Petition — Michigan v. Randle

_ Supreme Court, U.S.

a FILED

80-548 OCT 6 1980

AK, IR. CLERK

IN THE MICHAEL RODAK. FR.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

No.

THE PEOPLE OF THE STATE OF MICHIGAN,

Petitioner,

vs.

HERMAN RANDLE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF THE

STATE OF MICHIGAN

WILLIAM L. CAHALAN

Prosecuting Attorney

Wayne County

State of Michigan

EDWARD REILLY WILSON

Principal Attorney, Appeals

TIMOTHY C. SCALLEN (P-26596)

Assistant Prosecuting Attorney

1441 St. Antoine, 12th Floor

Detroit, Michigan 48226

Phone: (313) 224-5787

QUESTION PRESENTED

IS EVIDENCE OF OR COMMENT UPON

THE DEFENDANT'S REFUSAL TO PRO-

VIDE NON-TESTIMONIAL INFORMATION

VIOLATIVE OF THE FIFTH AMENDMENT

PRIVILEGE AGAINST SELF-

INCRIMINATION?

TABLE OF CONTENTS

Page

eee ee eee

ins 2 gis ) ©, eo? 8 © oS

Statement of Jurisdiction. . . . . . 2

Constitutional Provisions Involved . . . 2

epee @U WOO. 2 ew kw lt ltl

Reasons for Granting the Writ . . . .

olmUlCUellCUO

I GMMR ee ot ee

Appendix "A" | Opinion of the Michigan

Court ofAppeals . .. 9

Appendix "B" Order of the Michigan

Supreme Court. . . 12

INDEX OF AUTHORITIES

CASES

City of Westerville v Cunningham

239 NE 2d 40 (Ohio, 1968)

Clark v State

379 So 2d 97 (Fla., 1979).

Dudley v State

548 SW2d 706 (Tex., 1977)

Hill v State

~ 966 So 2d 318 (Ala., 1979)

Leake v Cox

“432 F2d 982 (CA 4, 1970)

People v Bobo

390 Mich 355 (1973) .

People v Davis

17 Mich App 615 (1969)

People v Davis

17 Mich App 615 (1969) . . .

People v Thomas

385 NE 2d 584 (N.Y., 1978) .

Schmerber v California

US 755, 7 S Ct 1826, 1833

ig Ed Te aoe trace) : -

State v Adams

~ Y47 SE 2d 475 (W. Va., 1978)

State v Andrews

212 NW 2d 863 (Minn., 1973)

Page

State v Oswald

~ S94. NW 2d 566 (S.C.,1976) . . .

United States v Blakne

“581 bod 1385 (CA 10,1978) . .

United States v Cassell

452 F24533(CA7,1971) . .

United States v Nix

465 F2d90(CA5,1970). . . .

United States v Prewitt

553 F2d1082(CA7,1977) . . .

United States v Thomas

586 F2d 123 (CA me "6. ~@.

United States v White

5 F2d 909 (CA 7, 1966) .

Welsh v District Court of Vermont Unit, Ect.

~§94 F2d 903 (CA

Other Authorities

Pe 32% gt git eg) Jes ou ete

hh SFR Sd” nee

26 U.S.C. See. I867(3) . . 1 ww lt

Page

6-7

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

No.

THE PEOPLE OF THE STATE OF MICHIGAN,

Petitioner,

vs.

HERMAN RANDLE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF THE

STATE OF MICHIGAN

Now comes William L. Cahalan, Prosecuting

Attorney in and for the County of Wayne, State of

Michigan, by Edward R. Wilson, Principal Attorney,

Appeals, and Timothy C. Scallen, Assistant

Prosecuting Attorney, and prays that a writ of

Certiorari issue to review the judgment of the Court of

Appeals of the State of Michigan entered in the above-

entitled cause on April 29, 1980, leave to appeal denied

by the Michigan Supreme Court on July 23, 1980.

-_s

OPINIONS BELOW

The Opinion of the Michigan Court of Appeals,

issued April 29, 1980, is unreported and appended as

Appendix A. The Michigan Supreme Court denied leave

to appeal in an order issued July 23, 1980 and appended

as Appendix B.

STATEMENT OF JURISDICTION

The judgment of the Michigan Court of Appeals

was issued on April 29, 1980. The Michigan Supreme

Court denied Petitioner's application for leave to appeal

on July 23, 1980. The jurisdiction of this Court is

invoked under 28 U.S.C. Sec. 1257(3).

List of Parties to the Proceeding

Herman Randle, Respondent

Represented below by appointed counsel,

Alvin C. Sallen

201 Northland Towers East

Southfield, MI 48075

(313) 569-6060

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides as follows:

"No person shall be held to answer for a

capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand

Jury, except in cases arising in the land or

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naval forces, or in the militia, when in

actual service in time of war or public

danger; nor shall any person be subject for

the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any

criminal case to be a witness against

himself, nor be deprived of life, liberty, or

property, without due process of law; nor

shall private property be taken for public

use without just compensation."

The Fourteenth Amendment to the United States

Constitution provides in pertinent part:

"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."

STATEMENT OF FACTS

R dent was tried by jury and convicted on the

charge of murder in the second-degree. In his opening

statement defense counsel stated that after the

incident the respondent left the scene, explaining he did

not leave town but went over to his mother's house. He

further stated that the respondent told everyone where

he would be when he left the scene and that is where

the police came and arrested him. (R. I, 83).

The arresting officer testified that after receiving

information and a description of the respondent at the

scenc he proceeded to a certain apartment where he

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found the respondent with others. The officer asked the

respondent if he was Herman Randle to which the

respondent answered with another name. The officer

testified that after placing him under arrest, the

respondent never admitted to him that he was in fact

Herman Randle. (R. Il, 36-37).

The Michigan Court of Appeals held, relying upon

the holding of Peop!e v Bobo, 390 Mich 355 (1973) which

was premised upon the FifthAmendment, that testimony

by the arresting officer that respondent gave a false

name before his arrest and then refused to give a name

after he was arrested violated the respondent's constitu-

tional right to remain silent.

REASONS FOR GRANTING THE WRIT

The issue as to whether evidence of or comment

upon a defendant's refusal to provide non-testimonial

information violates the Fifth Amendment is an issue

which has split several of the federal circuits, several

state courts of last resort, consequently has caused a

split between federal circuits and state courts and

which has once before been before this Court (though

the question was not reached). Schmerber v California,

384 hee 765 n. 9, 86 S Ct 1826, 1633 n. 9, 16 L Ed 2d

908 (1966).

The Second Circuit has held that such evidence

does not violate the Fifth Amendment. In Welch v

District Court of Vermont Unit, Ect., 594 F 2d 903 (CA

2, 1979), the defendant appealed from a denial of a

petition for writ of habeas corpus on the claim that the

admission into evidence of his refusal to take a breath

test at his trial on the charge of driving while

intoxicated violated his privilege against self-

incrimination. In finding this contention to be of no

merit, the Court held:

-5-

This issue was rai:ed in Schmerber but

the Court did not resolve it because defense

counsel in that case had failed to object at

trial) to the admission of the _ refusal

evidence or the prosecutor's comments on

that evidence. 384 U.S. at 765 n.9, 86 S.Ct.

1826, 1833 n.9. The Court did note that

"general Fifth Amendment principles, rather

than the particular holding of Griffin [v.

California, 380 U.S. 609, 85 S.Ct. 1229, 14

L.Ed.2d 106 (1965)], would be applicable in

these circumstances." Id., citing Miranda v.

Arizona, 384 U.S. 436, 468, n.37, 86 S.Ct.

1602, 16 L.Ed2d 694 (1966). The Supreme

Court also held that the State "may have to

forgo the advantage of any testimonial

products of administering the test,” such as

incriminating statements or confessions

made by the accused out of fear of the

process of extracting physical evidence from

his body or out of religious opposition to the

test. 384 U.S. at 765 n.9, 86 S.Ct. at 1833

n.9 (emphasis in origin).

There is no clr im in this case that

Welch refused out of fear of any "pain,

danger, or severity" associated with the

breath test, id., or that he opposed the test

on religious grounds. Nor did he "confess"

when faced with the threat of a compelled

test. Although the evidence introduced

constituted more than a mere "No" on the

part of Welch, and included not only vague

and contradictory answers but also a request

for the presence of a third party witness if

he should submit to the test, he did not give

a reason for his refusel or actually make an

incriminating statement! to the effect that

he was drunk. His only claim, therefore, is

that the very act of refusal was itself

testimonial in nature.

We have already rejected a similar

claim in the area of handwriting exemplars,

holding in United States v. Wolfish, 525 F.2d

457, 461 (2d Cir. 1975) (per curiam), cert,

denied, 423 U.S. 1059, 96 S. Ct. 794, 46 L.

Ed.2d 649 (1976), that it was not error to

admit evidence of the defendant's refusal! to

cooperate in giving a handwriting exemplar,

including his efforts to disguise his

handwriting in the exemplar.

Consistent with this view, see also United States v

Blakney, 581 F2d 1389 (CA 10, 1978), United States v Nix,

ies Fx 2d 90 (CA 5, 1970), Clark v State, 379 So 2d 97

(Fla., 1979), Hill v State, 366 So 2d 3is (Ala., 1979),

rooms v Thomas, 385 NE 2d 584 (N.Y., 1978) and Cit

of Westerville v Cunningham, 239 NE 2d 40 (Ohio, 1968

all of which opinions are primarily based upon

Schmerber, supra. Many federal circuit and state

courts, however, take or indicate a sharply opposing

view. Leake v Cox, 432 F2d 982 (CA 4, 1970) (assumed

without deciding such evidence was inadmissable citing

Schmerber, 384 US 755, 765 n. 9, 86 S Ct 1826, 1833 n.9,

16 L Ed 2d 908 (1966), United States v White, 355 F2d

909 (CA 7, 1966), State v Andrews, 212 NW 2d 863

(Minn., 1973), State v Adams, 247 SE 2d 475 (W. Va.,

1978), Dudley v State, 548 Sw2d 706 (Tex., 1977) and

State v Oswald, 241 NW 2d 566 ({S.C., 1976) (indicating

agreement with Andrews but not having to go that far).

The holding of the Supreme Court of Minnesota in

Andrews, supra is in direct conflict, both factually and

legally, with that of the Second Circuit in Welch, supra.

Additionally, the Ninth and Seventh Circuits are

split as to whether Miranda warnings are required

before admitting evidence of voice or handwriting

exemplars. United States v Thomas, 586 F2d 123 (CA 9,

a and United States v Cassell, 452 F2d 533 (CA 7,

1971).

-7-

It is patently clear that divulgence of one's name,

like voice exemplars and the like, is not a testimonial

communication protected by the Fifth Amendment.

United States v Prewitt, 553 F2d 1082 (CA 7, 1977)

(alias), cope v Davis, 17 Mich App 615 (1969). The

Michigan Court of Appeals in the instant case, in

holding that evidence of therespon:lent giving a wrong

name and his subsequent refusal to divulge his true

name or remaining silent on that as violative of his

Fifth Amendment privilege against self-incrimination,

subscribed to the view of White, Andrews and others

that evidence of the respondents refusal to provide non-

testimonial information violates the Fifth Amendment.

There is unquestionably a split between and among

federal circuit and state courts and seemingly divergent

opinions as to the significance of this Court's statement

in footnote 9 in Schmerber. However, petitioner

submits that the view that evidence of refusing to

provide non-testimonial information violates one's Fifth

‘ Amendment rights is a wholly unwarranted application

and extension of the Fifth Amendment. The Court has

consistently and squarely defined the Fifth Amendment

privilege as protecting "an accused only from being

compelled to testify against himself or otherwise

provide the State with evidence of testimonial or

communicative nature .. ." Schmerber, 36 S Ct 1830.

Evidence or comment upon the defendant's refusal to

provide non-testimonial information, which he had no

right to do, does not in any manner violate his privilege

against incriminating himself or provide the State with

testimonial evidence. To hold otherwise, especially

here where the defendant claimed in his ng

statement that he made himself readily available to the

police at all times, would serve no useful purpose and

would be purely a fanciful and unwarranted application

of the Fifth Amendment privilege against self-

incrimination.

There being a split between and among federal

circuit and state courts as to the scope and tion

of the Fifth Amendment, petitioner ts that

plenary review by this Court is needed.

CONCLUSION

It is respectfully submitted that for the reasons

outlined above plenary review should be granted.

Respectfully sutmitted,

WILLIAM L. CAHALAN

Prosecuting Attorney

Wayne County

State of Michigan

EDWARD REILLY ——

Principal Attorney, Appeals

Dinthy 0. beable

TIMOTHY C. SCALLEN (P-26596)

Assistant Prosecuting Attorney

1441 St. Antoine, 12th Floor

Detroit, Michigan 48226

Phone: (313) 224-5787

TCS/do

Dated: September 18, 1980.

APPENDIX A

OPINION OF THE MICHIGAN COURT OF APPEALS,

(People of the State of Michigan v Herman Randle)

(No. 43317)

Before: N.J. Kaufman, P.J., D.E. Holbrook, Jr. and R.M.

Maher, JJ.

PEP CURIAM

The defendant, Herman Randle, was convicted of

second-degree murder in violation of MCL 750.317; MSA

28.549 in a jury trial in the Recorder's Court for the

City of Detroit that lasted from July 25 through July

28, 1978. Defendant was sentenced to serve the rest of

his natural life in prison. The defendant appeals as of

right, raising five challenges to his conviction. This

Court need only address one challenge since we find

that challenge dispositive of the present appeal.

The prosecution's case against the defendant was

based upon eyewitness testimony of several witnesses

who observed the defendant severely beat the deceased,

Delores Butler. The defendant and the deceased had

apparently been living as man and wife for several

years. The cause of the deceased's death was

established to be a torn liver and mesentery.

Prosecution witnesses testified that the defendant had

beaten the deceased, thrown her down # flight of stairs,

' and kicked the deceased in the abdomen. The defendant

testified in his own behalf and admitted to having hit

the deceased about the face after learning of the

deceased's infidelity. However, the defendant denied

ever kicking the deceased and claimed that she had

fallen down a flight of stairs due to her intoxication.

While examining a police officer who had arrested

the defendant after this incident, the prosecutor asked

the officer if the defendant had given the officer his

correct name after he had been arrested. The officer

stated that before his arrest, the defendant had given a

false name and that after his arrest, the defendant still

did not give his correct name, but remained silent on

this issue. We view this as improper examination

invading the defendant's self-incrimination rights as

established by Eeopte v Bobo, 390 Mich 355 (1973). In

Bobo, the Supreme Court held:

"We will not condone conduct which directly or

indirectly restricts the exercise of the constitutional

right to remain silent in the face of accusation. 'Non-

utterances' are not statements. The fact that a witness

did not make a statement may be shown only to

contradict his assertion that he did."

See also, People v Hoye, 80 Mich App 258, 262; 263

NW2d 343 and People v Perez, 66 Mich App 685;

239 NW2d 432 (1976).

Defense counsel's failure to object does not

preclude appellate review. People v Dunn, 46 Mich App

226; 208 NW2d 239 (1973), People v Gant, 55 Mich App

510; 222 NW2d 784 74), People v Hargrave, 74 Mich

App 690; 254 NW2d 614 (1977).

In Hargrave and Hoye, supra, this Court found

oviientited cross-examination and/or argument

concerning defendant's silence to be "offensive to the

maintenance of a sound judicial process", We find this

to be true of the direct examination of the arresting

police officer in the case at bar. To allow the

prosecutor to use the silence of the accused against him

placed an impermissible penalty upon the exercise of

the defendant's privilege against self-incriimination. We

also find the people's proofs were not so overwhe!ming

to offset the prejudicial effect of this testimony.

Though unobjected to at trial, the error could not have

been cured by a cautionary instruction and therefore

constitutes grounds for reversal. We wish to reiterate a

warning given by this Court several years ago:

"In finding the error harmless in this case, we wish

to emphasize that we do not condone conduct which

directly or indirectly restricts or penalizes the exercise

of the constitutional right to remain silent in the face

of accusation. People v Bobo, 390 Mich 355; 212 NW2d

190 (1973). We wil tind it difficult in the future to

believe that prosecutors and police are ignorant of the

well-established principle of .aw which forbids comment

upon an accused's silence or that clear violations of the

principle arise from inadvertence. Deliberate

violations of this rule may lead us to reverse

convictions even where evidence might be

overwhelming. The prosecutor who comments, or

elicits comment, on a defendant's silence thus risks the

loss of a perfectly good case for no reason."

For the above reason, the defendant's conviction

is vacated and the case is remanded to the lower court

for a new trial.

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APPENDIX B

ORDER OF THE MIICHIGAN SUPREME COURT

At a Session of the Supreme Court of the State of

Michigan, Held at the Supreme Court Room, in the City

of Lansing, on the 23rd day of July in the year of our

Lord one thousand nine hundred and eighty.

Present: The Honorable Mary S. Coleman, Chief

Justice, Thomas Giles Kavanagh, G. Mennen Williams,

Charles L. Levin, John W. Fitzgerald, James L. Ryan,

Blair Moody, Jr., Associate Justices.

On order of the Court, the application for leave to

appeal is considered, and it is DENIED, because the

Court is not persuaded that the question presented

should be reviewed by this Court.

State of Michigan — ss.

I, Harold Hoag, Clerk of the Supreme Court of the

State of Michigan, do hereby certify that the foregoing

is a true and correct copy of an order entered in said

court in said cause; that I have compared the same with

the original, and that it is a true transcript therefrom,

and the whole of said original order.

In Testimony Whereof, I have hereunto set my

hand and affixed the seal of said Supreme Court at

Lansing, this 23rd day of July in the year of our Lord

one thousand nine hunderd and eighty.

/s/ Corbin Davis

Deputy Clerk