Petition for Writ of Certiorari — Gary Patrick Lewis, Petitioner v. Michigan

Supreme Court briefOct 11, 2019

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No. _____________

In The

SUPREME COURT OF THE UNITED STATES

_________________

GARY PATRICK LEWIS,

Petitioner,

MICHIGAN,

Respondent.

__________________

On Petition for a Writ of Certiorari

to the Supreme Court of Michigan

__________________

APPENDIX

TO PETITION FOR A WRIT OF CERTIORARI

__________________

ADRIENNE N. YOUNG

JACQUELINE J. MCCANN*

STATE APPELLATE DEFENDER OFFICE

3300 PENOBSCOT BUILDING

645 GRISWOLD

DETROIT, MICHIGAN 48226

(313) 256-9833

ayoung@sado.org

jmccann@sado.org

*Counsel of Record.

Index of Appendices

APPENDIX A – Michigan Supreme Court Order After Remand 5-17-19

APPENDIX B – Court of Appeals Opinion on Remand 11-2-17

APPENDIX C – Michigan Supreme Court Opinion 7-31-17

APPENDIX D – Court of Appeals Unpublished Opinion 7-21-16

APPENDIX E – Preliminary Examination Transcript

APPENDIX A

Michigan Supreme Court Order After Remand 5-17-19

[?d?(Ç?ij'lf?[Q)

Order

MAY 2 2 2019

May 17, 2019

§upreme Court

lLansing9 Michigan

M:icinigann

Bridget M. McCormack,

Chief Justice

APPELLATE DEFENDER

156806

OFFICE

David F. Viviano,

SC: 156806

Stephen J. Markman

Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

Megan K. Cavanagh,

COA: 325782

Justices

CC:

14-006454-FH

Wayne

GARY PATRICK LEWIS,

Defendant-Appellant.

Chief Justice Pro Tem

On order of the Court, the applicationfor leave to appeal the November 2, 2017

judgment of the Court of Appeals is considered, and it is DENIED, because we are not

persuaded that the questions presented should be reviewed by this Court.

McCORMACK, C.J. (concurring).

I concur in the order denying leave to appeal and write separately to highlight two

errors I believe the Court of Appeals made in its publishedopinion and to reiterate my

hope that the United States Supreme Court will clarify the proper application

Court

that

the

cannot

current

the

Given

context.

law,

say

harmless-error analysis in this

of Appeals erred in its conclusion that the error here was harmless. I reluctantly agree

with the order denying leave to appeal.

I think the Court of Appeals' analysis of the first factor that Coleman v Alabama,

399 US 1 (1970), identifies as important to the role for counsel at a preliminary

examination is flawed. The•first Coleman factor is "the lawyer's skilled examination and

cross-examination of witnesses may expose fatal weaknesses in the State's case that may

lead the magistrate to refuse to bind the accused over." Id. at 9. The panel reasoned that

"fg]iven that defendant was convicted at trial on the basis of sufficient evidence, the

possibility that counsel could have detected preclusive flaws in the prosecution's

322 Mich App 22, 31

probable-cause showing is moot." People v Lewis (On Remand),

not pennit a court to

does

that

Coleman

explained

(2017). But in our prior opinion,

he suffered no harm

presume that if a defendant is ultimately convicted after a fair trial,

from the deprivation of counsel at the preliminary examination. People v Lewis, 501

Mich 1, 11 (2017). While the Court of Appeals cited -that passage in its analysis, it

nonetheless stated that the fact of the conviction "is relevant to our consideration of the

first Coleman factor." Lewis (On Remand), 322 Mich App at 31. Whatever. the

Appendix A 1

correctness of that statement (and I express no opinion on it), the panel then said that the

defendant's conviction made this factor moot. That is, the Court of Appeals seemingly

made the fact of the conviction at trial dispositiveto its analysis of the first factor, which

this Court said is not permissible.

The panel's analysis of the second Coleman factor is also flawed. That factor is

"the skilled interrog.ation of witnesses by an experienced lawyer can fashion a vital

at the trial, or

impeachment tool for use in cross-examination of the State's witnesses

not

does

who

appear at the

preserve testimony favorable to the accused of a witness

trial." Coleman, 399 US at 9. The Court of Appeals relied heavily on the fact that trial

counsel was given a transcript of the preliniinary examination in concluding that this

factor weighed in favor_ of finding the err_or harm!?ss.:_ But this misses the point: a

transcript of a preliminary examination conducted without the benefit of defense counsel

doesn't address the problem that the prosecution's witnesses were not cross..:examined at

that hearing. And like the panel's analysis of the first factor, this reasoning would result

in finding error harmless in every case conducted in absence of defense counsel:

preparing a transcript isn't the problem; it's that the transcript is unhelpful. Thus,

counsel's possession of the preliminary examination transcript is entitled to little weight

in the analysis.

that any

Despite these flaws, I believe the Court of Appeals correctly concluded

error in depriving the defendant of counsel at the preliminary examination was harmless.

The panel correctly analyzed the remaining Coleman factors and specific circumstances

of this case. But I reach this conclusion largely because Coleman takes "the two perhaps

most intuitive options for assessing harm off the table," Lewis, 501 Mich at 12, leaving

reviewing courts without much guidance about how to apply harmless-error review in

this context. Guidance from the United States Supreme Court would be welcome. I hope

that Court will either provide such guidance or clarify "whether the Coleman harmlesserror review remains a sustainable rule when a defendant is denied counsel at a

-preliminary examinati_on." L_ej,j¿_i.5.',_5,Ql Mich at H5 (McCORMA5K_J., concurring).

BERNSTEIN and CLEMENT, JJ., join the statement of McCORMACK, C.J.

The Court of Appeals cited Coleman in support of its analysis of this factor, but its

citation was to Justice White's concurring opinion, which of course is nonbinding. Lewis

(On Remand), 322 Mich App at 31, citing Coleman, 399 US at 18 (White, J., concurring).

I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoingis a true and complete copy of the order entered at the direction of the Court.

¿==-?

May 17,2019

a0514.

Clerk

Appendix A 2

APPENDIX B

Court of Appeals Opinion on Remand 11-2-17

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

FOR PUBLICATION

November 2, 2017

9:00 a.m.

Plaintiff-Appellee,

No. 325782

Wayne Circuit Court

LC No. 14-006454-FH

GARY PATRICK LEWIS,

Defendant-Appellant.

ON REMAND

Before: TALBOT, C.J., and MURRAY and SERVITTO, JJ.

PER CURIAM.

Defendant was convicted by a jury of four counts of third-degree arson, MCL 750.74,

and one count of second-degree arson, MCL 750.73(1). The trial court sentenced defendant, as a

fourth habitual offender, MCL 769.12, to 17 to 30 years’ imprisonment for each conviction. On

appeal, we vacated defendant’s convictions and remanded for a new trial on the basis that the

denial of counsel at defendant’s preliminary examination amounted to a structural error requiring

automatic reversal. People v Lewis, unpublished opinion per curiam of the Court of Appeals,

issued July 21, 2016 (Docket No. 325782), pp 3, 10, vacated in part and remanded ___ Mich ___

(2017). However, the Michigan Supreme Court reversed our judgment and remanded for

application of the harmless-error standard. People v Lewis, ___ Mich ___, ___; ___ NW2d ___

(2017) (Docket No. 154396); slip op at 8, 11. For the reasons stated herein, we affirm

defendant’s convictions, holding that any error resulting from the denial of counsel at his

preliminary examination was harmless, but remand to the trial court for a determination

regarding whether, in light of People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), it

would have imposed a materially different sentence.

I. FACTS AND PROCEDURE

In our earlier opinion, we stated the relevant facts as follows:

At the start of defendant’s preliminary examination, the trial court asked

defendant to state his full name on the record. In response, defendant stated, “I’m

not talking. I don’t have no attorney. This man disrespecting me. You all

violating my rights. I’m through with it. I’m through with it.” The trial court

then stated that it had appointed lawyers for defendant on multiple occasions, that

-1Appendix B 1

defendant had indicated his displeasure with each of the lawyers that were

appointed, and that defendant had in fact grieved each of the prior counsel.

In light of this, the trial court found that defendant had “elected that he

would prefer not to have a lawyer to represent him and we’re going to proceed.”

In response, defendant stated, “I never said that.” The trial court then reiterated

that the preliminary examination would proceed and that defendant’s former trial

counsel, Brian Scherer, would act as stand-by counsel.

As the prosecution called Mollison Folson to testify, defendant stated,

“I’m not going to participate in this legal bullshit.” The court then warned

defendant that he would be expelled from the courtroom if he continued his

outburst. Defendant continued to interrupt the court while using profane

language, so the trial court expelled defendant from the courtroom. After

defendant was removed, the trial court told Scherer that he was free to leave as

well. The court then continued with the preliminary examination, and after

hearing testimony from six witnesses, the trial court held that there was sufficient

probable cause to bind defendant over for trial. [Lewis, unpub op at 1-2.]

As provided above, defendant was subsequently convicted of four counts of third-degree

arson and one count of second-degree arson following a jury trial, and appealed as of right.

Bound by Michigan caselaw holding that the complete deprivation of counsel at a critical stage

of a criminal proceeding requires automatic reversal, we concluded in our prior opinion that

because defendant was denied counsel at his preliminary examination, a critical stage of the

proceedings, reversal of his convictions was required. Lewis, unpub op at 3, 10. However, the

two-judge majority in that opinion, citing the United States Supreme Court’s decision in

Coleman v Alabama, 399 US 1, 11; 90 S Ct 1999; 26 L Ed 2d 387 (1970), expressed the belief

that the deprivation of counsel at a critical stage of a criminal proceeding should not always

require reversal, and that harmless-error review should apply where the deprivation does not

affect the entire proceedings. Id. at 4-5.

The Supreme Court agreed, relying on Coleman to reverse our judgment and hold that a

claim of error based on the deprivation of counsel at a preliminary examination is subject to

harmless-error review. Lewis, ___ Mich at ___; slip op at 7-8, 11.1 It then directed us, on

remand, to consider “the substantive criteria or the procedural framework that should attend”

harmless-error review, and apply that standard to the facts at issue. Id. at ___; slip op at 10-11.

Specifically, our Supreme Court stated: “Although it is short on explanation for its remedy, the

[Coleman] Court plainly held that the deprivation of counsel at a preliminary examination is

subject to harmless-error review under the federal Constitution. Accordingly, we apply that

decision . . . .” Lewis, ___ Mich at ___; slip op at 7 (citations omitted).

-2Appendix B 2

II. HARMLESS-ERROR REVIEW

With regard to the procedural framework that should be applied, for preserved2 nonstructural constitutional errors, the prosecution must prove that the error was harmless beyond a

reasonable doubt. People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999). However,

determining the substantive criteria that should attend harmless-error review under these

circumstances – where a defendant has been denied counsel at a preliminary examination – is

more difficult. The Supreme Court admitted that it was uncertain “about just how a court is to

evaluate the effect of this error on a verdict,” Lewis, ___ Mich at ___; slip op at 8, but provided

“guideposts,” stating:

At each extreme, we know what is not permitted. At one end, a court may not

simply presume, without more, that the deprivation of counsel at a preliminary

examination must have caused the defendant harm. Although consistent with the

presumption accorded to the complete denial of counsel at some other stages of a

criminal proceeding, such an approach would be treating the error as structural – a

result foreclosed by Coleman. Neither, however, may we presume the opposite. .

. . Coleman does not permit us to presume that a defendant, who was ultimately

convicted at an otherwise fair trial, suffered no harm from the absence of counsel

at his preliminary examination. And that is true even if no evidence from the

preliminary examination was used at trial, and even if defendant waived no rights

or defenses because of the absence of counsel at the preliminary examination.

[Id. at ___; slip op at 9 (citations omitted).]

Thus, contrary to the dicta in our earlier opinion, Lewis, unpub op at 3-5, we cannot conclude

that the error here was harmless simply because defense counsel conceded that no evidence from

the preliminary examination was used at trial, and no rights or defenses were waived by

defendant’s lack of participation in the preliminary examination.

The United States Supreme Court’s decision in Coleman provides further guidance.

There, the Court identified four reasons that having counsel at a preliminary hearing may be

essential to protecting a defendant’s rights:

First, the lawyer’s skilled examination and cross-examination of witnesses may

expose fatal weaknesses in the State’s case that may lead the magistrate to refuse

to bind the accused over. Second, in any event, the skilled interrogation of

witnesses by an experienced lawyer can fashion a vital impeachment tool for use

in cross-examination of the State’s witnesses at the trial, or preserve testimony

favorable to the accused of a witness who does not appear at the trial. Third,

trained counsel can more effectively discover the case the State has against his

client and make possible the preparation of a proper defense to meet that case at

In our prior opinion, we concluded that, despite defendant’s conduct at the preliminary

examination, defendant did not forfeit his argument regarding the denial of counsel because the

prosecution failed to raise the issue on appeal. Lewis, unpub op at 3 n 4.

-3Appendix B 3

the trial. Fourth, counsel can also be influential at the preliminary hearing in

making effective arguments for the accused on such matters as the necessity for

an early psychiatric examination or bail. [Coleman, 399 US at 9.]

These factors have been used by other courts to determine whether the deprivation of counsel at

a preliminary hearing amounted to harmless error. See, e.g., State v Canaday, 117 Ariz 572,

575-576; 574 P2d 60 (1977); State v Brown, 279 Conn 493, 510; 903 A2d 169 (2006);3 People v

Eddington, 77 Mich App 177, 190-191; 258 NW2d 183 (1977).

Additionally, in her concurring opinion in this case, Justice McCormack opined that

counsel’s presence at the preliminary examination may be essential to negotiating plea deals.

Lewis, ___ Mich at ___ (MCCORMACK, J., concurring); slip op at 2. And defendant suggests, in

his brief on remand, 4 that counsel could discover the need to file pretrial motions at a preliminary

examination. Based on the foregoing, we conclude that to determine whether the denial of

counsel at a preliminary examination amounts to harmless error, courts must consider the factors

discussed in Coleman, as well as any other factors relevant to the particular case, including the

lost opportunity to negotiate a plea deal, and any prejudice resulting from the failure to file

pretrial motions.

III. APPLICATION OF HARMLESS-ERROR REVIEW TO THE FACTS

Turning to the specific facts at issue and the arguments raised by defendant on remand,

we hold that any error resulting from the denial of counsel at defendant’s preliminary

examination was harmless beyond a reasonable doubt.

Looking to the first Coleman factor, defendant appears to argue that counsel could have

objected to his bindover on the basis that no evidence was presented regarding the “condition of

the buildings” he was accused of damaging, or that the house on Russell Street qualified as a

dwelling. However, a review of the preliminary examination transcript and the relevant law

makes clear that no such arguments by counsel would have altered the court’s decision to bind

defendant over for trial. Defendant fails to explain what he means by the “condition of the

buildings,” but assuming that he is referring to the element of both second- and third-degree

arson requiring that a defendant burn, damage, or destroy buildings or dwellings by fire or

explosives to be convicted, MCL 750.73(1); MCL 750.74(1)(a), the prosecution presented

testimony at the preliminary examination regarding fires at each address. Further, defendant was

convicted of third-degree arson for 20527 Russell Street, which in contrast to second-degree

We recognize that caselaw from foreign jurisdictions is not precedentially binding in Michigan,

but it may be considered persuasive. People v Blanton, 317 Mich App 107, 122 n 6; 894 NW2d

613 (2016).

On remand, this Court granted defendant’s motion to file a supplemental brief. People v Lewis,

unpublished order of the Court of Appeals, entered August 28, 2017 (Docket No. 325782).

-4Appendix B 4

arson (requiring that damage be done to a dwelling for conviction), requires only that damage be

done to buildings or structures.5

Moreover, this Court has held that “the presentation of sufficient evidence to convict at

trial renders any erroneous bindover decision harmless.” People v Bennett, 290 Mich App 465,

481; 802 NW2d 627 (2010). Although “Coleman does not permit us to presume that a

defendant, who was ultimately convicted at an otherwise fair trial, suffered no harm from the

absence of counsel at his preliminary examination[,]” Lewis, ___ Mich at ___; slip op at 9, it is

relevant to our consideration of the first Coleman factor. Given that defendant was convicted at

trial on the basis of sufficient evidence, the possibility that counsel could have detected

preclusive flaws in the prosecution’s probable-cause showing is moot.

Defendant’s arguments with regard to the second Coleman factor are no more persuasive.

He asserts that he had no opportunity for cross-examination at the preliminary examination

because the court precluded his participation, and that as a result, witnesses were never asked to

provide a description of the person they saw committing the crimes, making impeachment

impossible. But “[a] defendant’s opportunity to cross-examine witnesses at a preliminary

hearing is only a limited one.” Canaday, 117 Ariz at 576. See also Adams v Illinois, 405 US

278, 282; 92 S Ct 916; 31 L Ed 2d 202 (1972) (recognizing limitations on the use of preliminary

hearings for discovery and impeachment purposes). And although defendant was unrepresented

at the preliminary examination, he was appointed new counsel at the next hearing, who it appears

was given a transcript of the preliminary examination. This newly-appointed counsel could have

used the transcript for impeachment at trial. See Thomas v Kemp, 796 F2d 1322, 1327 (CA 11,

1986) (concluding that the absence of counsel at a preliminary hearing was harmless error where,

inter alia, the defendant’s “counsel had access to the transcript of the preliminary hearing

because he used the transcript to impeach the testimony of the State’s main witnesses”).

Further, defendant’s argument that testimony about the perpetrator’s identity at the

preliminary examination would have been useful at trial for impeachment purposes, is purely

speculative. Defendant references inconsistencies between the witnesses’ descriptions at trial,

but the jury heard this testimony, as well as defense counsel’s closing argument calling attention

to the inconsistencies, and still voted to convict. See Ditch v Grace, 479 F3d 249, 257 (CA 3,

2007) (concluding “that the denial of counsel ultimately did not have a substantial or injurious

effect on the jury’s ultimate verdict” because “[t]here was substantial evidence of guilt, and the

jury was well-apprised of the weaknesses in [the witness’s] identification testimony[,]” despite

the fact that trained counsel could have conducted a cross-examination of the witness at the

Specifically, MCL 750.74 provides, in pertinent part:

(1) Except as provided in sections 72 and 73, a person who does any of the

following is guilty of third degree arson:

(a) Willfully or maliciously burns, damages, or destroys by fire or explosive any

building or structure, or its contents, regardless of whether it is occupied,

unoccupied, or vacant at the time of the fire or explosion.

-5Appendix B 5

preliminary hearing to expose weaknesses in his testimony and for use as an impeachment tool at

trial). 6

With respect to the third Coleman factor, defendant argues that his inability to crossexamine witnesses at the preliminary examination hampered his pretrial discovery, but fails to

identify any evidence used at trial that counsel could have discovered by virtue of participation

in the preliminary examination. And neither the fourth Coleman factor, nor the additional factor

identified by Justice McCormack, affect our determination that the deprivation of counsel at

defendant’s preliminary examination was harmless error. Defendant does not argue that counsel

could have requested an early psychiatric evaluation, and the record establishes that he was

referred to the Forensic Center before the preliminary examination. Further, defendant lost no

opportunity to negotiate a plea deal because he lacked counsel. At the August 8, 2014 hearing,

the prosecutor stated that the plea deal offered to defendant would be available until the final

conference.

Defendant’s additional arguments related to the specific circumstances of his case also

fail. He asserts first that he was denied the defense of misidentification because counsel could

have moved for a corporeal lineup at the preliminary examination based on the fact that Folson

had identified someone other than defendant in a photographic lineup. Folson was not, however,

the only witness who identified defendant at the preliminary examination. Lieutenant Jamel

Mayers testified that he apprehended defendant, who matched the description provided by

Folson, and Lieutenant Daniel Richardson testified that he also apprehended defendant, who

matched the description provided by Ronnie Blanton. Moreover, defendant merely speculates

that the result of a corporeal lineup would have been favorable to his defense. But as we

concluded in our earlier opinion, the use of a photographic lineup instead of a corporeal lineup

did not affect defendant’s substantial rights. Lewis, unpub op at 6-7.

Defendant also argues that counsel could have questioned the officers about the lighters

and moved to suppress them if they were lost, asserting that the lighters were incapable of

starting a fire. However, he fails to explain what such questioning would have revealed, and it is

unclear how or why counsel would have moved to suppress lost items. Moreover, counsel

appointed for defendant at the next hearing could have filed a motion to suppress such evidence

before trial, but chose not to do so. And regardless, no prejudice could have resulted from the

failure to suppress the lighters because they were not introduced at trial. Instead, photographs of

the lighters were introduced, and defendant does not argue that the photographs were improperly

admitted.

We note further that, as in Canaday, defendant was appointed new counsel at the hearing

after the preliminary examination. Neither his newly appointed counsel, nor his counsel at trial,

ever argued that defendant was prejudiced by the denial of counsel at the preliminary

examination. This suggests that neither defendant, nor his attorneys, “immediately perceived

We note that, unlike in Ditch, it cannot be said that the evidence of guilt at trial was substantial.

The only evidence linking defendant to the crimes, other than the identifications, were the

lighters found in his pocket. Nonetheless, the jury found defendant guilty.

-6Appendix B 6

any prejudice” stemming from defendant’s failure to be represented at the preliminary

examination. Canaday, 117 Ariz at 575.

Based on the foregoing, we hold that any error resulting from the denial of counsel at

defendant’s preliminary examination was harmless beyond a reasonable doubt. Accordingly, we

affirm his convictions.

IV. SENTENCING

Because we conclude that the deprivation of counsel at the preliminary examination was

harmless error, we must address the sentencing issue raised by defendant on appeal. See Lewis,

___ Mich at ___; slip op at 11 (“If the Court of Appeals concludes that the error was harmless, it

must also address the sentencing issue raised in defendant’s brief in that Court.”). Prior record

variable (PRV) 5 was scored correctly, but defendant was sentenced before our Supreme Court

decided Lockridge, and the facts used to score offense variable (OV) 9 were not found beyond a

reasonable doubt by the jury or admitted by defendant. Thus, the mandatory application of the

guidelines at sentencing violated defendant’s Sixth Amendment rights. And because the scoring

affected the sentencing guidelines range, defendant is entitled to a remand to the trial court for a

determination regarding whether it would have imposed a materially different sentence but for

the unconstitutional restraint on its sentencing discretion. See Lockridge, 498 Mich at 395-397,

399.

V. CONCLUSION

We affirm defendant’s convictions, holding that any error resulting from the denial of

counsel at his preliminary examination was harmless, but remand to the trial court for a

determination regarding whether it would have imposed a materially different sentence. We do

not retain jurisdiction.

/s/ Michael J. Talbot

/s/ Christopher M. Murray

/s/ Deborah A. Servitto

-7Appendix B 7

APPENDIX C

Michigan Supreme Court Opinion 7-31-17

AUG 0

Michigan Supreme Court

Lansing, Michigan

APPELLATE DEFENDER OF~~e~

Justice:

Sy11aI~

Stephen J. Markman

Justices:

rt~cormack

Richard H. Bernstein

Joan L. Larsen

Kurtis T. Wilder

This syllabus constitutes no part ofthe opinion ofthe Court but has been

Reporter ofDecisions:

prepared by the Reporter ofDecisions forthe convenience ofthe reader.

Kathryn L. Loomis

PEOPLE v LEWIS

Docket No. 154396. Argued on application for leave to appeal April 13, 2017. Decided

July 31, 2017.

Gary P. Lewis was convicted after a jury trial in the Wayne Circuit Court of four counts

of third-degree arson, MCL 750.74, and one count of second-degree arson, MCL 750.73(1). The

court, Lawrence S. Talon, J., sentenced defendant as a fourth-offense habitual offender, MCL

769.12, to 17 to 30 years of imprisonment for each of his convictions. Lewis appealed his

convictions as of right in the Court of Appeals, claiming that he was deprived of counsel at his

preliminary examination and that this deprivation of counsel at a critical stage of the criminal

proceedings against him amounted to a structural error requiring automatic reversal. In an

unpublished per curiam opinion issued July 21, 2016, the Court of Appeals, TALBOT, C.J., and

MURRAY and SERVITFO, JJ., concluding that automatic reversal was required under binding

Michigan cases interpreting United States v Cronic, 466 US 648 (1984), vacated Lewiss

convictions and remanded the case for a new trial. The Court of Appeals noted, however, that it

did not believe reversal was required under a correct interpretation of federal law including

Coleman v Alabama, 399 US 1 (1970), and that it would have applied a harmless-error test to

determine whether reversal was required. The Supreme Court ordered and heard oral argument

on whether to grant Lewiss application for leave to appeal or take other action. 500 Mich 918

(2016).

In a unanimous opinion by Justice LARSEN, in lieu of granting leave to appeal, the

Supreme Court held:

The deprivation of defense counsel at a preliminary examination is subject to harmlesserror review.

1. Under the Sixth Amendment of the United States Constitution, a defendant has a right

to counsel during critical stages of a criminal prosecution. In this case, the prosecutor conceded

that the preliminary examination is a critical stage. With regard to the proper remedy when the

right to counsel at a preliminary examination is denied, Coleman held that a remand was

necessary to determine whether that denial was harmless error, while Cronic stated that a trial is

unfair if the accused is denied counsel at a critical stage ofthe trial, requiring automatic reversal.

However, that statement in Cronic, a case involving an allegation of ineffective assistance of

counsel, was dictum, whereas the holding in Coleman that the deprivation of counsel at a

Appendix C 1

preliminary examination is subject to harmless-error review was not. Accordingly, the holding

in Coleman was binding.

2. In evaluating whether the deprivation of counsel at a preliminary examination was

harmless, a court may not simply presume, without more, that the deprivation must have caused

the defendant harm, nor may it presume that the error was harmless because of the subsequent

conviction, even if no evidence from the preliminary examination was used at trial and the

defendant waived no rights or defenses because of the absence of counsel. Given that the parties

did not address either the substantive criteria or the procedural framework that should attend this

review, the case was remanded to the Court of Appeals to consider those questions in the first

instance.

Court of Appeals judgment reversed; Part II of the Court of Appeals opinion vacated;

case remanded to the Court ofAppeals for further proceedings.

Justice MCCORMACK, joined by Justice BERNSTEIN, concurring, signed the majority

opinion in full and agreed that Coleman was controlling and binding in this case, but wrote

separately to question whether harmless-error review under Coleman for cases in which counsel

was denied at a preliminary examination was sustainable given the speculative nature of the

inquiry, the evolution of and reasoning behind the United States Supreme Courts structural-error

doctrine, and the unresolved tension between Coleman and Cronic.

Appendix C 2

Michigan Supreme Court

Lansing, Michigan

j ~:4I1:~

Chief Justice:

Stephen J. Markman

Justices:

Brian K. Zahra

Bridget JYL MeCormack

Richard H. Bernstein

Joan L. Larsen

Kurtis T. Wilder

FILED July31, 2017

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

No. 154396

GARY PATRICK LEWIS,

Defendant-Appellee.

BEFORE~THEENTIRE BENCH

LARSEN, J.

This case confronts us with two precedents of the Supreme Court of the United

States that initially seem to conflict. In one, the Supreme Court remarked that denial of

counsel at a critical stage of a criminal proceeding is a structural error requiring

automatic reversal. See United States v Cronic, 466 US 648, 659; 104 S Ct 2039; 80 L

Ed 2d 657 (1984). In the other, the Court remanded for harmless-error analysis in a case

in which it held that a defendant was denied counsel at a critical stage—his preliminary

Appendix C 3

examination. See Coleman v Alabama, 399 US 1, 11; 90 S Ct 1999; 26 L Ed 2d 387

(1970). ~ An error cannot be both structural and subject to harmless-error review. See

Neder v United States, 527 US 1, 8; 119 S Ct 1827; 144 L Ed 2d 35 (1999).

The defendant in this case was deprived of the right to counsel at his preliminary

examination. Believing itself bound by precedent, the Court of Appeals resolved the

conflict by holding, in effect, that Cronic controlled and granting defendant an automatic

new trial. But Cronics discussion of the general remedy for complete denials of counsel

was dictum; while Coleman held that the denial of counsel at a preliminary hearing—the

very error at issue here—is subject to harmless-error review. When the Supreme Courts

holdings and its dicta conflict, we are bound to follow its holdings. Accordingly, we

reverse the judgment of the Court of Appeals, vacate Part II of its opinion, and remand

the case to the Court of Appeals for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

Before his preliminary examination, defendant, Gary Lewis, had been appointed

two lawyers. He was not pleased with either; indeed, the examining court noted that he

had filed grievances against each of his previous attorneys. Defendants most recently

appointed attorney was present in the courtroom when defendant appeared for his

preliminary examination. At the start of the hearing, the judge asked defendant to state

~ Justice Brennan authored the plurality opinion in Coleman. Three other justices joined

Justice Brennans opinion in full, and one additional justice joined Part Ill of the opinion,

which held that harmless error was the appropriate standard of review for a denial of

counsel at a preliminary hearing. Coleman, 399 US at 10 n 4. Accordingly, Part III of

Justice Brennans opinion will be cited as the opinion of the Court throughout this

opinion.

Appendix C 4

his name for the record. Defendant replied that he was not talking; that he didnt have

an attorney; that he was being disrespected; that his rights were being violated; and that

he was• through with it. The trial judge stated that he understood defendant to have

elected that -he would prefer not to have a lawyer represent him, at the preliminary

examination. Defendant explicitly disagreed: I never said that. The court proceeded

anyway, with defendant acting pro Se, and appointed defendants former attorney as

standby counsel.. Despite many warnings, defendant repeatedly disrupted the preliminary

examination and was ultimately removed from the courtroom. At that point, the judge

relieved standby counsel of his duties, and the prosecution continued with the preliminary

examination unopposed. Defendant was bound over for trial.

Defendant was represented by counsel at trial and was convicted by jury of one

count of second-degree arson and four counts of third-degree arson. He challenged his

convictions in the Court of Appeals, arguing that the deprivation of counsel at his

preliminary examination was a structural error requiring automatic reversal. Believing

itself bound by precedent, the Court of Appeals agreed, overturned the convictions, and

remanded for a new trial. People v Lewis, unpublished per curiam opinion of the Court

of Appeals, issued July 21, 2016 (Docket No. 325782).

The prosecution filed an

application for leave to appeal in this Court, and we ordered oral argument on the

application. People vLewis, 500 Mich 897 (2016).

Appendix C 5

II. ANALYSIS

The prosecution concedes that defendant lacked counsel at his preliminary

examination2 and that the preliminary examination is a critical stage for the purposes of

the Sixth Amendment right to counsel. US Const, Am VI. The prosecutions concession

is unremarkable. In Coleman v Alabama, the Supreme Court of the United States held

that Alabamas preliminary-hearing procedure was a critical stage. Coleman, 399 US 910 (opinion by Brennan, J.); id. at 12 (Black, J., concurring).

Although there are

variations in each states preliminary-examination procedures, this Court has repeatedly

commented that defendants have a constitutional right to counsel at preliminary

examinations in Michigan. See, e.g., People v Carter, 412 Mich 214. 217; 313 N W2d

896 (1981); People v Mitchell, 454 Mich 145, 161 n 15; 560 NW2d 600 (1997). This

case asks us to consider the remedy when that right to counsel is denied.

Two cases compete for our attention. The prosecution directs us to Coleman. In

that case, the defendant was denied counsel at his preliminary hearing. The Supreme

Court held that the hearing was a critical stage because of the inability of the indigent

accused on his own to realize the[] advantages of a lawyers assistance at such a

The prosecution also concedes that the examining court did not comply with the

procedures set forth in MCR 6.005 or People v Anderson, 398 Mich 361, 367-368; 247

NW2d 857 (1976), citing Faretta v Caljfornia, 422 US 806; 95 S Ct 2525; 45 L Ed 2d

562 (1975), for establishing an unequivocal waiver of the right to counsel. The

prosecution does, however, raise two preliminary arguments related to defendants ability

to bring his denial-of-counsel claim. First, the prosecution argues that defendant did not

preserve his claim because he did not raise in the circuit court his lack of counsel at the

preliminary examination. The prosecution also argues that defendants behavior in

refusing to cooperate with his attorneys could be construed as a waiver of his right to

counsel. We do not entertain these arguments, however, because they were not presented

to the Court of Appeals.

Appendix C 6

proceeding.3 Coleman, 399 US at 9-10 (opinion by Brennan, J.); id. at 12 (Black, J.,

concurring) (agreeing that the preliminary hearing is a critical stage ). A majority of

the Court determined that the proper remedy was to remand the case to the Alabama

courts to consider whether the denial of counsel at the preliminary hearing was harmless

error. Id. at 11, citing Chapman v Cal(fornia, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705

(1967).

Defendant points to United States v Cronic. There, the Court remarked that some

circumstances. . . are so likely to prejudice the accused that the cost of litigating their

effect in a particular case is unjustified. Cronic, 466 US at 658. The Court began with

the most

obvious

of these circumstances—complete denial of counsel—and

commented that a trial is unfair if the accused is denied counsel at a critical stage of his

trial. Id. at 659.

Colemans review for harmless error is obviously incompatible with the automatic

reversal suggested by Cronic. Defendant asks us to hold, therefore, that Cronic silently

abrogated Coleman and to automatically reverse his conviction. We decline to do so.

It is an elementary proposition that state courts are bound by United States

Supreme Court decisions construing federal law, including the Constitution. People v

Gillam, 479 Mich 253, 261; 734 NW2d 585 (2007). But when two statements conflict,

~ These advantages, as articulated by the plurality in Coleman, include expos[ing] fatal

weaknesses in the States case, cross-examining witnesses to generate potential

impeachment evidence for use at trial, gaining discovery of the prosecutions case, and

making arguments related to bail and psychiatric examinations. Coleman, 399 US at 9

(opinion by Brennan, J.).

Appendix C 7

we must prefer a holding of the Supreme Court to its dictum. See Agostini v Felton, 521

US203,237; 117 SCt 1997; l38LEd2d391 (1997).

Cronic was a case about the effective assistance of counsel guaranteed by the

Sixth and Fourteenth Amendments of the United States Constitution. The defendant was

on trial in a mail-fraud case involving $9.4 million in transferred checks. Cronic, 466 US

at 649.

His retained counsel had withdrawn shortly before the scheduled trial and a

young lawyer with a real-estate practice, and no criminal-trial experience, had been

appointed to represent the defendant. Id. The Governments investigation had taken

more than four years, but defense counsel was given only 25 days to prepare for trial. Id.

The defendant challenged his conviction on the ground that, under the circumstances, he

had been deprived of the effective assistance of counsel. The United States Court of

Appeals for the Tenth Circuit agreed. United States v Cronic, 675 F2d 1126 (CA 10,

1982). Even though the defendant could not point to any specific errors in his counsels

performance, or prejudice flowing therefrom, the federal appellate court held that no

such showing is necessary when circumstances hamper a given lawyers preparation of a

defendants case.

Cronic, 466 US at 651. The Supreme Court reversed, holding that

the defendant could make out a claim of ineffective assistance only by pointing to

specific errors made by trial counsel. Id. at 666.

Along the way, the Courts opinion in Cronic contrasted claims of ineffective

assistance with other errors so likely to prejudice the accused that the cost of litigating

their effect in a particular case is unjustified. Id. at 658. It deemed [m]ost obvious

among them the complete denial of counsel. . . at a critical stage of his trial. Id. at 659.

But the question in Cronic was not whether the defendant had been denied counsel

Appendix C 8

completely, much less whether he had been completely denied counsel at a preliminary

hearing. It was, instead, whether his counsel had provided effective assistance at trial.

And so the Courts statements about the complete denial of counsel were dicta.4

The Coleman decision, by contrast, is directly on point. Although it is short on

explanation for its remedy, the Court plainly held that the deprivation of counsel at a

preliminary examination Is subject to harmless-error review under the federal

Constitution. See Coleman, 399 US at 11. Accordingly, we apply that decision, rather

than the dictum in Cronic.5

We note that our resolution is consistent with that of other courts which have

examined the tension between Coleman and Cronic. See, e.g., Takacs v Engle, 768 F2d

122, 124 (CA 6, 1985) (holding that Colemans harmless error analysis remains good

law despite the defendants argument that it had been overruled by Cronic and

Strickland v Washington, 466 US 668; 104 5 Ct 2052; 80 L Ed 2d 674 (1984)); Slate v

~ The same rationale applies to the Court of Appeals reliance on People v Arnold. 477

Mich 852; 720 NW2d 740 (2006), and to our statement in People v Russell, 471 Mich

182, 194 n 29; 684 NW2d 745 (2004), that [t]he complete denial of counsel at a critical

stage of a criminal proceeding is ,a structural error that renders the result unreliable, thus

requiring automatic reversal. Arnold was a sentencing case, and Russell addressed the

denial of counsel at trial. As such, they are not binding in this case, which involves a

preliminary examination. Nothing in those cases purported to rest on unique aspects of

the Michigan, as opposed to the federal, Constitution. Accordingly, neither Arnold nor

Russell could have held that the complete denial of counsel at any critical stage of a

criminal proceeding is structural error requiring automatic reversal, when the Supreme

Court of the United States has held otherwise.

~ Because Cronics dictum could not have overruled Colemans holding, we need not

address the prosecutions argument that Satterwhite v Texas, 486 US 249; 108 5 Ct 1792;

100 L Ed 2d 284 (1988), implicitly overruled Cronic.

Appendix C 9

Brown, 279 Conn 493, 507 n 5; 903 A2d 169 (2006) (We note that, since Coleman, the

United States Supreme Court has indicated in dicta that denial of counsel at a critical

stage renders a trial unfair, without regard to actual prejudice.... At no point, however,

has the [C]ourt overruled explicitly Coleman or repudiated its conclusion that the case

should be remanded for harmless error analysis, despite the denial of counsel at the

preliminary hearing.). And our resolution is also consistent with the Supreme Courts

admonition that other courts should not conclude that the Courts more recent cases

have, by implication, overruled an earlier precedent but should instead leave to the

Supreme Court the prerogative of overruling its own decisions.6 Agostini, 521 US at

237. Defendant has not argued that the state Constitution, Const 1963, art 1, § 20,

provides him with any greater protection than the federal Constitution, US Const, Am

VI.7 Defendants claim of error is, therefore, subject to harmless-error review.

While we have easily concluded that harmless-error review applies, we admit to

being uncertain about just how a court is to evaluate the effect of this error on a verdict.

Coleman does not tell us; there, the Supreme Court simply remanded to the Supreme

Court of Alabama to review the effect of the error under Chapman without further

We have recently emphasized that a similar rule governs our own lower courts. See

Associated Builders & Contractors v Lansing, 499 Mich 177, 19 1-192; 880 NW2d 765

(2016).

~Defendant has argued that a ruling that this error is subject to harmless-error review

would set a dangerous precedent encouraging trial courts to subject defendants to

preliminary examinations without counsel. We emphasize that the courts of our State

remain under an obligation to protect a defendants right to counsel at the preliminaryhearing stage. Should they fail, trial counsel should bring the error to the circuit courts

attention before trial so that it may be promptly remedied.

Appendix C 10

discussion. We do, however, have some guideposts. At each extreme, we know what is

not permitted. At one end, a court may not simply presume, without more, that the

deprivation of counsel at a preliminary examination must have caused the defendant

harm. Although consistent with the presumption accorded to the complete denial of

counsel at some other stages of a criminal proceeding, see, e.g, Gideon v Wainwright,

372 US 335; 83 5 Ct 792; 9 L Ed 2d 799 (1963) (at trial); Penson v Ohio, 488 US 75; 109

S Ct 346; 102 L Ed 2d 300 (1988) (on first appeal as of right); such an approach would be

treating the error as structural—a result foreclosed by Coleman. Neither, however, may

we presume the opposite. Although it finds support by analogy in the Supreme Courts

post-verdict evaluation of most grand-jury errors, see United States v Mechanik, 475 US

66, 73; 106 5 Ct 938; 89 L Ed 2d 50 (1986), Coleman does not permit us to presume that

a defendant, who was ultimately convicted at an otherwise fair trial, suffered no harm

from the absence of counsel at. his preliminary, examination. And that is true even if no

evidence from the preliminary examination was used at trial, and even if defendant,

waived no rights or defenses because of the absence of counsel at the preliminary

examination. All of these things were true, and brought to the Courts attention,8 in Mr.

~The lead opinion itself acknowledged the first two points. See, Coleman, 399 US at 10

(The trial transcript indicates that the prohibition against use by the State at trial of

anything that occurred at the preliminary hearing was scrupulously observed.); id. at 8

(opinion by Brennan, J.) ( At the preliminary hearing. . . the accused is not required to

advance any defenses, and failure to do so does not preclude him from availing himself of

every defense he may have upon the trial of the case. ) (citation omitted; ellipsis in

original). And the Court was obviously aware that defendant had been convicted at trial.

See id. at 18 (White, J., concurring) (The possibility that counsel would have detected

preclusive flaws in the States probable-cause showing is for all practical purposes

mooted by the trial where the State produced evidence satisfying the jury of the

petitioners guilt beyond a reasonable doubt.); id. at 28 (Stewart, J., dissenting) (Since

Appendix C 11

Colemans case, and yet the Supreme Court remanded his case for a determination, under

Chapman, whether the deprivation of counsel at his preliminary examination was

harmless. See Coleman, 399 US at 10 (remanding for harmless-error determination even

though the prohibition against use by the State at trial of anything that occurred at the

preliminary hearing was scrupulously observed and no rights or defenses were lost).9

And so, with the two perhaps most intuitive options for assessing harm off the

table, courts are left to give meaning to the Supreme Courts command to determine

whether defendant was otherwise prejudiced by the absence of counsel at the

preliminary hearing. Coleman, 399 US at 11. The parties have not addressed in this

litigation either the substantive criteria or the procedural framework that should attend

such review.

Accordingly, we remand to the Court of Appeals to consider those

questions in the first instance.

the petitioners have now been found by a jury in aconstitutional trial to be guilty beyond

a reasonable doubt, the prevailing opinion understandably boggles at these logical

consequences of the reasoning therein.).

~ The Court of Appeals, believing itself bound by precedent, held that defendant was

automatically entitled to a new trial because he was denied counsel at a critical stage of

the proceeding. Lewis, unpub op at 3. The opinion proceeded, however, to set forth the

panels view that, under a proper interpretation of the law, the denial of counsel in this

case should be evaluated for harmlessness. Id. at 3-5. It then conducted that evaluation

and concluded, in dictum, that the error was harmless because defense counsel conceded

that no evidence from the preliminary exam was used at trial, defendant did not waive

any rights or defenses by not participating in the preliminary exam, and defendant was

tried and convicted, with counsel, at trial. Id. at 5. For the reasons stated above, these

fmdings, by themselves, were insufficient to compel the conclusion that the denial of

counsel was harmless.

Appendix C 12

III. CONCLUSION

In accordance with Coleman, we hold that the deprivation of counsel at a

preliminary examination is subject to harmless-error review. We, therefore, reverse the

judgment of the Court of Appeals, vacate Part II of its opinion, and remand to that Court

for further proceedings consistent with this opinion. If the Court of Appeals concludes

that the error was harmless, it must also address the sentencing issue raised in defendants

brief in that Court. ~°

Joan L. Larsen

Stephen J. Markman

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

Kurtis T. Wilder

10 Defendant

has filed an application for leave to appeal as cross-appellant. That

application is denied, because we are not persuaded that the questions presented should

be reviewed by this Court.

Appendix C 13

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

No. 154396

GARYPARTICK LEWIS,

Defendant-Appellee.

McC0RMAcK, J. (concurring).

I agree with the majority that we are bound to follow Coleman v Alabama, 399 US

1; 90 5 Ct 1999; 26 L Ed 2d 387 (1970), because it is directly on point and has never

been overruled.

I write separately to call attention to the difficulties inherent in

performing a harmless-error review in cases such as this and, relatedly, to the possibility

that the United States Supreme Court should reexamine Coleman .in light of United States

v Cronic, 466 US 648; 104 5 Ct 2039; 80 L Ed 2d 657 (1984).

It is difficult for me to imagine what a harmless-error review will look like when,

as in this case, a defendant was denied counsel at the preliminary examination. As the

majority recognizes, Coleman excluded the most intuitive bases for fmding prejudicial

harm because it made plain that the question of harmless error does not depend on

whether evidence from the preliminary hearing was presented at trial, and Coleman

remanded for a harmless-error determination even though the defendants waived no

rights or defenses because of the absence of counsel. Coleman, 399 US at 8, 10-11.

Further, Coleman remanded for harmless-error review with little guidance; the court was

Appendix C 14

to determine whether the defendants were otherwise prejudiced by the deprivation of

counsel at the preliminary hearing. Id. at 11.

There are, of course, many ways that the absence of counsel at a preliminary

hearing might be harmful to a defendant apart from counsels role in negating a showing

of probable cause. Indeed, the Coleman Court identified many of these: counsel uses a

preliminary hearing to expose weaknesses in the prosecutions case through crossexamination, lays the grounds for later impeachment at trial, effectively discovers the

prosecutions case, and makes arguments related to bail or psychiatric examinations.1 Id.

at 9. I can think of others, too: the preliminary examination is often a critical clientcounseling moment when plea deals can be negotiated, and additional formal and

informal communications between defense counsel, the prosecutor, and the court give the

defendant important information about the evidence against him or her. But I find it

extremely problematic for a court to conduct a harmless-error review with reference to

these factors. It will require courts to speculate whether counsel would have discovered a

significant weakness in the prosecutions case through cross-examination, or how

effectively counsel might have been able to lay the grounds for later impeachment of a

witness at trial, and what other information might have been revealed in the examination

of witnesses or discussions among counsel. It will require courts to speculate about the

1 Other jurisdictions have referred to these four factors in their determination of harmless

error. See, e.g., State v Canaday, 117 Ariz 572, 575-576; 574 P2d 60 (1977) (examining

harmless error based on the purposes of a preliminary hearing delineated in Coleman);

State v Brown, 279 Conn 493, 510; 903 A2d 169 (2006) (stating that deprivation of

counsel at a probable-cause hearing is susceptible to harmless-error analysis through

examination ofthe functions of a preliminary hearing listed in Coleman).

Appendix C 15

opportunities for negotiating a plea deal and counsels advice about whether to accept a

particular offer. And the speculation wont end there: next, courts will have to speculate

about what result this, hypothetical representation at the preliminary examination might

have had at a subsequent trial.2 In short, I am concerned that harmless-error review in

cases such as this invites a potentially problematic level of speculation into judicial

review.

All of this gives me reason to question whether Colemans holding remains viable

in light of the evolution of the Supreme Courts structural-error doctrine. I agree with the

majority that Cronics comment suggesting that courts should presume prejudice and

automatically reverse upon complete denial of counsel at a critical stage was dictum. The

issue addressed in Cronic was whether the defendant received effective assistance of

counsel, not whether the defendant was denied counsel at a critical stage. But several

subsequent cases have cited Cronic for the proposition that courts should presume

prejudice if a defendant suffers complete denial of counsel at a critical stage. See, e.g.,

Roe v Flores-Ortega, 528 US 470, 483; 120 S Ct 1029; 145 L Ed 2d 985 (2000); Mickens

v Taylor, 535 US 162, 166; 122 S Ct 1237; 152 L Ed 2d 291 (2002); Woods v Donald,

575 US

; 135 S Ct 1372, 1375-1376; 191 L Ed 2d 464 (2015). Indeed, in

Woods, 575 US at

; 135 S Ct 1375-1376, the Supreme Court reiterated the cronic

2 In determining what counsel might have accomplished had he or she been present at this

hearing, is the reviewing court to assume that the preliminary-examination counsel would

have been about as effective as trial counsel? Or more effective because counsel might

have an incentive to work especially diligently at a preliminary exam because that work

could pay off with a better and earlier resolution of the case? Or perhaps the reviewing

court should assume counsel was simply minimally constitutionally competent?

Appendix C 16

dictum as a holding that the complete denial of counsel at a critical stage allows a

presumption of unconstitutional prejudice. And the preliminary examination is a critical

stage in criminal proceedings. Coleman, 399 US at 9. Thus, it seems Cronics reasoning

would apply with equal force to a preliminary examination, but for Colemans holding to

the contrary.

Further, the reasoning that animates the Courts structural-error jurisprudence

seems to apply with full force in the context of a preliminary examination. The common

strand I see in the Courts rationale for declaring an errOr structural and presuming

prejudice requiring reversal is that the particular error makes assessing, its effect

exceptionally difficult. United States v Marcus, 560 US 258, 263; 130 5 Ct 2159; 176 L

Ed 2d 1012 (2010).

Structural errors are characterized by consequences that are

necessarily unquantifiable and indeterminate.

Sullivan v Louisiana, 508 US 275,

282; 113 S Ct 2078, 124 L Ed 2d 182 (1993). As explained above, that rationale seems

on the nose here. Harmless-error review is impractical because of the difficulty in

determining what might have gone differently if the defendant had the benefit of counsel

at the preliminary examination. It is impossible to know with certainty what questions

counsel might have posed and what answers witnesses might have provided, what other

benefits the defendant might have derived from having counsel available, and how all of

those considerations would have affected the subsequent trial. In my view, harmlesserror analysis in cases in which counsel was denied at the preliminary examination risks

becoming a speculative inquiry into what might have occurred in an alternate universe.

United States v Gonzalez-Lopez, 548 US 140, 150; 126 S Ct 2557; 165 L Ed 2d 409

(2006).

Appendix C 17

The development of the Supreme Courts structural-error doctrine, the reasoning

that explains it, and the unresolved tension between Cronic and Coleman3 make me

question whether the Coleman harmless-error review remains a sustainable rule when a

defendant is denied counsel at a preliminary examination. Nevertheless, Coleman is

directly on point and has never been overruled, while the rule of Cronic has never been

applied to denial of counsel at a preliminary examination. Therefore, I agree with the

majority that Coleman is controlling, and we are bound to follow its holding.

Bridget M. .McCormack

Richard H. Bernstein

~Compare Ditch v Grace, 479 F3d 249, 25 5-256 (CA 3, 2001) (reconciling Coleman and

Cronic by reading Cronic in a limited fashion), with French v Jones, 332 F3d 430, 438

(CA 6, 2003) (stating that caselaw after Cronic has reiterated that harmless-error analysis

does not apply to the absence of counsel at a critical stage, which requires automatic

reversal).

Appendix C 18

APPENDIX D

Court of Appeals Unpublished Opinion 7-21-16

aIcCri

STATE

OF MICHIGAN

COURT

OF APPEALS

RECEIVED

JUL 252016

APPELLATE DEFENDER OFFICE

PEOPLE OF THE STATE OF MICHIGAN,

UNPUBLISHED

July 21, 2016

Plaintiff-Appellee,

No. 325782

Wayne Circuit Court

LC No. 14-006454-FH

GARY PATRICK LEWIS,

Defendant-Appellant.

Before: TALBOT, C.J., and MURRAY and SERvIno, JJ.

PER Ct.MUAM.

Defendant appeals as of right his jury trial convictions of four counts of third-degree

arson, MCL 750.74, and one óount of second-degree arson, MCL 750.73(1). Defendant was

sentenced, as a fourth habitual offender, MCL 769.12, to 17 to 30 years imprisonment for each

of his convictions. We vacate-defendants convictions and remand for a new trial.

I. FACTS AND PROCEEDINGS

A. PRELIMINARY EXAM

At the start of defendants preliminary examination, the trial court asked defendant to

state his full name on the record. In response, defendant stated, Im not talking. I dont have no

attorney. This man disrespecting me. You all violating my rights. Im through with it. Im

through with it. The trial court then stated that it had appointed lawyers for defendant on

multiple occasions, that defendant had indicated his displeasure with each of the lawyers that

were appointed, and that defendant had in fact grieved each ofthe prior counsel.

In light ofthis, the trial court found that defendant had elected that he would prefer not

to have a lawyer to represent him and were going to proceed.2 In response, defendant stated, I

Defendant was charged with, and acquitted of, one additional count ofthird-degree arson, MCL

750.74.

2 At an earlier proceeding defendant had indicated that he wanted to represent himself, but

apparently had a subsequent change ofheart.

—1—

Appendix D 1

ni*rsàid that. Thetriã cou±fthèh réiterátèdihát the~prèlifiuiñitäthiuitidit*oüld~röbêid

and thatLdefendant~sformer trial counsel, Brian. Scherer, woul4.act, as stand-by counsel.

As the prosecution called Mollison Folson to testifS, defendant stated, Im not going to

participate in this legal bulishit. The court then warned defendant that he would be expelled

from the coUrtroom if he continued his outburst. Defendant continued to interrupt the court

while using profane language, so the trial court expelled defendant from the courtroom. After

defendant was removed, the trial court told Scherer that he was free to leave as well. The court

then continued with the preliminary examination, and after hearing testimony from six witnesses,

the trial court held that there was sufficient probable cause to bind defendant over for trial.

B.TRIAL

After defendant was bound over for, trial, the following evidence was presented to the

jury. At 10:30 a.m. on March 2, 2014, PoIson observed defendant walking down Russell Streçt

in Detroit. Vol on heard defendant yelling loudly about how he had observed a white man raping

several women. Folson then observed defendant walk into a vacant home located at 20527

Russell for 10 minutes. When defendant exited the home, he spoke with PoIson briefly and then

left. An hour later, Folson observed firemen attempting to put out a fire at 20527 Russell.

At 11:30 a.m., Raven Jackson and her husband, Christopher Coward, were loading up a

van in front of their home, located at 20514 Hull in Detroit. Jackson and Coward observed

defendant yelling and walking down their street. Thcy then observed defendant enterthe vacant

house next-door, located,at 20520-Hull. Approximately four minutes later, Jackson and .Goward

observed smoke coming out of 20520 Hull. The home eventually began burning and the fire

spread and damaged 20514 Hull.

On the same day, Ronnie Blanton was taking pictures of a vacant house located at 20438

Hawthorne in Detroit. While he was taldng pictures, Blanton observed defendant walking down

Hawthorne and yelling into a cellular phone. Defendant then walked into a vacant house next

door, located at 20430 Hawthorne. After defendant exited the home, Blanton observed smoke

coming from the home. Blanton s coworker, David Forman, approached defendant, at which

point defendant threatened to shoot Porman. Blanton asked defendant ifhe set the home on fire,

but defendant did not respond. The fire eventually spread to 20438 Hawthorne and damaged the

home.

Lieutenant Jamel Mayers and Lieutenant Dennis Richardson were dispatched to

Hawthorne Street to investigate the fires. Upon arriving, Blanton provided the officers with a

description of defendant. Mayers and Richardson then began to search the area for defendant.

After driving around, they spotted defendant and ordered him to stop. Defendant began to flee,

but Mayers and Richardson were able to apprehend him. A search of defendants pocket

revealed four cigarette lighters.

II. ISSUES AND ANALYSIS

;i-,b~[r.?.

A. ABSENT COUNSEL

~:-4~

Appendix D 2

Defendant first argues that he was denied his Sixth Amendment right to counsel when

the trial court dismissed both defendant and his counsel from the courtroom during defendants

preliminary examination. As the law in.Michigan currently stands, he is correct.

A. MICHIGANS INTERPRETATION OP FEDERAL LAW,

The Sixth Arnendmeiit safeguards the right to counsel at all critical stages of the

criminal process for an accused who fabes incarceration. People v Williams, 470 Mich 634,

641; 683 NW2d 597 (2004).~A preliminary examination is a critical stage at which a defendant

has a right t cousel. Coleman v Alabama, 399 US 1,9; 90 S Ct 1999;26 LEd 2d 3$7 (1970);

Duncan v Michigan, 284 Mich App 246, 264; 774 NW2d 89 (2009), rèvd on Other grOunds by

486 Mich 1.071 (2010). Both our Court and the Supreme Court (albeit in an order) have

unequivocally stated that it is well established that atotal or complete deprivation of the right to

counsel at a cntical stage of a criminal proceeding is a structural error requiring automatic

reversal. People v Bide, 298 Mich App 50, 61-62; 825 NW2d 361 ~2012),4uoting People, V

Willing, 267 Mich App 208, 224; 704 .NW2d 472 (2005). See also People .v Arnold, 477 Mich

852, 852-853; 720 NW2d 740 (2006)., Because defendant did.not have counsei4.during the

preliminary exam, which accordmg to Coleman is a critical stage in the proceedings, a structural

error has occurred that, accordmg to Buic, Willing and Arnold, requires automatic reversal

Accordingly, we must reverse defendants convictions and remand for a new trial.

2 THE CORRECT INTERPRETATION OF FEDERAL LAW

Although the principles articulated in Buic, Willing and Arnold appear to be absolute and

thUs require an: automatic reversal, we ,ekpress our belief that the denial of counsel at a critical

stage of a criminal proceeding does not always require automatic reversal. Instead, when

confronted with such a situation, a court thust determine whether the denial of counsel at a

critical stage constitutes a structural error that infects the entire proàeedings, and ifso, automatic

~ The Sixth Amendment right to counsel is applicable to the states through the Due Process

Clause ofthe Fourteezith Amendment. Williams, 470 Mich at 641.

~It is possible to conclude that defendants conduct at the preliminary exam forfeited his right to

counsel, People v Kammeraad, 307 Mich App 98; 858 NW2çI 490 (2014), but the prosecution

has not made the argument. But the facts show that the trial court appointed multiple attorneys

to represent defendant (all before the preliminary exam even took place), yet defendant rejected

each one of them. The trial court also noted that defendant had already grieved each one of

them, and reasonably determined that the same thing would occur if he continued to appoint

counsel to represent defendant. Although defendant denied that he was refusing the assistance of

counsel, his actions reflected a desire not to be represented. These actions also rebuked any

waiver attempt, leaving the court (as it recognized) in a dilemma—either continue to appoint

counsel and have defendant terminate them and further prolong the proceedings, or continue the

exam without defense counsel to test the prosecutions case. The court chose the latter course,

and on the basis ofthe forfeiture doctrine announced in Kammeraad, it could be argued that this

did not violate defendants Sixth Amendment right to counsel.

-3-

Appendix D 3

±6V5SI is~thif~i~qffir~d.

to~t~f,if thelethàlof coiithel ãtièritical itaj~doesnot infect the

-entire proceedings, then a court must,determine iyhetherihe~de ial of counsel at a critical stage

constitutes harmless error. Indeed, there .is a wealth ofboth federal and state decisions that come

to the same conclusionunder ~ery similar circumstances. We address those below.

Because we are addressing an alleged federal constitutional error, we are guided by

federal precedent. People v Anderson, 446 Mich 392, 404; 521 NW2d 538 (1994). Under

federal constitutional law, as our state courth have noted, most constitutional errors can be

harmless, but [] a limited class of constitutional errors are structural and are subject to automatic

reversal. Fepple v Duncan, 462 Mish 47, 51; 610 NW2d 551 (2000), citing Neder v United

States, 527 US 1, 8; 119 S Ct 1827; 144 ~ Ed 2d 35 (1999). Structural errors, as explained in

Neder, are intrinsically harmful, without regard to their effect on the outcome, so as to require

automatic reversal. Duncan, 462 Mich at 51. This hold true because structural errors deprive

defendants ofbasic protections without which a criminal trial cannot reliably serve its function as

a vehicle for a determination of guilt or innocence. Id. at 52. An error becbmes a structural

defect when it infects the entire trial mechanism Ande?son, 446 Mich at 406. See also

Arizona v Fulminate, 499 US 279, 309-3 10; 111 5 Ct 1246; 113 L Ed 2d 302 (1991).

We have previously defined a structural error as a defect that affect[s] the framework of

the trial, affect[s~the truth-gathering process and depriye[sj.tbe trial constitutional protectipn

without which the trial cannot reliably serve its function as avehicle for determination of guilt or

innocence. People v Watkins, 247 Mich App 14, 26; 634 NW2d 370 (2001). As the Watkins

Courtnoted,4he~Unite&StateaSnpremeIeuthhasJnnnditeryiewerrors that risejo the level of

structural error, and those few found to be structural error include (1) a complete denial of

counsel, (2) a biased trial judge, (3) racial discrimination in grand jury selection, (4) denial of

,ie,lf~representationL(5)denial of a public trial, and (~)a defective reasonable doubt instruction.

Id. A finding ofstructural error is the exception, rather than the rule. Id. at 26-27.

Contrary to the categorical statements by the Buie and Willing Courts regarding the need

for automatic reversal, the United States Supreme Court concluded long ago that the failure to

provide defendant with counsel at apreliminary examination does not require automatic reversal.

In Coleman, where the Supreme Court first held that a preliminary exam is a critical stage of a

criminal proceeding at which defendant has a right to counsel, the Court held that defendant was

deprived of counsel during that critical stage, but nevertheless remanded the matter to the

Alabama courts to determine whether trial counsels absence constituted harmless error. See

Coleman, 399 US at 11.

Defendant argues, and the Buie and Willing Courts seemed to hold, that United States v

Cronic, 466 US 648; 104 S Ct 2039; 80 L Ed 2d 657 (1984), decided some 14 years after

Coleman, now requires application ofan automatic reversal standard anytime there is a denial of

counsel at a critical stage in the proceeding. See Willing, 267 Mich App at 224 n 32. But as

Justice MARKMAN has recognized, every federal circuit court of appealshas stated, post-Cronic,

that an absence of counsel at a critical stage may, under some circumstances, be reviewed for

harmless error. People v Murphy, 481 Mich 919, 923; 750 NW2d 582 (2008) (MARKMAN, J.,

concurring). State courts have also recognized that Coleman adopted a harmless error test for

certain constitutional deprivations occurring at critical stages of criminal proceedings, and that

Cronic has not altered Colemans principle. People v Tena, 156 Cal App 4th 598, 613; 67 Cal

-4-

Appendix D 4

Rptr 3d 412 (2007); State ,v Dennis, 185 NJ 300, 302; 885 A2d 429 (NJ, 2Q05); State v Brown,

279 Conn 493, 506-507, 507 n 5; 903 A2d 169 (Conn, 2006); Commonwealth v Carver, 292 Pa

Super 177, 179-180; 436 A2d 1209 (Pa, 1981).

In light of thi~plethora of case law, it is difficult to say that a structural error warrants

automatic reversal every time a defendant is deprived of~counselat a critical stage of the

proceedings, as both Buze and Willing stated Not only is such a proposition contrary to the cases

noted above (most especially Coleman -and all those cited by Justice MARKMAN), but it also

disregards what the Supreme Court has repeatedly said must be shown before automatic reversal

is required a defect that undermines the entire proceeding See United States v Dominguez

Benitei, 542 US.74, 81; 124 S Ct 2333; 159 LEd 2d 157(2004) ~It is,only for certain smictural

errors undermining the fairness of a criminal proceeding as a whole that even preserved error

requires reversal, without regard to the mistakes effect on the proceeding); Fulminate, 499 US at

310 (Referring to structural errors requiring automatic reversal, the Court stated that [e]ach of

these constitutional deprivations is a similar structural defect affecting the framework within

which the trial proceeds, rather than simply an error in the trial process itself), Sweeney v

United States, 766 Ef3d 857, 860 (CA 8, 2014) (the court noted that ~[o}n1y

structural defects that

undermine the fairness of a criminal proceeding as a whole require[j reversal without regard

to the mistakes effect on the proceeding )

As Coleman made clear, the absence of counsel at the preliminary hearing does not

necessarily undenmne the fairness of the entire criminal proceeding It is one step in the

criminal proceedings, and particularly when no evidence from that exam is used at trial, is not

considered a Si~cthA ,endment violation{] that -pervade[s] the entire proceeding that can

never be considered harmless Sweeney, 766 F3d at 860-861, quoting Satterwhite v Texas, 486

US 249, 256; 108 S Ct 1792; 100 LEd 2d 284 (1988). Aócord~ Tena, 156 Cal App 4th at 613

(an error that would constitute a structural defect at, trial is not invariably reversible per se when

confined to the preliminary hearing.); Norton v State, 43 P3d 404, 408 (Ok App, 2002) (We

therefore hold, consistent with Coleman[], that the denial of, counsel at a preliminary hearing is

subject to harmless errOr, analysis.). Accordingly, we would apply a harmless error test to the

Sixth Amendment violation that occurred here.

- -

At oral argument before this Court, defense counsel conceded that no evidence from the

preliminary Scam was used at trial. Defendant also did not waive any rights or defenses by not

participating in the preliminary exam There is also no doubt that defendant had counsel during

the remainder of the proceedings, including the entire trial. We would therefore hold that the

denial ofdefendants Sixth Amendment right to counsel, though occurring at a critical stage, was

harmless error. See United States v Owen, 407 F3d 222, 227 (CA 4, 2005) (discussing much of

the same criteria and finding harmless error).

III. REMAINING ISSUES

Although we have already concluded that we are required to reverse defendants

convictions and remand for a new trial, for the sake of expediency we turn to those remaining

issues raised by defendant that may arise at retrial.

A. PHOTOGRAPHIC LINE-UP

-5-

Appendix D 5

~f&S~t

t~ tththt

faifthàhéftidS~i~fdihfl~hbtägth~hic

line-up -that was conducted while dèfendànt was in ci.istody was admitted .at:trial.~Defendant

argues that, because he was in custody, a corporeal lineup should have been used, and that at the

very least, counsel should have been present at the photographie line-up. Defendant also argues

that his trial counsel was ineffective for failing to move for suppression of the line-up and for

failing to request a corporeal lineáp.

—

-:-

In order to preserve an issue regarding suppression of identiflcatiqn, the defendant must

movc 1th~trial court to suppress the identification or~•~

move for a hearing regarding the

suggestheness ofthe,prior identification. Pe~plevDaniels,163 Mich App 703, 710; 415 NW2d

282 (1-987). Defendant did neither, so this issue is not preserved for appeal.

This Court reviews unpreserved issues for plain error affecting a defendants substantial

rights. People v cannes, 460 Mich 750,763; 597 NW2d 130 ,(19?9). ,In order to avoid

forfeiture of the issue, (1) error must have occurred (2) the error must have been iSlam, i.e., clear

or obvious and (3) the plain error affected the defendants substantial rights. Id. This third

requirement is satisfied ifthe defendant can demonstrate prejudice, i.e., that the error affected the

outcome ofthe lower court proceedings. Id. If .the defendant satisfies these three requirements,

this Court will only grant reversal whentheplain error resulted in the convjction of an innocent

defendant or seriously affected the fairness, integrity, or public reputation of judicial

proceedings. Id.

- -

—

UnderMtcbiga~ identifl~tionby a corporeal lineup is required when an accused is

in custody unless a legitimate reason for holding a photographic line-up exists People v

Kurylczyk, 443 Mich 289, 298; 505 NW2d 528. (1993). Legitimate reasons for conducting a

photographic

line~upinstead of a corporeal lineupwhen the defendant is in custody include (1) it

is not vossible to thange a -projer,. lineup, -(2) there are an insufficient number ,of individuals

available who have similar physical characteristics, (3) the nature of the case requires an

immediate identification, (4) the witnesses are located too far away from the location of the

accused, (5) the accused refuses to participate and would seek to destroy the value of the

identification.. People v Anderson, 389 Mich 155, 186 n 1, 187 n2-5; 205 NW2d 461 (1973),

overruled on other grounds by People vHickman, 470 Mich 602; 684 NW2d 267 (2004).

Becau~edefendant never raised this issue in the trial court, the record is devoid of any

justification fqr using a photographic line-up instead of a corporeal line-up while defendant was

in custody. We will therefore assure that -the decision to admit the identification evidence

resulting from the photographic line-up was plain error, because we conclude that defendant

cannot demonstrate that any error affected his substantial rights i.e., that it affected the outcome

of the lower court proceedings. While Jackson, Goward, and Folson were shown the

photographic line-up, Blanton was not and still identified defendant as the man who set fire to

20438 Hawthorne. In addition, because Jackson, (toward, and Folson had an, independent basis

for their identifications of defendant, the rn-court identification is still permissible if it can be

demonstrated that the witness had a basis, independent of the line-up, for the identification.

People v Gray, 457 Mich 107, 114-115; 577 NW2d 92 (1998).

The Gray Court stated that the following factors should be considered: (1) a prior

relationship with or knowledge ofthe defendant, (2) the opportunity to observe the offense, (3)

-6-

Appendix D 6

the length of time between the offense and the disputed identification, (4) the accuracy or

discrepancies in the line-up description and the, defendants actual description, (5) any previous

proper identifi9ation or failure to identify the defendant, (6) any identification prior to the line-up

of another person as, defendant, (7) the nature of the alleged offense and the physical and

psychological state of the victim, and (8) any idiosyncratic or special features ofthe defendant

14. at 1,16. While Jackson, Coward, and Folson did not have aprior relationship with defendant,

they all had an extended opportunity to observe defendant. They all testified that they watched

as he walked down the street and intothe homes that were eventually set onfire. In addition, the

identifications made by Jackson and Goward were made within days ofthe fires.

While defendant notes minor discrepancies in Gowards and Folsons description of what

defendant was wearing on the day in question, (toward accurately described defendant as

wearing a hat and a blue, hooded, jacket. In addition, Folson was able ,to provide a voice

identification of defendant. Finally, both Mayers and Richardson testified that when. .they

encountered defendant, he began to ~1ee. Once defendant was appreheqci~d,four cigarette

lighters were found in his pocket. Therefore, it cannot be said that the use of a photographic

line-up instead of a corporeal lineup affected defendants substantial rights.

. -

B ABSENCE OF COUNSEL AT PHOTOGRAPHIC LINE-UP

In order to preserve a claim regarding demal of counsel at a photographic line-up,

defendant must challenge the lme-up before or during the preliminary examination or make a

pretrial motion to suppress People v Solomon, 82 Mich App 502, 506, 266 NW2d 453 (1978)

Defendant failed to do so, and this issue is not preserved for appeal This Court reviews

unpreserved issues for plain error affectrng a defendants substantial rights Cannes, 460 Mich

at 763

The right to counsdl at a photographic line-up attaches with custody. Anderson, 389

Mich at 186-187,. However, in Hickman, 470 Mich at 603, the Court subsequently held that at

corporeal lineups the right to counsel does not attach until the initiation of adyersarial criminal

proceedings Adversarial criminal proceedings are considered to have commenced afler a

formal charge, preliminary hearing, indictment, mformation, or arraignment Kirby v illinois,

406 US 682, 689; 92S Ct 1877; 32 LEd2d4ll (1972).

.,-

The Court in Hickman ruled that Andersons expansion of the right, to counsel to the

period before the initiation of adversarial criminal proceedings was not supported by either the

United States: Constitution or the Michigan Constitution. Hickman, 470 Mich at 603-604. While

Hickman involved a corporeal line-up, it stands to reason that no such right exists in the context

ofphotographic line-ups either. At the time ofthe line-up, defendant had been arrested, booked

into custody, and fingerprinted. However, because adversarial criminal proceedings had not

commenced at the time of the identification, the right of counsel had not yet attached to

defendant. Defendant was not entitled to counsel at the time ofthe photographic line-up.

C. VOICE IDENTIFICATION

-7-

Appendix D 7

tef&iidanti~e*tit filth

s~lethëddu&i*océs~

by Folson was .admitted.at trial, because the voice identification was suggestive, and lacked a.

sufficient foundation for admission.

In order to preserve ~n issue reg rding suppression Aof identification, the defendant must

move the trial court to supprSs the identification or move for a hearing regarding the

suggestiveness ofthe prior identification Daniels, 163 Mich App at 710 While defense counsel

objected to Foison s testimony on the gràuiid that it would be infiammatOiy under MR.E 403, she

did not move ~p,s~ppress Folsons identification or

fq~a hearing regarding the

suggestiveness of the identiflcation. Because this issue is not preserved for appeal, we review

for plain error affecting defendants substantial rights. Cannes, 460 Mich at 763.

The fairness of an identification procedure is evaluated in light of the total

circumstances to determine whether the jroóedure waâ ~oimpermissibly suggestive that it led to

a substantial likelihood of misidentification. People v Murphy (On Remand,), 282 Mich App

571, 584; 766 NW2d 303 (2009). Vocal identification evidence .is competent ifthe identifying

witness demonstrates certainty

in the mmd

by testimony that is positive and

unequivocal. Id. In addition, voice identification must be based on a peculiarity in the voice or

on sufficient pre~iousknowledge by the witness of thepersons voice. Id.

The voice ideñtifiàation procSure was not so ithpeiniissibly sü~eitfrethat it led t5 a

substantial likelihood of misidentification. Id. Folson testified that defendant was yelling that a

white man had been raping several womeü and defendant asked Folson if he had seen the man.

Nothing has been offered to eitablish thatthe voice identification was imperrnissibly.objective;

and the totality ofthe circumstances do net suggest otherwise. Folson then observed defendant

,go into the home. When defendant emerged from the home, he again approached Folson and

asked if he had seen the man This demonstrates that Folson had a high degree of attention to

defendants voice. Folson also testified that he was certain that defendants voice matched the

voice of the individual who walked into the home when he heard it just under five months later.

The totality of the dircumstances, as well as Folsons certainty that defendant was the

perpetrator, indicate that the voice identification was permissible.

Defendant.also argues that Folson s vocal identification lacked an adequate foundation.

An objection based on one ground at trial is insufficient to preserve an appellate aitack based on

a different ground. People v Stimake, 202 Mich App 28, 30; 507 NW2d 778 (1993). Therefore,

defendants objection, to Folsons testimony on MRE 403 grounds was insufficient to preserve a

foundational challenge on appeal. This Court reviews unpreserved issues for plain error

affecting a defendants substantial rights. Canines, 460 Mich at 763.

MRE 901(a) states that ~[t]he requirement of authentication or identification as a

condition precedent to admissibility is satisfied by evidence sufficient to support a finding that

the matter in question is what its proponent claims. The evidentiary rule provides examples of

proper authentication. In the context of voice identification, MRE 901(b)(5) provides that

{i]dentification of a voice, whether heard firsthand or through mechanical or electronic

transmission or recording, by opinion based upon hearing the voice at any time under

circumstances connecting it with the alleged speaker is an acceptable method of authentication.

-8-

Appendix D 8

As already noted, Folson had ample opportunity to hear defendants.voice on the day in

question. Defendant was yelling and approached Folson twice to taik to him. Folson was ofthe

opinion that it was defendants voice given that he had the opportunity to hear it first hand from a

short distance away. Folsons voice identification ofdefendant did not lack foundation and any

issues with the identification would affect only the weight of the identification, not its

admissibility. People v Berkey, 437 Mich 40, 52; 467 NW2d 6 (1991). Therefore, the trial court

did not commit plain error in allowing Folsons voice identification testimony.

D. BRADYv MARYLAND

Defendant also argues that he was denied due process of law pursuant to Brady v

Maryland, 373 US 83; 83 S Ct 1194; 10•L Ed 2d 215 (1963), when the lighters found in his

pocket were lost or destroyed. In order to preserve for appeal an issue regarding the

prosecutions suppEession of evidence, defendant must have moved for a new trial or for relief

from judgment in the trial court. People v Cox, 268 Mich App 440, 448; 709 N\W2d 152 (2005).

Defendant did not move for a new trial or for relief from judgment in the trial court or raise the

issue of a Brady violation at any time in the trial court Therefore, this issue is not preserved for

appeal. Again, this Court reviews unpreserved issues for plain error affecting a defendants

substantial rights. Cannes, 460 Mich at 763.

In Brady, the United States Supreme Court held that the suppres~ionby the prosecution

of evidence favorable ,to an accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution. Brady, 373 US at 87. The Michigan Supreme Court has since articulated a threepart test to determine whether a Brady violation has Occurred: (1) the prSecution has

suppressed evidence; (2) that is favorable to the accused; and (3) that is material. People v

Chenault, 495 Mich 142, 150; 845 NW2d 731(2014). In addition, MCR 6.201(B)(1) requires

disclosure, upon request, of any exculpatory information or evidence known to the prosecuting

attomey.

Here, the evidence showed that Richardson discovered four lighters in defendants

pocket, took a picture of the lighters, and handed them over to police officers. However, the

lighters

were lost and never placed in evidence. Therefore, regardless of the governments good

faith or bad faith in losing the lighters, they are considered suppressed for purposes of Brady.

Evidence is considered to be favorable to the defense when it is either exculpatory or

impeaching. Id. Defendant contends that if he had possession of the lighters, he could

demonstrate that they were inoperable, and could not have been used to start the fires. Defendant

does not provide any corroboration for this claim or explain why he would be carrying around

multiple inoperable lighters while fleeing from the scene of a fire. If, contrary to defendants

claim, the lighters were operable, their introduction at trial would have been harmthl to

defendant. Thus, defendant cannot satisfy the materiality requirement because it cannot be said

that there is a reasonable probability that, had the evidence been disclosed to the defense, the

result ofthe proceeding would have been different. Id.

-9-

Appendix D 9

lYefindthits ebnv!ctiohs the vadat6dthid thelnattS i~retharidedfôf ânew trial; ~We1ó

not retain jurisdiction.

Is! Michael J. Talbot

Is! Christopher M. Murray

-10-

Appendix D 10

STATE

OF MICHIGAN

COURT

OF APPEALS

PEOPLE OF THE STATE OF MICFIICIAN,

July2l,2Q16

Plaintiff-Appellee,

UNPUBLISHED

No. 325782

Wayne Circuit Court

LC Np. 14-006454-FH

QAR.Y PATRICK LEWIS,

Defendant-Appellant.

Before:- TA1,,B0T, C.J., and Mum~&Yand SERvIno, 11.

SERvIUQ, J. (concurring).

I concur in the resqlt reached by the majority—that defendants convicftons should be

vacated. However, I believe that because Michigan law holds that the complete denial of

representation of counsel at a critical stage of the proceeding (here, the preliminary

examination), is a structural error requiring automatic reversal (see, e.g.,. PeQple v Duncan, 462

Mich 47, 51-52; 610 NW2d 551(2000)), that holding alone should represent the entirety of our

opinion. The remaining analysis regarding structural error and the analyses of the remaining

issues raised by defendant areunnecessary to our resolution of this case.

/5/ Deborah A. Servitto

—1—

Appendix D 11

APPENDIX E

Preliminary Examination Transcript

STATE OF MICHIGAN

IN THE 36th DISTRICT COURT FOR THE CITY OF DETROIT

PEOPLE OF THE STATE OF MICHIGAN,

-vs-

dc# 14-56725

Cc# 14-006454

GARY PATRICK LEWIS,

Defendant:

______________________________/

PRELIMINARY 3EXAMINATION

BEFORE THE HONORABLE JOSEPH N. BALTIMORE

36TH District Court Judge

Detroit, Michigan - Wednesday, July 30, 2014

APPEARANCES:

For the People:

KELLY CASPER, ATTORNEY, P-69012

Wayne County Prosecutor's Office

1441 St. Antoine, 12th Floor

Detroit, Michigan 48226-2302

(313) 224-5777

DEFENDANT APPEARING IN PRO PER

ALSO PRESENT: ATTORNEY BRIAN SCHERER

Court Reporter:

BETH A. TOMASI, CSR-3098

(313) 965-6187

BETH A. TOMASI, CSR-3098

Appendix E 1

I N D E X

WITNESS

MOLLISON FOLSON

Direct Examination by Ms. Casper

JAMEL MAYERS

Direct Exmaination by Ms. Casper

MATTHEW CROUCH

Direct Examination by Ms. Casper

RONNIE BLANTON

Direct Examinatino by Ms. Casper

CHRISTOPHER GOWARD

Direct Examination by Ms. Casper

DENNIS RICHARDSON

Direct Examination by Ms. Casper

10/11

EXHIBITS

People's Exhibit 1 - Note

People's Exhibit 2 - Photos

People's Exhibit 3 - Photos

People's Exhibit 4 - Photo lineup

People's Exhibit 5 - Note

People's Exhibit 6 - Constitutional Rights Form

People's Exhibit 7 -

BETH A. TOMASI, CSR-3098

Appendix E 2

Detroit, Michigan

July 30, 2014

10:45 a.m.

THE COURT:

This is the matter of People of

the State of Michigan versus Gary Patrick Lewis.

defendant is charged with Count 1, second degree

arson; Count 2, second degree arson; Count 3 third

degree arson; Count 4, third degree arson; Count 5,

third degree arson; Count 6, third degree arson.

Madam Prosecutor, your name for the record.

MS. CASPER:

Good morning, Kelly Casper on

behalf of People.

THE COURT:

put your full name on the record.

All right.

DEFENDANT LEWIS:

Mr. Lewis, please

I'm not talking.

I don't

This man disrespecting me.

You all

have no attorney.

violating my rights.

through with it.

THE COURT:

I'm through with it.

I'm

Are you -- you don't even want

to put your name on the record, right?

the record -- you may have a seat, please.

The

I think that

I think that the record should reflect that

the Court has, on -- on a couple of occasions,

appointed lawyers for Mr. Lewis and he has indicated

BETH A. TOMASI, CSR-3098

Appendix E 3

his displeasure for each of the lawyers that this

Court has appointed.

for the record, that the lawyers that I appointed are

very experienced lawyers, numbers of years of

practice, lawyers of great and good and excellent

representations, but he has elected that he would

prefer not to have a lawyer to represent him and we're

going to proceed.

And I might say additionally,

DEFENDANT LEWIS:

I never said that.

THE COURT:

We're going to proceed without

him being represented.

The record should reflect that

I have Mr. Sherer, that I had previously appointed,

but I have him on standby in case Mr. Lewis needs some

advice.

representing Mr. Lewis.

MS. CASPER:

The record should be clear Mr. Sherer is not

Very well.

Let us proceed.

Your Honor, if the People may

for the record, Mr. Lewis and as the Court is aware

because your Honor was on the bench, Mr. Lewis when he

expressed his displeasure with his last attorney

indicated that he would just represent himself.

Louisa Papalas, who stood in for me at the last

hearing indicated that Mr. Lewis said he was being

forced to represent himself.

know it has to be an unequivocable intelligent made

waiver, at the same time, although he is entitled to

As the Court's aware, we

BETH A. TOMASI, CSR-3098

Appendix E 4

an attorney, he's not entitled to the attorney of his

choice.

protect his interests and defend him.

going to participate in the exam, the People do have

some concerns about what will happen at a later date,

so I don't know if the Court wants to -- in light of

the prior circumstances, have Mr. Sherer defend him or

Mr. Lewis is going to defend himself.

He is entitled to an attorney that will

THE COURT:

If he is not

The reason why I cannot force

Mr. Sherer or any lawyer to expose themselves to

liabilities with regards to -- Mr. Lewis has filed

grievances against these lawyers.

reasonable or fair for me to try to force a lawyer to

expose his reputation with someone who obviously has

demonstrated that he does not desire to have lawyers

representing him.

have informed him that we want to go forward.

longer Mr. Lewis sits in jail, the longer it is going

to be for the system to determine whether or not he is

guilty or innocent or should be released.

conduct is prolonging, probably, his time in jail.

So you know, whatever happens in the future, it will

happen.

It is not

There is nothing else I can do.

The

His

MS. CASPER:

Okay.

THE COURT:

But I cannot -- I cannot expose

BETH A. TOMASI, CSR-3098

Appendix E 5

lawyers or I don't think it's fair to expose lawyers

to this kind of distraction.

intelligently represent somebody and also have to

feign off bar complaints.

MS. CASPER:

They cannot represent,

Now we will proceed.

Thank you, your Honor.

The

People would ask for a mutual sequestration order of

any witnesses that will be testifying at the exam.

THE COURT:

That order is granted.

MS. CASPER:

If there are any witnesses in

the courtroom that will testify in this matter, please

step out in the hall.

Mr. Folson, you're the first--

THE COURT:

If there are witnesses that are

going to testify, please step out until such time

we're ready for you.

for the prosecution and for the defense.

witness is going to be --

That includes both witnesses

Your first

MS. CASPER:

Mollison Folson, your Honor.

THE COURT:

Would you like to have a

pencil, sir?

pencil so he's able to --

Give him -- and give him a pad and a

DEFENDANT LEWIS:

needs a hearing aid.

this legal bullshit.

Is the hearing -- He

I'm not going to participate in

DEPUTY: Knock it off.

THE COURT:

Mr. Lewis, Mr. Lewis.

BETH A. TOMASI, CSR-3098

Appendix E 6

THE DEFENDANT:

They're going to know it.

You're violating my rights.

DEPUTY:

Knock it off.

THE DEFENDANT:

I'm not going to answer questions.

Just do what you're going to do.

THE DEPUTY:

Mr. Lewis--

THE COURT:

Let me handle this, Brian.

THE DEFENDANT:

Stop asking me questions.

He keep pestering me.

man talk to my family like a dog.

with that cracker?

THE COURT:

THE DEFENDANT:

THE COURT:

there.

Leave me alone.

That

You want me to be

We can handle this two ways.

Any way you want.

The easy way is to have him sit

The hard way is we can have you excluded.

MR. EUFPLT:

Disrespect my family.

THE COURT:

The hard way is we can have

you excused.

THE DEPUTY:

THE DEFENDANT:

Sure.

Hurry up.

Get it

out of my short * * out /-FR /-R court, please.

THE COURT:

Sir stop.

I'm not going to have these

outbursts.

THE DEFENDANT:

Leave me alone.

That man keep harassing me.

You're not my lawyer, talking about

BETH A. TOMASI, CSR-3098

Appendix E 7

my mother, my mother dead.

THE COURT:

table.

THE DEFENDANT:

THE COURT:

Listen, I'm about ready to

THE DEFENDANT:

Hurry up.

THE COURT:

THE DEFENDANT:

touching me.

Another outburst -He put his hands on me.

Another outburst from you, I

will remove you from the courtroom.

to -THE DEFENDANT:

I'm not going

Well, remove me.

rather be in hell with the devil.

THE COURT:

THE DEFENDANT:

I'd

Well, one more you shall be.

I'd rather be in the hell

with the devil.

THE COURT:

THE DEFENDANT:

He's not my attorney.

THE COURT:

This is

bullshit.

You disrespect

start the hearing.

Thank you.

my dead mother.

Mr. Sherer, do not sit at the

shit.

Crooked.

Take him out.

Crooked.

THE DEPUTY:

THE DEFENDANT:

I don't have time for this

The whole city crooked.

Knock it off.

Crooked cops. Crooked --

BETH A. TOMASI, CSR-3098

Appendix E 8

Take him out.

Crooked lawyers.

THE DEPUTY:

Knock it off Lewis.

THE COURT:

Just take him out.

MS. CASPER:

Your Honor, I don't know how

the Court wants to proceed.

THE COURT:

testimony.

of the courtroom)

Judge, can we go off the

THE COURT:

No, I want everything on the

MR. SHERER:

Okay.

record.

MR. SHERER:

record?

Okay.

(Whereupon the defendant has been taken out

We shall proceed with the

Well, if I'm standby

counsel and there is nobody to stand by to -THE COURT:

Listen, this is a man that's

obviously have demonstrated that he is disruptive, he

is using profane language in court.

MR. SHERER:

I agree, Judge.

My question

to you is if I'm not representing him and I'm supposed

to --

THE COURT:

You may leave.

MR. SHERER:

Okay.

THE COURT:

You may leave.

MR. SHERER:

Okay.

That's what I'm asking.

BETH A. TOMASI, CSR-3098

Appendix E 9

Goodbye.

THE COURT:

But I'm not going to have

someone cursing and cutting up in the courtroom.

Sir, give your name to the court reporter.

DIRECT EXAMINATION

BY MS. CASPER:

Good morning.

Can you please state your name for the record?

Mollison Folson.

And Mr. Folson, do you live in the area of Russell

Street in the City of Detroit?

Yes.

And do you live near 20527 Russell Street?

Uh, 20527?

Yes.

THE COURT:

question?

He's having trouble -THE WITNESS:

BY MS. CASPER:

It's 20527?

Right.

Is that near your home?

THE COURT:

Do you want to rephrase the

I'm at 16.

Hold on.

I'm not sure --

because of all this confusion, I'm not sure if I swore

you in.

BETH A. TOMASI, CSR-3098

Appendix E 10

THE WITNESS:

THE COURT:

No.

Would you raise your right

hand?

M O L L I S O N

F O L S O N,

after been first duly sworn to tell the truth, the

whole truth and nothing but the truth, was examined

and testified as follows:

THE WITNESS:

THE COURT:

problem.

Yes.

Now that's why we were having a

Let us start over on this.

DIRECT EXAMINATION

BY MS. CASPER:

Can you please state your name for the record?

Mollison Folson.

Do you live in the area of 20527 Russell Street?

I would say yes, if the address is correct.

I'll rephrase.

Well, no, it's only another house next to me and I'm

Back on --

20516.

Okay.

Do you remember March 3rd, 2014?

Yeah.

Did anything that day happen out of the ordinary?

Yes.

What happened that you remember on that date?

While shoveling snow, Mr. Lewis came around the

BETH A. TOMASI, CSR-3098

Appendix E 11

corner.

I'm only a block away from 8 Mile, I mean a

house away from 8 Mile, so he came around the corner

screaming, there's a white boy raping women and as he

comes, he goes into an abandoned house.

Okay.

And where was the abandoned house located?

Across the street.

From your house?

(No response)

THE COURT:

your answer to her last question?

THE WITNESS:

snow.

What is your answer?

What was

Mr. Lewis -- I was shoveling

Mr. Lewis came around from east --

THE COURT:

No, the question is was the

house across from you?

THE WITNESS:

Yes.

THE COURT:

Okay.

THE WITNESS:

All right.

I didn't hear the

answer.

BY MS. CASPER:

And do you know if he stayed in the house?

Do you

know if he stayed in the house or lived in the house?

Nobody did.

And what did you do after you saw him go into the

house, if anything?

It's an abandoned house.

Continued shoveling until he came out.

BETH A. TOMASI, CSR-3098

Appendix E 12

Do you know, approximately, how much time passed from

the time you saw him go in, till the time you saw him

go out?

Approximately 15 minutes.

Did anything happen that caught your attention after

you saw him leave the house?

Well, he reiterated about the white guy, that's what

he called white boy and he told me to look out for him

and I suggested he do it, he's looking for him.

a good 30 minutes later, the fire trucks pull up.

And

Did you -- were you outside for that 30 minutes or did

you, at some point, go back into your house?

No, I went back in.

Okay.

And when fire trucks pulled up, did you see

where the fire trucks pulled up to?

The house.

The house that he went into?

Yes.

And when he was screaming about the white boy raping

women, was he still across the street?

Well, he said that as he -- I guess he didn't plan on

seeing somebody so he made a quick conversation, which

was the white boys and went up in the house.

MS. CASPER:

That's all for this witness,

your Honor.

BETH A. TOMASI, CSR-3098

Appendix E 13

THE COURT:

The record should reflect that

Mr. Lewis is not in the courtroom.

MS. CASPER:

Thank you.

Your Honor, just so the record

can reflect due to the confusion and the delay in

getting here, my officer in charge, Lieutenant Dennis

Richardson from the Detroit Arson is present in the

courtroom.

THE COURT:

Fine.

MS. CASPER:

People's next witness will be

Lieutenant Jamal Mayers.

THE COURT:

Witness, please come forward

and give your name to the reporter.

THE WITNESS:

J A M A L

Jamal Mayers.

M A Y E R S,

after been first duly sworn to tell the truth, the

whole truth and nothing but the truth, was examined

and testified as follows:

THE WITNESS:

Yes, sir.

THE COURT:

Hold on.

this.

Let me finish with

Off the record for a minute.

(Pause in proceedings).

THE COURT:

Proceed.

MS. CASPER:

Thank you, your Honor.

DIRECT EXAMINATION

BY MS. CASPER:

BETH A. TOMASI, CSR-3098

Appendix E 14

Will you please state your name for the record?

Jamal Mayers.

And where are you employed?

Detroit Fire Department Arson Section.

And what is your rank?

Lieutenant.

Okay.

And Lieutenant Mayers, how long have you been

with the Detroit Fire Department as a whole?

It will be 20 years on August 8th.

How long have you been in the arson unit?

Since February 14th, 2011.

And did you have to go through any specialized

training to become a member of the arson unit?

Yes, I did.

Did you participate in that training?

Yes, I did.

What types of training did you participate in?

State of Michigan Fire Investigation School.

I'm

certified Fire Investigator through NAFI which is

National Association of Fire Investigators, as well as

internal training.

Okay.

And do you have to continue your training

throughout your career in the arson unit?

Yes, we do.

And have you continued your training?

BETH A. TOMASI, CSR-3098

Appendix E 15

Yes, I have.

And what are some of your duties as a lieutenant in

the arson unit?

Some of my duties are to investigate fires to

determine their origin and cause, as well as to

determine whether or not they are accidental or

criminal in nature.

And do you also have police powers as a member of the

arson unit?

Yes, I do.

And did you attend the police academy to do that?

Yes, I did.

Which academy?

Detroit Police Academy.

And when you investigate fires, is there a protocol

that you -- or a method that you utilize?

Yes, I do.

What is that?

Science Method?

Do you utilize that in all the fires you investigate?

Yes, I do.

Were you on duty on the -- with the Arson Unit on

March 14th, 2013?

Yes, I was.

Were you assigned an investigation that occur at 20527

BETH A. TOMASI, CSR-3098

Appendix E 16

Russell?

Yes, I did.

And is that in the City of Detroit, County of Wayne?

Yes, it is.

And what did you do when you received that assignment?

I responded to the -- responded to the location.

the time there was a series of fires, so we were in

the area.

apprehended the suspect and then we went back and

investigate the fires, at which time we developed a

witness.

Okay.

We got word that there was a suspect.

When you say we were, you -- did you have

partners or crew members that day?

Yes, I did.

And who was with you that day?

Lieutenant Richardson.

Deputy Richardson?

Yes.

Anybody else?

Matthew Crouch, Lieutenant Omar Davison.

You said there were a series of fires.

Yes.

They were a block apart, I think three to four

blocks.

Were they all

in the same area?

And you indicated that there was a suspect before you

BETH A. TOMASI, CSR-3098

Appendix E 17

even -- before you arrived.

attention?

How did that come to your

Once we arrived on the scene, we were informed by fire

fighters, as well as civilians that were at the scene,

that they had -- they had seen someone come from one

of the dwellings and had actually photographed that

person.

And now was that information given to you at

the Russell scene or one of the other scenes?

Okay.

That was at the other scene.

I believe it was

Hawthorne.

Okay.

Now as far as the Russell -- I'm

sorry, strike that.

When you -- you indicated that

you and your fellow crew members had apprehended the

suspect?

Hawthorne.

Yes.

Is that based, in part, on the information that you

received at the Hawthrone scene?

Correct.

And was Lieutenant Richardson with you when you

obtained that information at the Hawthorne scene?

Yes, he was.

You apprehended a suspect.

suspect was?

Do you remember who that

That suspect was later identified as Gary Lewis.

BETH A. TOMASI, CSR-3098

Appendix E 18

him?

And after you apprehended him, what did you do with

Once we apprehend him, we turned him over to the

Detroit Police, a uniformed unit who transported him

to DDC.

And then went back to investigate all the

fires.

At the time when we received the information,

all of these fires were still in progress.

Okay.

You investigate the 20527 Russell?

Yes.

What did you do when you first arrived at that scene

after you apprehend Mr. Lewis, to begin your

investigation?

Well, we first did a walk through of the scene to

determine, you know, where the fire's origin was, then

we began systematically going around taking

photographs of the house and the utilities and

surroundings.

And you said it was a house, the structure type was a

dwelling?

It was a dwelling, yes.

Do you know if it was occupied or vacant?

At the time it was vacant.

And did you examine the exterior of the structure?

Yes, we did.

Did you find anything that indicated a cause or origin

BETH A. TOMASI, CSR-3098

Appendix E 19

of the fire on the exterior of the structure?

No, we didn't.

And when you went to the inside of the structure, when

you enter a structure to do an investigation, is there

a certain method that you use?

Yes, we do.

And what is that?

'Um, the method is-- depends on the investigator.

long as he maintains that same system on all of his

investigations, you know, he can apply.

what I do is exterior circuit around the house, take

photographs, you know, the different sides, photograph

the external utilities such as the gas meter,

electrical box that's on the rear of the dwelling, the

supply, electrical supply running from the pole to the

dwelling and then enter through, either you know, the

front door or the rear door, whichever one is more

assessable.

front door.

On this dwelling, I entered through the

MS. CASPER:

Basically,

Your Honor based on his

testimony, training, experience and method, we ask

that he be allowed to apply his opinion as an expert

as to cause and orgin of subject fire.

THE COURT:

Your motion is granted, I so

find.

BETH A. TOMASI, CSR-3098

Appendix E 20

BY MS. CASPER:

So when you entered this house, were you able to

identify a possible area of origin of the fire?

Yes, I was.

And what area did you identify?

The rear bedroom.

And were you able to identify a cause of the fire?

Not -- well, we were able to exclude that it was from

electrical.

We were able to exclude mechanical

causes, although the dwelling was open to tresspass,

we weren't able to narrow it down to an exact cause.

Okay.

Well how many causes of fire are there?

Accidental, there are mechanical, electrical or

incendiary.

And you were able to eliminate electrical?

Electrical.

And you were able to eliminate mechanical?

Correct.

Did you observe any possible accidental cause --

No, we did not.

-- of the fire?

No, we did not.

Were you able to make a determination about whether or

not this fire was incendiary?

Yes.

BETH A. TOMASI, CSR-3098

Appendix E 21

What was your determination?

That fire was intentionally set.

And during your investigation did you speak with a Mr.

Mollison Folson?

Yes, I did.

And did he -- without saying what he said, was he able

to provide you with information that was useful in

your investigation?

Yes, it was.

And you indicated that when you apprehended Mr. Lewis

his appearance was consistent with information that

you had been given?

Yes, it was.

Did Mr. Folson provide you with information regarding

the appearance of the individual he saw go into the

subject house?

Yes, he did.

Was Mr. Lewis' appearance consistent with Mr. Folson's

description?

Yes, it was.

MS. CASPER:

That's all for this witness.

THE COURT:

Thank you, very much.

step down.

Sir, please come forward and give your

You may

name.

BETH A. TOMASI, CSR-3098

Appendix E 22

M A T T H E W

C R O U C H,

after been first duly sworn to tell the truth, the

whole truth and nothing but the truth, was examined

and testified as follows:

THE WITNESS:

THE COURT:

voice up.

I do, sir.

Please have a seat.

Keep your

You may continue.

DIRECT EXAMINATION

BY MS. CASPER:

Good morning.

Can you please state your name for the record?

Matthew Crouch.

Where are you employed?

Detroit Fire Department, Fire Investigation Unit.

And how long have you been with the Detroit Fire

Department?

Fourteen years.

And how long have you been with the Fire Investigation

Unit?

Six years.

Is that sometimes called the arson unit?

Yes.

And did you go through specialized training to become

a member of the Fire Investigation Unit?

BETH A. TOMASI, CSR-3098

Appendix E 23

Yes, ma'am.

And what training did you go through?

It was a Michigan State Police Fire Investigation

course at Pelkin (ph), for 80 hours, I believe.

And any other training?

There was a NAFI, National Association of Fire

Investigation that was a course I did and --

Did you go through any police academies?

Yes, not related to fire investigation.

But as a fire investigator do you have police powers?

Yes.

So you're required to go through the police academy?

Yes.

What police academy did you go through?

Detroit.

And how many fires have you investigated,

approximately, since becoming a member of the Fire

Investigation Unit?

Six hundred.

And are you required to go through ongoing training

during your career as a fire investigator?

Yes, ma'am.

And have you ever been certificated as an expert and

to testify in your opinion as origin and cause of a

fire in a Court in the State of Michigan?

BETH A. TOMASI, CSR-3098

Appendix E 24

Yes, ma'am.

Which courts?

It was federal court on -- I can't remember the fire

right off, the defendant.

Was it Eastern District Court, Eastern District of

Michigan, downtown?

Yes.

What about in the Wayne County Circuit Court?

I don't know if I have.

And in 36th District Court?

No.

Just in federal court?

Yes.

Okay.

And when you investigate a fire, is there a

particular methodology or procedure that you utilize?

Yes.

What is that?

If you're referring to the scientific method through

the NFPA 921, I follow that or -- is that what you're

asking?

Well, any methods that you utilize on a continuous

basis in investigating a fire.

Yes.

Did you utilize the methods that you used in your

training and experience on a fire occurring at 20502

BETH A. TOMASI, CSR-3098

Appendix E 25

Greeley in the City of Detroit?

Yes.

MS. CASPER:

Your Honor, we would ask that

he be allowed to testify in the expert area of origin

and cause.

THE COURT:

Your motion is granted.

admit him as an expert.

BY MS. CASPER:

Lieutenant, were you dispatched to a fire at 20502

Greeley on or about March 2nd, 2014?

Yes.

And what did you do when you first received that

assignment to go investigate that fire?

I -- the first thing I met up with Lieutenant

Richardson and Lieutenant Mayers, who were on their --

in the area on several other fires.

Okay.

And did you -- why did you meet up with them?

At that time they had made an arrest.

And after you met with them, did you go to the Greeley

scene?

Yes.

That's in Detroit, County of Wayne?

Yes.

And what did you do when you first arrived at the

scene?

BETH A. TOMASI, CSR-3098

Appendix E 26

Upon arrival at that scene, I -- it was very, very

snowy, if I remember correctly.

Getting up to the

scene, you know, the scene -- survey the parameter,

the outside of the house and photographed that scene.

Then upon entering, I went through the first floor,

photographing that area, the second floor and the

basement.

And what type of structure was this Greeley scene?

It was a one and-a-half story converted attic.

A dwelling?

Correct.

Do you recall if it was abandoned or vacant -abandoned door or occupied?

It was an idle dwelling, yes.

So you indicate that you took pictures of the

exterior?

Yes.

And pictures of the interior?

Yes.

And then what did you do?

At that point there was a -- there was a part of a

cabinet that had been broken off from the interior of

the house and it had some writing on it and that's

when I contacted Lieutenant Richardson if it meant

anything to him.

BETH A. TOMASI, CSR-3098

Appendix E 27

MS. CASPER:

Your Honor, may I approach the

THE COURT:

Yes.

witness?

By MS. CASPER:

I'm showing you what's been marked as People's

Proposed Exhibit Number 1.

Do you recognize this?

Yes, ma'am.

And what is that?

It appears to be the photo that I took of the broken

cabinet door.

And is there writing on that?

Yes.

And what -- if you could let the Court know what the

writing says?

I Mister Pieter Folscher blank fire, with a cell phone

number 248-762-6466.

me 120 dollars and fuck you.

MS. CASPER:

And it says crook med 911, owe

Would the Court like to see

the exhibit?

THE COURT:

BY MS. CASPER:

You may publish.

You indicate that you had contacted Officer Richardson

and see if this meant anything to him?

Yes.

And was there any particular reason that you did that?

BETH A. TOMASI, CSR-3098

Appendix E 28

whether -- I didn't know what it meant at that time.

It was just an odd thing to have at a fire scene,

Okay.

And after you found that cabinet, did you

proceed with your investigation as to the orgin and

cause of the fire?

Yes.

And were you able to identify an area of origin within

20502 Greeley?

Yes.

And was that the area of origin that you identified?

It was in the basement, underneath the stairwell.

There's a -- it look like a storage space underneath

the stairwell with a wooden door that was shut and it

was within that.

Were you able to identify a cause of the fire?

As far as the cause, no.

Well, were you able to -- is it correct there's four

causes of a fire?

Is it true in fire investigation

there's four causes of a fire?

Yes.

What are those causes?

There's incendiary, accidental and then unnatural.

Mechanical?

Yes.

Were you able to eliminate a mechanical cause of this

BETH A. TOMASI, CSR-3098

Appendix E 29

fire?

Yes.

How about electrical?

Yes.

There was no electrical.

There was nothing in

that area.

And were you able to eliminate natural causes?

Yes.

And just for the court's reference, what's considered

a natural cause of a fire?

Lightening would be a very good one.

So that would leave accidental and incendiary?

Yes.

Were you able to identify any potential accidental

causes in the area of origin?

No.

And then how about incendiary?

That's -- it appears to be an incendiary fire, but

within combustible materials, newspaper within --

underneath that stairwell area.

MS. CASPER:

That's all for this witness.

THE COURT:

Just one question.

When the

prosecutor was asking you questions about cause, you

appeared to hesitate in your reporting on your

investigation.

the same kind of fires or types of fires?

Do you use a different word to cover

BETH A. TOMASI, CSR-3098

Appendix E 30

THE WITNESS:

I was unclear if she was

asking me as far as a lighter or an open flamed device

or matches, 'cuz I did not recover that type of stuff.

THE COURT:

Okay.

So you excluded a

number of things that were not the cause of this fire,

right?

THE WITNESS:

Yes.

THE COURT:

Okay.

MS. CASPER:

Your Honor, if I could, just

All right.

to clarify --

THE COURT:

Who's this guy?

THE WITNESS:

No.

THE COURT:

Do you know

him?

BY MS. CASPER:

Go ahead, Ms. Prosecutor.

Lieutenant Crouch, in the area of fire investigation,

when lay people refer to a cause of a fire, in your

experience are they asking if somebody lit a match to

a piece of paper?

The lay person, no.

Okay.

In fire investigation, is it true that fires

are classified into certain categories of causes?

Yes.

And is it possible, based on your training and

experience as a fire investigator to determine whether

BETH A. TOMASI, CSR-3098

Appendix E 31

or not a fire is accidental without having the exact

ignition source?

Yes.

And is it possible for you to determine whether or not

a fire is intentional or incendiary, without knowing

the exact ignition source, i.e., a lighter or a match?

Yes.

And how are you able to do that?

Given the -- where the fire is, looking at the whole

totality of that incident, like was it occupied,

wasn't occupied, did -- you know, what could have been

the possible causes for that, there was -- it was not

a place for a warming fire.

you know, that would have been -- there was no

accidental means for that spot to be in there.

was not an easily inhabitable spot for a person to be

in and then the other thing would have been a warming

fire and it's -- it was -- once again, it was two

small a spot to be utilized as a warming fire in that

area.

Okay.

It would not have been --

And did you -- were you made aware of whether

or not anybody was seen coming or going from that

structure prior to the fire?

Upon finishing with that scene -- that dwelling, I

canvassed the area, the houses and I did talk to -32

BETH A. TOMASI, CSR-3098

Appendix E 32

there was one other person and they had not seen

anybody prior to the fire.

Did you speak with a Chris Buckingham?

That's -- I believe so.

Would it assist you to refresh your memory if you

looked at your report?

He lived across the street.

Yes.

In my report I'm stating that he had seen a

black male enter the dwelling on February 26th.

MS. CASPER:

witness, your Honor.

THE COURT:

Okay.

That's all for this

You only investigated the one

fire, the Greeley fire?

THE WITNESS:

Yes, sir.

MS. CASPER:

Yes, your Honor.

THE COURT:

Do you happen to have knowledge

of how far is Greeley from Hawthorne, do you know or

would you not have any idea?

THE WITNESS:

On that day I was part of --

Greeley was my assigned fire.

several fires.

They were all consecutive streets.

THE COURT:

THE WITNESS:

over.

street west.

I know there was

How far were they apart?

It was like the next street

Hawthorne was -- I believe Hull was the next

MS. CASPER:

Your Honor, we do have a map

BETH A. TOMASI, CSR-3098

Appendix E 33

that will be introduced through Lieutenant Richardson,

which shows the fires.

THE COURT:

Thank you.

You may step down.

Are you asking for it to be admitted, the exhibit?

MS. CASPER:

Yes, I am.

THE COURT:

Would you make a motion then?

MS. CASPER:

Your Honor, the People would

move to admit People's Exhibit Number 1.

THE COURT:

It will be admitted.

R O N N I E

B L A N T O N,

after been first duly sworn to tell the truth, the

whole truth and nothing but the truth, was examined

and testified as follows:

THE WITNESS:

THE COURT:

Yes.

She's going to ask you some

questions.

DIRECT EXAMINATION

BY MS. CASPER:

Can you state your name for the record?

Ronnie Blanton.

Okay.

And Mr. Blanton, I want to go back to March

of -- March 2nd of 2014.

Do you remember that day?

Yes.

And what, if anything, occurred that you remember on

that date?

BETH A. TOMASI, CSR-3098

Appendix E 34

I was at a house working and a guy walked into the

abandoned house across the street and set it on fire

and walked out.

And when you say that you were at a house

working, what's your -- what's your employment?

Okay.

I work for U.S. bank.

We were at a house getting

pictures of it.

Do you do maintenance work for the bank?

Maintenance, property preservation, keep them boarded

up, locks changed, things like that.

Were you by yourself that day?

No, I had another guy with me.

Who was that?

David.

Okay.

Yes.

And do you recall which address you were at or what

And would that be David Foreman?

street you were on when you observed --

I was on Hawthorne, Hawthorne and 8 Mile.

That's in the City of Detroit, County of Wayne?

Yes.

And you observe somebody walking down the street that

day?

Yes.

Was he doing anything or saying anything that caught

BETH A. TOMASI, CSR-3098

Appendix E 35

your attention?

Yes.

He kept taking a phone out of his pocket and

you know, yelling into it and holding it back up and

putting it back in his pocket.

Did you see if he continued to walk down the street or

did he approach a structure?

Yes.

He went into the house across the street from

us.

He was in there for about ten minutes or so and

then he walk out.

And what, if anything, was he doing when he

walked out?

Okay.

Still talk on his phone, flipping it out, talking to

no one, really.

And he was yelling in it and the guy

that was with me approached him after that.

Okay.

Towards the end, yes.

Okay and so David approached him and did you hear the

man say anything to David when David approached him?

Did you ever approach him?

Yes.

He told him he had a gun and he was gonna shoot

him if he came any closer.

And was he still doing the phone thing?

Yeah, continuously the phone thing, kept flipping a

little flip phone out of his pocket saying that I'm

going to have CIA and FBI and everybody over there.

He just kept saying that over and over again.

BETH A. TOMASI, CSR-3098

Appendix E 36

back to you?

And did David continue to be by him or did David come

In the beginning David kept approaching him, until he

said he had a gun, then David turned around and start

walking back and then once he realized he didn't have

anything, that we both, you know, started to approach

him.

And did you say anything to him when you started to

approach him?

No.

We just asked him what he was doing in the house.

Did he saying anything to you, respond at all?

Just kept saying the same thing.

Then he looked at

the house we was at, flipped out his phone and gave

the address we was at.

When you say gave the address that you were at, did he

do that --

On his phone.

-- on his phone.

At this time did you notice

anything unusual about the house that he came out of?

Yes.

What did you see?

I saw smoke coming up out of the house.

Because the

windows didn't have any doors or windows.

You could

see everything in it.

smoldering in the middle of the house, then all of a

We saw a rug or something

BETH A. TOMASI, CSR-3098

Appendix E 37

sudden, the whole house was engulfed in flames.

Do you know how much time passed, between the time you

saw him come out of the house and you saw smoke?

Couldn't have been no more than three minutes.

And did you continue to try to approach him or did

you finally leave?

Continued to approach him, until after the fact that

he says that he has a gun and once we realized he

didn't have one, we continued to approach him more and

then we thought about it, he didn't have a gun, he

might have something so we let him go, went to the

truck and got the camera and just started taking

pictures of it.

Were you taking the pictures of him?

Yes.

MS. CASPER:

Your Honor, may I approach?

THE COURT:

Yes.

By MS. CASPER:

I'm going to show you what's been marked as People's

Proposed Exhibits Numbers 2 and 3.

let me know if you recognize those?

Yes.

What were those?

Pictures I took.

MS. CASPER:

And if you could,

Request to admit Proposed

BETH A. TOMASI, CSR-3098

Appendix E 38

Exhibits 2 and 3, your Honor.

THE COURT:

Granted.

MS. CASPER:

Would your Honor want to see

THE COURT:

You may.

MS. CASPER:

Would your Honor like to see?

THE COURT:

You may publish.

MS. CASEPR:

That's all I have for this

them?

witness, your Honor.

THE COURT:

Very well.

THE WITNESS:

Thank you.

MS. CASPER:

Your Honor, the People's next

down.

witness is Christopher Goward.

THE COURT:

You may step

Give your name to the reporter,

please.

THE WITNESS:

Up here?

C H R I S T O P H E R

G O W A R D,

after been first duly sworn to tell the truth, the

whole truth and nothing but the truth, was examined

and testified as follows:

THE WITNESS:

THE COURT:

I do.

Please have a seat.

Miss

Casper is going to be asking you some questions.

THE WITNESS:

Okay.

BETH A. TOMASI, CSR-3098

Appendix E 39

THE COURT:

Proceed.

DIRECT EXAMINATION

BY MS. CASPER:

Can you state your name for the record, please?

Christopher Goward.

Mr. Goward, where were you living back in March of

2014?

At 20514 Hull Street.

Is that H-u-l-l?

It's -- yes.

And is that in the City of Detroit, County of Wayne?

It's Highland Park.

Hull Street is --

Yes.

Is it near 8 Mile?

Yes.

That's what the address says, Highland Park.

THE COURT:

address.

office?

It's probably a mailing

That's -- is that the local mailing post

THE WITNESS:

Yes.

MS. CASPER:

Oh, the post office.

BY MS. CASPER:

And who lived at 20514 Hull Street with you?

My wife, myself and our two kids, my mother-in-law,

her boyfriend, my sister-in-law and her boyfriend and

BETH A. TOMASI, CSR-3098

Appendix E 40

baby.

Was this a single family house?

Yes, it was -- had five rooms.

Had, okay.

And I want to take you back to March 2nd

of this year, do you remember that day?

Yes.

Is there anything that causes you to stand out?

Yes.

We were moving stuff into storage in our Penske

van.

When you say we, who is that?

My wife and I.

What's your wife's name?

Raven Goward.

And were you moving things into a Penske van?

Yes.

And what happened that you remember doing that?

We were actually getting ready to move stuff into

storage and we happened to notice a fire to the east

of us, probably a couple blocks over.

coming up and that's what caught our attention.

stopped what we were doing and we said hey, look at

the smoke up over there.

about that time is when we seen a gentleman coming

from 8 Mile, swearing and we didn't know what he was

carrying on about, but we noticed him right away 'cuz

There was smoke

It must be a fire.

BETH A. TOMASI, CSR-3098

Appendix E 41

So we

Right

he was loud and carrying on about something.

about?

And do you recall any specifics of what he was yelling

Didn't really understand what he was saying but I just

remember that he was carrying on about something.

just assume that was about the fire, 'cuz we noticed

the same thing, you know, the fire.

maybe he might have been cussing about that, I'm not

sure.

but I could tell he was angry about something.

So I thought

Didn't really hear exactly what he was saying,

And do you know if he continued to walk down the

street or did you see him go anywhere?

Yeah.

He came from -- he turned off, came down our

street from 8 Mile and he walked down the street

towards us.

paper bag and some kind of grocery bag and he ended up

stepping into the house next to our's.

And the house -- so if I'm facing your house,

is it to the house to the right or left of your house?

If you're looking straight at my house, it's the house

to the left.

Okay.

He had -- like, he was carrying a brown

Okay.

And were you in the -- your -- did you and your

wife remain outside after you saw him enter the house

next door to you?

Yes.

We were outside for, probably, a couple minutes.

BETH A. TOMASI, CSR-3098

Appendix E 42

After we seen him go in the house, we stepped in --

the house didn't have any windows and he stepped in

the front window of the house and we went inside, 'cuz

we were trying to decide well, should we go in there

and ask him to leave, 'cuz there was nothing living in

the house at that time.

probably a couple minutes after that, trying to decide

if we should approach him or not and we're inside,

probably one or two minutes and then I came back

outside.

What, if anything, did you see when you came back

outside?

So we stepped in the house,

When I came back outside, I noticed there was smoke

coming from the house, so I came out before my wife

and I started heading over there to look.

coming from the windows.

because the house was on fire.

I see smoke

I asked my wife to call 911

And did your -- as far as you know, your wife called

911?

Yes.

It was actually my wife called 911 and I was

outside, kept telling her hey, tell them the house is

burning, you know.

seen burning, one a few blocks over and now this one.

So that was the second house I had

And did the fire department come to the house next

door to you, if you remember?

BETH A. TOMASI, CSR-3098

Appendix E 43

Yes.

They-- actually they were putting out the other

fire and they had to back down, it looked like 8 Mile

and they were in a rush because they said oh, we had

another fire and when my wife called 911, they said

they were already at the fire.

another fire on Hull Street.

that one to this one.

She said no, there was

So they had come from

That was Detroit Fire Department that responded?

Yes.

Did your home sustain any damage?

It did.

It took him a little bit to get set up

because they were already on a call, so by the time

they got over, the house was fully engulfed and it

actually caught our house, partially, on fire.

side and the roof sustained damage.

into our home to make sure it didn't go inside.

The

They had to go

Did you ever provide a statement or information to

members of the Detroit Fire Department Fire

Investigation or Arson Unit?

Yes.

And were you asked if you could identify the

individual?

I was.

And did you provide a -- what's called a photo lineup?

Yes.

BETH A. TOMASI, CSR-3098

Appendix E 44

MS. CASPER:

Your Honor, may I approach?

THE COURT:

You may.

BY MS. CASPER:

I'm going to show you what's been marked as People's

Proposed Exhibit 4.

recognize this?

If you could let me know if you

Yes.

And is that a six picture photo lineup?

Yes, it is.

Were you able to identify --

I was.

And which number did you identify as the individual

you saw entering the house next to your's?

One.

MS. CASPER:

Request to publish and admit,

THE COURT:

Yes.

MS. CASPER:

That's all for this witness,

THE COURT:

You may step down.

MS. CASPER:

Your Honor, the People would

your Honor.

Your motion is granted.

your Honor.

Thank you.

call Lieutenant Richardson.

THE COURT:

D E N N I S

Very well.

R I C H A R D S O N,

after been first duly sworn to tell the truth, the

BETH A. TOMASI, CSR-3098

Appendix E 45

whole truth and nothing but the truth, was examined

and testified as follows:

THE WITNESS:

THE COURT:

voice up.

Yes, sir.

Please have a seat.

Keep your

Proceed.

DIRECT EXAMINATION

BY MS. CASPER:

Can you state your name for the record?

Dennis Richardson.

And where are you employed?

City of Detroit Fire Department.

And in a particular unit?

Fire Investigation Unit.

How long have you been with the fire department?

Eighteen years.

And how long have you been with the Fire Investigation

Unit?

Eleven.

And what is your rank in the department?

Lieutenant.

And in order to be a lieutenant in the Fire

Investigation Unit are you required to go through any

specialized training?

Yes.

And did you do that?

BETH A. TOMASI, CSR-3098

Appendix E 46

Yes.

What training have you gone through in order to be

with the Fire Investigation Unit?

'Um, I've been to the Michigan State Police Basic Fire

Investigation School.

through them.

International Association of Fire Investigation --

Fire Investigators, 'um and internal training also.

I attended or I'm certified

I also hold a certification with the

And the training that you go through, is that

continuous?

Yes.

Did you also attend the Detroit Police Academy?

Oakland Police Academy.

Oakland?

Yes.

And have you ever been certified as an expert in the

area of fire investigation before?

Yes.

And in which court's?

This court, Eastern District, Federal, 36th District.

And you said this Court, we're at Frank Murphy?

Yes.

But you mean Third Circuit?

Yes.

Do you know, approximately, how many fires you've

BETH A. TOMASI, CSR-3098

Appendix E 47

investigated in your time with Detroit Fire

Department?

It's been over a thousand.

And what are your general duties as a member of the

Fire Investigation Unit?

'Um, basic one is to determine origin and cause of

fire incidents, then also determining who the

responsibility, criminal or otherwise and prosecuting

people we determine are criminally responsible.

And do you identify every fire as an incendiary fire?

No.

MS. CASPER:

Requesting Lieutenant

Richardson to testify as an expert in the field of

fire investigation.

THE COURT:

BY MS. CASPER:

I'm going to take you back to March 2nd or 3rd of this

year.

Your motion is granted.

Were you with the Fire Investigation Unit?

Yes.

And did you receive a call to a group of fires located

near 8 Mile and the I-75 service road?

Yes.

MS. CASPER:

Request to approach, your

THE COURT:

Yes.

Honor.

BETH A. TOMASI, CSR-3098

Appendix E 48

By MS. CASPER:

I'm going to show you what's been marked as People's

Exhibit -- Proposed Exhibit number 7.

recognize that?

Can you

Yes.

What is that?

This is a map of the area of fire incidents that took

place at the time I went out.

MS. CASPER:

Request to admit, your Honor.

THE COURT:

Granted.

By MS. CASPER:

And were you out investigating those fires by yourself

or did you have people with you?

I had -- initially I had a partner.

Who was that?

Lieutenant Mayers.

Were you assigned to investigate a fire that occurred

at 20438 Hawthorne?

Yes.

And what type of structure was that?

It was a dwelling.

And was that the only structure that was involved in-in the 20438 Hawthorne or did it extend?

It extended to the dwelling next to it.

Do you know, is that 20430 Hawthorne?

BETH A. TOMASI, CSR-3098

Appendix E 49

Yes.

Were those occupied or vacant structures, do you know?

The 20438 was vacant, but 20430 was occupied.

And was there charring to both those structures?

Yes.

In regards to 20438 Hawthorne, did you conduct an

orgin and cause investigation?

It was limited, but best I could, yes.

Why was it limited?

The house totally collapsed.

Okay.

And have you had to investigate other fires

where the structure's totally collapsed?

Yes.

And does that alter your normal course of

investigation?

Yes.

And in what way?

'Um, you have to rely on other sources of information

to gather a fire origin and then a totality of the

circumstance may give you a fire cause.

of 20438 Hawthorne?

And so what did you do to determine the area of orgin

Well, when I arrived on the scene, the fire was in

it's beginning stages, so I could actually see the

fire started in the inside of the dwelling on the

BETH A. TOMASI, CSR-3098

Appendix E 50

first floor, but fire fighters, I believe had problems

getting water and that's why the whole house ended up

collapsing, that delay in suppression.

Did you speak with any witnesses regarding the fire at

20438 Hawthorne?

Yes.

And were they able to -- without saying what they

said, were they able to provide you with any

information regarding where -- whether they saw the

fire start in the particular area?

Yes.

Was that consistent with what you had observed?

Yes.

Were you able to determine a cause of that fire?

'Um, I was able to determine that it was intentionally

set.

Incedniery?

Yes, incedniery, yes.

And when it spread to 20430 Hawthorne, it charred--

Yes.

-- the building next door?

Yes.

Was the 20430 totally demolished, totally destroyed or

partially?

Partially.

BETH A. TOMASI, CSR-3098

Appendix E 51

And you indicated that was an occupied home?

Yes.

And in regards to the fire on Hull Street, H-u-l-l

were you also assigned to that fire?

Yes.

And did you respond to that scene?

Yes.

And did that fire stay contained to 20520 or did it

spread to another structure?

It extended to the house next to it also.

And would that be Mr. Goward's house?

Correct.

And was 20520 Hull occupied or vacant?

Vacant.

And it's rented or occupied?

Correct.

Were you able to determine an area of orgin for the

fire that originated at the 20520 and spread to 20514?

Yes.

What was your area of orgin?

In the stairwell and the basement or going into the

basement, rather.

Were you able to determine a cause?

Yes.

What was the cause?

BETH A. TOMASI, CSR-3098

Appendix E 52

It was incendiary, as well.

Now for either the Hawthorne or Hull fire, were you

able to determine an ignition source?

No.

Were you able to eliminate mechanical, electrical or

accidental causes?

Yes.

Were you able to eliminate natural causes?

Yes.

Now with the Hawthorne fire, you indicated because of

the damage you could not do your standard

investigation protocal?

Correct.

Were you able to do a standard investigation with the

Hull address?

Yes.

What did that entail?

'Um, I canvassed the area.

There were witnesses next

door and then me, myself, I do an exterior walk around

and then I progress into the inside and I go room by

room, noting if there is any fire damage or fire

travel and then I narrow down an area of origin and

then at that point I determine what could have,

possibly, caused a fire in that area.

Okay.

Now during the -- I'm sorry, strike that.

BETH A. TOMASI, CSR-3098

Appendix E 53

Approximately how long did it take you to investigate

these two fires that spread to additional structures,

if you remember?

I was out there for an extended period of time only

because I was -- all those fires combined, I was

trying to order -- manage all those scenes.

seasons, in particular, I can't remember how long I

was out there.

These two

When you say you were trying to manage these scenes,

are you referring to, not only, the four fires on

Hawthorne and Hull, but also the Greeley and Russell?

Yes.

Were you keeping in touch with the other fire

investigators that were at other scenes?

Yes.

Were you contacted by Lieutenant Crouch from the

Greeley scene?

Yes.

MS. CASPER:

Your Honor, may I approach?

THE COURT:

You may.

By MS. CASPER:

I'm going to show you what's been admitted as People's

Exhibit 1.

Do you recognize that?

Yes.

What is that?

BETH A. TOMASI, CSR-3098

Appendix E 54

That is a note found at, I believe, the Greeley scene.

Lieutenant Crouch had sent me a picture of it, texted

me a picture of it.

Did he ask you if you -- did he ask you anything or he

send you a picture?

He initially sent me a picture of it.

And did that have any significance to you?

Yes.

Why did that have significance to you?

One week prior to this, I was at another fire scene

and I saw a note very similar to this written on the

wall -- actually two fire scenes, one a week prior to

this one where a note very similar to this was

written.

MS. CASPER:

May I approach, your Honor?

THE COURT:

You may.

BY MS. CASPER:

This is People's Proposed Exhibit Number 5.

recognize that?

Do you

What is that?

This is the note that I saw written prior to -- a week

prior to this incident.

Can you read that into the record?

It's me, Mr. Pieter Folscher.

My cell 248-762-6466.

I killed those men and took drugs at Rio Grand Motel

crook Med 911 rescue owe me money and police who work

BETH A. TOMASI, CSR-3098

Appendix E 55

area three nights ago, yesterday, they took money from

drug boys using badge.

address is 32414 Hawthorne, Warren, Michigan.

I lite (sic) this fire.

MS. CASPER:

Request to admit and publish,

THE COURT:

Very well.

your Honor.

Your motion to

admit is granted.

BY MS. CASPER:

And when you saw the picture of the note that was

marked People's Exhibit 1 and then compare that to the

note that you had found that was marked as People's

Exhibit 5.

I immediately recognized that the handwriting was the

same.

What did you do, if anything?

And did you do any investigation into the Hawthorne

address in Warren?

Yes.

And what did you do?

I talked to -- I actually talked to Mr. Folson -- or

I'm sorry, I did not, one of my partners did.

Who talked to Mr. Folson?

Captain Farrell.

And was -- did Lieutenant Farrell or Captain Farrell

give you information that assisted you with your

investigation?

BETH A. TOMASI, CSR-3098

Appendix E 56

Yes.

As far as you know there is a Mr. Folscher?

Yes.

Is that Mr. Lewis?

No.

Now Lieutenant Mayers, Lieutenant Crouch testified

that Mr. Lewis was apprehended at the scene?

Yes.

After he was taken into custody, did you attempt to

speak with him at all?

Yes.

Did you provide him with his Miranda Rights when you

attempted to speak to him?

Yes.

MS. CASPER:

And may I approach, your

THE COURT:

Yes, you may.

Honor.

BY MS. CASPER:

And showing you what's been marked as People's

Proposed Exhibit number 6, do you recognize that?

Yes.

What is that?

That is his verification of -- notification of

constituional rights form.

MS. CASPER:

Request to admit, your Honor?

BETH A. TOMASI, CSR-3098

Appendix E 57

THE COURT:

Granted.

By MS. CASPER:

Was there anything -- did Mr. Lewis sign his Miranda?

He did not sign it, no.

Did he do anything with it?

He wrote on it, yes.

And when he wrote on it.

Was there anything about

that that caught your attention or was significant to

your investigation?

Yes.

What was that?

His writing matched the notes found on the incident of

that day and the incident a week prior.

MS. CASPER:

Request to publish, your

THE COURT:

Granted.

Honor.

BY MS. CASPER:

Did you speak with any -- and I'm sorry, I believe I

might have asked this already, did you speak with any

of the witnesses at Hull or Hawthorne?

I spoke to Mr. Goward briefly.

Do you recall if you spoke with Mr. Blanton or Mr.

Folson?

Yes, I talked to Mr. Blanton.

Did any of them provide you with a description, other

BETH A. TOMASI, CSR-3098

Appendix E 58

than Mr. Goward's photo line-up, did any of them

provide you with a description of the individual they

saw?

When you encountered Mr. Lewis, did Mr. Lewis match

that description?

Mr. Blanton provided me with a verbal

description and also some photographs.

Yes.

MS. CASPER:

That's all, your Honor.

THE COURT:

On this Certificate of

Constitutional Rights, can you make out what he said

here?

THE WITNESS:

Yes.

THE COURT:

All right.

THE WITNESS:

I have to read it.

THE COURT:

Here.

Give this back to him.

What did he write?

THE WITNESS:

I wish lawyer present before

talking.

THE COURT:

you ceased any questions of him?

THE WITNESS:

THE COURT:

What is he saying?

questions?

All right.

And that's when

Yes.

Okay.

Very well.

Anymore

You may step down.

MS. CASPER:

Your Honor, at this point

BETH A. TOMASI, CSR-3098

Appendix E 59

People would rest and ask that Mr. Lewis be bound over

on the information to Third Circuit Court.

THE COURT:

Having heard the testimony

herein, the Court finds one, crimes were committed,

two, that there is sufficient probable cause, will

bind him over on the allegations contained in the

complaint.

August 6th, 2014, 9 a.m..

Arraignment on the information date is

The bond is continued.

MS. CASPER:

Thank you, your Honor.

(Proceedings concluded at approximately

12:03 p.m.)

BETH A. TOMASI, CSR-3098

Appendix E 60

CERTIFICATE OF COURT REPORTER

STATE OF MICHIGAN

) SS

)

COUNTY OF WAYNE

)

I, BETH A. TOMASI, CSR-3098, Official Court

Reporter in and for the 36th District Court for the

City of Detroit, County of Wayne, State of Michigan,

do hereby certify that the foregoing pages, 1 through

61, comprises a complete, true and accurate transcript

of the proceedings had in the above-entitled cause.

________________________________

BETH A. TOMASI, CSR-3098

CERTIFIED SHORTHAND REPORTER

Mechanically reproduced copies of this

transcript are not certified unless the certificate

page bears an original signature.

DATED:

September 5, 2014

BETH A. TOMASI, CSR-3098

Appendix E 61

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.