Opposition — Michigan v. Randle

| RECEIVED

IN "HE JAN 1 5 1981

OrriCe OF THE CLERK

SUPREME COURT, E COURT, U.S. "

SUPREME COURT OF THE UNITED STATES

No. 80-548

"HE PEOPLE OF THE STAVE OF 'tICIITGAN,

Petitioner,

vs.

HERMAN RANDLE,

Respondent.

MOTION TO PROCFED IN FORMA PAUPERIS

Now comes Respondent Herman Randle, by and through his

attorney, Alvin C. Sallen, and pursuant to Rule 46, respectfully

moves this Honorable Court to enter an Order allowing him to

proceed In Forma Pauperis in the above-captioned cause for the

following reasons:

l. That Respondent is presently incarcerated, awaiting

retrial in the Recorder's Court for the City of Detroit.

a That Respondent's retrial has heen staved vending

Plaintiff-Petitioner's Application for a "Writ of Certiorari.

3. That Respondent was represented in this cause hy

Court-appointed counsel, Alvin C. Sallen, in the "tichigan Court of

Appneals and the Michigan Supreme Court.

4, That Respondent is still indigent and has no monies

or assets to retain counsel or vay any costs for any proceedines

in this Court.

Wherefore, Respondent prays this Honorable Court enter

an Order allowing him to proceed Jn Forma Pauperis.

Respectfully submitted,

a -_ ea ee

Alvin C. Sallen_) (P23797)

Attorney for Respordent

201 Northland Towers East

Southfield, Michigan 48075

Dated: January 7, 1981 (313) 5€9-6060

IN THE

OCTOBER TERM,

SUPREME COURT OF THE UNITED STA’

1980

No. 80-548

vs.

ANSVIER IN OPPOSITION

FOR WRIT OF CERTIORARI

ALVIN C. SALLEN (P23797)

Attorney for Respondent,

HERMAN RANDLE

201 Northland Towers East

Southfield, Michigan 48075

(313) 569-6060

Petitioner,

HERMAN RANDLE,

Respondent.

Supreme Court, U.S,

FILED

ES JAN 6 1901

MICHAEL RODAK, JR., CLERK

THE PEOPLE OF THE STATE OF MICHIGAN,

TO PETITION

TO THK COURT OF

APPEALS OF THE STATE OF MICHIGAN

COUNTER-QUESTION PRESENTED

MAY A STATE AS A MATTER OF ITS OWN

LAW IMPOSE HIGHER STANDARDS ON

POLICE ACTIVITY AND PROSECUTORIAL

CONDUCT WHICH DIRECTLY OR INDIRECT-

LY RESTRICTS THE EXERCISE OF THE

CONSTITUTIONAL RIGHT TO REMAIN

SILENT AS GUARANTEED BY THE CON-

STITUTION OF THE STATE OF MICHICAN,

ART 1, §17?

TABLE OF CONTEN'TS

Index Of Authorities. ..ssesesreeseeeseveseoee

Constitutional Provisions Involved. . .... +. «2 « «© «

Counter-Statement of Facts and Proceedings Below. ....

Meaeone fer "Denying Certiorari. .. + seen eeev neve se

COMOLUSiGM. «2 ws ce tes ewe eee ewe wee os oe he

Appendix "A" - Brief in Support of Answer in Opposition

to Delayed.Application for Leave to Appeal

INDEX OF AUTHORITIES

Cases Page

Cooper v. California,

386 US 58, 62; 87 S Ct 788; 17 L Ed 2d 730 (1967)......4

Miranda v. Arizona,

384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966)........5

Oregon v. Hass,

420 US 714, 719; 95 S Ct 1215; 43 L Ed 2d 570 (1975)...4

People v. Bobo,

390 Mich 355; 212 NW2d 190 (1973).......4-- coccccccccceS Ont

People v. Graham,

386 Mich 452, 458; 192 NW2d 255 (1971)... eee eeeeeees --6,7

People v. Hargrave, .

74 Mich App 690; 254 NW2d 614 (1977)... eeeeeeees cocccel

People v. Hoye,

80 Mich App 258, 262; 263 NW2d 343 (1977). ...eeeeeeeees 7

Sibron v. New York,

392 US 40, 60-61; 88 S Ct 1889; 20 L Fd 2d 917 (1368)..4

Other Authorities

MCLA 750.317; MSA 28.549....eeeeeeees TOCrererrrrer ere eee 2

Mich Const, 1963, Art. 1, Section 17... ccc cvecccsccccevece oot 4al

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 19980

No. 80-548

THE PEOPLE OF THE STATE OF MICHIGAN,

Petitioner,

vs.

HERMAN RANDLE,

Respondent.

ee ce ee oe eee

ANSWER IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE COURT OF

APPEALS OF THE STATE OF MICHIGAN

ee ee eee eee

Now comes Respondent Herman Randle, by and through his

attorney, Alvin C. Sallen, and prays this Honorable Court deny

Petitioner's Writ of Certiorari for the following reasons:

CONSTITUTIONAL PROVISTONS 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

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 Constitu-

tion provides in pertinent part:

"No State shall make or enforce any law

which shall abridge the privileges or imnuni-

ties 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 juris-

diction the equal protection of the laws."

Article 1, Section 17 of the Michigan Constitution

provides in pertinent part:

"No person shall be compelled in any

criminal case to be a witness against him-

self, nor be deprived of life, liberty or

property without due process of law."

COUNTER=STATEMENT OF FACTS AND PROCEEDINGS BELOW

This is a criminal case,

Respondent Herman Randle was charged with the offense of

Murder in the Second Degree, MCLA 750.317; MSA 28.549.

The case was tried before a duly sworn jury before the

Honorable Verne C. Boewe, a Visiting Judge of the Recorder's Court

for the City of Detroit (I, 68).

Respondent was charged with the murder of his common-law

wife, Delores Butler.

In a nutshell, the prosecutor's theory was that on

December 22, 1977 the Respondent came home from a period of incar-

ceration in the Detroit House of Correction to find his home ina

state of disarray. The Respondent was told that while he was gone

his wife was sleeping with other men. The Respondent confronted

the deceased with this information and then proceeded to viciously

beat and kick her, causing her eventual death.

Thirty-one year old Herman Randle testified in his own

behalf (III, 93-122; IV, 3-66). He testified that upon being told

by his one-time friend, Ralph Weathington, that his wife had slept

with his friend and everyone in the heighborhood (III, 105), he

felt blown up inside and severely hit his wife in and ahout the

face. The Respondent denied ever kicking his wife in the stomach

and stated that she was drunk and stumbled down the staircase

(IIIT, 112-133). His wife was alive with swollen eyes when he left

her. The Respondent denied any previous convictions for any

violent crime,

The medical examiner, George Russanow, stated that the

cause of death was internal bleeding caused by a ruptured liver.

The liver could have been ruptured by the fall down the flight of

stairs (I, 97-99, 101-105). ‘The deceased's blood alcohol level

was .17 (I, 101, 102). The various contusions to the deceased's

head were not the cause of her death (I, lll, 112).

On July 28, 1978, Respondent was found guilty of second-

degree murder (V, 20).

On August 11, 1978 he was sentenced to a natural life

term of imprisonment (4, Sentence Proceedings).

On April 29, 1979, the Court of Anpeals, Judge N. J.

Kaufman presiding, rendered its Opinion (unreported), which

vacated Respondent's conviction and remanded his case for a new

trial.

On July 23, 1980 the Michigan Supreme Court issued an

Order denying Petitioner's leave to appeal.

It is of significant import to note that the Court of

Appeals only addressed itself to one of the five challenges raised

in the appeal Brief submitted by Respondent. Respondent Randle

respectfully submits that the four remaining issues also warrant

reversal and remand, and are salient reasons for this Court to

deny Certiorari (see Respondent's Brief appended as Appendix A).

REASONS FOR DENYING CERTIOPARI

l. Respondent raised five issues on appeal to the

Michigan Court of Appeals, each of which it is submitted, warrant

reversal of his conviction. It is of significant import to note

that the Court of Appeals in its Opinion only addressed itself to

one of the issues raised by Respondent. Respondent again raised

1l five challenges to his conviction in his Answer and Brief in

position to the prosecution's Application for Leave to Appeal to

the Michigan Supreme Court. On July 23, 1978 the Michigan Suprere

ourt denied the Application for Leave to Appeal because it vas

not persuaded that the question presented by the avpellant should

be reviewed.

2. Petitioner is misplaced in its attempt to character4

ize the Court of Appeals Opinion, which reversed Respondent's

conviction, as being solely premised on “evidence of or comment

upon the Defendant's refusal to provide non-testimonial oe

in violation of the Fifth Amendment privilege against self-

incrimination". Perusal of the authorities set forth in the

Michigan Court of Appeals Opinion actually reveals that it was not

only premised upon the violation of Federal constitutional rights

but also constitutional rights as guaranteed under the State

Constitution, Mich Const, 1963, Art 1, §17 and case law as promul-

gated by the State, which as a matter of State policy, proseribes

both the prosecutor and police from commenting upon an accused's

silence in the face of accusation. People v. Robo, 399 Mich 355;

212 NW2d 190 (1973).

Defendant-respondent respectfully submits that there is

no need to devolve into a hairsplitting and often sophistric

analysis as to whether the complained-of conduct involves testi-

monial as opposed to non-testimonial conduct, because a state, as

a matter of its own constitutional law, may impose higher stand-

ards on police and prosecutorial conduct than those fecerally

required, See, e.g., Cooper v. California, 386 US 58, 62; 87 S Ct

88 S Ct 1889; 20 L Ed 2d 917 (1968). See Oregon v. Hass, 420 US

714, 719; 95 S Ct 1215; 43 L Ed 2d 570 (1975).

The case at bar simply involves impermissible comment

upon the fact that Respondent remained silent and did not give hig

correct name after he was formally arrested and interrogated. Thig

unwarranted comment was brought to the jury's attention by the

prosecutor's interrogation of the arresting officer and in his

final argument. The prosecutor's direct examination of one of the

arresting officers reads as follows:

Q. All right. Now, once you recognized or

realized that it was Herman Randle, or

that person sitting at the table was in

fact Herman Randle, or matched the

description from the clothes that he had

on, what did you do?

A. I placed him under arrest and advised

him of his constitutional rights. I

explained the situation to the people

that were there because they were

getting rather rowdy.

Q. All right --

A. And then we took him out to the car.

Q. Now, did the Defendant ever admit to you

that he was in fact Herman Randle?

A» Did he ever admit it to me?

Q. Yes.

A. Not to me.

MR. ZIOLKOWSKI: I have nothing further

of this witness.

(III, 36-37).

It is fundamental that an accused's Miranda rights

(Miranda v. Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694

(1966) applies to all police interrogation once an accused indi-

cates in any manner that he wishes to remain silent. Although the

interrogation may be perfunctory and ask for general information,

it nonetheless constitutes an interrogation. It is thus apparent

that the People's attempt to characterize the improper conduct as

"non-testimonial" finds neither factual nor logical support. In

the first instance, the prosecutor, in his case-in-chief vorior to

the Defendant taking the stand, impermissibly brought to the

jury's attention that Defendant did not "admit" he was Herman

Randle after he was formally arrested and advised of his constitu-

tional rights. Secondly, the prosecutor directly argued to the

jury in his closing argument that they should infer that the

Defendant's refusal to give his name is indicative of his lack of

remorse and criminal mens rea.

At his trial, when testifying on his own behalf, Randle

was not asked by his counsel and did not volunteer any information

as to whether he had initially given a false name to the police

before his arrest and remained silent and still did not give his

correct name after he was formally arrested and interrogation by

the police had commenced.

In this context, it is manifest that the actual design

and effect of the prosecutor's subsequent line of questioning of

the arresting police officer indicating that the Defendant refused

to speak during interrogation was to place a penalty upon Defend-

ant's exercise of his privilege against self-incrimination. Inas-

much as Defendant on direct examination did not testify at all

regarding his refusal to give his correct name when interrogated

by the police there was no prior inconsistent statement to impeach

In People v. Graham, 386 Mich 452, 458; 192 NW2d 255

(1971), the Michigan Supreme Court emphasized:

"In our holding today, we stress that the

defendant's refusal to speak during interro-

gation is admissible only to impeach his own

prior inconsistent statements at trial."

Thus, in the case at bar, the Court of Appeals in

vacating Defendant's conviction aptly noted:

While examining a police officer who had

arrested the defendant after this incident,

the prosecutor asked the officer if the

defendant had given 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 People 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 he shown only to

contradict his assertion that he did",

As previously noted, it cannot be gainsaid that Peti-

tioner has conveniently ignored the salient point that the

prosecutor compounded this errant inquiry by emphasizing to the

jury in closing argument that Defendant's choice to remain silent

and not give his correct name after his arrest, should be con-

sidered as evidence of his lack of remorse and his criminal state

of mind.

When scrutinizing the factual circumstances underlying

Respondent's conviction, the Court of Appeals correctly noted that

the People's proofs "were not so overwhelming so as to offset the

prejudicial conduct" of the prosecutor.

Finally, it must be emphasized that the Opinion which

vacated Defendant-respondent's conviction was premised not only

upon the Michigan Constitution, Mich Const, 1963, Art 1, §17, hut

supra; People v. Hoye, 80 Mich App 258, 262; 263 NW2d 343 (1977);

People v. Hargrave, 74 Mich App 690; 254 Nw2d 614 (1977) for the

proposition that the direct examination of the arresting police

officer in the case at bar was "offensive to the maintenance of a

sound judicial process",

CONCLUS ION

It is respectfully submitted that for the above reasons,

as well as the points and authorities set forth in Respondent's

Briefs previously filed in the Michigan Court of Appeals and the

Supreme Court, this Court should deny Certiorari.

Respectfully submitted,

f ioe i Sy athe

Aivin C. Sallen (P23797)

Attorney for Resvondent

201 Northland Towers East

Southfield, Michigan 48075

|| DATED: December 29, 1980 (313) 569-6060

STATE OF MICHIGAN

' JIN THE SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-?ppellant,

‘* vs~-

HERMAN RANDLE,

De fendant-Appellee.

a sa a /

Court of Appeals No. 43317

Recorder's Court No. 77-09561

—_——- ~— - -- -- Se - + +

BRIEF IN SUPPORT OF ANSWER IN OPPOSITION

TO DELAYED APPLICATION FOR LEAVE TO APPEAL

ALVIN C. SALLEN (P23797)

Attorney for Defendant-Appellee

201 Northland Towers East

Southfield, Michigan 48075

(313) 569-6060

APPENDIX A

SUPREME COURT

NO, 65184

TABLE OF CONTENTS

Index to Authorities. . . . . . . . . . ° . . . . . .

Statement of Pacts and Proceedings Below. ......

Statement of Gueaetions Presented. «ses s¢eeteee*

Arguments:

I.

If.

Itt.

IV.

THE ADMISSION OF A PHOTOGRAPH OF THE

VICTIM LAYING ON A SLAB AT THE WAYNE

COUNTY MORGUE WAS REVERSIBLE ERROR. .

THE DELIBERATE ADMISSION OF TESTIMONY

ACCUSING DEFENDANT ON A PREVIOUS OC-

CASION OF HITTING THE VICTIM IN HER

STOMACH WHILE SHE WAS PREGNANT CAUSING

HER TO LOSE A BABY WAS REVERSIBLE

ee ee ee ee a oe ee ee a ee

THE ADMISSION OF POLICE TESTIMONY CON-

CERNING DEFENDANT'S SILENCE AT ARREST

VIOLATED DEFENDANT'S RICHT AGAINST

SELF-INCRIMINATION AND IS NOT HARMLESS

Deh © &-b 6 © 6 ee CH 8 OCR 8:16.

DEFENDANT'S SENTENCE MUST BE VACATED

WHERE THE RECORD AFFIRMATIVELY INDI-

CATES THAT HE WAS GIVEN A MORE SEVERE

SENTENCE FOR EXERCISING HIS RIGHT TO

A JURY TRIAL . . « « i «© © © © © © @

THE PROSECUTOR'S CROSS-EXAMINATION OF

DEFENDANT AS TO ALLEGED PRIOR INCON-

SISTENT STATEMENTS MADE iO THE POLICE

WAS REVERSIBLE ERROR .°. .« « « «© «© « «

Relief Requested. . . . . . . . . . . . . . . . . . .

Case

INDEX TO AUTHORITIES

Bordenkircher v. Hayes, 434 US 357 (1978)... .

In Re LeWallen, Cal Sup Ct., 24 Cr L 2458 (1979)

People v.

People v.

People v.

People v.

People v.

People v.

People v.

People v.

People v.

People Vv.

People v.

People v.

People v.

People v.

People v.

People v.

People v.

Others

Bobo, 390 Mich 355 (1973)... .

Bottany, 43 Mich App 375 (1972).

Brown, 44 Mich App 402 (1973). .

Cox, 61 Mich App 37, 41 (1975) .

Dozier, 22 Mich App 528 (1970) .

Eddington, 387 Mich 551, 562-563

Falkner, 389 Mich 682 (1973) ..

Hargrave, 74 Mich App 690 (1977)

Hoye, 80 Mich App 258 (1977) ..

Jones, 403 Mich 527 (1978) ..

King, 87 Mich App 163 (1978) ..

Oliphant, 399 Mich 472 (1976). .

Plummer, 37 Mich App 657 (1972).

Rogers, 14 Mich App 207 (1968) .

Rustin, 406 Mich 427 (1979)...

Swan, 56 Mich App 22, 33 (1974).

Turner, 17 Mich App 123 (1969) .

MCJI 4:5:01. . . . . . . . . . . . . . . .

MCL 768. 27 . . > . . . . . . . . . . . . .

MRE 404. .

US Const.,

Am. V, Const. 1963, Art. 1, §17

(1972).

Page

.

oO wo wo ~ ~ > =

.

vu @ ~ uw

STATEMENT OF FACTS AND PROCEEDINGS BELOW*

This is a criminal case,

pefendant-appellant HERMAN RANDLE was charged with the

| offense of Murder in the Second Degree, MCLA 750.317; MSA 28.549,

The case was tried before a duly sworn jury before the

| Honcrable Verne C. Boewe, a visiting Judge of the Recorder's

Court for the City of Detroit (I, p. 68).

Defendant was charged with the murder of his common-law

wife, Delores Butler.

In a nutshell, the prosecutor's theory was that ona

| December 22,.1977 the Defendant came home from a period of

incarceration in the Detroit House of Correction to find his home

| in a state of disarray. The Defendant was told that while he was

| gone his wife was sleeping with other men. ‘The Defendant con-

| fronted the deceased with this information and then proceeded to

viciously beat and kick her, causing her eventual death.

Thirty-one year old Herman Randle testified in his own

| behalf (III, pp. 93-122; IV, pp. 3-66). He testified that upon

being told by his one-time friend, Ralph Weathington, that his

|] wife had slept with his friend and everyone in the neighhorhood

(III, p. 105), he felt blown up inside and severely hit his wife

j in and about the face. The Defendant denied ever kicking his wife

in the stomach and stated that she was drunk and stumbled down the

staircase (III, pp. 112-113). His wife was alive with swollen

eyes when he left her. The Defendant denied any previous convic-

tions for any violent crime,

The medical examiner, George Pussanow, stated that the

cause of death was internal bleeding caused by a ruptured liver.

The liver could have been ruptured by the fall down the flight of

stairs (I, pp. 97-99, 101-105). The deceased's blood alcohol

level was .17 (I, pp. 101, 102). The various waetinn tne to the

deceased's head were not the cause of her death (T, pp. LLL, 112).

*The numbers in parentheses refer to the respective

pages in the transcript of testimony taken in trial of this case.

: : |

The pertinent portions of the testimony and proceedings

with respect to Defendant's appeal are set forth in his arguments

below.

On July 28, 1978, Defendant was found guilty of second-

degree murder (V, p. 20).

On August 11, 1978, he was sentenced to a natural life

term of imprisonment (p. 4, Sentence Proceedings).

On April 29, 1979, the Court of Appeals, Judge N. J.

Kaufman presiding, rendered its Opinion reversing Defendant's

conviction and remanding for a new trial.

It is of significant import to note that the Court of

Appeals only addressed itself to one of the five challenges raised

on appeal by Defendant. Defendant Randle respectfully submits

that the four remaining issues also warrant reversal and remand,

I.

The Court of Appeals did not address itself to

STATEMENT OF QUESTIONS PRESENTED

WAS THE ADMISSION OF A PHOTOGRAPH OF THE

VICTIM LAYING ON A SLAB AT THE WAYNE

COUNTY MORGUE REVERSIBLE ERROR?

this issue,

Defendant-Appellee submits the answer "Yes",

It,

The Court of Appeals did not address itself to

WAS THE DELIBERATE ADMISSION OF TESTI-

MONEY ACCUSING DEFENDANT ON A PREVIOUS

OCCASION OF HITTING THE VICTIM IN HER

STOMACH WHILE SHE WAS PREGNANT CAUSING

HER TO LOSE A BABY, REVERSIBLE ERROR?

this issue.

Defendant-Appellee submits the answer "Yes",

Itt.

DID THE ADMISSION OF POLICE TESTIMONY

CONCERNING DEFENDANT'S SILENCE AT

ARREST VIOLATE DEFENDANT'S RIGHT

AGAINST yy it emerald AND {tS IT

HARMLESS ERROR?

The Court of Appeals answered "Yes",

Defendant-Appellee submits the answer "Yes"

IV.

The Court of Appeals did not address itself to

MUST DEFENDANT'S SENTENCE BE VACATED

WHERE THE RECORD AFFIRMATIVELY INDI-

CATES THAT HE WAS GIVEN A MORE SEVERE

SENTENCE FOR EXERCISING HIS RIGHT TO

A JURY TRIAL?

this issue.

Defendant-Appr*ice submits the answer "Yes",

V.

The Court of Appeals did not address itself to

WAS THE PROSECUTOR'S CROSS-EXAMINATION

OF DEFENDANT AS TO ALLEGED PRIOR IN-

CONSISTENT STATEMENTS MADE TO THE

POLICE REVERSIBLE ERROR?

this issue,

De fendant-Appellee submits the answer "Yes"

‘laying on the slab at the Wayne County Morgue.

ARGUMENT I

THE ADMISSION OF A PHOTOGRAPH OF THE VICTIM

LAYING ON A SLAB AT THE WAYNE COUNTY MORGUE

WAS REVERSIBLE ERROR.

Defendant-appellant vigorously submits that pursuant to

the criteria set forth by the Michigan Supreme Court in People v.

Falkner, 389 Mich 682 (1973) and People v. Eddington, 387 Mich

551, 562-563 (1972), the trial court committed reversible error in

allowing the admission of a close-up photo of the deceased's head

Defense counsel timely objected to the admission of the

photograph as being inflammatory and merely calculated to excite

passion and prejudice (I, pp. 85-87). The trial court was in-

formed and the testimony of the medical examiner bore out that the}

deceased died from internal injuries to the body; specifically,

hemorrhaging from a torn Liver and not from the damage to the head

or neck (I, pp. 97-99, 105). Further, defense counsel specific-

ally informed the Court that the Defendant would testify that he

struck the deceased about the head and face with his fist, that

the Defendant had no intention to kill his wife and that the ie

of death was due to the victim's stumbling down the stairs. The

medical examiner conceded that it was possible that a fall down

the stairs caused the ruptured liver (I, p. 101) and that the

deceased's blood alcohol content was .17 (I, pp. 101, 102).

It is worthy to note that not only was Exhibit I, the

clase-up picture of the deceased's head on the morgue slab,

admitted into evidence but also during the prosecutor's case-in-

chief it was passed to each and every seapis (I, p. 93).

Defendant submits that the use of this photograph was

neither “substantially necessary nor instructive to show any facts|

or conditions in issue", People y. Eddington, supra. ‘There was

no other reason for the use of a morgue picture other than to

excite passion and prejudice.

‘proofs prior to admitting the photographs, the trial court abused

It is instructive to note that the depiction of biced

inside the deceased s ear was so gruesome and distracting so as to

cause the Court to question the doctor for a medical explanation,

Significantly, the doctor told the Court that the blood was from

superficial lacerations and not from any internal injuries (I,

pp. 111-112).

The cause of death was hemorrhaging caused hy a ruptured

liver. The material fact tn issue in the case at bar was whether

Defendant inflicted the injuries to the deceased's torso or

whether the internal injuries were caused by the deceased's

accidental fall down the stairs. The admission of the close-up

picture of the deceased's head and neck on the morgue slab was

unnecessary and singularly calculated to excite the juror's

passion and prejudice,

The Court in People v. Turner, 17 Mich App 123 (1969)

properly noted that the admission of photographs of the victim is

usually within the discretion of the Court and that pictures which

depict the victim as left at scene by the assailant may sometimes

help throw light on the issue of malice. In the instant case, as

in Turner, supra, the photograph was the product of an intervening

medical examiner. |

The record fails to reveal the trial court's awareness

that "photographs taken during an autopsy, however, must be sub-

ject to more careful scrutiny". Turner, supra at 133. There is

nothing in the record to indicate that the pathologist needed the

morgue photo to describe his findings or that the Court “required

the prosecutor to exhaust alternative proofs prior to admitting

the photographs". Turner, supra at 131,

“Having failed to require exhaustion of alternative

its discretion”. Judge (now Justice) 7. G. Kavanagh, People v.

Rogers, 14 Mich App 207 (1968).

ARGUMENT If

THE DELIBERATE ADMISSION OF TESTIMONY ACCUSING

DEFENDANT ON A PREVIOUS OCCASION OF HITTING

THE VICTIM IN HER STOMACH WHILE SHE WAS PREG~

NANT, CAUSING HER TO LOSE A BABY, WAS REVERS-

IBLE ERROR,

Under the guise of re-direct examination, the prosecutor

deliberately brought on irrelevant and highly emotional testimony

accusing Defendant on a previous unspecified occasion of striking

the victim in her stomach while she was pregnant, causing her to

lose a baby (VIIT, pp. 12, 13).

Defendant totally denied Wethington's accusation (VIIT,

pp. 12, 13).

It cannot be gainsaid that the mere topic or insinuation

of an abortion, whether it be voluntarily or involuntarily induced

arouses one's emotions to the detriment of any calm and deliberate

evaluation of the facts.

There was Clearly no justification whatsoever for the

prosecutor to elicit the emotional evidence alleging that the

accused had previously hit the victim while pregnant in her

stomach, ostensibly causing the death of her fetus, The prejudi-

cial impact of this evidence clearly outweighed any assertion of

its probative value.

Nor can it be said in good faith that the impact of this

highly emotional irrelevant evidence was harmless beyond a reason-

able doubt,

It is instructive to note that the prosecutor did not

seek to justify the admission of this evidence under MCL 768.27 or

MRE 404; nor did the trial court ever give the necessary caution-

ary instruction regarding the limited use of this evidence. Even

applying the criteria set forth in People v. Oliphant, 399 Mich

472 (1976), Defendant submits that the prejudicial impact of this

evidence clearly outweighed its probative value. Defendant did

not deny striking the deceased, His defense was based on a two-

pronged claim of lack of causation, and the absence of any intent

to kill.

Finally, Defendant submits that the recent decisions of

this + urt in People v. Rustin, 406 Mich 427 (1979) and its

progeny acknowledges the prejudicial impact of allowing evidence

of other previous uncharged crimes and that the prejudice is

irreducible, notwithstanding any cautionary instructions,

ARGUMENT TTL

THE ADMISSTON OF POLICE TESTIMONY CONCERNING

DEFENDANT'S SILENCE AT ARREST VIOLATED DE-

FENDANT'S RIGHT AGAINST SELF-INCRIMINATION

AND IS NOT HARMLESS ERROR,

three Petroit Police Officers, Carl Parker, Fred

Watkins and Raymond Smith testified as to perfeéting the warrant-

less arrest of Defendant at an apartment located in Detroit (III,

pp. 32-47). The prosecutor deliberately elicited testimony that

after the Defendant was arrested and read his rights, he remained

silent and did not even admit he was Herman Randle (III, pp. 34,

45).

Defendant asserts that the introduction of this testi-

mony infringed upon his right against self-incrimination as

guaranteed by the United States Constitution, Am, V, Const. 1963,

Art. 1, §17, and the proscriptions set forth in People v. Bobo,

390 Mich 355 (1973).

Defendant testified as to his remors@ and his lack of

intent to kill his wife. His rendition of the events would be

consistent with an acquittal of a manslaughter conviction. ‘The

reference to his silence was so offensive to the maintenance of a

sound judicial process as to constitute reversible error. People

v. Hoye, 80 Mich App 258 (1977) and People v. Hargrave, 74 Mich

App 690 (1977). Secondly, it cannot be stated that there is “no

reasonable possihility" the evidence of Defendant's silence at his}

arrest may not have convinced an otherwise undecided juror not to

draw inculpatory inferences in relation to Defendant's silence od

his feeling of remorse or grief, and lack of intent to kill his

wife. See People v. Swan, 56 Mich App 22, 33 (1974), especially

in light of the prosecutor's deliberate emphasis to the jury in

the closing argument that the Defendant remained silent and did

not show any remorse at the time the police arrested him (I¥, p.

86) .

ARGUMENT. I'V

‘DEFENDANT'S SENTENCE MUST BE VACATED WHERE THE

RECORD AFFIRMATIVELY INDICATES THAT HE WAS

GIVEN A MORE SEVERE SENTENCE FOR EXERCISING

HIS RIGHT TO A JURY TRIAL.

Perusal of the sentence transcript clearly reveals that

the visiting judge imposed a life term of imprisonment because

Defendant exercised his constitutional right to a jury trial and

had refused to plea to the offense of manslaughter and accept a

ten to fifteen year term of imprisonment:

“THE COURT: Well, Mr. Randle, certainly, but

this Court cannot take the position of jury.

The jury you elected to have this matter tried

before, twelve of your peers -- you were given

an opportunity to enter a plea to the charge

of manslaughter and you chose to not want to

tell the Court what happened. I wasn't about

to accept a plea without having facts stated

on the record and you chose to go to trial.

As far as I'm concerned, you

suffered the consequences of your own decision,

You had an opportunity. You were promised a

sentence of ten to fifteen years if you pled

to manslaughter and you decided not to take

it. As far as I'm concerned, you had a trial

before twelve of your local citizens and they

found you guilty of second degree, the charge

against you, and I read the report.

As far as I'm concerned, you

have been living off of the government for

the last three or four years since you quit

work." ;

(pp. 3, 4, Sentence Proceedings).

To punish a person for exercising his right to a jury

trial is a “due process violation of the most basic sort". See

Bordenkircher v. Hayes, 434 US 357 (1978) and People v. Rottany,

43 Mich App 375 (1972).

judicial system mandate the vacation of his sentence and a re-

The record certainly indicates the appearance, if not

actual vindictiveness, against Defendant for not pleading guilty.

Both Defendant's constitutional rights and the integrity of the

sentence before an alternate judge. Cf. People v. Jones, 403 —

527 (1978), and In Re LeWalien, Cal Sup Ct., 24 Cr L 2458 (1979).

ARGUMENT_V

THE PROSECUTOR'S CROSS-EXAMINATION OF DPFFENDANT

AS TO ALLEGED PRIOR INCONSISTENT STATEMENTS

MADE TO THE POLICE WAS REVERSIBLE ERROR.

It was reversible error for the prosecutor to impeach

the Defendant by two allege jly prior inconsistent statements made

to the police without laying a proper foundation, without admis-

sion of the actual statements and, finally, without the required

cautionary instruction.

Perusal of the record reveals that the prosecutor con-

sistently questioned the Defendant with respect to whether he nail

two statements to the police and whether he had specifically told

the police that he had not struck his wife with his fist (IV, pp.

37-40).

It is fundamental that before testimony is admissible as}

prior inconsistent statements, the proper foundation must be laid

wherein the cross-examiner must identify the statement as to time,

place and substance and ask the witness whether he made the state-

ment. People v. King, 87 Mich App 163 (1978). The Defendant

admitted to making prior statements but denied any inconsistency.

Significantly, the prosecutor was allowed to impeach ~

Defendant by informing the jury that the Defendant only told the

police that he hit his wife with his "hand and slapped her", and

failed to mention hitting her with his fist. The Defendant, in

turn, questioned the prosecutor whether the prior statements con-

tained this admission, ‘he Defendant also stated that he was

under the impression that his statements accurately indicated his

admission of striking her with his hand (IV, pp. 39-40). The

prosecutor merely responded "Oh, I see" and failed to either seek

admission of the alleged inconsistent statement while either

questioning the Defendant or by calling the police officer who

took the statement. Cf. People v. Dozier, 22 Mich App 528 (1970)

for the rule that the prosecutor may call another witness to prove

the prior inconsistent statement. and People v. Plummer, 37 Mich

App 657 (1972) for the requirement that the prior inconsistent

statement must be offered in evidence,

In People v. Brown,-44 Mich App 402 (1973), the court

held it to be reversible error because the prosecutor was allowed

to refer to prior inconsistent testimony secured at a preliminary

examination when the transcript of the prior testimony was not in

evidence,

Finally, the record indicates that neither defense

counsel nor the court gave the standard and fundamental limiting

instruction that the prior statements could only be used for

eapancnment purposes and not as substantive evidence (MCJI 4:5:01)}

Clearly,’ in the instant case, considering the nature of

the defense theory, the admission of the alleged prior inconsis-

tent statements wherein there was no mention of Defendant's hitting

his wife with his fist, taken as substantive evidence, could most

surely have significantly damaged Defendant's case.

A defendant is entitled to have a properly instructed

jury, irrespective of a request for a limiting instruction, The

likelihood of prejudice in the peculiar facts of the case at bar

is manifest. It cannot be reasonably contested that one can. posit

beyond a reasonable doubt that, used substantively, this evidence

of Defendant's prior inconsistent statement did not significantly

affect the jury's fact finding. The integrity of the judicial

process, the prevention of a miscarriage of justice and SOreuestcay

the Defendant's right to a fair trial, mandates reversal. Cf,

People v. Cox, 61 Mich App 37, 41 (1975).

a TT |

RELIEF REQUESTED

Defendant-appellee prays that this Honorable Court deny

. a ae

Plaintiff-Appellant's Application Hr Leave to Appeal, and further,

that the Court of Appeals Opinion reversing Defendant's conviction

should be affirmed,

RESPECTFULLY SUBMITTED,

_ “ ‘ ‘

UL | ee — —* ~e % Se ere

Alvin C. Sallen °(P23797) =~

Attorney for Defendant~-Appellee

201 Northland Towers East

Southfield, Michigan 48075

DATED: May 19, 1980 (313) 569-6060

~V~

@i;

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

No. 80-548

THE PEOPLE OF THE STATE OF MICHIGAN,

Petitioner,

vs.

HERMAN RANDLE,

Respondent.

ae ee ee eee

PROOF OF SERVICE

STATE OF MICHIGAN)

COUNTY OF OAKLAND) §§

Alvin C. Sallen, being first duly sworn, deposes and

says that on the 3lst day of December, 1989 he served a copy of

Answer in Opposition to Petition for Writ of Certiorari to the

Court of Appeals of the State of Michigan upon the following:

EDWARD REILLY WILSON, ESO.

12th Floor, 1441 St. Antoine

Detroit, Michigan 48226

by enclosing same in an addressed envelope with first-class

postage affixed thereto, and depositing said envelope in a United

States Postal Box located at the Northland Towers, Southfield,

Ch

Michigan.

Alvin C, Sallen

Subscribed and sworn to before me

this 3lst day of December, 1980.

WDA, Manes Stsfe,

usan Diane agg. rane. Public

Oakland County, Michigan

My Commission Expires: 10/9/83