Petition for Writ of Certiorari — Perry v. Howes

Supreme Court, U.S,

88-689 FILED

OCT 17 1988

YOSEPH F. SPANIOL, JR

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

MILDRED PERRY,

Petitioner

v3.

CAROLE HOWES, Wardet, Florence

Crane Women’s Correctional Facility,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JAMES STERLING LAWRENCE (P33664)

Attorney for Petitioner Mildred Perry

515 Monroe

Detroit, MI 48226

(313) 965-4189

QUESTIONS PRESENTED

Petitioner Mildred Perry was tried in state

court for murder and convicted. Habeas corpus was

denied in federal court. The questions presented are:

: WHERE, DURING JURY DELIBERATIONS, THE

PROSECUTOR COMMUNICATED WITH AND PRESENTED

EVIDENCE TO THE JURY, IN THE ABSENCE OF THE

JUDGE AND DEFENSE COUNSEL,

DID THIS VIOLATE PETITIONER'S RIGHT TO

DUE PROCESS OF LAW AND THE RIGHT TO COUNSEL

AT A CRITICAL STAGE OF THE TRIAL?

2. WHERE THERE WAS A FAILURE OF THE COURT

REPORTER TO RECORD OR TRANSCRIBE MANY

PORTIONS OF THE TRIAL, INCLUDING THAT PORTION

WHERE THE PROSECUTOR ADDRESSED THE JURY IN

THE COURTROOM WITH NEITHER JUDGE NOR DEFENSE

COUNSEL PRESENT,

DOES THE LACK OF ANY RECORD OF THESE

PORTIONS OF THE TRIAL DENY PETITIONER DUE

PROCESS OF LAW?

- WHERE THE TRIAL JUDGE SINGLED OUT

WITNESS CHARE KNIGHT FOR A WARNING THAT IF

HE TESTIFIED HE WOULD BE GIVEN A LIFE SENTENCE

FOR PERJURY, AND WHERE THIS WARNING SCARED

WITNESS KNIGHT OFF THE WITNESS STAND

DID THE JUDGE'S THREATS TO THE WITNESS

DENY PETITIONER HER RIGHT TO A FAIR TRIAL?

4. WHERE THE POLICE HYPNOTIZED A WITNESS,

BUT THERE WAS NO RECORD OF HER PREHYPNOTIC

MEMORIES, AND OTHER SAFEGUARDS WERE NOT

FOLLOWED,

DID THE ADMISSION OF HYPNOTICALLY

INDUCED TESTIMONY DENY PETITIONER DUE PROCESS

OF LAW?

5. WHERE THE PROSECUTOR OBSERVED THAT

WITNESS KNIGHT WAS PREPARED TO TESTIFY UNTIL

THREATENED BY THE JUDGE,

DID THE PROSECUTOR DENY PETITIONER A

FAIR TRIAL BY TELLING THE JURY WITHOUT

EVIDENCE AND OVER OBJECTION THAT THE REASON

FOR KNIGHT'S REFUSAL TO TESTIFY WAS THREATS BY

PETITIONER, AND BY OTHER IMPROPER ARGUMENT?

6. WHERE A TRANSCRIPT FROM THE

PRELIMINARY EXAMINATION TESTIMONY OF A

WITNESS WAS READ TO THE JURY,

DID THE FAILURE TO DELETE OBJECTIONABLE

MATERIAL TO WHICH OBJECTION WAS SUSTAINED

AT THE EXAMINATION DENY PETITIONER DUE

PROCESS OF LAW?

if WHERE THE JURY REQUESTED TO HAVE THE

TESTIMONY OF 5 WITNESSES REREAD, BUT THE JUDGE

WOULD ALLOW ONLY THE REREADING OF THE ONE

WITNESS MOST DAMAGING TO PETITIONER,

DID THE JUDGE ABUSE HIS DISCRETION AND

DENY PETITIONER DUE PROCESS OF LAW?

8. DID PETITIONER RECEI VE THE EFFECTIVE

ASSIST ANCE OF COUNSEL?

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

INDEX OF AUTHORITIES

OPINIONS BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

QUESTIONS 1 AND 2

QUESTION 3

QUESTION 4

QUESTION 5

QUESTION 6

QUESTION 7

QUESTION 8

CONCLUSION

APPENDIX

A Opinion of the United States Court

of Appeals for the Sixth Circuit

B Opinion of the United States District

Court, Eastern District of Michigan

AZ21

INDEX OF AUTHORITIES

Authority

Berger v. United States, 295 US. 78;

55 S.Ct. 629; 79 L.Ed. 1314 (1935)

Bruton v. United States, 391 US. 123;

88 S.Ct. 1620; 20 L.Ed.2d 476 (1968)

Capitol Traction Company Vv. Hof,

174 US. 1 (1899)

Cook v. Bordenkircher, 602 F.2d 117

(6th Cir. 1979)

Davis v. Alaska, 415 US. 308;

94 S.Ct. 1105; 39 L.Ed.2d 347 (1974)

Dillon v. Duckworth, 751 F.2d 895, 898

n. 2 (7th Cir. 1984)

Giglio v. United States, 405 U.S. 150;

92 S.Ct. 763; 31 LEd.2d 104 (1972)

Glasser v. United States, 315 US. 60;

62 S. Ct. 457; 86 L.Ed. 680 (1941)

Green v. Arn, 809 F.2d 1257

(6th Cir. 1987)

Houston v. Estelle, 569 F.2d 372

(5th Cir. 1978)

Illinois v. Allen, 397 US. 337;

90 S.Ct. 1057; 25 L-Ed.2d 353 (1970)

Kimmelman v. Morrison, 477 US. __;

106 S.Ct. __; 91 L.Ed.2d 305 (1986)

Mayer v. Chicago, 414 U.S. 189;

92 S.Ct. 410; 39 L.Ed.2d 378 (1978)

Rock v. Arkansas, 483 US. __-;

107 S.Ct. __; 97 L_Ed.2d 37 (1987)

Silverson v. O'Leary, 764 F.2d 1208

(7th Cir. 1985)

State v. Hurd, 86 N.J. 525;

432 A.2d 86 (1981)

Strickland v. Washington, 466 U.S. 668;

104 S.Ct. 2052; 80 L.Ed.2d 674 (1984)

United States v. Cronic, 466 US. 648;

104 S.Ct. 2039; 80 L.Ed.2d 657 (1984)

United States v. Gonzaiez Vargas,

558 F.2d 633 (1st Cir. 1977)

United States v. Lamerson, 457 F.2d 371

(Sth Cir. 1972)

United States v. Latimer, 511 F.2d 498

(10th Cir. 1975)

United States v. Licavoli, 725 F.2d 1040

(6th Cir. 1984)

United States v. Peak, 498 F.2d 1337

(6th Cir. 1974)

United States v. Toney, 440 F.2d 590

(6th Cir. 1971)

United States v. United States Gypsum,

438 US. 442; 98 S.Ct. 2864;

57 L.Ed.2d 854 (1978)

United States v. Wade, 388 US. 218;

vi

20

9,10,25

9,14

25

25

25

29

24

29

28

87 S.Ct. 1926; 18 LEd.2d 1149 (1967)

United States v. Whitmore, 480 F.2d

1154 (D.C. Cir. 1973)

Webb v. Texas, 409 US. 95;

93 S.Ct. 351; 34 LEd.2d 330 (1972)

Young v. Duckworth, 733 F.2d 482

(7th Cir. 1984)

Sixth Amendment

Fourteenth Amendment

ABA Standards on Criminal Justice, §5.2

Vii

10,12

25

15,16,17

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

MILDRED PERRY,

Petitioner

vs.

CAROLE HOWES, Warden, Florence

Crane Women's Correctional Facility,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MILDRED PERRY, Petitioner, by and through

her attorney, James S. Lawrence, moves this Court to

issue a Writ of Certiorari to review a judgment of the

United States Court of Appeals for the Sixth Circuit,

issued July 19, 1988.

OPINI OW

The opinion of the Sixth Circuit Court of

Appeals of July 19, 1988 is reprinted as Appendix A.

The opinion of the United States District Court for the

Eastern District of Michigan of November 18, 1986 is

reprinted as Appendix B.

STATEMENT OF JURISDICTION

This case was filed in U.S. District Court as a

Petition for Writ of Habeas Corpus for a state prisoner

being held in violation of the constitution of the

United States, with jurisdiction attaching under 28

US.C. §2254.

The final judgment of the U.S. Court of Appeals

for the Sixth Circuit was entered July 19, 1988. This

Court has jurisdiction to entertain a Petition for Writ

of Certiorari pursuant to 28 U.S.C. §1254(1).

NSTIT PROVISIONS INVOLVED

The Fourteenth Amendment to the United

States Constitution provides:

“No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any state deprive any

person of life, liberty or property without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

The Sixth Amendment to the United States

Constitution provides:

“In all criminal prosecutions, the accused shall

enjoy the right...to be confronted with the witnesses

against him...and to have the Assistance of Counsel

for his defense.”

3

STATEMENT OF THE CASE

Petitioner Mildred Perry was jury tried in

Wayne County Circuit Court, a state court of Michigan,

before the Hon. Horace Gilmore. She was convicted of

second-degree murder and conspiracy to commit

second-degree murder in connection with the

shooting death of her husband Rothbe Elwood Perry.

Petitioner was subsequently sentenced to to

concurrent life terms of imprisonment.

The Michigan Court of Appeals in People v.

Perry, 115 Mich. App. 533, 321 N.W.2d 613, 620

(1980),vacated petitioner's conviction for conspiracy

to commit second-degree murder and affirmed

Petitioner's conviction for second-degree murder. The

Michigan Supreme Court in People v. Perry, 417

Mich. 908, 330 N.W.2d 852 (1983), 422 Mich. 882,

367 N.W.2d 68 (1985), remanded Petitioner's case

back to the Michigan Court of Appeals twice for a

deter mination of the propriety of admitting

hypnotically induced testimony of Christine Brandon.

Each time the Michigan Court of Appeals affirmed the

Petitioner's conviction. People v. Perry, 126 Mich.

App. 86, 337 N.W. 2d 324 (1983); People v. Perry, 144

Mich. App. 420; 375 N.W.2d 10 (1985). Petitioner

applied for leave to appeal a third time in the

Michigan Supreme Court which was subsequently

denied.

Petitioner then brought the present federal

action for a writ of habeas corpus in the United

States District Court for the Eastern Division of

Michigan which was denied. The order denying

habeas relief was affirmed by the United States Court

of Appeals for the Sixth Circuit.

Petitioner Perry was jointly tried with Robert

Jackson, whose reversal was upheld by this Court in

Michigan v. Jackson, 475 U.S. 625 (1986).

Alice Schwartz, a neighbor of the Petitioner,

testified that on July 12, 1979 at 4:30 a.m. the

petitioner was knocking on her door screaming for

help and saying someone broke into her house and

shot her husband. (T V,15-17).

Douglas Smith, a police officer, testified that he

responded to the petitioner's home, and found

Petitioner's husband laying on the bed in the

bedroom with gunshot wounds inflicted. (T V,

111-112).

Jeanette Tonilas testified that she was

employed at Jacobson's in Dearborn and on July 11,

two black men came in and asked for Petitioner who

was employed there. One of the men was identified

as Defendant Jackson.(T VIII, 11-13).

Yuki Brooks testified that she worked in a cafe

a couple of blocks from Jacobson’s and on July 11,

1979, Petitioner and defendant Jackson and another

black male came in and ordered cokes.(T VIII, 26).

6

Christine Brandon, the niece of petitioner,

testified the petitioner told her she was going to have

the deceased beat up. The witness also testified after

the deceased was shot a man by the name of

“Charles” called her house several times looking for

the petitioner. (T X, 41).

Witness Chare Knight, had entered into a plea

bargain under which he was to testify at the

preliminary examination and at petitioner's trial. (T

X, 79). Prior to the trial Knight withdrew his plea of

guilty and asserted his Fifth Amendment right to

remain silent. (T X, 83). Knight subsequently

indicated that although his attorney advised against

it, he would testify at Petitioner's trial. (T X, 78-79).

Knight was present in court and prepared to

testify. Before the judge allowed Knight to testify, he

warned Knight that he could receive a life

imprisonment term for perjury. (T X, 82-83). Knight

then refused to testify.

Previous testimony of Knight implicating

Petitioner in a plot to kill her husband was provided

to the jury, however, it was not transcribed. (T XI,

79).

Mr. Knight's testimony was read to the jury

twice, once during the presentation of the state's

evidence and once after the jury had retired to

deliberate. When it was read to the jury for the

second time, it was read to the jury by the prosecutor

outside the presence of the judge and defense

counsel. (See T XXV, 152-154).

In closing argument, the prosecutor told the

jury over objection that Chare Knight refused to

testify because he was afraid of the Petitioner,

because of threats Knight allegedly received while in

custody. (T XXIV, 22, 73-74).

Petitioner took the stand in her own defense.

She testified that she never arranged to have her

husband killed, but only to have him beaten, as her

spiritual adviser Sylvia had recommended as a means

of getting him back. (T XX, 26, 70-94). Petitioner was

surprised and awakened by the gunshots, followed

by a person appearing in her bedroom and

demanding money. She testified that she left some

money on a chair before running into her husband's

bedroom where she found him bleeding. (T XX,

99-109).

REASONS FOR GRANTING THE WRIT

Questions 1 and 2: Absence of defense

counsel and judge during critical stage

of the case, wihile prosecutor

communicated with the jury, and lach

of transcript record of this and other

portions of the trial, denied Petitioner

the right to counsel, a fair trial, and due

process of lau.

Petitioner Mildred Perry was convicted of

second degree murder in the death of her husband of

her husband in a state court of Michigan. The

conviction was based largely on the transcript of the

preliminary examination testimony of Chare Knight, a

witness who refused to testify at trial.

During the deliberations of the jury, there was

a request to reread testimony. In the absence of

defense counsel and the judge, the prosecutor

communicated with the jury, purportedly rereading

the testimony of Chare Knight. This was a lengthy

proceeding apparently taking several hours, because

the exam transcript of Knight was 250 pages long.

(See T XXV, 152-154). The court reporter failed to

transcribe any of this proceeding.

A Petition for Writ of Habeas Corpus claimed

inter alia that Petitioner was deprived of her due

process rights and right to counsel when the

prosecutor made this communication without the

benefit of a judge, defense counsel, or a court

reporter. The Sixth Circuit rejected those claims,

finding that the presence of the Petitioner and a

non-attorney employee of defense counsel rendered

any error harmless.

The Sixth Circuit ruling conflicts with

numerous cases decided by the federal courts,

including Strickland v. Washington, 466 U.S. 668; 104

S.Ct. 2052; 80 L.Ed.2d 674 (1984): United States v.

Cronic, 466 US. 648 ; 104 S.Ct. 2039; 80 L.Ed.2d 657

(1984): Silverson v. O'Leary, 764 F.2d 1208 (7th Cir.

1985); Young v. Duckworth, 733 F.2d 482 (7th Cir.

1984): as well as the Sixth Circuit case of Green V.

Arn, 809 F.2d 1257 (6th Cir. 1987). These cases hold

that defense counsel's absence during a critical stage

of a trial denies the basic Constitutional guarantee

that a criminal defendant shall enjoy representation

by defense counsel during her trial.

As the Court held in United States v. Cronic

466 US. 648; 104 S.Ct. 2039; 80 LEd.2d 657 (1984),

decided on the same day as Strickland:

“The presumption that counsel's

assistance is essential requires us to

conclude that a trial is unfair if the accused

is denied counsel at a critical stage of

~~

The holding in Cronic has been followed by the

Sixth Circuit in at least one case, Green v. Arn, supra,

in which the Court held:

“Where the Sixth Amendment claim is

the denial, rather than the ineffective

assistance of counsel, the criminal

defendant need only show that counsel was

absent during a critical stage of the

proceedings in order to establish the

constitutional violation. Absence from the

proceedings is deficient performance as a

matter of law, and prejudice is presumed.”

In accord on the presumption of prejudice, see

Strickland, 104 S.Ct. at 2067; Dillon v. Duckworth, 751

F.2d 895, 898 n. 2 (7th Cir. 1984).

The Sixth Circuit ruled that the presentation of

testimony to the jury by the prosecutor did not

constitute a critical stage of the proceedings. This

remarkable ruling demonstrates the great need for

this Court to revisit the question of what is a critical

stage of the proceedings, because the lengthy,

untranscribed communication With the jury during

deliberations was indeed a stage “where counsel's

absence might derogate from the accused's right to a

fair trial.” United States v. Wade, 388 US. 218,

226-227; 87 S.Ct. 1926; 18 L.Ed.2d 1149 (1967).

10

11

This is particularly so in light of the absence of

the judge. Prior cases suggest that the presence of

the judge is a constitutional necessity. See, e.g.,

Glasser v. United States, 315 U.S. 60, 71; 62 S. Ct. 457;

86 L.Ed. 680 (1941); Capitol Traction Company v. Hof,

174 US. 1, 13-14 (1899).

In this case, the jury requested a rereading of

testimony, thereby indicating that they were very

likely to be influenced by what they were to hear.

In this case, the prosecutor, the only lawyer

present in the courtroom, necessarily played a triple

role, that of judge, defense counsel and prosecutor.

The prosecutor as prosecutor proposed that he and

not some neutral person present the testimony to the

jury. The prosecutor as judge agreed with that

procedure and oversaw his own actions. The

prosecutor as defense counsel apparently chose to

raise no objections to the prosecutor's actions.

Of course, the real defense counsel could not

object to the tone, manner, or content of what was

said by the prosecutor to the jury as he made his

presentation to an eagerly awaiting jury, because he

was not there. Nor could any objection have been

ruled upon even if made because there was no judge.

A lawyer is an advocate, and as an advocate

cannot reasonably be permitted to have ex parte

contact with the jurors at any time, much less during

deliberations. Can we presume that the prosecutor

12

gained no benefit from the absence of opposing

counsel for hours? Is such a presumption consistent

with what we know about attorneys? Can attorneys

representing parties be consistently relied upon to

lack any partisanship in their presentations?

The communication of one attorney with the

jury during deliberations, in the absence of a judge or

opposing counsel, is a situation rampant with

opportunities for abuse. Moreover, we have no

record of what actually transpired as the prosecutor

communicated with the jury. Did he argue his case to

the jury? Did he speak any words not written? Did

he delete anything, or add comments designed to

help his side of the case? Did he use tone of voice to

try to sway the jury during this most critical moment

in the trial?

The act of single-handedly conducting a court

proceeding for the jury necessarily adds to the power

and prestige of the attorney in the eyes of the jury.

The jury request indicates that the jury was

undecided and in a position to be swayed. If the

reading of the testimony the first time was a critical

stage of the trial, then why would the rereading

during the delicate and crucial stage of jury

deliberation suddenly become unimportant? This

lengthy, untranscribed communication with the jury

during deliberations was indeed a stage “where

counsel's absence might derogate from the accused's

_ eeeeeeeecore

13

right to a fair trial.” United States v. Wade, supra.

Indeed, if this were not a critical stage of the

proceedings, the Petitioner herself would have no

right to be present. Illinois v. Allen, 397 U.S. 337; 90

S.Ct. 1057; 25 L.Ed.2d 353 (1970). If the instant case

remains good law in the Sixth Circuit, then we may as

well allow prosecutors to enter the jury room at will

to communicate with them, because if there is no

right to have a judge or defense counsel present, it is

not a critical stage at which a defendant must be

present.

The Sixth Circuit ruled that “Petitioner has not

suggested that anyone in the courtroom did anything

improper.” That is precisely why a lawyer was

needed. We submit that it is not the province of a

criminal defendant to determine the propriety of

prosecutor actions; it is the province of defense

counsel. An untrained criminal defendant has no

basis on which to judge whether the prosecutor's

actions with the jury were illegal or objectionable.

That is why she is entitled to a defense lawyer

present on the spot to object while information is

being given to the jury, and is entitled to a judge to

hear objections.

Of course, the total absence of a record means

that Petitioner has been denied “a record of sufficient

completeness to permit proper consideration of (her!

claims, Mayer v. Chicago, 414 US. 189; 92 S.Ct. 410;

14

39 L.Ed.2d 378 (1978). In addition to the instances

discussed above, there were numerous instances of

tape recordings of witness statements being

presented to the jury with no transcription of what

was heard. (T XIII, 6; T XV, 45; T XXII, 4). Further,

the original reading of Knight's testimony was not

transcribed. (T XI, 79). This means that those

portions of the trial are effectively unreviewable on

appeal or now.

Here, unlike in Silverson, there is substantial

doubt as to what was said to the jury, because of the

absence of record. Here, as in Cronic, the prejudice is

legally presumed when there has been an actual or

constructive denial of the assistance of counsel, as

opposed to a claim of ineffective assistance of counsel

who is present.

It is difficult to imagine a more critical stage of

the trial than the presentation of evidence to the jury

on a defendant's guilt, from the mouth of the very

prosecuting attorney who was trying to achieve a

guilty verdict.

Question 3: The action of the trial judge

in singling out witness Chare Knight and

chasing him off the witness stand with

threats of life imprisonment.

Witness Chare Knight had eniered into a plea

15

bargain under which he was to testify at the

preliminary examination and at petitioner's trial. (T

X, 79). Prior to the trial Knight withdrew his plea of

guilty and asserted his Fifth Amendment right to

remain silent. (T X, 83) Knight subsequently

indicated that aithough his attorney advised against

it, he would testify at Petitioner's trial. (T X, 78-79).

Knight was present in court and prepared to

testify. Before the judge allowed Knight to testify, he

warned Knight that he could receive a life

imprisonment term for perjury. (T X, 82-83). Knight

then refused to testify, leaving his preliminary

examination testimony available for the jury without

any opportunity for the jury to view his demeanor

under cross-examination.

The trial judge's warning to Knight violated

Petitioner's due process rights as discussed in Webb

v. Texas, 409 US. 95; 93 S.Ct. 351; 34 L.Ed.2d 330

(1972). In Webb, the trial judge told a witness that

he had been called as a witness by the defendant,

that he had a right not to testify, thai anyining ne

said might be used against him, and that if the

Witness ‘lied under oath, the Court will personally see

that your case will go to the grand jury and you will

be indicted for perjury’, etc. This chased the witness

off the stand.

In reversing the conviction, this Court said:

16

“The trial judge gratuitously singled out

this one witness for a lengthy admonition

on the dangers of perjury. But the judge

did not stop at warning the witness of his

right to refuse to testify and of necessity to

tell the truth. Instead, the judge implied

that he expected Mills to lie, and went on to

assure him that if he lied he would be

prosecuted and probably convicted for

perjury, and the sentence for that

conviction would be to impair his chances

for parole...

In the circumstances of this case, we

conclude that the judge's threatening

remarks, directed only at the single witness

for the defense, effectively drove that

witness off the witness stand, and thus

deprived the petitioner of due process of

law under the Fourteenth Amendment.”

Knight wanted to testify in petitioner's trial. (T

X, 78). But, after the trial court's threats, Knight

declined to testify. (T X, 83). The threats made to

witness Knight by the trial judge were

indistinguishable from those in Webb v. Texas.

Knight's testimony at petitioner's trial was of

critical importance. That testimony would allow

petitioner the opportunity to fully cross-examine

Knight. It is well known that lawyers generally do

not come to preliminary examinations as fuliy

17

prepared for cross-examination as at trial, and that in

effect Knight had not been fully cross-examined at

preliminary examination. (T IX, 68-81).

Further, testimony from Knight was critical on

the question of whether Knight was induced to give

false testimony at the preliminary examination in

return for a light plea and sentence.

The Sixth Circuit denied relief (Appendix,

A-16) by speculating that Knight was “probably”

going to commit perjury, and implicitly finding that

the preliminary examination testimony of Knight was

the truth, and that anything else would therefore be

a lie. However, this Court expressly rejected such

reasoning in Webb v. Texas.

The Sixth Circuit reasoning essentially holds

that if it is suspected that a witness's testimony will

differ in any way from that given at the preliminary

examination, the jury does not have the right to

choose between the competing stories, but must hear

only the version that most seriously implicates the

defendant. Petitioner submits that under Webb, due

process requires that the jury and not the judge must

choose which testimony to believe. Evidently, the

principles of Webb v. Texas are becoming lost in the

cobwebs of time, and action by this Court is necessary

to reaffirm and revitalize them.

Question 4: The admission of testimony

of a hypnotized witness, where

recognized safeguards were not

followed, and where pre-hypnosis

memories were not preserved.

The admission of the hypnotically refreshed

testimony of the Petitioner's niece, Christine Brandon,

denied her a fair trial. Witness Brandon gave

18

Statements to the police on July 27, 1979 and July 29,

1979. (T X, 69). These statements were not recorded

in any way but, presumably, they were not very

incriminatory of Petitioner, or there would have been

no need to hypnotize her.

In August 1979, Brandon, accompanied by two

police officers, Sergeants Ericson and Hoff of the

Livonia Police Department, and Charles Seller, the

prosecutor, went to Lansing, where Brandon was

hypnotized by Gary Powell. Brandon was hypnotized

at the request of the police and prosecutor. (T XXIV,

13). Sgts. Ericson and Hoff and Mr. Seller were

present during the hypnotic session, which lasted

three or four hours.

At trial, there was an objection to the

admission of Brandon's testimony as to her

recollection after being hypnotized, which was

overruled. (T VIII, 83).

Petitioner claimed that the admission of the

’

19

testimony of Brandon denied due process and the

right of confrontation. The Sixth Circuit affirmed the

denial of habeas corpus relief, largely on the basis of

Rock v. Arkansas, 483 US.___ 107 S.Ct. ___ , 97 L..

Ed.2d 37 (1987). In Rock, a majority of this Court

held that hypnotism of the defendant would not

preclude his becoming a witness. However, this

holding was not based on the reliability of

hypnotically induced testimony, but on the

constitutional right of a defendant to testify. Indeed.

in Rock both the majority and the dissent agreed

generally that post-hypnosis testimony presented

substantial problems of reliability. Because Rock is

taken by the Sixth Circuit as license to admit all

hypnotically induced testimony, in apparent

disregard of both the majority and dissenting

positions in Rock, the issue of hypnotized witnesses

requires Supreme Court review.

This Court is well aware of the multitude of

cases from around the country dealing with the

complex issue of hypnosis, and a Petition for

Certiorari is not an appropriate place for counsel to

review them all. However, the growing number of

hypnosis cases makes the instant issue one which is

very much a timely issue for review. The confusion

which Rock has apparently engendered also makes

this an ideal time to explore the question.

Petitioner would note that many courts have

20

ruled out testimony by hypnotized witnesses

altogether, while other courts which have admitted

such testimony have discussed with approval the

standards of State v. Hurd, 86 N.J. 525; 432 A.2d 86

(1981) for use of hypnosis in criminal investigations.

In this case, there was a Violation of standard 2 (the

hypnosis was conducted by a prosecution agent),

standards 3 and 4 (there was no record of the

pre-hypnosis memories), standard 5 (there was no

recording of the hypnotic session) and standard 6

(persons other than the hypnotist and subject were

present). On a factuai level, this case is therefore

ideal for review.

In this case, witness Brandon made a

post-hypnotic statement that what she told the police

before she was hypnotized was the same as what she

told them after she was hypnotized. (T X, 74).

However, the very nature of hypnosis makes such

testimony unreliable.

In Rock v. Arkansas, supra, this Court

discussed three characteristics of hypnosis which

may lead to the introduction of inaccurate memories.

1) Under hypnosis, the subject becomes

“suggestible’, and may try to please the

hypnotist with answers the subject thinks

will meet with approval.

2) The subject is also likely to

21

“confabulate’, to fill in details from the

imagination to make an answer more

coherent and complete.

3) The subject experiences “memory

hardening”. This gives the subject great

confidence in both true and false memories,

making effective cross-examination more

difficult.

Suggestibility. Brandon had been interviewed

by the police on two occasions before she was

hypnotized. Even if the questioning by prosecution

agents during the hypnotic session was fully

unbiased, the two previous interviews by the police

had already revealed to Brandon the police's theory

of the killing. Brandon was hypnotized at the request

of the police, and the police and prosecutor were

present during the hypnotic session. Since a person

under hypnosis experiences a compelling desire to

please either the hypnotist or others who have stated

that it is important to remember certain events, the

subject may produce the answers he or she believes

are expected.

Confabulation. When a hypnotic subject cannot

recall details being sought, the subject will

unconsciously create answers to the questions the

hypnotist asks. Neither the person hypnotized nor

22

the expert observer can distinguish between

confabulation and accurate recall in any particular

instance. Since the answers desired by police and

prosecutor had already been suggested to Brandon,

she may have filled the gaps in her memory with

answers suggested in her previous interviews With

the police.

Memory Hardening. A witness who undergoes

hypnosis becomes convinced that the story he or she

told under hypnosis is true. The conviction becomes

stronger each time the witness repeats the story.

Since there is no record of what Brandon said before

she was hypnotized, Brandon cannot tell what she

remembered before her hypnosis.

l

Brandon could not be effectively

cross-examined as to her recollection of events

because of her hypnosis, because there was no record

of Brandon's statements to the police before she was

hypnotized, there was no way for defense counsel to

meaningfully cross-examine her about the statements

she made before she was hypnotized. This violates

the Sixth Amendment right to confrontation. Davis v.

Alaska, 415 US. 308; 94 S.Ct. 1105; 39 L.Ed.2d 347

(1974).

Petitioner submits that there is a present need

for the highest court in the land to review the extent

neiinioiietiaee eae

a“ 1 |

23

to which the admission of post-hypnotic testimony

Violates the right of cross-examination, and the

extent to which it denies the right to due process and

a fair trial under the Fourteenth Amendment.

Question 5: improper prosecutor

argument inventing prejudicial facts

for the jury.

In the Sixth Circuit and District Court,

Petitioner quoted at length numerous examples of

improper argument. The Sixth Circuit denied relief

on the ground that the argument in this case was not

as bad as that in Cook v. Bordenkircher, 602 F.2d 117

(6th Cir. 1979), where that Court also denied relief.

In Cook, there were fire and brimstone

arguments condemning the character of the accused.

In the instant case, we have a very different

Situation. Instead of improper siurs on a defendant's

character, as in Cook, we have prosecutorial invention

of facts, a situation much more akin to Berger v.

United States, 295 U.S. 78; 55 S.Ct. 629; 79 L.Ed. 1314

(1935), where this Court held reversal to be

necessary.

In this case, the prosecutor repeatedly told the

jury that Chare Knight refused to testify because he

was afraid of the Petitioner, because of threats Knight

allegedly received while in custody. (T XXIV, 22,

a ia

24

73-74). There was no evidence to support this

allegation. Moreover, the record plainly shows it to

be false, because Knight, unknown to the jury,

appeared in court ready to testify, and then refused

to testify only because the judge threatened him with

life imprisonment. For the prosecutor to present this

pack of lies to the jury under the official auspices of

his office is a disgrace to civilized procedure and is

directly contrary to this Court's holding in Berger v.

United States.

The federal courts, until now, have repeatedly

held that it is improper for the prosecutor in

questioning or argument to insinuate that a criminal

defendant is threatening or endangering a witness.

See, e.g. Houston v. Estelle, 569 F.2d 372 (Sth Cir.

1978). Indeed, the Sixth Circuit itself, in United

States v. Peak, 498 F.2d 1337 (6th Cir. 1974), held

that reference to threats before the jury was so

prejudicial that it could not be cured even by a

cautionary instruction. In this case, despite the

objection, there was not even a cautionary

instruction.

In addition to the invention of threats by the

defendant, we also have vouching for the credibility

of witnesses, and suggestions that the prosecution

had secret evidence undisplayed to the jury that

showed that certain prosecution Witnesses either

were or were not being truthful. The prosecutor also

TS

25

told the jury that the phrase that Petitioner wanted

her husband ‘beat up’ really meant ‘to kill,” but

without any testimony whatever that a killing was

being discussed or that “beat up’ was a code for “kill.”

The prosecutor's testimony, in the guise of argument,

substantially added to the case against Petitioner. All

of these comments were objected to, but were denied

on the grounds that this was closing argument.

In United States v. Latimer, 511 F.2d 498 (10th

Cir. 1975), the Court reversed because the prosecutor

told the jury in argument why he had not produced

the films from the camera which operated during the

charged bank robbery. See also United States v.

Whitmore, 480 F.2d 1154 (D.C Cir. 1973), United

States v. Gonzalez Vargas, 558 F.2d 633 (1st Cir.

1977); United States v. Lamerson, 457 F.2d 371 (Sth

Cir. 1972). Yet, in the instant case, the prosecutor

Was permitted to blatantly lie to the jury, inventing

facts that he knew to be false.

It is unconstitutional to present perjured

testimony to the jury, and it therefore is also

unconstitutional to present perjured argument to the

jury. Giglio v. United States, 405 U.S. 150; 92 S.Ct.

763; 31 LEd.2d 104 (1972). The prosecutor, having

heard of Knight's willingness to testify, and having

heard him frightened away, not by the Petitioner, but

by the judge, took advantage of the jury's ignorance

of these facts to mislead the jury.

ee ee ee

26

The Sixth Circuit apparently believes that since

the prosecutor in Cook was permitted to get away

with one form of improper argument, that no

improper argument can deny due process. This Court

should grant certiorari to clarify that a prosecutor

cannot make up witness fear of the defendant in

order to unfairly paint the defendant as a bad person.

This Court should also grant certiorari to clarify

that a prosecutor cannot invent reasons for a refusal

to testify to deceive the jury and cover up the

genuine reasons. Because the jurors saw that Knight

refused to testify, the attribution of this to threats by

Petitioner was highly prejudicial. Because the

genuine reasons for Knight's refusal to testify were

well known to the prosecutor, the argument was

plainly a situation where the intent to prejudice the

jury by lying to them was manifest. In the United

States, the world leader in due process of law, such

deliberate, prejudicial misconduct cannot properly be

affirmed or ignored without serious damage to the

integrity of the judicial system.

Question 6: Reading the entire

transcript of Knight's preliminary

examination testimony to the jury,

winhere the transcript included

numerous objectionable matters to

wihich objections were sustained at

eel

27

the preliminary examination.

During the preliminary examination, Witness,

Chare Knight, testified to what Robert Jackson,

petitioner's co-defendant had told him about

petitioner. (PET, 147-151) This testimony was

certainly hearsay as it related to Petitioner. It was

presented for the truth of the matter asserted by

Jackson to Knight. Objection to the testimony was

sustained. (PET, 151).

Jackson did not testify in Petitioner's trial.

Therefore, when the transcript was read to the jury,

the jury was permitted to hear inadmissible

testimony, Without any right to cross-examine either

the source (Jackson) or the repeater (Knight). This

violates the Sixth Amendment right to confrontation.

Davis v. Alaska, 415 US. 308; 94 S.Ct. 1105; 39

L.Ed.2d 347 (1974); Bruton v. United States, 391 US.

123; 88 S.Ct. 1620; 20 L.Ed.2d 476 (1968).

We do not know whether there were any

objections to this at trial, because the court reporter

did not report this portion of the trial. (See T XI, 79).

Question 7: The denial of a jury request

to hear the testimony of 5 witnesses

reread, but granting the rereading of

witness Knight's preliminary

examination testimony.

——Ssss”T'_, .

28

Following the completion of proofs and

delivery of the jury instructions, the jury requested

that the testimony of five witnesses, including

Petitioner, be reread. The trial judge denied this,

com menting that only Knight's testimony was readily

available for rereading. (T XXIV, 112-114).

Not surprisingly, the jury later asked for

Knight's testimony to be reread, and this was granted.

(T XXV, 152).

The trial judge abused his discretion by

invading the fact-finding function of the jury. United

States v. United States Gypsum, 438 U.S. 442; 98 S.Ct.

2864; 57 L.Ed.2d 854 (1978). The jury was

deliberating and wanted the testimony reread to

assist them in their deliberation. To ask the jury to

continue deliberating without the necessary

testimony they felt they had to have was a abuse of

discretion on the part of the trial judge. And,

moreover, limited the jury's deliberation

considerations to one persons testimony, the

preliminary examination testimony of Knight, the

most unfavorable testimony to Petitioner. Logic is

against the thought that the jury, the next day,

simply decided it wanted to hear only the testimony

of Chare Knight. The jury clearly knew the other

testimony it wanted to review was unavailable by

the trial judge's comments towards them, so the jury

ee

29

picked the only testimony it knew had been

transcribed.

This action by the judge was in violation of the

ABA Standards on Criminal Justice, §5.2. It was also,

an abuse of discretion by the trial judge, depriving

Petitioner of a federal constitutional right. United

States v. Toney, 440 F.2d 590, 592 (6th Cir. 1971);

United States v. Licavoli, 725 F.2d 1040, 1049 (6th

Cir. 1984).

Question 8: Ineffective assistance of

counsel.

As argued in the District Court and the Sixth

Circuit, counsel was ineffective for absenting himself

during a crucial portion of the trial, for not requiring

transcription of various portions of the trial, for not

insisting on the judge's presence during a crucial

portion of the trial (perhaps because he did not want

to be there himself), and for other failures to object.

A criminal defendant has a Sixth Amendment

right to the effective assistance of counsel at trial.

Certainly, this issue is an active one in the recent

history of Supreme Court jurisprudence. Strickland v.

Washington, 466 US. 668; 104 S.Ct. 2052; 80 L.Ed.2d

674 (1984); Kimmelman v. Morrison, 477 US. __;

106 S.Ct. __; 91 L.Ed.2d 305 (1986).

In this case, it appears that counsel may have

30

had a conflict of interest. He failed to stay in court to

protect his client's interests because he had

someplace else he wanted to be. If he had not had

that conflicting interest, Petitioner's right to counsel

may have been protected.

This case is an appropriate vehicle for review

of the ineffective assistance of counsel question.

Conclusion.

Petitioner Mildred Perry respectfully sub mits

that for the reasons stated above, this Court should

grant the Writ of Certiorari and grant either plenary

consideration or summary reversal.

Respectfully sub mitted,

JAMES STERLING LAWRENCE (P33664)

Attorney for Petitioner Perry

515 Monroe

Detroit, MI 48226

(313) 965-4189

Dated: October 12, 1988

Al

No. 86-2131

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MILDRED PERRY,

Petitioner-Appellant

V. On Appeal from the

United States District

Court for the Eastern

District of Michigan.

CAROL HOWES, WARDEN,

Respondent- Appellee.

Decided and Filed

BEFORE: MARTIN, WELLFORD and NELSON, Circuit

Judges.

PER CURIAM. Imprisoned by the State of

Michigan on a conviction for the second-degree

murder of her husband, petitioner applied for federal

habeas corpus relief. The district court declined to

issue the writ, and petitioner has appealed. We shall

affirm the judgment of the district court.

|

The petitioner, Mildred Perry, was sentenced

to two concurrent terms of life imprisonment after a

A2

Wayne County Circuit Court jury found her guilty of

murder in the second-degree and conspiracy to

commit second-degree murder. Petitioner and the

alleged triggerman, Robert Jackson, were tried

together before different juries.

The testimony at trial showed that petitioner's

husband had been seeing another woman. Distraught

over her husbands affair, petitioner called the other

woman, Claire Miller, and asked her if she knew ‘that

in the Detroit area for six hundred dollars or less you

can have anyone eliminated that you want.” Ina

later conversation petitioner told Ms. Miller that she

couldn't ‘stand the humiliation of a second divorce”

and “would rather see [her husband] dead that with

another woman.” Ms. Miller testified that she and

Mr. Perry had been planning to start a vacation

together in Baltimore shortly before Mr. Perry was

shot. There was evidence that petitioner had met

with Mr. Jackson and another man the day before the

shooting.

There were two witnesses whose testimony

figures prominently in the petitioner's assignments

oferror here. The first, Mr. Chare Knight (also called

Charles Knight), had been indicted for first-degree

murder. Mr. Knight agreed to testify at a preliminary

hearing and at the trial of petitioner and Mr. Jackson

in exchange for being allowed to plead guilty to a

reduced charge of second-degree murder.

A3

At the preliminary examination Mr. Knight

testified that petitioner had contacted him about

arranging the murder of her husband. Knight said

that he and Jackson met with petitioner on at least

two ocassions, and once drove past the Perry home to

show Jackson where it was. Mr. Knight also testified

that Robert Jackson later told him he had murdered

petitioner's husband and received payment from the

Petitioner for doing so.

Mr. Knight repudiated his plea bargain before

petitioner's trial and indicated a willingness to testify

on behalf of petitioner and Mr. Jackson. When Mr.

Knight's attorney informed the circuit Court of his

client's change of heart, the court warned Knight

about the dangers of committing perjury. Knight

then declined totestify, asserting his privilege under

the Fifth Amendment. Finding that Mr. Knight was

“unavailable” under the Michigan Rules of Evidence,

the court allowed the jury to hear the transcript

testimony given by Mr. Knight at the preliminary

examination.

Mr. Knight's testimony was read to the jury

twice, once during the presentation of the state's

evidence and once after the jury had retired to

deliberate. After beginning its deliberations the jury

asked the trial judge for permission to have the

testimony of several witnesses read back, including

the testimony of petitioner and of Mr. Knight. The

A4

judge advised the jury of the difficulties involved in

having testimony reread, and told the jurors to

reconsider their request. After conferring further the

jury asked that only the transcript of the Chare

Knight testimony be reread.

The judge agreed. Unfortunately, the judge

and petitioner's counsel were absent from the

courtroom while Mr. Knight's testimony was beign

repeated. As agreed by petitioner's attorney, an

investigator who worked with the attorney was

present, as was petitioner herself.

The second witness with whom we must

concern ourselves was petitioner's niece, Christine

Brandon. Ms. Brandon testified that approximately

four months before she took the stand she had been

hypnotized at the instance of the prosecutor to help

refresh her memory. The defendants had been

provided with two transcripts of statements that Ms.

Brandon had given the police prior to undergoing

hypnosis. Defense counsel could not show any

mater mil inconsistancies between Ms. Brandon's

tesiimony at trial and the statements she gave before

being hypnotized.

Ms. Brandon's testimony dealt with

conversations she had had with her aunt and with an

individual identified as “Charles.” Prior to the

murder petitioner ahd spoken to her niece several

times about her marital difficulties and about

a ee em Te ener

A5

consultations with a spiritualist known as “Mother

Mary’ or “Reverend Mary.” Acting upon advice from

Mother Mary, as petitioner was said to have told Ms.

Brandon, petitioner had sprinkled some of her

husband's urine on his food and had written his name

several times on a piece of paper which she put in

her shoe. Mother Mary was supposed to have

recom mended these actions to petitioner as means of

winr 1g back her husband's affections. Also at

Mother Mary's suggestion, petitioner told Ms.

Brandon, petitioner arranged to have her husband

beaten up.

A few days before the murder, Ms. Brandon

testified, she received a call from petitioner. “She

said that she had found someone to beat up Elwood

[her husband]. She said it took’em all day long. They

drove all day long to find someone to beat him up,

and that no one would suspect it because they would

drive a big luxury car.” The night before the murder,

accordign to Mr. Brandon, petitioner called Ms.

Brandon to see if Elwood was with her. Ms. B. andon

said he was not. A few hours later Ms. Brandon

called petitioner back. Ms. Brandon “asked her if

Elwood had gotten there, and she said yes, he is here,

and really couldn't talk and she hung up.” The next

morning Ms. Brandodn received a call from petitioner

informing her that Mr. Perry had been killed. In

subsequent conversatrions with her aunt, after the

Aé

police investigation of the murder was underway, Ms.

Brandon said she was told “not to talk to Sergeant

Ericson, he was just out to hang her neck.”

Once when Ms. Brandon was at her aunt's

house she answered the phone and an individual who

identified himself as “Charles” asked to speak with

Mrs. Perry. Petitioner “flaggled] her hands back”

indicating that “[s]he didn't want to talk.” Ms.

Brandon told the caller that Mrs. Perry “has had a

bad day and she reall don't feel like coming to the

phone,” to which the caller replied “if she can play

that way, I can too.” Ms. Brandon testified that

petitioner then ‘panicked and said that we had to get

out of here.” Thereafter “Charles” began calling and

menacing Ms. Brandon at her home in his attempts to

reach Mrs. Perry. Frightened by the calls, Ms.

Brandon turned to the police and gave them the

number Charles had given her.

Petitioner took the stand in her own defense.

She contended that she never arranged to have her

husband killed, and although she did have him

beaten up, this was only intended to “humble” him.

Petitioner maintainted that she had no advance

Knowledge of her husband's assailants breaking into

the house. Only after she was awakened by the

gunshots, she said, did a person appear in her

bedroom and demand money. She testified that she

left some money on a chair before running into her

” aioe,

A7

husband's bedroom where she found him bleeding.

Because the telephone had been ‘pulled to the side, ©

she went to her neighbor's house to call the police.

The remaining evidence is not directly

pertinent here, but after hearing all evidence the jury

found petitioner guilty of both second-degree murder

and conspiracy to commit the murder. Petitioner

appealed her convictions to a Michigan Court of

Appeals. That court vacated the conviction for

conspiracy on the ground that it is impossible to

conspire to commit murder in the second-degree, but

the murder conviction itself was upheld. People v.

Perry, 115 Mich. App. 533, 321 N.W.2d 719 (1982);

People v. Jackson, 114 Mich. App. 649, 667, 319

N.W.2d 613, 620 (1980), rev'd sub nom. People v

Bladel, 421 Mich. 39 (1984), aff'd sub nom. Michigan

v. Jackson, 475 U.S.625 (1986).

In a subsequent state appellate proceedings

the Supreme Court of Michigan twice directed the

Court of Appeals to reconsider the propriety of

admitting Ms. Brandon's hypnotically-refreshed

testimony. People v. Perry, 417 Mich. 908, 330

N.W.2d 852 (1983), 422 Mich. 882, 367 N.W.2d 68

(1985). Each time the Court of Appeals affirmed the

conviction, holding (a) that Ms. Brandon's

hypnotically refreshed testimony was reliable

because it was consistent with her statements prior

to hypnosis, and (b) that even if the consistency

A&

failed to establish reliability, introduction of the

testimony was harmless error because it was

cumlative to other testimony presented at trial.

People v. Perry, 126 Mich. App. 86, 337 N.W.2d 324

(1983); 144 Mich. App. 420; 375 N.W.2d 10(1985).

Petitioner sought review in the Michigan Supreme

Court a third time, but leave to appeal was denied.

petitioner then brought the present federal actionfor

a writ of habeas corpus. The district court denied the

writ. On appeal petitioner advances ten arguments as

to why the district court erred.

II

Half of petitioner's arguments concern the

testimony of Chare Knight, as given at the

preliminary examination and subsequently read to

the jury at petitioner's trial. The first assignment of

error relates to the fact that the court reporter did

not actulally transcribe the reading of the

preliminary examination transcript, but simply relied

on the curiginal transcript.

The Michigan Court of Appeals described this

issue, and disposed of it, as follows: “[Dlefendant's

contention that a determination cannot be made from

the trial transcript as to which portions of the

preliminary examination testimony was read at trial

is Without merit.” Perry, supra, 321 N.W.2d at 721.

ee

A9

Its review of the trial transcript led the court of

appeals ‘to conclude that the entire preliminary

examination testiomony of Chare Knight was read to

the jury. Id. While commenting that ‘the better

practice may have been to re-transcribe the

prelimary examination testimony as it was read at

the trial,” the court could not ‘say that reversible

error occurred because this was not done." Id. The

court also noted that ‘a strong argument could be

made that defense counsel waived re-recording by

the court reporter of the preliminary examination

testimony since the parties obviously had to be

aware that the court reporter was recording the

preliminary examination testimony.’ Id.

We find no flaw in the Michigan court's

decision on this point.. A defendant has no

constitutional right to a verbatim transcript. If an

opportunity to obtain appellate review is mandatory,

all that is required is a record of ‘sufficient

completeness’ to allow presentation of the appellatn’'s

Claims. Schwander v. Blackburn, 750 F.2d 494, 497-8

(Sth Cir. 1985). Having read the trial court's direction

on the reading of the preliminary examination

transcript, we conclude that almost all of the

transcript was read to the jury. It is possible that a

certain colloquy between attorneys was omitted, see

Perry, supra, 321 N.W.2d at 721 n. 1, but there could

have been no prejudice to petitioner whether or not

A 10

the colloquy was read.

Ill

Petitioner's second argument is that the

re-reading of Chare Knight's preliminary examination

testimony to the jury in the absence of the judge and

petitioner's attorney and without a court reporter

being present constituted a denial of due process.

It is not acceptable practice for the judge to be

absent when any evidence is being read or submitted

ot the jury. Under the totality of the cicumstances

presented here, however, and in the absence of any

demonstration of prejudice ot petitioner, the error

did not fatally taint the trial.

As to the absence of petitioner's attorney, this

court has held:

“Where the Sixth Amendment claim is the

denial, rather than the ineffective assistance, of

counsel, the criminal defendant need only

show that counsel was absent during a critical

stage of the proceedings in order to establish

the constitutional violation. Absence from the

proceedings is deficient performance as a

matter of law, and prejudice is presumed.”

Green v. Arn, 809 F.2d 1257, 1263 (6th Cir), vacated

on other grounds, 108 SCt. 52 (1987), reinstated 839

All

F.2d 300 (6th Cir. 1988). The relevant inquiry, then,

is whether petitioner's counsel left during a “critical”

stage in her trial.

In Green, we held that counsel's absence

during the cross-examination of a prosecution

witness Was prejudicial per se and that therefore

harmless error analysis was inapplicable. We also

noted that “some absences by a criminai defendant's

attorney might be so de minimis that there would be

no constitutional significance.” 809 F.2d at 1261.

Suggested circumstances to which harmless error

analysis would be appropriate were preliminary

hearings, jury deliberations, and return of the

verdict.

In the case at bar it does not seem to us that

the rereading of transcribed testimony to the jury

after submission of the case for deliberation

represented a critical stage in petitioner's trial.

Although she and a represenative of her attorney

were both present in the courtromm while the

prosecutor reread Knight's testimony, petitioner has

not suggested that anyone in the courtroom did

anything improper. She has not demonstrated any

prejudice whatever, and the harmless error rule

therefore controls this branch of petitioner's case.

IV

Petitioner's third assignment of error relates to

A 12

the jury's request that the testimony of five

witnesses, including petitioner, be reread. The judge

told the jurors that the reporter's notes had not been

transcribed and it would take some four days to

recreate what was said. He nevertheless advised the

jury that

“[ilf you absolutely have to have it, we

could do that, but I would ask you to continue

your deliberations. * * * As | say, if you get

into it, it is four days. . . that you would sitting,

listening to testimony being read back, so |

would ask that before we do that, you see that

if among the tweive of you discussing the

testimony you can conclude what was said. If

after a day or so you find you can't, then you

make your request again and we will make the

necessary arrangements to read the testimony

to you. I remind you that you will be listening

about three and a half to four days, but you

may have if after you have talked some more

among yourselves you absolutely need it. Send

me another note on it an we will proceed.”

On the following day the jury sent the judge a

note asking that only the testimony of Chare Knight

be reread.

Petitioner claims that it was improper to

reread Mr. Knight's testimony alone, because the

“most damaging testimony was not balanced by the

A 13

re-reading of the testimony of the defendant, that

which the jury had asked for on the previous day.”

The judge has broad discretion as the the rereading

of trial testimony, however, United States v. Toney,

440 F.2d 590, 592 (6th Cir. 1971); United States v.

Licavoli, 725 F.2d 1040, 1049 (6th Cir.), cert. denied

sub nom., Calandra v. United States, 467 U.S. 1252

(1984), and there was no abuse of discretion

amounting to constitutional error here.

V

Petitioner's fourth assignment of error

concerns a portion of Chare Knight's preliminary

examination testimony dealing with what Robert

Jackson said after the crime. Knight testified that

Jackson told him that he and a partner had gained

entry to the Perrys’ house by prying open a garage

door, after which Jackson shot and killed Mr. Perry.

The intruders then went to Mrs. Perry's bedroom and

got some money from her before leaving.

Petitioner's attorney had originally objected to

this testimony as hereasy. The objection was

sustained at the preliminary examination, but the

offending testimony was nevertheless read to the

jury at the time of trial. Petiiioner claims that this

violated her Sixth Amendment right to confront

Robert Jackson.

Petitioner's argument must fail for two

A 14

reasons. At trial her attorney failed to object to the

reading of this portion of the transcript. The

Michigan Court of Appeals therefore declined to

address the issue on the merits, and there has been

no showing of “cause and prejudice” that would allow

us to reach the merits under the rule of Wainwright

v. Sykes, 433 US. 72 (1977).

Second, petitioner would not prevail even if we

could reach the merits. Ohio v. Roberts, 448 US. 56

(1980), teaches the introduction of hearsay does not

violate the Confrontation Clause of the Constitution if

it can be shown that the declarant is unavailable and

that the hearsay has sufficient indicia of reliability to

comport with the “substance of the constitutional

protection.” 448 US. at 66 (quoting Mattox v. United

States, 156 US. 237, 244 (1985)). The record before

us indicates that Robert Jackson, the declarant, was

unavailable to testify at petitioner's trial because he

himself was being »rosecuted and he declined to take

the stand. His declarations were statements against

interest, and this was a sufficient indicium of

reliability to pass constitutional muster.

VI

Petitioner's fifth assignment of error rests on a

Claim that the trial court coerced Chare Knight into

declining to testify by threatening to charge him with

A 15

perjury should his testimony prove to be false. As

noted earlier, Mr. Knight had entered into a plea

bargain under which he was to testify at the

preliminary examinatiion and at petitioner's trial.

Prior to the trial Knight withdrew his plea of guilty

and asserted his Fifth Amendment right to remain

Silent. Knight subsequently indicated that althought

his attorney advised against it, he would testify at

petitioner's trial. Before the judge allowed Knight to

testify, he made sure that Knight understood that

anything he said could be used against him in his

own trial and that he could be prosecuted for perjury

if he did not testify truthfully. Mr. Knight then

decided not to testify.

Petitioner contends that the judge's warnings

to Knight violated her due process rights as defined

by Webb v. Texas, 409 U.S.95 (1972). When the

defendant in Webb called his only witness, a convict

with a prior criminal record, the judge, on his own

initiative, undertook to admonish the witness that if

he lied on the stand he would be subject to perjury

charges and his chances for parole would be

jepordized. After the judge made his comments, the

Witness decided not to testify. The Supreme Court

held that it was a denial of due process for the trial

judge gratuitously to single out this witness for a

lengthy admonition on the dangers of perjury.

Petitioner's case is readily distinguishable from

a

A 16

Webb. Here the judge had every reason to warn

Knight about the dangers of committing perjury. The

fact that Knight had withdrawn from his plea bargain

and was probably getting ready to contradict his

preliminary examination testimony made it

incumbent upon the judge to make sure Knight

understood the predicament he was in - especially

when Knight's own attorney did not want him to

testify.

VII

Petitioner's sixth assignment of error concerns

the admission of the hypnotically-refreshed

testimony of the niece, Ms. Brandon. The petitioner

argues that under hypnosis a Witness is susceptible to

suggestion from the prosecution. Furthermore, by

bringing to the jury's attention that Ms. Brandon had

undergone hypnosis, the prosecution is said to have

bolstered her credibility improperly.

Rulings by a state court on the admissiblity of

evidence are not normally reviewable in federal

habeas proceedings unless ‘fundamental fairness” has

been impugned. Burks v. Egeler, 512 F.2d 221, 223

(6th Cir. 1975), cert. denied 423 U.S. 937 (1975). The

admission of the post-hypnosis testimony here

cannot be said to have impugned fundamental

fairness. See Rock v. Arkansas, 483 US. __, 97

L.Ed.2d 37 (1987), where the Supreme Court held a

A 17

state rule excluding all post-hypnosis testimony

impermissibly infringed on the right of a defendant

who had undergone hypnosis to testify on her own

behalf. In arriving at its conclusion the Supreme

Court noted that it is ofter possible to minimize the

dangers of hypnotically-refreshed testimony:

“Certain information recalled as a result of

hypnosis may be verified as highly accurate by

corroborating evidence. Cross-examination,

even in the face of a confident defendant, is an

effective tool for revealing inconsistencies.

Moreover, a jury can be educated to the risks

of hypnosis through expert testimony and

cautionary instructions.” 97 L.Ed.2d at 52.

Petitioner's counsel was able to cross-examine

Ms. Brandon in our case. The witness’ testimony was

corroborated by other evidence, and as the Michigan

Court of Appeals noted, her post-hypnosis testimony

did not vary significantly from her pre-hypnosis

testimony. The hypnotist was present at the trial,

and petitioner thus had an opportunity to call him as

a Witness. There is no contention that any cautionary

instructions requested by the petitioner were not

given to the jury. The danger that the jury was

seriously misled does not seem excessive.

A 18

VITl

Petitioner's seventh claim of error is premised

on an allegation that the jury was given an erroneous

definition of malice. The trial court instructed the

jury that “[mlalice means that the defendant intended

to kill or that she knowingly created a very high risk

of death with knowledge that it probably would

result in death and that she did so under

circumstances which would not justify, excuse, or

lessen the crime.” Noting that in People v. Aaron, 409

Mich. 672, 728 (1980), the Supreme Court of

Michigan stated that malice is “the wanton and willful

disregard fo the likelihood that the natural tendency

of defendant's behavior is to cause death or great

bodily harm, petitioner areues that the instruction

given at her trial was not only erroneous but a due

process violation under In re Winship. 397 US. 358

(1970). We are not persuaded. “A federal court is

not free to issue a writ of habeas corpus ‘on the basis

of a perceived error of state law,” Smith v. Sowders

86-6117 (6th Cir. June 8, 1988) (quoting Pulley v

Harris, 465 US. 37, 41 (1984)), and even if we

perceived an error of state law - which we do not -

the fact remains that petitioner's counsel never

objected to the instruction in question. If the

instruction was erroneous, moreover, the error was

not of constitutional magnitude.

A 19

IX

Petitioner's eighth assignment of error relates

to her conviction of conspiracy to commit

second-degree murder. That assignment of error is

moot since the Michigan Court of Appeals has vacated

the conspiracy conviction.

X

Petitioner's ninth assignment of error is based

on the assertion that during closing argument the

prosecutor vouched for the credibility of prosecution

Witnesses, testified to matters not in the record, and

suggested that a prosecution witness feared

retribution at the hands of the defendant.

In Cook v. Bordenkircher, 602 F.2d 117,119

(6th Cir.) cert. denied, 444 US. 936 (1979), this court

held that to warrant habeas relief “[p]rosecutorial

argument must be so egregious so as to render the

entire trial fundamentally unfair.” In Cook, a

“persistent ad hominem attack on the petitioner's

character ... pervade[d] the closing argument.”

“The prosecutor continually portrayed

petitioner as a low life who had to be Kept

from society. In a moment of eloquence

rivaled only by a fire and brimstone orator, the

;

;

A 20

prosecutor exclaimed that the petitioner was

worse than all of the ‘criminals’ and ‘traitors’ in

hell. A central theme of the prosecutor's

argument was that the petitioner, who had

been previously convicted of forgery and

grand larceny, was trying to forge and ‘steal’

justice by ‘conning’ the jury with a made-up

story.” “Id. at 119-120."

Although we observed that “[tlaken as a whole,

this closing argument was clearly improper, we

nevertheless held that the petitioner was not

deprived of a fair trial. The statements of which

petitioner complains here were far less outrageous

than those in Cook, and we do not believe that they

deprived petitioner of a fair trial.

X]

Petitioner's last argument is that she is entitled

to relief because of the supposed ineffectiveness of

her counsel at trial. Under Strickland v. Washington,

466 US. 668, 687-691 (1984), this argument clearly

has no merit.

The judgment of the district court is

AFFIRMED.

A 21

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MILDRED PERRY,

Plaintiff

vs. C.A. No. 86-CV-60250-AA

CAROL HOWES, HON. GEORGE LaPLATA

Defendant.

/

ORDER DENYING PETITIONER'S APPLICATION

FOR A WRIT OF HABEAS CORPUS

I. INTRODUCTION

On January 30, 1980, Petitioenr, Mildred Perry,

was convicted by a Wayne County Circuit Court jury

of second degree murder and conspiracy .o commit

second degree murder. Sentenced to two concurrent

terms of life imprisonment, Petitioner appealed as of

right to the Michgian Court of Appeals, which

affirmed the murder conviction, but vacated the

conspiracy conviction.! On two occasions, the

i/ People v. Perry, 115 Mich. App. 533, 321 N.W.2d 719

(1982).

A 22

Michigan Supreme Court remanded the case to the

Michigan Court of Appeals, which affirmed the

convictions, finding that the admission at trial of

hypnotically induced testimony did not warrant a

new trial.2

Il. PETITION FOR HABEAS CORPUS RELIEF

a an application for a writ of habeas corpus

filed on April 22, 1986, Petitioner raised ten issues,

contending that her conviction and sentence are

constitutionally infirm. The ten claims are as follows:

:: Insufficient evidence was adduced by the

prosecution to support a second degree murder

conviction,

y & She was deprived of her due process rights

when preliminary examination testimony of an

unavailable witness was reread to the jury during

their delib< ations in the absence of the trial judge

and defense counsel:

2/ People v. Perry, (On Remand), 126 Mich. App. 86, 337

N.W.2d 324 (1983), and People v. Perry, (On Second Remand). 144

Mich. App. 420; 375 N.W.2d 10 (1985). On March 5, 1986, the

Michigan Supreme Court denied Petitioner's application for leave to

appeal.

aa ia iie ee eeeeainaeiidiiilial

A 23

| The format employed by the judge in

rereading testimony was violative of her due process

rights.

4 She was deprived of her rights of confrontation

and cross-examination when hearsay evidence was

admitted into evidence at trial;

5. The trial court coerced a witness into invoking

his Fifth Amendment right not to testify;

6. A witness was improperly permitted to testify

after her memory was aided by hypnosis;

¥. The trial court gave an erroneous instruction

on the definition of malice;

8. The trial court erroneously instructed the jury

on the crime of conspiracy to commit second degree

murder;

9. The prosecuting attorney committed several

acts of prosecutorial misconduct; and

10. She was deprived of the effective assistance of

trial counsel.

It. FACTUAL SETTING

Petitioner and a co-defendant, Robert Jackson,

A 24

were prosecuted in a joint trial with separate juries

for the fatal shooting of her husband, Rothbe Perry.5

The trial of two other co-defendants, Michael White

and Clare Knight, were severed from the trial of

Petitioner and Jackson.

IV. SUFFICIENCY OF THE EVIDENCE CLAIM

Petitioner raises the novel claim that the

transcript of the trial proceedings do not contain

sufficient evidence of proof of a second degree

mruder charge because vital evidence, the

preliminary examination testimony of a witness,

Clare Knight, which was read into evidence, was not

transcribed by the court reporter at trial.

Additionally, four tape recordings that were read into

evidence were not transcribed.

A review of the record divulges that the entire

preliminary examination testimony of Clare Knight

was read to the jury. [t is noteworthy that no

objection was made by Petitioner as to the failure of

the court reporter to transcribe the previously

recorded testimony. With the testimony, it cannot be

seriously challenged that ample proof was presented

3/ Robert Jackson's conviction was upheld by the Michigan

Court of Appeals in People v Jackson, 114 Mich. App. 649. 319

N.W.2d 613 (1982), but reversed by the Michigan Supreme Court, 421

Mich. 39 (1984).

el

A 25

by the prosecution to warrant the second degree

murder conviction.

V. DUE PROCESS CLAIM REGARDING REREADING OF

TESTIMONY

Following the completion of proofs and

delivery of the jury instructions, the jury requested

that the preliminary examination testimony of Knight

be reread to them. Neither the trial court nor

defense counsel was present during the rereading

phase of the trial, but an investigator of Defendant

Was in attendance. No objection was interposed by

defense counsel concerning the trial iudge’s absence.

Although it would have been preferable for the trial

judge to be in court while the testimony of Kinght

was reiterated, no constitutional infirmity ensued by

his absence. See People v. Kimbrough, 193 Mich. 3301

159 N.W. 533 (1916). Similarly, the absence of

defense counsel did not render the proceeding unfair,

particularly in light of the attendance of the

attorney's assistant.4

VI. ATT ON TRIAL COURT'S DECISION ON

REQUEST FOR THE REREADING OF TESTIMONY

4/ For a similar result, see Peopie v. White, 144 Mich. App. 698. 376

N.W.2d 184, 187 (1985).

A 26

During their deliberations, the jury requested

that the testimony of five witnesses be reread.

Because the testimony thitherto had not been

transcribed, the triai judge instructed the jury to

commence deliberating. Upon a second request of the

jury, the judge permitted the preliminary

examination testimony of Knight to be reread.

Petitioner asserts that she was deprived of a fair trial

by the trial judge's decision not to reread testimony

of four witnesses to the jury.

Under federal law, the decision whether to

reread testimony is assigned to the discretion of the

trial judge. United States v. Toney, 440 F.2d 590, 592

(6th Cir. 1971); United States v. Licavoli, 725 F.2d

1040, 1049 (6th Cir. 1984).5 In the matter at bar,

Petitioner was not deprived of a federal

constitutional right by the trial court's refusal to

permit the jury to rehear the testimony of four

witnesses.

VIL RIGHT OF CONFRONTATION CLAIM

Petitioner maintains that she was denied her

5/ Under Michigan law, while a triatjudge has discretion

whether to grant a rereading of testimony request, he may not advise

the jurors that they will be foreclosed from rehearing the requested

testimony. People v. Howe, 392 Mich. 670; 221 N.W.2d 350, 353

(1974), People v. Robbins, 132 Mich. App. 616, 347 N.W.2d 765, 767

(1984).

A 27

rights of confrontation and cross-examination by the

admission of hearsay statements of her co-defendant,

Robert Jackson, which were introduced by way of the

preliminary examination transcript of Clare Knight.

Petitioner neither objected to the testimony at the

preliminary examination nor at trial. Under state

law, Petitioner waived appellate review of the issue

by failing to object at the trial court level. People v.

Richards, 150 Mich. 434, 114 N.W. 230 (1907); People

Vv. Smith, 420 Mich. 1, 360 N.W.2d 841, 844 n.3

(1984). Likewise, this Court refuses to consider the

issue, because a review thereof would reward a

Defendant for his or her election not to object to

hearsay testimony. Additionally, Petitioner has not

proffered a justification for her procedural default.

VIIL_ CLAIM OF TRIAL COURT'S COERCION

Prior to trial, co-defendant Jackson agreed to

testify against Petitioner as part of a plea bargain. He

thereafter reneged on his promise, withdrew his

guilty plea, and proceeded to trial. At Petitioner's

trial, he again was indecisive as to whether he

desired to testify. His attorney informed the court

that he would be required to withdraw if Jackson

testified. Following the trial judge's admonition on

the penalties for perjury, Jackson made an inexorable

A 28

decision not to testify.

Petitioner claims that Jackson Was deterred

from testifying on account of the trial court's

coercion, resulting in a denial of due process. Unlike

the occurrence in Webb v. Texas, 409 U.S. 95 (1972),

the triaJ judge herein did not effectively prevent the

Witness from testifying. Under the circumstances,

where the witness was mercurial with respect to

whether he should testify, it was appropriate, if not

mandatory, for the trial court to warn him of the

pains of perjury. It is noteworthy that Jackson was a

prosecution, rather than defense, witness.

1X. USE OF HYPNOTICALLY ENHANCED TESTIMONY

At trial, Christian Bradon, testified with respect

to inculpatory statements made to her by Petitioner

subsequent to the homicide. Bradon was permitted

to testify even though her testimony was enhanced

by hypnosis.

Bradon that her testimony was

substantially similar to statements she made to police

officers prior to undergoing hypnosis. Additionally,

her testimony was corroborated by other witnesses.

Despite the fact that the hypnotist was present at

trial, Petitioner declined to present him as a Witness.

The hypnotic session was videotaped and available

for viewing by the finder of fact, but no request was

A 29

made for the playing of the tape. As the Michigan

Supreme Court noted in People v. Nixon, 421 Mich.

79, 364 N.W.2d 593, 599 (1984), “the fact that a

prosecution witness has been hypnotized does not

automatically preclude effective cross-examination.’

In People v. McIntosh, 142 Mich. App. 314, 370

N.W.2d 337 (1985), the Michigan Court of Appeals

permitted the posthypnotic testimony of a

prosecution witness:

On the basis of this analysis, we conciude that

the trial court in this case also did not abuse its

discretion, either in permitting Kelly Faulkner

to testify or in permitting her to testify to the

“identification” of defendant which occurred

nine months after she had been hypnotized.

As found by the trial court, Fauikner’s pre- and

posthypnotic descriptions of the men were

almost identical and, because the police had no

suspects at the time of the hypnotic session,

there was little likelihood that the police

officer “suggested” a description to Faulkner.

Although the danger of “confabulation’ still

existed, the tentative nature of Faulkner's

“identification” lessened this danger. Finally,

as also noted by the trial court, eight months

elapsed between the hypnosis and the line-up.

We, therefore, conclude that the identification

itself was based on facts recalled and related

prior to hypnosis so that it was admissable at

trial.

Consequently, the Court holds that the trial

court did not err in permitting Braden to testify.

X. JURY INSTRUCTION ATTACK

Petitioner asserts that the trial court's

definition of malice, a necessary element of

second-degree murder, resulted in the burden of

proof shifting to her to establish that she did not

A 30

intend to kill Rothbe Perry. Reading from a standard

criminal jury instruction, C.J.I. 16.02, the trial court

charged the jury that:

Fourth, for a murder, you must find that the

defendant consciously and knowingly

performed the act that caused the death. The

defendant must have either intended to kill,

that is, she must have done the act intending it

would result in death or in great and serious

bodily harm, or she must have knowingly

created a very high risk of death with

knowledge that it would probably cause death.

The above-quoted passage of the jury

instructions discloses that the trial court properly

defined the term “malice” for the jury. The jury was

adequately and fairly apprised that the prosecution

bore the burden of proof of demonstrating that

Petitioner intended to slay the victim or create a

degree of risk of death.

A 31

XI. CONSPIRACY TO MURDER INSTRUCTION

Since the Michigan Court of Appeals vacated

Petitioner's conspiracy conviction, her quarrel with

the trial court's instructions has been rendered moot.

XII. PROSECUTORIAL MISCONDUCT CLAIMS

Petitioner maintains that she was deprived of a

fair trial by three acts of misconduct of the

prosecutor. Specifically, she complains of his (1)

vouching for the credibility of a prosecution witness;

(2) arguing facts that were not in evidence; and (3)

alluding to a witness's fear of Petitioner as a basis for

refusing to testify.

An examination of the record reveals that the

claimed prosecutorial misconduct does not reach the

level of a federal constitutional violation. The

conduct was not sufficiently blatant to the extent that

the trial was unfair. See Donneily v. DeChristoforo

416 US. 637 (1974). The trial court instructed the

jury that arguments of counsel are not to be

considered as evidence. The conduct of prosecution,

if improper, was harmless.

XILL_ INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

Petitioner refers to several segments of the

trial where she contends her trial counsel erred. A

A 32

review of these instances leads the Court to conclude

that she woefully has failed to demonstrate that she

was deprived of the effective assistance of counsel.

Applying the precepts contained in Strickland v.

Washington, 466 U.S. 668 (1984), the Court finds that

Petitioner did not show that the purportedly deficient

performance of her counsel deprived her of a fair

trial. |

XIV. CONCLUSION

Petitioner's application for a writ of habeas

corpus is DENIED. Petitioer was afforded a fair trial,

where she was zealously and capably represented by

counsel. Strong, competent evidence was adduced to

establish, beyond a reasonable doubt, that she, with

malice aforethought, deprived Rothbe Perry of the

utmost liberty, his right to live. With this decision,

Petitioner has been afforded a multitude of checks on

the stat'e power to charge her with capital crimes: a

trial by twelve of her peers, three decisions of a three

member panel of the Michigan Court of Appeals,

three reviews by the Michigan Supreme Court, and a

review by a United States District Court.

GEORGE LaPLATA

U. S. District Judge

November 18, 1986

Ann Arbor, MI