at 409. To obtain relief,

“a habeas petitioner must show that the 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.” Jones,

696 F.3d at 483 (internal quotations and citations omitted).

                                                       III.

        Petitioners claim that the decision of the trial court to exclude third-party culpability

evidence from Tiffany Juneau (testifying as to Antone Swanson’s statements) and Tanet Jordan

(testifying as to Maurice Robinson’s statements) deprived them of their constitutional right to

present a complete defense. According to Petitioners, the decision of the Michigan Court of

Appeals to affirm the exclusion of the evidence on hearsay grounds and as bereft of reliability

was an unreasonable application of, and was contrary to, clearly established federal law. We

disagree.

        The right to present a meaningful and complete criminal defense is a well-established and

fundamental element of due process. See Holmes v. South Carolina, 547 U.S. 319, 324 (2006);

Chambers v. Mississippi, 410 U.S. 284, 302 (1973); Washington v. Texas, 388 U.S. 14, 19-20

(1967). Of course, this right is not absolute. In presenting a defense, the defendant “must
                                                       10
Vesey v. McQuiggin, 13-1262; Vesey v. Scutt, 13-1273


comply with established rules of procedure and evidence designed to assure both fairness and

reliability.” Chambers, 410 U.S. at 302. Generally, the defendant may not offer testimony that is

“otherwise inadmissible under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 410

(1988).     Nevertheless, and, as relevant here, the Supreme Court has held that “where

constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule

may not be applied mechanistically to defeat the ends of justice.” Chambers, 410 U.S. at 302.

          A defendant may circumvent a state hearsay rule when certain necessary predicate

circumstances—such as those articulated in Chambers—are present. The Court held that where

the contested testimony was “critical” to the defense, where the testimony “bore persuasive

assurance of trustworthiness,” and where the testimony directly affected the ascertainment of the

defendant’s guilt, an exception must be made. Id.

          As to Juneau’s testimony regarding Swanson’s statements, the Michigan Court of

Appeals held that Chambers did not require admission of the testimony it considered to be

hearsay because it was not inculpatory to Swanson or exculpatory to the Petitioners and because

the testimony was not corroborated. Petitioners are correct in asserting that Swanson’s statement

was inculpatory, as least insofar as it constituted an admission to aiding and abetting the

murders. See, e.g., People v. Davenport, 332 N.W.2d 443, 445 (Mich. App. Ct. 1982) (driver of

car liable as aider and abettor). The statement was also inconsistent with the prosecution theory

that Dennis Vesey drove the Petitioners to the scene of the crime, and it arguably had some

support from Joyce and Tanet Jordan who identified Swanson as being at the scene. However,

the evidence was not exculpatory toward Petitioners, or corroborated, to the same degree as the

evidence in Chambers. In Chambers, a third party provided a written confession for murder,
                                                       11
Vesey v. McQuiggin, 13-1262; Vesey v. Scutt, 13-1273


fully exculpating the defendant. 410 U.S. at 297, 300-01. Additionally, the testimony regarding

Swanson did not contain the same degree of reliability as the admitted statements in Chambers.

There, in addition to making an inculpatory statement, the third party made three other

independent admissions that he committed the murder before eventually recanting.               See

Chambers, 410 U.S. at 300-02.            The state court’s holding that Chambers did not compel

inclusion of this testimony was not an unreasonable application of Supreme Court precedent.

        As to Maurice Robinson’s purported statement that he spent the night driving around

with “Juan” and his knowledge of the crimes, the Michigan Court of Appeals used similar

reasoning.    Here, too, the testimony did not bear such assurances of trustworthiness that

exclusion of it was unreasonable under Chambers. Additionally, it is not clear that this evidence

would have been exculpatory because other testimony indicated that Dennis Vesey was also

known by the name “Juan.” Thus, although Petitioners otherwise presented a possibility for

third-party guilt, the state court’s decision was not contrary to or an unreasonable application of

federal law. Accordingly, we AFFIRM.




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