# Opposition Brief — Perry v. Howes

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 982

## Text

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 . 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).
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0330%3A2. Public record. Not legal advice.