Opposition Brief — Perry v. Howes
Supreme Court brief1988
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2 Supreme Court, U.S,
88-6 89 FILED
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OCTOBER TERM, 1988
MILDRED PERRY
PETITIONER
vs.
CAROLE HOWES, Warden, Florence
Crane Women's Correctional Facility,
RESPONDENT
RESPONSE TO PETITION FOR
WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHN D. O'HAIR
Prosecuting Attorney
County of Wayne
TIMOTHY A. BAUGHMAN
Chief of the Criminal Division
Research, Training and Appeals
LARRY L. ROBERTS P 23844
Assistant Prosecuting Attorney
12th Floor, 1441 St. Antoine
Detroit, Michigan 48226
Phone: (313) 224-5749
STIONS PRESENTED
I-II. HAS PETITONER SHOWN CAUSE
AND PREJUDICE FOR THE FAILURE TO
OBJECT TO THE METHOD IN WHICH
CERTAIN TESTIMONY WAS PRESENTED
TO THE JURY, AND TO THE
NONTRANSCRIPTION OF THAT
TESTIMONY, AND DID PREJUDICE
BEFALL PETITIONER WHEN CERTAIN
TESTIMONY WAS REREAD TO THE JURY
IN DEFENSE COUNSEL'S ABSENCE,
WHERE HIS INVESTIGATOR WAS
PRESENT, AND COUNSEL AGREED TO
THE METHOD USED?
Petitioner says "Yes"
Respondent says “Ko”
The District Court said "No"
The Sixth Circuit
Court of Appeals said "No"
III. WAS THERE COERCION BY THE
TRIAL COURT AND A DENIAL OF
PETITIONER'S RIGHT OF
CROSS-EXAMINATION WHERE A
PROSECUTION WITNESS DECIDED TO
INVOKE THE PROTECTION OF THE
FIFTH AMENDMENT, AND THE TRIAL
COURT INFORMED HIM OF THE
PENALTIES FOR PERJURY?
Petitioner says "Yes"
Respondent says "No"
The District Court said "No"
The Sixth Circuit
Court of Appeals said "No"
Iv. WAS THE TESTIMONY OF A
PROSECUTION WITNESS
IMPERMISSIBLY BOLSTERED BY THE
FACT THAT SHE HAD BEEN SUBJECTED
TO HYPNOSIS, AFTER SHE HAD GIVEN
STATEMENTS TO THE POLICE, WHERE
THE RECORD DOES NOT SHOW CAUSE
AND PREJUDICE FROM THE LACK OF
OBJECTION TO THE TESTIMONY?
Petitioner says "Yes"
Respondent says "No"
The District Court said "No"
The Sixth Circuit
Court of Appeals said "No"
V. DID THE CONDUCT OF THE TRIAL
PROSECUTOR DENY PETITIONER A
FAIR TRIAL OR DUE PROCESS,
ESPECIALLY WHERE NO OBJECTIONS
WERE MADE TO SPECIFIC INSTANCES
OF CLAIMED MISCONDUCT, NOR WERE
CURATIVE INSTRUCTIONS REQUESTED?
Petitioner says "Yes"
Respondent says "No"
The District Court said "No"
The Sixth Circuit
Court of Appeals said "No"
viI. WAS PETITIONER DENIED HER
RIGHT TO CONFRONT WITNESSES WHEN
THE PRELIMINARY EXAMINATION
TESTIMONY OF ONE WITNESS WAS
READ TO THE JURY AND THAT
TESTIMONY CONTAINED QUESTIONS
AND ANSWERS REGARDING
COMMUNICATIONS BETWEEN THE
CODEFENDANT AND THE
NONTESTIFYING WITNESS, AND NO
OBJECTION WAS MADE TO THE
PROCEDURE EITHER AT TRIAL OR THE
EXAMINATION?
Petitioner says "Yes"
Respondent says "Ho"
The District Court said "No"
The Sixth Circuit
Court of Appeals said "No"
vit. WHERE THE JURY INDICATED
THEY WISHED THE TESTIMONY OF
SEVERAL WITNESSES READ TO THEM,
AND THE TRIAL JUDGE EXPLAINED
THE PROBLEMS WITH THAT REQUEST
BUT JID NOT FORECLOSE THE
READING OF THE TESTIMONY, AND
THE JURY DECIDED IT NEEDED ONLY
THE TESTIMONY OF ONE WITNESS,
DID A DENIAL OF DUE PROCESS OR A
FAIR TRIAL OCCUR?
Petitioner says "Yes"
Respondent says "No"
The District Court said "yo"
The Sixth Circuit
Court of Appeals said "No"
Viit. HAS PETITIONER SHOWN
PREJUDICE IN THE RECORD
REGARDING HER CLAIM OF
INEFFECTIVE ASSISTANCE OF
COUNSEL AT TRIAL?
Petitioner says "Yes"
Respondent says "No"
The District Court said "No"
The Sixth Circuit
Court of Appeals said "No"
TABLE OF CONTENTS
QUESTIONS PRESENTED. eeoeveeveeeve eens 1-7
INDEX OF AUTHORITIES.....2.++++-8-12
COUNTERSTATEMENT OF FACTS OF THE
CREB c cs scrsecsecrscesessesseveveseesas
ARGUMENT
iit. PETITIONER HAS NOT SHOWN
CAUSE AND PREJUDICE FOR THE
FAILURE TO OBJECT TO THE METHOD
IN WHICH CERTAIN TESTIMONY WAS
PRESENTED TO THE JURY AND TO THE
NONTRANSCRIPTION OF THAT
TESTIMONY; FURTHER NO PREJUDICE
BEFELL PETITIONER WHEN CERTAIN
TESTIMONY WAS REREAD TO THE JURY
IN DEFENSE COUNSEL'S ABSENCE,
WHERE HIS INVESTIGATOR WAS
PRESENT, AND COUNSEL AGREED TO
THE METHOD USED......cccceccves 29
TABLE OF CONTENTS
ARGUMENT
Itt. THERE WAS NO COERCION BY
THE TRIAL COURT NOR DENIAL OF
PETITIONER'S RIGHT OF
CROSS~-EXAMINATION WHERE A
= PROSECUTION WITNESS DECIDED TO
INVOKE THE PROTECTION OF THE
FIFTH AMENDMENT, AND THE TRIAL
COURT INFORMED HIM OF THE
PENALTIES FOR PERJURY.........42
IV.THE TESTIMONY OF A
PROSECUTION WITNESS WAS NOT
IMPERMISSIBLY BOLSTERED BY THE
FACT THAT SHE HAD BEEN SUBJECTED
TO HYPNOSIS, AFTER SHE HAD GIVEN
STATEMENTS TO THE POLICE, WHERE
THE RECORD DOES NOT SHOW CAUSE
AND PREJUDICE FROM THE LACK OF
OBJECTION TO THE TESTIMONY....49
- 10 -
TABLE OF CONTENTS
ARGUMENT
V. THE CONDUCT OF THE TRIAL
PROSECUTOR DID NOT DENY
PETITIONER A FAIR TRIAL NOR DUE
PROCESS, ESPECIALLY WHERE NO
OBJECTIONS WERE MADE TO SPECIFIC
INSTANCES OF CLAIMED MISCONDUCT,
NOR WERE CURATIVE INSTRUCTIONS
REQUESTED... ccccccccccccccceeedS
TABLE OF CONTENTS
ARGUMENT
vi. PETITIONER WAS NOT DENIED
HER RIGHT TO CONFRONT WITNESSES
WHEN THE PRELIMINARY EXAMINATION
TESTIMONY OF ONE WITNESS WAS
READ TO THE JURY AND THAT
TESTIMONY CONTAINED QUESTIONS
AND ANSWERS REGARDING
COMMUNICATIONS BETWEEN THE
CODEFENDANT AND THE
NONTESTIFYING WITNESS, AND NO
OBJECTION WAS MADE TO THE
PROCEDURE EITHER AT TRIAL OR THE
EXAMINATION... ccccccccccceccce o 66
TABLE OF CONTENTS
ARGUMENT
Vil. WHERE THE JURY INDICATED
THEY WISHED THE TESTIMONY OF
SEVERAL WITNESSES READ TO THEM,
AND THE TRIAL JUDGE EXPLAINED
THE PROBLEMS WITH THAT REQUEST
BUT DID NOT FORECLOSE THE
READING OF THE TESTIMONY, AND
THE JURY DECIDED IT NEEDED ONLY
THE TESTIMONY OF ONE WITNESS, NO
DENIAL OF DUE PROCESS OR A FAIR
py 88 CBs ome 4 5 Pr
VIII. PETITIONER HAS NOT SHOWN
PREJUDICE IN THE RECORD
REGARDING HER CLAIM OF
INEFFECTIVE ASSISTANCE OF
COUNSEL AT TRIAL... cc ccrccees 42
RELIEF. ccc ccc ccc ccc cccccccccccsece 81
INDEX OF AUTHORITIES
CASES
Brown v Thompson,
29 Bich 72;
PRR GEEREEUEOEE CR a oh cer ccccccccecs
Burks v Egeler,
513 F2d 221 (6th Cir. 1975),
cert den 423 US 937 (1975)....
Bute v Illinois,
333 US 640, 671; 68 S Ct 763;
LEd 987 DUE S68 666600 cs eee
Chandler v Jones,
813 F2d 773 (6th Cir.1987)......
Chapman v California,
386 US 18; 87 S Ct 824;
ee
Combs v Tennessee,
530 F2d 695 (6th Cir.1976)....
Cook v Bordenkircher,
602 F2d 117 (6th Cir. 1979)...
Cronnon v Alabama,
587 F2d 246 (5th Cir. 1979)...
Davis v Alaska,
415 US 308; 94 S Ct 1105;
39 L Ed2d 347 (1974) .....0-.
Donnelly v DeChristoforo,
416 US 637; 94 S Ct 1868; 40
L Ed2d 431 (1974) ......... a
Duffield v City of Detroit,
15 Mich 473; NW (1867)
PAGE
icaae
ee 39
eee -38
- eee ee
ee 54
cjawvétaD?
,42, 63
aes 71
ese ef
.60, 63
ee 38
- 14 =
CASES CONTINUED PAGE
DuPree v United States,
606 Fac 829 (OCR Cik. 1979) cs cesecsvct?S
Eaglin v United States,
571 F2d 1069 (9th Cir. 1977), cert den,
435 US 906; 55 L Ed2d 497 (1978).....70
Emmett v Ricketts,
397 F Supp 1025 (ND Georgia, 1975)...53
Gilbert v Parke,
763 F2d 821 (6th Cir. 1985)......36 ,6l
Grant v State,
385 P2d 925 (Oklahoma, 1963),
eee re ee er ree
Green v Arn,
809 F2d 1257, 1263 (6th Cir.1987)....33
Harding v State,
246 A2d 302 (Maryland, 1968),
cert den, 395 US 949; 23
be Be 2m GCOS CAPS) cc cc vsvccccsieecda, $3
Hockenbury v Sowders,
633 F2d 443 (6th Cir. 1980)......41, 71
Howard v State,
B7e Be SUG CTOMAS, LOLS) .ccccsweveserad
Jackson v Virginia,
443 US 307; 99 S Ct 2781; 61
L Ed2da 560 (1979) errs. Se ee Te eee eee
Jones v Estelle 622 F2d 124,
126 (5th Cir. BOO bes oe eben ciens bounce
McQueen v Swenson,
496 Faq 207 CECH. CAPs ASTA) on cacsaccsvt®
CASES CONTINUED
Meeks v Bergen,
749 F2d 322 327 (6th Cir.
Mills v Commonweath,
42 SW 2d 505 (Kentucky, 1931)...
Ohio v Roberts,
SCT 2531,
448 US 56,
65 Ed2d 547 (1980)....
Oliphant v Koehler,
594 F2d 547 (6th Cir. 1979)...
People v Alcala,
396 Mich 99; 237 NW2d 475 (1976)
People v Aldridge,
47 Mich App 639; 209 NW2d
796 Popo) rere er eee ee ee eee
People v Alexander,
72 Mich App 91; 249 NW2d 307 (1976)
People v Armstrong,
100 Mich App 423; 298
SG FOR CEPOO) eh eke esccessees
People v Ashford,
91 Mich App 693; 283 NW2d
830 ey ) PPP ETT TTT ee
People v Auerbach,
176 Mich 23,
People v Bailey,
101 Mich App 144; 300 NW2d
474 (1980) aces < SEAS ok
People v Blalock,
44 Mich App 336; 205
NW2d 185 (1973).....-.
(1913).
- 16 -
CASES CONTINUED
People v Burks,
48 Mich App 484; 210 NW2d
495 (1973) acct caceebeae Sea eeteeeese
People v Carey, 125 Mich 535, 541;
-NW- (1901) ~ccccccessadesesesseseo
People v Carson,
19 Mich App 1; 172 NW2d 211 (1969)
lv den 383 Mich 780 (1970)........
People v Clyburn,
55 Mich App 454; 458-459; 222
’
NW2d 778 (3094). sanceunsuweuueusees
People v Crosby,
19 Mich App 135; 172 NW2d
506 (1969) ccccccccccscccecesseces
People v Duncan,
402 Mich 1; 260 NW2d 58 (1977)....
People v Etchison,
123 Mich App 448; 333 NW2d
309 (1908)... ascucee ee
People v Farnsley,
94 Mich App 34; 287
PAGE
NW2d 361 (1979) .cccccccccccsescccccses 54
People v Fell,
65 Mich App 543; 237
NW2da 550 (1973) ccccccececetesecese
People v Ferguson,
94 Mich App 137; 288
NW2a 587 C1979) cecccesecesessesece
People v Flores,
92 Mich App 130; 284
NW2d S10 (1996) .0ccceeceeeeueweeess
CASES CONTINUED PAGE
People v Foster, 77 Mich App 604, 610;
TE CIOS bo iccccccccecencenst®
People v Fournier,
86 Mich App 768; 273
NW2d 555 Oo. | | Arr rr ree eee ee ee ee
People v Garcia,
398 Mich 250; 247 NW2d
547 Oo. ys | er erreeEPEreErrErEres Yr 78
People v Gonzales,
417 Mich 968; 336 NW2d 751 (1983)....55
People v Hampton,
407 Mich 354; 285 NW2d 284 (1979)....39
People v Hanna,
85 Mich App 516; 271
NW2d 299 << c, i PPT erErErrrer sf.
Peorle v Harley,
49 Mich App 729; 212
NW2da 810 SPs eeccsaccccccccescceecec Ss
People v Hernandez,
80 Mich App 465; 264 NW2d
343 (1978) "Sy ee E ERECT TTLCrLrrrre.!. ft!
People v Howe,
392 Mich 670; 221 NW2d 350 (1974) ~73
People v Iacopelli,
141 Mich App 566, 568; 367
EE oc occ bendoscecees ead
People v James,
87 Mich App 412; 274
NW2da 801 CAD FS) cccccsccecsccccccscccsens
- 18 -
CASES CONTINUED
People v Johnson,
356 Mich 619; 97 NW2d 739 (1959)..
People v Kimbrough,
193 Mich 330, 336;
People v Krist,
93 Mich App 425; 287 NW2d 251
(1979), lv den 407 Mich 963 (1980)
People v Lauzon,
84 Mich App 201; 269
NW2da 524 CRP Geen baeeseoseees
People v Malchi White,
81 Mich App 226, 229; 265
NW2da 100 (1978) *eeseee#eesertcfse#es#se#8e##e*
People v Martin,
210 Mich 13; NW
People v Martin,
(1920)
75 Mich App 6, 14; 254 NW2d
628 (1977) eeesoeeee#*s#e#er#8tfee#ernrtreeeee#ee#ete
People v McKinney,
88 Mich App 715; 278
MSE FOG TRBIG) 00 cc ccccccccccs
People v McLeod,
45 Mich App 332, 334; 206
NW2da 528 (1973) e*eeseoee*ee#se#see#e#2re#*e#e#e#¢*#
People v Medcoff,
344 Mich 108; 115-116;
73 NW2d
rere re ree
537 (1955) eeeeteeeseeeessesesteenseeteee#ee
People v Medina,
100 Mich App 358; 298
NW2d648(1980).......cceeeee
PAGE
2 247
0033
2-19
2295
--78
ry i
save
ocedDa
oe J7
soso
~ 67
CASES CONTINUED PAGE
People v Modesto,
23S PAG 33 (CHL, ISEB) ecccccccssesess 53
People v Morehouse,
328 Mich 689; 44 NW2d 830 (1950)..... 33
People v Nixon,
421 Mich 79; 364 NW2d 593,
599 (1984).. e*eeeee#e#se*eses#se*e#1ee#e#ee#ee#ee#€es errs:
People v Perry (On Second Remand),
144 Mich App 420; 375
NW2da 10 (29ES) cccccsecesesse eeee#s ere:
People v Perry,
115 Mich App 533; 321
NW2da 719 CAPOR cee csesictoseseoesnandane
People v Richards,
150 Mich 434; 114 NW 230 (1907)......70
People v Robinson,
101 Mich App 687; 301
NW2d 41 (1980) TUTE TTEC CERT ECT OCC CTT.
People v Robinson,
386 Mich 551; 194 NW2da
709 @\ er) PREP ePET eee Tee e*eee#es 055, 67
People v Shipp,
21 Mich App 415; 175 NW2d
529 (1970) Terr rerreererrrecrrrrerrerrerere Ss
People v Smith,
420 Mich 1; 360 NW2d 841 (1984)......70
People v Solomon,
82 Mich App 502; 266
MW2G 453 (1978) .cccccscccssccsecvsscee 73
- 20 -
CASES CONTINUED PAGE
People v Sorna,
88 Mich App 351; 276
NW2d 892 (1979) ....ccceecsees coccccce 47
People v Swan,
56 Mich App 22; 223
NW2da 346 (1974).. e*eeeegeseeee#? 66606006608
People v Wichman,
15 Mich App 110; 166
NW2d 298 (1968) ~ccccccecs eenerteeseee#ee#e#ee#e#eesese 55
People v Wright,
408 Mich 1; 289
WW2G 1 (198Q0) ccccccccccccccceccccsceedse
Reed v Ross,
468 US 1; 104 S Ct 2901;
82 L Ed2d 1 (1984) e*eeeeeerkeeseee#8e¢ aseceeee
Rice v Marshall,
816 F2d 1126 (6th Cir. 1987).........79
Rice v United States,
35 F2d 689 (2d Cir. 1929) cert den
281 US 730; 74 L Ed 1146 (1929)......34
Siverson v O'Leary,
764 F324 1208 (7ER Cis. 1988) ccccccese 34
State v Jorgensen,
492 P2d 312 (Oregon, 1971)....... oceeD2
State v McQueen,
244 SE2G 414 (1978) cccccccccccccseces 53
Stirone v United States,
341 F2d 253 (3d Cir 1965); cert den,
381 US 9023 34 L BG2d 284. ccccccccces 34
CAS ie) D PAGE
Strickland v Washington,
466 US 668, 104 S Ct 2052,
Oe Bee. Pe SO bo 6.0 6 6 b.0 csc sentes 75
Takacs v Engle,
768 F2a@ i22 (6th Cir. 1985) .ccccccesed4
Thomas v Wyrick,
535 F2d 407 (8th Cir. 1976).......... 78
Tingue v State,
Rae ee ee ee, DOUG) oc ikcnddceccene 34
United States v Adams,
581 F2d 193 (9th Cir. 1978),
cert den, 439 US 1006 (1978)....... 0252
United States v Awkard,
597 F2d 667 (9th Cir 1979),
cert den, 444 US 885 (1979)..........53
United States v Leon,
534 F2d 667 (6th Cir. 1976)...... 62, 63
United States v Licavoli,
725 F2d 1040, 1049 (6th Cir. 1984)...74
United States v Miller,
411 F2d 825 (2d Cir, 1969).....cceeee 52
United States v Narcisco,
446 F Supp 252 (1977)..... ee Oe er
United States v Toney,
440 F2d 590 592 (6th Cir. 1971)...... 74
- 22 -
CASES CONTINUED PAGE
United States v Young,
470 US 1; 105 S Ct 1038; 84
E, BGZG Ll (1965) ccccccccccsccccecccccses 6h
Wainwright v Sykes,
433 US 72; 97 S Ct 2497; 53
Se ee CATED va oon be oa eecwenns cee
Ward v State,
81 SE 130 (Georgia, 1914) .ccccccccceed4
Webb v Texas,
409 US 95; 93 S Ct 351; 34
To BG, S20 CASTS) ccccvcccccvvesscovivesssSS
Whalen v Johnson,
438 F Supp 1198 (D.C. Mich 1977).....71
Wright v Dudley,
8 Mich 115; NW >. rrr
STATUTES AND OTHER AUTHORITIES PAGE
32 ALR 4th Fiae e*estetoeeseeeske?eceernrseee#eseeeeesees?#* 65
64 ALR 3d 385. eeeeteeer#enrte#e#e#eseee#ee*es#steroeestk8kce##e#es#e#@# -45
92 ALR 3d 442 (1979) e*eeseeseee#*e#8tenreoee8esee#ee#ee#esestee ~53
Code of Professional Responsibility,
Canon (Pere rr eee TT TT CT ET eT CTT Tee Te ee!
MCL 750.157a; MSA 28.354(1).....2++2++-24
MCL 750.227b; MSA 28.424(2)...ceeee0e+ 224
MCL 750.316; MSA 28.548... ccccccceceve rd
ee
- 23 -
STATUTES AND OTHER AUTHORITIES PAGE
MCL 750.3177 MSA 28.549... cccccccccvecread
MCL 769.26; MSA 28.1096..... co ccee occ ce 0 67
MCL 768.267 MSA 28.1049... ccc ever er ere 44
- 24 -
COUNTERSTATEMENT OF FACTS OF CASE
Charged with first degree murder,
MCL 750.316; MSA 28.548; conspiracy to
commit murder, MCL 750.157a; MSA
28.354(1)? and felony firearm, MCL
750.227b; MSA 28.424(2), along with
Robert Jackson and Michael White for the
brutal slaying of her husband Rothbe
Elwood Perry, Petitioner was tried by a
jury in the Circuit Court for Wayne
County, Michigan, the Honorable Horace W.
Gilmore presiding; and on January 30,
1980, the jury convicted her of
conspiracy to commit murder in the
second-degree and second-degree murder,
MCL 750.317; MSA 28.549.
On February 11, 1980, the
petitioner was sentenced to life
imprisonment for the second-degree murder
conviction and the conviction for
conspiracy to commit murder in the
- 25 -
second-degree. The latter conviction
was vacated by the Court of Appeals. See
People v Perry, 115 Mich App 533, 536;
321 NW2d 719 (1982).
Rothbe Elwood Perry died of
multiple gunshot wounds after he took 10
to 15 minutes to bleed to death.
(VI,34-38) .*
Prior to the untimely death of
Rothbe Perry, the Petitioner, his wife,
had been known to point a .22 pistol at
him (VII, 44-47) and was unhappy that
they were going to be divorced. (VII,
69). In fact the Petitioner was heard to
say that she prayed that either the
victim or herself died prior to the
* refers to volume and page numbers in
the trial transcript.
- 26 -
divorce because she could not stand the
humiliation of another divorce. (VII,
69-70). Petitioner also said that she
would rather see her husband dead than
with another woman. (VII, 69). It was
known that Claire Miller was in love with
the victim and planned to marry him when
the divorce was final. (VII, 64-68). The
Petitioner had told Claire that she knew
that in the Detroit area one could get
another eliminated for $600. (VII,
68-69).
The Petitioner also told Christine
Brandon, her niece that she was going to
have her husband ‘beat up.' (X, 21-2).
The Petitioner told Christine that she
had shown the persons who were to beat up
her husband where he worked and what car
he drove. (X, 24-25).
After Rothbe was killed, Christine
was the witness to some strange phone
calls from "Charles" which frightened the
Petitioner. (X, 31-33).
The Petitioner was the beneficiary
of two double indemnity $5000 accidental
death life insurance policies from Mutual
Life Insurance Company which included
death from gunshot wounds. (XI, neey.
Petitioner was also the beneficiary of a
life insurance policy from Travelers
Insurance Company which in the case of
accidental death was worth $57,000. (XV,
27-30) ©
The Petitioner was also known to
have consulted with a ‘card reader' to
have some voodoo done on her husband, but
settled for having him beat up. (XI,
12-25). <A letter was received from the
Petitioner asking Helen Lohmann (who
drove her to the '‘'card reader') asking
her to say that the beating and murder
were the idea of Sylvia Perkins the 'card
- 283 -
reader.' (XI, 26-27). Sylvia Perkins
said that the Petitioner wanted her to
put her in touch with an alleged witch
named 'Gundella.' (XII, 12-18).
Petitioner was home at the time her
husband was shot and asked neighbors to
call the police. (V, 15-22, 23, 31, 120).
Right after the shooting, the Petitioner
went to the house of Louise Dalip and
made some telephone calls, including one
to the insurance company. (V, 121-124; VI
9-10).
- 29 «-
ARGUMENT
I-II. PETITIONER HAS NOT SHOWN
CAUSE AND PREJUDICE FOR THE
FAILURE TO OBJECT TO THE METHOD
IN WHICH CERTAIN TESTIMONY WAS
PRESENTED TO THE JURY AND TO THE
NONTRANSCRIPTION OF THAT
TESTIMONY; FURTHER NO PREJUDICE
BEFELL PETITIONER WHEN CERTAIN
TESTIMONY WAS REREAD TO THE JURY
IN DEFENSE COUNSEL'S ABSENCE,
WHERE HIS INVESTIGATOR WAS
PRESENT, AND COUNSEL AGREED TO
THE METHOD USED.
A. METHOD OF REREADING:
Chare Knight testified against the
Petitioner at the preliminary examination
of this cause. At trial, this witness
decided not to testify, to assert the
Fifth Amendment and to withdraw from his
- 30 -
plea bargain and stand trial. fThe trial
court agreed that he could validly assert
the Fifth but that that made him an
unavailable witness, thus allowing the
People to present to the trial juries the
extensive direct and cross-examination of
this witness taken at the preliminary
examination. This was done. As
indicated by Petitioner, the court
reporter did not transcribe this reading.
The transcript read amounted to about 250
pages.
The trial transcript does, in fact,
indicate what was read to the jury during
trial.
After the trial court had
determined that said examination
testimony was admissible, the court and
counsel discussed how it would be read to
the jury. Mr. Willis, Jackson's counsel,
wanted to read his own cross-examination
- 31 -
of Knight and either the prosecutor or
the court reporter would read the rest.
The prosecutor expressed concern over
this possibility (December 13, 1979;
95-98).
On December 18, 1979, the
prosecution prepared to present the
testimony of witness Chare Knight to the
jury, and the trial record shows how that
was done. (See transcript of December
18, 1979, pp. 76-77, and 79-80.) More
reading of the examination testimony
occurred on December 19 and 20. (See
transcript, December 19 and 20, pp. 4 and
63, respectively.) There were no
objections nor interruptions in the
reading of this testimony and both
defense counsel agreed with the
established format of the reading.
After the prosecution and defense
rested, the jury began its deliberations.
- 32 -
They requested that the testimony of
Knight be re-read to then.
At no point in the record of the
trial does there appear an objection to
this procedure posed by either Petitioner
or by defense counsel. At no point in
this record is there ever any indication,
however slight, that the express and
explicit instructions of the trial court
relating to the re-reading were not
followed to the letter by the prosecutor.
It should be noted that although
the trial judge was not present during
the rereading of the testimony, an
investigator employed by defense counsel
was, and certainly that investigator knew
how and where to reach counsel should
that need arise. As the District Court
noted, it would have been preferable for
the trial court to have remained during
that rereading, but no constitutional
- 33-
infirmity resulted from his absence. See
People v Kimbrough, 193 Mich 330, 336;
___ ~NW __ =a(1916), where the Michigan
Supreme Court required a showing of
prejudice from such a claim; and People v
Clyburn, 55 Mich App 454, 458-459; 222
NW2d 775 (1974), where the judge was
absent during the reading of the
testimony of three witnesses to the jury,
and both counsel had agreed to his
absence, and no reversible error was
found; People v Morehouse, 328 Mich 689,
692; 44 NW2d 830 (1950). As a matter of
state law, concerning evidentiary
matters, the lower courts acted properly
in handling this issue. (For other cases
which deal with the issue of absence of
counsel, see Green v Arn, 809 F2d 1257,
1263 (6th Cir. 1987), where it was
recognized that a harmless error analysis
was applicable in some instances where
trial counsel was absent during a trial;
<<
and Takacs v Engle, 768 F2d 122 (6th Cir.
1985), absence of counsel at preliminary
hearing harmless error; and Siverson v
O'Leary, 764 F2d 1208 (7th Cir. 1985),
pointing out that counsel should take
sufficient precautions to protect his
Client's interests if counsel is going to
be absent at trial.)
Authority in several other states
and federal jurisdictions is in accord.
Howard v State, 178 SW 506 (Texas, 1915);
Rice v United States, 35 F2d 689 (2d Cir.
1929) cert den 281 US 730; 74 L Ed 1146
(1929); Tinque v State, 108 NE 222 Ohio,
1914); Mills v Commonweath, 42 SW 2d 505
(Kentucky, 1931); Ward v State, 81 SE 130
(Georgia, 1914); Stirone v United States,
341 F2d 253 (3d Cir. 1965); cert den, 381
US 902; 34 L Ed2d 284; Grant v State, 385
P2d 925 (Oklahoma, 1963); reh den, 1963.
- 35 -
Of equal importance here is the
definition of the word "trial"; as
Petitioner's assertions rest heavily on
this point.
To be sure when considering what is
the "trial" for purposes of this
question we can exclude formal and
preliminary matters or matters
occurring after the hearing on the
merits or rendition of the verdict, as
well as other matters. See Snyder v
Massachusetts, supra; generally, 26
ALR2d 762, 770; 150 ALR 764; 144 ALR
199; 23 ALR2d 456; 96 ALR 508, 515; 70
ALR 1072. is Co s_he hat
the accused need not be present when
Vv = to
2 s s
° t ople v
, People v Carey, 125 Mich
535. .. . (emphasis added).
People v Medcoff, 344 Mich 108, 115-116;
73 NW2d 537 (1955).
Thus, if the accused need not be
present at a re-reading of testimony, and
if defense counsel may validly waive his
right to be there, and if there is no
objection to the absence of the judge at
the re-reading, there is no appealable
- 36 -
issue as there is no error.
Petitioner, by not objecting to the
procedure now complained of, has waived
her right to seek further review, not
having shown cause or prejudice for the
noncompliance with the state
contemporaneous objection rule. G ert
v Parke, 763 F2d 821, 825 (6th Cir.
1985).
B. LACK OF TRANSCRIPTION:
Petitioner's claim contends that
the transcript of the trial proceedings
does not contain sufficient evidence of
proof of the charge of second degree
murder, under state law, because the
preliminary examination testimony of
witness Chare Knight, read into evidence
because the prosecution witness asserted
his Fifth Amendment rights and was thus
unavailable, was not transcribed by the
- 37 -
court reporter, although clearly it had
been transcribed from the preliminary
hearing. (See the District Court's
opinion and order, p. 3.) Petitioner
also contends that she was somehow denied
her right to a meaningful appeal because
several tape recordings were played to
the jury and not transcribed verbatin.
It should be noted that not only
was there no objection made to the
failure of the court reporter to
transcribe the previously recorded
testimony of the preliminary hearing, but
that no request was made for the
production of the tapes, nor was there
any request made for a transcription of
the tapes. Petitioner's claims ignore
the presumption of regularity in court
proceedings and argues as if the opposite
were the rule: that the proceedings were
presumably incorrect and contained
reversible error unless they can be
- 38 -
shown to be contrary. That is not the
law, and has been so stated in Michigan.
See People v Iacopelli, 141 Mich App 566,
568; 367 NW2d 837 (1985); People v
Carson, 19 Mich App 1; 172 NW2d 211
(1969); lv den 383 Mich 780 (1970);
People v Auerbach, 176 Mich 23, 43;
NW ss (1913); and see Bute v [llinois,
333 US 640, 671; 68 S Ct 763; 92 LEd 987
(1947).
The basis of Petitioner's assertion
is faulty for it does not include the
actual definitional parameters of the
record on appeal. Michigan Court Rule
7.210, formerly GCR 1963, 811.1; Wright v
Dudley, 8 Mich 115; __ NW __ (1860);
Duffield v City of Detroit, 15 Mich 473;
___ NW ____—s« (1867); and Brown v Thompson,
29 Mich 72; _— NW __ (1874) explain
that the record on appeal consists of the
court file, all motions and papers
contained in that file, and all decisions
- 39 -
of the court, plus all transcripts and
exhibits. Since the transcript of the
examination testimony of witness Knight
is and was extant, it was part of the
record on appeal, and was considered by
the state courts during Petitioner's
state appeal of right. Thus, the point
about the present record being
insufficient to support the guilty
verdict fails, and no analysis per
Jackson v Virginia, 443 US 307; 99 S Ct
2781; 61 L Ed2d 560 (1979); People v
Hampton, 407 Mich 354; 285 NW2d 284
(1979) as to sufficiency of the evidence
need be done.
As regards the tapes and the
nontranscription of their contents in the
trial record, one was admitted through
the efforts of counsel for a codefendant,
and counsel for Petitioner did not object
to the admission nor playing of the other
tapes. Further, any tapes which were
- 40 -
defense exhibits and were played only to
the jury for codefendant Jackson can not
be attacked by Petitioner, since she
manifestly has no standing to claim error
given that context.
There has been no showing of
prejudice to Petitioner from the
nontranscription of the tapes or the
examination testimony. To reap the
benefit of a claim of violation of
constitutional rights, Petitioner has to
show prejudice, and her bald assertions
here should be disregarded. Since she
has not shown cause for the lack of
objections to the now-claimed errors, she
cannot prevail. See Reed v Ross, 468 US
1; 104 S Ct 2901; 82 L Ed2d 1 (1984);
Wainwright v Sykes, 433 US 72; 97 S Ct
2497; 53 L Ed2d 594 (1977), upholding the
validity of a state's contemporaneous
os £41 «=
objection rule as to the admission of
evidence in a state trial, and requiring
the convicted defendant to show cause and
prejudice as to the lack of a timely
objection before habeas review might be
allowed; and Hockenbury v Sowders, 633
F2d 443 (6th Cir. 1980).
- 42 -
Itt. THERE WAS NO COERCION BY
THE TRIAL COURT NOR DENIAL OF
PETITIONER'S RIGHT OF
CROSS-EXAMINATION WHERE A
PROSECUTION WITNESS DECIDED TO
INVOKE THE PROTECTION OF THE
FIFTH AMENDMENT, AND THE TRIAL
COURT INFORMED HIM OF THE
PENALTIES FOR PERJURY.
As is indicated from even a cursory
reading of applicable transcript pages,
the situation regarding Knight was very
sensitive. He had originally been
offered a plea bargain and sentence
recommendation in exchange for his
testimony at the preliminary examination
and trial. Prior to Petitioner's trial,
Knight indicated that he wanted to
withdraw his plea, assert his Fifth
Amendment right to silence, and stand
trial as charged. Knight then indicated
he would testify at Petitioner's trial.
- 43 -
One other part of the plea bargain
assumes relevance here - if for any
reason the plea bargain fell through,
none of Knight's testimony at
Petitioner's examination or any
statements he made to police could be
used against him at his trial.
In light of these special
circumstances, it is fully consonant with
reality and common sense to anticipate
with full justification that were Knight
to testify at Petitioner's trial he would
lie.
The trial court was well aware of
all of this and, in an attempt to ensure
that justice would not be subverted and
that the possibility of ascertaining the
truth would be enhanced, decided to
inform Knight about possible perjury
penalties. The trial court, exercising
its superintending control powers over
the trial could be expected to do no
less. Indeed, were the trial court not
to have acted in the manner now
challenged, there would have been a great
likelihood that justice would have been
grossly subverted. The trial court's
conduct was not only not improper, it was
commendable.
Petitioner then asserts that the
action of the trial court denied the
right of cross-examination of Knight when
his preliminary examination testimony was
read to the jury during trial. This
disregards the fact that when Knight
re-asserted his Fifth Amendment rights,
he became an unavailable witness (and was
declared to be such by the court) thus
allowing his prior testimony to be
admitted. MCL 768.26; MSA 28.1049.
Knight had been fully cross-examined at
the preliminary examination, 200-250
pages worth. (December 13, 1979: 92).
- 45 «
The record does not support
Petitioner's assertions that the court
exerted duress on Knight. It does reveal
that the court repeated warnings already
given to Knight by his own attorney.
The proper context of the now
challenged action does not reveal error.
Knight's own counsel informed the
court that Knight had changed his mind
and would not testify at trial; and that
based on this attorney's knowledge, he
could no longer ethically represent
Knight. (See Transcript, December 17,
1979, pp 77-78).
See also, "Rights and Duties of
Attorney in Criminal Prosecution Where
Client informs Him of intention to
Present Perjured Testimony," 64 ALR 3d
385.
- 46 -
Counsel then indicated he had
explained perjury concepts to Knight.
The court then informed Knight in the
manner now challenged.
Knight's counsel acted in complete
conformity with the Code of Professional
Responsibility, Canon 7, "A lawyer should
represent a client zealously within the
bounds of the law."
Special reference must be made to
the court's expressed reasons for
informing Knight as it did. (December
17, 1979: 81-83).
It is well established that the
trial court has a duty to control trial
proceedings before it and in the
effective administration of justice.
"The fundamental purpose of a criminal
trial is the fair ascertainment of the
truth." People v Johnson, 356 Mich 619;
97 NW2d 739 (1959); People v Aldridge, 47
Mich App 639; 209 NW2d 796 (1973); People
v Sorna, 88 Mich App 351; 276 NW2d 892
(1979).
The court has a duty to prevent the
perpetration of a fraud on the court and
the jury, such is exactly what it did
here.
There is no error here as there was
no attempt to pervert the “ends of
justice" by the court's actions. People
v Harley, 49 Mich App 729; 212 NW2d 810
(1973).
Additionally, neither counsel
objected to the jury being told that
Knight's testimony was being read to them
because he took the Fifth Amendment.
(December 13, 1979: 97-98). No
objection, no error.
- 48 -
The trial court's actions in
handling this issue as he did were
entirely proper, and were not an abuse of
discretion. Oliphant v Koehler, 594 F2d
547 (6th Cir. 1979). And, since the
context here was markedly different from
that in Webb v Texas, 409 US 95; 93 § ct
351; 34 L Ed2d 330 (1972), the trial
court in this cause did not prevent the
witness from testifying. Where the
record shows that the witness was
"mercurial", as characterized by the
District Court, it was appropriate for
the trial court to have warned him of the
penalties for perjury.
- 49 - |
IV.THE TESTIMONY OF A
PROSECUTION WITNESS WAS NOT
IMPERMISSIBLY BOLSTERED BY THE
FACT THAT SHE HAD BEEN SUBJECTED
TO HYPNOSIS, AFTER SHE HAD GIVEN
STATEMENTS TO THE POLICE, WHERE
THE RECORD DOES NOT SHOW CAUSE
AND PREJUDICE FROM THE LACK OF
OBJECTION TO THE TESTIMONY.
Petitioner objects to the admission
of testimony at trial relating to the
pre-trial hypnosis of one prosecution
witness, Christine Brandon. Petitioner
asserts that the hypnosis was undertaken
to bolster the credibility of her
testimony to the jury. Petitioner
continues to make this allegation
notwithstanding that this witness had no
difficulty recalling events and testified
that she underwent hypnosis after having
given two statements to police and that
iainnicaatisinniterientienietaeeiainsinmnanniiineanaall
- 50 -
said hypnosis did not alter the earlier
made statements.
Petitioner states that Brandon's
testimony should not have been admitted
at all, that her testimony was
impermissibly tainted by suggestions
implanted during the hypnosis, and that
because of the hypnosis Petitioner had no
effective cross-examination rights.
Petitioner also asserts that the
"bolstering" took place when the court
allowed the prosecutor to ask the witness
whether she had undergone hypnesis.
Brandon testified on two different
dates. (December 12, 1979: 82-87;
December 17, 1979: 21-41 direct exam;
December 17, 1979: 41-50, Campbell,
cross-examination; December 17, 1979:
53-70, Willis, Cross-examination).
Campbell, Petitioner's attorney, did not
raise any question about hypnosis
, | —
- 51 -
although Willis, counsel for the
codefendant did.
Both trial counsel then waived the
presence and testimony of the hypnotist.
What this record reveals is simply
that there was no objection from
defendant's counsel as to testimony
relating to any hypnosis, that there was
no cross-examination by counsel on this
point, and that there was no real
cross-examination by Willis. Not only
that, but the pessibility for suggestive
implantation of events is nil - the
witness had already given statements to
police prior to being hypnotized and her
statements did not alter after it.
Here, the only purpose of the
hypnosis, as argued by the prosecutor in
closing argument, was to firm up possible
dates on which certain conversations had
- 52 -
taken place. That the conversations had
taken place, that the information
conveyed during those conversations had
been presented by the witness to police
prior to the hypnosis, and that the
witness' testimony did not change after
the hypnosis - i.e. there were no prior
inconsistent statements to be "corrected"
as in Hangsleben, cited by Petitioner
shows beyond doubt that the concerns of
the Hangsleben court which there
prevented admissibility not, and legally
should not, be found to apply here.
There are several cases which have
found that such evidence and testimony is
admissible. For example, United States v
Miller, 411 F2d 825 (2d Cir, 1969);
United States v Adams, 581 F2d 193 (9th
Cit. 1978), Gass gan, 439 US 1006
(1978); State v Jorgensen, 492 P2d 312
(Oregon, 1971); Harding v State, 246 A2d
302 (Maryland, 1968), cert den, 395 US
- 53 -
949; 23 L Ed 2d 468 (1969); Emmett v
Ricketts, 397 F Supp 1025 (ND Georgia,
1975); United States v Awkard, 597 F2d
667 (9th Cir 1979), cert den, 444 US 885
(1979); People v Modesto, 382 P2d 33
(Cal, 1963); See especially:
"Admissibility of Hypnotic Evidence," 92
ALR 3d 442 (1979). See, also, State v
McQueen, 244 SE2d 414 (1978) and United
States v Narcisco, 446 F Supp 252 (1977).
As is well recognized, decisions of
the trial court regarding the
admissibility of evidence will not be
disturbed on appeal or in post-conviction
hearings unless they are clearly
erroneous. People v McKinney, 88 Mich
App 715; 278 NW2d 728 (1979); People v
Flores, $2 Mich App 130; 284 NW2d 510
(1979); People v Fournier, 86 Mich App
768; 273 NW2d 555 (1980).
As indicated above, Petitioner's
counsel did not object to any of the
questions posed by the prosecutor, which
were themselves very limited in nature
and scope. Where there is no objection,
the issue is not preserved for appellate
review. People v Farnsley, 94 Mich App
34; 287 NW2d 361 (1979)? People v
2 son, 94 Mich App 137; 288 NW2d 587
(1979); People v Alexander, 72 Mich App
91; 249 NW2d 307 (1976).
Furthermore, both counsel waived
production of the hypnotist (December 17,
1969: 75).
Even if admission were held to be
error, and on the special and unique
facts here it was not, the error would on
these facts be harmless in light of those
special facts and the other evidence
adduced against Petitioner. Chapman v
California, 386 US 18; 87 S Ct 824; 17 L
- 55 -
Ed2d 705 (1967);People v Swan, 56 Mich
App 22; 223 NW2d 346 (1974); People v
Robinson, 386 Mich 551; 194 NW2d 709
(1972); People v Wright, 408 Mich 1; 289
NW2d 1 (1980); People v Wichman, 15 Mich
App 110; 166 NW2d 298 (1968); People v
Lauzon, 84 Mich App 201; 269 NW2d 524
(1978) and People v James, 87 Mich App
412; 274 NW2d 801 (1978).
Because the scope of the question
presented here was not determined
adversely to Respondent by the Michigan
Supreme Court in People v Gonzales, 417
Mich 968; 336 NW2d 751 (1983), with the
state court explaining: This opinion
should not be read as determining the
question of the admissibility of this
witness's testimony concerning facts she
was able to recall and relate prior to
hypnosis, a question which is reserved
until raised on an adequate record in an
appropriate case, the facts that here the
- 56 ~
witness had given statements to the
police, and in testimony, recounted those
statements did not lead the reviewing
state courts to hold the admission of her
testimony to be error. "(T)he fact that a
prosecution witness has been hypnotized
does not automatically preclude effective
cross-examination". People v Nixon, 421
Mich 79; 364 NW2d 593, 599 (1984).
Further, under the peculiar facts
of this matter, the issue should be
viewed as a state law evidentiary
question which is not reviewable in
federal habeas proceedings. Burks v
Egeler, 513 F2d 221 (6th Cir. 1975), cert
den 423 US 937 (1975). Since there was
corroboration of the witness's testimony
by three other witnesses, any error would
- 57 -
have been harmless. See People v Perry
(On Second Remand), 144 Mich App 420,
422; 375 NW2d 10 (1985). A federal
constitutional question has not been
presented, even if it were held that the
lower state appellate court was incorrect
in its holding. Combs v Tennessee, 530
F2d 695 (6th Cir. 1976).
Vv. THE CONDUCT OF THE TRIAL
PROSECUTOR DID NOT DENY
PETITIONER A FAIR TRIAL NOR DUE
PROCESS, ESPECIALLY WHERE NO
OBJECTIONS WERE MADE TO SPECIFIC
INSTANCES OF CLAIMED MISCONDUCT,
NOR WERE CURATIVE INSTRUCTIONS
REQUESTED.
Petitioner challenges several
aspects of the trial prosecutor's initial
Closing argument and rebuttal closing
argument.
She claims that these comments were
equivalent to the prosecutor testifying;
vouching for witnesses; telling the jury
that his own witnesses were lying and,
amounted to an accusation that Petitioner
coerced a witness into refusing to
testify.
- 59 <-
The short answer to these
allegations is that the initial argument
now challenged was totally allowable as
comment on the evidence adduced at trial,
and/or were statements representing the
prosecutor's theory of the case. This
does not represent error. (January 28:
71-75).
Several now challenged comments
were not challenged at trial and thus,
are not preserved for review. People v
Duncan, 402 Mich 1; 260 NW2d 58 (1977);
People v Alcala, 396 Mich 99; 237 NW2d
475 (1976).
The rebuttal closing argument
challenged was clearly responsive to
defense closing argument and is thus also
not error. People v Ashford, 91 Mich App
693; 283 NW2d 830 ot ees ee See
especially defense counsel's comments,
- 60 -
January 28: 44, 48; January 28: 53, 54,
55.
The relevant question to be asked
when this issue is raised and review is
sought is whether the prosecutor's
comments "so infected the trial with
unfairness as to make the resulting
conviction a denial of due process",
Dennelly v DeChristoforo, 416 US 637; 94
S Ct 1868, 40 L Ed@2d 431 (1974).
Furthermore, the appropriate standard of
review for such a claim is the "narrow
one of due process, and not the broad
exercise of supervisory power".
Donnelly, supra, at 416 US 642.
The challenged remarks in the
prosecutor's initial closing argument
were legitimate comments on the evidence
and proper statements of the prosecutor's
theory of the case. Moreover, several of
the now challenged comments were not
- 6l-
challenged at trial, as indicated.
Although the Michigan courts did not
specifically rely on procedural default
on this issue, Michigan law requiring an
objection and request for curative
instruction, see People v Hernandez, 80
Mich App 465; 264 NW2d 343 NW2d (1978)
and People v Etchison, 123 Mich App 448;
333 NW2d 309 (1983), the reviewing courts
dealt with it in a summary fashion.
Therefore, this Court should find that
the "cause and prejudice" standard
applies. Gilbert v Parke, 763 F2d 821,
825 (6th Cir. 1985).
As the Sixth Circuit Court of
Appeals has recognized, the scope of
review over allegedly prejudicial
arguments by a state prosecutor is
narrow. To present a federal
constitutional question, the
"prosecutorial argument must be so
egregious as to render the entire trial
ices
- 62 -
fundamentally unfair". Cook v
Bordenkircher, 602 F2d 117, 119 (6th Cir.
1979). In another case, United States v
Leon, 534 F2d 667, 679 (6th Cir. 1976),
the same court stated that "in every
case, we consider the degree to which the
remarks complained of have a tendency to
mislead the jury and to prejudice the
accused: whether they were isolated or
extensive; whether they were deliberately
or accidentally placed before the jury,
and the strength of the competent proofs
introduced to establish the guilt of the
accused", In Leon, although the
prosecutor called the defendant worse
than all of the criminals and traitors in
hell, and said that he (defendant) was
trying to forge and steal justice by
conning the jury with a made-up story,
the court held defendant was not denied a
fair trial. They explained that the
remarks were improper, but that there was
no objection, which was a significant
- 63 -
consideration, and there was no claim of
inadequate counsel. Further, the proof
of guilt was overwhelming.
In some respects, the situation
here was the same as in Leon, above.
Allegations of specific prosecutor
misconduct have been made, no objection
was raised at the state trial to then,
and the competent proofs as to guilt were
strong. (See facts.) Respondent submits
that if all claimed errors by the
prosecutor were established, the sum
effect still would not be a denial of due
process. As argued earlier, each was and
is defensible, and if error, should have
been objected to. Because they did not
infect the entire proceeding to the
detriment of fundamental fairness, in
this petition for review, they cannot be
said to be error requiring the granting
of the writ. Leon, Jones, Donnelly, and
Cook, supra.
Finally, the United States Supreme
Court, in United States v Young, 470 US
1; 105 S Ct 1038; 84 L Ed2d 1 (1985),
addressed the same issue, prosecutor's
comments, and held, in pertinent part,
that "... a criminal conviction is not to
be lightly overturned on the basis of a
prosecutor's comments standing alone, for
the statements or conduct must be viewed
in context; only by so doing can it be
determined whether the prosecutor's
conduct affected the fairness of the
trial". Young, 84 L Ed2d 9-10.
“...(T)he Court must consider the
probable effect the prosecutor's response
would have on the jury's ability to judge
the evidence fairly". Young, ibid.
Here, as pointed out above, the claimed
erroneous comments by the prosecutor did
not detract from the jury's ability to
"judge the evidence fairly”.
- 65 -
The evidence presented by the
prosecution as to the elements of the
crimes charged was very strong, see
facts, and the lack of contemporaneous
objection only serves to underscore the
clear lack of merit in the claim of error
now formulated. The trial was
fundamentally fair, and the problems
raised for review do not constitute a
violation of any constitutional rights
such that the conviction, and all
attendant state appellate remedies
utilized, should be overturned. (For an
annotated collection of cases on the
subject of waiver of the right to
complain of error as regards failure to
object to improper questions or comments
by a prosecutor, see 32 ALR 4th 774 et
seq.)
- 66 -
VI. PETITIONER WAS NOT DENIED
HER RIGHT TO CONFRONT WITNESSES >
WHEN THE PRELIMINARY EXAMINATION
TESTIMONY OF ONE WITNESS WAS
READ TO THE JURY AND THAT
TESTIMONY CONTAINED QUESTIONS
AND ANSWERS REGARDING
COMMUNICATIONS BETWEEN THE
CODEFENDANT AND’ THE
NONTESTIFYING WITNESS, AND NO
OBJECTION WAS MADE TO THE
PROCEDURE EITHER AT TRIAL OR THE
EXAMINATION.
Petitioner does not assert that she
was denied cross-examination rights
vis-a-vis the non-available witness,
Chare Knight. She does assert that she
was denied cross-examination rights
vis-a-vis her codefendant, Robert Jackson
(who did not testify before her trial
jury) because the testimony of Knight's
read to the jury contained questions and
- 67 =
answers relating to communications
between Knight and codefendant Jackson
relating to the killing.
Petitioner does admit that there
was no objection to the reading of this
testimony by her counsel. Thus the long
established rule, "no =- objection, no
appeal" applies to bar review of this
clain. People v Medina, 100 Mich App
358; 298 NW2d 648 (1980); MCL 769.26; MSA
28.1096; People v Fell, 65 Mich App 543;
237 NW2d 550 (1973)? People v Robinson,
386 Mich 551; 194 NW2d 709 (1972).
Petitioner attempts to avoid this
problem by finding that said testimony
violates the "manifest injustice" or due
process standard of appellate review
which applies where no objection was made
at trial. She does this by asserting
that such testimony was not legally
admissible against her even at the
- 68 =
preliminary examination bind-over stage
and thus most certainly would not be
admissible at trial. An objection to
this testimony was sustained at the
preliminary examination. What Petitioner
does not overcome however is the fact
that these identical matters were then
gone into by her counsel on
cross-examination of this witness.
Petitioner's own counsel at the
examination thus waived any valid
objection she might have had relating to
the now=-challenged questions and answers.
Not only was there a waiver of any
potential problem in this area by
counsel's examination tactics (and no
ineffectiveness claim has ever been
brought on this point) but, no trial
objection was made - apparently because
trial counsel recognized the waiver for
what it was. In any event, the trial
jury apparently heard (using Petitioner's
i —
- 69 =
appellate scenario) the objection to this
testimony and the magistrate's sustaining
of it - that would only benefit
Petitioner and not hurt her, at least in
light of her own theory of this issue on
appeal.
In any event, there is no way that
Petitioner could have compelled her
codefendant to testify before her jury,
simply because he was her codefendant.
He could not be forced to incriminate
himself in violation of his Fifth
Amendment rights. Petitioner could not
force or even validly request that the
People grant her codefendant immunity to
testify in her case. In reality,
Petitioner would not even want her
codefendant to testify - she originated
the killing plan, she hired the
executioners, she paid then. The
codefendant merely “followed orders" as
an “employee". His testimony to that
- 70 -
effect would be devastating to any
defense she could hope to proffer. There
is in actuality no confrontation issue
here, but merely a “a straw man"
construction being offered on the
sacrificial appellate alter in hopes of
obtaining some relief where none is
legally, factually, or logically
required. Davis v Alaska, 415 US 308; 94
S Ct 1105; 39 L Ed2dad 347 (1974).
Reference should also be made to Eaglin v
United States, 571 F2d 1069 (9th Cir.
1977), cert den, 435 US 906; 55 L Ed2d
497 (1978).
As indicated, under state law,
Petitioner waived appellate review of
this issue by failing to object at the
trial court level. See People v
Richards, 150 Mich 434; 114 NW 230
(1907); People v Smith, 420 Mich 1; 360
NW2d 841, 844 n. 3 (1984). Additionally,
Petitioner has not offered any
- 7Jlil-
explanation for the procedural default
which would satisfy any interpretation of
the cause and prejudice test. Hockenbury
v Sowders, supra.
Since this issue involves a matter
of state evidentiary law, which has been
ruled upon by the state courts, it is not
a federally cognizable clain. Whalen v
Johnson, 438 F Supp 1198 (D.C. Mich.
1977)? Cronnon v Alabama, 587 F2d 246
(Sth Cir. 1979). (See, also, Ohio v
Roberts, 448 US 56, 100 SCT 2531, 65 Ed2d
547 (1980), which would allow the
introduction of Jackson's earlier
statements to witness Knight.)
- 72 <-
vit. WHERE THE JURY INDICATED
THEY WISHED THE TESTIMONY OF
SEVERAL WITNESSES READ TO THEM,
AND THE TRIAL JUDGE EXPLAINED
THE PROBLEMS WITH THAT REQUEST
BUT DID NOT FORECLOSE THE
READING OF THE TESTIMONY, AND
THE JURY DECIDED IT NEEDED ONLY
THE TESTIMONY OF ONE WITNESS, NO
DENIAL OF DUE PROCESS OR A FAIR
TRIAL OCCURRED.
Petitioner's claim should be’
carefully read in comparison with the
record. Defendant states that the jury
wanted Chare Knight's testimony re-read,
as well as several other witnesses. The
record shows that the trial court
indicated to the jury at least twice that
if they needed all this testimony re-read
it would be done but that there were
difficulties in doing so, one of which
was providing a reporter to read the
- 73-
notes of such testimony which had not
been transcribed. Petitioner's trial
counsel did not pose any objection to
this explanation given by the court to
the jury. The jury decided they only
needed to hear Chare Knight's testimony.
This testimony was then re-read.
The scope of the material which is
to be re-read does indeed rest in the
sound discretion of the trial court.
People v Howe, 392 Mich 670; 221 NW2d 350
(1974). :
Both the reading of testimony to a
deliberating jury and the extent of
re-reading are decisions solely within
the trial judge's discretion. People v
Solsumon, 82 Mich App 502; 266 NW2d 453
(1978); People v Burks, 48 Mich App 484;
210 NW2d 495 (1973).
- J4 @
The only request entitled to be
considered by the court is that made by
the jury, the accused's request need not
be considered. People v Blalock, 44 Mich
App 336; 205 NW2d 185 (1973).
Under federal law, the decision
whether to reread testimony is assigned
to the trial judge's discretion. See
United States v Toney, 440 F2d 590, 592
(6th Cir. 1971); and United States v
Licavoli, 725 F2d 1040, 1049 (6th Cir.
1984). As the District Court held in
reviewing this issue, Petitioner Perry
was not deprived of any federal
constitutional right by the trial court's
actions regarding the request for
testimony to be reread.
- 75 -
VIII. PETITIONER HAS NOT SHOWN
PREJUDICE IN THE RECORD
REGARDING HER CLAIM OF
INEFFECTIVE ASSISTANCE OF
COUNSEL AT TRIAL.
The District Court succinctly
addressed this issue in denying merit to
it when he said: Petitioner refers to
several segments of the trial where she
contends her trial counsel erred. A
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 US 668, 104
S Ct 2052, 80 L Ed2d 674 (1984), the
Court finds that Petitioner did not show
that the purportedly deficient
performance of her counsel deprived her
of & 630 SSARs « (District Court
opinion, p. 8.)
Respondent states that the
controlling standard is found in People v
Garcia, 398 Mich 250; 247 NW2d 547
(1976):
Defense counsel must perform at least
as well as a lawyer with ordinary
training and skill in the criminal law
and must conscientiously protect his
client's interests undeflected by
conflicting considerations.
Our courts have found that new
trials will not be granted unless, but
for counsel's mistake, the accused would
have had a reasonably likely chance of
acquittal. People v Martin, 75 Mich App
6, 14; 254 NW2d 628 (1977); People v
Foster, 77 Mich App 604, 610; 259 NW2d
153 (1977); and People v Hanna, 85 Mich
App 516, 523; 271 NW2d 299 (1978). This
is determined from a review of all the
evidence presented as well as looking at
that conduct of counsel which is alleged
to be erroneous and/or prejudicial.
oe 77J@«
In People v Martin, 210 Mich 13;
NW (1920), the court stated most
cogently that:
A careful reading of the brief of
defendant's counsel on this motion, as
well as that filed when the appeal was
submitted, reveals the fact that his
principal complaint is that the
counsel who acted for defendant at the
trial failed to properly defend him
and neglected to make objections, put
in proofs, and do other things which
it is now insisted would have secured
his acquittal. Appellate courts
cannot determine whether the course
pursued by an attorney defending a man
Charged with crime, in respect to the
2 2 Oo, was es
means of promoting his defense. All
who are familiar with trials well know
what attorneys frequently differ as to
the theory on which a defense to a
criminal charge should be presented.
(140-141) (emphasis added).
And, as held in People v McLeod, 45
Mich App 332, 334; 206 NW2d 528 (1973):
Appellate courts never try to
second-guess trial counsel on matters
of strategy.
See also People v Crosby, 19 Mich App
135, 142; 172 NW2d 506 (1969); People v
Shipp, 21 Mich App 415, 420; 175 NW2d 529
(1970); People v Malchi White, 81 Mich
App 226, 229; 265 NW2d 100 (1978).
All of the above, and the
transcript-revealed actions of
Petitioner's counsel, must be viewed in
light of the presumption that Petitioner
did receive effective assistance of
counsel. Thomas v Wyrick, 535 F2d 407
(8th Cir. 1976); DuPree v United States,
606 F2d 829 (8th Cir. 1979); McQueen v
Swenson, 498 F2d 207 (8th Cir. 1974).
Petitioner's trial counsel was an
attorney with more than "ordinary
training and skill" demanded by Garcia,
supra. The record reveals a very
conscientious attempt to protect
Petitioner's interests; there is not even
an allegation of any "conflicting
- 79 =
considerations." Petitioner did, in fact
and in law, receive effective assistance
of counsel. See People v Armstrong, 100
Mich App 423; 298 NW2d 752 (1980); People
v Bailey, 101 Mich App 144; 300 NW2d 474
(1980).
The evidence against this
Petitioner was such that, even if we
assume for argument only, that trial
counsel did make one or several
"mistakes", there would have been no
“reasonably likely chance of acquittal."
People v Krist, 93 Mich App 425, 437; 287
NW2d 251 (1979), lv den, 407 Mich 963
(1980)? People v Robinson, 101 Mich App
687; 301 NW2d 41 (1980). See Chandler v
Jones, 813 F2d 773 (6th Cir. 1987); Meeks
v Bergen, 749 F2d 322, 327 (6th Cir.
1984) Compare with Rice v Marshall, 8:16
F2d 1126 (6th Cir. 1987), and its
- 80 -
discussion of a state's contemporaneous
objection rule. The conviction in this
cause should be affirmed.
RELIEF
WHEREFORE, Respondent asks this
Court to deny the Petition for Writ of
Certiorari.
Respectfully submitted,
JOHN D. O'HAIR
Prosecuting Attorney,
County of Wayne
TIMOTHY A. BAUGHMAN,
Chief of the Criminal Division
Research, my LD Appeals
i:
/
anal Tt \s
LARRY L BERTS P 23844
Assistant Prosecuting Attorney
12th Floor, 1441 St. Antoine
Detroit, Michigan 48226
Phone: (313) 224-5749
Dated: October 20, 1988
LLR:jjh
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.