Sharon May Rockwell v. Joan Yukins

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0307P (6th Cir.)
File Name: 03a0307p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
SHARON MAY ROCKWELL,
Petitioner-Appellee,
v.
JOAN YUKINS,
Respondent-Appellant.
X
-
-
-
->
,
-
-
N
No. 00-1992
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 97-71072—Avern Cohn, Senior District Judge.
Argued: December 11, 2002
Decided and Filed: August 27, 2003
Before: MARTIN, Chief Circuit Judge; NELSON,
BOGGS, BATCHELDER, DAUGHTREY, MOORE,
COLE, CLAY, GILMAN, GIBBONS, and ROGERS,
Circuit Judges.
_________________
COUNSEL
ARGUED: Laura Graves Moody, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellant.
Craig A. Daly, Detroit, Michigan, for Appellee. ON BRIEF:
Laura Graves Moody, OFFICE OF THE ATTORNEY
2 Rockwell v. Yukins No. 00-1992
GENERAL, Lansing, Michigan, for Appellant. Craig A.
Daly, Detroit, Michigan, for Appellee.
NELSON, J., delivered the opinion of the court, in which
MARTIN, C. J., BOGGS, BATCHELDER, GILMAN,
GIBBONS, and ROGERS, JJ., joined. CLAY, J. (pp. 12-29),
delivered a separate dissenting opinion, in which
DAUGHTREY, MOORE, and COLE, JJ., joined.
_________________
OPINION
_________________
DAVID A. NELSON, Circuit Judge. The petitioner in this
habeas corpus action, Sharon Rockwell, was convicted at trial
in a state court of conspiring with her sons to murder the
boys’ father, her husband. A federal writ of habeas corpus
was subsequently granted on the ground that her Sixth
Amendment right to present a complete defense precluded
the state trial court from barring evidence that Mr. Rockwell
had abused his sons sexually. Under the legal standard
prescribed by the Antiterrorism and Effective Death Penalty
Act of 1996, the writ should not have been issued unless
exclusion of the evidence in question involved an
“unreasonable” application of, or was contrary to, federal law
clearly established by the United States Supreme Court.
Concluding that the result reached in the state court passes
muster under the statutory test, we shall reverse the grant of
habeas relief.
I
As we noted in an earlier appeal in this case, Rockwell v.
Yukins, 217 F.3d 421, 422-23 (6th Cir. 2000), Sharon and
Edward Rockwell had three sons. One of the sons, acting
with two friends, attempted to kill Mr. Rockwell by cutting
the brake lines on his car. The attempt failed. Then, in a
second unsuccessful attempt on Mr. Rockwell’s life, the two

-- 1 of 15 --

No. 00-1992 Rockwell v. Yukins 3
1Although the prosecution ha d cited Rule 4 04 in argum ent, its
relevance is not readily apparent. R ule 40 4 provides that evidence of a
perso n’s character is generally inadmissible for the purpose of proving
that the person acted in conformity therewith on a particular occasion.
friends hit him on the head with a baseball bat. Although
Mrs. Rockwell was not present on either occasion, she had
engaged in discussions with one or more of her sons about
killing Mr. Rockwell. On the strength of these discussions,
the State of Michigan charged Mrs. Rockwell with conspiracy
to commit murder.
Mrs. Rockwell’s defense, as her lawyer described it at a
pretrial hearing, was that her participation in the talk of
killing Mr. Rockwell was not intended to further an actual
murder; rather, according to counsel, Mrs. Rockwell’s
purpose had been to let the boys vent the extreme and abiding
hatred they harbored against their father for having abused
them, sexually and otherwise, when they were younger.
“[Mrs. Rockwell] felt in her heart that the only way she could
keep the situation under control,” defense counsel explained,
“was to allow the boys to talk and fantasize about [killing the
hated Mr. Rockwell.]” Far from agreeing to a murder, the
theory went, Mrs. Rockwell hoped to forestall a murder
through what her lawyer seems to have viewed as some sort
of talk therapy.
In connection with this “therapy defense,” as we
characterized it in our earlier opinion, Mrs. Rockwell wanted
to show at trial that Mr. Rockwell had sexually abused his
sons. The prosecution wanted to exclude evidence of the
alleged abuse. The state trial court ordered briefing and heard
argument on the admissibility of the evidence of abuse, after
which it ordered the evidence excluded as not “material”
under Mich. Rule of Evid. 404.1
When the case went to trial, Mrs. Rockwell elected not to
take the stand. The jury returned a verdict of guilty, and Mrs.
4 Rockwell v. Yukins No. 00-1992
2Rule 403 – which had also been cited in argume nt before the state
trial court – pro vides that relevant evid ence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice.
Rockwell was sentenced to imprisonment for life. An appeal
to the Michigan Court of Appeals followed.
The Court of Appeals affirmed the conviction, succinctly
explaining its rationale as follows:
“We find no abuse of discretion in the trial court’s
exclusion of evidence of the victim’s alleged prior acts of
abuse against defendant’s and the victim’s children.
People v. Watkins, 176 Mich. App. 428; 440 NW2d 36
(1989). Defendant was merely limited in the method
with which to present her defense and not deprived [of]
the opportunity to present the same. Although
marginally relevant, the evidence was properly excluded
under MRE 403.”2
Mrs. Rockwell applied to the Michigan Supreme Court for
leave to appeal the affirmance of her conviction, but further
review was denied.
Mrs. Rockwell then filed her habeas action in the United
States District Court for the Eastern District of Michigan.
The initial pleading raised two issues, insufficiency of the
evidence and improper exclusion of the evidence of sexual
abuse, both of which had been exhausted in the state courts.
The district court eventually granted Mrs. Rockwell leave to
amend her petition to include an unexhausted claim as well.
Following a hearing at which arguments were presented on
the merits, the district court granted the writ on the ground
that the state trial court’s decision to exclude evidence of the
alleged sexual abuse clearly violated Mrs. Rockwell’s
constitutional right to present a defense – and “[n]o
reasonable jurist could conclude otherwise.”

-- 2 of 15 --

No. 00-1992 Rockwell v. Yukins 5
The soundness of this proposition was not decided in the
initial appeal to our court. The panel that heard the appeal
vacated the judgment on the ground that the district court
should not have reviewed a “mixed” petition containing an
unexhausted claim in addition to the exhausted claims. The
first panel remanded the case with a suggestion that the
district court could reenter its original decision after allowing
Mrs. Rockwell to dismiss her unexhausted claim. See
Rockwell v. Yukins, 217 F.3d at 425.
On remand, the district court accepted this suggestion.
Mrs. Rockwell moved for dismissal of her unexhausted claim
and reentry of the habeas judgment, and the district court
granted the motion.
The warden again appealed to our court. Reaching the
merits of the case, a divided three-judge panel reversed the
district court’s judgment. The full court then voted to rehear
the case en banc. Supplemental briefs having been filed, and
the case having been reargued, the appeal is now ready for
decision by the full court.
II
As amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110
Stat. 1214 (1996), subsection (d) of 28 U.S.C. § 2254
provides, in relevant part, as follows:
“(d) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim –
(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 . . . .”
6 Rockwell v. Yukins No. 00-1992
3The condition of this “contrary to” clause would be met if “the state
court arrive[d] at a conclusion opposite to that reached by [the U.S.
Supreme] Court on a question of law or if the state court decide[d] a case
differently than [the U.S. Supreme Court has] o n a set of materially
indistinguishable facts.” Williams, 529 U.S. at 413.
This version of the statute applies to habeas applications filed,
as Mrs. Rockwell’s was, after April 24, 1996, the effective
date of AEDPA. See Lindh v. Murphy, 521 U.S. 320 (1997).
The statute means what it says. See Williams v. Taylor,
529 U.S. 362, 402-13 (2000). What the statute says, to
repeat, is that habeas relief may not be granted unless the state
court’s decision was either “contrary to . . . clearly established
federal law, as determined by the Supreme Court of the
United States,”3 or “involved an unreasonable application of
. . . [such] law.”
Mrs. Rockwell does not contend that the affirmance of her
conviction by the state court of appeals was “contrary to”
clear Supreme Court caselaw. She does contend, however,
that it involved an unreasonable application of such law.
For this contention to be accepted, Mrs. Rockwell must do
more than persuade us that the Michigan judiciary’s
application of federal law was incorrect. As Justice
O’Connor said, speaking for the Court in Williams:
“In § 2254(d)(1), Congress specifically used the word
‘unreasonable,’ and not a term like ‘erroneous’ or
‘incorrect.’ Under § 2254(d)(1)’s ‘unreasonable
application’ clause, then, a federal habeas court may not
issue the writ simply because that court concludes in its
independent judgment that the relevant state-court
decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must
also be unreasonable.” Williams, 529 U.S. at 411
(emphasis supplied).

-- 3 of 15 --

No. 00-1992 Rockwell v. Yukins 7
“[A]n unreasonable application of federal law is different
from an incorrect or erroneous application of federal law.”
Id. at 412 (emphasis in original). And in making the
“unreasonable application” inquiry, we “should ask whether
the state court’s application of clearly established federal law
was ‘objectively’ unreasonable.” Id. at 409.
In Mrs. Rockwell’s case, as we have seen, the Michigan
Court of Appeals concluded that the probative value of the
evidence of Edward Rockwell’s alleged abuse of his sons was
substantially outweighed by the danger that unfair prejudice
would ensue were the evidence to be admitted. This
conclusion may or may not have been erroneous, but we
cannot say that it represented an objectively unreasonable
application of clearly established Supreme Court precedent.
A Supreme Court decision that the district court found
“particularly instructive,” Davis v. Alaska, 415 U.S. 308
(1974), held that the defendant in a burglary case had a
constitutional right to cross-examine a crucial prosecution
witness about a juvenile burglary adjudication for which the
witness was on probation, notwithstanding a state rule making
evidence of juvenile adjudications inadmissible. The Court
emphasized that “[c]ross-examination is the principal means
by which the believability of a witness and the truth of his
testimony are tested,” adding that the juvenile’s testimony
“provided ‘a crucial link in the proof . . . of [the defendant’s]
act.’” Id. at 316 and 317 (citation omitted). “In this setting,”
the Court concluded, “. . . the [Sixth Amendment] right of
confrontation is paramount to the State’s policy of protecting
a juvenile offender.” Id. at 319.
In the case at bar, by contrast, the evidence of sexual abuse
was not being proffered to attack the believability of a crucial
witness against Mrs. Rockwell. The rule under which the trial
court excluded the evidence, moreover, is not aimed at
protecting juvenile offenders. The interests at stake in this
case are entirely different than those at stake in Davis.
Because Davis is readily distinguishable, and because the
8 Rockwell v. Yukins No. 00-1992
gloss Mrs. Rockwell would have us put on the case flies in
the face of a line of authority (to which we shall turn shortly)
culminating in United States v. Scheffer, 523 U.S. 303 (1998),
we reject the claim that the Michigan court’s decision
represented an unreasonable application of Davis.
Mrs. Rockwell attempts to extract from Davis and other
Supreme Court cases a general rule that a criminal defendant
must be permitted to present any evidence that she deems
critical to her defense. In this connection she cites Crane v.
Kentucky, 476 U.S. 683 (1986), which holds that “the
Constitution guarantees criminal defendants ‘a meaningful
opportunity to present a complete defense.’” Id. at 690
(citations omitted).
But the Supreme Court has made it perfectly clear that the
right to present a “complete” defense is not an unlimited right
to ride roughshod over reasonable evidentiary restrictions. A
defendant “does not have an unfettered right to offer
testimony that is incompetent, privileged, or otherwise
inadmissible under standard rules of evidence.” Taylor v.
Illinois, 484 U.S. 400, 410 (1988). Rather, she “must comply
with established rules of procedure and evidence designed to
assure both fairness and reliability in the ascertainment of
guilt and innocence.” Chambers v. Mississippi, 410 U.S. 284,
302 (1973).
As the Supreme Court explained in Scheffer:
“state and federal rulemakers have broad latitude under
the Constitution to establish rules excluding evidence
from criminal trials. Such rules do not abridge an
accused’s right to present a defense so long as they are
not ‘arbitrary’ or ‘disproportionate to the purposes they
are designed to serve.’” 523 U.S. at 308 (citations
omitted).
A defendant’s right to present a “complete” defense, in other
words, does not automatically trump state evidentiary rules.

-- 4 of 15 --

No. 00-1992 Rockwell v. Yukins 9
4By the sam e token, the ruling did no t bar M rs. Rockwell from
simply testifying that the boys had an intense hatred of their father. If
such testimony had gone unchallenged, the jury might well have accepted
it. If the pro secution had cross-examined M rs. Rockwell as to the b asis
of the hatred, on the other hand, or if it had presented the husb and as a
witness and evoked a denial that he had done anything to cause the b oys
to hate him, the doo r would then have b een opened, in all probability, for
The competing interests must be balanced, and “a defendant’s
interest in presenting . . . evidence may [have to] bow to
accommodate other legitimate interests in the criminal trial
process.” Id. (Internal quotation marks and citations
omitted.)
It was not objectively unreasonable, in our view, for the
Michigan court to conclude that “other legitimate interests in
the criminal trial process” outweighed Mrs. Rockwell’s
interest in presenting evidence of her husband’s prior conduct.
The evidence of sexual abuse posed a substantial danger of
unfair prejudice – a risk that the jury would be tempted to
acquit Mrs. Rockwell not because of any sense that she was
innocent of conspiring with her sons to kill Mr. Rockwell but
because of a sense that killing would be too good for such a
man.
In addition to the danger of unfair prejudice, the sexual
abuse evidence presented a risk of undue delay and confusion
of the issues. The facts that Mrs. Rockwell wished to
introduce into evidence were disputed. Resolution of this
tangential dispute would have complicated the trial and could
have tended to mislead the jury.
It is true that the chances of the jury’s accepting Mrs.
Rockwell’s “therapy defense” may have been diminished by
exclusion of the sexual abuse evidence. But it would not be
correct to say that Mrs. Rockwell was deprived of her
defense. Exclusion of the evidence would not have prevented
her from testifying that her sons hated their father because of
his unspeakable behavior toward them over the years.4 It
10 Rockwell v. Yukins No. 00-1992
Mrs. Rockwell to present evid ence of the alleged sexual misconduc t.
5Even if the Michigan court acted unreasonably in concluding that
exclusion of the sexual abuse evidence was constitutional, any error was
probab ly harmless. There was evidence at trial that M rs. Rockwell herself
had attempted to acquire a bomb, that she had continued to discuss killing
her husband even after she knew there ha d been an actual attem pt on his
life, and that, on the night of the second attempt, she had taken her
younger children out of the house so that they would not be present
during the attack. This evidence severely undercuts th e defense theory
that Mrs. Rockwell believed her sons were m erely engaging in harmless
talk.
would not have barred her from telling the jury that she
thought such talk had a healthy prophylactic effect; that she
did not think it would lead to overt action; and that she had
never been a party to any mutual understanding or agreement
to commit murder. The court’s ruling barred Mrs. Rockwell
only from testifying that her husband’s abuse of her sons was
sexual in nature.
Explication of the sexual aspect of the abuse, in short, did
not go to the essence of the “talk therapy” defense. Rather, it
was a detail – an important detail, to be sure, but a detail
nonetheless.
It is far from certain, moreover, that presentation of this
detail to the jury would have increased the likelihood of Mrs.
Rockwell’s acquittal. The more heinous Mr. Rockwell’s
offenses, the jury could reasonably have concluded, the more
likely it was that Mrs. Rockwell understood the talk of
murder to be in earnest. If, on the other hand, testimony that
the abuse was sexual would have made the jury more likely
to acquit Mrs. Rockwell, it might well have done so on the
improper basis mentioned above – a sense that the conspiracy
was justified – rather than on any legitimate basis. In these
circumstances, we believe it was not unreasonable for the
Michigan Court of Appeals to weigh the competing interests
as it did.5

-- 5 of 15 --

No. 00-1992 Rockwell v. Yukins 11
The decision made by the Michigan court was a judgment call
of the sort that judges make all the time. Some members of
this court, had they been on the state bench, would have made
a different call. We cannot say they would have acted
unreasonably in doing so, particularly in view of the fact that
the danger of undue prejudice could have been minimized by
a cautionary instruction. See Lewis v. Wilkinson, 307 F.3d
413, 422 (6th Cir. 2002). What we can say, however, is that
the call made by the Michigan court was well within that
court’s discretion. The decision to exclude evidence of the
sexual nature of the victim’s mistreatment of his sons did not,
in our opinion, involve an unreasonable application of clearly
established federal law as determined by the Supreme Court
of the United States.
The decision of the district court is REVERSED, and the
case is REMANDED with instructions to dismiss the
petition.
12 Rockwell v. Yukins No. 00-1992
______________
DISSENT
______________
CLAY, Circuit Judge, dissenting. The majority’s
conclusion that the Michigan Court of Appeals did not
unreasonably apply Supreme Court precedent in rejecting
Petitioner’s claim that she was denied her Fifth Amendment
right to present a complete defense rests upon an
interpretation of § 2254(d)(1) that has no basis in the law. As
the term “unreasonable” is commonly known and applied in
the jurisprudence, the state appellate court’s decision
represented an objectively unreasonable application of the
Court’s precedent.
Petitioner sought to introduce evidence of Edward
Rockwell’s alleged sexual abuse of his sons for the purpose
of establishing that she engaged in talk of killing Rockwell
with her sons, not for the purpose of forming an agreement to
kill, but for the purpose of allowing the boys to vent their
anger and hatred of Rockwell. Thus, evidence of Rockwell’s
alleged sexual abuse provided the substantive basis of
Petitioner’s defense and, without the evidence, Petitioner was
prevented from establishing any defense at all. The state
appellate court’s finding that omission of this evidence
merely limited Petitioner in the “method” of presenting her
defense thereby constitutes an objectively unreasonable
application of Supreme Court precedent. As a result, the state
appellate court’s conclusion that the evidence was properly
excluded on evidentiary grounds constitutes an objectively
unreasonable application of the Court’s precedent as well. I
would therefore affirm the district court’s order granting the
petition for a writ of habeas corpus filed by Petitioner, Sharon
May Rockwell.

-- 6 of 15 --

No. 00-1992 Rockwell v. Yukins 13
I. “Unreasonable Application” Prong of 28 U.S.C.
§ 2254(d)(1)
This Court’s review of the Michigan Court of Appeals’
decision regarding Petitioner’s claim is circumscribed by
§ 2254(d)(1) of the Antiterrorism and Effective Death Penalty
Act of 1966 (“AEDPA”), meaning that the state court’s
decision will not be disturbed on habeas review unless the
decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States . . . .” In this case,
it is the “unreasonable application” prong of § 2254(d)(1) that
guides our review. Under this prong, “‘a federal habeas court
may grant the writ if the state court identifies the correct
governing legal principle from [the] [Supreme] Court’s
decisions but unreasonably applies that principle to the facts
of the prisoner’s case.’” Lockyer v. Andrade, ___ U.S. ___,
123 S. Ct. 1166, 1174 (2003) (quoting Williams v. Taylor,
529 U.S. 362, 413 (2000)). Said differently, “a federal court
may grant habeas relief [under this prong] based on an
application of a governing legal principle to a set of facts
different from those of the case in which the principle was
announced.” Id. (citing Williams, 529 U.S. at 407).
“‘[A] federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that
the state-court decision applied [a Supreme Court case]
incorrectly.’” Price v. Vincent, ___ U.S. ___, 123 S. Ct.
1848, 1853 (2003) (alteration in Price) (quoting Bell v. Cone,
535 U.S. 685, 699 (2002)). Rather, “[i]n order for a federal
[habeas] court to find a state court’s application
‘unreasonable,’ the state court’s decision must have been
more than incorrect or erroneous[,] [it] must have been
‘objectively unreasonable.’” Wiggins v. Smith, ___ U.S. ___,
123 S. Ct. 2527, 2534 (2003) (citing Lockyer, 123 S. Ct. at
1175; Williams, 529 U.S. at 409); see also Woodford v.
Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam).
14 Rockwell v. Yukins No. 00-1992
We are not without guidance, however, as to when a state
court’s decision rises to the level of being “objectively
unreasonable” for purposes of granting a petitioner habeas
relief under § 2254(d)(1). In Wiggins v. Smith, 123 S. Ct. at
2538-539, a death penalty case, the Supreme Court held that
the Maryland Court of Appeals unreasonably applied the
governing principles of Strickland v. Washington, 466 U.S.
668 (1984) in rejecting the petitioner’s claim that he had been
denied his Sixth Amendment right to effective assistance of
counsel. The Court found that the state court of appeals’
conclusion that counsel’s performance was within
professional norms was objectively unreasonable under
Strickland inasmuch as counsel had failed to make a
reasonable investigation into the petitioner’s social history.
Id. (noting that under Strickland, “strategic choices made after
a less than complete investigation are reasonable precisely to
the extent that reasonable professional judgments support the
limitations on investigation”) (citation and internal quotation
marks omitted). This, in turn, made the state court’s
deference to counsel’s strategic decision not to present
mitigating evidence of the petitioner’s social history
objectively unreasonable as well. Wiggins, 123 S. Ct. at
2538-539 (“[C]ounsel chose to abandon their investigation at
an unreasonable juncture, making a fully informed decision
with respect to sentencing strategy impossible.”).
The Wiggins majority rejected the dissent’s contention that
“the Court’s hands [were] tied under § 2254(d), by the state
court’s factual determinations that [the petitioner’s] trial
counsel did investigate and were aware of [the petitioner’s]
background.” Id. at 2539 (internal quotation marks and
citation omitted; emphasis in original). The Court reasoned
that the dissent’s position was unfounded because the state
appellate court’s conclusion that “the scope of counsel’s
investigation into petitioner’s background met the legal
standards set in Strickland represented an objectively
unreasonable application of our precedent.” Id. (emphasis in
original). In other words, the state court’s finding that
counsel investigated and knew of the petitioner’s social

-- 7 of 15 --

No. 00-1992 Rockwell v. Yukins 15
history did not tie the Court’s hands because the scope of
counsel’s investigation was objectively unreasonable under
the principles of Strickland. Id.
Thus, Wiggins instructs us that while we defer to state court
decisions under § 2254(d)(1), the deference is not absolute
inasmuch as a petitioner may be afforded habeas relief when
the state court’s decision reaches a result not supported by
Supreme Court precedent. See id.
II. Michigan Court of Appeals’ Ruling
The Michigan Court of Appeals issued a divided ruling in
this case. While the two-judge majority found that Petitioner
was not entitled to relief on her claim that the trial court
abused its discretion in excluding evidence of Edward
Rockwell’s prior acts of alleged sexual abuse against
Rockwell’s and Petitioner’s children, a dissenting judge
sharply disagreed. See People v. Rockwell, No. 124359
(Mich. Ct. App. May 23, 1991) (unpublished).
Specifically, as to Petitioner’s claim on this issue, the two-
judge majority opined:
We find no abuse of discretion in the trial court’s
exclusion of evidence of the victim’s alleged prior acts of
abuse against defendant’s and the victim’s children.
People v Watkins, 176 Mich App 428; 440 NW2d 36
(1989). Defendant was merely limited in the method
with which to present her defense and not deprived the
opportunity to present the same. Although marginally
relevant, the evidence was properly excluded under MRE
403.
Id. In sharp contradistinction, the dissenting judge found
Petitioner’s claim on this issue meritorious and would have
reversed Petitioner’s conviction and remanded for a new trial.
That judge persuasively refutes the majority’s argument as
follows:
16 Rockwell v. Yukins No. 00-1992
The majority opinion agrees that the evidence in
question is relevant. If it is relevant it is only so because
it relates to a legally recognized defense. That defense is
that defendant’s participation in the conversations was
not, from her perspective, part of the conspiracy or
agreement to commit murder, but, rather, it was her way
of allowing her sons to ventilate their anger at the sexual
abuse her husband had been perpetrating on the boys
over a period of time. Her defense might not be accepted
by a jury and her belief, if, indeed, she had such a belief,
that the boys should be allowed to express their rage
through such conversations may have been misguided.
Nevertheless, I believe she should have been allowed to
tell her version of the events to the jury and to submit
evidence it support of it.
I come to this conclusion because I believe her version
goes to the very heart of her defense, i.e., that there was
no conspiracy between her and anyone else. The absence
of a conspiracy, i.e., an agreement, depends on whether
she had a factual basis for allowing the boys to express
their anger in this manner and this, in turn, depends on
whether the sexual abuse actually occurred. If it did not
occur, her defense disappears and if it did occur, she has
an explanation, however tenuous it might be, for why she
participated in the conversations and for her theory that
she was not seriously conspiring to murder her husband.
From this perspective, the need to establish the sexual
abuse becomes crucial. I would not want the trial to
deteriorate into a criminal sexual conduct case with each
allegation of sex abuse being proved and then being
disproved by other witnesses but I am satisfied that the
trial judge can place adequate controls and limits on the
flow of testimony given the purpose of such testimony.
It would be sufficient for the trial judge to allow enough
evidence to establish that defendant’s view of the
situation was supported by an adequate factual basis.

-- 8 of 15 --

No. 00-1992 Rockwell v. Yukins 17
If all she can show is that her behavior was based on
a vague and generalized hatred for her husband by
herself and by the boys, she is deprived of the essence of
her defense. A defendant must be permitted to offer
proofs of each element of a valid defense. See
Washington v Texas, 388 US 14, 19; 87 S Ct 1920; 18 L
Ed 2d 1019 (1967); People v Callington, 123 Mich App
301, 305; 333 NW2d 260 (1983). I wish to emphasize
that I do not take the position that defendant would be
justified in conspiring to kill her husband if he had
perpetrated sexual abuse upon the boys. Rather, my
position is that she must be permitted to argue and
submit proofs that the existence of the sexual abuse
formed a basis for her belief that she was not a knowing
participant in a conspiracy at all.
I would reverse and remand for a new trial.
Id. (Shepherd, J., dissenting) (emphasis added).
III. Analysis
At the outset, it should be noted that although the state
appellate court’s reason for concluding that the evidence was
properly excluded under Rule 403 is significant, what is most
significant is the court’s finding that the exclusion of
Rockwell’s sexual abuse of his sons merely limited the
“method” by which Petitioner could present her defense.
This is so because the state appellate court made an
objectively unreasonable determination under Supreme Court
precedent that Petitioner was only limited in the “method”
and not the substance of her defense through the exclusion of
this evidence, which thereby rendered the court’s conclusion
that the evidence was properly excluded under Rule 403
objectively unreasonable as well. Said differently, although
it is true that Supreme Court precedent indicates that the right
to present a defense is at times limited by reasonable
evidentiary rules, if in deciding to exclude evidence under an
evidentiary rule the court makes an objectively unreasonable
18 Rockwell v. Yukins No. 00-1992
determination as to Petitioner’s ability to present her defense
in the absence of this evidence, the decision to exclude the
evidence under the rule is itself unreasonable. See Wiggins,
123 S. Ct. at 2538-539 (holding that if the court makes an
unreasonable determination as to the basis for counsel’s
strategy, the decision to defer to counsel’s strategic choice is
itself unreasonable).
A. Petitioner’s Right to Present a Defense
The state appellate court held that Petitioner was not denied
her constitutional right to present a defense because the
exclusion of evidence regarding Rockwell’s sexual abuse
“merely limited [] the method” by which Petitioner could
present her defense theory. Under clearly established
Supreme Court precedent, the state appellate court’s holding
was objectively unreasonable because evidence of Rockwell’s
alleged sexual abuse provided the substantive basis for
Petitioner’s defense such that without this evidence Petitioner
was left with no defense at all.
The Court has long held that an accused’s right to
“establish a defense” is a “fundamental element of due
process.” Washington v. Texas, 388 U.S. 14, 19 (1967). In
Washington, the Court was called upon for the first time “to
decide whether the right of an accused to have compulsory
process for obtaining witnesses in his favor, guaranteed in
federal trials by the Sixth Amendment, is so fundamental and
essential to a fair trial that it is incorporated in the Due
Process Clause of the Fourteenth Amendment.” Id. at 17-18.
Relying on In re Oliver, the Court observed that, among other
things, an accused’s right “‘to offer testimony’” is a basic
component of his right to offer a defense. Id. at 18 (quoting
In re Oliver, 333 U.S. 257, 273 (1948)). The Court therefore
concluded that “[t]he right to offer testimony of witnesses and
to compel their attendance [] is in plain terms the right to
present a defense” because “[j]ust as an accused has the right
to confront the prosecution’s witnesses for the purpose of
challenging their testimony, he has the right to present his

-- 9 of 15 --

No. 00-1992 Rockwell v. Yukins 19
own witnesses to establish a defense.” Id. at 19. It is then up
to the jury to “decide where the truth lies.” Id.
The Court spoke again on the constitutional significance of
allowing a defendant to present testimony in connection with
his defense in Crane v. Kentucky, 476 U.S. 683 (1986).
Specifically, in Crane, the Court held that the exclusion of
testimony surrounding the circumstances of a defendant’s
confession deprived the defendant of his fundamental
right—whether under the Due Process Clause of the
Fourteenth Amendment or under the Compulsory Process or
Confrontation Clauses of the Sixth Amendment—to present
a defense. Id. at 690-91. The Court reasoned that the
opportunity to be heard “would be an empty one if the State
were permitted to exclude competent, reliable evidence
bearing on the credibility of a confession when such evidence
is central to the defendant’s claim of innocence.” Id. As a
result, the Court concluded that the “exclusion of this kind of
exculpatory evidence deprives a defendant of the basic right
to have the prosecutor’s case encounter and ‘survive the
crucible of meaningful adversarial testing.’” Id. at 690-91
(quoting United States v. Cronic, 466 U.S. 648, 656 (1984)).
In Davis v. Alaska, 415 U.S. 308, 315-16 (1974), the Court
examined an accused’s right to present a defense in the
context of the cross-examination of witnesses offered against
him. The Court recognized that “[c]ross-examination is the
principal means by which the believability of a witness and
the truth of his testimony are tested[,]” and that several means
of discrediting a witness are essential to effective cross-
examination. Id. at 316. The petitioner in Davis sought to
discredit a government witness by showing the existence of
possible bias and prejudice. Id. Specifically, the petitioner
sought to question a key witness for the prosecution regarding
the witness’ adjudication as a juvenile delinquent and his
probation status in order to demonstrate that the witness
identified the petitioner as the perpetrator out of fear of
possible probation revocation. Id. at 310-11. The trial court
refused to allow the petitioner to cross-examine the witness as
20 Rockwell v. Yukins No. 00-1992
to his probationary status as a juvenile offender based on a
state statute protecting the anonymity of juvenile offenders.
Id. at 311. As a result, the petitioner’s counsel “did his best”
to expose the witness’s state of mind at the time, but much of
the witness’ testimony went unchallenged. Id. at 312-14.
The petitioner was convicted, and his appeal made its way to
the Alaska Supreme Court which affirmed the petitioner’s
conviction, concluding that “‘counsel for the defendant was
able adequately to question the youth in considerable detail
concerning the possibility of bias or motive.’” Id. 314-15.
The Supreme Court granted certiorari limited to the
question of whether the petitioner was denied his
constitutional right to adequately cross-examine the witness,
which “turn[ed] on the correctness of the Alaska court’s
evaluation of the ‘adequacy’ of the scope of cross-
examination permitted.” Id. The Court reversed, finding that
it could not “accept the Alaska Supreme Court’s conclusion
that the cross-examination that was permitted defense counsel
was adequate to develop the issue of bias properly to the
jury.” Id. at 318. The Court reasoned:
While counsel was permitted to ask [the witness]
whether he was biased, counsel was unable to make a
record from which to argue why [the witness] might have
been biased or otherwise lacked that degree of
impartiality expected of a witness at trial. On the basis
of the limited cross-examination that was permitted, the
jury might well have thought that defense counsel was
engaged in a speculative and baseless line of attack on
the credibility of an apparently blameless witness or, as
the prosecutor’s objection put it, a ‘rehash’ of prior cross-
examination. On these facts, it seems clear to us that to
make any such inquiry effective, defense counsel should
have been permitted to expose to the jury the facts from
which jurors, as the sole triers of fact and credibility,
could appropriately draw inferences relating to the
reliability of the witness.

-- 10 of 15 --

No. 00-1992 Rockwell v. Yukins 21
Id. (emphasis added).
Against this backdrop, it is clear that the Michigan Court of
Appeals’ ruling—that exclusion of Rockwell’s sexual abuse
of the boys “merely limited [Petitioner] in the method” by
which she could present her defense—was objectively
unreasonable inasmuch as this evidence was at the very
substance of Petitioner’s defense. Through the exclusion of
this evidence, Petitioner was deprived of her right to present
testimony in connection with and in support of her defense
pursuant to Washington and Crane, and she was denied her
right to effectively cross-examine key witnesses and
demonstrate the accuracy and truthfulness of her defense
under Davis, all of which ultimately denied Petitioner her due
process right to present a defense.
Indeed, at the hearing on the motion in limine before the
trial court, Petitioner’s counsel argued the substantive
significance of the sexual abuse evidence as it related to
Petitioner’s defense:
Your Honor, in this case, my client, Sharon Rockwell,
is charged with conspiracy to murder Edward Rockwell,
her husband. The facts will show in this case that there
were several conversations throughout the period of the
conspiracy in which my client and the other conspirators
and the other parties discussed death, ways of
accomplishing death of father.
The prosecution intends to show that my client
engaged in these conversations in an effort to convince
the jury that my client is guilty of conspiring to murder.
* * *
My client knew of the extreme—and I
underline—extreme hatred her children had for their
father. She knew this because she lived with it every day
she raised the children. Her defense, you Honor, is that
22 Rockwell v. Yukins No. 00-1992
she knew the situation was a volatile, explosive situation
and she felt in her heart that the only way she could keep
this situation under control was to allow the boys to talk
and fantasize about these things that were apparently in
their minds. And, therefore, her attitude was talk will
diffuse the situation rather than silence causing an
explosion. So her defense is that she did not make an
agreement with anyone. She allowed this talk because it
was just talk.
Now, the sex acts involved in this case and father’s
prior conduct in treating his family so shabbily will show
that this hatred was real and will show that why this talk
was engaged in.
(Trial Tr., Vol. I at 12-13.) The following colloquy then
occurred between the trial court and Petitioner’s counsel:
THE COURT: Assuming everything you say is true, []
assuming that there was hated [sic] based
upon all these activities, what type of a
legal defense is it?
* * *
PETITIONER’S COUNSEL: Because mother
[Petitioner] says there was not an
agreement to murder. Mother says this
was nothing more than talk.
THE COURT: Then how is your client harmed by not
including the sexual—prior sexual
conduct?
PETITIONER’S COUNSEL: Because then a finder of
fact says, well, if there was—You know,
the finder of fact concludes that this is
just nothing more than a smoke screen
by the Defendants. My client must show

-- 11 of 15 --

No. 00-1992 Rockwell v. Yukins 23
that, in fact, this is true, her defense is
true, because otherwise, a rational finder
of fact can believe that mother is just
making up a story to get out of
something.
* * *
My client’s argument is that there was
no agreement; this was just talk. And
that’s very critical in this case because
the evidence and the facts will show that
this talk occurred because of this
extreme hatred.
Her entire defense is built around
showing that, in fact, this was nothing
but talk, and to disallow the evidence to
come in makes it—makes her defense
one so weak that it is of dubious nature
at best.
(Id. at 14, 24.) Ruling on the record, the trial court excluded
the evidence, stating as follows: “The Court will not allow
inquiry into the collateral issues with regard to sexual matters.
The Court finds that it is not material under [MRE] 404.”
(Trial Tr., Vol. I at 24.)
Thus, the exclusion of this evidence did not merely limit
Petitioner “in the method” by which she could present her
defense; rather, the exclusion of this evidence prevented
Petitioner from establishing her defense. As argued by her
counsel before the trial court, testimony of Rockwell’s sexual
abuse provided the very basis as to why Petitioner allowed
and participated in conversations with her sons regarding
Rockwell’s death, and why these conversations did not
amount to an agreement to kill. Petitioner could not establish
her defense without such testimony, which she could have
introduced through her own testimony as well as that of other
24 Rockwell v. Yukins No. 00-1992
witnesses, including her co-defendants who testified at trial.
In other words, the trial court’s ruling deprived Petitioner of
“the right to present [her] own witnesses to establish a
defense[,] thus depriving Petitioner of a “fundamental
element of due process of law.” Washington, 388 U.S. at 19.
Accordingly, the state appellate court’s ruling that Petitioner
was merely limited in the method by which she could present
her defense was objectively unreasonable under Washington.
The same may be said of the state appellate court’s ruling
under Crane v. Kentucky, inasmuch as without the evidence
of Rockwell’s abuse, Petitioner’s defense had no foundation
and “deprive[d] [Petitioner] of the basic right to have the
prosecutor’s case encounter and ‘survive the crucible of
meaningful adversarial testing.’” Crane, 476 U.S. at 690-91
(quoting United States v. Cronic, 466 U.S. 648, 656 (1984)).
Similar to Crane, evidence of why Petitioner participated in
the talk of Rockwell’s death—that it was a means of allowing
the boys to vent their hatred for their father that had resulted
from his sexual abuse—was “central to [Petitioner’s] claim of
innocence” because without the evidence as to why the boys
hated their father, Petitioner’s defense had little chance of
succeeding. See id. at 691. Indeed, without more,
Petitioner’s “talk therapy” defense may very well have
worked against Petitioner inasmuch as the jury may have
believed that Petitioner’s sons hated their father because he
demanded that they excel in school, or because he strictly
prevented them from using drugs or alcohol. In other words,
without more, the jury may have thought the sons hated
Rockwell because he was being a good, albeit perhaps strict,
father, such that Petitioner’s approval of the boys speaking of
killing Rockwell as a form of “talk therapy” may have hurt
her defense as opposed to helping it. Without knowing the
reason behind the boys’ hatred of Rockwell, the jury may also
have believed that they hated him at Petitioner’s behest,
thereby adding credence to the prosecution’s claim that
Petitioner formed an agreement with her sons to kill
Rockwell. Thus, evidence of why the boys hated their father
and why Petitioner allowed or participated in talk of

-- 12 of 15 --

No. 00-1992 Rockwell v. Yukins 25
Rockwell’s death was “all but indispensable to any chance of
[her defense] succeeding” thereby rendering the state
appellate court’s ruling objectively unreasonable under
Crane. Id. at 691.
Davis v. Alaska provides further support as to why the state
appellate court’s ruling that Petitioner was merely limited in
the “method” by which she could present her defense was
objectively unreasonable. This is so because, as indicated, the
Court in Davis held that “the jurors were entitled to have the
benefit of the defense theory before them so that they could
make an informed judgment as to the weight to place on [the
witness’] testimony which provided a crucial link in the proof
. . . of petitioner’s act.” Id. at 317 (internal quotation marks
and citation omitted; emphasis in original). The Court
reasoned that “[t]he accuracy and truthfulness of [the key
witness’] testimony were key elements in the State’s claim
against the petitioner.” Id.
The accuracy and truthfulness of testimony provided by the
prosecution’s witnesses in connection with Petitioner’s
participation in discussions to kill Rockwell were key
elements in the state’s conspiracy case against Petitioner.
Indeed, without such evidence, the state would have been at
a loss in proving that Petitioner formed an agreement to kill.
For example, prosecution witness Peter Earl Granger, who
identified himself as a family friend, testified at length that he
had been privy to discussions that Petitioner had with her sons
about killing Rockwell. (Trial Tr. Vol. IV. at 96-117.) If
Petitioner had been allowed to cross-examine Granger as to
the context or circumstances under which these discussions to
kill arose—the boys’ hatred of Rockwell due to his alleged
sexual abuse—Granger’s statements may have served to aid
Petitioner and not the state. Similarly, co-defendant Jeffrey
Greene, the young man upon whom Rockwell had allegedly
made a sexual advance on the night in question, testified at
trial; and had Petitioner been allowed to question Greene as
to Rockwell’s history of sexual abuse on the Rockwell
children, Petitioner’s “talk therapy” defense would have
26 Rockwell v. Yukins No. 00-1992
1The majo rity’s conclusion tha t Da vis is “readily distinguishable”
flies in the face of habeas review under the unreasonable application
prong of § 2254(d)(1) inasmuch as under this prong, relief may be granted
“based on an application of a governing legal princip le to a set of facts
different from those of the case in which the principle was announced.”
Lockyer v. Andrade, 123 S. Ct. at 1174.
gained credence thus making it less “speculative.” Davis, 415
U.S. at 317-18. Accordingly, Davis is further indication that
excluding evidence of Rockwell’s sexual abuse deprived
Petitioner of the substance of her defense, making the state
appellate court’s determination that Petitioner was merely
limited in the “method” of presenting her defense objectively
unreasonable.1
B. Excluding the Evidence Under Rule 403
The majority contends that the Michigan Court of Appeals
excluded evidence of Rockwell’s sexual abuse of his sons
because the court found that the probative value of the
evidence was substantially outweighed by the danger that
unfair prejudice would have ensued had the evidence been
admitted. The majority goes on to hold that it was not
objectively unreasonable for the state appellate court to
exclude the evidence on this basis because, “[t]he evidence of
sexual abused posed a substantial danger of unfair
prejudice—a risk that the jury would be tempted to acquit
Mrs. Rockwell not because of any sense that she was innocent
of conspiring with her sons to kill Mr. Rockwell, but because
of a sense that killing would be too good for such a man.”
However, the majority’s conclusion in this regard is based on
pure speculation and what amounts to an inappropriate de
novo review of the case inasmuch as the Michigan Court of
Appeals’ two-judge majority merely stated that “[a]lthough
marginally relevant, the evidence was properly excluded
under MRE 403.” Indeed, the same be said for the majority’s
speculation that the evidence was properly excluded under
Rule 403 because it would have complicated the trial or have
tended to mislead the jury. There is nothing to support this

-- 13 of 15 --

No. 00-1992 Rockwell v. Yukins 27
2There is nothing in the trial court’s decision granting the state’s
motion in limine to indicate that the evidence was excluded because its
probative value was substantially outweighed by the danger of unfair
prejudice inasmuch as the state trial court excluded the evidence under
Michigan Rule o f Evidence 404 . (J.A. at 3 6.)
conclusion, particularly where the decision whether to admit
the evidence was decided in a motion in limine and the trial
court could easily have limited the parameters of the evidence
while cautioning the jury as to the scope of its consideration.
Michigan’s Rule of Evidence 403 is identical to Federal
Rule of Evidence 403 and provides: “Although relevant,
evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” MICH. R. EVID. 403.
Thus, the Michigan Court of Appeals may have excluded the
evidence under Rule 403 for any of the reasons provided
under the rule. Indeed, there is nothing in the state court’s
majority opinion to indicate that it excluded the evidence
because the probative value of the evidence was substantially
outweighed by the danger of unfair prejudice.2 In fact, when
considering the sentence in the state appellate court’s opinion
immediately proceeding the sentence where it is found that
the evidence was properly excluded under Rule
403—“Defendant was merely limited in the method with
which to present her defense and not deprived the opportunity
to present the same”—it logically follows that evidence was
excluded as being cumulative.
That aside, the state appellate court’s ruling that the
evidence was properly excluded under Rule 403, for whatever
reason, is objectively unreasonable inasmuch as its conclusion
that Petitioner was “merely limited in the method with which
to present her defense and not deprived the opportunity to
present the same” was in itself objectively unreasonable. See
Wiggins, 123 S. Ct. at 2538-539 (concluding that the state
28 Rockwell v. Yukins No. 00-1992
3Because the denial of her right to p resent a defense would be
“constitutional error of the first magnitude and no amount of showing of
want of prejudice would cure it,” see Davis v. Alaska, 415 U.S. 308, 318
(1974), the majority’s co ntention that such error would have been
harmless is unfounded.
court of appeals overall application of Strickland was
objectively unreasonable because 1) the court’s finding that
defense counsel had adequately investigated the petitioner’s
background was objectively unreasonable under Strickland
which 2) thereby made the state court’s subsequent deference
to counsel’s strategic choice objectively unreasonable as
well).
It is true, as the majority contends, that the Supreme Court
has held that a defendant’s right to present relevant evidence
is subject to reasonable restrictions for the purpose of
accommodating “‘other legitimate interests in the criminal
trial process.’” United States v. Scheffer, 523 U.S. 303, 308
(1998) (quoting Chambers v. Mississippi, 410 U.S. 284, 295
(1973)). To the extent that the Michigan Court of Appeals
excluded the evidence under Rule 403, for whatever reason,
it would appear that under the deferential standard set forth by
AEDPA, this Court would be in a position to conclude that
the state appellate court’s decision was not unreasonable.
However, inasmuch as the state court was objectively
unreasonable in concluding that exclusion of the evidence
merely denied Petitioner the “method” by which she could
present her defense, its conclusion that the evidence was
properly excluded under Rule 403 was objectively
unreasonable as well.3 See Wiggins, 123 S. Ct. at 2538-539;
see also Scheffer, 523 U.S. at 308 (recognizing that it is
unconstitutionally arbitrary or disproportionate to exclude
evidence if, in doing so, an accused’s weighty interest is
infringed).

-- 14 of 15 --

No. 00-1992 Rockwell v. Yukins 29
IV. Conclusion
The Constitution guarantees criminal defendants “a
meaningful opportunity to present a complete defense.”
California v. Trombetta, 467 U.S. 479, 485 (1984). Because
the exclusion of evidence regarding Rockwell’s sexual abuse
deprived Petitioner of her opportunity to be heard for
purposes of establishing a defense and claiming her
innocence, the Michigan Court of Appeals’ ruling that
Petitioner was merely limited in the “method” of presenting
her defense was objectively unreasonable, thereby making its
ruling that the evidence was properly excluded under Rule
403 objectively unreasonable as well. I therefore would
affirm the district court’s grant of Petitioner’s application for
a writ of habeas corpus, and respectfully dissent.

-- 15 of 15 --