by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit affirmed a district court’s conditional grant of a petition for writ of habeas corpus on grounds that the state court violated the petitioner’s right to present a complete defense when it excluded two exculpatory statements.

When Parish Hickman arrived at a gas station in Detroit, he spotted Gene Shelby and three other members of the Sons of the Zodiac Motorcycle Club. Hickman and Shelby had previously had a dispute, so Hickman drove to a nearby home to retrieve mace and an AK-47 rifle. Returning to the gas station, Hickman confronted Shelby and challenged him to a fight. Hickman returned to his car and shots were fired from the vicinity of his vehicle, hitting Shelby in the shoulder. While en route to the hospital, Shelby told fellow motorcycle club member Shakir Azeem that Hickman had shot him. Club member Henry Patterson told Officer Curtis Johns shortly after the shooting that Hickman shot Shelby. Shelby died from heart complications brought on by the gunshot.

Hickman fled the country but returned a year later and was arrested. Hickman told police that Tyson O’Neal had been a passenger in Hickman’s vehicle and that O’Neal shot Shelby. Hickman entered into a plea agreement, pleading guilty to manslaughter and a sentence of three to 15 years in exchange for his testimony at O’Neal’s murder trial.

Four witnesses testified that the gunshots came from the passenger side of the vehicle. Three of the four were members of Shelby’s motorcycle club. Edward Clark testified he saw O’Neal begin to exit the car with the AK-47, but he sought cover when the shooting began and did not see whether O’Neal actually got out of the car. Azeem testified he saw O’Neal emerge from the vehicle with the rifle but did not see the shots fired. Patterson testified he saw O’Neal emerge from the car with the rifle but did not see who fired the shots. Dorshell Wilkerson, the only unaffiliated witness, testified she saw the passenger door of Hickman’s vehicle open and saw someone emerge with a gun and begin to shoot. Wilkerson did not identify anyone as the shooter.

O’Neal presented a defense of actual innocence, arguing that Hickman was the shooter and that Hickman had claimed O’Neal was the shooter in order to secure a plea deal. O’Neal testified that he arrived at the gas station with Hickman. O’Neal went inside the gas station to play the lottery and buy cigarettes while Hickman pumped gas. He encountered Denise Hicks, a friend of his fiancée, and while the two of them conversed, he saw Hickman drive off. As O’Neal exited the gas station, he saw Hickman return with a gun in his hand. He heard gunshots and saw Hickman throw the gun to an unidentified passenger in the vehicle before the two drove away. Hicks testified that she and O’Neal exited the gas station together. When they heard gunshots, both of them dropped to the ground. After the shots ceased, she ran to her car and O’Neal left in the other direction.

O’Neal also sought to introduce two statements that would have been presented through testimony of three witnesses. Nurse Earl Rupert and police officer Pride Johnson would have testified they heard Shelby state Hickman had shot him. The third witness was prisoner Deandre Wilson. He contacted O’Neal’s attorney to inform him of a statement that Hickman made. Hickman had told Wilson that he (Hickman) had gotten away with shooting someone and that he was going to put the whole case on O’Neal. The trial court prevented Rupert and Johnson from testifying because the fact that Shelby was likely medicated made his statement unreliable. And the court prohibited Wilson’s statement on the ground that the prosecution wasn’t timely informed of it pursuant to a discovery order (but the order didn’t actually exist).

After O’Neal was convicted, he appealed. He argued, inter alia, that the exclusion of the statements violated his Fourteenth Amendment due-process right. Concerning Hickman’s statement to Wilson, the Michigan Court of Appeals held the exclusion was error, but it was harmless. And as to Shelby’s statement, the Michigan Court of Appeals ruled that it was unreliable due to the likelihood that Shelby was medicated at the hospital. The Michigan Supreme Court denied O’Neal’s application for further review. He then filed a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254.

The district court held that the trial court’s exclusion of the two statements violated O’Neal’s right to present a complete defense and that the state court unreasonably applied Chambers v. Mississippi, 410 U.S. 284 (1973). The district court concluded it had “grave doubt” about whether the exclusion of each statement “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abramson, 507 U.S. 619 (1993). Therefore, the district court granted O’Neal’s habeas petition, and the State appealed.

The Sixth Circuit observed that with regard to harmless-error tests, “In federal habeas proceedings, the Brecht standard governs and the federal court will not grant habeas relief unless the state error ‘resulted in actual prejudice.’” Davis v. Ayala, 135 S. Ct. 2187 (2015). This means that in order to grant habeas relief the court must have at least “grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury’s verdict.” O’Neal v. McAninch, 513 U.S. 432 (1995). “Grave doubt” means that “the matter is so evenly balanced that [the court] feels [it]self in virtual equipoise as to the harmlessness of the error.” Id.

State courts’ harmless-error determinations are adjudications on the merits, and federal courts may grant habeas relief only where those determinations are objectively unreasonable. Ayala.

The Sixth Circuit determined it was “highly plausible that Hickman’s jailhouse confession would have introduced a reasonable doubt into the jury’s mind as to O’Neal’s guilt and led to a different trial outcome.” The Court cited the other evidence that pointed to Hickman as the shooter, e.g., Hickman left the country, Shelby told Azeem that Hickman was the shooter, Patterson initially stated Hickman was the shooter, O’Neil’s testimony, Hicks’s testimony, Hickman’s prior dispute with Shelby, Hickman’s going to the home to retrieve the rifle, and Hickman’s plea deal.

Furthermore, “[a] confession is like no other evidence” in that it is among “the most probative and damaging” evidence because it “come[s] from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct.” Arizona v. Fulminante, 499 U.S. 279 (1991). And Shelby’s statement to Officer Johnson and overheard by Rupert that Hickman shot him also was plausible to persuade the jury that Hickman was the shooter. Even though the jury heard testimony from Azeem of a similar statement made by Shelby, Azeem was a motorcycle club member. Finally, the statement to Johnson showed that Shelby had maintained his conviction over time that it was Hickman who shot him. The Sixth Circuit had “grave doubt about whether” exclusion of these statements “had substantial and injurious effect or influence in determining the jury’s verdict.” Thus, the Court concluded that exclusion of the two statements was not harmless error under Brecht.

Accordingly, the Court affirmed the district court’s conditional grant of O’Neal’s petition for a writ of habeas corpus providing that unless a new trial is scheduled within 120 days, O’Neal must be unconditionally released. See: O’Neal v. Balcarcel, 933 F.3d 618 (6th Cir. 2019). 

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