Opposition Brief — Harmelin v. Michigan

| RONALD HARMELIN,

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

Petitioner,

STATE OF MICHIGAN,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF MICHIGAN

RICHARD THOMPSON

PROSECUTING ATTORNEY

OAKLAND COUNTY

By: MICHAEL J. MODELSKT

CHIEF, APPELLATE DIVISION

PAUL J. FISCHER

Assistant Prosecuting att

Counsel of Reco

1200 North Telegraph Road

Pontiac, Michigan 48053

(313) 858-0686

ie

"

-

a

“

—

wr

| INDEX OF AUTHORITIES

COUNTER-STATEMENT OF THE CASE.

REASONS FOR DENYING THE WRIT:

THE TRIAL

THE DEFENDANT WAS NOT DENIED

EFFECTIVE ASSISTANCE OF COUNSEL

AT TRIAL.

THE MANDATORY SENTENCE IMPOSED

DID NOT CONSTITUTE CRUEL

AND UNUSUAL PUNISHMENT.

HEREIN

DEPENDANT HAS FAILED TO SUPPORT HIS

INFLAMMATORY CHARGE THAT THE COURT

OF APPEALS WAS “INFLUENCED BY SOME

SORT OF EX PARTE COMMUNICATION OR

POLITICAL PRESSURE" AND THAT IT

REVERSED ITSELF IN A SITUATION

WHERE IT LACKED JURISDICTION.

CONCLUSION AND PRAYER FOR RELIEF .

TABLE OF CONTENTS

<OURT COMMITTED NO ERROR

IN DENYING THE DEFENDANT'S MOTION

TO SUPPRESS — .

t-

PAGE

iv

10

12

14

— oe

|

’

}

;

|

ee

INDEX OF AUTHORITIES

CASES:

| CADY V DOMBROWSKI, 413 US 433; 93 S Ct 2523;

oY & ee 20 206. 20008) so ik a ce ee eee Se

| COLORADO V BERTINE, 479 US 367; 107 S Ct 738;

os Gwe. ae 730 CART). ss 6 se RS ee

MIRANDA V ARIZONA, 384 US 436; 86 S Ct 1602; 16 L Fd

694 (1966) . . . . . . . - . . e.6..¢ . (3 .

PENNSYLVANIA V MIMMS, 434 US 106; 98 S Ct

sR wo PO os eo cee

PEOPLE V BLACKBURNE, 150 Mich App 156 (1986)... .

PEOPLE V BLUE, 114 Mich App 137 (1982) .......

PEOPLE V BROWN, 127 Mich App 436 (1983). ......

PEOPLE V CAMPBELL, 115 Mich App 369 (1982),

eon Iv den 417 Mich 879 (1983) ........

PEOPLE DALESSANDRO, 165 Mich App 569 (1988)... .

PEOPLE V FISHER, 119 Mich App 445 (1982) ...+..-s.

PEOPLE V GRIMMETT, 97 Mich App 212 (1980). .....

Vv

Vv

PEOPLE V GEORGE, 399 Mich 638 (1977) ......2.-s

Vv

PEOPLE V HARDING, 163 Mich App 298 (1987). .....

PEOPLE V HARMAN, 124 Mich App 93 (1983),

~~~ ss “Tv den 417 Mich 1100.45 (1983) ......

PEOPLE V HARMELIN, 176 Mich App 524 (1989) .....

PEOPLE V HENCE, 110 Mich App 154 (1981). ......

PEOPLE V HIGGINBOTHAM, 21 Mich App 489 (1970)... .

PEOPLE V INGRAM, 412 Mich 200 (1981) .......-.

PEOPLE V KAIGLER, 116 Mich App 567 (1982). .....

PEOPLE V KERSCHNER, 132 Mich App 623 (1984). ....

PEOPLE V LAUBE, 154 Mich App 400 (1986). ......

PEOPLE V LILLIS, 64 Mich App 64 (1975) .... +s

o She

- 2 sh

j

}

}

}

CASES (Cont'd):

| PEOPLE V LONG (On Remand), 419 Mich 636 (1984) ..

| PEOPLE V McCARTY, 113 Mich App 464 (1982),

\| lv den 414 Mich 958 (1982) ...+.-e«e-«

1

|

PEOPLE MERCHANT, 86 Mich App 355 (1978). ... .-

PEOPLE V PARHAM, 147 Mich App 358 (1985) .....

Vv

V

PEOPLE V PHILLIPS, 416 Mich 63 (1982).

Vv

PEOPLE PUERTAS, 122 Mich App 626 (1983),

lv den 417 Mich 1056 (1983). .....-.

PEOPLE V RANDLE, 133 Mich App 335 (1984) .....

PEOPLE V ROBERSON, 90 Mich App 196 (1979)...

WARD, 133 Mich App 344 (1984) .....

PEOPLE

eee me ta

SIBRON NEW YORK, 392 US 40; 88 S Ct 1889;

ee RO Pee ere ee

SOUTH DAKOTA V OPPERMAN, 428 US 364; 96 S Ct

"3092; 45 L Ed 2a 1000 (1976) ......

TERRY V OHIO, 392 US 1; 88 S Ct 1868; 20

L Ed 2d 889 (1968) . . . «© © © «© © « «

WILEY V SOWDERS, 647 F2d 642 (CA 6, 1981).

YOUNG V MILLER, 883 F2d 1276 (CA 6, 1989). ....

MISCELLANEOUS AUTHORITIES:

eee Bees, G80 8, Bak. « « ee eevee veees

CE. 257.6119 MBA 9.2311 1. «© © se ee veevees

MCL 333.7403(2) (i); MSA 14.15(7403) (2) (i).

MCL 333.7521(d); MSA 14.15(7521) (dad). . . « « « «

MCL 750.227b; MSA 28.424(2). 2. «© «© © © © © © © @

= Me ell) | Pe ee ee ee er ee

eS ee ee ee

MCR 7.302(F) (3). . . . . . . . 7 . . . . . . 7 .

US CONST , AMEND VI I I . . . . . . . . . . . . . . .

,

>

se ;

é . J >

Riis ee Lee Oe, aed ¥ : os ae Oe en eee Se) ee te

Swe

PAGE

10

;

:

|

| [MCL 333.7403(2) (i); MSA 14,15(7403) (2) (i)], and Felony-Fiream

| oe

heard in the Sixth Circuit Court for the Count of Oakland. r

"

The instant petition arises out of a criminal 7

| that case, the Defendant-Petitioner Ronald Harme in was

/ with the offenses of Possession Of Over 650 Grams 0* Coca

(MCL 750.227b; MSA 28.424(2)]. . The People alleged that se

| offenses were committed on May 12, 1986 in Oak Park, Michi a. }

| Prior to trial, the Defendant brought a motion to suppress .

| an evidentiary hearing was conducted beginning on November 12,

1986. =

First to testify at that hearing was Officer Calv: a!

Rix of the Oak Park Public Safety Department and a 17

police veteran. (T 11/12/86, 8) On May 12, 1986 at 2:45 a.

Officer Rix was on patrol with his partner, Officer Blakeney, in

the parking lot of the Embassy Motel in Oak Park. (T 11/12/86,

8) The officers were there checking vehicle VIN numbers

looking for stolen cars. (T 11/12/86, 8) At that time, Off z

Rix testified that he observed a 1977 blue Ford LTD exit the

parking lot and he again observed the car at 4:00 a.m. and at

5:00 a.m. (T 11/12/86, 9-10) On the third occasion, the car ran

a red iight at the intersection of Hubbell and Eight Mile Road.

(T 11/12/86, 10) Officer Rix pursued the car, effected

traffic stop and observed that the Defendant was the driver

sole occpant. (T 11/12/86, 11)

The witness requested the Defendant's registra

driver's license and proof of insurance and those were

(T 11/12/86, 11) The Defendant exited his vehicle and began

-_ iv = “fae : “» ? - .

“4

eee

7s.

walking back toward the patrol car when he volunteered informa-

tion to the effect that he had a pistol in an ankle holster and

that he had a CCW permit for the gun. (T 11/12/86, 11, 32) |

Officer Rix also observed several bulges in the Defendant's coat

ee te

and became concerned for his own safety, suspecting that the

Defendant might have more weapons on his person. (T 11/12/86, 12)

He informed Officer Blakeney of the gun and they conducted a

pat-down of the Defendant. (T 11/12/86, 12, 40-41) The Defendant

was not under arrest at the time and the gun in the ankle holster

was not immediately seized. (T 11/12/86, 33, 38)

Officer Blakeney felt a hard object in the Defendant's |

coat and inquired as to what it was. The Defendant replied that

it was his marijuana. (T 11/12/86, 13) The object was removed

and it was observed to be a cigarette case containing marijuana

cigarettes. (T 11/12/86, 13) The Defendant was then placed under

‘mm st a tg

arrest for marijuana possession and he was searched pursuant to

the arrest. (T 11/12/86, 13) A pouch was found in another coat |

pocket which contained Percodan pills, three vials of white |

powder and drug paraphernalia. (T 11/12/86, 14) An envelope |

containing ten small baggies of white powder and a beeper were |

also found on the Defendant's person. (T 11/12/86, 14, 52-54) |

Following the Defendant's arrest, Officer Rix testified

that the Defendant's car was impounded because it was in a

traffic lane, it was a felony arrest, and because of possible

action under the Forfeiture Act. (T 11/12/86, 14, 56) A short

while later, an inventory search was conducted and a black

satchel containing a shaving kit bag was found in the trunk. (T

tt i i i

*

—

_ cocaine. (T 11/12/86, 15, 73-75)

a

feat Tn

11/12/86, 15, 63-65) The shaving kit bag contained two t

which was a large amount of white powder subsequently shown, be

After Officer Rix's test i

the evidentiary hearing was adjourned to January 12, 1987,

that date, Officer Blakeney testified to being in the

Mote: parking lot looking for stolen cars and to observing t

Defendant's car at 2:45 a.m., 4:00 a.m. and 5:00 a.m. (T 1/1

5-7) He also described the traffic violation, the stop a

Defendant's car and the pat-down search after the ae

Officer Bl

also noticed that the Defendant's pockets were bulging and

exited from his car. (T 1/12/87, 7-8, 25-27)

he appeared very nervous. (T 1/12/87, 9, 28-30)

As he patted the Defendant's coat, he felt a

object and said, “What's this?" The Defendant replied,

my marijuana." (T 1/12/87, 9) The officer then pulled the

out and discovered that it was a cigarette case containing

juana cigarettes. The pouch containing pills and vials of

powder was also found as well as the beeper and ten packets .

white powder. (T 1/12/87, 10-11) Officer Blakeney also t ed

to the impoundment of the Defendant's car and the

search cf the trunk which uncovered a large amount of cocaine n¢

$2700.00 in cash. (T 1/12/87, 11-12, 37-40) At the conclusion of

Officer Blakeney's testimony, and after argument by counsel or

the respective parties, the court denied the Defendant's

to suppress. (T 1/12/87, 60)

A bench trial was held in this matter on February 2¢

1987. Prior to the submission of proofs, the parties

-* ~vi-

to the admission of 19 exhibits, including the gun and permit,

the drugs,

| paraphernalia and the toxicology report. (T 2/26/87, 6-8)

| cer Rix then testified in a manner consistent with his testimony

_ at the evidentiary hearing as to why he was at the Embassy Motel

| (T 2/26/87,

2/26/87,

33)

high crime area. (T 2/26/87, 28) Officer Rix also testified

to the Defendant exiting his vehicle,

27-29),

30-33) '

the various containers they were found in,

Defense counsel stipulated that the area in question was a

the drug

his observations of the Defendant's car

the traffic violation and the stop (T 2/26/87,

volunteering the informa-

tion about the gun, his nervous appearance and the bulges in his |

coat.

testimony concerning the pat-down,

object,

and the subsequent discovery of other drugs,

the beeper on the Defendant's person. (T 2/26/87, 37-39) Finally,

the Defendant's admission that

(T 2/26/87, 34-36) The witness reiterated his earlier

it contained marijuana, |

paraphernalia and

the discovery of the hard |

i

i

i

i

Officer Rix again described the impoundment and inventory search |

of the Defendant's car and the discovery of the cocaine and cash |

in the trunk.

search of Defendant was made out of fear for the officers'

safety.

had bulges in his pockets. (T, 2/26/87, 84-85) According to

Rix:

On cross-examination,

(T 2/26/87, 40-48)

If he had, in fact, guns in his pockets

where the bulges were, they could have

been used on me, and I wouldn't have had a

chance to respond.

(T, 2/26/87, 85-86)

- vii -

Rix testified that the pat-down

|

Defendant admitted having a gun in an ankle holster and

:

Tl

f Defense counsel questioned what difference it

| dant had a general concealed weapon permit. (T, 2/26/87,

} thing: If, in fact, you patted him down

1 What would you have done then?

|

| Defendant had a number of guns on his person given that

85):

Q [Defense Counsel] Let me ask you some-

and you turned up two more guns, so what?

| * * *

Q (By Mr. Rundell, continuing) So what?

What then? Now you've got two more guns.

So what?

A I would have been safe.

Q You would have had to give them back to

him, wouldn't you?

A Eventually, yes. I would have had them in

my possession.

Q Until you had to give them back to him?

XN That's correct, and they would have been

unloaded when I a Se back. “a

Q Well, then why da t you go immediately

for ‘the aun then von haan ie ee

unload that one if you were concerned?

A If you bend down when you're patting some-

body down to take a gun that's supposedly

in an ankle holster, which I could not

see, you're down below that person. I'm

going to get shot in the head. I'm not

going to do that. .

Why didn't you ask him to show you the gun

then that he had?

Do you want to put a gun in somebody's

hand and let them shoot you?

No. He could have shown you, could he

not, simply by putting his foot up and

pulling up his pant leg?

Then he has the ability to get it out.

Did Mr. Harmelin in any way threaten you

that night?

at Edy er} i make any overt

Did Mr. Harmelin in any way

gesture toward you that you interpreted as

being a threat towards your safety?

No, he did not.

Did Mr. Harmelin say anything to from

which you concluded that he was ten-

>

2)

or oO»,

oO»,

ing your safety?

- viii -

aa, ee

He told me he had a gun.

All right. But, as a matéer of fact,

couldn't you conclude from that that if he

was going to hurt you, the last thing he

would have told you was that he had a gun?

o>

. * *

Q (By Mr. Rundell, continuing) If the man

was going to try to pull a gun on you and

shoot you, he'd want to surprise you,

wouldn't he?

I suppose, but it's hard to tell.

There's not much surprise when he tells

you, “I've got a gun,” is there?

You don't know out there.

(T, 2/26/87, 87-89)

o>

Prior to the conclusion of cross-examination of

Officer Rix, Michigan State Police Trooper Diane DeWitt was

called out of order to testify and she was qualified as an

expert in the field of fingerprint analysis. (T 2/26/87, 92)

She identified fingerprints from the Defendant which were found

on books contained in the satchel in his car's trunk that were

directly adjacent to the large bags of cocaine. (T 2/26/87,

96-99) Officer Blakeney also testified out of order and in a

manner consistent with his testimony at the evidentiary hearing.

He once again described the stop (T 2/26/87, 111-112), the pat-

Gown of the Defendant (T 2/26/87, 112-113), the post-arrest

search of the Defendant (T 2/26/87, 113-114) and the impoundment

and inventory search of the Defendant's car. (T 2/26/87, 117-

119) Cross-examination of Officer Rix was then concluded and

the People rested. (T 2/26/87, 170) The Defendant presented no

witnesses and also rested. In his closing argument, the prose-

cutor noted that the toxicclogy report reflected an amount of

672.5 grams of cocaine in the packages found in the Defendant's

- ix -

a

A

———— a “4 Ra

Ne ——_.

av

satchel. (T 2/26/87, 173) The prosecutor also oimanhed Gan |

Defendant's address book which contained coded t: sti

apparently related to drug trafficking. (T 2/26/87, 175) .

Following closing arguments and its findings of facts,

the trial court found the Defendant guilty on both of the charg

offenses. (T 2/26/87, 197) On April 30, 1987, the Defendant wa

sentenced to mandatory terms of two years and life imprisc ment

for his convictions. (T 4/30/87, 3-4)

Defendant appealed his convictions as of right. —

People accept the portion of Petitioner's Statement of the Case

describing the appellate history of this case.

—

Sa ee

“ cts camel : —-- <= ee es ee ee .

I

REASONS FOR DENYING THE WRIT

DEFENDANT'S MOTION TC SUPPRESS.

In the trial court and on appeal, the Defendant has

raised numerous challenges to the propriety of the various

searches and seizures conducted by the police herein. To do so,

the Defendant incorrectly attempts to frame the Fourth Amendment

| issues of this case within the framework of a "Terry" investi-

|

889 (1968).

| resulting

gatory stop, see Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d

He then initially arques that the pat-down search

in the discovery of drugs on his person was invalid

since the police officers could not have reasonably suspected

that criminal activity was afoot.

The Defendant's reasoning in that regard is factually

flawed from the outset since the stop in this matter was a valid

traffic stop for the civil infraction of running a red light, MCL

257.611; MSA 9.2311. In light of their observations, Officer Rix

and Blakeney were entirely justified in conducting the traffic

stop herein. As such, the initial stop was not within the mean-

ing of Terry, supra. See also People v Laube, 154 Mich App 400;

397 NW2da 325 (1986).

In further contrast to the Defendant's argument, the

People submit that the pat-down search which followed the traffic

stop was an entirely reasonable measure. intended to protect the

safety of the investigating officers under cases such as People v

Grimmett, 97 Mich App 212; 293 NW2d 768 (1980). To justify such

a pat-down, the officer in question must be able to point to

particular facts from which he could reasonably conclude that a

eois«

a ee ae

*

I. THE TRIAL COURT COMMITTED NO ERROR IN DENYING THE >

person was armed and dangerous. People v Parham, 147 tich

(358; 382 NW2d 786 (1985), Sibron v New York, 392 US 40; 88 s_

(1889; 20 L Ed 2a 917 (1968).

J r, i a

: Ho Ce ae a. ee

4s 5

ee wo.

Once a police officer has legitimately stopped a

or vehicle for a civil infraction, a bulge in the person's

his furtive behavior or other circumstances can permit '

officer to reasonably suspect that the person is armed and a

gerous, thereby justifying the limited intrusion of a

search. People v Blackburne, 150 Mich App 156; 387 NW2d B5¢

(1986), Pennsylvania v Mimms, 434 US 106; 92 S, Ct 330; 54 L at

331 (1977). In particular, bulges in a person's pockets can

justify further inquiry by a police officer following a tre zee

stop, People v Ingram, 412 Mich 200; 312 NW2d 652 (1981), 2

police officer's experience is a consideration in determining

whether he reasonably believed that a pat-down search was re-

quired as a safety measure. People v Lillis, 64 Mich App 64; 238

NW2d 65 (1975). aa

In the case at bar, Officers Rix and Blakeney had %

years and 20 years experience respectively. They were located i

4

a high-crime area at night and had observed the Defendant's car

_*

on three occasions in the early morning hours on the day in

question. The Defendant appeared nervous and there were

bulges in his coat when he exited from his vehicle. He himself

volunteered that he was armed with a pistol. In light of those

~

jaa

circumstances, Officer Rix ané Blakeney were entirely j ti

in conducting the pat-down search for their own prot .

Contrary to the Defendant's position, his possession of a co

Le es

oe

i permit did not automatically mean that he was not a potentially

dangerous person. His accessibility to a handgun in an ankle

holster under a trouser leg may have been somewhat limited and

| obvious, but the bulges in his coat represented a clear, poten-

| tial and imminent danger to which he had ready access if in fact

| the bulges were made by weapons. Under the circumstances, the *

officers’ pat-down of the Defendant can only be regarded as a

reasonable and prudent step intended solely for their protection.

The Defendant next contends that the inquiry and exam-

ination of the cigarette case containing marijuana which was

discovered during the pat-down was improper. Apparently, the

Defendant has misread the facts of this case when he argues that

the discovery of, and inquiry concerning, the cigarette case was

beyond the scope cf a pat-down for weapons. In that regard,

Officer Blakeney testified as follows:

Ok, so then what did you do?

I started to do a pat down.

Was there anything, if I can back up,

unusual about his appearance?

Well, his pockets in his coat were bulging.

And he appeared to be a little bit nervous.

Ok, so then what did you do?

I started to do a pat down first. I grabbed

his coat, with my - right in the chest area

here, with my right hand. And I grabbed a

\ hard object; my thumb on the bottom and my

finger on top.

Where was this on the Defendant?

Right here in the bosom area.

Ok, you're indicating his right chest area,

correct?

Yes, sir.

All right. You say you felt a hard object?

Yes, sir, I did.

Ok, then what happened?

I held onto it --

Why is that?

Because I thought it was a gun.

ro Fr OFPYD

rO?rOoO ror Or,r0O

———-.

i. A aces 4 bs

i a Fy is

A - And I asked him, I said, “What's this?" And

he said, “That's my marijuana." +

Q Ok, then what happened? he:

A He was ~- we took the - I reached into his

pocket, and I pulled out a brass cigarette

case, along with a black pouch.

Q Now, what area? Is this the area where you

felt the hard object? o

A Right, same hard object. I reached in. and

pulled out, yes. . a

Q So you reached in, and what did you --

A I reached around inside his coat, and pulled

it out. I grabbed what was in the pocket; ©

it was a black pouch, along with the elge=

rette case.

Q Ok, so was that all in one action?

ns Yes, it was.

Q Ok. Then when you pulled the objects out of

his pocket, then what happened? :

A Ok, I opened the cigarette case, and there ee.

was what appeared to be marijuana cigarettes.

I advised him he was under arrest ‘

possession of marijuana.

(T 1/12/87, 8-10)

At the time that the pat-down was initiated, the De:

dant was not under arrest, nor was he the focus of ac

investigation. As such, he was not entitled to

warnings, nor was there any violation of his Fourth

rights. Rather than simply indicate that the object vas 2

cigarette case, the Defendant volunteered that it was hit

marijuana. Only after that admission did Officer Bla :

remove the object from the Defendant's clothing and view it ies

contents. Under the circumstances, there was absolutely — 7

impropriety in the officer's actions. ‘g

The Defendant also challenges the legal vain

impoundment of his vehicle. More specifically, he alleges that

Miranda V Arizona, 384 US 436; 86 S Ct 1602; 16 na

2d 694 (196

?

t

4

;

3

"rT nee OTe YY

ae

the quantities and types of drugs found on his person were insuf-

ficient to provide cause to believe his vehicle was involved in a

drug transaction and subject to forfeiture under MCL 333.7521(d);

MSA 14.15(7521)(d). Acain, however, the Defendant misreads the

facts of this case. After his arrest for marijuana possession,

the investigating officers discovered the pouch with three vials

of suspected cocaine, percodan pills, amphetamines, and four

separate implements for cocaine ingestion on his person. Addi-

tionally, the envelope with ten packets of suspected cocaine and

a beeper were found in his pockets. The variety, amounts, and

type of packaging of the drugs and paraphernalia found on the

Defendant clearly gave rise to the reasonable inference that he

was a drug dealer engaging in illegal drug transactions. Since

his vehicle was a conveyance obviously used in furtherance of

that activity, there is little doubt that it was properly subject

to impoundment and forfeiture pursuant to the cited statute.

Finally, the Defendant attacks the legality of the

inventory search of his vehicle and of the satchel discovered in

the trunk. Clearly, however,.an inventory search of a lawfully

impounded vehicle is proper as long as it is conduct -d pursuant

to a standard police department procedure. People v Long (On

Remand), 419 Mich 636; 359 NW2d 194 (1984). In the instant case,

Officer Rix testified that both the vehicle impoundment and the

inventory search were conducted pursuant to established proce-

dures. The inventory search of the trunk of a vehicle is also

permissible when reasonably conducted to protect the police or

public or to avoid claims ‘against the police for allegedly lost

;

ee en eee ee

z 2 Sy ‘ hot, F “ ik Py ne ot nig * A me. 2 ’ ‘ er =e oO di »

é o _— ys 1 Sa - Ry “4 29 Pasa ca WO : ; -

iF ia ; ed at? mal £90: ‘

re : 7, 29 wi a. |

; | ae )

or stolen property. Cady v Dombrowski, 413 US 433; 93 S Ct 25

Peas

37 L Ed 24 706 (1973), People v Hence, 110 Mich APP 154; 312 N

191 (1981). Under similar reasoning, the search of containe

found in the truck of a vehicle during a valid inventory ea

is also permissible. South Dakota v Opperman, 428 US 364; 96

Ct 3092; 49 L Ed 2d 1000 (1976), Colorado v Rertine, 479 US 367;

107 S Ct 738; 93 L Ed 2d 739 (1987), People v Merchant, 86

App 355; 272 NW2d 656 (1978). f

_

Moreover, even if the search of the automobile did not

fall within the inventory search exception, the Court of

properly ruled that the search fell within the au

exception to the warrant requirement because there was prot

cause to believe that Defendant's car contained more controlled

substances. People v Harmelin, 176 Mich App 524, 534 (1989).

ut eoesy

A trial court's ruling on a motion to suppress shc

not be overturned unless clearly erroneous; that is, if the

reviewing court is left with a definite and firm conviction t at

et

-~ °

a mistake was made. People v Brown, 127 Mich App 436; 339 N 24

38 (1983), People v Randle, 133 Mich App 335; 350 NW2d 253 (1984)

=

i i

People v Kerschner, 132 Mich App 623; 348 NW2d 282 (1984). ‘The

People submit that in light of the record of this case and e

applicable law, no clear error or mistake was made by the trial

court in denying the Defendant's motion to suppress.

Il.

OF COUNSEL AT TRIAL.

THE DEFENDANT WAS NUT DENIED EFFECTIVE ASSISTANCE

With reference to the above argument, the Defendant

alleges that his trial attorney was ineffective insofar as he

couched the trial defense in terms of a legal attack on the

validity of the ‘searches herein as opposed to a factual attack on

the evidence probative of the Defendant's guilt. Apparently, the

Defendant believes that his attorney should have been more force-

ful in arguing his innocence based upon the facts. A review of

the record herein as well as the applicable law shows that the

Defendant's claim is factually and legally unsupported.

573; 419

In People v Dalessandro, 165 Mich App 569,

NW2d 609 (1988), the Court of Appeals adopted the federal

standard for determining claims of ineffective assistance of

counsel as follows:

In Strickland v Washington, 466 US 668; 104

S Ct 2052; 80 L Ed 2d E74 (1984), the Supreme

Court set forth the test to be used in reviewing

claims of ineffective assistance of counsel.

First, defendant must show that counsel's perfor-

mance was deficient. This requires showing that

counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the

defendant under the Sixth Amendment. The objec-

tive standard of reasonableness must be used i:

determining whether defense counsel meets this

threshold. Strickland, supra, pp 687-688. The

defendant must overcome the presumption that the

challenged action might be considered sound trial

strategy. Id., p 689. Second, the deficiency

must be prejudicial to the defendant. An error

by counsel, even if professionally unreasonable,

does not warrant setting aside the judgment of a

criminal proceeding if the error had no effect on

the judgment. Id., pp 691-692.

In every respect, the Defendant's claim fails to meet the above-

cited test.

oe ee ee cee ee eee e

ee

eee ee

First,

when viewed under the objective

sl wx

reasonableness, there has been no showing of deficiency on th

part of defense counsel since the choice of defense posture wa

ek

clearly a matter of trial strategy. In light of the ove

evidence of guilt, defense counsel quite correctly realized he

his client's only hope was to attack and prevent the admissibil:

ity of the inculpatory evidence on technical grounds. Mat ers

*, 7

oe by BO

trial strategy will not give rise to a claim of ineff stive

assistance of counsel, People v Roberson, 90 Mich App 196; 282

=

NW2d 280 (1979), even where they seem erroneous with hindsight

long as they appeared sound to a competent, criminal attorns

In che 7

ad

114 Mich App 137; 318 NW2d 498 (1982).

People v Blue,

present case, even with hindsight, defense counsel's trial

ye

ay

ae

egy does not appear erroneous. ~

o Vee

. han

The Defendant also fails to show how defense counsel ':

alleged error was prejudicial. The Defendant suggests hat

trial counsel could have argued that the evidence failed to

knowledge and intent relative to possession of the drugs in

trunk of his car. Such an argument would have st

counsel's credibility to the limit. It should be recalled

the cocaine was discovered in the Defendant's satchel located n

his car. Objects with his fingerprints on them were discov

in close proximity to the narcotics. The Defendant possessed th

Given

those facts, a defense based on ignorance of the existence of the

same type of drug on his person in various containers.

~

drugs would have been patently unbelievable.

The Defendant incorrectly relies on cases such as

Wiley v Sowders, 647 F2d 642 (CA 6, 1981) and People v Fisher,

119 Mich App 445; 326 NW2d 537 (1982). Those cases involved

Situations where defense counsel either stood mute and did noth-

ing or consented to the equivalent of a guilty plea. A review

of the record herein shows that defense counsel skillfully

sought to guarantee his client's rights and to prevent the

admission of evidence that was overwhelmingly prokative of

guilt. Effective assistance of counsel does not necessarily

mean successful assistance of counsel. People v Higginbotham,

21 Mich App 489; 175 NW2d 557 (1970). The Defendant has totally

failed to show that his trial attorney was in any way ineffec-

tive.

The Court of Appeals’ conclusion should be affirmed,

176 Mich App at 535:

The evidence against defendant was overwhelming,

and counsel's strategy in concentrating the

defense on the admissibility of the disputed

evidence focused upon defendant's best and only

chance of acquittal. This choice of strategy was

not the functional equivalent of a guilty plea,

and defendant was afforded his constitutiona

right to plead not guilty. People v Schulz, 8

Mich App 527; 271 NW2d 305 C1578) ; People v

Fisher, 119 Mich App 445; 326 NW2d 537 ([( .

*

III. THE MANDATORY SENTENCE —

CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT.

The Defendant makes the largely emotional nent tl

the statutorily-mandated sentence of life imprisonment which w

imposed following his conviction constituted cruel and |

punishment because it has "thrown [him] into the pit of

for all eternity." (Petitioner's Brief, p 23)

cyanide in Michigan. The Defendant cites no legal ae

support of his position that is factually on point.

In very brief response to the Defendant's posture, the

People note that on numerous occasions the Court of Appeals has.

rejected the argument that the mandatory life sentence for

possession of 650 grams of cocaine is cruel or unusual. peop le

v Harding, 163 Mich App 298; 413 NW2d 777 (1987), People v _

357; 351 NW2d 208 (1984); People v Harman,

Mich App 93, 98; aah ‘NW2d 591 (1983), lv den 417 Mich 1100.48

133 Mich App 344,

(1983); People v ieee 122 Mich App 626, 630; 332 NW2d 39

(1983), lv den 417 Mich 1056 (1983); People v Kaigler, 116 fe

572-573; 323 NW2d 486 (1982); People v Campbell, 115,

Mich App 369, 376-381; 320 NW2d 381 (1982), lv den 417 Mich | ]

App 567,

(1983); People v McCarty, 113 Mich App 464; 317 NW2d 659 (98 2),

lv den 414 Mich 958 (1982). a

eer

=

The Sixth Circuit Court of Appeals in Young v_

1989) recently rejected

883 F2d 1276, 1282-1286 (CA 6,

. . Lewy

=

argument similar to Defendant's involving the imposition of

Michigan's mandatory life sentence for drugs upon a first

offender. Although observing that "the tiger trap may have

sprung upon a sick kitten,” the Sixth Circuit found that the

punishment was not cruel and unusual under US Const, Amend VIII.

883 F2d at 1285-1286. The Court in evaluating the gravity of

drug offenses adopted the 5th Circuit's observation, 883 F2d at

1283:

"Except in rare cases, the murderer's red

hand falls on one victim only, however grim the

blow; but the foul hand of the drug dealer

blights life after life and, like the vampire

of fable, creates others in its owner's evil

image--others who create others still, across

our land and down our generations, sparing not

even the unborn." Terrebonne v Butler, 848

F.2d 500, 504 (5th Cir. 1988) (en banc), cert.

denied, US ; 109 S.Ct. 1140; 103° LEa

(1989).

While the Defendant portrays himself as an innocent

and misguided individual with no prior record, it is clear that

he possessed well over 650 grams of cocaine, some of which was

individually packaged for apparent resale. He also possessed

other types of narcotics, paraphernalia for drug use by himself

and others, and a weapon. His possession of a beeper and the

coded instructions in his address book would also seem to erode

his contention that his crime was an isolated mistake in judg-

ment. The People submit that the penalty imposed was proportion-

ate to the offense and it did not constitute cruel and unusual

punishment.

George, 399 Mich 638 (1977) and other Michigan case law.

*

+ ee

ye TSE te

IV. DEFENDANT HAS FAILED TO SUPPORT HIS INFLA

CHARGE THAT THE COURT OF APPEALS WAS "INFLUENCED BY SORT

EX PARTE COMMUNICATION OR POLITICAL PRESSURE” AND |

REVERSED ITSELF IN A SITUATION WHERE IT LACKED JURISDICTION. —

ee .

16

Caught up in his rhetoric concerning the ready a

etsy,

| of cocaine in Peru, the burning of witches in Salem a f.

7 io

_legality of possessing cyanide (Petitioner's Brief,

‘rs

opie

21,22,24), Defendant charges that there was something

ee

about the Court of Appeals’ decision to reverse its rlie

ruling:

The defense can only conclude that the court was

influence [sic] by some sort of ex

communication or political pressure.

(Petitioner's Brief, 27)

The defense makes this accusation even though it is clear tha

the Court of Appeals in its first opinion failed to consider the

limiting proviso found in the search and seizure provision of.

Michigan's Constitution. Const 1963, art l, § ll.

Defendant has failed to offer any evidence whatsc

to support his claims of inprongfetles.

As it is, it is surprising that Defendant would

his claims solely on a misunderstanding of Michigan appell te

practice. Defendant misconstrues the teaching of People v

7.302(F) (3) of the Michigan Court Rule of 1985 makes clear chat

jurisdiction over a case is vested in the Supreme Court only

after leave to appeal is granted. If leave is denied, © che

jurisdiction would revest in the circuit court. At the time the

prosecution's application was pending in the Michigan ,

>

ae

Court, jurisdiction was still with the Court of Appeals. Pe.

———

timely application to the Supreme Court merely stayed the Court

| of Appeals decision as a final adjudication. People v Phillips,

416 Mich 63, 74 (1982).

Since jurisdiction was still with the Court of

Appeals, it properly issued the order it did on March 9, 1989,

[MCR 7.216(A)(7)] and its subsequent Opinion of April 18, 1989.

At the time the prosecution filed its application for leave to

appeal in the Supreme Court, a copy of the application was filed

in the Court of Appeals pursuant to MCR 7.302(A) (3). It may be

that the Court of Appeals reviewed this application and

recognized its initial error. Defendant fails to make out any

denial of due process.

|

|

|

|

|

|

'

|

|

;

|

|

’

the Respondent prays that this

| court issue an order denying Petitioner's petition for writ

certiorari to the Supreme Court of the State of Michigan.

DATED: May 3, 1990

BY:

Respectfully submitted,

Pontiac, Michigan 48053

(313) 858-0686

1200 North Telegraph Road

-

,

~

*

*.~

| RONALD HARMELIN, RECEIVED

_ Supreme Court Of The State Of Michigan, addressed to Rona

No. 89-7272

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

Petitioner, MAY SS 1990

—_—— OFFICE OF THE CLERK

SUPREME COURT, U.S.

STATE OF MICHIGAN,

Respondent.

PROOF OF SERVICE

STATE OF MICHIGAN)

,SS

COUNTY OF OAKLAND)

Dawn I. Johnston, being duly sworn, deposes and says

on tne 3rd day of May, 1990, she sent a copy of Respondent's —

Brief In Opposition To Petition For Writ Of Certiorari To the |

-

Harmelin, In Propria Persona, at #188131, Scott Regic

Correctional Facility, Plymouth, Michigan 48170 by deposit ne

same in an envelope with the Oakland County mailing pick 1p

service.

Further deponent saith not.

Subscribed and sworn to before me,

this 3rd day,of y, 1990. .

. ’ ary

Oakland County, Michigan

My Commission Expires: 9/7/92