Petition — Brown v. United States

Office-Supreme Court, U.S.

rIinRawnb

JUL 15 1981

> L. STEVAS,

y

oO. & 1 = 1 ) 5 CLERK

IN THE

SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1980

James Epwarp Brown

Petitioner,

-VS-

Unrrep States OF AMERICA

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CuLpPePPER & SORISE

BY: Domnick J. Sorise

Attorney for Petitioner

Business Address:

558 Monroe

Detroit, Michigan 48226

Telephone: (313) 961-0020

AMERICAN PRINTING COMPANY

1200 WEST FORT STREET, DETROIT, MICHIGAN 48226 — (313) 963-9310

Ill.

IV.

QUESTIONS PRESENTED

. WHETHER PETITIONER’S CONVICTION MUST

BE REVERSED BECAUSE THE PROSECUTOR IN-

JECTED THE RELIGIOUS BELIEFS OF HIS

CHIEF WITNESS IN VIOLATION OF THE CLEAR

AND STRICT PROHIBITION OF RULE 610 OF

THE FEDERAL RULES OF EVIDENCE.

WHETHER PETITIONER WAS DENIED A FAIR

TRIAL BECAUSE A POLICE OFFICER DELIBER-

ATELY INFORMED THE JURY THAT

PETITIONER HAD A POLICE RECORD AS A

KNOWN DRUG DEALER.

WHETHER THE PROSECUTOR PREJUDICED

THE JURY BY PRESENTING, WITHOUT CON-

NECTION OR NECESSITY, TESTIMONY WHICH

IMPLIED THAT PETITIONER PRESENTED A

NEED FOR PROTECTIVE CARE OF HIS CHIEF

WITNESS AND FAMILY.

WHETHER PETITIONER WAS DENIED A FAIR

TRIAL BY THE CUMULATIVE EFFECT OF THE

PROSECUTOR INJECTING RELIGIOUS BELIEFS

OF HIS CHIEF WITNESS AND IMPLYING A

NEED FOR PROTECTIVE CARE OF HIS CHIEF

WITNESS AND A POLICE OFFICER LABELING

PETITIONER AS HAVING A POLICE RECORD AS

A KNOWN DRUG DEALER.

TABLE OF CONTENTS

QUESTIONS PRESENTED .........cccccsccevvsees

TABLE OF AUTHORITIES ..........sscsceccesees

OPINION BELOW 2... ccccccdiccccccccccccccscvees

JURISDICTION oi cccccccccccccscccccccccsssccccece

STATEMENT OF THE CASE .......ccccccccccees

REASONS FOR ALLOWANCE OF THE WRIT ...

CONCLUSION .cccccccccccccccccccccvcccccssccyes

APPENDIX occccvccccccsccccsccccccecccccccccecece

TABLE OF AUTHORITIES

United States Supreme Court Case: Page

Michelson v United States, 335 US 469; 69 S Ct 213;

PP Se SEE dos ceac bens onkabie Cede benceas 18

United States Court of Appeals Cases:

Gregory v United States, 369 F2d 185 (DC Cir, 1966) 18

Helton v United States, 221 F2d 338 (Sth Cir, 1955) 21

Lucero v Donovan, 352 F2d 16 (9th Cir, $966) ..... 22

United States v Archbold-Newball, 554 F2d 665 (Sth

CS NED Oh. 600s TS oS Kes a Rnn eek v aaa ta eeeet bakes 22

United States v DeCicco, 435 F2d 478 (2d Cir, 1970) 21

United States v Rabb, 394 F2d 230 (3rd Cir, 1968) . 13

United States v Sampol, 636 F2d 621 (DC Cir,

POU eoUh ve dndhs cab se tee ensees séiaiebaasaawen 002 11, 12

United States v Schultz, 482 F2d 1179 (Sth Cir, 1973) 22

United States v Sprengel, 103 F2d 876 (3rd Cir, 1966) 21

United States v Vosper, 493 F2d 433 (Sth Cir, 1974) 20

Virgin Island v Petersen, 553 F2d 324 (3rd Cir,

CM caea conch ake cia bctenvedaTeeiveneteeedena ah,

State Supreme Court Cases:

O'Donnell v Philadelphia Record Co, 356 Pa 307; 51

Pe EP OEE be Chae coh cbbe va arenes bans ieacé me 14

People v Hall, 391 Mich 175; 215 NW2d 166

ES SRS PPO Petr se ee eee Tere 14, 17

People v Salsbury, 103 Mich 537; 96 NW 936 (1903) 21

State v Duke, 362 SO2d 559 (La, 1978) ............ 14

State v Estabrook, 162 Or 476; 91 P2d 838 (1939) .. II

State Court of Appeals Cases:

People v Brocato, 17 Mich App 227 (1969) ......... 15

iv

TABLE OF AUTHORITIES (Continued)

State Court of Appeals Cases—(Continued): Page

People v Killingworth, 80 Mich 45 (1977)........... 15

People v Wells, 82 Mich App 543 (1978) ......... 15, 16

People v Williams, 39 Mich App 458 (1972) ........ 15

Wright v State, 325 P2d 1089 (Okla, 1958)........ 17, 18

Court Rules:

Federal Rules of Evidence, Rule 6!10...... is. 22,. 13,97

Other Authorities:

Annot., Impeachment of Witnesses—Religious Belief,

ye | EI ee rr te eee ee 14

McCormick on Evidence (2d ed), §273, p 660....... 21

No.

IN THE

SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1980

James Epwarp Brown

Petitioner,

-VS-

Unrrep States oF AMERICA

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner James Edward Brown respectfully requests

that a Writ of Certiorari issue to review the judgment and

order of the United States Court of Appeals for the Fifth

Circuit entered in this case on May 20, 1981.

OPINION BELOW

The Per Curiam Order of the Court of Appeals,

stamped, *‘Do Not Publish,"’ is contained in the Appendix.

JURISDICTION

The judgment of the United States Court of Appeals for

the Fifth Circuit was entered on May 20, 1981. This Petition

is being filed within sixty (60) days of the above date as

required by Rule 20.1 of the Supreme Court Rules. Jurisdic-

tion of this Court is invoked under 28 USC §1254(1).

2

STATEMENT OF THE CASE

On May 1, 1979, the prosecution filed an indictment

against Quentin Morgan Perry, Petitioner James Edward

Brown, Omar Ell and James Malcolm Henry in the United

States District Court for the Northern District of Georgia in

the Atlanta Division (ROAI 1-3).* The indictment charged

defendants with conspiracy to possess cocaine with intent

to distribute in violation of 21 USC §§846, 841 (a)(1), and

alleged six overt acts in furtherance of the charged conspi-

racy (ROAI 1-3).

On August 7, 1979, the prosecution filed a superseding

indictment (ROAI 104-107). The indictment contained the

same charge of conspiracy to possess cocaine with intent to

distribute, but made amendment to limit the so-called plan

and purpose of the charged conspiracy (ROAI 104-107). The

indictment also added two John Does as defendants,

eliminating Omar Ell as a named defendant (ROAI 104-107).

On October 5, 1979, the prosecution filed a second super-

seding indictment, containing the same charge and defen-

dants and substantially similar allegations (ROAI 116-119).

On February 20, 1980, Petitioner plead not guilty to this

indictment and jury trial commenced before District Judge

Robert L. Vining, Jr. (ROAI 120, 126).

In its case-in-chief, the prosecution presented nine wit-

nesses (TI 2; TII 2).

The first prosecution witness was Omar Ell (TI 8). At

the outset of direct examination, the prosecutor's question-

ing showed that Omar Ell was 47 years old (TI 9), had a

wife and child (TI 9), lived in Atlanta for the last three

years (TI 9-10), and owned a merchandising business which

distributed Magic Cloth and invented Omar Comb (TI 10).

* ROAI indicates Record on Appeal, Volume I.

ROAII indicates Record on Appeal, Volume II.

TI and TII indicate trial transcripts Volumes I and II, both of which are

contained within the Record on Appeal, Volume II.

3

Omar Comb was offered and admitted into evidence as

Government Exhibit No. 1 (TI 10-11, 14).

The prosecutor's questioning then showed that Omar Ell

was indicted along with Petitioner and the others, had

negotiated a guilty plea deal and a three year sentence

recommendation with the prosecution, and had received a

five year sentence (T.J 11-12). A four page guilty plea

document was offered and admitted into evidence as Gov-

ernment Exhibit No. 2 (TI 12, 14).

The prosecutor's questioning showed that Omar Ell and

his family has been safeguarded in a witness protection

program since July, 1979:

**Q. Were there any other terms and conditions in

the negotiated plea agreement?

A. Yes. You promised to safeguard my family and

myself.

Q. Mr. Ell, are you presently in what is called the

witness protection program?

A. Yes.

Q. Mr. Ell, how long, sir have you been in that

program?

A. Since July."* (TI 12-13).

The prosecutor's questioning then showed that Omar Ell

had been arrested for having a gun in car, which was

dismissed, and for having two marijuana cigarettes, which

resulted in a fine (TI 15).

Lastly, the prosecutor's questioning showed that Omar

Ell had legally changed his name in 1978:

*“Q. All right, have you ever used any other name

other than Omar Ell?

A. The name I was given to at birth.

4

Q. What was that name?

A. William O’Key.

Q. When and how did you change your name?

A. Changed my name in 1978 here in Atlanta.

Q. How did you go about that?

A. Through the Court.” (T.I 15-16).

The prosecutor's questioning went one step further to show

that Omar Ell changed his name because of religious be-

liefs:

*Q. Was there any reason for your decision to change

your name?

A. Yes.

Q. What was that reason, please, sir?

A. I'm Moslem by faith.’* (TI 16).

The prosecutor then began to question Omar Ell about

the case (TI 16).

On cross-examination, Ell could not remember the exact

date on which he changed his name (TI 50). Ell could not

remember the name of the person who filed his petition for

a name change (TI 51). Ell testified that the person was a

boutique shop owner (TI 51). Ell could not remember the

name of the judge who granted him a name change (TI 52).

Neither Ell nor the prosecutor could account for the where-

abouts of the court document certifying the name change

(TI 51-52).

In response to questions by defense counsel, Ell reaf-

firmed his religious beliefs:

*Q. And I believe you changed because of the re-

ligious preference?

A. That is correct.

Q.

A.

5

And you were firm about the religious prefer-

ences?

I still am.’* (TI 52)

*_ * &*

*“Q. What religion was that?

> O > ©

I am moslem, Moorish American Moslem.

. Is that like the Ayatollah?

. I don't know what you mean.

. Ayatolla is Moslem?

. There are several sects of Moslems. The Moorish

is a sector of Moslems. No, it is not like the

Ayatollah.

. You study the Holy Koren?

Right.

. You call the Supreme Being, Allah?

. I call him Allah. I call him God. I call him

Jehe vah.

. And that is the reason you changed your name?

. Because I am Moslem.

. And you are still Moslem?

Yes.

. They have a strong belief and favor of telling the

truth?

. One of the five pillars is truth.

. Sir?

. Yes. Moslems do tell the truth all the time to

the best of their ability and knowledge.

6

Q. And you are Moslem?

A. Yes, sir.

Q. And you tell the truth?

A. That's the only thing I have told.’* (TI 55-56).

The seventh prosecution witness was Sylvester Chap-

man (TII 85). Sylvester Chapman testified that he was a

narcotics officer with the Detroit Police Department (TII

85-86). Officer Chapman testified that on December 15,

1977, he went to a bar in Detroit to buy cocaine on

information from Willie Harris (TI 86). Officer Chapman

went into the bar with Officer Sheriyn Fleming and other

officers stood surveillance outside the bar (TII 87). Officers

Chapman and Fleming met Harris and Harris introduced

them to Omar Ell (TII 88). Ell said that he had only five

ounces of cocaine to sell (TII 89). Chapman said that he

was prepared to buy a pound and told Ell that he wanted to

check out a sample (TII 89). Ell sold Chapman a quarter

ounce of cocaine for $500 (TII 90).

Officer Chapman testified that on the following day, he

received a call from Harris indicating Ell and his partner

wanted to meet with him regarding a pound of cocaine (TII

94-95). Officers Chapman and Fleming met Ell and James

Henry at the bar (TII 95-96). Chapman, Harris, Ell and

Henry went to the basement of the bar to talk (TII 96-97).

Henry said that he had four or five ounces of cocaine to sell

and showed Chapman a solid piece of cocaine (TII 97).

Chapman told Henry that he only had enough money to buy

two ounces (TII 97). Chapman testified that he did not make a

buy, but did make arrangements to buy a pound of cocaine

within a week (TII 97-98). Officer Chapman testified that he

was given a telephone number which turned out to be

Petitioner's number (TII 91-92, 100).

On’ cross-examination, defense counsel showed that

Petitioner was not involved in or mentioned during the sale

of cocaine by Ell to Chapman on December 15, 1977 (TII

7

115-119). Defense counsel also showed that Petitioner was

not involved in or mentioned during the proposed sale of a

pound of cocaine among Henry, Ell and Chapman on De-

cember 16, 1977 (TII 119-122). Officer Chapman testified

that he had information about Henry leaving Detroit on

December 17, 1977, contradicting Ell’s testimony (TII 17-

19).

Defense counsel then asked Officer Chapman whether

Harris had introduced him to Petitioner and Officer Chap-

man answered in the affirmative but said an explanation

was needed:

“Q. Mr. Harris, the man who was giving other

information as to other known narcotic traffic-

kers that he knew gave you Mr. Brown’s—

introduced you to Mr. Brown?

A. That's correct. But I need an explanation.”’ (TII

126)

Defense counsel repeated his question a couple of more

times and then allowed Officer Chapman to explain. Officer

Chapman proceeded to testify that Petitioner had a police

record as a known drug dealer:

*“Q. Now, you can explain.

A. Mr. Brown was a known drug dealer.

Q. Known by whom?

A. Know to me and the police department. In the

files as a record.

. Don’t you mean you suspected him?

No.

. He didn’t have a case pending?

No.

ae > 2

. He was a drug dealing suspect?

g

. No. He had a record.

. He has a record?

. There was a record of James Brown that we had.

OH > fb >

. Did he have a record of being convicted of

selling narcotics?

>

. I can't recall. It was the first time that—around

this time that I received information then that

James Brown had brought the pound I had

offered up from Mr. Ell."* (TI 126-127).

After the prosecution rested (TII 146), the defense chose

to call no witnesses (TII 146).

Following argument by the prosecution and defense (TII

148) and instructions by the judge (TII 149-169), the jury

returned a verdict of guilty as charged to Count I (TII

169-170).

On May 29, 1980, Petitioner was sentenced to eight

years in prison to be following by four years on special

parole (ROAI 127). Petitioner's pretrial bond was also

continued pending appeal (ROAI 127).

On July 1, 1980, Notice of Appeal was filed (ROAI

128-133).

On August 27, 1980, Judge Vining, on his own motion

-and pursuant to Rule 32 of the Federal Rules of Criminal

Procedure, ordered that Petitioner's sentence be corrected

by elimination of the special parole term (ROAI 134).

On May 20, 1981, the United States Court of Appeals

for the Fifth Circuit affirmed Petitioner's conviction and

sentence in an unpublished, per curiam order (Appendix

p. I.

Petitioner now seeks a Writ of Certiorari.

9

REASONS FOR ALLOWANCE OF WRIT

I, PETITIONER’S CONVICTION MUST BE REVERSED

BECAUSE THE PROSECUTOR INJECTED THE RE-

LIGIOUS BELIEFS OF HIS CHIEF WITNESS IN

VIOLATION OF THE CLEAR AND STRICT PROHIB-

ITION OF RULE 610 OF THE FEDERAL RULES OF

EVIDENCE.

This case involves a court of appeals decision which is

in apparent conflict with a clear and strict rule of evidence,

and presents an important question on which there is very

little case law.

Omar Ell was an indicted defendant who became a

prosecution witness in exchange for a plea and sentence

deal (TI 11-14). The record clearly shows that Omar Ell was

the chief prosecution witness regarding the charged

conspiracy (TI 8-TII 38).

Ell was the first witness called to testify for the

prosecution (TI 8). At the outset of direct examination, the

prosecutor's questioning carefully showed that Ell was 47

years old (T 9), had a wife and child (TI 9), lived in Atlanta

for the last three years (TI 9-10), and owned a

merchandising business which distributed Magic Cloth and

invented Omar Comb (TI 10). Omar Comb was even offered

and admitted into evidence as Government Exhibit No. |

(TI 10-11, 14).

The prosecutor's questioning then got to the business of

establishing Ell’s plea and sentence deal (TI 11-14) and his

prior criminal record—which only consisted of a dismissed

gun charge and a fine for possession of two marijuana

cigarettes (TI 14-15).

Having ‘disposed of these background #ad preliminary

points, it would have appeared that the prosecutor was

ready to get to substantive matters. Not so. The

prosecutor's questioning took a quick detour to show that

Ell had legally changed his name in 1978:

10

*Q. All right. Have you ever used any other name

other than Omar Ell?

. The name I was given at birth.

. What name was that?

. William O’ Key.

. When and how did you change your name?

. Changed my name in 1978 here in Atlanta.

Or OH 00 >

. How did you go about that?

A. Through the Court.”’ (TI 15-16).

The detour did not end here and the reason for the detour

soon became apparent as the prosecutor showed that Ell

had changed his name because of religious beliefs:

*Q. Was there any reason for your decision to

change your name?

A. Yes.

Q. What was that reason, please, sir?

A. I'm Moslem by faith.’’ (T. 16)

No great amount of explanation is necessary to see that

the prosecutor was attempting to bolster the credibility of

Ell by showing the jury that Ell was religious enough to

change the name given to him by his parents at birth.

Likewise, little effort is required to understand why the

prosecutor wanted to show the jury that Ell was devoted to

his religious beliefs. The subtle but clear implication was

that a person who is devoted to his religious beliefs is more

apt to speak the truth.

The most credible witness is a person with an

unimpeachable background and no inducement for

testifying. However, there is undeniably a great amount of

appeal to an admitted wrongdoer who has strong religious

beliefs and wants to make a clean breast of matters. Since

Ell was not the former type of witness, the prosecutor

injected religious beliefs to portray him as the latter type.

This tactic could not have failed to strike a responsive

chord with the jury.

Rule 610 of the Fed, ral Rules of Evidence clearly and

strictly prohibits the use of evidence regarding religious

beliefs or opinions to impair or enhance credibility:

‘Rule 610. Religious Beliefs or Opinions

Evidence of the beliefs or opinions of a witness on

matters of religion is not admissible for the purpose of

showing that by reason of their nature his credibility is

impaired or enhanced."’

There is very iittle federal case law regarding Rule 610.

This is perhaps due to the fact that the bench and bar have

assumed that Rule 610 means exactly what it says. See,

State v Estabrook, 162 Or 476; 91 P2d 838, 849 (1939).

Nevertheless, instances occurred in Virgin Island v

Petersen, 553 F2d 324 (3rd Cir, 1977) and United States v

Sampol, 636 F2d 621 (DC Cir, 1980).

In Virgin Island v Petersen, supra at 325, 328,

defendant was convicted of two counts of murder in the

second degree. On appeal, defendant maintained that the

district judge erred by refusing to admit opinion evidence

regarding non-violence. The record showed that defense

counsel attempted to present through the testimony of an

alibi witness that the witness and defendant were

Rastafarians and that Rastafarians do not believe in

violence.

The Third Circuit rejected defense counsel's contention

that the testimony was any sort of opinion evidence, and

found that the testimony involved religious affiliation and

beliefs:

*‘We cannot agree with counsel that this was an

inartful attempt to elicit an opinion as to defendant's

12

peacable character. The colloquy at side bar clearly

reveals that counsel sought to put before the jury the

religious affiliation and belief of both Rios and

Petersen."’ Virgin Island v Petersen, supra at 328.

The Third Circuit went on to indicate that the religious

affiliation of the alibi witness was clearly prohibited by Rule

610. Virgin Island v Peterson, supra at 328.

In United States v Sampol, supra at 629, defendants

were convicted of various offenses arising out of the

assassination of a former foreign ambassador and an

American associate. On appeal, defendants’ maintained that

the district judge erred in refusing to allow

cross-examination regarding religious beliefs of a

prosecution witness who admitted aiding one defendant and

implicated the same defendant in the assassination. United

States v Sampol, supra at 666. The district judge had

permitted voir dire of the witness regarding his religious

beliefs and then cut off all further inquiry upon learning that

the witness had no religious beliefs which would cause him

to violate his oath to testify truthfully. United States v.

Sampol, supra at 666.

The District of Columbia Circuit rejected defendants’

contention, indicating that the district judge's limiting of

cross-examination was not only justified but required by

Rule 610 of the Federal Rules of Evidence:

**.,. the court's exclusion of this evidence was not

only justified but required by the Federal Rules of

Evidence. Rule 610 bars the admission of evidence

of the religious beliefs of a witness for the purpose

of showing that his credibility is impaired as a result

of those beliefs.’' United States v Sampol, supra at

666. (Footnote omitted)

The District of Columbia Circuit went on to state:

“The purpose of the rule is to guard against the

prejudice which may result from disclosure of a

witness's faith.’ United States v Sampol, supra at

666.

13

Conversely, the purpose of Rule 610 is to guard against

enhancing the credibility of a witness by showing devotion

to his faith.

In this case, this Court should reject to prosecutor's pat

contention that he was just trying to show a reason for the

name change by Omar Ell. There was no real need to show

a reason for a name change in the first place. The

prosecutor obviously knew that Ell had legally changed his

name for a legitimate reason, rather than merely assuming

an alias for some illegitimate reason. A legal name change

for legitimate reasons would also seem to be protected from

inquiry or attack in a totally unrelated proceeding. Even if

the prosecutor feared that defense counsel might somehow

make hay of the name change, he could have and should

have avoided any problems by bringing the matter to the

attention of the district judge in the absence of the jury.

See, United States v Rabb, 394 F2d 230, 233 (3rd Cir,

1968). Instead, the prosecutor injected the religious

affiliation and belief of his chief witness into the case

without prior notice or due cause.

Defense counsel did not object to the testimony, and the

district judge did not take any action to exclude the

testimony or caution the jury (TI 15-16). Moreover, defense

counsel unsuccessfully attempted to undercut the religious

beliefs of Omar Ell during cross-examination, and again the

district judge did not take any action to exclude the

testimony or caution the jury (TI 52, 55-56).

Thus, the Court is faced with a situation in which the

prosecutor injected religious beliefs of his chief witness;

defense counsel did not object and unsuccessfully attempted

to undermine the religious beliefs of the witness; and the

district judge did not take any action to eliminate or

mitigate the error—all to the detriment of Petitioner.

The fact that defense counsel did not object does not

preclude review of this serious error. Rule 610 is so basic in

its principle and so clear on its face that an objection is not

14

really needed to bring a violation to the attention of the

district judge. It also appears that no federal case strictly

requires an objection.

Most modern state cases have strictly held that injection

of religious belief on the issue of credibility is error. See

generally, Annot., Impeachment of Witnesses-Religious

Belief, 76 ALR3d 539, 543. In O'Donnell v Philadelphia

Record Co, 356 Pa 307; 51 A2d 775; 793-794, n 5 (1947),

Chief Judge Maxey of the Philadelphia Supreme Court

indicated in dissent that upon a question and answer

regarding religious affiliation, ‘‘the trial judge should have

immediately declared a mistrial.’’ Similarly, in State v

Duke, 362 SO2d 559, 560-561 (La, 1978), the Supreme Court

of Louisiana indicated that the trial judge is obliged to

control testimony and exclude irrelevant matters, especially

religious beliefs:

“Our criminal justice system is built upon the

principle that a conviction is based upon actual guilt

of the conduct charged. For that reason, the trial

judge must fairly control the introduction of

evidence to avoid infecting a jury trial with the

prejudicial influence of irrelevant matters, especially

the religious beliefs, the political ideology, and the

societal views .. ."' [Citation omitted]

While State v Duke, supra at SO2d 561 is

distinguishable by the fact that the prosecutor asked many

more questions about religious beliefs, extensive

questioning is not necessarily required for reversal. In

People v Hall, 391 Mich 175; 215 NW2d 166 (1974), the

prosecutor asked defendant, without objection, the

following question:

‘PROSECUTOR: I forgot to ask you, Mr. Hall,

whether or not you believe in the

Supreme Being?"

15

The Michigan Supreme Court held that the asking of the

question was plain error:

“The constitution and our Legislature have

forbidden that questions, of the nature with which

we are here presented, be asked during the course of

a criminal proceeding. The asking of such question is

clear error.’ People v Hall, supra at Mich 182.

In People v Brocato, 17 Mich App 277, 298 (1969), the

prosecutor opened his cross-examination of defendant,

without objection, as follows:

“Q. You do believe in God?

A. Oh, yes.

Q. So that there is no question about the oath you

have taken here?

A. Oh, no.”’

The Michigan Court of Appeals tersely held that the

prosecutor's questions were “highly improper.’' People v

Brocato, supra at Mich App 298. Accord, People v

Williams, 39 Mich App 458, 459-462; 197 NW2d 858 (1972);

People v Killingworth, 80 Mich App 45, 54; 263 NW2d 278

(1977).

On the other hand, in People v Wells, 82 Mich App 543,

545; 265 NW2d 410 (1978), the prosecutor asked the

complainant, without objection, the following questions:

“Q. Do you go to church, by the way?

A. Yes.

Q. What church?

A. Christ The Good Shepherd.

Q. Would it be fair to say, then, that you know

what it is to take an oath?

16

A. Yes.

Q. Do you respect that oath?

A. Yes.’

The Michigan Court of Appeals found that the prosecutor's

questions constituted an unfair attempt to bolster the

credibility of the complainant and held there was reversible

error.

‘*We cannot help but find that the prosecutor, in

asking the questions that he did, was attempting to

unfairly bolster complainant's credibility. We believe

such conduct to be totally unwarranted and the type

of influence condemned...

In essence it appears the prosecutor was

attempting to convey to the jury that complainant

was more worthy of belief than defendant because

she attended church, knew what it was to take an

oath and respected that oath because of her church

attendance. Hence, implicit in the questions and

answers was a conveyance to the jury that

complainant had certain religious beliefs and because

of such beliefs she knew what it was to tell the

truth.

In a case such as this, when the crucial issue is

that of credibility, such questions by a prosecutor

put to a complaining witness are unwarranted,

prejudicial and constitute reversible error. Nor does

defendant's failure to object to such questions save

the error.’’ People v Wells, supra at Mich App 546,

[Citation omitted]

The rationale for not requiring extensive or direct

questioning on religious beliefs is simply that religious

beliefs can be just as effectively injected by few questions

or by indirect questions.

17

The rationale for not requiring an objection for reversal

was aptly stated by the Michigan Supreme Court:

**The state argues, and it was so held by the Court

of Appeals, that since no objection to the question

appears on the record, and since ‘manifest injustice’

was not shown, this type of error does not require

reversal. We disagree. If we were, on a case by case

basis, to evaluate the entire record to determine if

prejudice or manifest injustice occurred therein

because of this type of question, we would

emasculate our statute and the legislative intent

behind it. *** This Court feels that it is

inappropriate for it to take it upon itself to determine

whether or not such prejudicial reaction did in fact

occur, when our statute clearly attempts to foreclose

such review by forbidding the asking of the

prejudicial question itself. A defendant is entitled to

a trial free from such improper questions. Once the

question is asked, this is no longer possible. A new

trial is mandated.’ People v Hall, supra at Mich

182-183. (Emphasis added)

This Court should adopt these rationales and apply them

to reverse Petitioner's conviction because Rule 610 clearly

and strictly prohibits the use of religious beliefs—regardless

of the excuse by the prosecutor or the reaction by defense

counsel.

Il. PETITIONER WAS DENIED A FAIR TRIAL BE-

CAUSE THE OFFICER DELIBERATELY INFORMED

THE JURY THAT PETITIONER HAD A POLICE

RECORD AS A KNOWN DRUG DEALER.

The volunteering by police officers of inadmissible and

prejudicial testimony has been condemned time and time

again by both state and federal courts. In Wright v State,

325 P2d 1089, 1093 (Okla, 1958), the Court noted that this

tactic has often been referred to as an ‘‘evidential

harpoon’’:

‘This type of testimony has often been referred to as

an ‘evidential harpoon’ that has been wilfully jabbed

into the defendant and then jerked out by an

admonition to the jury not to consider the same. This

court has never condoned, but often critized a

witness being intoxicated with eagerness in an all out

effort to obtain a conviction. * * * Officers must be

aware that an overzealous attitude is, in most

instances, detrimental to the prosecution and often

results in retrial of the case at considerable expense

to the state.”’

Wright v State, supra, was cited with approval in Gregory v

United States, 369 F2d 185, 190 (DC Cir, 1966).

In this case, Petitioner was a by-stander victim of an

evidential harpoon. Petitioner chose not to testify (TII 146)

and his prior criminal record was not admissible. Michelson

v United States, 335 US 469, 475-476; 69 S Ct 213; 93 L Ed

168 (1948). Nevertheless, Detroit Police Officer Sylvester

Chapman created an opportunity to inform the jury that

Petitioner had a police record as a known drug dealer.

During cross-examination of Officer Chapman, defense

counsel showed that Officer Chapman was first told about

the possibility of buying narcotics by informant Willie

Harris; that Willie Harris introduced him to Omar Ell; that

he met with Omar Ell and James Henry the next day; and

that Petitioner was not present or mentioned during either

meeting (TII 124-125). Defense counsel then asked Officer

Chapman whether Willie Harris had introduced him to

Petitioner. Officer Chapman answered in the affirmative,

but said an explanation was needed:

*“Q. Mr. Harris, the man who was giving other

information as to other known narcotic

traffickers that he knew gave you Mr.

Brown’s—introduced you to Mr. Brown?

19

A. That's correct. But I need an explanation.’* (TII

126)

Defense counsel repeated his question a couple of times and

then allowed Officer Chapman to explain. Officer Chapman

proceeded to testify that Petitioner had a police record as a

known drug dealer:

"Q. Now, you can explain.

A.

Q.

. Known to me and the police department, In the

>

>

2>Oo>OD>O>O

Mr. Brown was a known drug dealer.

Known by whom?

files as a record.

. Don't you mean you suspected him?

No,

. He didn’t have a case pending?

No.

. He was a drug dealing suspect?

. No. He had a record,

. He has a record?

. There was a record of James Brown that we had.

. Did he have a record of being convicted of

selling narcotics?

. I can't recall. It was the first time that—around

this time that I received information that James

Brown had brought a pound I had ordered up

from Mr. Ell."’ (TIL 126-127).

Officer Chapman's less than subtle desire and success in

revealing this inadmissible and highly prejudicial testimony

to the jury warrants reversal. :

20

In United States v Vosper, 493 F2d 433, 435, 437-438

(Sth Cir, 1974), defendant was convicted of conspiracy to

commit bank robbery and bank robbery. On appeal,

defendant maintained that an FBI agent volunteered

inadmissible and prejudicial testimony. In the prosecution

case-in-chief, the FBI agent testified that he saw defendant

and co-defendant at a house which he had under

surveillance some weeks prior to the charged bank robbery.

In response to a question termed ‘‘unnecessary,’’ the FBI

agent testified that the house was under surveillance

because he had received information that a man living there

was involved in the planning of other bank robberies. At

this point, the trial judge cautioned the jury not to consider

the reason for surveillance or any other bank robberies or

anything else.

The Fifth Circuit first noted that a clear cautionary

instruction generally eliminates reversible error, but went

on to reverse because ‘the error was gross and harm

inescapable.'’ United States v Vosper, supra at 438. The

Fifth Circuit concluded that the FBI agent's testimony was

likely ‘‘a spur of the moment decision for which time and

reflection offered no adequate justification.’ United States

v Vosper, supra at 438-439,

In this case, Officer Chapman's testimony was not ‘‘a

spur of the moment decision.’' Officer Chapman clearly

stated that he ‘‘needed an explanation,’’ waited, and then

unloaded. While hindsight indicates that defense counsel

should not have allowed Officer Chapman to explain, a

witness's request to explain cannot always be ignored or

avoided with impunity in front of a jury. Nonetheless, the

question in no way justified the damage done by the

response.

Defense counsel's failure to obiect is understandable

under these circumstances and does not preclude reversal

according to United States vy Vosper, supra at 437-438.

Moreover, the district judge in this case did not exclude the

. testimony or caution the jury as in United States v Vosper,

21

supra at 438. Even if the district judge had taken action,

there is certain evidence which a jury just cannot ignore,

This case involved such evidence. Officer Chapman's

testimony did not refer to a specific offense or conviction,

but rather labeled Petitioner as having a police record as a

known drug dealer. See, Helton v United States, 221 F2d

338, 340 (Sth Cir, 1955). Such an encompassing label is

much more prejudicial than a specific allegation or offense.

Since Officer Chapman deliberately informed the jury

that Petitioner had a police record as a known drug dealer,

plain error was committed and reversal is required.

Ill, THE PROSECUTOR PREJUDICED THE JURY BY

PRESENTING, WITHOUT CONNECTION OR

NECESSITY, TESTIMONY WHICH IMPLIED THAT

PETITIONER PRESENTED A NEED FOR PROTEC-

TIVE CARE OF HIS CHIEF WITNESS AND FAMILY.

Evidence of threats to, or intimidation of, prosecution

witnesses is highly prejudicial and cannot be properly

admitted without some testimony connecting defendant to

the threats or intimidation. United States v Sprengel, 103

F2d 876, 881 (3rd Cir, 1936); People v Salsbury, 103 Mich

537, 569-570; 96 NW 936 (1903). See, United States v

DeCicco, 435 F2d 478, 481 (2nd Cir, 1970); McCormick on

Evidence (2nd ed), §273, p 660.

Near the outset of direct examination, the prosecutor

showed that Omar Ell and his family had been safeguarded

in the witness protection program since July, 1979:

*Q. Were any other terms and conditions in the

negotiated plea agreement?

A. Yes. You promised to safeguard my family and

myself.

Q. Mr. Ell, are you presently in what is called the

witness protection program?

A. Yes.

22

Q. Mr. Ell, how long, sir, have you been in that

program?

A. Since July."’ (TI 12-13)

The prosecutor did not show that Petitioner or any

co-defendants were connected to threats, intimidation or the

reason for protective case. The prosecutor simply showed

the jury that his chief witness was under protective care

and let the jury infer whatever they wanted from this

testimony.

In United States v Archbold-Newball, 554 F2d 665, 680

(Sth Cir, 1977), the Fifth Circuit pointed out ‘‘[s)uch

testimony necessarily implied that protection was required

because the appellants or their cohorts might seek revenge

against the witnesses.'' Testimony implying threats,

intimidation, revenge, or what-have-you is highly prejudicial

because it not only shows a consciousness of guilt, but also

the commission of another crime.

There was no need to present this testimony to the jury.

Compare, United States v Archbold-Newball, supra at 680;

United States v Shultz, 482 F2d 1179, 1182-1183 (Sth Cir,

1973). If the prosecutor felt obliged to introduce this

testimony under disclosure of the plea and sentence

agreement, he could have brought it to the attention of

defense counsel and the district judge in the absence of the

jury instead of acting first and making excuses later.

Because there was no connection or necessity for this

testimony, this was a situation ‘‘where the minute peg of

relevancy [was] entirely obscured by the dirty linen being

hung upon it."’ Lucero v Donovan, 352 F2d 16, 22, n 6 (9th

Cir, 1966).

Defense counsel's failure to object does not preclude

review because of the highly prejudicial nature of testimony

implying the need for protective care.

Since the jury was given testimony to infer or even

speculate that Petitioner presented a need for protective

care of the chief prosecution witness, reversal is required.

23

IV. PETITIONER WAS DENIED A FAIR TRIAL BY THE

CUMULATIVE EFFECT OF THE PROSECUTOR IN-

JECTING THE RELIGIOUS BELIEFS OF HIS CHIEF

WITNESS AND IMPLYING A NEED FOR PROTEC-

TIVE CARE OF HIS CHIEF WITNESS, AND A

POLICE OFFICER LABELING PETITIONER AS

HAVING A RECORD AS A KNOWN DRUG DEALER.

Should this Court decide that the foregoing three issues

do not individually warrant reversal, the cumulative effect

should be considered because the jury heard the religious

beliefs of the chief prosecution witness and Petitioner

labeled as a known drug dealer, along with being free to

consider Petitioner presently dangerous due to protective

custody of the chief prosecution witness.

All this adds up to, and should be called, reversible

error.

CONCLUSION

Because of the foregoing reasons, this Petition for Writ

of Certiorari should be granted.

Respectfully submitted,

CuLperrer & Sorise

BY: Domnick J. Sorise

Attorney at Law

Business Address:

558 Monroe

Detroit, Michigan 48226

Telephone: (313) 961-0020

24

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

James Epwarp Brown

Petitioner,

-VS-

Unrrep States OF AMERICA

Respondent.

CERTIFICATE OF SERVICE

DOMNICK J. SORISE, in compliance with Supreme

Court Rule 28.4(a) and 28.5(b), does hereby certify that he

is to become a member of the Bar of the Supreme Court on

July 24, 1981, and that on the 15th day of July, 1981, did

deposit in the United States Mail, with postage fully pre-

paid, three (3) copies of the Petition for Writ of Certiorari

addressed to the Solicitor General, Department of Justice,

Washington, D.C. 20530.

DOMNICK J. SORISE

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNIT B

No. 80-7679

Summary C>»lendar

D. C. Docket No, CR-79-00115

Unrrep States oF AMERICA,

Plaintiff-Appellee,

versus

James Epwarp Brown,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Georgia

May 20, 1981

Before RONEY, FRANK M. JOHNSON and HENDER-

HENDERSON, Circuit Judges

PER CURIAM: AFFIRMED. See Local Rule 21.'

ISSUED AS MANDATE:

'See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir,

1970, 430 F.2d 966.