Evidence Practical Project Fall 2010

LAW 6330 (4 credits)
Professor Pedro A. Malavet
Fall 2010


As I announced in my Course Description and Rules, I require each student to submit a practical project that accounts for ten percent (10%) of your testing score for this course. The project is judged on a pass/fail basis.

Each student will work individually, although I have assigned you a role to play as indicated below. You are allowed to discuss the problem with your classmates and may refer to forms and other resources, as long as you draft your own motion.

Your assignment is to write a motion in limine, based on the fact-pattern that follows. Assume that after the grant of the federal habeas petition that is detailed in the fact-pattern, Ms. Sharee Miller will be retried in state court in the Genesee County, Michigan, Circuit Court, on the same charges she faced in her original trial. Her current case is titled The People of the State of Michigan v. Sharee Paulette Miller, Criminal No. 2010-0001. Half of the class will act as counsel for Defendant Sharee Miller and the other half as an Assistant State Attorney for Genesee County, Michigan. Students whose last names start with the letters ABE to LEE will act for the defense; those whose last names start with LEP and end with WEI will appear for the prosecution.

You will assume that the applicable rules are the Federal Rules of Evidence, together with accompanying caselaw as studied in your Fall 2010 Evidence Course. Your motion must adequately represent the interests of the party you represent, be it the defendant or the state and make reference to the pertinent Federal Rules of Evidence, cases and other materials included in your casebook and Rules supplement (you are allowed to extend your research beyond these resources, but it is not required). More specifically, you discuss how the emails and instant messages are or are not admissible under the applicable Federal Rules of Evidence. You will then take the position that they are or are not admissible under the Crawford  and its progeny. Your choice of argument depends on your role. Ms. Miller moves to exclude, the state moves to admit.

I will post bibliographic resources that are recommended by the Legal Information Center on the course web page [click here to view the bibliography]. I also highly recommend the Public Defender Service of the District of Columbia Criminal Practice Institute Trial Manual (http://www.pdsdc.org/LegalCommunity/TrainingCPI.aspx). This downloadable PDF provides lots of useful information including sample cross-examinations, and forms for many types of motions including motions to suppress and motions in limine.

DUE DATE: Projects are due on or before 5:00 p.m. on Tuesday, November 16, 2010. You may turn them in to me during class, or to my secretary, Ms. Betty Donaldson in the secretarial pool office.


SHAREE MILLER, Petitioner, vs CLARICE STOVALL, Warden Robert Scott Correctional Facility, Respondent




[Original Opinion and Order 573 F. Supp. 2d 964 (2008)
Edited for Examination/Project Purposes]


Before the Court is Sharee Paulette Miller's ("Petitioner")" Objections to Magistrate's Report and Recommendation and Request for Oral Argument. [The Magistrate issued his report and recommendation at the request of the court, following the standard practice in the handling of Habeas Petitions in this district]. The Court held oral argument on August 8, 2008.


Following a jury trial in Genesee County Circuit Court on January 29, 2001, Petitioner was convicted of conspiracy to commit first-degree murder and second-degree murder, as an aider and abettor. Bruce Miller was the petioner's husband. Petitioner allegedly conspired to have him killed by her lover, Jerry Cassaday. The state court judge sentenced Petitioner to life in prison on the conspiracy conviction, and a concurrent term of 54-81 in prison on the second-degree murder conviction.

Petitioner appealed as a matter of right to the Michigan Court of Appeals on the following grounds:

  • (1) The trial court violated the Michigan Rules of Evidence and Petitioner's Confrontation Clause rights by admitting, over objection, hearsay testimony from a suicide note, America On Line (AOL) instant messages, and emails between Petitioner and her alleged coconspirator;
  • (2) The prosecutor and the trial court violated Petitioner's due process right to a fair trial by permitting over objection, emails including semi-nude and erotic photographs and videotape of Petitioner, which the Court opined in the presence of the jury was pornographic; and
  • (3) The trial court violated Petitioner's due process right to a fair trial by permitting over objection, the admission of gruesome photographs of her alleged coconspirator depicting a bullet hole in his head while sitting in a recliner with an open bible in his lap.

The Michigan Court of Appeals found no merit to these claims and denied Petitioner's appeal  on June 24, 2003. People v. Miller, No. 233018, 2003 Mich. App. LEXIS 1495, 2003 WL 21465338 (Mich. Ct. App. June 24, 2003) (per curiam).

On March 8, 2004, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), which significantly altered Supreme Court Confrontation Clause jurisprudence. On April 1, 2004, the Supreme Court of Michigan denied Petitioner's request for leave to appeal. People v. Miller, 469 Mich. 1029, 679 N.W.2d 66 (Mich. 2004). Petitioner filed a motion for rehearing in light of Crawford, which was denied on June 30, 2004. People v. Miller, 682 N.W.2d 93 (Mich. 2004).

Petitioner applied for a writ of habeas corpus on September 7, 2005. The Petition argues:

  • (1) She was denied her Sixth Amendment right to Confrontation when the state court decided her case contrary to and unreasonably applied clearly established federal law;
  • (2) The state court made an unreasonable determination of facts when it admitted hearsay evidence; and
  • (3) The state court violated Petitioner's due process rights by permitting the introduction of prejudicial and irrelevant evidence, which cumulatively had the effect of violating her right to a fair trial.

The R&R incorporates the Michigan Court of Appeal's statement of facts:

  • On November 9, 1999, [Petitioner's] husband, [Bruce Miller] was shot and killed at [B&D Auto, his auto shop business in Michigan]. Three months later, [Petitioner's] lover, [Jerry] Cassaday, committed suicide [in Kansas City, Missouri]. Cassaday left a suicide note that described how [Petitioner] and Cassaday had planned to kill [Bruce Miller], and it also described how Cassaday followed through with the plan and killed [Bruce Miller]. Cassaday also left a copy of America On Line ("AOL") "instant messages" he exchanged with [Petitioner] on November 7, 1999, and November 8, 1999, which detailed their scheme to kill [Petitioner's] husband. Also, numerous e-mail communications between [Petitioner] and Cassaday were recovered from Cassaday's computer hard drive.  Cassaday and [Petitioner] wrote the e-mails between August and November 1999 and they reveal the extent of their relationship, their future plans to marry, [Petitioner's] false claim that she was pregnant, and her desire to kill her husband.
  • At trial, [Petitioner] denied any involvement in her husband's murder. However, based on the above evidence, prosecutors argued that [Petitioner] manipulated Cassaday into killing her husband by claiming that her husband abused her. Prosecutors also presented evidence that, on two occasions, [Petitioner] falsely told Cassaday that she was pregnant with his children, but that the unborn babies died from her husband's abuse. The jury convicted Miller of conspiracy to commit first-degree murder and second-degree murder [as an aider and abettor].

R&R at 4-5; Miller, 2003 Mich. App. LEXIS 1495, 2003 WL 21465338, at 1.

The Magistrate recommends the Court deny the Petition. Although he found that Petitioner's Confrontation Clause rights were violated by the admission of Cassaday's suicide note, and that the Michigan Court of Appeals unreasonably applied the clearly established law of Crawford, he determined this error was harmless. The Magistrate found the Petition otherwise lacked merit.

Petitioner objects to the Magistrate's Report and Recommendation ("R&R") on several grounds:

  • (1) In addition to being an "unreasonable application of" clearly established federal law as found by the Magistrate, the admission of the suicide note was "contrary to" clearly established law;
  • (2) The Magistrate erred in finding that admission of the suicide note was harmless;
  • (3) The Magistrate erred in finding the instant messages and emails generated by petitioner were not testimonial;
  • (4) The Magistrate erred in finding the instant messages and emails generated by Cassaday were not testimonial;
  • (5) The Magistrate erred in concluding that the admission of inflammatory evidence did not violate Petitioner's right to a fair trial.

[The court has already rejected the Magistrate's findings regarding the suicide note. We agreed with the magistrate that the admission of the allegedly inflammatory evidence was not in error. We also agreed with the magistrate that the admission of the suicide note violated petitioner's confrontation rights, but disagreed that this error should be labeled harmless. We therefore order that the petition for Habeas Corpus should be partially granted. However, now before the court are petitioner's remaining objections regarding admission of the instant messages and emails exchanged between Cassaday and Petitioner Miller. The court holds that the admission of this evidence was not in error and therefore Habeas Corpus relief on those claims shall be denied].


The Magistrate correctly reasoned that the overturned Supreme Court precedent of Roberts is irrelevant, and Petitioner's only cognizable claim under ? 2254 is a state court decision that was "contrary to" or "an unreasonable application of" Crawford.


A. The Court Must "Look Through" the Supreme Court of Michigan Standard Orders to the Michigan Court of Appeals Explained Decision

When deciding a habeas petition under § 2254 the Court must look to the last explained, reasoned state court decision. Ylst v. Nunnemaker, 501 U.S. 797, 803-806, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991); Griffin v. Berghuis, 298 F. Supp. 2d 663, 672 (E.D. Mich. 2004). (The decisions of the Michigan Supreme Court in this case are orders without written opinion, therefore, the state court findings available for review come from the opinion of the Michigan Court of Appeals).

B. The Court's Analysis of the State Court Decision

1. Conspiracy

Under Michigan law, "conspiracy requires proof of the unlawful agreement; nothing further is required." Northington v. Elo, No. 97-1590, 1999 U.S. App. LEXIS 3576, at 9 (6th Cir. Mar. 3, 1999) (unpublished) (citing People v. Burgess, 153 Mich. App. 715, 396 N.W.2d 814, 825 (Mich. Ct. App. 1986)). The prosecution must "establish that defendant intended to combine with [one] or more persons to accomplish first-degree murder." People v. Merko, No. 271800, 2008 Mich. App. LEXIS 590, at 6 (Mich. Ct. App. Mar. 20, 2008) (unpublished) (citing People v Justice, 454 Mich. 334, 345, 562 N.W.2d 652; 454 Mich. 334, 562 N.W.2d 652 (1997)). "The crime is complete upon formation of the agreement." Justice, 454 Mich. at 346.

In addition, "[f]or intent to exist, the defendant must know of the conspiracy, must know of the objective of the conspiracy, and must intend to participate cooperatively to further that objective." Merko, 2008 Mich. App. LEXIS 590, at 6 (citing People v. Blume, 443 Mich. 476, 485, 505 N.W.2d 843; 443 Mich. 476, 505 N.W.2d 843 (Mich. 1993)). Noting that "[i]dentifying the objectives and even the participants of an unlawful agreement is often difficult because of the clandestine nature of criminal conspiracies," the Supreme Court of Michigan held "direct proof of the conspiracy is not essential; instead, proof may be derived from the circumstances, acts, and conduct of the parties," and that "[i]nferences may be made because such evidence sheds light on the coconspirators' intentions." Justice, 454 Mich. at 347.

All that the prosecution needed to demonstrate was an agreement to cooperate in the murder of Mr. Miller. ***

[The conspiracy ends when the murder is committed.]

2. Second Degree Murder

To prove second degree murder under Michigan law, the State must prove that there was: (1) a death; (2) caused by an act of the defendant; (3) with malice; and (4) without justification or excuse. Hill, 337 F.3d at 719 (citing People v. Goecke, 457 Mich. 442, 579 N.W.2d 868, 878 (Mich. 1998)). The emails and the instant message recordings were offered by the state to prove the second element of second degree murder: a death was caused by the defendant [by conspiring with Cassaday to commit it]. See Hargrave, 248 F. App'x at 728.

3. Evidentiary Findings Regarding the E-mail and Instant Message Communications

[For evidence rules purposes, the Michigan court ruled that the communications generated by petitioner's side of the email and instant message exchanges were admissible as admissions, and that Cassaday's part of the exchanges were admissible as the statements of a co-conspirator.

[The Michigan court concluded:]

  • Here, the nature of the relationship between Miller and Cassaday, as well as the circumstances surrounding Cassaday's reasons and motivation for coming to Michigan to kill the victim, were clearly relevant to proving a conspiracy between Miller and Cassaday. *** Further, given Miller's general denial of guilt, all elements of the crime of conspiracy were in issue. People v Mills, 450 Mich. 61, 69-70; 537 N.W.2d 909 (1995), modified 450 Mich. 1212 (1995); People v VanderVliet, 444 Mich. 52, 78; 508 N.W.2d 114 (1993), amended 445 Mich. 1205 (1994).
  • In addition, contrary to Miller's assertion, the e-mail messages were not unfairly prejudicial simply because some were sexually explicit. ***

(People v. Miller, 2003 Mich. App. LEXIS 1495, at 14-15).

[As to the Instant Messages, the Michigan court wrote:]

*** [W]e hold that the trial court did not abuse its discretion by concluding that Cassaday's statements to defendant in the AOL instant messages were within the scope of [the co-conspirator exception], and contained "particularized guarantees of trustworthiness" considering the totality of the circumstances to allow their admission as substantive evidence against defendant. (People v. Miller, 2003 Mich. App. LEXIS 1495, at 12).


The Court:

  • (1) GRANTS in part and DENIES in part the Objections. The Court GRANTS Petitioner's objections to the Magistrate's conclusion that admission of the suicide note was harmless error, and that harmless error was not waived and DENIES the Petitioner's objections regarding the emails and instant messages, and inflammatory evidence.
  • (2) ADOPTS in part and REJECTS in part the reasoning of the Report and Recommendation,
  • (3) REJECTS the recommendation of the Report and Recommendation; and
  • (4) CONDITIONALLY GRANTS the Petition for Writ of Habeas Corpus because the admission of the suicide note was an unreasonable application of Crawford, Respondent waived harmless error, and the admission of the suicide note was not harmless.

The State must take steps to retry Petitioner within 60 days, or release her.


/s/ Victoria A. Roberts

United States District Judge

Dated: August 27, 2008

In order to assist you with your memorandum, the following additional summary of the evidence presented and arguments pursued at trial has been assembled for you:

Jerry Cassaday was a sheriff's deputy in Cass County, Michigan for almost a decade. He reached the rank of lieutenant but resigned that position in 1994. He left Michigan and joined the security detail at Harrah's North Kansas City Casino & Hotel, and that led to a job dealing cards at Harrah's in Reno, Nevada. Cassaday met defendant Sharee Miller, then 27 and more than 10 years Cassaday's junior, at the casino in Reno in 1999. She was an attractive and seemingly wealthy woman from Flint. She stayed in the plusher hotel suites, and Cassaday heard stories about her money, jewelry and businesses. Workers at Harrah's first saw Jerry and Sharee together in the early summer of 1999, when she was in town for a Mary Kay Cosmetics convention.  Miller had just married. In April 1999, she had married Bruce Miller, a General Motors Corp. autoworker who ran an auto salvage yard on the side. She opened the business in the mornings while her husband slept, and then he took over in the afternoon before he started the third shift. She also cared for her three children from a previous marriage.

Between her visits to Reno, Miller and Cassaday kept in touch through the Internet. They sent each other hundreds of e-mail and spent hours corresponding in private chat rooms. The two almost always used the same screen names: She was "Jerry's Fool." And he was "Sharee's Fool."

"Your fool for life, Jerry," Cassaday would sign off.

"Love, your brat, Sharee," she'd answer.

In a Sept. 23, 1999, chat session, Cassaday read that Miller had been pregnant, that he was the father, and he pressed for details.

"This next part will be hard. I lost my baby, Jerry."

"No," Cassaday responded.

"I never thought I would ever tell you that he hits. I got in trouble because I was with you."

Cassaday demanded more details.

"Sharee, you can tell me now, or in person when I beat it out of him," he wrote.

"Where did he hit you?" Cassaday demanded.

"Jerry, I can't tell you."

Cassaday pushed for more.

"He didn't hit me, Jerry; he raped me. I lost the baby because of the force."

The next day Cassaday wrote: "The things you told me ripped me in half. No one, I mean no one, is going to get away with the things he has done to you."

The next month Miller wrote that she was pregnant again, this time with twins by Jerry.

"Baby, it's all gonna be fine soon," Cassaday tapped out on his computer. "We will live a wonderful happy life together."

Soon, after Cassaday had moved back to Missouri, he received electronic pictures of the sonograms.

"I love the e-mails you sent me about the baby," Cassaday wrote. "Please don't stop sending me this stuff. I love you so much honey."

Jerry Cassaday opened his e-mail Nov. 5 to a message written under Bruce Miller's screen name. (The prosecution presented evidence to prove that Sharee Miller had posed as her husband, using his screen name, to send the following messages purportedly from Bruce.)


Cassaday called hospitals in Flint and Sharee Miller's cell phone with no luck.

"I'm beginning to worry. Where are you honey?? I love you," Cassaday wrote in a Nov. 6 e-mail.

At 2 p.m., Cassaday found this message on his computer: "This is Sharee. I am going away for a few days. I will contact you next week sometime."

This e-mail, again purportedly from Bruce, greeted Cassaday the next afternoon:


Later that day, Cassaday went back online and found electronic photographs that seemed to show Sharee had suffered a horrific beating. (The prosecution presented evidence to show that these photos were fabricated by defendant Miller).

On November 89, 1999, at around 6:30 p.m., Bruce Miller was shot with at 12-gauge shotgun. Bruce had just gotten off the phone with Sharee. Forensic and medical testimony established that the blast tore into Miller's neck and upper chest, killed him instantly and knocked him out of the chair onto an oily piece of carpet.

The email and instant messaging contents were read to the jury by two deputies. This was their testimony regarding a chat session the day before the murder:

Deputy #2 [reading Sharee's messages]: (In court) (Reading) "Jerry, I am scared. Jerry, if this don't work, he will hurt me bad."

Deputy #1 [Reading Jerry's responses]: (In court) (Reading) "It'll work.  What is the fastest way into the yard from 75?"

Deputy #2: (In court) (Reading e-mail) "75 to Mount Morris Road exit.  Now you need to listen to me for a minute.  I will call Bruce at 5 PM.

Deputy #1: (In court) (Reading) "OK."

Deputy #2: (In court) (Reading) "Is the gun loud?"

Deputy #1: (In court) (Reading) "Somewhat."

Deputy #2: (In court) (Reading) "Just do it and get the hell out of there."

Deputy #1: (In court) (Reading) "I want him to know who I am."

Deputy #2: (In court) (Reading) "Jerry, please."

Deputy #1: (In court) (Reading) "He will know."

Deputy #2: (In court) (Reading) "He will know.

Deputy #1: (In court) (Reading) But not for long."

Deputy #2:(In court) (Reading) "Are you going to be able to live with this the rest of your life?  Because I can."

Deputy #1: (In court) (Reading) "I love you.  Yes, I can."

Prosecutors argued the actual murder took place almost as it was scripted in that instant message exchange.  That on November 89th, 1999, Jerry Cassaday drove from Missouri to Michigan and met Sharee.  And that she gave him her cell phone.  The state claimed Sharee then called him on that cell phone at about 6:15 that evening. Prosecutors claimed Sharee then called up her husband, and while Jerry Cassaday approached, kept Bruce on the phone. Phone records confirmed that calls were made from those phone at the times claimed by the prosecution. Records also show that Sharee Miller's cell phone was used to make a call to her home number at 6:47 p.m.; the caller rang once and hanged up.

Not long after the murder, the Internet communication between Sharee Miller and Jerry Cassaday slowed.

On Jan. 10 in a two-page e-mail, Cassaday told her he still was waiting for her. "You told me time and time again of how well off you were, how you had what seemed to me like unlimited funds," Cassaday wrote. "You told me of account after account, funds after funds, stocks, IRAs, trust funds, businesses and homes." "I have always said that I am your fool," he wrote.

Cassaday shot himself with at .22 caliber rifle. He left a suicide note addressed to his brother in which he asked him to turn over materials to the police in Flint, Michigan. The note included a detailed description of how Cassaday had killed Bruce Miller.

According to evidence presented by the prosecution, just about everything that Jerry Cassaday was told about Bruce and Sharee Miller was wrong. Sharee Miller could not have become pregnant. She had a tubal ligation after the birth of her youngest child in the mid-1990s, court records show. The sonogram pictures that Cassaday received also were a fraud. Prosecutors pointed out that they were dated 1994.

The prosecution discounted allegations of spousal abuse, too. Flint area police agencies had never responded to any complaint of domestic violence at the Miller household. Bruce Miller had no criminal record, no known ties to organized crime. Neighbors described Bruce Miller as a loving family man.

After her husband's murder, Sharee Miller received the junkyard, which she subsequently sold, about $16,000 in the couple's bank accounts, a little stock and $80,000 in insurance, according to probate court records and investigators.

Miller's defense, which included her own testimony, denied that she had anything to do with her husband's murder, though they acknowledged Miller and Cassaday had a provocative and romantic fantasy relationship on the Internet. Rather, the defense claimed that another man had committed the crime; the man police focused on at the beginning of the investigation, a former salvage yard employee already suspected in a scheme to switch vehicle identification numbers, a man who owed Bruce Miller money, a man a polygraph operator said had not told the entire truth. The defense claimed that Cassaday then took advantage of the murder to take revenge. The defense described Cassaday as a "vindictive, alcoholic drug abuser" who concocted a tale that he had killed Bruce Miller to strike at Sharee Miller from the grave. "The relationship ended, and he couldn't handle that," the defense said of Cassaday.

(Sources: in addition to the decisions referenced above, see Mark Morris, Deception Blamed In Killing, Suicide Two Men Are Dead, Widow Charged With Conspiracy To Murder, The Detroit Free Press, Metro Final, page 5 (October 4, 2000); NBC News Transcripts, Dateline NBC: The Man Who Knew Too Much; Murder mystery of two men: and the people involved (Reported by Hoda Kotbe, March 5, 2002)).