Petition for Writ of Certiorari — Lloyd Gene Beam, Petitioner v. Michigan

Supreme Court briefJan 28, 2018

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APPENDIX TABLE OF CONTENTS

Order of the Michigan Supreme Court Denying

Application for Leave to Appeal

(October 30, 2018) .............................................. 1a

Order of the Court of Appeals of Michigan

(January 25, 2018).............................................. 2a

Opinion and Order Denying Defendant’s Motion

for Relief from Judgment

(February 27, 2017) ............................................ 3a

Order of the Michigan Supreme Court

(October 18, 1994) ............................................ 12a

Opinion of the Court of Appeals of Michigan

(November 17, 1993) ........................................ 13a

Trial Transcript, Volume II, Excerpts

(October 14, 1988) ............................................ 18a

Trial Transcript, Volume III, Excerpts

(October 17, 1988) ............................................ 24a

Trial Transcript, Volume IV, Excerpts

(October 18, 1988) ............................................ 35a

Trial Transcript, Volume V Excerpts

(October 19, 1988) ............................................ 41a

Trial Transcript, Volume VI, Excerpts

(October 20, 1988) ............................................ 46a

Trial Transcript, Volume VII, Excerpts

(October 21, 1988) ............................................ 53a

App.1a

ORDER OF THE MICHIGAN SUPREME COURT

DENYING APPLICATION FOR LEAVE TO APPEAL

(OCTOBER 30, 2018)

MICHIGAN SUPREME COURT

LANSING, MICHIGAN

________________________

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

LLOYD GENE BEAM,

Defendant-Appellant.

________________________

SC: 157432

COA: 339818

Wayne CC: 88-001546-FC

Before: Stephen J. MARKMAN, Chief Justice, Brian

K. ZAHRA, Bridget M. MCCORMACK, David F.

VIVIANO, Richard H. BERNSTEIN, Kurtis T.

WILDER, Elizabeth T. CLEMENT, Justices.

On order of the Court, the application for leave

to appeal the January 25, 2018 order of the Court of

Appeals is considered, and it is DENIED, because the

defendant has failed to meet the burden of establishing

entitlement to relief under MCR 6.508(D).

App.2a

ORDER OF THE

COURT OF APPEALS OF MICHIGAN

(JANUARY 25, 2018)

COURT OF APPEALS

STATE OF MICHIGAN

________________________

PEOPLE OF MI,

LLOYD GENE BEAM,

________________________

Docket No. 339818

LC No. 88-001546-01-FC

Before: Michael J. TALBOT, Presiding Judge,

Michael J. RIORDAN, and

Thomas C. CAMERON, Judges.

The Court orders that the delayed application for

leave to appeal is DENIED because defendant has failed

to establish that the trial court erred in denying the

motion for relief from judgment.

The motion to waive fees is GRANTED, and fees

are WAIVED for this case only.

/s/ Michael J. Talbot

Presiding Judge

App.3a

OPINION AND ORDER DENYING DEFENDANT’S

MOTION FOR RELIEF FROM JUDGMENT

(FEBRUARY 27, 2017)

STATE OF MICHIGAN, THIRD CIRCUIT COURT

CRIMINAL DIVISION

________________________

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff,

LLOYD GENE BEAM,

Defendant.

________________________

Case No. 88-01546

Before: Hon. Lawrence S. TALON, Circuit Court Judge.

For the following reasons enumerated herein,

defendant’s motion for relief from judgment is denied.

Following a jury trial, defendant, Lloyd Beam, was

found guilty of one count of first-degree murder,

MCL 750.316 and two counts of assault with intent

to murder, MCL 750.83, and one count of felonyfirearm, MCL 750.227b. Defendant was sentenced to

life imprisonment for the murder conviction, concurrent

prison terms of 30 to 50 years imprisonment for the

assault convictions and two years’ imprisonment for

the firearm conviction.

App.4a

On November 17, 1993, the Michigan Court of

Appeals affirmed defendant’s conviction and sentence.

On October 18, 1994 the Michigan Supreme Court

denied defendant’s delayed application for leave to

appeal. Defendant now files a motion for relief from

judgment pursuant to MCR 6.500, et seq. The Prosecution has not filed a response.

In order to advance an allegation in a Motion for

Relief from Judgment that could have been made in

a prior appeal or motion, defendant must demonstrate

“good cause” for failure to raise the grounds on appeal

and actual prejudice resulting from the alleged irregularities that support the claim of relief, pursuant to

MCR 6.508(D)(3)(b). The cause and prejudice standards

are based on precedent from the United States

Supreme Court.1 A court may not grant relief, if the

defendant alleges grounds for relief, other than jurisdictional defects, which could have been raised on

appeal from the conviction of the sentence or in a

prior motion for relief from judgment; unless defendant

demonstrates good cause for the failure to previously

raise the grounds and actual prejudice from the alleged

irregularities that support the claim.2

The federal courts have recognized certain claims,

which are sufficient for establishing good cause. Government interference, the inability to obtain a factual

basis for the claim, and ineffective assistance of appel-

1 Wainwright v Sykes, 433 U.S. 72; 97 S. Ct 2497; 53 L.Ed.2d

594 (1977)

2 MCR. 6.508(D)(3); People v. Brown, 196, Mich. App. 153; 492 N.W

.2d 770 (1992), People v. Watroba, 193 Mich. App. 124; 483 N.W.2d

441 (1992)

App.5a

late counsel, are all sufficient, if adequately supported, to satisfy the good cause prong.

Specifically, defendant alleges 1) ineffective assistance of trial counsel, 2) trial court abuse of discretion, 3) newly discovered evidence, and 4) miscarriage

of justice exception—newly discovered evidence.

Trial Court Abuse of Discretion

The issue regarding trial court abuse of discretion

has previously been raised and decided by the Michigan

Court of Appeals. The law is quite clear that an appellate court’s decision regarding a particular issue is

binding on courts of equal or subordinate jurisdiction

during subsequent proceedings in the same case.3

Further, under MCR 6.508(D)(2), a defendant is not

entitled to relief if his motion “alleges grounds for

relief which were decided against the defendant in a

prior appeal or proceeding under this subchapter,

unless the defendant establishes that a retroactive

change in law has undermined the prior decision.”

Here, defendant does argue that a retroactive

change in law exists pursuant to People v Stevens, 498

Mich. 162, 170-71, 869 N.W.2d 233, 242 (2015). Stevens

establishes a new rule of criminal procedure. However,

newly promulgated rules of criminal procedure do

not apply retroactively to cases on collateral review,4

and Michigan law has regularly declined to apply

new rules of criminal procedure to cases in which a

defendant’s conviction has become final.5 As such,

3 People v. Peters, 205 Mich. App. 312, 316 (1994).

4 Dorchy v. Jones, 398 F.3d 783 (2005)

5 People v. Maxson, 482 Mich. 385 (2008)

App.6a

this Court is precluded from review of this issue and

defendant is not entitled to relief from judgment

based upon a claim of trial court abuse of discretion.

Ineffective Assistance of Trial Counsel

Defendant next claims that he was denied the

effective assistance of counsel where counsel failed to

object to the introduction of defendant’s pre-arrest

silence.

The United States and Michigan Constitutions

guarantee the right to effective assistance of counsel.6

For a defendant to establish a claim that he was denied

his state or federal constitutional right to the effective

assistance of counsel, he must show that his attorney’s

representation fell below an objective standard of

reasonableness and that this was so prejudicial to

him that he was denied a fair trial.7 As for deficient

performance, a defendant must overcome the strong

presumption that his counsel’s action constituted

sound trial strategy under the circumstances.8 As for

prejudice, a defendant must demonstrate “a reasonable

probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.”9

Because strategy is a tactical decision on the

part of counsel, this Court will indulge a strong pre6 U.S. Const, Am. VI; Const. 1963, art. 1, § 20

7 Strickland v. Washington, 466 U.S. 668, 687; 104 S. Ct 2052;

80 L.Ed.2d 674 (1984); People v. Pickens, 446 Mich. 298, 303;

521 N.W.2d 797 (1994).

8 People v. Mitchell, 454 Mich. 145, 156; 560 N.W.2d 600 (1997).

9 Id. at 167.

App.7a

sumption that counsel’s conduct falls within the wide

range of reasonable professional assistance. These

standards require no special amplification in order to

define counsel’s duty to investigate.10

Ineffective assistance of counsel can take the

form of a failure to call witnesses or present other

evidence, only, if, the failure deprives the defendant

of a substantial defense.11 A defense is substantial, if

it might have made a difference in the outcome of the

trial.12 Decisions regarding what evidence to present

and whether to call or question witnesses are presumed

to be matters of trial strategy.13 This Court will not

substitute its judgment for that of counsel regarding

matters of trial strategy, nor will it assess counsel’s

competence with the benefit of hindsight.14 In order

to overcome the presumption of sound trial strategy,

a defendant must show that his counsel’s failure to

prepare for trial resulted in counsel’s ignorance of,

and hence failure to present valuable evidence that

would have substantially benefited the defendant.15

The rule that a defendant is entitled to effective assistance of counsel does not mean the defendant is

entitled to the effective assistance of counsel to the

extent that he is assured of a successful defense and

10 Strickland v. Washington, 466 U.S. 668; 104 S. Ct. 2052; 80 L.

Ed.2d 674 (1984).

11 People v. Hoyt, 185 Mich. App. 531 (1990); People v. Julian,

171 Mich. App. 153, 158-159 (1988).

12 People v. Kelly, 186 Mich. App. 524 (1990).

13 Mitchell, supra at 163.

14 People v. Barnett, 163 Mich. App. 331 (1987).

15 People v. Caballero, 184 Mich. App. 636 1990).

App.8a

acquittal.16 Finally, in making the testimonial record

necessary to support a claim of ineffective assistance

of counsel, the testimony of trial counsel is essential.17

The absence of such testimony limits this Court’s

review to what is contained in the record.18

In this case, defendant has failed to overcome the

heavy burden of proving that he received ineffective

assistance of counsel. The record does not demonstrate

that defense counsel’s performance was unreasonable

and his trial strategy and determinations will not be

substituted with the judgment of this Court. This

Court finds that defense counsel performed competently

in his representation of defendant at his trial. Therefore,

defendant’s claims are found to be without merit.

Newly Discovered Evidence

Defendant alleges the existence of newly discovered

evidence, in the form of recently received affidavits

from witnesses Simone Penn and Rose Mary Robinson.

Defendant proffers that this evidence serves as a

basis of an evidentiary hearing, evidence of defendant’s

actual innocence and constitutes grounds for reversal

and new trial.

Michigan’s Supreme Court has determined for a

new trial to be granted on the basis of newly discovered

evidence, a defendant must show that: (1) “the evidence

itself, not merely its materiality, was newly discovered;”

(2) “the newly discovered evidence was not cumulative;”

(3) “the party could not, using reasonable diligence, have

16 People v. Bohn, 49 Mich. App. 244 (1973).

17 Mitchell, supra at 168

18 People v. Darden, 230 Mich. App. 597 (1998).

App.9a

discovered and produced the evidence at trial;” and

(4) the new evidence makes a different result probable

on retrial. People v. Cress, 468 Mich. 678, 692 (2003).

Moreover, People v. Grissom, 492 Mich. 296, (2012)

held there must be an exculpatory connection between

newly discovered evidence and significantly important

trial evidence to satisfy the Cress test.19

It is equally well established that “motions for a

new trial on the ground of newly-discovered evidence

are looked upon with disfavor, and the cases where

this court has held that there was an abuse of discretion in denying a motion based on such grounds are

few and far between.”20 The rationales underlying

such disfavor are premised on both “the principle of

finality” and “the policy of the law . . . to require of

parties care, diligence, and vigilance in securing and

presenting evidence.”21 Specifically: in fairness to both

parties and the overall justice system, the law requires that parties secure evidence and prepare for

trial with the full understanding that, absent unusual

circumstances, the trial will be the one and only

opportunity to present their case. It is the obligation

of the parties to undertake all reasonable efforts to

marshal all the relevant evidence for that trial. Evidence will not ordinarily be allowed in installments.22

People v. Cress sets forth the showing a defendant

must make in order to satisfy the exception to this

rule and struck a balance between upholding the

19 People v. Grissom, supra at 312-13.

20 People v. Rao, 491 Mich. 271 (2012).

21 Id.

22 Id.

App.10a

finality of judgments and unsettling judgments in the

unusual case in which justice under the law requires a

new tria1.23

In this case, whether defendant is entitled to a

new trial on the basis of his proffered evidence is

governed by Cress, and specifically his case is resolved

by applying the interrelated first and third parts of

the Cress test, which require that defendant demonstrate that the evidence is “newly discovered” and

that he could not, using reasonable diligence, have discovered and produced the evidence at trial.24 However, after a review of the submitted evidence and

applying the Cress test, this Court finds that the affidavits will not satisfy the four part test for newly discovered evidence as set forth above and defendant

has not carried his burden of satisfying this test and

thus is not entitled to a new trial.

The presented affidavits are not of such a nature

as to render a different result on re-trial, as there

was other significant testimony proffered against the

defendant, as well as other independent indicia and

material evidence that was sufficient to prove the

guilt of the defendant.

Based on the foregoing, this Court does not find

that the submitted affidavits satisfy the definition of

newly discovered evidence or supports the defendant’s

claim. As such, this Court finds that the allegations

and evidence presented in this motion are insufficient

to warrant an evidentiary hearing, new trial or relief

from judgment.

23 Id.

24 Cress, supra at 692

App.11a

Miscarriage of Justice Exception—Newly Discovered

Evidence, Actual Innocence

Defendant next argues actual innocence and that

he can show that it is more likely than not that no

reasonable juror would have convicted him in light of

the new evidence. However, defendant cannot succeed

on this claim based on the analysis previously presented

in this opinion regarding the issue of newly discovered

evidence. As such, defendant’s claim is without merit.

Defendant has not shown “good cause” under MCR

6.508(D)(3), nor has he proven actual prejudice.

Therefore, for all the aforementioned reasons stated,

defendant’s motion for relief from judgment is hereby

DENIED.

Lawrence S. Talon

Circuit Court Judge

Dated: Feb 27, 2017

App.12a

ORDER OF THE MICHIGAN SUPREME COURT

(OCTOBER 18, 1994)

MICHIGAN SUPREME COURT

LANSING, MICHIGAN

________________________

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

LLOYD GENE BEAM,

Defendant-Appellant.

________________________

SC: 98582

COA: 111109

LC: 88-001546

Before: Michael F. CAVANAGH Chief Justice,

Charles L. LEVIN, James H. BRICKLEY,

Patricia J. BOYLE, Dorothy Comstock RILEY,

Robert P. GRIFFIN, Conrad L. MALLETT, JR.,

Associate Justices.

On order of the Court, the delayed application

for leave to appeal is considered, and it is DENIED,

because we are not persuaded that the questions

presented should be reviewed by this Court.

Boyle, J., not participating.

App.13a

OPINION OF THE

COURT OF APPEALS OF MICHIGAN

(NOVEMBER 17, 1993)

STATE OF MICHIGAN

COURT OF APPEALS

________________________

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

LLOYD GENE BEAM,

Defendant-Appellant.

________________________

No. 111109

LC No. 88-1546

Before: Clifford TAYLOR, P.J., Thomas J.

BRENNAN and Lynda L. HEATHSCOTT, JJ.

PER CURIAM.

Defendant was convicted by jury of one count of

first-degree murder, MCL 750.316; MSA 28.548, two

counts of assault with intent to murder, MCL 750.83;

MSA 28.278, and one count of felony-firearm, MCL

750.277b; MSA 28.424(2). He appeals by right raising

a multitude of claims, none of which merits reversal

of his convictions.

 Circuit Judge, sitting on the Court of Appeals by assignment.

App.14a

All of the convictions arise from shootings that

occurred in April 1987 at a drug house located in

Detroit. The theory of the defense was that defendant

was merely present on the evening in question; he

denied any actual involvement in the shootings. Defendant was granted a new trial following post-conviction

proceedings of the first trial, and the appeal now

before us concerns convictions resulting from a second

trial.

The trial court’s limiting of defense counsel’s

cross-examination of witness McAdory was not an abuse

of discretion. Evidence of McAdory’s prior convictions

was not admissible because the convictions did not

involve dishonesty, false statement, or theft. MRE

609(a); People v. Allen, 429 Mich. 558, 605-608; 420

N.W.2d 499 (1988), amended 429 Mich. 1216 (1988),

reh den sub nom People v. Pedrin, 430 Mich. 1201

(1988). Further, evidence of McAdory’s drug convictions

could not properly be used to show his bias or motivation to fabricate because the convictions are unrelated to the case under scrutiny. People v. Yarbrough,

183 Mich. App 163, 165; 454 N.W.2d 419 (1990). We

specifically note that the trial court gave defense

counsel plenty of latitude by allowing McAdory to be

questioned about any bargain he may have made

involving the unrelated criminal charges in exchange

for his testimony in this case. Accordingly, the trial

court did not prevent defendant trying to show the

witness’s bias or motive to fabricate.

We disagree with defendant’s characterization of

the trial court’s conduct, and see no instance of improper

questions or comments. Compare People v. Conyers,

194 Mich. App. 395, 404-405; 487 N.W.2d 787 (1992).

App.15a

We also disagree that the fleeting reference to

defendant’s mugshot as the means by which defendant

was identified warrants a new trial. This testimony

was not the subject of a defense objection below, and

we see no manifest injustice that will result from our

refusing to consider the issue further. People v.

Spearman, 195 Mich. App. 434, 445-446; 491 N.W.2d

606 (1992), lv den 441 Mich. 927 (1993).

Defendant objects for the first time on appeal to

the jury’s communication with court deputies. These

communications appear to have encompassed housekeeping matters only; no prejudice to defendant

occurred. In any event, defendant took no exception

to the arrangement below and so has not properly

preserved the issue. People v. France, 436 Mich. 138,

144, 162; 461 N.W.2d 621 (1990).

The prosecutor’s argument to the jury concerning

his burden of proof did not deny defendant a fair

trial. People v. Wilson, 196 Mich. App. 604, 609-610;

493 N.W.2d 471 (1992), lv den 442 Mich. 851 (1993).

Defendant also takes issue with the prosecutor’s

elicitation of a court reporter’s testimony concerning

the accuracy of the transcript of defendant’s first trial

on these charges. He characterizes the reporter’s testimony, elicited by the prosecutor in response to defendant’s contention that the transcript of the first trial

was inaccurate, as improper rebuttal on a collateral

matter. We disagree. This rebuttal testimony was introduced to disprove defendant’s testimony by directly

impeaching it, and so was within the trial court’s discretion to admit. People v. Kelly, 423 Mich. 261, 281;

378 N.W.2d 365 (1985); People v. Bettistea, 173 Mich.

App. 106, 126; 434 N.W.2d 138 (1989), lv den 437 Mich.

App.16a

868 (1990), cert den ___US ___; 111 S. Ct 1595; 113

L.Ed.2d 658 (1991).

Defendant also claims that he was deprived of

the effective assistance of counsel through a series of

mistakes which could not be explained by a sound trial

strategy. However, with the exception of the res gestae

witness issue that is addressed below, mention of

these alleged mistakes was not made at the Ginther1

hearing, for which purpose this matter was remanded

by this Court. We have nevertheless reviewed the

mistakes defendant claims his attorney made, and

conclude that they were either not mistakes or else

derived from sound, albeit unsuccessful, trial strategy.

We do not second-guess counsel on such matters. People

v. McFadden, 159 Mich. App. 796, 800; 407 N.W.2d 78

(1987), lv den 429 Mich. 853 (1987). Counsel was not

ineffective. People v. Tommolino, 187 Mich. App. 14,

17; 466 N.W.2d 315 (1991), lv den 439 Mich. 897 (1991).

Finally, defendant claims that he was denied a fair

trial because the prosecutor failed to produce or

inform defense counsel of the name and existence of

critical res gestae witnesses, and also contends that

his attorney was ineffective because he failed to

pursue the matter. We disagree. Based on the record

before us, the trial court properly concluded that the

prosecutor fulfilled his duty with regard to “Cynthia”

and the man in the brown coat. People v. Lawton, 196

Mich. App. 341, 349-350; 492 N.W.2d 927 (1992), lv

den 442 Mich. 927 (1993). We will not second-guess

counsel’s decision not to pursue these witnesses, a

decision that was valid in light of the defense presented.

1 People v. Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).

App.17a

Affirmed.

/s/ Clifford W. Taylor

/s/ Thomas J. Brennan

/s/ Lynda L. Heathscott

App.18a

TRIAL TRANSCRIPT, VOLUME II, EXCERPTS

(OCTOBER 14, 1988)

STATE OF MICHIGAN, IN THE RECORDER’S

COURT OF THE CITY OF DETROIT

________________________

PEOPLE OF THE STATE OF MICHIGAN,

LLOYD GENE BEAM,

Defendant.

________________________

Case No. 88-01546

Jury Trial Volume II

Before: Honorable Terrance K. BOYLE,

Judge of the Recorder’s Court of the City of Detroit.

[October 14, 1988 Transcript, p. 220]

Witness Officer Peter Gernand

Did anywhere in the house you recover any spent

shotgun rounds?

No, sir.

Anywhere in the house—And by spent rounds I’m

indicating shells that have already been fired.

That’s correct.

And did you find any spent rounds anywhere in

the house for a 22 rifle?

No, sir.

App.19a

MR. DONALDSON: No further questions.

THE COURT: Mr. Rice?

MR. RICE: I was just looking, your Honor.

RECROSS EXAMINATION BY MR. RICE:

Now, in the basement, isn’t it true that you found

some drug paraphernalia in addition to the blood

that you spoke about in the basement? Would you

look at your report on page two, the last paragraph?

Yes, sir, it was found in the basement.

Okay. And where was this blood—this narcotic

paraphernalia found in the basement?

On the table.

Was that close to that chair that we’re—

Just west of the chair.

And the blood was right there also?

It was on the chair cushion on the floor there.

MR. RICE: I have no further questions of this witness,

your Honor.

MR. DONALDSON: I have no further questions.

THE COURT: I just have a couple. Do you have Defense

18?

Is that the item you’ve referred to as the copper

jacket?

THE WITNESS: Yes, sir.

THE COURT: Okay. What exactly is that?

App.20a

THE WITNESS: Some bullets are made out of lead

and some are made out of lead with a copper outer

coating, real thin layer of coat. That is the copper

from the outer part of the bullet that separates

from the lead when it’s fired. Some are covered

all the way with copper jacket. Some are half

copper jacket and half lead depending on the

type of ammunition you buy.

THE COURT: Did you recover what I would call slugs,

that is the projectiles from a bullet?

THE WITNESS: That is part of a projectile from a

bullet.

THE COURT: Okay. I see. It is part of the slug itself?

THE WITNESS: Yes, sir. It’s just separated from the

lead part.

THE COURT: Okay. Give that back to you. Just so

the Jury understands, let me say something. If I

say anything wrong, you correct me, okay?

THE WITNESS: Okay, sir.

THE COURT: If we distinguish between three types

of weapons, a fully automatic, a semi-automatic

and let’s say a revolver, and that’s my purpose, and

secondly so the Jury understands what the make

up of any live round is, let me start by saying

the live round for my purposes consists of a

projectile part, what we would call a slug, which

lay people commonly call a bullet. Maybe I guess

professional people do as well.

THE WITNESS: Yes, sir.

THE COURT: Okay. It also consists of a cartridge

casing in which the explosive materials are that

App.21a

once the pin strikes it causes that projectile to go

out of the weapon, is that correct?

THE WITNESS: Yes, sir.

THE COURT: Okay. If you were then to have a

revolver, if you pulled the trigger and fired the

projectile outside, the shell casing spent would stay

inside the gun, correct?

THE WITNESS: Yes, sir.

THE COURT: Okay. If you then had an automatic

weapon, whether semi-automatic or fully automatic, when you fired the projectile out of the

gun the shell casing ejects from the weapon itself?

THE WITNESS: Yes, sir.

THE COURT: Okay. The only difference then between

that exhibit that you’ve described as nine

millimeter semi-automatic is that if it were fully

automatic, if you depress the trigger it would

continue to fire rapidly?

THE WITNESS: That’s correct.

THE COURT: In other words, you pull the trigger

once and if you kept your finger on the trigger if

it carries 26 bullets, 26 bullets would be fired out

of the gun?

THE WITNESS: That’s correct.

THE COURT: A semi-automatic would allow you to

pull the trigger and one shot would come out,

but as rapidly as you could pull the trigger shots

would continue to come out?

THE WITNESS: That’s correct.

App.22a

THE COURT: Okay. Now, one final question. On that

semi-automatic pistol or firearm, you indicated

there were 25 live rounds in the magazine and

one live round in the chamber?

THE WITNESS: That’s correct.

THE COURT: Does the magazine hold 26?

THE WITNESS: You could put 25 in, it’s marked as

25. It’s marked and it’s pretty well packed tight,

and usually they put one in the gun, they load

this up, this rack, and they put another one back

in here so they have a total of 25 here plus one

in the gun.

THE COURT: You’re saying when you found that gun,

that gun was fully loaded?

THE WITNESS: Yes, sir.

THE COURT: And it would appear not to have been

fired?

THE WITNESS: That’s correct.

THE COURT: Okay. Second question. Was that gun

operable if you know?

MR. DONALDSON: Your Honor—

MR. RICE: There’s a witness that’s gonna testify—

THE COURT: Oh, okay.

MR. RICE: —about that.

THE COURT: Okay. Good. Then I don’t have to ask

you that question. I think that’s all I have.

MR. RICE: Your Honor, one thing that I would like

to correct is that on a fully automatic weapon,

App.23a

there’s a squeezing operation in the back of the

weapon—I just happen to be a gun dealer.

THE COURT: Okay.

MR. RICE: There would be a squeezing operation

that slides in in the back that you’d have to

squeeze along with the trigger—

THE COURT: Okay.

MR. RICE: —before it would be fully automatic.

THE COURT: Okay.

MR. DONALDSON: I have no objection to that.

THE COURT: All right, fine. We just did it to make

sure you understood the terms that were being

used. Okay. And you agree with everything?

THE WITNESS: Yes, sir.

THE COURT: Okay. Good. I have nothing further.

Do you have anything further of the witness?

MR. DONALDSON: No, your Honor.

MR. RICE: I don’t.

THE COURT: Okay. You’re excused. Thank you very

much for being here.

(Witness excused.)

MR. DONALDSON: Call his partner, Officer Mark.

PAUL MARK sworn by the Court,

was examined and testified as follows:

[...]

App.24a

TRIAL TRANSCRIPT, VOLUME III, EXCERPTS

(OCTOBER 17, 1988)

STATE OF MICHIGAN, IN THE RECORDER’S

COURT OF THE CITY OF DETROIT

________________________

PEOPLE OF THE STATE OF MICHIGAN,

LLOYD GENE BEAM,

Defendant.

________________________

Case No. 88-01546

Jury Trial Volume III

Before: Honorable Terrance K. BOYLE,

Judge of the Recorder’s Court of the City of Detroit.

[October 17, 1988 Transcript, p. 347]

Witness Julie Glenn

No.

You can have a seat again, ma’am.

Did you see anybody besides John Frazier, Mennen

Hollonquest and Michael McAdory at that home

at the time of the shooting?

No.

All right. You heard the voice of Richie Rich?

Yes.

App.25a

All right. Did you have any conversation with

Mr. Frazier as far as what had occurred to him

on that date?

When I came—

MR. RICE: I’m going to object.

(By Mr. Donaldson, continuing): Just answer the

question. Did you have a conversation?

Yes.

All right. Emotionally how was he at that point?

Was he excited or—

MR. RICE: I’m going to object, the leading form of

the questions, your Honor, “emotionally how was

he”, and let her testify.

THE COURT: Okay.

MR. DONALDSON: I’ll rephrase the question.

THE COURT: Go ahead.

(By Mr. Donaldson, continuing): Could you describe

his emotional state at that point in time?

Well, he wasn’t really upset, but he said he was

bleeding, he had been shot and, you know, told

me to come calling the police. He wasn’t hollering

or all excited or anything.

All right. And did he indicate to you how he

sustained those injuries?

MR. RICE: I’m going to object, your Honor. That

would be hearsay.

THE COURT: You gonna need to do a little more

with your foundation.

MR. DONALDSON: Very well, your Honor.

App.26a

(By Mr. Donaldson, continuing): Mr. Frazier was

bleeding on or about his person?

Yes.

Okay. And he indicated that he needed help?

Yes.

And he indicated that he needed you to call the

police to get him some help?

Yes.

And you indeed went to get him the help?

Yes.

Because he couldn’t do it himself—

MR. RICE: My Lord, your Honor—Excuse me. When

are you gonna get on the witness stand?

THE COURT: No, but she’s already testified to that.

He’s summarizing what she had already testified

to.

I’m gonna save some time. When Mr. Frazier went

downstairs, he had not been injured in any way?

THE WITNESS: No.

THE COURT: When he came upstairs, about how much

time had elapsed between the time of your hearing

shots and your seeing him upstairs?

THE WITNESS: About two minutes.

THE COURT: About two minutes. When you first saw

him he was bleeding?

THE WITNESS: Yes.

THE COURT: Okay. Now, I’m gonna allow it. I mean,

I’m gonna rule that—

App.27a

So the Jury understands, ordinarily you’ve heard

throughout this thing, we don’t like attorneys

leading witnesses, you know, because when you

lead witnesses you’re trying to tell witnesses

more or less what you expect them to testify to,

and we don’t want to have that. We just want to

hear what the witness actually saw or heard.

There’s another rule that says you really shouldn’t

have hearsay testimony. So we’re not really too

interested in what she heard Johnny Frazier say

because that ordinarily would be hearsay. We’re

interested only in hearing from Mr. Frazier what

he actually saw or heard, which I trust we’ll do

later in the trial.

But there is an exception to that, and if a person

makes an excited utterance, if a person is under

such a state of startling event where they’re very

excited and they don’t have time to fabricate,

they don’t have time to even think about what

they’re saying, they’re more or less reporting

what they see, then that’s an exception.

So I’m gonna allow the witness to testify as to

what Mr. Frazier told her under these circumstances.

MR. RICE: Your Honor, let the record reflect my

objection.

THE COURT: Yeah, of course. Go ahead, Mr.

Donaldson.

(By Mr. Donaldson, continuing): What if anything

did he say relative to his being shot?

App.28a

He said, “Come call the police, I been shot”. And

so I asked him, “Who shot you?” He said, “Peanut

and Richie Rich”.

All right. Had you ever seen Peanut or Mr. Lloyd

Beam over at that Hazlett address on a prior date?

Yes.

And about how long before the April 3rd date

was that if you remember?

About a week, between a week and a week and a

half.

[...]

[October 17, 1988 Transcript, p. 448]

Witness John Frazier

I guess so. I don’t know what him and Mike was

talking about. All I can testify to is what we was

talking about.

Well, do you know if they talked that day?

I don’t know.

MR. RICE: I don’t believe I have any further questions

of this witness.

MR. DONALDSON: I have no redirect, your Honor.

THE COURT: I just have a couple questions. Mr.

Frazier, you have a little bit of difficulty with

speech—

THE WITNESS: Yes, sir.

THE COURT: —in responding to questions.

THE WITNESS: Yes.

App.29a

THE COURT: Did you have that before you were shot

or is that a result of having been shot?

THE WITNESS: I had it way before I got shot.

THE COURT: Okay.

THE WITNESS: Since I was three years old.

THE COURT: Okay. You don’t have any problem however understanding the questions, it’s just a

problem with getting the speech together to

respond?

THE WITNESS: Yes, sir.

THE COURT: Okay. You’re saying that you never

sold dope out of the house?

THE WITNESS: Yes, sir, I never sold any out there.

THE COURT: You say Michael McAdory did?

THE WITNESS: Selling it for someone.

THE COURT: Selling it for someone else. Mark?

THE WITNESS: Yes.

THE COURT: Okay. What about Hollonquest, was he

selling for Mark too?

THE WITNESS: He wasn’t selling for Mark.

THE COURT: Was he selling it at all?

THE WITNESS: I don’t think so.

THE COURT: Okay. You’re saying to the best of your

knowledge Michael McAdory was selling out of

your own residence there. Do you rent that place?

THE WITNESS: We was buying, me and my mother

was buying it.

App.30a

THE COURT: Who?

THE WITNESS: Me and my mother was buying it.

THE COURT: You and your mother were buying it,

but she didn’t stay there?

THE WITNESS: No, sir.

THE COURT: You stayed there?

THE WITNESS: Yes, sir.

THE COURT: Okay. So to the best of your knowledge,

Michael McAdory was the only person selling out

of the house and he was selling for this person

named Mark?

THE WITNESS: Yes, sir.

THE COURT: And what you received for that was

you got occasional free dope?

THE WITNESS: Yes.

THE COURT: Okay. The traffic primarily door traffic;

in other words, people come to the side door?

THE WITNESS: Yes, sir.

THE COURT: Okay. And you’re saying on prior

occasions Richie Rich had sold out of the house

as well?

THE WITNESS: Yes, sir.

THE COURT: Same arrangement; I mean, for money

or for dope?

THE WITNESS: Same arrangement. Sometimes it was

just once in a while, that’s all.

THE COURT: But you’d get a little free dope out of it?

THE WITNESS: Yes.

App.31a

THE COURT: So we understand exactly what you’re

saying now, I’m not talking about the night of

the shooting itself on April 3rd, but I’m talking

about the one and a half, two weeks before that

when there was an incident between the Beams

and Michael McAdory.

THE WITNESS: Yes, sir.

THE COURT: Okay. As far as you were concerned,

and I want your sense of it, as far as you were

concerned, you’re telling us you didn’t think you

were in difficulty with the Beams, that it was

only Michael McAdory that was in difficulty?

THE WITNESS: Not even Mike. It supposed to have

been Mark, because before he shot me I asked him

why, you know. He said y’all shot up my mama

house. Mike didn’t have nothing to do with it, I

didn’t have nothing to could with it, and Quest

didn’t either. It was Mark and them, you know.

THE COURT: So you’re saying—

THE WITNESS: We got shot for nothing.

THE COURT: Okay. You’re saying you think that

there was something going on between the Beams

and Mark?

THE WITNESS: Right.

THE COURT: Who actually was the supplier for the

dope that was sold?

THE WITNESS: Yes, sir.

THE COURT: Okay. But did you overhear either one

of the Beams tell Mr. McAdory that they were

coming back within two weeks and that he’d better

be gone or he’d have his mickeys shot or shot off?

App.32a

THE WITNESS: I didn’t hear that personally.

THE COURT: Okay. Well, somebody brought over you

said—I mean, somebody brought Mr. Hollonquest

a 32 revolver and somebody brought over a semiautomatic nine . . .

[...]

. . . selling dope there at the house, isn’t it true

that Mr. Hollonquest was selling mixed jive for a

guy named June Bug?

I wouldn’t know; it’s possible.

You do know that mixed jive was sold there in

that house, didn’t you?

Yeah.

And you’re saying—

But it wasn’t—I said possibly could have been

doing it.

You’re saying that you don’t know whether he

was or he wasn’t?

Yes.

But somebody was selling mixed jive in that

house, isn’t that right?

I wouldn’t know.

Did you know a person that they called June Bug?

Yes, I know a person they call ‘em.

And he was a dope man, wasn’t he, the person

they call June Bug was a dope man, wasn’t he?

Yeah, he was.

App.33a

And he was bringing dope to that house, wasn’t

he?

He used to bring dope. He wasn’t bringing no

dope there to my house.

MR. RICE: I have no further questions.

MR. DONALDSON: I have nothing further.

THE COURT: Yeah, I think I’m gonna keep my mouth

shut too. We don’t want to get into a whole history

of transactions here, it’ll take us even further

afield.

I want to thank you very much, Mr. Frazier, for

being here. We’re going to recess now—Wait just

a second. Eddie, you can have him wait right there

in the audience.

I have another matter that I have to take care of

at 9:00 o’clock in the morning, so I think you

should be here at about 9:25 and we’ll get started

about 9:30. Okay? Have a good night’s rest.

Oh, again, let me caution you, don’t talk about

this case to anybody, don’t let anybody talk about

it in your presence. Okay? And we’ll see you

tomorrow morning at 9:30.

(Jury excused at 4:45.)

Unless I hear some objection from somebody, the

bench warrant on Mr. Frazier is gonna be dismissed.

MR. DONALDSON: I have no objection.

MR. RICE: I don’t have any objection. I didn’t request

it in the first place.

THE COURT: I know you didn’t.

App.34a

You’re free, Mr. Frazier, to go, and I’m sorry for

the inconvenience in bringing you down. It may

have been a misunderstanding, but we just wanted

to make sure . . .

App.35a

TRIAL TRANSCRIPT, VOLUME IV, EXCERPTS

(OCTOBER 18, 1988)

STATE OF MICHIGAN, IN THE RECORDER’S

COURT OF THE CITY OF DETROIT

________________________

PEOPLE OF THE STATE OF MICHIGAN,

LLOYD GENE BEAM,

Defendant.

________________________

Case No. 88-01546

Jury Trial Volume IV

Before: Honorable Terrance K. BOYLE,

Judge of the Recorder’s Court of the City of Detroit.

[October 18, 1988 Transcript, p.477]

Witness Officer James Metiva

That’s correct.

Where was that injury if you recall?

The right shoulder.

You see any other apparent injury?

No, I didn’t.

Did you proceed into the home itself?

Yes.

App.36a

And what if anything did you observe in the

home?

Two other males lying on the floor.

Did you later determine the identity of those

persons?

Yes.

And was one of those persons Mennen Hollonquest?

He was.

And where was he situated, where was he on the

floor?

Mr. Hollonquest was in the living room, his head

was facing north, feet south, and he had a—lying

in a pool of blood coming from his head.

Would you please approach the diagram, Officer?

Now, that’s People’s Exhibit Number 1. Does that

fairly and accurately depict the floor plan of the

first floor of the Hazlett address?

Yes, sir.

And where was it that you first saw Mr. Frazier?

This being the back door, I entered here, he was

at the steps here.

[...]

REDIRECT EXAMINATION BY MR. DONALDSON:

You indicated you went next door to call homicide?

Yes, sir.

And is it the responding officer’s duty to investigate homicides upon arriving at the scene?

App.37a

Initially, yes.

But what is the purpose in calling the homicide

unit?

To handle the rest of the investigation. We do

not handle it from a precinct level.

MR. DONALDSON: I have no further questions, your

Honor.

MR. RICE: No further questions.

THE COURT: Before I ask the witness—I only have

one question. Before I ask that, has there been

any testimony from any of the evidence techs with

respect to the actual physical dimensions of that

first floor?

MR. DONALDSON: No, your Honor.

MR. RICE: No, it’s not drawn to scale.

THE COURT: Yeah, I understand. And that’s—I didn’t

think we had that.

Let me ask you this question, and answer it only

if you really have a—First of all, let me ask you

a question about yourself. Do you think that you

have fairly good judgment about spacial distances?

THE WITNESS: Yes.

THE COURT: Okay. Do you have enough of an

independent recollection of that particular house

on Hazlett that you still recall about what the

dimensions of particularly the living room was?

THE WITNESS: An estimate?

THE COURT: Yeah, estimate.

THE WITNESS: Maybe.

App.38a

THE COURT: Like say take from—You can see where

that diagram has a division between the living

room and the dining room?

THE WITNESS: Yes.

THE COURT: So from the spot right in the middle

there—In other words, if we just took the width

dimension, what I’m saying is the east/west

dimension of the living room itself, about how

far would that be?

THE WITNESS: Approximately 12 by 16.

THE COURT: Twelve by sixteen for the entire room,

entire living room?

THE WITNESS: Roughly.

THE COURT: Okay. And so the Jury can get some idea

about what that is, if you looked at that wall and

then you told me—you tell me when to stop

when you think I’ve gone the east/west dimension

of that living room to 12 feet.

THE WITNESS: Right about there.

THE COURT: Okay. So from about where I am to that

wall is about the width of that room?

THE WITNESS: Yeah.

THE COURT: And the length of that room would be

about a third longer than that?

THE WITNESS: Uh-huh.

THE COURT: Okay. Second question is, you know

where Mennen Hollonquest was found, where his

body was found?

THE WITNESS: Yes, sir.

App.39a

THE COURT: Okay. And where his head was. You also

know where the slug was found or seen?

THE WITNESS: When I saw it, yeah. I came back.

THE COURT: I understand. But assuming it was in

the same place when you came back, how far was

that slug from Mennen Hollonquest’s head?

THE WITNESS: Maybe eight inches.

THE COURT: Okay. Again, just to get the dimensions

of the room, and I’m going to the diagram now,

we’re saying from here to here is roughly about

12 feet and from here to here is roughly about 16

feet, so a six foot man literally if he were laying

this way would take up about half of the space?

THE WITNESS: Uh-huh.

THE COURT: Okay.

THE WITNESS: Right.

THE COURT: All right. That’s all I have.

MR. RICE: Yeah, but your Honor, the testimony isn’t

that way. The testimony is that the head was

laying approximately here and the feet were down

here.

THE COURT: No, I understand. But I want to give

the Jury an idea of dimensions, that’s all, and

that would be correct. If the diagram were to scale,

which it’s not, I mean you’d really see about this

kind of length and proportionately about this

kind of length for a human body. Okay?

Anything further from the attorneys?

MR. DONALDSON: No, your Honor.

App.40a

MR. RICE: I do.

RECROSS EXAMINATION BY MR. RICE:

Was there an Officer Herlotha Fields at the scene

while you were there?

There was a scout ten-one at the scene, he

helped us preserve the witnesses. I don’t remember

if he was working that unit or not.

Were you the first unit there or—

We were the first one there.

And how long after you got there was it that the

other unit got there?

[...]

App.41a

TRIAL TRANSCRIPT, VOLUME V EXCERPTS

(OCTOBER 19, 1988)

STATE OF MICHIGAN, IN THE RECORDER’S

COURT OF THE CITY OF DETROIT

________________________

PEOPLE OF THE STATE OF MICHIGAN,

LLOYD GENE BEAM,

Defendant.

________________________

Case No. 88-01546

Jury Trial Volume V

Before: Honorable Terrance K. BOYLE,

Judge of the Recorder’s Court of the City of Detroit.

[October 19, 1988 Transcript, p. 596]

Witness Michael McAdory

During his active drug business.

You never sold any drugs, period, is that right?

That’s right.

Okay. And you never have, is that right?

That’s right.

Okay. And the only thing that you’ve ever done

as far as you know was looked out for that drug

house, and when this incident occurred you were

App.42a

through with the dope business and stopped, isn’t

that correct?

No, sir.

What do you mean by that? You didn’t stop?

I hadn’t sold any drugs, but I had been around

drug activity after the shooting of me and Johnny

Frazier.

So you didn’t really learn a lesson by getting

shot over that dope house, you continued to remain

around drug activity, is that right?

MR. DONALDSON: I would say that’s a bit argumentative, your Honor.

THE COURT: Well, I think I’ll sustain it.

MR. RICE: Well, I’ll rephrase it.

THE COURT: Okay.

MR. RICE: Thank you.

(By Mr. Rice, continuing): Now, you just testified

that you were around drug activities after you

got shot and got out of the hospital, is that right?

Yes, sir.

Okay. Now, when this incident occurred you

were supposed to be in school, isn’t that right,

sir?

Yes, sir.

As a matter of fact, you turned 17 just a few

weeks after the shooting occurred while you were

still in the hospital, isn’t that right?

I was home from the hospital when I turned 17.

App.43a

You turned 17 on April the 22nd, 1987, isn’t that

right?

That’s right, sir.

Okay. And you were supposed to be in school but

you were over the dope house watching out the

window, is that right?

Yes, sir.

Now, you say that you continued after getting

shot to be around drug activity?

MR. DONALDSON: Your Honor, I’m going to object

at this point in time. I don’t understand whether

it’s relevant or not that this particular defendant

did or did not continue to be involved in the drug

trade after this particular incident. It’s clear what

Counsel’s trying to do is just paint him as a bad

person as opposed to trying to enlighten the Jury

as far as what occurred on the date in question,

and I’d ask that the Court instruct him to cease

this line of questioning.

MR. RICE: Well, your Honor—

THE COURT: Wait, wait, all right. Go ahead, Mr. Rice.

MR. RICE: I’m just simply dealing with his credibility.

THE COURT: Yeah, I know what you’re doing. But I

think it’s gone about as far, Mr. Rice—I mean,

Mr. Donaldson didn’t object except for the bench

conference in terms of the area and I allowed you

full sway and the witness has responded to it

and I think that’s about as much as you can get

out. I’m not telling you—restricting your cross, but

I think you have pretty much what you were after,

don’t you?

App.44a

MR. RICE: Well, your Honor, we’ve got his denial that

first he says that he was selling drugs for Frazier

and then he changes that after he realizes what

the—

THE COURT: No, the witness consistently has said as a

specific fact he never sold drugs if you talk about

the act of selling drugs, but he admits complicity

in being paid as a look out in drug transactions,

and he told ’ya after the time of the shooting

in this case he has indeed again been around

drug activity but he has not personally sold

drugs. Now, he’s been consistent with respect to

that. Now, what more do you want from him? He

admits that after the incident he’s been around

drug activity.

MR. RICE: Well, your Honor, if we could show that

that’s false, then I think that we should be able

to bring that out before the Jury. We have evidence

to show that that’s false.

THE COURT: No, you don’t.

MR. RICE: What—Your Honor, could we approach the

bench?

THE COURT: Sure. Tell you what, we’ll go into

chambers. You stay right where you are. Hopefully

we’ll be back in two or three minutes.

(Discussion in chambers.)

I’m gonna have to ask the Jury to step into the

Jury Room for a second. Hopefully it’ll be about

two minutes. But I have to ask you to leave.

(Jury excused at 12:02.)

App.45a

The record should reflect we had an in-chambers

discussion, and I think probably—Well, I’ll just

state the summary of it and then I’ll let the

attorneys say whatever they wish. The summary

of it really is the position of the Prosecutor is a

motion in limine was made—Let’s state the facts

again.

The facts are this witness has been convicted on

two drug cases for which he received a term of

probation.

[...]

App.46a

TRIAL TRANSCRIPT, VOLUME VI, EXCERPTS

(OCTOBER 20, 1988)

STATE OF MICHIGAN, IN THE RECORDER’S

COURT OF THE CITY OF DETROIT

________________________

PEOPLE OF THE STATE OF MICHIGAN,

LLOYD GENE BEAM,

Defendant.

________________________

Case No. 88-01546

Jury Trial Volume VI

Before: Honorable Terrance K. BOYLE,

Judge of the Recorder’s Court of the City of Detroit.

[October 20, 1988 Transcript, p. 702]

Witness John Frazier

I don’t know her whole name.

We never heard anything about—

I don’t know her whole name.

You never told the Prosecutor—

They planned to kill is in cold blood anyway.

You never told the Prosecutor this, did you?

I just found it out.

You just found it out?

App.47a

Yeah.

MR. RICE: I have no further questions.

MR. DONALDSON: I have nothing further, your Honor.

TEE COURT: I guess just with some trepidation I

want to ask one question.

Mr. Frazier, you indicated that on a prior incident

before the day of the shooting that they came

over, they robbed Michael McAdory, they took a

12 gauge shotgun, they also took a 22 rifle?

THE WITNESS: Uh-huh, they took a 30-30 carbine.

THE COURT: Oh, 30-30 carbine?

THE WITNESS: Yes, sir.

THE COURT: Okay. So it was not—They did not take

the rifle that was the exhibit here in Court? You

remember there was an exhibit here in Court, a

22 rifle that was sound by the police—Oh, there

it is, that rifle there.

THE WITNESS: Yes, sir. That rifle was still under

my mattress.

THE COURT: Under your mattress.

THE WITNESS: Then they took the other thing.

REDIRECT EXAMINATION BY MR. RICE, CONTINUING:

When you testified before, you never said anything

about them taking a 30-30?

Yes, I did. I said I was sleep on the couch.

Did you testify—

And when they took us upstairs.

App.48a

Excuse me—

It’s in the paper.

It is?

Somewhere.

I want you to show it to me then. Okay. Your

testimony starts on page three.

It started when he dropped the object on the

floor to give me a signal.

Just a moment, there’s no question on the floor.

You seem awfully anxious to testify.

No, that’s when it began.

Well, I want you to show me where in your testimony, anywhere in your testimony that you said

anything about anybody taking a 30-30 rifle

from your house.

(Pause.)

You right, it don’t say that.

Beg your pardon?

You right, it don’t say that.

Maybe it’s in that statement that you wrote out

in your own handwriting. Would you look at that

and see if you see it in there?

It’s not in there.

It’s not in there either?

No.

And neither in that transcript or this statement,

is it?

App.49a

No, no, I didn’t see it.

MR. RICE: I have no further questions.

THE COURT: Mr. Donaldson?

RECROSS EXAMINATION BY MR. DONALDSON:

I’m gonna ask you to look at page 17 of your

transcript, the transcript of your testimony at the

prior trial, and read through that page. I have a

couple questions about that.

Seventeen?

Yeah.

(Pause.)

THE COURT: No, maybe we can clean it up this way,

unless there’s some disagreement.

MR. DONALDSON: Well, I’m gonna ask him what he

was referring to there. That’s the purpose of—

THE COURT: Okay. Go ahead.

MR. DONALDSON: That’s all. One way or the other,

that’s why I’m gonna ask him the question. One

of those times when a lawyer’s gonna ask a

question he doesn’t have any idea what the answer

is.

MR. RICE: It’s called fishing expedition.

(By Mr. Donaldson, continuing): In that transcript,

you indicated to Defense Counsel in your cross

examination that it was right after the object

was dropped to the floor, is that right?

Yes, sir.

Okay. Page 17, doesn’t that refer to that time

frame?

App.50a

Are you referring to when Mike got robbed?

When the item got dropped to the floor, yes.

Yes, sir.

Okay. And is that what page 17 that I just

showed you is talking about?

Yes, sir.

Okay. When you say somebody has a gun in that,

the other guy came in with a gun, are you talking

about a handgun or what are you talking about?

MR. RICE: I’m going to object to this, your Honor.

THE WITNESS: We talking about the 357.

THE COURT: No, I’ll allow it.

(By Mr. Donaldson, continuing): And he gave the

answer that I wasn’t sure which it was, whether

he was talking about the carbine or the 357. You

talking about a handgun?

Right.

MR. RICE: Wait a minute, excuse me, wait. What are

you saying? I was talking with the Judge and you

were intervening. What did you say?

MR. DONALDSON: What did I say?

MR. RICE: Yeah, I wanna know—He’s around here

saying that this man said something about a

carbine and there’s nothing in this transcript

that says that.

THE COURT: He didn’t say that. He said you made a

reference to a gun, what was the gun being

referenced to, a revolver or a long gun, and the

witness said a 357 handgun.

App.51a

MR. RICE: All right.

MR. DONALDSON: I was just clarifying for my own

edification or understanding of what the testimony

was.

All right. I have no further questions, your Honor.

MR. RICE: No further questions.

THE COURT: Okay. I just have one. In your testimony

here in Court when you were on the stand previously, you did indicate that on that occasion

when Mr. McAdory was robbed that they asked you

where the carbine was, they asked where the

carbine was, and your response was that it was

on the couch downstairs. Is that what you said?

THE WITNESS: I just couldn’t find it in the paper,

so—

THE COURT: But that was your testimony when you

were here previously?

THE WITNESS: Yes, it was, that’s what I thought.

THE COURT: And they removed that carbine from

the house on that occasion?

THE WITNESS: Right.

THE COURT: Okay.

REDIRECT EXAMINATION BY MR. RICE:

Don’t leave now. Did you say anything wherein

you testified before about being asked where the

carbine was?

I wasn’t asked. He asked me where it was at.

App.52a

The question is, when you testified on June the

15th, 1988, did you say anything about being asked

by anyone where a carbine was?

[...]

App.53a

TRIAL TRANSCRIPT, VOLUME VII, EXCERPTS

(OCTOBER 21, 1988)

STATE OF MICHIGAN, IN THE RECORDER’S

COURT OF THE CITY OF DETROIT

________________________

PEOPLE OF THE STATE OF MICHIGAN,

LLOYD GENE BEAM,

Defendant.

________________________

Case No. 88-01546

Jury Trial Volume VII

Before: Honorable Terrance K. BOYLE,

Judge of the Recorder’s Court of the City of Detroit.

[October 21, 1988 Transcript, p. 848]

Speaker, Judge Terrance Boyle

. . . has had to rule on motions or objections by

Counsel. I must do so in accordance with the law

and the rulings do not reflect any personal opinion

about the facts in the case. Such rulings are not

evidence and you must not give any weight either

to the rulings or to the number of rulings.

Neither my comments nor my instructions are

evidence and they should not be taken as any

indication of the Court’s opinion as to how you

should determine the facts. If you have come to

believe during the course of the trial that the

App.54a

Court is telling you how to decide this case, then

you must disregard that opinion. You are the sole

judges of the facts and you alone have the solemn

duty and obligation to decide this case based

exclusively on the evidence presented in this

case.

Any statements or arguments of the attorneys

are not evidence but are only intended to assist

you in understanding the evidence and the theory

of each party. The questions which attorneys ask

witnesses are not themselves evidence. It is the

answers of witnesses which provide evidence.

You should disregard anything said by an attorney

which is not supported by the evidence or by your

own general knowledge and experience. However,

you should use your own general knowledge and

experience in judging . . .

[...]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.