Opposition Brief — Bolden v. Merlo

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CASE NO. 86-832

SUPREME COURT OF THE UNITED STATE

OCTOBER, TERM 1986 linieeeitinas

tioner

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

AND APPENDIX

By: FRANK LAWRENCE

Attorney for Resp

1600 N. Woodward Av:

Suite 224

Birmingham. M L

irml ar

313 4474 >

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ii

COUNTER-SiATEMENT OF THE CASE l

SUMMARY OF REASONS WHY THE PETITION

SHOULD BE DENIE:

REASONS WHY THE PETITION SHOUD BE

DENIED 11

CONCLUSION ,

- Appendices follow -

an “2

TABLE OF AUTHORITIES

Bass, Ratcliff & Grettor y State Tax mmission, 26¢

US 271, 45 5 Ct 82

Berkemer v McCarty , 468 US 420, 104 § Ct 3136, Se

Ed 2d 31/ (1984) 14

Brown v Marshal, 704 F2d 333 mA 6, 1983 LZ

Burton v Bergman, 649 F2d 428 (CA 6, 1981 i7

Calmar Steamship Corporation United State f Amer

345 US 466, /3 5S Ct /33, 97 L Ea 114 195 L

Conway v Anderson, 698 F2d S0k = A 6, 198: 7

Davis v Currie, 266 US 182 45° § Cte 6s

Deitz v Solem, 640 F2d 126, “A 6, - £961 :

Desist v United States, 394 S’-246,.69.5: Ct. i Rages ot Aa

Ed 2d 248 (1969 17

Edward Hines Yellow Pines Trustees Martin, 266 458

—_—_—_— = = = . — me

45S Ct 543, 69 L Ed 1 192 4,

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19%)

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Ivan V. v City of New York, 4 2 l 2

, . ieet ‘ - be £

Krzeminski v Ferini, 0i% Kea le

Lee v _ 439 US 461, 99 S t ;

IA Q

Lyons v United States, le 2d ; ~

Pt on | } c y by yy &R ~ 5 5

McClellan v Carland, <1 5 4 - Ye 4

762

1 , — . = .

McCullough v er FO. “ Z

ok we a 5

Morissette Vv r te tate He + é ~

96 L Ed 288 1952

’ esa 9

ullaney v Wilbur, 42-1 4, 44

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2a 508 (19,

D 1 M ‘

People v 41 ¢ i : Wl y ‘

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Rose v Ciark, 4/¢ , , é

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>d 46 1 QR ¢ .

Cases

Sandstrom v Montana, 422 US 510, 99 S Ct 2450, 61

L Ed 2d 39 (1979)

Schneider v Electric Auto-Lite Company, 456 F2d 366

(CA 6, 1972)

Sigman Fuel Company v Tennessee Valley Authority,

754 Fod 162 (CA 6, 1985)

United States v Oritz, 422 US 891, 95 S Ct 2585, 45

L Ed 2d 623 (1975)

United States v Reeves, 594 F2d 536 (CA 6)

United States v United States Gypsum Co., 438 US

422, 98 S Ct 2864, 57 L Ed 2d 854 (1978)

United States Fidelity & G. Co. V Wooldridge, 268 US

234, 45 S Ct 489

72)

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Vaughn v Atkinson, 369 US S245 Oa

2d 88 (1962)

Williams v Engle, 683 F2d 152 (CA 6, 1982)

Williams v United States, 401 US 646, 91 S Ct

1148, 28 L Ed 388 (1971)

Williams v United Distributive Wo

(Silvercup Bakeries), 529 Fed

Wainwright v Sykes, 433 US 72 (1974

Chapman v California, 386 US 18, 87 S Ct 824,

2d 705 (1967)

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14-19

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

COUNTER-STATEMENT OF THE CASE

If unsuccessful at reconciliation Mr. Merlo was going to kill

himself then and there. (Tr. 458, 464). Mr. Merlo had walked

through the beauty shop and into the back furnace room in a

normal manner (Preliminary examination-54) (Tr. 243). After-

wards his wife walked out of the furnace room to the work area

and John Merlo then came out and shot his wife. (Tr. 115).

There is some testimony that John Merlo's stride as he walked

out of the furnace room was normal. (Tr. 115). Other testimony

indicates that he walked out in a quick manner before the shoot-

ing (Preliminary examination-47). There was only a chree foot

distance so he couldn't actually run (Preliminary examination-47).

John followed Sharon out of the furnace room as she left. (Tr.

262). Mrs. Merlo was shot almost immediately as she returned to

her work area. (Tr. 264). Shots were fired so fast that witnesses

only heard three of the four shots. (Preliminary examination-12,

28, 39, 57) (Tr. 115, 168, 246). Witnesses could have been 15

to 30 feet from the furnace area where the Merlo's were located.

(Tr. 136, 174). One witness testified that if there was talking

above normal conversation she wouldn't have heard it anyway and

there is nothing wrong with her hearing. (Tr. 137-138). Two of

the witnesses were only partially paying attention to the furnace

room where the Merlo's were having their discussion. (Tr. 176).

Defense counsel's opening statement implied that he did not

have enough time to prepare defendant's case because he was

appointed less than four weeks prior due to “certain problems"

with other attorneys appointed to represent Mr. Merlo. (Tr. 378-

379). Defense counsel later admitted to the jury that he had

not initially developed a theory or a defense in the case. (Tr. 380).

Mr. Merlo carried a gun on and off since he was honorably

discharged frum the army. (Tr. 382, 390, 420, 446-447). His

home town was in Ohio where it was legal to have a gun without a

permit. (Tr. 390, 455-456). When he left Ohio for Michigan to

talk with his wife at the beauty shop he took the gun with hin.

(Tr. 390, 455). The conversation in the furnace room was basically

a plea by John, in a calm voice, that his wife return to him.

(Tr. 391). Mrs. Merlo was well aware of John's threat to shoot

himself at the beauty shop and other persons were made aware by

Mrs. Merlo herself. (Tr. 361-369). Nevertheless, Shar

(e)

John to get out of her life, called him names, spit in his face,

and shoved and slapped him. John lost control of himself, followed

her out, and killed her rather than himself. (Tr... 391, S61, 463

There is some evidence that John slapped his wife at one

time (Tr. 414), but only in response to her initial beating of

him. (Tr. 444, 445, 509). He had never hit her before. (Tr. 445

A summary of some of t

follows:

Rose Marie Schmidt, a beauty shop customer, testified she

saw John Merlo arrive. (Tr. 111). John and Sharon went into the

furnace room. (Tr. 113). Rose Marie was sitting on a sofa facing

the entrance door to the shop. (Tr. 128). She did not hear any-

thing from the back room. If there was any talking above normal

conversation she would not have heard it. (Tr. 137-138). Contrarv

to Petitioner's statement of facts, she could have been 15 to 18

feet from where John and Sharon were standin

Although she testified that John's stride as he followed Sharon

out of the back room was normal (Tr. 115), this is

with another customer's testimony, Lois Witaker, that John walked

out in a "fast" manner (Preliminary examination-47). There was

only a short distance between the doors of the back room to where

John followed Sharon out, approximately three feet, so John could

not actually have distance to run. Lois Witaker's testimony at

preliminary examination, p. 47.

Diane Brennan, another beauty shop custome

out of the back room, light a cigarette, and go back in. TPs £8

She described the appearance of the face of Sharon when she came

out of the back room just prior to the shooting as flushed,

there was still something unsaid between John and Sharon. (Tr.184

Andrea Pojarski was a hairstylist in the beauty shop. (Tr.

188). Andrea heard shots and ran into the back room. (Tr. 192).

Contrary to Petitioner's statement of facts that Andrea did not

see John come out right after Sharon, she merely testified that

she did not see John come out at all. (Tr. 192).

Martha Stanfield, owner of the beauty shop, was present but

did not see the shooting. (Tr. 224). She heard Sharon use the

word “car” when speaking to John in the back room. (Tr. 223).

Although she testified that she did not see any spit on John

Merlo's face nor any slap marks, Petitioner fails to mention that

she testified if there were any marks on his face she probably

would not have observed them anyway. (Tr. 239). Sharon called

Martha at work and warned her to keep the door locked because

John had threatened to go to the shop and "blow his brains out".

(Tr. 363, 367-368). Martha had knowledge that the police detectives

were supposedly watching the beauty shop a couple of weeks prior

to the incident because John threatened to blow his brains out.

(Tr. 365-367).

Lois Witaker, a customer, testified that there was not much

time from when Sharon exited the back room and when she was shot.

It was 10 seconds. (Tr. 245, 268). She testified that John

followed Sharon out of the back room right behind her within a

couple of feet. (Tr. 262). Sharon was shot right after she

barely turned around in back of a beauty shop chair. (Tr. 258).

Diane Wilshire, Sharon's sister, saw John while she was in

the hospital having her first baby. (Tr. 412). Diane testified

that the victim's mother had been told that John might go to the

beauty shop and kill himself. (Tr. 416).

Robert Payton, Sharon's boyfriend, began dating Sharon in

late October, 1966. (Tr. 399). He talked to Sharon at a restaurant

Sent wachta after the baby was born. (Tr. 399). A week later

Sharon started her action for divorce. (Tr. 408). Sharon's

parents knew she was dating Payton. (Tr. 401). Sharon and Payton

were thinking of marriage. (Tr. 402). Sharon herself told Payton

that John might go to the beauty shop and kill himself thre

weeks prior to the shooting. (Tr. 404).

John Merlo testified that he and Sharon lived in an apartment

in Wayne, Michigan after the marriage. They were happily married.

(Tr. 422-423). They moved to Sharon's parents house later. (Tr.

422). John was thrown out of their house three times. BM. &234

428, 430, 434-435). Sharon asked John for a divorce but would

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to the bdDeauty snop to reconciie tne marriage r Kill Nnimseltr,

» _ ce ] 9 Joan A 7 Ts

Sharon stated she was upset because hn damaged her ar. Tr 4

She said she would never t e him back, spit in his ‘face, s ve

him into the wall of the back roon f the beaut 3 | an t

John to “get the hell out of here punk. set out of my lif

Ir. 464). The victim's mother, Lillian Kamen, wh was not I é

as a witness, was present luring Resp nadent s testimony. if. 41%

4 ZY e

During opening statement of Defense, after the People ha

rested, the courtroom was cleared of Lillian Kamen, wh ; 3

some courtroom disruption, and other family members. [r.

After a five minute recess the Court allowed Mrs. Kamen ar t

family members to stay in the courtroom but were cautioned bv ti

while Respondent was giving his t

Lillian Kamen, Sharon's mother, who was an unindorsed and

unexpected witness, testified as a rebuttal witness to Merlos

previous testimony. She testified that John wrote a number of

letters concerning the care of the baby. is 559 She testi-

fied that John had told her he would go to the beauty shop and

er mee ree ‘ . ae

kill himself. (kes 2OLI« However, she also testified that John

had stated, I warned her ahead of time. I left a bullet in th

front seat. [r. 953). Merlo's previous testimony, elicited b

the prosecutor when he was cross examining Merio, was a denial of

On December 20, 1967, Mr. Merlo was convicted of first degree

premeditated murder in the Circuit Court for the County of Oakland

and sentenced to a non-parolable life imprisonment, although MNerlo's

defense emphasized lack of premeditation. (Tr. 381).

Mr. Merlo filed a Claim of Appeal in 1970 and the Michigan

Court of Appeals confirmed his conviction in People v Merlo, 23,

Mich App 694, 703 (1970). In his appeal, his court appointed

attorney attempted to have the case reversed on several arguments.

One of the arguments were that the use of Lillian Kamen's rebuttal

testimony as evidence was an abuse of the trial Court's discretion.

He failed to argue that rebuttal testimony directed at a prosecution

elicited denial is reversible error.

Mr. Merlo's Delayed Application For Leave To Appeal, filed in

1975, was denied by the Michigan Supreme Court. In neither the

1970 appeal, nor the 1975 appeal was the jury instruction of the

Court challenged for shifting the burden of proof. Some of the

other issues appealed were admissability of evidence as a result

of a questionable confession and the prosecutor's failure to state

facts to be relied on in proving premeditation.

In 1977, defendant filed a writ of habeas corpus in the U.S.

District Court for the Eastern District of Michigan but did not

challenge the Court's instructions as impermissably shifting

the burden of proof. He was unsuccessful.

On November 4, 1982, defendant Merlo's Delayed Motion For

New Trial, in which he raised the same issue of Sandstrom error

reviewed in this Court, was denied.

On June 13, 1983, the Court of Appeals denied leave in this

case based upon the same Sancstrom issues.

On December 29, 14983, the Michigan Supreme Court denied

leave based upon these same issues.

On January 28, 1985 the District Court granted defendant's

conditional writ of habeas corpus requiring the State to commence

trial within 90 days, or release Mr. Merlo unconditionally.

Although Mz. Merlo raised ineffective assistance of counsel as

grounds for habeas corpus, the Court did not reach that issue be-

cause it found a Sandstrom error sufficient to grant the writ.

Petitioner's appendix D.

On April 5, 1985, Mr. Merlo was appointed counsel by the

court of appeals.

On August 26, 1985 oral arguments on the merits of three

primary issues were heard before a panel of the court of appeals.

The issues were: (1) Was there procedural default by Respondent

for failure to object at trial to the improper jury instruction

under Wainwright v Svkes, 433 US 72 (1974); 2) Was there a

Sandstrom error and (3) Was the Sar trom error harmless beyond a

reasonable doubt? Case

On or about September, 1985 t rt f appeals issued an

opinion which remanded the procedural default issue to the district

court. The Court held that "the state extensively briefed and

defended on the basis of the Wainwright doctrine. Without men-

tioning or discussing this defense, the District Court issued the

writ." Petitioner's appendix C.

On December 27, 1985 the district court held in favor of

Respondent that there was in fact no procedural default. Again,

the district court ordered a new trial to begin within 90 days

and if the state did not do so, Respondent was to be unconditionall\

released at that time. The new trial deadline was to expire

March 27, 1986. Petitioner's appendix B.

On January 23, 1986 a Notice of Appeal to the court of appeals

was again filed.

On September 18, 1986 the court of appeals issued a decision

affirming the district courc. Petitioner's appendix A.

John Merlo has been continuously incarcerated for the past

20 years.

+/-

SUMMARY OF REASONS WHY THE PETITION

SHOULD BE DENIED

RETROACTIVITY

The retroactivity of Sandstrom v Montana, 442 US 510 (1979),

was not raised as an issue in either of two hearings before the

district court. It was raised for the first time in the second

of two hearings before the court of appeals. This issue was

implicitly stricken by the court of appeals, although that court

referred to the issue in dictum in a footnote of its opinion

when refusing to consider the issue. Retroactivity was not

considered by the courts below. Therefore, this Court should not

consider the issue.

RETROACTIVITY

Petitioner alleges a conflict between the Michigan Supreme

Court case of People v Woods, 416 Mich 581; 331 NW 2d 707 (1982),

finding limited Sandstrom retroactivity, and the court of appeals,

finding full Sandstrom retroactivity. There is uniformity among

the federal circuits finding full retroactivity. Woods involved

a Sandstrom jury instruction that contained obvious permissive

inferences, contrary to the instruction used in Sandstrom and mest

definitely contrary to the instruction in the case at bar. Woods

found that the permissive inference of its jury instruction and

the instruction used in Sandstrom distinguished Sandstrom from the

cases that it relied on in which this Court found full retroactivity,

e.g., Mullaney v Wilbur, 421 US 684, 95 S Ct 1881, 44 L Ed 2d 508

(1975). The instant instruction conveys substantially the same

message as in Mullaney. Through analogy to Mullaney, the federal

courts of appeals have held that Sandstrom type instructions

substantially -impair the truth-finding function and raise serious

questions about the accuracy of guilty verdicts in past trials.

The Michigan Supreme Court disagreed. Due to this Courts holding

in Williams v United States, 401 US 646, 653, 91 S Ct 1148, 28 L

Ed 2d 388 (1971), full retroactivity is therefore conclusive and

the federal courts will go no further in their retroactivity

analysis. Woods does go further and finds that the effect full

retroactivity would have on Michigan's system of justice is

unacceptable.

This Court in Hankerson v North Carolina, 432 US 233, 97

S Ct 2339, 53 L Ed 2d 306 (1977) held that it is unlikely that

defense lawyers made objections to the jury instructions at trial

and the States may be able to insulate themselves to past convic-_

tions by asserting their own procedural default rule. Petitioner

neglected to properly assert procedural default in the instant

case. Since the States can effectively limit Sandstrom's retro-

active effect through procedural default, the issue of full retro-

activity is moot and certainly does not warrant review.

Petitioners argument, that the court of appeals did not perform

a thorough inquiry, is erroneous. The court exerted substantial

effort to consider the record in its entirety. Petitioners

statement of the facts is not an accurate reflection of the tran-

script. The court applied the proper standard of review in

analyzing harmless Sandstrom error, the standard recently enunciated

by this Court in Rose v Clark, 476 US » 106 S Ct 3103, 92 L Ed

2d 460 (1986). The court considered the record in its entirety,

tne a

REASONS WHY THE PETITION SHOULD BE DENIED

THE RETROACTIVITY OF SANDSTROM V MONTANA,

442 US 510 (1979),

IS A NEW ISSUE BEING IMPROPERLY RAISED

ON APPEAL

The history on how this retroactivity issue arose in this

cause is as follows:

1. On January 28, 1985, district court Judge Stewart

Newblatt issued a conditional writ of habeas corpus due t a2 «bur

shifting Sandstrom jury instruction. Petitioner's appendix D.

2. Petitioner's arguments before the district court were:

1.) There was a Wainwright v Sykes procedural default by Respondent

2.) The jury instruction error was not a Sandstrom error

3.) Even if the jury instruction at issue was unconstitutional,

it was harmless beyond a reasonable doubt. Retroactivity was

not briefed or argued. Appendix A.

3. Petitioner appealed the decision of the district court.

Notice of Appeal was filed with the court of appeals on February

BS, 1985.

4. On appeal before the court of appeals, case number 85-114

Petitioner raised the same three primary issues raised in the

district court below. Oral arguments were heard on August 26, 198

Retroactivity was not briefed nor argued. Appendix B.

>." On or about September, 1985 the court of appeals remanded

the Wainwright v Sykes procedural default issue to the district

court below. Merlo v Bolden, 774 F2d 1163 (CA 6, 1985), unpublished

Opinion. Petitioner's appendix C.

6. On remand, the only issue brief and argued was Wainwright

v Sykes procedural default. However, Petitioner filed no additional

brief.

7. On December 27, 1986 the district court held in favor of

Respondent that there was in fact no Wainwright v Sykes procedural

default. Petitioner's appendix B.

8. On January 23, 1986 the Petitioner filed another Notice

of Appeal with the court of appeals regarding the Gietrict court: s

remand decision on Wainwright v Sykes procedural default. Petition-

er also appealed the harmless error issue again, presumably because

the court of appeals did not explicitly address that issue in its

prior opinion remanding the cause. At this point Petitioner also

raised the issue whether Sandstrom should be applied retroactively

in Respondent's case for the first time.

9, The retroactivity issue was not presented to the district

court in the past, in either appearance before that Court.

10. The court of appeals should not pass upon retroactivity

since it was not raised in the district court or the court of

appeals in the past and Petitioner was precluded from ever raising

the issue again. Bannert v American Can Company, 525 F2d 104,

111 (CA 6, 1975) citing Hormel v Helvering, 312 US 522, 556, 61

S Ct 719, 85 L Ed 1037 (1941) and Schneider. v Electric Auto-Lite

Company, 456 F2d 366, 375 (CA 6, 1972) Sigman Fuel Company v

Valley Authority, 754 F2d 162, 164-165 (CA 6, 1985); See also

Williams v United Distributive Workers Council 30 AFL-CIO

(Silvercup Bakeries), 529 F2d 509 CA 6, 1976); Lyons v United

States, 123 F2d 507 (CA 6, 1941); United States v Oritz, 422 U

”

891, 898, 95 S Ct 2585, 45 L Ed 2d 623 (1975). Specifically as

it applies to habeas corpus proceedings, see Brown v Marshall,

704 F2d 333 (CA 6, 1983).

11. On May 5, 1986 Respondent filed a motion to strike the

retroactivity issue with the court of appeals. Appendix C. Petitioner

presumably had no defense to the motion and did not file a response.

12. The court of appeals did not issue an order answering

Respondent's motion to strike the retroactivity issue. This

writers telephone inquiry with a case supervisor of the court of

appeals on June 27, 1986 indicated that a decision had not been

made by the panel assigned to the case whether the motion was

granted or denied.

that Res

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THE CONFLICT BETWEEN THE HOLDINGS OF THE

FEDERAL COURTS OF APPEALS, FINDING

SANDSTROM TO BE FULLY RETROACTIVE,

AND THE MICHIGAN SUPREME COURT,

FINDING SANDSTROM TO BE OF

LIMITED RETROACTIVITY, LACKS MERIT

FOR REVIEW AND MAY NEVERTHELESS

BE CONSIDERED A MOOT ISSUE.

Petitioner relies on the Michigan Supreme Court case of

39 (1979), is to be given limited retroactive effect, i.e.,

only applied to cases raising the Sandstrom error and pendirg

on direct appeal at the time Sandstrom was decided, to support

a conflict between a state court of last resort and a federal

court of appeals for purposes of review on certiorari. Petitioner

alleges no conflict among the federal courts of appeals. In

fact, Petitioner's latest brief before the court of appeals

‘. its w ;

ses teas, TEBE TSouchste'y werdes

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Pp a? GP Sandstrom w ;

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presumptions W o sckr W + > + = . Sar tro!

relied on are full 3 retroacti : W , Woods

held that the possibilit f ermissive infer ti

Sandstrom from the cases that it relied on ar that for t

reason Sandstrom should not be given full retroactive eff

Respondent contends that ar permissive inference that c

be obtained from the jury instruction in the instant case is

negligible or non-existent, contrary to the instruction quote

above from Woods. See for exampl]

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aud, 96 & E¢@ 208 (issz). Note that

ecided well before Respondent's case.

languaye emphasized there instructs the jury that the only way

the presumption does not apply is if the evidence indicates the

contrary. There is nothing permissive about it if the evidence

does not prove that Respondent did not intend, contemplate and

design the killing. And of course, who is to pring forth the

evidence but the Respondent himself. The distinction that Woods

finds for differentiating between Sandstrom and the cases that

Sandstrom relies on which are applied retroactively (e.g., Mullany,

supra), is tenuous at best and when applied to the instant case,

should be totally inapplicable.

In Mullaney the jury was instructed that "if the prosecution

established that the homocide was both intentional and unlawful,

malice aforethought was to be conclusively implied unless the

defendant proved by a fair preponderance of the evidence that he

acted in the heat of passion on sudden provocation.” A Mullaney

error is given full retroactive effect by this Court. Hankerson,

infra. Sandstrom relied heavily on Mullaney. Furthermore,

Mullaney addressed the reasonable doubt standard imposed by the

Fourteenth Amendment, the same as Sandstrom. And, practically

speaking, the jury instruction in the instant case conveys tne

Same message to the jury as in Mullaney. In Dietz v Solem, 640

F2d 126, 130 (CA 8, 1981) the Court of Appeals for the Eighth

Circuit stated:

While it is true that not all decisions

have retroactive force, the Supreme Court in

Hankerson v North Carolina, 432 U.S. 233, 97

S. Ct. 2339, 53 L Ed 2d 306 (1977) held that

the decision in Mullaney v Wilbur, 421 US 684

95 S Ct 1881, 44 L Ed rm 508 (1975), was to be

given retroactive application. In light of the

fact that the Sandstrom decision heavily relied

on Mullaney and addressed a due process claim

almost identical to Mullane P ea eats that

Sandstrom must be applied retroactively. As

was stated in Hankerson:

"'"Where the major purpose of new consti-

tutional doctrine is to overcome an aspect of

the criminal trial that substantially impairs

its truth-finding function and so raises

serious questions about the accuracy of guilt

verdicts in past trials, the new rule [is]

given complete retroactive effect.'"

Hankerson Vv North Carolina, supra, 432 U.S. at

-16=

243, 97 S.Ct at 2345; citing Ivan Vv v City ot

New York, 407 U.S. 203, 204 (1972)

The Woods decision acknowledged that the first of the three

criteria of the Linkletter-Stovall approach in analyzing retro-

activity is the most important. ‘Woods, supra, 416 Mich at 618,

citing Desist v United States, 394 US 244, 89 S Ct 1030, 22 L Ed

2d 248 (1969), also quoting Williams v United States, 401 US 646,

91 S Ct 1148, 28 L Ed 2d 388 (1971). Specifically, this criterion

is “the purpose to be served by the new standards.” It is at

this important point of analysis that the Michigan Supreme Court

and the court of appeals position are in total disagreement. The

court of appeals stated in Burton v Bergman, 649 F2d 428, 431, n.3

(CA 6, 1981), vacated and remanded on other grounds, 456 US 953,

102 S Ct 2026, 72° L Bd 2d 478 ¢€1982) as follows:

We hold that the rule in Sandstrom must be applied

retroactively. We are not certain that Sandstrom

énnounces a new constitutional principle; it seems

to be simply an application of the principle estab-

lished by Winship. See Lee v Missouri, 439 U.S. 461,

462, 99 S Ct 710, 711, 58 L Ed 2d 736 (1979). How-

ever, even if Sandstrom articulates a new rule, the

major purpose of the rule is to overcome an aspect

of the trial that substantially impairs its truth

finding function and raises serious questions about

the accuracy of guilty verdicts in past trials.

For that reason the rule must be applied retro-

actively. Hankerson v North Carolina, 432 U.S. 233,

97 S Ct 2339, 33 L BG 2d 300 CISTI) 10s

“Retroactive application ef Sandstrom has been recognized in

this Circuit since the instructional error would normally affect

a defendant's right to a fair trial and impact upon the ultimate

issue of innocence or guilt.” Conway v Anderson, 698 F2d 282, 284

(CA 6, 1983), citing Williams v Engle, 683 F2d 152 (CA 6, 1982);

Krzeminski v Perini, 614 F2d 121 (CA 6), cert denied, 449 U.S.

866, 101 S Ct 199, 66 L Ed 2d 84 (1980), Burton v Bergman, 649

F2d 428 (CA 6, 1981), vacated and remanded on other grounds, 456

U.S. 953, 102 S Ct 2026, 72 L Ed 2d 478 (2982).

Woods is in disagreement in that it holds that the truth-

finding function is not substantially impaired to create a clear

danger of convicting the innocent. 416 Mich at 620.

This Court in Williams v United States, 401 US 646, 653, 91

’

a} Fs

S Ct 1148, 28 L Ed 2d 388 (1971), held as follows:

Where the major purpose of new constitutional

doctrine is to overcome an aspect of the criminal

trial that substantially impairs its truth-finding

function and so raises serious questions about the

accuracy of guilty verdicts in past trials, the new

rule has been given complete retroactive effect.

Neither good-faith reliance by state or federal

authorities on prior constitutional law or accepted

practice, nor severe impact on the administration

of justice has sufficed to require prospective

application in these circumstances.

Since the major purpose of Sandstrom is to overcome an as-

pect of the trial that substantially impairs its truth finding

function and raises serious questions about the accuracy of

guilty verdicts in past trials, Williams, supra, precludes

further analysis to consider the other two criteria, i.e.,

reliance on old standards and the effect on the administration

of justice. But Woods did go further and found that the effect

full retroactivity would have on Michigan's system of justice is

unacceptable. 416 Mich at 621. Therefore, Woods concluded that

Sandstrom only be given limited retroactive effect. However,

because serious questions are raised about the accuracy of guilty

verdicts in past trials when there is a Sandstrom error, this

Court should not continue to analyze the effect on Michigan's

administration of justice. Nevertheless, as will be seen, a

burden could be avoided in these cases.

"Nor have such burden-shifting instructions been countenanced

antecedent to Sandstrom." Conway, supra, citing United States v

Reeves, 594 F2d 536 (CA 6), cert denied, 442 US 946, 99 S Ct 2893,

61 L Ed 2d 317 (1979). And as Woods itself acknowledged, one

of the four major cases that Sandstrom relied on was the 1952

case of Morissette v United States, 342 US 246, 72 S Ct 240, 96

L Ed 288 (1952). Woods, 416 Mich at 617. The fact that the

trial occurred 20 years ago does not mean that the Sandstrom

principal should not be applied to the instant case.

Respondent makes an issue of the assertion that “retroactive

application of Sandstrom puts a heavy burden upon the People of

the State of Michigan to retry a murder case after a lapse of

-18-

nearly twenty years." Petitioner's petition, page ll. In fact

the Michigan Supreme Court seemed to place much weight on this

issue in arriving at its decision in Woods. However, in

supra, which ruled on Mullaney, supra, one of the four major cases

that Sandstrom relied on, this Court stated at 432 US 244, n.8

Moreover, we are not pursuaded that the impa

on the administration of justice in those States that

utilize the sort of burden-shifting presumptions

involved in this case will be as devastating as respond-

ent asserts. If the validity of such burden-shiftir

presumptions were as well settled in the States that

Q a

> 4 L

Ae Woe

have them as respondent assert:

that prior to Mullaney many de

appropriate objections to jury instructions incorporatir

those presumptions. Petitioner made none here The

North Carolina Supreme Court passed on the validit

the instructions anyway. The States, if they wish, m

be able to insulate past convictions by enforcing th

normal and valid rule that failure to object to a jur

instruction is a waiver of any claim of error See,

e.g., Fed. Rule Crim. Proc. 30

Also, in this respect the instant case is the same as Mullane

Here the Court below found that the Petitioner waived the right t

assert Respondent's failure to object to the jury instructior

because Petitioner did not expressly raise the procedural default

issue in his responsive brief before the Michigan Court of

or the Michigan Supreme Court and, therefore, the state irts

implicitly passed on the merits of Respondents claims. 3 2

at 255; Petitioner's appendix pages A-7 and A-8. Petitioner

does not dispute this portion of the lower Courts holding. T:

Michigan Courts can begin to impose their own

rules for Sandstrom errors and the Respondent can be more care?

in raising such defaults upon appeal to avoic

i¢

that Respondent complains of. In fact, all states can effect

limit Sandstrom's retroactive effect by merely enfor

own procedural default rules. Therefore, Sandstrom's retroactivity.

is essentially a moot issue not warranting a review on writ of

certiorari pursuant to Rule 17

-|9-

IIl

THE COURT OF APPEALS APPLIED THE PROPER

STANDARD OF REVIEW IN DETERMINING WHETHER

SANDSTROM WAS HARMLESS. WHETHER A

SANDSTROM JURY INSTRUCTION WAS HARMLESS

BEYOND A REASONABLE DOUBT IS A FACTUAL

DETERMINATION THAT THIS COURT ORDINARILY

DOES NOT ENTERTAIN

Petitioners allegation, petition page 16, that "It does not

appear from the Sixth Circuit's opinion that the court ‘undertook

a thorough inquiry' into the evidence," is an absurd statement.

The court of appeals read and summarized approximately 700 pages

of transcript in its opinion and disclosed facts that this writer

did not even discover after reading and summarizing the transcript

at least four times. In fact, the court of appeals devoted more

than one-half of its opinion to a development of the facts as

disclosed by the whole record. Respondent's counterstatement of

facts, which more accurately explains the record, contained herein

and the opinion of the court of appeals, speak for itself. In

addition, nowhere does Petitioner mention Suicide, the main

defense of Respondent. The court applied the proper standard

for review, that enunciated by this Court in the recent case of

Rose v Clark, 476 US » 106 S Ct 3103, 92 L Ed 2d 460 (1986).

The court of apoeals quoted from this Court's Opinion in Chapman

v California, 386 US 18, 87 S Ct 824, 17 L Ed 2d 705 (1967)

“that an otherwise valid conviction should not be set aside if

the reviewing court may confidently say, on the whole record,

that the constitutional error was harmless beyond a reasonable

doubt" (Emphasis added). 801 F2d at 256, Petitioner's appendix

page A-9,

Page 17 of Petitioner's petition emphasizes protions of the

jury instruction and states that they condition the finding of

guilt upon a review of the evidence. But as mentioned at pages 15 & lf¢

R of this brief, a reasonable juror could have interpreted this to

-20-

mean that Respondent is guilty unless his evidence proves the

contrary.

Page 18 of Petitioner's brief states that "The Sixth Cir

never considered the full instruction to the jury in the instant

case.” All portions of the jury instruction cited, discussed

Or quoted at pages 18 and 19 of Petitioners petition were

previously brought to the attention of the court of appeals

through Petitioners brief before that Court. Appendix D, pages §-]

There is absolutely no reasonable basis for Petitioners allegati

p= 9

nt]

;

a |

Furthermore, Petitioner's allegation

mitigated by other statements before the jury can be further

rebutted when the district court found as a factu

ey)

‘

its review of the transcript, that "the ailing instruction

itself so infected the entire trial that the resulting convicti

violates due process.” Petitioner's Appendix page D-5. In

cr?

ie)

addition, the court of appeals explici

the traditional Chapman harmless error analysis to determine

whether the record, examined in its entirety, establis S

beyond a reasonable doubt." (Emphasis supplied). 801 F2d at 237.

Petitioner's appendix pages A-1l - A-12.

As this Court stated in Rose, supra, 106 S Ct

Although we "plainly have the authority t

decide whether, on the facts of a particular

case, a constitutional error was harmless

under the Chapman standard. we “do s sparing]

For these reasons,

CONCLUSION

should be denied.

Dated:

January 4), 1987

Business Address:

-22-

the petition for a writ of certiorari

Respectfully submitted,

‘ a7

SA 2th PEC AGA

FRANK LAWRENCE (P36839)

Attorney for Respondent

Frank Lawre.ce, P.C.

1600 N. woodward Avenue

Suite 224

Birmingham, Michigan 48011

Telephone (313) 642-2333

UNITED STATES DISTRICT COURT

“EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOHN MERLO,

Petitioner,

Vv Civil No. 84-CV-8023-FL

HON. STEWART A. NEWBLATT

DAN BOLDEN,

Respondent.

ANSWER TO PETITION a

FOR WRIT OF HABEAS CORPUS

NOW COMES Respondent, by and through his attorneys,

Frank J. Kelley, Attorney General for the State of Michigan, and

Edgar L. Church, Jr., Assistant Attorney General, and in response

to Petitioner's ipationtion for Federal Writ of Habeas Corpus,

says as follows:

PETITION ALLEGATIONS

ae In response to Petitioner's ground one, Respondent

denies the allegations .\).tained therein for the reasons that:

a. Petitioner's claim that "Petitioner was

deprived of his right to due process and a fair trial under the

14th Amendment to the United States Constitution and under

Section 17, Article 1, Michigan Constitution, 1963, when the

trial judge instructed the jury that the law presumes that a

person intends the ordinary consequences of his voluntary acts” is

without merit. Respondent hereby relies on the argument set forth

in the Oakland County Prosecuting Attorney's Brief on Appeal in the

Michigan Supreme Court, Docket No. CR 67-2604-FY (page 1).

b. A number of lower courts have recognized that

not all Sandstrom type of instructions embody the same potential

for harm. They have carefully examined the precise language for

"rhetorically inconsistent", Sandstrom, 442 US 510, n. 7 (1979),

qualifications or explanations. Some have found that particular

words eliminate the constitutional violation as _a threshold matter.

See Pigee v Israel, 670 F 2d 690, 693-695 (CA 7, 1982); Jacks v

Duckworth, 651 F 2d 480, 485-486 (CA 7, 1981), cert den 102 S Ct

110 (1982). Others telescope their linguistic analysis into a

harmless inquiry. Rock v Coombe, 694 F 2d 908 (CA 2, 1982), cert

den 102 S Ct 1773 (1983); Mancusco v Harris, 677 F 2d 206 (CA 2,

1982).

na In esponse to Petitioner's ground two, Respondent

denies the allegations contained therein for the reasons that:

a. Petitioner's claim that “Fetitioner was deprived

of a fair trial and due process under the 14th Amendment to the United

States Constitution and Section 17, Article 1, Michigan Constitution,

1963, when the trial judge, in his charge to the jury, improperly

conveyed the impression that the jury must acquit on the principal

charge before considering lesser charges" is without merit. Respondent

= 20

hereby relies on the argument set forth in the Oakland County Prose-

cuting Attorney's Brief on Appeal in the Michigan Supreme Court, Docket

No. CR 67-2604-FY (page 2).

b. Further, errors and instructions to the jury

do not ordinarily involve the deprivation of federal constitutional

rights. Gimmel v Bucko, 358 F 2d 338 (6th Cir.), cert den 385

US 962 (1966). Petitioner has thus failed to state a cognizable

claim under 28 USC 2254.

Ze In response to Petitioner's ground three, Respondent

denies the allegations contained therein for the reasons that:

a. Petitioner's claim that "Petitioner was deprived

of his right to due process and equal protection under the 14th

Amendment to the United States Constitution and Section 17, Article

1, Michigan Constitution, 1963, when the trial judge instructed the

jury that intent may be inferred by the use of a deadly weapon” is

without merit. Respondent hereby relies on the argument set forth

in the Oakland County Prosecuting Attorney's Brief in the Michigan

Supreme Court, Docket No. CR 67-2604-FY (page 3).

4. In response to Petitioner's ground four, Respondent

denies the allegations contained therein for the reasons that:

a. Petitioner's claim that "Petitioner was deprived

of his right to due process and equal protection under the 14th

Amendment to the United States Constitution and under Section 17,

Article 1, Michigan Constitution, 1963, when the trial judge

instructed the jury that malice may be implied from the doing of

any deliberate or cruel act against another” is without merit.

Respondent hereby relies on the argument set forth in the Oakland

County Prosecuting Attorney's Brief on Appeal in the Michigan

Supreme Court, Docket No. CR 67-2604-FY (pages 4-5).

De In response to Petitioner's ground five, Respondent

denies the allegations contained therein for the reasons that:

‘ie

a. Petitioner's claim that "Petitioner was deprived

of a fair trial and to due process under the 14th Amendment to the

United States Constitution and under Section 17, Article 1, Michigan

Constitution, 1963, when the trial judge's instructions to the jury

shifted the burden of proof from the state to Petitioner" is

without merit. Respondent hereby relies on the argument set forth

in the Oakland County Prosecuting Attorney's Brief on Appeal in the

Michigan Supreme Court, Docket No. CR 67-2604-FY (page 1).

6. In response to Petitioner's ground six, Respondent

denies the allegations contained therein for the reasons that:

a. Petitioner's claim that “Petitioner was denied

effective assistance of counsel in violation of his 6th Amendment

right to same during his trial" is without merit. Respondent hereby

relies on the argument set

Attorney's Brief on Appeal

Rule 9(b).

,¢e

forth in the Oakland County Prosecuting

CR 67-2604-FY (pages 6-7).

The instant Petition is subject to dismissal under

Petitioner did not raise the issues referred to above

in his Writ filed in 1977 under USDC No. G76-85-CAl.

RECORD

The following documents are filed with this Answer:

Petitioner's Preliminary Examination

Transcript dated February 24, 1967;

Petitioner's Trial Transcript (Volumes

I and II) dated December 12, 13, 14,

15, 19 and 20, 1967;

Portions of Michigan Court of Appeals File

No. 68975 and 5278;

Entire Michigan Supreme Court File No. 72007

and 57333.

in the Michigan Supreme Court, Docket No.

WHEREFORE, Respondent requests that Petitioner's Applica-

tion for Federal Writ of Habeas Corpus be denied.

Respectfully submitted,

FRANK J. KELLEY

ney General

, Jr. (P1Y87S)

Asszysfaft Attorney General

a Corrections Division

Plaza One Building

401 South Washington Square

Lansing, MI 48913

Dated: April 24, 1984 Telephone: (517) 373-3474

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOHN MERLO,

Petitioner,

Vv Civil No. 84-CV-8023-FL

HON. STEWART A. NEWBLATT

DAN BOLDEN,

Respondent.

BRIEF IN SUPPORT OF ANSWER TO

PETITION FOR WRIT OF HABEAS CORPUS

COUNTERSTATEMENT OF FACTS

On January 6, 1967, Petitioner's estranged wife was

shot four times and killed at the Crest Beauty Salon in Farmington

Township, Michigan. This occurred after Petitioner entered the

salon, spoke with the victim in a back room, and had followed the

victim back to the work area of the salon.

Part of the evidence against Petitioner was his own con-

fession, given to authorities in Philadelphia who had arrested him

on forged check and weapon possession charges. (T, 314-317)

There were several eyewitnesses to the murder -- the

customers and others who worked at the salon. Although Petitioner

claimed his wife had provoked the shooting, none of the eyewitnesses

in the main room at the Crest Beauty Salon heard sounds from the

furnace room where Petitioner and his wife had gone to talk. (T,

115, 164, 203-204, 206, 208, 210, 215, 223, 248) No noisy equipment

was then in operation in the salon. (T, 120) The doors to the

furnace room were open. (T, 114, 204-205, 209) Some of the witnesses

were wary of possible trouble and/or were observant of the furnace

room. (T, 177-178, 181, 256) None of the eyewitnesses observed

Spittle or possible slap marks on Petitioner's face. (T, 238-239,

266) Petitioner's gait as he walked from the furnace room toward

his wife was described as “normal.” (T, 115) There was clear

testimony that Petitioner fired two of four shots at the victim

while she was lying on the floor (T, 115-117) or as she was slumping

to the floor. (T, 245-246)

Petitioner's own testimony reveals that he and his wife

had experienced severe marital difficulties. His wife had rejected

his efforts toward reconciliation on numerous occasions. (T, 426-

453, 509-510, 531) Testimony in this case also shows Petitioner's

familiarity with a gun and his apparent readiness to use it. (T,

415, 446-448, 452, 455-456, 495, 514, 515) The evidence also

showed that Petitioner had previously dealt in a physically aggres-

Sive manner with the deceased (T, 414, 444-445, 509-510, 531), and

had otherwise demonstrated ill will toward her. (T, 451, 511-514)

Further, in his own testimony, Petitioner revealed that he killed

his wife because of “everything that happened" and that the boyfriend

was part of it. (T, 538)

Petitioner filed a Claim of Appeal and che Michigan

Court of Appeals confirmed his conviction in People v Merlo, 23

Mich App 694, 703 (1970), in an opinion which stated that Petitioner's

guiit of first degree murder was “overwhelmingly established."

Petitioner's Delayed Application For Leave To Appeal filed

in 1975 was denied by the Michigan Supreme Court. In neither the

1970 appeal nor the 1975 appeal was the instruction of the Court

challenged for shifting the burden.

In 1977, Petitioner filed a Writ of Habeas Corpus in

this Court but failed to challenge the Court's instructions as

impermissibly shifting the burden of proof.

On November 4, 1982, Petitioner's Delayed Motion for New

Trial, in which he raised the same six issues he now seeks to have

reviewed in this Court, was denied.

On June 13, 1983, the Court of Appeals denied leave in

this case based upon the same six issues now raised before this

Court. On December 29, 1983, the Michigan Supreme Court denied

leave based upon these same six issues.

7 P . -I-

ARGUMENT

ABSENT A DEMONSTRATION THAT

MICHIGAN APPELLATE COURTS DE-

CLINED DISCRETIONARY REVIEW OF

PETITIONER'S CONSTITUTIONAL

CLAIM BASED ON THE MERITS, A

FEDERAL COURT MUST INVOKE THE

DOCTRINE OF WAINWRIGHT v SYKES,

433 US 72 (1577), TO PRECLUDE

HABEAS CORPUS REVIEW.

Petitioner did not object at trial to the court's jury

instruction on intent. Such inaction bars Michigan appellate

consideration absent a demonstration of “manifest injustice”.

GCR 1963, 516.2; People v Alcada, 396 Mich 99, 100; 237 NwW2d 475

(1976); People v Hawley, 112 Mich App 784; 317 NW2d 564 (1982).

On direct appeal, Petitioner did not claim that any portion

of the charge impermissibly shifted the prosecution's burden of proof.

People v Merlo, 23 Mich App 694 (1970). In Michigan the failure to

raise, argue or brief an issue on initial appeal precludes subsequent

review. People v George, 375 Mich 262; 134 NW2d 222 (1965); People

v Tubbs, 64 Mich App 341, 347; 236 NW2d 77 (1975).

Respondent finally raised his Sandstrom claim on delayed

appeal. The Michigan appellate courts responded with cryptic refusals

to exercise discretionary review. GCR 1963, 803.3; 853.1.

In these circumstances, the principles set forth in Wainwright

v Sykes, supra, bars federal habeas corpus consideration of Petitioner's

constitutional claim absent a demonstration of “cause” for the pro-

cedural default and actual prejudice as a result of the error.

In People v Wright, 408 Mich 1; 289 NW2d 1 (1980), the

Michigan Supreme Court ignored the absence of contemporaneous

objection in order to reach the merits of a Sandstrom-type error.

The court recognized this action as a departure from the general

rule but justified it on the grounds that reliance on defense

objection and case-by-case assessment of harm "...may inadequately

deter continued use of the instructions". Id., 408 Mich 30, n. 13

(emphasis added). Properly read, Wright represents a 1980 policy

decision to create a narrow exception to the state contemporaneous

objection rule for certain types of instructional errors. It does

not conclusively indicate that a 1975 Michigan appellate court, on

discretionary appeal, would have ignored GCR 1963, 516.2, to address

a pre-Sandstrom claim that presumed intent language in a jury

instruction was violative of due process.

Subsequent to its decision in Wright, the Michigan Supreme

Court held that Sandstrom applied retroactively to those cases where

such instructional claims were pending or direct appeal as of

Sandstrom's decisional date. People v Woods, supra, 416 Mich at

621. Woods is consistent with Wright to the extent that the absence

of a contemporaneous objection at trial in such cases would not

preclude review. But neither decision suggests that cases tried

prior to Sandstrom were immune to then applicable caselaw and

procedural rules with regard to such errors.

In light of Woods, therefore, the issue is whether there

was a controlling state procedural rule at the time of Petitioner's

default. Washington v Harris, 650 F2d 447, 451 (CA 2, 1981). It

does appear that Michigan appellate courts generally applied

GCR 1963, 516.2, to claims of impermissible burden shifting

instructions prior to Wright. People v Spalding, 42 Mich App

492, 495-496; 202 NW2d 450 (1972) [alibi instructions]; People

v Williams #2, 45 Mich App 630, 640-641; 207 Nw2d 180 (1973)

{use of deadly weapon implies malice]; Hawley, supra, 112 Mich

App at 767-788.

Respondent submits that Wright represents a decision to

relax Michigan's procedural requirements in order to establish a

principle of law for subsequent cases. Similarly, Woods stands

as a choice to waive contemporaneous objection rules for a

specific category of cases. But the policy factors that prompted

these decisions do not compel their extension of a matter of

constitutional law. In Hankerson v North Carolina, 432 US 233;

97 S Ct 2339; 53 L Ed 2d 306 (1977), this court addressed the

argument that retroactive application of Mullaney v Wilber, 421

US 684; 95 S Ct 1881; 44 L Ed 2d 508 (1975), would impose an undwe

burden on the administration of state judicial systems. Justice

‘White rejected this argument as follows:

"The states, if they wish, may be able to

insulate past convictions by enforcing

the normal and valid rule that failure

to object to a jury instruction is a

waiver of any claim of error.”

432 US at 244, n. 8.

- “* — ee et Ee ela

This position has ween recently reaffirmed in engle v Isaac, 456 US

107, 134, n. 43; 102 S Ct 1558; 71 L Ed 2d 783 (1982).

Only if the state courts in this case ignored the procedural

default and reached the merits of Respondent's comstitutional claim

is federal habeas review appropriate. County Court of Ulster County

v Allen, 442 US 140, 152-154; 99 S Ct 2213; 60 L Ed 2d 777 (1979);

Castaneda v Partida, 430 US 482, 485, nm. 4; 97 S Ct 1272; 51 L Ed

2d 498 (1977). Where, as here, the reasons for the state court

decision are not explicit, a determination of reliance on procedural

default requires consideration of all relevant criteria. These

considerations include examination of similar cases, review of

the history of the case at bar, and analysis of the language employed

by the state court opinions. Ulster County Court, supra, 442 US 140

at 147-154.

Here the Michigan Court of Appeals declined review due

to lack of “merit” in the grounds presented and the Michigan Supreme

Court thereafter refused relief “because the Court is not persuaded

that the questions presented should be reviewed by this Court”. Both

orders appear to be standard forms for denial of delayed appeals

and do not reveal the basis for decision. See Raper v Mintzes,

706 F2d 161, 164 (CA 6, 1983). In context, therefore, the use of

the word “merit” in the Court of Appeals order is indicative of

only summary consideration of the merits necessitated by the "manifest

injustice” exception to the contemporaneous objection rule embodied

in GCR 1963, 516.2. See Williams v Abshire, 544 F Supp 315, 319

ojo

(ED Mich, 1982); see also Ziegler v Callahan, 659 F2d 254, 271,

n. ll (CA 1, 1981); Murray v Superintendent, 651 F2d 451, 455, n. 6

(CA 6, 1981). This Court, however, has recognized that the existence

of state plain error rules will not preclude the applicability of

Wainwright, supra. Engle, supra, 456 US 125, n. ‘27; United States

v Frady, 456 US 152, 177-178; 102 S Ct 1584; 71 L Ed 2d 816 (1982)

(Blackmun, J., concurring).

An ambiguous silence alone does not imply that the state

tribunals reached the merits of Respondent's claim. The, Florida

courts were silent on the merits of the petitioner's confession claim

in Wainwright, supra, 433 US 72, 85-86. Similarly, in Perini v

Bell, a companion case to Engle, supra, this Court enforced Ohio's

procedural bar where petitioner had failed to raise his constitutional)

claim of instructional error at trial or on direct appeal. Engle v

Isaac, 456 US at 124.

To hold otherwise would indulge a presumption that the

state courts have waived procedural requirement in every instant of

denial of discretionary review absent express and specific reliance

thereon as to the particular claims. Interpretation of inevitable

‘ambiguity in this fashion undercuts the state's ability to enforce

its procedural rules. For example, a state defendant who has failed

to raise a trial objection withholds his or her claim on direct appeal

and thus effectively deprives the state court of the option of either

rejecting the claim on procedural grounds or addressing the merits. ~

The state defendant next exhausts the claim when the courts subse-

quently refuse to exercise discretionary review. In the federal

habeas forum, the petitioner then asserts that procedural default

was not the reason for denial of review. For the reasons of comity,

finality and societal cost set forth in Wainwright and Engle, this

Court must not countenance such a result.

Given state enforcement of a valid procedural rule in this

case, the next step in the Wainwright inquiry is whether Respondent

can demonstrate "cause" for the default.

Though it appears unlikely that his objection would have

been successful in a 1967 Michigan trial court, see Woods, supra,

futility alone is no excuse. Engle v Isaac, supra, 456 US at 130.

Nor can Respondent claim lack of awareness. It is evident that the

constitutional foundation for his argument--that due process requires

the state to provide all elements of a crime beyond a reasonable

doubt--had been recognized prior to his trial. In re Winship,

Supra; see also Morissette v United States, 342 US 246; 72 3 Ct

240; 96 L Ed 2d 288 (1952). Moreover, federal decisions had found

impermissible burden shifting effects in similar instructions.

Mann v United States, 319 F2d 404, 409 (CA 5, 1963); Stump v

Bennett, 398 F2d 111 (CA 8), cert den, 393 US 1001 (1968). Peti-

tioner thus had the "tools to construct [his] constitutional claim"

at the time of his trial. Engle, at 133. Wainwright forecloses

habeas corpus review in these circumstances.

ARGUMENT

EVEN IF VIOLATIVE OF SANDSTROM V

MONTANA, 442 US 510 (1979), THE

JURY INSTRUCTION AT ISSUE IN THIS

CASE WAS HARMLESS BEYOND A REASON-

ABLE DOUBT.

Introduction

In Connecticut v Johnson, US :; 103 S Ct 969; 74

L Ed 2G 823 (1983), eight justices of the U. S. Supreme Court divided

as to whether a violation of Sandstrom could be harmless constitu-

tional error. Four justices opined that an affirmztive concession

of intent by the defendant was necessary to render a Sandstrom error

harmless. Id., 74 L Ed 2d at 834. The alternative plurality

suggested that conclusive evidence of intent should preclude

reversal despite a Sandstrom violation. Id., 74 L Ed 2d at 842.

The present case revisits this debate.

It is Respondent's position that a harmless error analysis

of Sandstrom violations requires a careful assessment of the particular

trial context. This review entails a non-mechanistic consideration

of the precise language used by the trial court, the emphasis given

to the instruction at issue, the issues actually contested by the

defense and the weight of the prosecution's case. Undue emphasis

on any single factor distorts the reality of the trial. The focus

instead must remain on whether the procedural error "contributed to

the conviction". Chapman v California, 386 US 18, 23; 87 S Ct 824;

-10-

17 L Ed 2d 705 (1967), quoting Fahy v State of Connecticut, 375

US 85; 84 S Ct 229; 11 L Ed 2d 171 (1963). Assessment of such

error mandates a consideration of the entire record. United States

v Hastings, US ; 103 S Ct 1974; 76 L Ed 2d 96, 106-107,

n. 7 (1983). -

A. Instructional Language

The mere use of the word "presume" in a jury instruction

on intent does not necessarily generate a Sandstrom violation. The

problem in Sandstrom was that the trial court failed to explain or

otherwise qualify the presumption. 61 “Ed 2d 46. Left to speculate,

a reasonable juror might have interpreted the instruction as either

conclusive on the issue of intent or, minimally, affecting a shift

of the burden of persuasion to the defendant.

The Sandstrom varient utilized in Connecticut v Johnson

was less ambiguous. The clarification, however, proceeded in the

wrong direction. The language used by the court explicitly told

the jury that the presumption was conclusive. Connecticut v Johnson,

supra, 74 L Ed 2d at 829. Such direction certainly increases the

likelihood of prejudicial impact on the fact finding process.

It is essential, therefore, to focus on the exact language

involved in a particular case. County Court of Ulster County v Allen,

supra, 442 US at 157-158, nm. 16.

=ll-

A number of lower courts have recognized that not all

Sandstrom type instructions embody the same potential for harm.

They have carefully examined the precise language for "rhetorically

inconsistent", Sandstom, supra, 442 US at n. 7, qualifications or

explanations. Some have found that particular words eliminate the

constitutional violation as a threshold matter. Others telescoped

their linguistic analysis into a harmless error inquiry.

These courts properly recognize that a contextual inter-

pretation consistent with the principles of Cupp v Naughten, 414

F eewe

US 141; 94 S Ct 396; 38 L Ed 2d 368 (1972), is essential to

evaluations of a claimed Sandstrom violation. Courts on review

must assume that jurors will endeavor to effectuate all the trial

judges’ instructions in a common sense manner. Undue, legalistic

emphasis on narrow portions of the charge is artificially contrary

to this realistic assumption.

With these matters in mind, a review of the precise

language used in this case reveals a far less detrimental charge

than the one found erroneous in Sandstrom.

The instruction in the instant case reads as follows:

"The law presumes that every person, unless

relieved by some disability as hereinafter

mentioned, contemplates and intends the

natural, ordinary, and usual consequences

of his own voluntary acts, unless the

contrary appears from the evidence, and

if aman is shown by the evidence, beyond

a reasonable doubt, to have killed another

by an act, the natural and ordinary con-

sequences of which would be to produce

wo Qu

‘Diipiacittaitemnces

death, then it will be presumed that death

of the deceased was designed by the slayer,

unless the facts and circumstances of the

killing, or the evidence, create a reasonable

doubt whether the killing was done purposely.

When a man assaults another with, or uses upon

another a deadly weapon, in such a manner that

the natural, ordinary, probable use of such

deadly weapon in such manner would be to take

life, the law presumes that such person so

assaulting intended to take life. A deadly

weapon has been defined as an instrument

reasonably calculated and likely to produce

death, or serious bodily injury from the

manner in which it is used. (T, 601-602)

The instructions have strong conditional clauses at the

heart of the instruction.

Absent a mandatory character, the question remains whether

the instruction in this case could have been interpreted as burden

shifting. This Court, however, has recognized a distinction between

presumptions that simply shift the burden of production as opposed

to the ultimate burden of persuasion. County Court of Ulster County,

supra, 442 US at 157, n. 16. In this case any doubts relevant to

the ultimate burden generated by the rule of thumb language should

have been resolved by the Court's specific reminder of the reasonable

doubt standard.

For these reasons, Petitioner submits that the instruction

at issue in this case did not violate Sandstrom. But, even if review

reveals the possibility of juror misinterpretation sufficient to

invoke Sandstrom, the above analysis illustrates the importance of

complete contextual interpretation and is helpful to define the

-l13-

potential for prejudice. Petitioner submits that such potential is

demonstrably less in this case than appears in either Sandstrom or

Connecticut v Johnson.

B. Degree of Emphasis

Where constitutional error receives particular prominence

at trial, the possibility of harmlessness diminishes. In Bollenbach

v United States, 326 US 607; 66 S Ct 402; 90 L Ed 350 (1946), for

example, the last thing a potentially deadlocked jury heard was an

unconstitutional presumption as an answer to their specific request

for guidafice on the issue. Similarly, the "machine gun repetition”

of Griffin v California, supra, violations was highly significant

to the nonharmless error determination in Chapman, supra, 386 US

at af:

In this case, the alleged constitutional violation involves

a single terse sentence buried in 12 pages of instructions that took

the court approximately fifty-four minutes to read. In these circum-

Stances, there is nc basis for a conclusion that a jury would accord

special significance to this comment.

©. Materiality of the Intent Issue

A plurality of this Court in Connecticut v Johnson suggested

that a Sandstrom error might be harmless where the trial defense

effectively concedes the issue of intent. To various degrees,

-l14-

other courts have aiso focused the primary empnasis of their

harmless error inquiry on whether intent was a disputed or material

issue in the case. See Conway v Anderson, 698 F2d 282, 285 (CA 6,

1983) (and cases cited therein); McGuinn v Crist, 657 F2d 1107,

1109 (CA 9, 1981); United States v Winter, 663 F2d 1120, 1144-1145

(CA 1, 1981).

A reasonable harmless error approach is to simply examine

the degree to which intent was a significant issue in the case.

Where intent, though technically in dispute, was clearly subsidiary

to another claim of defense, the likelihood of harm from a Sandstrom

instruction decreases dramatically. The contrary requires a

speculative assumption that a jury which rejects a hotly contested

' defense claim will then base conviction on ambiguous instructional

language.

The case at bar is illustrative. Here the defense claimed

intoxication. Under then applicable Michigan law the defense had

to establish that, due to intoxication, defendant either (1) was

not capable of knowing he was doing wrong, or (2) lacked the power

to resist the impulse to violate the law. People v Finley, 38 Mich

482, 483 (1878). People v Martin, 386 Mich 407, 418; 192 NwW2d

215 (1972). Voluntary intoxication was not recognized as a defense

in the sense that it could negate general criminal intent. Id., at

484; People v Wright, 58 Mich App 735, 739; 228 NW2d 807 (1975). In

this case, the defense sought to demonstrate that Plaintiff killed

in the heat of passion, and was unable to control his own emotions and

-l15-

that because of his drunkenness, was thus unabie to form the intent

to kill another person. (T, p 585-586, 589)

The Court specifically instructed the jury that:

"If on the other hand, you find the killing

was done during a state of intoxication such

that the Respondent was unable to form the

intent required to commit the crime and under

the instructions I have given you, then your

verdict should be that he is not guilty.”

(T, p 605)

The above was at the end of the Court's instructions to

the jury. This instruction clearly addresses the defense's sole

challenge to the prosecution's proofs as to general criminal intent.

(Petitioner's contention that he was drunk and was thus unable to

form the requisite intent.)

In this context, a Sandstrom instruction on intent would

have been virtually meaningless to a lay jury.

D. Weight of the Evidence

Closely related to the materiality of the intent issue is

the scope and extent of the proofs presented on this issue at trial.

Frequently, the reason for nondispute lies in an accurate assessment

of the prosecution's case.

Respondent again does not assert that the weight of the

evidence is the sole test for harmless instructional error. It is

-16-

simply an important step, Holloway v Arkansas, 435 US 475, 488;

98 S Ct 1173; 55 L Ed 2d 426 (1978), in the assessment of "...the

probable impact of the [error] on the minds of an average jury."

Harrington v California, 395 US 250, 254; 89 S Ct 1726; 23 L Ed

2d 284 (1969). This step is especially crucial where the apparent

error rests on the mere possibility of juror misinterpretation.

Any reasonable juror who believed Petitioner had shot the

decedent and was not legally incapacitated at the time could not

possibly conclude that he lacked the requisite general intent.

An ambiguous intent instruction pales to insignificance where the

evidence itself is conclusive.

Respectfully submitted,

FRANK J. KELLEY

Genera

Corrections Division

Plaza One Building

401 S. Washington Square

Lansing, MI 48913

Telephone: (517) 373-3474

Dated: April 24, 1984

-l?-

No. 85-1145

In The

ie UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHN MERLO,

DAN BOLDEN,

Respondent-Apr >llant

PYG. Appell sive

Habeas Corpus

Appeal -:om the Déstrict Court of the United States

for the Eastern District of Michigan

, Honorable Stewart A. Newblatt

BRIEF FOR RESPONDENT-APPELLANT

FRANK J. KELLEY

Attorney General

Louis J. Caruso

Solicitor General

Edgar L. Church (P11879)

Assistant Attorney General

Corrections Division

Plaza One Building

= 401 South Washington Square

e Lansing, MI 48913

Attorneys for Respondent-Appellant

EEE

TABLE OF CONTENTS

Fact Sheet for State Habeas Ccrpus Appeals. ...+.++ + ++ « - ii

Endex of Authorities. . «Bt ccecseeeeveee sees bee iii,i:

Counterstatement of Issues Presented. . . « «© «+ «+ + *+ © © #* # « iv

Statement of Facts. ...++++s+-+se# «© © © © © © © © © © @ #8 1

ARGUMENTS :

I. ABSENT A DEMONSTRATION THAT MICHIGAN

APPELLATE COURTS DECLINED DISCRETIONARY

REVIEW OF APPELLEE'S CONSTITUTIONAL

CLAIM BASED ON THF MERITS, A FEDERAL

COURT MUST INVOKE THE DOCTRINE

OF WAINWRIGHT v SYKES, 433 US

72 (1977), TO PRECLUDE HABEAS

CORPUS REVIEW... +++ e« 2 2© © © © © © © © © © # 8 .

Ii. EVEN IF VIOLATIVE OF SANDSTROM V

MONTANA, 442 US 510 (1979), THE JURY

INSTRUCTION AT ISSUE IN THIS CASE

WAS HARMLESS BEYOND A REASONABLE

See « «6 as ae Be. 6x6) 8 6) 6 618.6 6, 6-6 SO ee? 10

GConsiiastan. «ss 6 6.6 6 6.8 6 #8 66666 6, 6 Se ee eee 20

o{-

W TED STATES COURT OF APPEY 5S

FOR THE SIXTH CIRCUIT

FACT SHEET FOR STATE HASEAS CORPUS APPEALS (§2254)

Cease Name anc Number John Merlo v Dan Bolden, #85-1145

Person Reportins Edgar L. Church, Jr.

1. Has this conviction(s) been previously liticateé in the U.S

Courts? ( ) Yes. (X) No. Tt so, give brief history.

Le]

Constitutional violation claims: name constitutional provision

anc briefly recite facts assertec as violative.

Appellee claims instructions of trial court are violative

Of Sandstrom v Montana, 442 US 510 (1979).

Eave remecies been exhaustec as to claims listed ebove?

a. Yes

Are there fact disputes concernins ciaims ( ) Yes (X) No.

If so, were they resclved by the District Court?

a. At heéring?

b. By review of state court record?

c. By reference to Macistrate?

é. Neither, i.e., not resolved

Does the State argue that any constituticnal violation was founé

harmless beyond reasonable Goubt. .if so, briefly state why ané

cite to appencix paces claimed as proof.

State claims that instructions, if violative of Sandstrom, were

harmless.

INDEX OF AUTHORITIES

Cases Page Nc

Bollenbach v United States, 326 US 607; 66 S Ct 402; '

ee we) Pee ee ee ee ee ee ee ee ee ee ee ee 14

Castaneda v Partida, 430 US 482, 486, n. 4; 97 S Ct

Lg74é3 51 & BG 24 498 (1977) 2. «© we ew we we eee een se 7

Chapman v California, 386 US 18, 23; 87 S Ct 824;

i? % SG 26 705 (1967) 2. ww eee eevee eeeenes es 1l,.

Connecticut v Johnson, 386 US 18, 23; 87 S Ct 824; ,

kL? & oe Be Tee 12067) 2c i tw bh bn eR Oe Ree ee cane

Conway v Anderson, 698 F2d 282, 285 (CA 6, 1983) .... Bhat 15

County Court of Ulster County v Allen, 442 US 140, A

152-154; 95 S Ct 2213; 60 L Ed 2a 777 (1979)... 2.2... Veda

Cupp v Naughten, 414 US 141; 94 S Ct 396; 38 L Ed by

a0 Bee CAPtal -s 2 4 88s a 28 O86 oe 8 ke KA ee 12

Engle v Isaac, 456 US 107 (1982) . . «© «© «© «© «© © © @ © ow oo 7,8,

Fahy v State of Connecticut, 375 US 85; 84 S Ct 229; ;

AA me Ge Be AUk CARER 6 (6). 6-66 6 ee 8 oe) See 11

Griffin v California, 380 US 609; 82 S Ct 1229; 14 =

me i mo ge | | } ) PP ee ee ee 14

Hankerson v North Carolina, 432 US 233; 97 S Ct

i> TER ee BS | ee py) a err ce ane ey eee eee ae eee ee 6

Harrington v California, 395 US 250, 254; 89 S Ct 4%

p+, (oe DB @ @ ) Be: . ) RAP cee ee ae ee ee ee ee eee 17

Holloway v Arkansas, 435 US 475, 488; 98 S Ct 1173; + eN ;

28 oo g. o'r re ey eee eee 17

McGuinn v Crist, 657 F2d 1107, 1109 (CA 9, 1981) .... ie ° 15

Mann v United States, 319 F2d 404, 409 (CA 5, 1963). ..... 10

Morissette v United States, 342 US 246; 72 S Ct 240;

96 L Ed 2a 255 (1552) - > . J . J . >. .* .* o . . . * 7 . . a

Mullaney v Wilber, 421 US 684; 95 S Ct 1881; ,

ae I Pi Ua, NN la i a eg ce wee 7

Murray v Superintendent, 651 F2d 451, 455, n. 6

(CA 6, 1981). . 7 . . 7 7 - . 7 . . . . . - . . . . . . 7 8

-iii-

People

Alcada,

People

Finley,

People

George,

People

Hawley,

People

Langworthy ,

396 Mich 99, 100;

$6 ia 400, 003 11078. Se ke

375 Mich 262; 134 NW2d 222 (1965). ...

112 Mich App 784; 317 NW2d 564 (1982). .

436: Mich 630 (1962) . 6. & « wo

People

Martin,

People

Merlo,

People

Milton,

People

202

People

23 Mich App 694,

386 Mich 407, 418; 192 NW2d 215 (1972) .

703 (1970)

81 Mich App 515 (1978) . ....-+.4-e-s

Spalding, 42 Mich App 492, 495-496; 3

Nw2

Tilley,

People

Tubbs,

People

VanWick,

450

64 Mich App 341,

People

Williams #2,

207

People

(1972). .

. . 7 . . . . . . * < . . . .

405 Mich 38 (i979) « «sc ee te ewe es

347; 236 NW2d 77 (1975).

402 Mich 266 (1978) . . . «© « « «© « «

45 Mich App 639, 640-641;

Dead Gee UAStal © 6. 6 & 4 ho * Kh OOS ea 8 se 88

woods,

People

Wright,

Perini

Bell,

Raper v Mintzes,

Sandstrom v Montana,

416 Mich 581,

456 US 107 (1982).

O24 CORES} i 6 wae ee

40 289 NW2d 1 (1980). .-. ..-.

706 F2d 161, 164 (CA 6, 1983). .....

442 US S1O (1979). . 2 « 8 0 8 2

Stump v Bennett, 398 F2d 1ll (CA 8), cert den, 393

ON Seek PaeOel «i a 8 er 8 8 ee eae eo ees

United States v Frady, 456 US 152, 177-178; 102 S Ct

1584;

United States v Hastings,

7h oe Oe am Cae CASCel + & 6a ee ce Swe

US ; 103 S Ct 1974;

76 L Ed 2d 96, 106-107, n. 7 (1983). « «© « «© « © @ «

United States v Winter,

663 F2d 1120, 1144-1145

(CA l,

Wainwright v Sykes,

1981)

433 UB 72 (1976). « oe we we we we ee 8

“«*

-iiia-

237 NW2d 475 (1976). .°

“I8,1

“a (

Washington v Harris, 650 F2d 447, 451 (CA 2, 1981)... .

Williams v Abshire, 544 F Supp 315, 319 (ED Mich, 1982) .

Ziegler v Callahan, 659 F2d 254, 271, n. 11 (CA 1, 1981).

-iiib-

COUNTERSTATEMENT OF ISSUES PRESENTED

WHETHER ABSENT A DEMONSTRATION

THAT MICHIGAN APPELLATE COURTS

DECLINED DISCRETIONARY REVIEW OF

APPELLEE'S CONSTITUTIONAL CLAIM

-BASED ON THE MERITS, A FEDERAL

COURT MUST INVOKE THE DOCTRINE

OF WAINWRIGHT v SYKES, 433 US

72 (1977), TO PRECLUDE HABEAS

CORPUS REVIEW?

Il.

WHETHER EVEN IF VIOLATIVE OF

SANDSTROM V MONTANA, 442 US 510

, THE JURY INSTRUCTION AT

ISSUE IN THIS CASE WAS HARMLESS

BEYOND A REASONABLE DOUBT?

No. 85-1145

In The

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHN MERLO,

Petitioner-Appellee,

DAN BOLDEN,

Respondent-Appellant.

BRIEF OF RESPONDENT-APPELLANT

\ STATEMENT OF FACTS

On January 6, 1967, Petitioner-Appellee's (hereinafter

Appellee) estranged wife was shot four times and killed at the Crest

Beauty Salon in Farmington Township, Michigan. This occurred after

Appellee entered the salon, spoke with the victim in a back room, and

had followed the victim back to the work area of the salon.

Part of the evidence against Appellee was his own con-

fession, given to authorities in Philadelphia who had arrested him

on forged check and weapon possession charges (T, 314-317).

There were several eyewitnesses to the murder--the customers

. and others who worked at the salon. Although Appellee claimed his

wife had provoked the shooting, none of the eyewitnesses in the

main room at the Crest Beauty Salon heard sounds from the furnace

room where Appellee and his.-wife had gone to talk (T, 115, 164,

203-204, 206, 208, 210, 215, 223, 248). No noisy equipment was

then in operation in the salon (T, 120). The doors to the furnace

room were open (T, 114, 204-205, 209). Some of the witnesses were

wary of possible trouble and/or were observant of the furnace

room (T, 177-178, 181, 256). None of the eyewitnesses observed

spittle or possible slap marks on pesiidin face (T, 238-239,

266). Appellee's gait as he walked from the furnace room toward

his wife was described as "normal" (T, 115). There was clear

testimony that Appellee fired two of four shots at the victim

while she was lying on the floor (T, 115-117) or as she was

Slumping to the floor (T, 245-246).

Appellee's own testimony reveals that he and his wife

had experienced severe marital difficulties. His wife had rejected

his efforts toward reconciliation on numerous occasions (T, 426-

453, 509-510, 531). Testimony in this case also shows Appellee's

familiarity with a gun and his apparent readiness to use it (T,

415, 446-448, 452, 455-456, 495, 514, 515). The evidence also

showed that Appellee had previously dealt in a physically aggressive

manner with the deceased (T, 414, 444-445, 509-510, 531), and

had otherwise demonstrated ill will toward her (T, 451%

511-514).

Further, in his own testimony, Appellee revealed that he killed

his wife because of “everything that happened" and that the boyfriend

was part of it (T, 538).

ro.

On December 20, 1967, the Appellee was ccnvicted of first

degree murder in the Circuit Court for the County of Oakland.

Appellee filed a Claim of Appeal and the Michigan Court

of Appeals confirmed his conviction in People v Merlo, 23 Mich App

694, 703 (1970), in an opinion which stated that Appellee's guilt

of first degree murder was "overwhelmingly established."

Appellee's Delayed Application For Leave To Appeal filed

in 1975 was denied by the Michigan Supreme Court. In neither the

1970 appeal nor the 1975 appeal was the instruction of the Court

challenged for shifting the burden.

In 1977, Appellee filed a Writ of Habeas Corpus in this

Court but failed to challenge the Court's instructions as impermis-

sibly shifting the burden of proof.

On November 4, 1982, Appellee's Delayed Motion for New

Trial, in which he raised the same six issues he now seeks tc have

reviewed in this Court; was denied.

On June 13, 1983, the Court of Appeals denied leave in

this case based upon the same six issues now raised before this

Court. On December 29, 1983, the-Miehtgan Supreme Court denied

leave based upon these same six issues.

On January 28, 1985, the District Court granted Appellee's

conditional writ of habeas corpus allowing the State to commence

weacuel = 3=

‘il a

trial within 90 days. On February 8, 1985, the State filed a Motion

for Stay Pending Appeal, or in. the Alternative, Application for

Issuance of Continued Custody Pursuant to FRAP 23(c). On March

26, 1985, the District Court extended the time for a new trial

an additional 60 days. The District Court had not ruled on Appellant's

Motion for Stay as of the filing of this Brief.

ARGUMENT I

ABSENT A DEMONSTRATION THAT:

MICHIGAN APPELLATE COURTS DE-

CLINED DISCRETIONARY REVIEW OF

APPELLEE'S CONSTITUTIONAL CLAIM

BASED ON THE MERITS, A FEDERAL

COURT MUST INVOKE THE DOCTRINE

OF WAINWRIGHT v SYKES, 433 US

72 (1977), TO PRECLUDE HABEAS

CORPUS REVIEW.

Appellee did not object at trial to the court's jury

instruction on intent. Such inaction bars Michigan appellate

———

pet

consideration absent a demonstration of "manifest injustice".

( Ss eee Ps:

GCR 1963, 516.2; People v Alcada, 396 Mich 99, 100; 237 NW2d 475

(1976); People v Hawley, 112 Mich App 784; 317 NW2d 564 (1982).

On direct appeal, Appellee did not claim that any portion

of the charge impermissibly shifted the prosecution's burden of proof.

People v Merlo, 23 Mich App 694 (1970). In Michigan, the failure to

raise, argue or brief an issue on initial appeal precludes subsequent

review. People v George, 375 Mich 262; 134 NW2d 222 (1965); People

v Tubbs, 64 Mich App 341, 347; 236 NW2d 77 (975).

Respondent finally raised his Sandstrom claim on delayed

appeal. The Michigan appellate courts responded with cryptic

refusals to exercise discretionary review. GCR 1963, 803.3;

853.1.

In these circumstances, the principles set forth in

Wainwright v Sykes, supra, bars federal habeas corpus consideration

of Petitioner's constitutional claim absent a demonstration of

"cause" for the procedural default and actual prejudice as a result

of the error.

In People v Wright, 408 Mich 1; 289 NW2d 1 (1980), the

Michigan Supreme Court ignored the absence of contemporaneous

objection in order to reach the merits of a Sandstrom-type error.

The court recognized this action as a departure from the general

rule but justified it on the grounds that reliance on defense

objection and case-by-case assessment of harm "...may inadequately

deter continued use of the instructions". Id., 408 Mich 30, n. 13

(emphasis added). Properly read, Wright represents a 1980 policy

Gecision to create a narrow exception to the state contemporaneous

objection rule for certain types of instructional errors. It does

not conclusively indicate that a 1975 Michigan appellate court, on

discretionary appeal, would have ignored GCR 1963, 516.2, to address

a pre-Sandstrom claim that presumed intent language in a jury

instruction was violative of due process.

Subsequent to its decision in Wright, the Michigan Supreme

Court held that Sandstrom applied retroactively to those cases where

-5-<

such instructional claims were pending on direct appeal as of

Sandstrom's decisional date. .People v Woods, 416 Mich 581, 621

(1983). Woods is consistent with Wright to the extent that the

absence of a contemporaneous objection at trial in such cases would

not preclude review. But neither decision suggests that cases tried

prior to Sandstrom were immune to then applicable caselaw and

procedural rules with regard to such errors.

In light of Woods,therefore, the issue is whether there

was a controlling state procedural rule at the time of Appellee's

default. Washington v Harris, 650 F2d 447, 451 (CA 2, 1981). It

Goes appear that Michigan appellate courts generally applied

GCR 1963, 516.2, to claims of impermissible burden shifting

eee,

instructons prior to Wright. People v Spalding, 42 Mich APp

492, 495-496; 202 NW2d 450 (1972) [alibi instructions]; People

v Williams #2, 45 Mich App 630, 640-641; 207 NW2a 180 (1973)

[use of deadly weapon implies malice]; Hawley, supra, 112 Mich

App at 787-788.

Appellant submits that Wright represents a decision to

relax Michigan's procedural requirements in order to establish a

principle of law for subsequent cases. Similarly, Woods stands

as a choice to waive contemporaneous objection rules for a

specific category of cases. But the policy factors that prompted

these decisions do not compel their extension of a matter of

constitutional law. In Hankerson v North Carolina, 432 US 233;

97 S Ct 2339; 53 L Ed 2d 306 (1977), this court addressed the

seeeee

a = a

argument that retroactive application of Mullaney v Wilber, 421 We, :

US 684; 95 S Ct 1881; 44 L Ed 2d 508 (1975), would impose an undue ay

burden on the administration of state judicial systems. Justice ve

White rejected this argument as follows:

"The states, if they wish, may be able to

insulate past convictions by enforcing

the normal and valid rule that failure

to object to a jury instruction is a

waiver of any claim of error."

432 US at 244, n. 8.

This position has been recently reaffirmed in Ensle v Isaac, 456 US.

107, 134, n. 43; 102 S Ct 1558; 71 L Ed 2d 783 (1982).

om —

Only if-the-stete-courts in this case ignored the procedural

default and yeached the merits of cs he kek A Ss constitutional claim

is federal habeas review appropriate. ~ County Court of Ulster County

v Alien, 442 US 140, 152-154; 99 S Ct 2213; 60 L Ed 2d 777 (1979);

Castaneda v Partida, 430 US 462, 465, n. 4; 97 § Ct 1272; Sl L Ed

24 -498-t1977). WheEé, as here, the reasons for the state court

decision are not explicit, a determination of reliance on procedural

default requires consideration of all relevant criteria. These

considerations include examination of similar cases, review of

the history of the case at bar, and analysis of the language employed

by the state court opinions. Ulster County Court, supra, 442 US 140

at 147-154.

Here, the Michigan Court of Appeals declined review due

to lack of "merit" in the grounds presented and the Michigan Supreme

oJo

Court thereafter refused relief “because the Court is not persuaded

that the questions presented should be reviewed by this Court". Both

orders appear to be standard forms for denial of delayed appeals

and does not reveal the basis for decision. See Raper v Mintzes,

706 F2d 161, 164 (CA 6, 1983). In context, therefore, the use of

the word "merit" in the Court of Appeals order is indicative of

only summary consideration of the merits necessitated by the "manifest

injustice" exception to the contemporaneous objection rule embodied

in GCR 1963, 516.2. See Williams v Abshire, 544 F Supp 315, 319

(ED Mich, 1982); see also Ziegler v Callahan, 659 F2d 254, 271,

n. 11 (CA 1, 1981); Murray v Superintendent, 651 F2d 451, 455, n. 6

(CA 6, 1981). This Court, however, has recognized that the existence

of state plain error rules will not preclude the applicability of

Wainwright, supra. Engle, supra, 456 US 125, n. 27; United States

v Frady, 456 US 152, 177-178; 102 S Ct 1584; 71 L Ed 24 816 (1982)

(Blackmun, J., concurring).

An ambiguous silence alone does not imply that the state

tribunals reached the merits of Appellant's claim. The Florida

courts were silent on the merits of the peitioner's confession

Claim in Wainwright, supra, 433 US 72, 85-86. Similarly, in Perini

v Bell, a companion case to Engle, supra, this Court enforced Ohio's

Procedural bar where petitioner had failed to raise his constitutional

claim of instructional error at trial or on direct appeal. Engle v

Isaac, 456 US at 124. ; a$

To hold otherwise would indulge a presumption that the

State courts have waived procedural requirement in every instant of

So 6th ‘ ‘ree r ~~

at 4 > at 2a afiié ‘A ‘2

/ Oo aghe Oe a * dg

, ¢

denial of discretionary review absent express and specific reliance

thereon asto the particular claims. Interpretation of inevitable

ambiguity in this fashion undercuts the state's ability to enforce

its procedural rules. For example, a state eatentent who has failed

to raise a trial objection withholds his or her claim on direct

appeal and thus effectively deprives the state court of the option

of either rejecting the claim on procedural grounds or addressing

the merits. The state defendant next exhausts the claim when the

courts subsequently refuse to exercise discretionary review. In

the federal habeas forum, the petitioner then asserts that procedural

Gefault was not the reason for denial of review. For the reasons

of comity, finality and societal cost set forth in Wainwright anc

Engle, this Court must not countenance such a result.

Given state enforcement of a valid procedural rule in

this case, the next step in the Wainwright inquiry is whether Appellan~

can demonstrate “cause” for the default.

Though it appears unlikely that his objection would have

Been successful in a 1967 Michigan trial court, see Woods, supra,

futility alone is no excuse. Engle v Isaac, supra, 456 US at 130.

Nor can Appellant claim lack of awareness. It is evident that

the constitutional foundation for his argument--that due process

requires the state to provide all elements of a crime beyond a

reasonable doubt--had been recognized prior to his trial. In re

Winship, supra; see also Morissette v United States, 342 US 246;

72 S Ct 240; 96 L Ed 24 288 (1952). Moreover, federal decisions

had found impermissible burden shifting effects in similar instruc-

tions. Mann v United States, 319 F2d 404, 409 (CA 5, 1963); Stump

v Bennett, 398 F2d 111 (CA 8), cert den, 393 US 1001 (1968).

Petitioner thus had the "tools to construct [his] constitutional

claim" at the time of his trial. Engle, at 133. Wainwright

forecloses habeas corpus review in these circumstances.

\ ARGUMENT II

EVEN IF VIOLATIVE OF SANDSTROM V

MONTANA, 442 US 510 (1979), THE

JURY INSTRUCTION AT ISSUE IN THIS

CASE WAS HARMLESS BEYOND A REASON-

ABLE DOUBT.

Introduction

In Connecticut v Johnson, us ; 103 S Ct 969;

74 LEG 4 823 (1983), eight justices of the U. S. Supreme Court

Givided as to whether a violation of Sandstrom could be harmless

constitutional error. Four justices opined that an affirmative

concession of intent by the defendant was necessary to render a

Sandstrom error harmless. Id., 74 L Ed 2d at 834. The alternative

plurality suggested that conclusive evidence of intent should

———— a,

preclude reversal despite a Sandstrom violation. Id., 74 L Ed 2d

at 842. The present case revisits this debate.

It. is Appellant's position that a harmless error analysis

of Sandstrom violations requires a careful assessment of the particular

trial context. This review entails a non-mechanistic consideration

-10-

e (

of the precise language used by the trial court, the emphasis given

to the instruction at issue, the issues actually contested by the

defense and the weight of-the prosecution's case. Undue emphasis

on any single factor distorts the reality of the estai. The focus

instead must remain on whether the procedural error "contributed to

the conviction". Chapman v California, 386 US 18, 23; 87 S Ct 824;

17 L Ed 2d 705 (1967), quoting Fahy v State of Connecticut, 375

US 85; 84 S Ct 229; 11 L Ed 24 171 (1963). Assessment of such

error mandates a consideration of the entire record. United States

v Hastings, US ; 103 S Ct 1974; 76 L Ed 24 96, 106-107,

n. 7 (1983).

A. Instructional Language a

f / that vy ana arto Sais All - f

a aa ak ae Lifundm ys 3

. 1A ha Marre helen wt

The mere use of the word “presume” in a jury instruction

on intent does not necessarily generate a Sandstrom violation. The

(problem in Sandstrom was that the trial court failed to explain or

lotherwise qualify the presumption. 61 L Ed 2d 46. Left to speculate,

a reasonable juror might have interpreted the instruction as either

conclusive on the issue of intent or, minimally, affecting a shift

of the burden of persuasion to the defendant.

The Sandstrom varient utilized in Connecticut v Johnson

was less ambiguous. The clarification, however, proceeded in the

wrong direction. The language used by the court explicitly told

the jury that the presumption was conclusive. Connecticut v Johnson,

supra, 74 L Ed 2d at 829. Such direction certainly increases the

likelihood of prejudicial impact on the fact finding process.

It is essential, therefore, to focus on the exact language

involved in a particular case. Coynty Court of Ulster County v Allen,

supra, 442 US at 157-158,-n. 16.

A number of lower courts have recognized that not all

Sandstrom type instructions embody the same potential for harm.

They have carefully examined the precise language for "rhetorically

inconsistent", Sandstrom, supra, 442 US at n. 7, qualifications or

explanations. Some have found that particular words eliminate the

constitutional violation as a threshold matter. Others telescoped

their linguistic analysis into a harmless error inquiry.

These courts properly recognize that a contextual inter-

pretation consistent with the principles of Cupp v Naughten, 414

US 141; 94 S Ct 396; 38 L Ed 2d 368 (1972), is essential to

evaluations of a claimed Sandstrom violation. Courts on review

must assume that jurors will endeavor to effectuate all the trial

judges' instructions in a common sense manner. Undue, legalistic

emphasis on narrow portions of the charge is artificially contrary

to this realistic assumption.

With these matters in mind, a review of the precise

language used in this case reveals a far less detrimental charge

than the one found erroneous in Sandstrom.

The instruction in the instant case rezds as follows:

"The law presumes that every person, unless

relieved by some disability as hereinafter

-12-—

- | f

*. a

_—- /

mentioned, contemplates and intends the

natural, ordinary, and usual consequences

of his own voluntary acts, unless the

contrary apnears from the evidence, and

1f aman is shown by the evidence, beyond

a reasonable doubt, to have killed another

by an act, the natural and ordinary con-

sequences of which would be to produce

death, then it will be presumed that death

of the deceased was designed by the slayer,

unless the facts and circumstances of the

killing, or the evidence, create a reasonable

doubt whether the killing was done purposely.

When a man assaults another with, or uses upon

another a deadly weapon, in such a manner that

the natural, ordinary, probable use of such

deadly weapon in such manner would be to take

life, the law presumes that such person so

assaulting intended to take life. A deadly

weapon has been defined as an instrument

reasonably calculated and likely to produce

death, or serious bodily injury from the

manner in which it is used. (T, 601-602)

The instructions have strong conditional clauses at the

heart of the instruction.

Absent a mandatory character, the question remains whether

the instruction in this case could have been interpreted as burden

shifting. This Court, however, has recognized a distinction between

- presumptions that simply shift the burden of production as opposed

to the ultimate burden of persuasion. County Court of Ulster County,

Supra, 442 US at 157, n. 16. In this case any doubts relevant to

the ultimate burden generated by the rule of thumb language should

have been resolved by the Court's specific reminder of the reasonable

doubt standard. cae a

le AML y tht y . i

eee ys Slants r :

Wwe < For these reasons, Appelisy submits that the instruction

at issue in this case did not violate Sandstrom. But, even if review

-13-

-< r

reveals the possibility of juror misinterpretation sufficient to

invoke Sandstrom, the above analysis illustrates the importance of

complete contextual = is helpful to define the

potential for prejudice./ Appellee

submits that such potential is

demonstrably less in this ca an appears in either Sandstrom or

Connecticut v Johnson.

B. Decree of Emphasis

“ --

Where constitutional error receives particular prominence_

at trial, the possibility of harmlessness diminishes. In Bollenbach

v United States, 326 US 607; 66 S Ct 402; 90 L Ed 350 (1946), for

example, the last thing a potentially deadlocked jury heard was an

unconstitutional presumption as an answer to their specific request

for guidance on the issue. Similarly, the "machine gun repetition”

of Griffin v California, inal violations was highly significant

to the nonharmless error determination in Chapman, supra, 386 US

at 27. , |

In this case, the alleged constitutional violation involves

ry single terse sentence buried in 12 pages of instructions that took

the court approximately fifty-four minutes to read. In these circum-

stances, there is no basis for a conclusion that a jury would

accord special significance to this comment.

Cc. Materiality of the Intent Issue

A plurality of this)Court in Connecticut v Johnson suggested

that a Sandstrom error might be harmless where the trial defense

o14<

f a

effectively concedes the issue of intent. To various degrees,

other courts have also focused the primary emphasis of their

harmless error inquiry on-whether intent was a disputed or material

issue in the case. See Conway v Anderson, 698 F2d 282, 285 (CA 6,

1983) (and cases cited therein); McGuinn v Crist, 657 F2d 1107,

1102 (CA 9, 1981); United States v Winter, 663 F2d 1120, 1144-1145

(CA 1, 1981).

A reasonable harmless error approach is to simply examine

the degree to which intent was a significant issue in the case.

Where intent, though technically in dispute, was clearly subsidiary

to another claim of defense, the likelihood of harm from a Sandstrom

instruction decreases dramatically. The contrary requires a

speculative assumption that a jury which rejects a hotly contested

defense claim will then base conviction on ambiguous instructional

language.

The case at bar is illustrative. Here the defense claimed

intoxication. Under then applicable Michigan law the defense had

to establish that, due to intoxication, Defendant either (1) was

not capable of knowing he was doing wrong, or (2) lacked the power

to resist the impulse to violate the law. People v Finley, 38 Mich

482, 483 (1878). People v Martin, 386 Mich 407, 418; 192 NW2d 215

(1972). Voluntary intoxication was not recognized as a defense

in the sense that it could negate general criminal intent. Id., at

484; People v Wright, 58 Mich App 735, 739; 228 NW2d 807 (1975). In

this case, the defense sought to demonstrate that Plaintiff killed

«1S<

in the heat of passion, and was unable to control his own emotions and

that because of his drunkenness, was thus unable to form the inte it

—_

to kill another person (T, p. 585-586, 589).

The Court specifically instructed the jury that:

"If on the other hand, you find the killing

was done during a state of intoxication such

that the Respondent was unable to form the

intent required to commit the crime and under

the instructions I have given you, then your

verdict shculd be that he is not guilty."

(tT, p. 605) .

The above was at the end of the Court's instructions to

the jury. This instruction clearly addresses the defense's sole

challenge to the prosecution's proofs as to general criminal intent.

(Appellee's contention that he was drunk and was thus unable to

form the requisite intent).

In this context, a Sandstrom instruction on intent would

have been virtually meaningless to a lay jury.

D. Weight of the Evidence

Closely related to the materiality of the intent issue is

the scope and extent of the proofs presented on this issue at trial.

Frequently, the reason for nondispute lies in an accurate assessment

of the prosecution's case.

~16=

a (

Appellant again does not assert that the weight of the

evidence is the sole test for harmless instructional error. It is

Simply an important step, -Holloway v Arkansas, 435 US 475, 488;

98 S Ct 1173; 55 L Ed 2d 426 (1978), in the assessment of "...the

probable impact of the [error] on the minds of an average jury."

Harrington v California, 395 US 250, 254; 89 S Ct 1726; 23 L Ed

2d 284 (1969). This step is especially crucial where the apparent

error rests on the mere possibility of juror misinterpretation.

In the instant case, even the District Court concluded |

that the proof in the instant case that Appellee murdered his -

estranged wife was strong (page 6 of District Court Opinion).

The District Court granted the Petition, however, and in support

cited several matters in the record it considered relevant.

The District Court first noted that Appellee had

testified that before going to see his wife, he had consumed eight

shots of whiskey with beer chasers (Trial Volume II, pages 457,

545-548). It should be noted, however, that the jury was specifi-

cally instructed that if they found that the killing was done during .

a state of intoxication such that Appellee was unable to perform

the intent required to commit the crime, then their verdict should

be not guilty (See Argument IIC above).

In its Opinion, the District Court also notes that Appellee's

counsel, in his closing argument, stated that: "I submit that he coul

not have formed the intent. He could not have premeditated this

killing." (Trial Volume II, page 564). It should be noted, however,

’

-17-

‘ xe

——s

‘

chat this statement is apparently based upon the erroneous nection

that he must have planned the killing before going to the beauty

shop. Under Michigan law, there must simply be a sufficient

opportunity for a "second look". This may entail a matter of

seconds or minutes, depending upon the totality of the circumstances

surrounding the killing. People v Tilley, 405 Mich 38 (1979). Thus,

it is net necessary that Appellee had formed the intent to kill his

estranged wife before he went to the beauty shop as his counsel

appears to suggest. It should also be noted that the argument of

defense counsel addresses the issue of premeditation and not the

intent to kill. Thus, he simply addresses the issue of premeditation

and deliberation which distinguishes murder in the first degree

from murder in the second degree and is defined independently of

malice (the general intent to kill his wife). People v Milton, 81

—

Pr aig eaten

Mich App 515 (1978); /®eople v Langworthy, 416 Mich 630 (1982). >

In further support of the District Court's decision to

grant habeas, the Court cites Appellee's claim that his wife's

Slapping and spitting on him caused him to go into a "rage" (Transcript

7olume II, page 464). This is, of course, disputed by the testimony -

: witnesses (T, 238-239, 266). However, rage does not show a lack 7

intent, but may merely indicate the basis for the intent. Appellee's

al counsel, in fact, apparently attempts to argue that the killing

justifiable and that it was provoked (Trial Volume II, page 381).

‘Michigan law, provocation does not negate intent. Instead, ~

ation may mitigate the degree of the offense to manslaughter.

Vv VanWick, 402 Mich 266 (1978); People v Langworthy, supra,

=18-

warn

p. 652. The argument by defense counsel that there was provocation

is therefore not relevant to the issue of intent. Assuming the

jury accepted the evidence regarding Provocation, it could normally

be used to mitigate the degree of defense to manslaughter. People

aes ™

v VanWick, supra. : ;.'

A review of the District Court's analysis reveals that the

portions of the record relied upon by the Court does not Support its

conclusion. The record instead reveals that general intent (malice)

was not in dispute. The defense instead relied upon lack of premedi-

tation, provocation and drunkenness.

Any reasonable juror who believed Appellee had shct the

dececent four times and was not legally incapacitated at the time

coulda not possibly conclude that he lacked the requisite general

intent. An ambiguous intent instruction pales to insignificance

where the evidence itself is conclusive.

~19-

CONCLUSION

WHEREFORE, Respondent-Appellant respectfully requests this

Court reverse the decision of the District Court and remand for

further proceedings.

Respectfully submitted,

FRANK J. KELLEY

Attorney General

Louis J. Caruso

Lk General

Fake Jr. 11879)

Assistant Attorney General

Business Address:

Corrections Division

Plaza One Building

401 S. Washington Square

Lansing, MI 48913

Telephone: (517) 373-3474

Dated: April 25, 1985

=30<

No. 86-1118

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHN MERLO,

Petitioner-Appellee,

-vs-

DAN BOLDEN,

Respondent-Appellant.

MOTION TO STRIKE APPELLANT'S ARGUMENT

II RELATING TO RETROACTIVITY AND/OR ARGUMENT

III, OR ALTERNATIVE RELIEF

NOW COMES John Merlo, Petitioner-Appeliee, by and through his

attorney, Frank Lawrence and states:

Strike Argument II and/or Argument III

1. On January 28, 1985, District Court Judge Stewart A. Newblatt

issued a conditional writ »f habeas corpus due to a burden shifting

Sandstrom jury instruction.

2. Appellant's arguments before the District Court were:

1.) There was a Wainwright v Sykes procedural default by appellee

2.) The jury instruction error was not a Sandstrom error, and 3.)

Even if the jury instruction at issue was unconstitutional, it was

harmless beyond a reasonable doubt.

r1-

3. Appellant appealed the decision of the District Court.

Notice of Appeal was filed with this Court on February 8, 1985.

ourt, case number 85-1145, appellant

> ) } *<ORe : cr 3 . :

On or adout September, 1955 this Court remanded the Wain-

} PLL

wright v Sykes procedural default issue to the Court below.

6. On remand, the only issue brief and argued was Wainwright

» 1985 the Court below held in favor of

appellee that there was in fact no Wainwright v Sykes procedural

default.

7. On Januray 23, 1986 the appellant filed a Notice of Appeal

with this Court regarding the District Court's remand decision on

Wainwright v Sykes procedural default. Appellee also appealed the

harmless error issue again, presumably because this Court did not

explicitly address that issue in its prior opinion remanding the

Cause. Appellee also raised an issue whether Sandstrom should be

applied retroactively in appellee's case.

9. The retroactivity issue was not presented to the District

Court in the past, in either appearance before that Court.

10. Appellant's Argument III does not argue the Wainwright v

Sykes procedural default issue. Appellant does not argue that the

Wainwright v Sykes bar has not been waived, in opposition to the

lower Courts holding. Instead, appellant argues that despite a

waiver of the Wainwright v Sykes bar, because appellee is on collateral

attack rather than direct appeal, United States v Frady, 456 US

152, 102 SCt 1584, 71 L Ed 2d 816 (1982) nevertheless requires

appellee to show cause and prejudice. This is a new issue that

could have been presented to the Court below but was not. The

Court below acted properly in never passing on such a new issue.

11. This Court should not pass upon the retroactivity

Argument II or Argument III since they were not raised in the Court

below and appellant is precluded from ever raising the issues again.

Bannert v American Can Company, 525 F2d 104, 111 (CA 6, 1975) citing

Hormel v Helvering, 312 US 522, 556, 61 S Ct 719, 85 L Ed 1037 (1941)

and Schneider v Electric Auto-Lite Company, 456 F2d 366, 375

20 AFL-C10 (Silvercup Bakeries), 529 F2d 509, 510 (CA 6, 1976);

Lyons v United States, 123 F2d 507 (CA 6, 1941); United States v

Oritz, 422 US 891, 898, 95 S Ct 2585, 45 L Ed 2d 623 (1975).

Alternative Relief

12. If for some unforseen reason this Court does not strike

the retroactivity Argument II, appellee requests that this Court

allow appellee to submit a supplemental brief on that issue.

Wherefore, appellee respectfully requests this Court to strike

appellant's Argument II on retroactivity and/or Argument III.

Respectfully submitted,

rank Lawrerice’ (P36839)

Attorney for Petitioner-Appellee

Dated: May S44, 1986

Frank Lawrence, P.C,

10811 Farmington Road

Livonia, Michigan 48150

- (313) 525-5300 -3-

STATE OF MICHIGAN )

COUNTY OF IA cHAM ) aa

On this S4h day of May, 1986 before me, the undersigned, a

Notary Public in and for said County, personally came the above-

named Frank Lawrence, who subscribed the foregoing Motion to Strike,

who being by me duly sworn, says that he had read the said Motion

to Strike and knows the contents thereof, and that the same in true

of his own knowledge, except as to those matters therein stated to

be upon his information and belief, and as to those matters he be-

lieves them to be true.

LAK PTY, ZH Lau Areeeg)

WAKE F LowseNM€ Notary Public

InucHae County, Michigan

My Commission Expires: 3-€-s§

UNITED STATES COURT OF APPEALS

SIXTH CIRCUIT

86-1118

JOHN MERLO,

Petitioner-Appellee,

ayge

DAN BOLDEN,

Respondent-Appellant.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

APPELLANT'S BRIEF

MARGARET G. HORENSTEIN (P30263)

Assistant Prosecuting Attorney

Oakland County, Michigan

1200 North Telegraph Road

Pontiac, Michigan 48053

(313) 858-0685

UNITED STATES COURT OF APPEALS

SIXTH CIRCUIT

No. 86-1116

JOHN MERLO,

Plaintittft-Appellee,

-Vs-

DAN BOLDEN,

De fendant-Appellant.

APPELLANT'S BRIEF

L. BROOKS PATTERSON

PROSECUTING ATTORNEY

OAKLAND COUNTY

ROBERT C. WILLIAMS

CHIEF, APPELLATE DIVISION

BY: MARGARET G. HORENSTEIN (P30263)

Assistant Prosecuting Attorney

1200 North Telegraph Road

Pontiac, Michigan 48053

(313) 858-0685

STATEMENT OF

STATEMENT

ARGUMENT:

neem CATED . 2 « « ©

ISSUES PRESENTED ‘ . :

FAGSG 4 ¢ 6 © & 6 8 ee :

LTHOUGH VIOLATIVE OF SAND

MONTANA, 442 US 510 (1979)

INSTRUCTION WAS HARMLESS BEY

REASONABLE DOUBT IN THE INSTAN

SANDSTROM SHOULD BE APPLIED RETF

ACTIVELY TO JUDGMENTS OF CCNVICT

THAT WERE FINAL WHEN SANDSTROM W

DECIDED . « 2« © « «

THE WAINWRIGHT V SYKES BAR SHOUL

APPLY TO THIS CASE

~~ v -

“a

eaece

Ac.

ee Ok ee ee

O-

—

a» \/s¥

“AL

INDEX TO AUTHORITIES CiTED

CASES: PAGE

BIHN V UNITED STATES, 328 US 633, 66 S Ct

divé, 90 & BG 1465 (1946). . 2. 2 2 2 ew we we eo ew ew eo 20

BURTON V BERGMAN, 649 F2d 428 (CA 6, 1981), vacated

and remanded on other grounds, 456 US 953,

102 S&S Ct 2026, 72 L EG 2c 478 (1982) . . . « 2 « 2, 12

CHAPMAN V CALIFORNIA, 386 US 18, 87 S Ct 824,

A7 & BG 2G 705 (1967). «. «we wee eevee eee es Aj

CONNECTICUT V JOHNSON, 460 US 73, 103 S Ct 969,

7a i ae oe Ree CRORES) bo kk a ek ee ees es ee 1

CONWAY V ANDERSON, 698 F2Gc 282 (CA 6, 1983). ..... 2, 11, 12

COUNTY OF ULSTER V ALLEN, 442 US 104, 99 S Ct

it i ee a Ba ae: 3. | rr

CUPP V NAUGHTEN, 414 US 141, 94 S Ct 396, 38

& Be 26 368 (3973) 2 cs wea e ese we wees ee a 7

DIETZ VY SOLEM, 640 F2d 126 (CA 8, 1981)... «© «© «© «© «© © ee 12

ENGLE V ISAAC, 456 US 107, 102 S Ct 1558,

42 G& BG 24 783 (2982). 2. ss we ee eee sanvvnene 2h

FRANCIS V FRANKLIN, 471 US » 408 & Ce ’

Som me om S68 GANGS) n 4 8 te tk te cw ate. Ba OO

GUTHRIE V WARDEN, MARYLAND PENITENTIARY, 683

Tan Gane Vee Gp 2eees 6% KS Se 8 kw kk ek tk Se we OO

HANKERSON V NORTH CAROLINA, 432 US 233, 97 S Ct

2339, 33 & BG 2G 306 (1977). « we we ee see vnsnes ki,

IN_RE WINSHIP, 39° US 358, 90 S Ct 1068, 25

Be Be 26° 368 (1976) . 2 56 2 a tt tl tl wo okey 39, 21

IVAN V CITY OF NEW YORK, 407 US 203, 92 S Ct

Aueay Ga & Gm GG GED CE9TA). cw is ste can ansness«a &8

JOHNSON V NEW JERSEY, 384 US 719, 86 S Ct 1771,

au & We oa 802 (2066). wc ccc ecw een ece ns 6

LINKLETTER V WALKER, 381 US 618, 85 S Ct 1731,

Tee 2 eee. ee ee eres -

LOGAN V ABSHIRE, 778 F2d 283 (CA 6, 1985). ......e26- 5

McBEE V GRANT, 763 F2d 811 (CA 6, 1985). . 2. . 2. 2. «© «© ew © «© 22

= $i «

ee |

CASES (Cont'd):

MULLANEY V WILBUR, 421 US 684,

PEOPLE V

FINLEY,

PEOPLE V

MARTIN,

PEOPLE V

MERLO,

PEOPLE V

WOODS ,

PEOPLE V

WRIGHT,

PHILLIPS

V ROSE,

RAMIREZ V JONES,

REED V ROSS,

SANDSTROM V MCNTANA,

38 Mich 482 (

386 Mich 407

23 Mich App 694

416 Mich 581 (

58 Mich App 7

690 F2d 79 (CA 6,

683 F2dad 712 (CA 2,

2450,

STOVALL V DENNO,

TEHAN V UNITED STATES ex rel SHOTT,

os & BG 2d 39

442 US 510,

1878).

(1972

1962) .

7> 3 Ct 1881,

44 L Ed 2d 508 (1975). ° .

(1970)

ao 429735).

(1979)

1982)

1982).

468 US , 104 § Ct 2901,

2 & Ea 24 1 (1964). °

39 § Ct

388 US 293, 87 S Ct 1967,

18 L Ee 2d 1199 (196 ce

as 3

UNITED STATES V FRADY,

86 S Ct 459,

UNITED STATES V JOHNSON,

Ct 1584, 71 L Ed 2d

UNITED STATES V SOBELL,

Ct 2479, 73 L Ed 2d

UNITED STATES V SPIEGEL,

WAINWRIGHT V SYKES, 433 US 73,

WILLIAMS

o2 & Ea 2d 594 (1977

V ENGLE, 683 F2d 152

WILLIAMS

V UNITED STATES,

MCLA 750.

1148,

316

28 L Ed 2d 388

314 F2d 314

A> L Ea 2a 453

386 US 406,

(1966)

456 US 152, 102 §

816 (19382)

457 US 537,

102 S

202 (1982)

604 F2d 961

(CA 6,

401 US 646,

(CA 2,

(CA 3, 29

97 $ Ce 2497,

1982)

91 $ Ct

tans al's

- ii(a)

1963)

14,

—

NITED STATES COURT OF A>?P” S

FOR THE SIXTH CIRCUI

FACT SHEET FOR STATE HABEAS CORPUS APPEALS (§2254)

Case Name and Number: JOHN MERLO V DAN BOLDEN #86-1118

Person Reporting: Resvondent-Apoellant, Dan Bolden

1. Has this conviction(s) been previously litigated in the

U. S. Courts? (x) Yes ( ) No. I£ so, give brief history.

State appealed grant of habeas corpus in case No. 85-1145. This

Court remanded to district court for consideration of procedural

default.

2. Constitutional violation claims: name constitutional

provision and briefly recite facts asserted as violative.

&@- Due process clause of Fourteenth Amendment is claimed to

have been violated by burden-shifting instruction -

issue - does harmless error doctrine apply?

G«

3. Have remedies been exhausted as to claims listed above?

a. Yes

ms . .

GC.

4. Are there fact disputes concerning claims? () Yes

kx No. If so, were they resolved by the District Court?

a. At hearing?

b. By review of state court record?

c. By reference to Magistrate?

i d. Neither, i.e., not resolved.

S. Does the State argue that any constitutional violation

was found harmless beyond reasonable doubt. I£ so,

briefly state why and cite to appendix pages claimed

as proof.

Yes, harmless error is argued because the evidence of intent

is conclusive. Consequently, an implied malice instruction

could not affect the jury verdict.

FORM 6CA-57

5/81

STATEMENT OF ISSUES PRESENTED

I. WHETHER, ALTHOUGH VIOLATIVE OF SANDSTROM V MONTANA,

442 US 510 (1979),

THE JURY INSTRUCTION WAS HARMLESS BEYOND A

REASONABLE DOUBT IN THE INSTANT CASE?

Respondent contends the answer should be, "Yes."

Petitioner contends the answer is, "No."

II. WHETHER SANDSTROM SHOULD BE APPLIED RETROACTIVELY

TO JUDGMENTS OF CONVICTION THAT WERE FINAL WHEN SANDSTROM WAS

DECIDED?

Respondent contends the answer should be, "Yes."

Petitioner contends the answer is, "No."

III. WHETHER THE WAINWRIGHT V SYKES BAR SHOULD APPLY

TO THIS CASE?

Respondent contends the answer should be, "Yes."

Petitioner contends the answer is, "No."

- iii -

STATEMENT OF FACTS

Petitioner Merlo was convicted in thie wouet of first-

degree murder, MCLA 750.316, in 1967 by a jury trial. Petitioner

was sentenced to mandatory life imprisonment and has been incear-

cerated since his conviction. The Michigan Court cf Appeals

affirmed his conviction in an opinion which found the evidence of

premeditated murder to be overwhelming. People v Merlo, 23 Mich

App 694, 703 (1970). The Michigan Supreme Court CGenied Merlo's

delayed application for leave to appeal on October 27, 1975. A

1977 application for writ of habeas corpus was denied. The jury

instruction now in question was not challenged in any of these

proceedings.

In 1982, Petitioner first raised the Sandstrom viola-

tion in a delayed motion for new trial. The motion was denied.

In mid-1983, the Michigan Court of Appeals denied his delayed

application for leave to appeal. The Michigan Supreme Court

denied leave in late 1983.

The United States District Court first granted Peti-

tioner's writ of habeas corpus in January, 1985. The district

court found the jury instruction violated Sandstrom v Montana,

442 US 510, 99 S Ct 2450, 61 L Ed 2d 39 (1979), and that this

error was not harmless. On appeal, this Court, without ruling on

harmless error, remanded to the district court for consideration

of procedural default. The district court found the state courts

had not relied on Petitioner's failure to object to preclude

state court appellate review, and that Wainwright v Sykes, 433 US

73, 97 S Ct 2497, 53 L Ed 24 594 (1977), did not apply. The

mn Ie =

Gistrict court again granted Petitioner's application for writ of

habeas corpus. ‘The Respondent appeals.

At trial, Petitioner Merlo did not contest the fact

that he shot his wife four times in the beauty shop where she was

working. As defense counsel stated in a pretrial motion, "The

facts are such that the shooting is hard to be denied, and the

defense must be that there was no premeditation." (T, 99)

Rose Marie Schmidt, a beauty shop customer, saw Peti-

tioner Merlo arrive. (T, 111) Merlo and his estranged wife,

Sharon, a hairdresser, went into the furnace room. (T, 113) The

doors to the furnace room were open. Merlo and his wife were

back there about five minutes or so. Rose Marie was five feet

from the open doors but did not hear any sounds. (T, 114) Sharon

came out and went to work on another customer. Merlo came out

and shot Sharon. He fired two of the shots after Sharon was on

the floor. (T, 115) Merlo walked out of the shop. His gait was

normal. (T, 115)

Another customer, Diane Brennan, also saw Merlo walk

into the shop and go into the back room with his wife. (T, 160)

Merlo and the victim were very quiet. (T, 164) Diane tried to

listen to their conversation. (T, 181) She saw Merlo shoot his

wife. Merlo was three to four feet from the victim, used a

chrome pistol, and never said a word. (T, 166)

Andrea Pojarski was a hairdresser in the shop. (T, 188)

She saw Merlo come in, she exchanged casual greetings with him.

(T, 189) Andrea heard Sharon ask Petitioner, “What are you doing

here? Why don't you go home?" (T, 190) Andrea saw Sharon come

about three weeks before the shooting. (T, 258)

Dr. Richard E. Oleson testified that Sharon Merlo had

been shot four times. One shot struck the midline front of her

skull. It severed the brain stem, causing instant cCeath. (T,

151-152) One shot struck at the midline base of the neck at the

upper end of the breast bone. It passed through the large artery

from the heart and through the windpipe. (T, 151-152) Either of

these shots would have been fatal. (T, 153) Two more shots

struck in the front abdomen. There were corresponding exit

wounds. (T, 151) Merlo was in the army for three years. (T, 419)

About three weeks after the murder, Merlo was arrested

in Philadelphia by a bank detective when Merlo attempted to cash

a forged check. Merlo was carryinc the murder weapon when he was

arrested. (T, 303, 315)

Merlo confessed to the Philadeiphia authorities that he

had shot his wife four times. He said she was working on a

lady's hair when he fired. (T, 343-345)

Diane Wilshire, Sharon's sister, testified that Merlo

hit Sharon once and broke her glasses. Merlo was not barred from

the house (where Sharon lived with her parents). Merlo always

left the house quickly so he could avoid being served with the

divorce papers. (T, 414) Merlo visited Diane in the hospital and

showed her his gun. He told her he was not afraid of anyone. (T,

415)

Petitioner Merlo testified that prior to the murder he

saw his wife's car parked at her boyfriend's apartment. Merlo.

- vii -

smashed up the dashboare of his wife's car and pulled out the

spark plug wires. (T, 451) He said he used a .38 caliber gun to

smash the gauges and the bullet flew out ot the gun. He did not

leave it on the seat. (T, 515) The day of the murder, he had

eight shots and beers in an hour and went straight to the beauty

shop. (T, 457) During his talk with Sharon in the back rocm of

the beaut:’ shop, she called him a punk and spit in his face. It

enraged him so he shot her. (T, 463-464) The boyfriend was part

ot it. (T, 538)

Several months after the murder, Petitioner telephoned

the victim's mother. He said, "I'm not sorry I did it. I warned

her ahead of time. I left a bullet in the front seat. I haven't

shed a tear over it." (T, 553-554)

Additional facts are stated in the body of the brief.

- viii -

ARGUMENT

I. ALTHOUGH VIOLATIVE OF SANDSTROM V MONTANA, 442 US

510 (1979), THE JURY INSTRUCTION WAS HARMLESS BEYOND A REASONASLE

DOUBT IN THE INSTANT CASE.

In Connecticut v Johnson, 460 US 73, 103 S Ct $69, 74 L

EG 2d §23 (1983), the Court divided equally on the question cf 4

Sancstrom violation ever being harmless error. Four justices

held that an affirmative concession of intent by the defendant

was necessary to render a Sandstrom violation harmless. Justice

Stevens never reached the issue of harmless error. He concurred

in the opinion of the first four justices because it allowed the

opinion of the Connecticut Supreme Court to stand. Four other

justices held that conclusive evidence of intent can precluce

reversal despite a Sandstrom iolation.

The plurality stated that if a Sandstrom violation

touches a disputed element of the crime charged, it renders the

evidence on the issue irrelevant "because the jury may have

relied upon the presumption rather than upon the evidence."

Connecticut v Johnson, 74 L Ed 2d at 833. The dissent stated

thac the proper inquiry was not “whether the presumption was

unnecessary to the jury verdict ‘in the sense that the evidence

was sufficient for a properly instructed jury to find that

respondent acted with the requisite intent." . . . The proper

inguiry is ‘whether the evidence was so dispositive of intent

that a reviewing court can say -syond a reasonable doubt that the

jury would have found it unnecessary to rely on the presumption.'"

Connecticut v Johnson, 74 L Ed 2d at 841, n 5.

The approach used by the dissent is in accord with the

approach usec by this Court, i.e., a Sandstrom violation is

harmless error only if no rational juror could have concludéeé

from the evidence of record that the defendant lacked the recui-

site intent. Conway v Anderson, 698 F2d 282, 285 (CA 6, 1983)

In the instant case, the opinion cf the district court

which deals with harmless error does not show any evaluation of

the evidence introduced by the prosecutor. There is no menticr

_§ ee

of any evidence that goes to intent. Instead, there is a recita-

tion of Petitioner Merlo's defense. The district court's recita-

tion includes statements by Merlo's trial lawyer and statements

from Merlo's testimony. By ignoring the evidence of intent, the

Gistrict court improperly applied the harmless error analysis

mandated by Conway v Anderson, supra.

Respondent knows that it is more difficult to have a

Sandstrom violation held harmless in cases where the defense

interposed goes to the element of intent. Burton v Bercman, 649

F2d 428 (CA 6, 1981), vacated and remanded on other grounds, 456

US 953, 102 S Ct 2026, 72 L Ed 2d 478 (1982). Rather than the

approach used by the district court, a thorough examination of

the evidence of intent in the instant case is necessary.

The victim, Sharon Merlo, was a hairdresser in a beauty

shop in Farmington Township, Michigan. On the eornias of January

6, 1967, Sharon Merlo, four customers, the beauty shop owner,

another hairdresser, and the young son of one of the customers

were in the shop. Petitioner, John Merlo, walked into the shop.

When the owner asked him how he was, he said he was fine. He

motioned to Sharon to go into the back room with him. The back

room had two doors; both remained open while Petitioner was in

the shop.

Sharon folicwed Petitioner into the room, came back out

shortly after that, lit a cigarette, and returned to the roon.

Petitioner and Sharon were in the room about five minutes or so.

During this time, they remainec close to the open doors. While

they were in there, the owner went in the room twice anc the

other hairdresser went in once. Neither of these two women nor

any of the customers ever heard any loud talking or shouting. No

one heard any slaps.

Sharon came out of the back room, went to her customer,

got behind the customer's chair, and put her hand on the custom-

er's shoulder. By this time, Petitioner had walked out of the

back room and was standing two feet in front of the customer's

chair. His arm was extended before him. He fired four shots in

all, two of them after Sharon was either on the floor or slumping

down.

Petitioner walked out of the shop, drove his rented car.

to Cleveland where he abandoned it. (T, 345) He took a train to

New York, changed trains, and arrived in Philadelphia less than

24 hours after shooting his wife. (T, 345) He checked into an

inexpensive hotel. (T, 345) He was arrested about three weeks

later in a Philadelphia bank while attempting to cash a forged

check. (The reason for his arrest was not put before the jury.)

Petitioner confessed to the Philadelphia police that he shot his

wife four times. He was carrying the murder weapon when he was

arrested.

About two months before the murder, Sharon had filed

for divorce. After this, Petitioner saw his wife's car parked

near her boyfriend's apartment. He smashed up the gauges on the

Gashboard and pulled out the spark plug wires. He left a 38°

caliber bullet on the front seat as a warning. Petitioner testi-

fied he always carried ten shells for his .38 in each pocket. (T,514

Also prior to the murder, Petitioner visited Sharon's

sister, who was in the hespital after giving birth. Petitioner

showed her his gun and said he was not afraid of anyone.

Petitioner had moved back to his hometown of Niles,

Ohio, after his wife filed for divorce. (T, 454) He sold the .38

in Niles and bought a .32. (T, 515) He rented a car, drove to

Michigan after work on Friday evening, January 5, 1967. (T, 456)

He stayed in a motel that night. (T, 456) Sometime between 10:30

and 11:00 the next morning, Petitioner shot his wife four times

with the .32.

One entry wound was at the midline front of her skull.

It severed the brain stem, and caused instant death. A second

entry would was at the midline base of the neck at the upper end

of the breast bone. It passed through the large artery from the

heart and through the windpipe. This shot would have been fatal

by itself. There were two entry wounds to the front of the

abdomen with corresponding exit wounds. Petitioner was familiar

wtih guns -- he was in the army for three years.

Petitioner testified he had consumed eight shots and

beers before going into the beauty shop. (There was no testimony

that he smelled of alcohol. There was no testimony that he

staggered. His walk was described as normal.) Petitioner testi-

fied that he and his wife argued in the back room, she slapped

him and spit in his face. (No one heard any loud talking or

shouting. No hairdryers were going. (T, 120) There’ was no

testimony that anyone heard any slaps. No one saw any marks on

Petiticner's face. No one saw any moisture on Petitioner's

face.)

Petitioner testified that when his wife callec him a

punk and spit in his face, it enraged him so he shot her. (Tes-

timony showed that when Petitioner caught his wife anc her boy-

friend necking in a car, Petitioner stuck his head in the wincow

to inquire how they were doing - T, 436 - and if they were having

fun - T, 506.) Petitioner never said the amount of alcohol he

consumed in any way affected his ability to reason. (It appar-

ently did not affect his flight to Philadelphia, either.)

Petitioner's confession to the Philadelphia authorities

did not include any reference to arguing or to being slapped or

spit upon.

These are the facts that were presented to the jury.

Respondent contends that no rational juror could have concluded

that Petitioner lacked the requisite intent to murder. The

San¥strom violation was harmless beyond a reasonable doubt.

This Court recently found a Sandstrom violation to be

harmless beyond a reasonable doubt in Logan v Abshire, 778 F2d

283 (CA 6, 1985). The defendant was convicted of armed robbery

and first-degree murder for the fatal shooting of the store

owner. His defense was intoxication. A jury instruction which

violated Sandstrom was given at trial.

This Court reviewed all the evidence. Defendant had

made a confession to authorities where he admitted planning the

robbery. This confession included his statement that he was not

uncer the influence of drugs or alcohol. This Court noted that

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the case had been well tried and the evidence before the jury

proved a planned anc deliberate robbery during which the owner

was fatally shot. This Court held the Sandstrom violation harm-

less because no rational juror could have concluded that the

Gefendant lacked the requisite intent.

The same finding should be made in the instant case.

This case was well tried. The evidence shows this was a planned,

Geliberate murder. Petitioner had a .38 caliber pistol. He

showed that pistol to his wife's sister. He left a .38 caliber

bullet as a warning on his wife's car seat. Then he moved to

Ohio, sold the .38, and he bought a .32. He rented a car and

drove from Niles, Ohio to Detroit, Michigan after work on Friday

evening. He shot his wife four times the next morning and eluded

omitted any and all reference to what he would offer at trial as

his defense. The testimony of the eyewitnesses did not corrobo-

rate a single point of Petitioner's defense. No rational juror

could have concluded that Petitioner lacked a premeditated and

deliberated intent to kill. The Sandstrom violation committed at

this trial was harmless beyond a reasonable doubt.

In Francis v Franklin, 471 US > 2068 8B Ct » 88S &

Ed 2d 344 (1985), the Court found an instruction which shifteé

the burden of proof to the defendant to be violative of

Sandstrom. The court below had found that the Sandstrom

violation could not have been harmless error. The defense was

accident, and the evidence of intent was not overwhelming. The

Court affirmed the Court of Appeals on the harmless error

question, noting that “(t]he primary task of this Court upon

review of a harmless errcr determination by the Court of Appeals

is to ensure that the court undertook a thorough inquiry and made

clear the basis of its decision.” Francis v Franklin, 85 L Eé 2¢

at 361, n 10. It does not appear from the district court's

opinion that the court "undertook a thorough incuiry” into the

evidence.

In addition to a thorough review of the evicence of

intent, Respondent contends that the record should be examined in

other respects as well. Whatever instructions were given to the

jury should be reviewed and the Sandstrom instruction must be

viewed in the context of all the instructions that were civen.

Cupp v Naughten, 414 US 141, 94 S Ct 396, 38 L Ed 2é€ 368 (1973).

The instruction given in the instant case which was

found to violate Sancstrom is:

The law presumes that every person, unless

re.ieved by some disability as hereinafter

mentioned, contemplates and intends the natural,

ordinary, and usual consequences of his own

voluntary acts, unless the contrary appears from

the evidence, and if a man is shown by the

evidence, beyond a reasonable doubt, to have

killed another by an act, the natural and ordi-

nary consequences of which would be tc produce

death, then it will be presumec that death of th

deceased was designed by the slayer, unless the

facts and circumstances of the killing, or the

evidence, create a reasonable doubt whether the

killing was done purposely. When a man assaults

another with, or uses upon another a deadly

weapon, in such a manner that the natural,

ordinary, probable use of such deadly weapon in

such manner would be to take life, the law

presumes that such person so assaulting intended

to take life. A deadly weapon has been defined

as an instrument reasonably calculated and likely

to produce death, or serious bodily injury from

the manner in which it is used. (T, 601-602)

contends these underlined portions are rhetorically inconsistent

with the constitutionally infirm portions of the instruction.

Sandstrom, 62 L Ed at 47, n 2. These conditional clauses auger

in favor of finding the Sandstrom violation to be hermless error

beyond a reasonable doubt.

A reasonable harmless error wana is simply to

examine the degree to which intent was a significant issue in

that case. Where intent, though technically in dispute, was

clearly subsidiary to another claim of defense, the likelihood of

harm from a Sandstrom instruction decreases dramatically. The

omtrary requires a speculative assumption that a jury which

rejects a hotly contested defense claim will then base conviction

om ambiguous instructional language.

In the instant case, one of the claimed defenses was

intoxication. Under then applicable Michigan law the defense had

to establish that, due to intoxication, the defendant either (1)

was not capable of knowing he was doing wrong, or (2) lacked the

power to resist the impulse to violate the law. People v Finley,

38 Mich 482, 483 (1878); People v Martin, 386 Mich 407, 418

(1972). Voluntary intoxication was not recognized as a defense

in the sense that it could negate general criminal intent.

Martin, supra, 484; People v Wright, 58 Mich App 735, 739 (1975).

In this case, the defense sought to demonstrate that Petitioner

killed in the heat of passion, and was unable to control his

emotions and that because of his drunkenness, was unable to form

the intent to kill another person. (T, 585-586, 589)

The trial court instructed the jury on provocation and

explained how provocation reduces murder to manslaughter. (T,

599-600) The trial court instructed the jury on intoxication anced

its potential to preclude the formation of the necessary intent.

(T, 600-601) Additionally, the trial court specifically in-

structed the jury:

If on the cther hand, you find the killing

was done during a state of intoxication such that

the Respondent was unable to form the intent

required to commit the crime and under the

instructions I have given you, then your verdict

should be that he is not guilty. (T, 605)

This instruction was given at the end of the trial

court's instructions to the jury. It clearly addressed the

defense's challenge to the prosecution's proofs of the requisite

intent. These instructions on the Petitioner's defense also

weigh in favor of finding the Sandstrom error harmless beyond a

reasonable doubt.

The instruction containing the Sandstrom violation

should be considered along with the trial court's instructions

defining first and second degree murder. After giving the common

law definition of murder, the trial judge stated:

If you come to the conclusion that the Respondent

is guilty of murder, as I have defined it, it

will be your duty to determine whether he is

guilty of murder in the first or murder in the

second degree. The difference between murder in

the first degree and murder in the second degree

is this: Murder in the first degree is a killing

done wilfully and with premeditation, while in

murder in the second degree the element of

premeditation is absent. To convict the Respon-

dent of murder in the first degree, it must

appear that the killing was wilful and premedi-

tated. It is not necessary that any definite

period of time should have elapsed between the

forming of such intention and the shooting which

killed deceased, provided the shooting was

premeditated and the Respondent acted wilfully.

On the other hand, if the killing was done

under a sudden impulse, without premeditation or

previously formed intention, the offense would be

murder in the second degree. As I have stated

before, the difference between the two offenses

is that, in murder in the first degree the

element of premeditation is present, while in

murder in the second degree it is not. T,

597-598)

The jury was instructed that the burden of proof was cn

the prosecutor to establish guilt beyond a reasonable dcubt. (T,

596) The jury was also instructed to consider the instructions

as a whole and not to pick out one instruction and disregard the

rest. Although these other instructions and the conditional

clauses in the Sandstrom instruction may not "cure" the Sandstrom

violation, Phillips v Rose, 690 F2d 79, 81 (CA 6, 1982), they do

cut in favor of finding the violation to be harmless error beyond

a reasonable doubt.

In Francis v Franklin, supra, Justice Powell wrote a

dissenting opinion. Justice Rehnquist, with whom the Chief

Justice and Justice O'Connor joined, also dissented. Both dis-

sents examined the challenged instruction in the context of all

the instructions as a whole. Both dissents found that the other

instructions prevented the challenged instruction from impermis-

sibly ahifting the burden of proof to the defendant. The dis-

senting opinions held the challenged instruction consequently did

not violate Sandstrom v Montana, supra.

In the instant case, the type of analysis used in the

dissenting opinions of Francis v Franklin, supra, applied to the

whole jury instruction in the instant case, will result in a

finding that the Sandstrom violation was harmless beyond a rea-

sonable doubt.

The type of consideration necessary for a reviewing

court to employ on a claim of harmless constitutional error is

best set forth in Williams v Engle, 683 F2d 152, 153 (CA 6,

1982):

Whether constitutional error in a given case

is harmless beyond a reasonable doubt, within the

definition of that phrase under Chapman v.

California, 386 U.S. 18, 23-24, 87 S.Ct. 824,

827-828, 17 L.Ed.2d 705 (1967), is not a question

of mechanical application of sterile legal

principles, but a sensitive judicial determina-

tion made upon a review of the record in the

trial court considered as a whole, and in the

light of the realities of the trial. The deci-

sion must be honestly made, with eyes open and

with a full and mature appreciation of all of the

circumstances which go to bear upon the ultimate

verdict which was reached by the jury.

The district court's opinion does not show a thorough

inquiry into the facts of the instant case or a careful assess-

ment of the jury instructions as a whole. The district court

instead relied singly upon Petitioner's asserted defense. The

focus must remain on whether any rational juror could have con-

cluded that the defendant lacked the requisite premeditated,

deliberated intent to kill. Chapman v California, 386 US 18,

23-24, 87 S Ct 824, 17 L Ed 2d 705 (1967); Conway v Anderson,

supra. Given the overwhelming evidence of Petitioner's intent,

the Sandstrom violation was harmless beyond a reasonable doubt.

The district court decision should be reversed.

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2 SANDSTROM SHOULD BE APPLIED RETROACTIVELY TO

JUDGMENTS OF CONVICTION THAT WERE FINAL WHEN SANDSTROM WAS

DECIDED.

Petitioner was convicted of first-degree murder in

1967. One dozen years later, in 1979, the Court decided Sand-

strom. This Circuit has given Sandstrom full retrcactive effect.

‘Burton v Bergman, 649 F2d 428 (CA §, 1981), vacated and remanded

Gn Otner grouncs, 456 US 953, 102 S Ct 2026, 72 L E@ 24 478

(1982); Conway v Anderson, 698 F2d 282 (CA 6, 1983). The

district court in the instant case applied Sandstrom retroac-

tively.

Other circuits which have addressed this issue have

also applied Sandstrom retroactively. Ramirez v Jones, 683 F2¢4

7i2, 717 (CA 2, 1982); Guthrie v Warden, Maryland Penitentiary,

683 F2d 820, 823, n 3 (CA 4, 1982); Dietz v Solem, 640 F2d 126,

130 (CA 8, 1981).

The Constitution does not compel or prohibit retroac-

tive application of new constitutional rules. Linkletter

Walker, 381 US 618, 629; 85 S Ct 1731; 14 L Ed 2d 601 (1965).

The determination involves a balancing of three factors: 1) the

purpose to be served by the new rule, 2) the extent of reliance

on the old rule, and 3) the effect on the administration of

justice of retroactive application of the new rule. Stovall v

Denno, 388 US 293, 297, 87 S Ct 1967, 18 L Ed 2d 1199 (1967).

Although Sandstrom relied on prior cases which analyzed presump-

tions in light of the reasonable doubt standard, it represents

neither a clean break with the past nor application of settled

precedent to a new factual situation.?}

In Sandstrom, the Court found particular language in a

jury instruction violated due process because there was a pos-

sibility that a reasonable juror could have considered the

instruction conclusive or burden-shifting. The goal of Sandstrom

was to eliminate even the remote chance of juror misrepresenta-

tion. In effect, Sandstrom represents a prophylactic rule

designed to protect the reasonable doubt standard.

The Court has recognized that the extent to which the

purposes of a4 new constitutional cuts require its retroactive

application are “necessarily a matter of degree". Johnson v New

Jersey, 384 US 719, 729, 86 S Ct 1771, 16 L Ed 2a 882 (1966).

Consequently, retroactivity is only appropriate where the former

practice "presents substantial likelihood that the results of a

number of those trials were factually incorrect", Williams v

United States, 401 US 646, 655, n 7; 91 S Ct 1148; 28 L Ed 2d 388

(1971), “producing a clear danger of convicting the innocent".

Tehan v United States ex rel Shott, 386 US 406, 416; 86 S Ct 459;

“WSL Ea 24 453 (1966) Pie

The possibility of unreliable results due to a Sand-

strom instruction depends upon the unlikely occurrence that an;

entire jury first perceives and then impermissibly interprets a!

Single phrase in lengthy jury instructions. Even then, the

instruction could only have significant impact where the issue of

Where a rule of criminal procedure has been expressly declared

to be “a clear break with the past," Desist v United States, 394

US 244, 248, 89 S Ct 1030, 22 L Ed 2d 248 (1969), it is almost

invariably held non-retroactive.

ar.

intent is a close questio Mie cases where intent has not been

placed at issue, a Sandstrom instruction cannot affect the

fact-finding process. Sandstrom represents a situétion that is

a ee ra“

fundamentally different in degree from previous cases where new

rules implicating the reasonable doubt standard have received

complete retroactive effect. In re Winship, 397 US 358; 90 § Ct

1068; 25 L Ed 2d 368 (1970), retroactively applied by Ivan v City

of New York, 407 US 203; 92 S Ct 1951; 32 L Ed 2d 659 (1972); and

Mullaney v Wilbur, 421 US 684, 95 S Ct 1881, 44 L Ed 2d 508

(1975), held retroactive in Hankerson v North Carolina, 432 US

233; 97 S Ct 2339, 53 L Ed 2d 306 (1977). In both Winship and

Mullaney, the rule that the state had the burden of proving each

and every element of the offense beyond a reasonable doubt "was

designed to diminish the probability that an innocent person

would be convicted". Hankerson v North Carolina, 432 US at 242.

= aie eae as reseed :

The difference in degree between the Sandstrom instruc-

tion rule and the rule in Winship and Mullaney justifies giving

substantial weight to the other two Stovall factors, i.e., the

extent of reliance on the old rule and the effect of the retroac-

tive application of the new rule on the administration of justice.

Consideration of these factors cuts strongly against retroactive

application of Sandstrom. United States v Spiegel, 604 F2d 961,

969 (CA 5, 1979).

In People v Woods, 416 Mich 581 (1982), the Michigan

2 In the instant case, the evidence of intent is conclusive. No

rational juror could have concluded the Petitioner lacked the

requisite intent to kill. See Argument I, supra, and Argument

Lic; 20oea,

a Jace

Supreme Court closely examined Sandstrom and its predecessors,

Winship and Mullaney, to determine whether Sandstrom should be

retroactively applied. The Court first found that Sandstrom

differed in great degree from Winship and Mullaney because the

"truth-finding-function is not substantially impaired in a Sand-

strom situation." Woods, supra, 620. The court then looked at

the other two Stovall factors and held:

The last two factors in the Linkletter-

Stovall approach are the reliance on the old

standards and the effect on the administration of

justice. In Michigan, instructions similar to

those used in the immediate case have been

approved by the Michigan Supreme Court, People v

Medley, 339 Mich 486; 64 NW2d 708 (1954); People

v Hodges, 196 Mich 546; 162 NW 966 (1917); and by

the Court of Appeals, People v Nelson, 35 Mich

App 368; 192 NW2d 682 (1971); People v McBride,

30 Mich App 201; 186 NW2d 70 (1971). Conceivably

other cases may be construed as having disap-

proved of such instructions; however, the exis-

tence of unreversed cases approving of such

instructions shows that lower courts probably

relied on them.

Given this reliance, the effect full retro-

activity would have on Michigan's system of

justice is unacceptable. Since this Court long

approved of such instructions, the number of

cases where this instruction was used is surely

encrmous. Taking this into consideration with

the purpose of the Sandstrom rule, we feel full

retroactivity is unwarranted.

Woods, supra, 620-621; footnotes omitted.

The Court then limited the retroactivity of Sandstrom to those

cases pending on direct appeal when Sandstrom was decided.

Woods, supra, citing United States v Johnson, 457 US 537, 102 §S

Ct 2579, 73 L Ed 2d 202 (1982). In the instant case, Petitioner

was convicted in 1967. His conviction was affirmed by the Mich-

igan Court of Appeals in his appeal by claim of right in 1970.

His application for leave to appeal was denied by the Michigan

= 1$ «

Supreme Court in 1975. Sandstrom should not be retroactively

applied to Petitioner. Such a retroactive application of Sand-

strom puts a heavy burden upon the People of the State of

Michigan to retry a murder case after a lapse of nearly twenty

years.

The balance of factors favors limited retroactivity at

best. Sandstrom should not be retroactively applied to cases

where the judgment and all direct appeals were final by the cate

of Sandstrom's decision.

III. THE WAINWRIGHT V SYKES BAR SHOULD APPLY TO THIS

CASE.

In United States v Sobell, 314 F2ed 314, 324-325 (CA 2,

1963), Judge Friendly pointed out:

There is an inevitable attraction in the

position that a person convicted of a serious

crime should receive a new trial whenever a later

decision of the highest court indicates that,

with the benefit of hindsight, a different course

should have been followed at his trial in any

consequential respect. Yet for courts to yield

broadly to that attraction not only would cause

"litigation in these criminal cases [to] be

interminable" [Sunal v Large,] 332 U.S. at 182

- «, but, in the sole interest of those already

convicted of crime, would drastically impair the

ability of the Government to discharge the duty

of protection which it owes to all its citizens.

- »« « When a defendant who has been tried fairly

in accordance with the law as it was understcoc

at the time seeks judicial relief because of new

light on a point of law affecting an aspect of

his trial, his request must be balanced against

the rightful claims of organized society as

reflected in the penal laws.

Petitioner Merlo was convicted of first-degree murder

n a well-tried case in 1967. In 1979, Sandstrom held that the

instruction given at Merlo's trial was unconstitutional. In

1982, Petitioner raised this issue for the first time in a de-

layed motion for new trial in the state trial court. He also

raised it in delayed applications for leave to appeal in Michi-

gan's appellate courts. Petitioner was unsuccessful with the

Sandstrom issue until 1985, when his collateral attack resulted

in a ruling that his then 18-year-old conviction had to be re-

versed because of the Sandstrom violation.

To reach the Sandstrom issue, the district court was

required to determine whether the#® had been a state court proce-

dural default. After examining the applicable law and the facts,

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- 17 -

the district court found: 1) Petitioner had not objected to the

jury instructicn at trial; 2) the state prosecutor had not

asserted the procedural default to the state courts and had

addressecd only the merits; and 3) the state courts' rulings went

to the merits as well. The district court then held that Wain-

wright v Sykes, 433 US 72, 97 S Ct 2497, 53 L Ed 2d 594 (1977),

did not apply.

In Wainwright v Sykes, supra, the Court held that a

state prisoner, barred by. procedural default from raising a

constitutional claim on direct appeal, could not raise the issue

on a collateral attack unless the prisoner could show cause and

actual prejudice from the default. This cause and prejudice

standard is not applied when the state courts overlook the proce-

dural default and address the merits of the issue. Ccunty of

Ulster v Allen, 442 US 140, 99 S Ct 2213, 60 L Ed 2a 777 (1979).

The application of these rules to the instant case

produces an absurd result. ,/ When Petitioner was tried in 1967,

Nisa Sniitinenesen given was good law.? Petitioner had no legal

reason to object to the instruction. It would have been iludi-

crous to argue in state court that the Petitioner had failed to

object to that which was then unobjectionable. Consequently, the

State prosecutor did not argue that Petitioner's failure to

object at trial to a well-settled standard instruction should

: Sandstrom relies primarily upon two cases, both of which were

decided after Petitioner was convicted. These cases are In re

Winship, 397 US 358, 90 S Ct 1068, 25 L Ed 2d 368 (1970), and

Mullaney v Wilbur, 421 US 684, 95 S Ct 1881, 44 L Ed 2d 508

(19735).

preclude appellate review. Petitioner then mace a collateral

attack without being required to show anything more tc the

federal court than he had shown to the state courts. Under these

circumstances, finality of criminal judgments anc noticns o:

comity would be better served if the cause the prejudice stancarc

would be applied. te a

_— In United States v Frady, 456 US 152, 102 S$ Ct 1584, 71

L° Ed 2G 816 (1982), the Court “reaffirm(ed] the well-settlec

principle that to obtain collateral relief a prisoner must clea:

a significantly higher hurdle than would exist on direct appeal.

Frady, 71 L Ed 2€ at 829. fFrady hac been convictec of first-

degree murder in federai district court. On direct appeal, his

conviction was affirmed but his death sentence was reducec

life imprisonment. Nineteen years and numerous post-conviction

proceedings later, the Court of Appeals reversed his conviction

on a collateral attack. fFrady challengec a jury instruction.

Although the instruction accorded with standard law when it was

given, the law had changed. The Supreme Court held that Fracy

a |

was required to show cause and actual prejudice for his f

to object at trial and to raise the issue on his direct appeal.

Allowing the use of a lesser standard equates direct appeals with

collateral actacks —Luseegee- —7 pieniprcered of got is

inoue “

4 ore ‘—-s

There is no limit on the time when a collateral attack

may be made. The all-too-ready availability of col ateral celief

undermines the finality of judgments. This situatig.: enccureges

the view among criminal defendants and the law-abiding public

that the criminal justice system in the United States is nothing

, » ~ Dé ha . tom 4 < — - -

more than a relentless “guest for error”. Bihn v United States,

328 US 633, 638; 66 S Ct 1172; 90 L Ed 1485 (1946). Application

without significant harm to criminal defendants. It maintains

the distinction between direct appeal and collateral attack

without precluding collateral attack. y, etl Sa

The failure to raise claims of error on direct appeal

should independently bar their assertion on collateral attack,

absent a separate showing cf both cause for their omission from

the appeal and actual prejudice. Usually the decision cn direct

appellate review will be made soon enoush after trial that a

retrial is possible if the conviction is reversed. If the issue

is not raised until years later on collateral attack, vacatinc

the conviction may provide something beyond a mere remedy -- it

may provide a windfall if retrial is impossible.

—_

The failure to raise an issue on direct apreal could

indicate that the alleged error was neither substantial nor

significant. Requifing a criminal defendant to raisé issues on

f direct appeal serves society's interest in the finality of crimi-

nal judgments. The failure to raise an issue on direct appeal

| should bar a claim on collateral attack absent a showing of cause

\ and prejudice. Frady, supra.

\ Not requiring a criminal defendant to show cause and

\ , 8 th ae

\As 4 Cowl nr 11 y eon Lh GO, wea put sme @

, : / Let! ee ne ’ . <«

: The law-abiding public includes the families and friends of the

murder victims. In the instant case, the family of the victim is

deeply distressed by Petitioner's successful collateral attack

made 18 years after his conviction.

- 20 -

fal

’ *

| aoe

’

ifn

prejucice where the state cou

procedural default results in the feceral court having greater

recsard for the state court's non-use of a contemporanecus chjec-

tion rule ané lesser resard for the state ccurt’s affirmance of a

criminal conviction. Interest in finality cf criminal juégments

and notions of comity require a different approach. That ap-

proach should be the application of the cause anc prejudice

standarc.

An application of the cause and prejudice standaré to

the instant case is caiied for.

In Ensle v Isaac, 456 US 107, 102 S Ct 1556, 71 L Ed 2¢

783 (1982), and Reec v Ress, 468 US » 104 S Ct 2901, 82 L Ed

24 1 (1984), the Court addressed the concept of cause. As statec

in Reed v Ross, 82 L E€ 24 at 15, *. . . where a constitutional

Claim is sc novel that its legal basis is not reasonably avail-

able to counsel, a defendant has cause for his failure to raise

the claim in accordance with applicable state procedures." In

cases where a Sandstrom violation occurred before the decision in

Winship, supra, this Court has found cause. McBee v Grant, 763

F2d 811, 817 (CA 6, 1985). Because Petitioner Merlo was con-

victed in 1967, three years prior Winship, Petitioner has cause

for his failure to object at trial.

In Frady, supra, the Court defined prejudice which had

been left open for resolution in Wainwright v Sykes, 53 L Ed 2d

at 608. To show prejudice, Petitioner “must shoulder the burden

of showing, not merely that the errors at his trial created a

possibility of prejudice, but that they worked to his actual and

substantial disadvantace, infecting his entire trial with error

of constitutional dimensions.” Frady, 71 L Ed 24 at 832, emphasis

in the original.

When the record in the instant case is appraised real-

istically, it seems piain beyond all serious dispute that Peti-

tioner Merlo suffered no actual and substantial prejudice because

of the erroneous jury instruction given during his trial. The

analysis required is the same applicable to the harmless error

issue addressed in Argument I of this brief.

The erroneous instruction was not the only instruction

given. The jury was also instructed that the prosecutor bore the

burcen of proof to establish guilt of the offense beyond a rea-

sonable doubt. (T, 596) The jury was properly instructed on

premeditation, and the trial court emphasized that premeditation

is an element only of first-degree murder. (T, 597-598) The jury

ee ee -Gul ity of a premeditated and-deliberate murder.

/ The jury thus went beyond the Gtemandd "ini lee~nekthe"_rscguave

of the Sandstrom instruction to find premedita ion and delibera-

i “ ‘ en maeal

tion. Fradv, 71 L Ed 2d at 833. his means thare was no actual

bea Tea Salle

0 a ia

prejudice.

The evidence of Petitioner Merlo's intent is ibexwielin~

ing. Several weeks prior to the murder, Petitioner made a sym-

bolic death threat to the victim. (T, 553-554) Eyewitnesses

testified to Merlo's normal walk on entering and exiting the

beauty shop and his polite small talk to the owner. (T, 113, 115,

160, 189, 217-218, 233, 242) The beauty shop was rather small,

the furnace room doors were open, customers were close to the

f -

doors, and two people walked into the furnace room while Peti-

tioner and the victim were in there. None of the eyewitnesses

heard or saw anything to suggest that Merlo ané the victim fought

while in the furnace room. (T, 114, 164, 190, 219-220, 223, 238)

Merlo followed his wife out of the furnace room. (T, 115) The

victim positioned herself behind her customer to begin work. (T,

244) Merlo shot four times at close range. (T, 245) One shot

severed the brain stem and another severed the aorta. (T, 152-

153) The other two shots were in the abdominal area. (T, 151)

Two of the four shots were fired after the victim had fallen to

the floor. (T, 115) The only mention of possible intoxication is

Merlo's own testimony at trial.

Given this evidence at trial, it is virtually certain

that the jury that convicted Petitioner of first-degree murder

would still have found premeditation even if the {mplied-naliey

els not been given.

ee __-By setting aside Petitioner's murder conviction 18

years after the fact without requiring any show of cause or

prejudice, the district court has done serious harm to the con-

cept of finality in crimiral convictions. Petitioner did not

object to this instruction at trial, no issue respecting it was

presented or notice on direct appeal, and Petitioner has not

demonstrated actual prejudice traceable to the error.

4 vo

WEEREFORE, Respondent~-Appellant respectfully urges this

Court to reverse the United States District Court for the Eastern

District of Michigan, Southern Division.

DATED:

March 24,

1986

BY:

- 24 -

Respectfully submitted,

L. BROOKS PATTERSON

PROSECUTING ATTORNEY

OAKLAND COUNTY

ROBERT C. WILLIAMS

CHIEF, APPELLATE DIVISION

MARGARET G. HORENSTEIN (P30263)

Assistant Prosecuting Attorney

1200 North Telegraph Road

Pontiac, Michigan 48053

(313) 858-0685

UNITED STATES COURT OF APPEALS

SIXTH CIRCUIT

JOHN MERLO,

Plaintifr-Appellee,

-vs- No. 86-1118

DAN BOLDEN,

De fendant-Appellant.

STATE OF MICHIGAN)

)ss.

COUNTY OF OAKLAND)

PROOF OF SERVICE

Mary K. Geer, being €uly sworn, deposes and says that

on the 26th day of March, 1986, she served copies of Appellant's

Brief upon Frank Lawrence, attorney for Petitioner, by depositing

same in an envelope with the Oakland County mailing pick-up

service, directed to the said Frank Lawrence at 10811 Farmington

Road, Livonia, Michigan 48150.

Further deponent saith not.

Wh & Meee

MARY K7/GEER, Deponent

Subscribeé and sworn to before me,

this 26th day of March, 1986.

{sam

A. BOZARTH, Wo

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.