Michigan Killer Loses Habeas in High Court

     WASHINGTON (CN) – A convicted murderer failed to show that the brief absence of his trial counsel during witness testimony violated his rights, the Supreme Court ruled Monday.
     The summary reversal comes in an appeal over the 2005 murder of drug dealer Mohammed Makki in Dearborn, Mich.
     Cory Donald had been one of five who drive to Makki’s house after a day of drinking and smoking marijuana to rob the man.
     A drug runner who was in the house at the time later testified about hearing two gunshots as he lay facedown on the floor during the robbery.
     “I got shot, I got shot,” one of the assailants whispered to the other, as recounted by the drug runner.
     After the left, the drug runner found Makki dying in the kitchen.
     Police arrested Donald three weeks later. On the day of the robbery, he had checked into a hospital for a gunshot wound to his foot.
     The getaway driver, Seante Liggins, pleaded guilty, as did one other. The evidence showed that, as he got into the getaway car, Donald blamed his co-conspirator, Rashad Moore, for accidentally shooting him.
     Donald was tried with Moore and the fifth co-conspirator.
     During the trial, Donald’s attorney noted that he did not object to the state’s admission into evidence of a chart chronicling the phone calls that three of the co-conspirators made on the day of the crime
     Since Donald’s calls were not among them, Donald’s attorney told the court, “I don’t have a dog in this race. It doesn’t affect me at all.”
     Holding to that remark, the attorney was not present for the first 10 minutes of proceedings in which the telephone chart was discussed.
     When the lawyer returned, and the trial judge made him aware of that, the attorney acknowledged, “as I had indicated on the record, I had no dog in the race and no interest in that.”
     After he was convicted of murder among other charges and sentenced to life, Donald persuaded a federal judge to award him habeas relief based on the finding that the state appeals court had ruled arbitrarily.
     The 6th Circuit affirmed on Donald’s claim that he deserved a new trial because his attorney’s absence during the phone-call testimony denied him his Sixth Amendment right to effective assistance of counsel.
     In summarily reversing Monday, the Supreme Court said that there is no precedent for Donald to seek relief under the 1984 case U.S. v. Cronic.
     That ruling allows for the presumption that a defendant has suffered unconstitutional prejudice if he “is denied counsel at a critical stage of his trial.”
     “Because none of our cases confront ‘the specific question presented by this case,’ the state court’s decision could not be ‘contrary to’ any holding from this court,” the justices wrote in an unsigned opinion Monday. “The most that the Sixth Circuit could muster was that ‘[t]he testimony of a government witness is similar to the trial events that th[is] court has deemed to be critical stages.’ But that conclusion is doubly wrong.”
     In addition to finding that the issue had been framed too generally, the justices said a decision cannot be “contrary to” precedent if case in question presents circumstances that are only “similar to” such holdings.
     “The relevant testimony was not merely ‘testimony of a government witness’; it was prosecution testimony about other defendants,” the unsigned opinion states (emphasis in original). “To be sure, the Sixth Circuit considered the testimony relevant to Donald because he was being prosecuted on an aiding-and-abetting theory for felony murder. But Donald’s position was that he had nothing to do with the planning among his codefendants. And none of our holdings address counsel’s absence during testimony that is irrelevant within the defendant’s own theory of the case.”

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