                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a1070n.06

                                          No. 10-1542

                           UNITED STATES COURT OF APPEALS
                                                                                         FILED
                                                                                      Oct 12, 2012
                                FOR THE SIXTH CIRCUIT
                                                                               DEBORAH S. HUNT, Clerk
SUSIE CONNER,                                       )
                                                    )
       Petitioner-Appellant,                        )
                                                    )       ON APPEAL FROM THE
v.                                                  )       UNITED STATES DISTRICT
                                                    )       COURT FOR THE EASTERN
MILLICENT WARREN, Warden,                           )       DISTRICT OF MICHIGAN
                                                    )
       Respondent-Appellee.                         )
                                                    )



       BEFORE: KEITH, MARTIN, and ROGERS, Circuit Judges.


       PER CURIAM. Susie Conner appeals a district court judgment denying her petition for a

writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

       A jury found Conner guilty of first-degree premeditated murder, felony murder, and

kidnapping. The trial court merged the murder convictions, vacated the kidnapping conviction, and

sentenced Conner to life in prison without parole. The Michigan Court of Appeals affirmed the trial

court’s judgment, People v. Conner, No. 253179, 2005 WL 562806 (Mich. Ct. App. Mar. 10, 2005),

and the Michigan Supreme Court denied Conner leave to appeal. People v. Conner, 706 N.W.2d

18 (Mich. 2005) (table).

       Conner filed a section 2254 petition with the district court arguing: 1) that the trial court

violated her confrontation rights by admitting into evidence the hearsay statements of her former

husband, a non-testifying co-defendant; 2) that the trial court violated her rights by allowing an
No. 10-1542
Conner v. Warren

expert witness to testify concerning the element of premeditation; and 3) that the trial court violated

her rights by allowing the prosecutor to introduce into evidence the results of forensic testing

conducted after the trial commenced. The district court denied the petition, but granted a certificate

of appealability for Conner’s claim that her confrontation rights were violated. We expanded the

certificate of appealability to include Conner’s remaining claims.

         The district court’s judgment is reviewed de novo. Tolliver v. Sheets, 594 F.3d 900, 915 (6th

Cir. 2010).

         Conner argues that the trial court violated her confrontation rights by allowing her son,

Bruce, to testify concerning statements made to him by Conner’s former husband, Tim, a non-

testifying co-defendant, that implicated Conner in the crimes. Tim made the statements to Bruce

shortly after the victim was killed and later when, unbeknownst to Tim, Bruce was wearing a

recording device at the request of police.

         The Confrontation Clause prohibits the admission of testimonial statements of a witness who

did not testify at trial unless he was unavailable to testify and the defendant had a prior opportunity

for cross-examination. Davis v. Washington, 547 U.S. 813, 821 (2006). The Confrontation Clause

does not apply, however, to non-testimonial statements. Whorton v. Bockting, 549 U.S. 406, 420

(2007). Because the statements at issue were made by Tim to Bruce, and Tim was unaware that

Bruce was acting in concert with law enforcement, Tim’s statements were not testimonial, and their

admission did not violate the Confrontation Clause. See United States v. Boyd, 640 F.3d 657, 665

(6th Cir.), cert. denied, 132 S. Ct. 271 (2011); United States v. Johnson, 581 F.3d 320, 325 (6th Cir.

2009).

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No. 10-1542
Conner v. Warren

        Conner also argues that the trial court violated her rights by permitting a forensic pathologist,

who conducted an autopsy on the victim, to testify concerning the element of premeditation.

Specifically, in response to questions from the prosecutor, the pathologist testified that, if the victim

was intentionally drowned, the perpetrator would have had time to think about his or her decision,

to weigh the pros and cons of the decision, and to reflect on and rethink the decision. This claim is

procedurally defaulted because Conner did not object to the testimony at trial, and the Michigan

Court of Appeals reviewed the claim for plain error. See Taylor v. McKee, 649 F.3d 446, 450–51

(6th Cir. 2011); Conner, 2005 WL 562806, at *2–3. Further, Conner has not demonstrated cause

and prejudice, or a miscarriage of justice, to excuse the procedural default. See Taylor, 649 F.3d at

451.

        Finally, Conner argues that the trial court violated her rights by admitting into evidence the

results of laboratory testing, conducted after the trial commenced, that concluded there was adhesive

residue on the victim’s jacket. “A state court’s evidentiary ruling is generally not cognizable in

federal habeas corpus, unless the decision was so fundamentally unfair that it amounts to a due

process violation.” Henness v. Bagley, 644 F.3d 308, 326 (6th Cir. 2011), cert. denied, 132 S. Ct.

1970 (2012). The trial court’s admission of the lab test results did not render Conner’s trial

fundamentally unfair. Conner had the opportunity to conduct independent testing on the jacket at

the state’s expense and the test results were cumulative.

        The district court’s judgment is affirmed.




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