Kevin Lee Chittick v. Blaine Lafler, Warden

NOT RECOMMENDED FOR PUBLICATION
File Name: 13a0157n.06
No. 11-1784
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KEVIN LEE CHITTICK,
Petitioner-Appellant,
v.
BLAINE LAFLER, WARDEN,
Respondent-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN
Before: SILER, SUTTON and McKEAGUE, Circuit Judges.
SILER, Circuit Judge. The petitioner, Kevin Chittick, appeals the district court’s order
denying his application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his state
court convictions for criminal sexual conduct. He claims that his Sixth Amendment right to counsel
was violated when law enforcement seized attorney-client privileged documents and shared those
documents with the prosecutor. He also claims that counsel ineffectively remedied the breach of the
attorney-client privilege and failed to protect him from inadmissible other acts evidence at trial. We
find no error and AFFIRM.
I.
Chittick, a deputy sheriff, was convicted by a jury on fourteen counts of third-degree sexual
conduct, pursuant to Mich. Comp. Laws § 750.520d, five counts of fourth-degree criminal sexual
conduct, pursuant to Mich. Comp. Laws § 750.520e, and one count of willful neglect of duty by a

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public officer in violation of Mich. Comp. Laws § 750.478. Chittick’s conduct involving two minor
victims between 2001 and 2002 led to these convictions.
In 2004, during the course of investigating the charges against Chittick, a Michigan State
Police detective executed a search warrant at Chittick’s home and seized his computer. Crime lab
computer specialists found password-protected documents on the computer containing Chittick’s and
his wife’s versions of his relationship with one of the minor victims, which were prepared for the
benefit of his attorney. The prosecutor received and reviewed the information contained in the
documents.
In 2005, on the first day of trial, defense counsel learned that the computer had been seized
by state police and that the prosecutor had reviewed the attorney-client privileged documents. By
agreement, defense counsel and the prosecution remedied the invasion of the attorney-client privilege
by stipulating that the prosecutor would not use any of the privileged information at trial. The trial
court accepted the remedy.
During the trial, Chittick’s wife, Angela Chittick, testified as a defense witness. On cross-
examination, the prosecutor asked Angela if her younger sister ever complained about Chittick.
Angela said that her sister once told her that he made fun of her underwear, and that on another
occasion he placed his hand on her belly but took it away when Angela entered the room. Angela
also testified on cross-examination that a teenage girl stayed with them for a brief time. Lastly, the
prosecutor elicited on cross-examination that during Chittick’s first date with Angela, who was 18
at the time, he tried to remove her bra. Defense counsel did not object to this line of questioning.
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Chittick’s direct appeal to the Michigan Court of Appeals was rejected. People v. Chittick,
No. 264033, 2007 Mich. App. LEXIS 750, at *1 (Mich. Ct. App. Mar. 20, 2007). The Michigan
Supreme Court denied leave to appeal. People v. Chittick, 740 N.W.2d 297 (Mich. 2007). Chittick
filed a petition for a writ of habeas corpus in the federal district court in 2008. Chittick v. Lafler, No.
08-14910, 2011 U.S. Dist. LEXIS 56342, at *1 (E.D. Mich. May 26, 2011). After the district court
denied relief, it certified for appeal Chittick’s claim that his Sixth Amendment right to counsel was
violated. Id. at *36.
II.
Habeas relief may not be granted with respect to any claim adjudicated on the merits in a
state court unless the adjudication:
(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; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)–(2). We review a district court’s legal conclusions in a habeas proceeding
de novo and its factual findings for clear error. Onifer v. Tyszkiewicz, 255 F.3d 313, 315 (6th Cir.
2001). Ineffective assistance of counsel claims are mixed questions of law and fact, which we also
review de novo. Strickland v. Washington, 466 U.S. 668, 698 (1984).
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III.
A.
Chittick argues that his Sixth Amendment right to counsel was violated when, pursuant to
a search warrant, police seized his personal computer containing information protected by the
attorney-client privilege and shared those documents with the prosecuting attorney. The State argues
that this claim is procedurally defaulted, because the Michigan Court of Appeals applied a procedural
bar to review of the claim. See Chittick, 2007 Mich. App. LEXIS 750, at *2. The district court
declined to address the issue of procedural default and instead addressed the merits of Chittick’s
claim. Chittick, 2011 U.S. Dist. LEXIS 56342, at *22. We do the same.
The Sixth Amendment assures fairness in the adversary criminal process. United States v.
Cronic, 466 U.S. 648, 656 (1984). Where the Sixth Amendment is violated, a “serious risk of
injustice infects the trial itself.” Cuyler v. Sullivan, 446 U.S. 335, 343 (1980). Thus, government
actions which obtain defense strategy information are improper under the Sixth Amendment. See
Weatherford v. Bursey, 429 U.S. 545, 554–56 (1977). Here, the police purposefully opened
documents which they knew contained privileged attorney-client information, and shared those
documents with the prosecutor. See Chittick, 2011 U.S. Dist. LEXIS 56342, at *24; cf.
Weatherford, 429 U.S. at 558 (where undercover law enforcement agent kept the information he
learned at meetings with the defendant and defendant’s attorney to himself and at no time discussed
or passed on to his superiors or to the prosecuting attorney any details or information regarding
defendant’s trial plans or strategy, no Sixth Amendment violation occurred). Thus, Chittick has
established the purposeful intrusion required to demonstrate a constitutional violation.
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However, Chittick may only prove a Sixth Amendment violation if he can also show
prejudice. See Weatherford, 429 U.S. at 552 (“[W]ith respect to the right to counsel, it is that when
conversations with counsel have been overheard, the constitutionality of the conviction depends on
whether the overheard conversations have produced, directly or indirectly, any of the evidence
offered at trial.”); Sinclair v. Schriber, 916 F.2d 1109, 1112 (6th Cir. 1990) (“In Weatherford, the
Supreme Court held that in order to establish a violation of the Sixth Amendment right to counsel
ensuing from government surveillance, a claimant must not only show that conversations with an
attorney were surreptitiously monitored, but must also show that the information gained was used
to prejudice the claimant’s defense in his criminal trial.”).
Chittick proffers only the prosecution’s cross-examination of his wife as evidence that the
prosecution used the attorney-client privileged material at trial. There is no need for us to determine
whether the information elicited from his wife’s testimony relates to the privileged documents
reviewed by the prosecutor because privileged materials may be used to impeach a witness. Cf.
Michigan v. Harvey, 494 U.S. 344, 350-51 (1990). In addition to his wife’s testimony, Chittick
enumerates in his brief various hypothetical acts which the prosecution could have engaged to
remedy the alleged breach of the attorney-client privilege, but this list is no substitute for a showing
of prejudice, which is Chittick’s burden to prove. See Sinclair, 916 F.2d at 1112. The district court
correctly concluded that Chittick fails to establish prejudice because he “failed to identify any aspect
of the trial affected by the breach of the privilege” and because “the prosecutor did not introduce any
evidence at trial that was improperly obtained.” Chittick, 2011 U.S. Dist. LEXIS 56342, at *26.
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B.
Chittick challenges the effectiveness of his trial counsel. The familiar two-prong test set
forth in Strickland, 466 U.S. at 687, governs our analysis. To establish ineffective assistance of
counsel, a defendant must show (1) that his trial counsel’s performance was deficient, and (2)
that the deficient performance prejudiced the defendant. Id. Under the second prong, which
governs the issue, Chittick must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Courts
are not required to conduct analyses under both prongs of the inquiry. Id. at 697 (“If it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that
course should be followed.”).
Chittick’s claim fails for lack of prejudice. First, he has not demonstrated a reasonable
probability that a challenge to his wife’s testimony would have changed the outcome of the
proceedings. Chittick argues that he was denied a fair trial by the admission, during the cross-
examination of his wife, of hearsay as well as other acts evidence for which the prosecutor was
required to file, before trial, a notice of intent under Michigan Rule of Evidence 404(b)(2).
However, his wife’s testimony was not an admission of “crimes, wrongs, or other acts’” as
contemplated by Rule 404(b) nor was the testimony hearsay, as it was not offered to prove the
truth of the matter asserted. See Mich. R. Evid. 404 (b); id. at R. 801(c).
Likewise, Chittick has failed to demonstrate any prejudice resulting from his counsel’s
alleged failure to protect him from the admission of attorney-client privileged information at
trial. There is no indication that the trial was “fundamentally unfair or unreliable” as a result of
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counsel’s strategic choice to enter into a stipulation with the prosecutor. Kinnard v. United
States, 313 F.3d 933, 935 (6th Cir. 2002) (“A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”). Rather, counsel identified the Sixth Amendment
deprivation and tailored, along with the trial court, “relief appropriate in the circumstances to
assure [Chittick] the effective assistance of counsel and a fair trial.” United States v. Morrison,
449 U.S. 361, 365 (1981). Furthermore, counsel admitted before the trial court that the
privileged documents contained “self-serving statements” not likely admissible at trial. Chittick,
2007 Mich. App. LEXIS 750, at *4. Chittick has not demonstrated a reasonable probability that
the remedy which his counsel proposed, and the stipulation into which the prosecutor entered,
was to his detriment. Chittick offers no examples of the prosecutor’s alleged use of privileged
information, except his wife’s testimony, which we have already determined did not result in
prejudice. He has failed to demonstrate a reasonable probability that, but for counsel’s alleged
errors, the result of his proceedings would have been different.
AFFIRMED.
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