# Opposition Brief — Harmelin v. Michigan

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0486%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 501 U.S. 957

## Text

| 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
"
-
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“
—

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

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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 -

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———— a “4 Ra
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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 : —--

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
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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

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4
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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: ‘

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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.

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;

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’

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0486%3A03. Public record. Not legal advice.