Petition for Writ of Certiorari — Nash v. Michigan
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Supreme Court, U.S.
LED
OFFICE OF THE CLERK
IN THE SUPREME COURT OF
THE UNITED STATES
FREDDIE T. NASH
Petitioner,
STATE OF MICHIGAN
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE INGHAM COUNTY CIRCUIT COURT
JAMES STERLING LAWRENCE (P33664)
Attorney for Petitioner Nash
828 W Eleven Mile Road
Royal Oak, MI 48067
(248) 399-6930
ynot@earthlink.net
QUESTIONS PRESENTED
Petitioner freddie Trail Nash was convicted by jury of first
degree murder and felony firearm He was sentenced by Judge
Nettles-Nickerson to life plus 2 years.
the Michigan Court of Appeals affirmed and the Michigan
Supreme Court denied leave to appeal Petitioner filed a Motion
for Relicf from Judgment which was denied by Opinion and
Order issucd by successor trial court Judge Thomas Brown.
Leave to appeal was sought and denmicd by the Michigan Court of
Appeals The Michigan Supreme Court denied leave to appeal.
The questions presented are:
QUESTION |. WHETHER IRREGULARITIES IN JURY
COMPOSITION AND PARTIALIVY CONSTEPUTED
STRUCTURAL ERROR ENTITLING PETTEPIONER TO A
NEW TRIAL.
QUESTION 2: WHETHER THk DENIAL OF ACCESS BY
THE SPATE COURT TO RAISE A CHALLENGE TO
TESTIMONY OFFERED AS EXPERT TESTIMONY, THAT
WAS NOT SUBJECTED TO THE GATEKEELPING
FUNCTION Stk BY THIS COURT, DENIED
PETITIONER’S DUE PROCESS RIGHTS
QUESTION 3. WHETHER PETITIONER WAS
PREJUDICED AND DENIED A FAIR TRIAL BY
PROSECUTOR MISCONDUCT IN VIOLATING
il
DISCOVERY, PRESENTING IMPROPER BAD ACTS
EVIDENCE, AND LEAVING PREJUDICIAL PIOTOS ON
DISPLAY FOR THE JURY.
QUESTION 4.) WHETHER PETTTIONER WAS DENIED A
FAIR PRIAI BY INEFFECTIVE ASSISTANCE OF
COUNSEL IN FAILING TO SEEK A CHANGE OF VENUE,
PATLING bO RAISE OBJECTIONS, ANID NOI
CONSULTING WITH AN EXPERI
QUESTION “2 WITTE THER PL TETIONER WAS
UNCONSTITUTIONALLY PREJUDICED BY INEEFEECTIVE
ASSISTANCE ¢ \PPELLATE COUNSEI
TABLE OF CONTENTS
QUESTIONS PRESENTED
TABLE OF CONTENTS ..
INDEX OF AUTHORITIES
OPINIONS BELOW
STATEMENT OF JURISDICTION
CONSTITUTIONAL PROVISIONS INVOLVED
STATEMENT OF THE CASE
RKEASONS FOR GRANTING THE WRIT
QUESTION 1 IRREGULARITIES IN JURY COMPO-
SITION AND PARTIALITY CONSTITUTED STRUCTURAL
KRROR ENTITLING PETITIONER TOA NEW TRIAL. 9
QUESTION 2) THE DENIAL OF ACCESS BY THE STATE
COURT TO RAISE A CHALLENGE TO TESTIMONY
OFFERED AS EXPERT TESTIMONY, THAT WAS NOT
SUBJECTED TO THE GATEKEEPING FUNCTION SET BY
THIS COURT, DENIED PETITIONER'S DUE PROCESS
PRERNEE EG. 44 oe os Ors re Atay ae nk ede aes ee
QUESTION 3. PETITIONER WAS PREJUDICED AND
DENIED A FAIR TRIAL BY PROSECUTOR MISCONDUCT
IN VIOLATING DISCOVERY, PRESENTING [IMPROPER
BAD ACTS EVIDENCE, AND LEAVING PREJUDICIAL
PHOTOS ON DISPLAY FOR THE JURY ore
1V
QUESTION 4. PETITIONER WAS DENTED A FATR TRIAL
BY INEFFECTIVE ASSISTANCE OF COUNSEL IN
FAILING TO SEEK A CHANGE OF VENUE, FAILING TO
RAISE OBJECTIONS, AND NOT CONSULTING WITH AN
KXPERT .. ee ea shee ee oe aa
QUESTION 5 PETITIONER WAS UNCONST
ITUTIONALLY PREJUDICED BY INEFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL . . 37
RELIEF SOUGHT. .
APPENDIX
Michigan Court of Appeals Opinion 9/15/2005
Michigan Supreme Court Order 1/30/2006
Trial Court Opinion & Order 12/29/2008
Michigan Court of Appeals Order 3/12/2010
Michigan Supreme Court Order 10/26/10
Newspaper Articles
INDEX OF AUTHORITIES
Cases
Ake v. Oklahoma, 470 U.S. 68, 77,
84 L Ed.2d 53 (1985)... ae
Arizona v Fulminante, 499 U.S. 279 (1991) .........
Berger v. United States, 295 U.S. 78, 55 S.Ct. 629; 79 L
Kd 1314 (1935)
Boykin v Alabama, 395 U.S. 238, 89 S.Ct. 1709:
L.Ed 2d 274 (1969)
Brady v. Maryland, 373 U S. 83 (1963), ... ... . ....... ... ..
Brecht v. Abrahamson, 507 U.S. 619; 113 S.Ct. 1710;
123 L Ed.2d 353 (1993) ... ~ avee By By a ae
Bruno v. Rushen, 721 F.2d 1193 (9th Cir. 1983)..... 23, 29
Cook v. Bordenkircher, 602 F 2d 117 (6th Cir. 1979).... 30
Corsa v. Anderson, 443 F. Supp. 176 (ED
BN, Bet OD xvvnnesseicuseceancmrnaceks Saieeiglaesina te cacao a Geen 35, 38
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S
79,113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)
Davis v. Alaska, 415 U.S. 308; 94 S.Ct. 1105; 39
L.Ed.2d 347 (1974)
Donnelly v. DeChristoforo, 416 U.S. 637; 94 S.Ct
40 L.Ed.2d 431 (1974)
Dowling v. United States, 493 U.S. 342, 352 (1990)...... 26
Duncan v. Loutstana, 391 U.S. 145; 88 S.Ct. 1444; 20
L.Ed.2d 491 (1968)
Dyer v. Calderon, 151 F.3d 970 (9th Cir.1998)
Edwards v. Carpenter, 529 US 446; 120 S.Ct.
1587; 146 L Ed.2d 518 (2000) .
Fuitts v. Lucey, 469 U.S. 387; 105 S.Ct. 830; 83
I ND sci cuiicecceanseycssusausapses cddpaansecs sovvwesnss
Foster v. Lockhart, 9 F.3d 722 (8th Cir. 1993)
Gideon v. Wainwright, 372 U.S. 335 (1963).................
Gilbert v. DaumlerChrysler Corp ,470 Mich.
TAQ (QOOA) 200... cecceccccccsecesececesessvecesessses veee.
Gravley v. Mills, 87 F.3d 779 (6th Cir. 1996) .......... 3!
Groppt v. Wisconsin, 400 U.S. 505; 91 S.Ct. 490; 27
L Ed.2d 571 (1971)
Groseclose v Bell, 130 F.3d 1161 (6th Cir. 1997). ...... .%
Holsomback v. White, 133 F.3d 13882 (11th Cir. 1998) . <
Huddleston v United States, 485 U.S. 681; 108 S.Ct
1496; 99 L.Ed.2d 771 (1988)
In re Winship, 397 U.S. 358 (1970)
Irvin v. Dowd, 366 U.S. 717, 81S Ct. 1639, 6
ee oe sc vacua Wau oheeecedeonsoaneast
Johnson v. Mississippi, 486 U.S. 578; 108 S.Ct.
1981; 100 L.Ed.2d 575 (1988)... .......
Joseph v. Coyle, 469 F.3d 441, 468 (6th Cir.2006)........ >
Kimmelman v. Morrison, 477 U.S 365; 106 S.Ct.
Be, Oe a PU ee I CID vane xe ccncncinadicccceedeccccconcscas 36
Kincade v. Sparkman, 175 F.3d 444 (6th Cir. 1999), ... 2!
Kirk v. Raymark Indus., Inc., 61 F.3d 147, 156 (3d Cir.
1995)
Kowalak v. United States, 645 F.2d 5
(6th Cir. 1981)....
Kyles v. Whitley, 514 US. 419 (1995) .
Lee v. Illinois, 476 U.S 530; 106 S.Ct 2056; 5
L..Ed 2d 514 (1986)
Leonard v. Michigan, 256 F. Supp. 2d 723 (WD Mich ,
2003) pe gen Pi rg le
Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001)
Malley v. Manson, 547 F.2d 25 (2d Cir. 1976).
Mapes v. Coyle, 171 F.3d 408 (6th Cir. 1999) .
Mason v. Hanks, 97 F.3d 887 (7th Cir. 1996) .
McGurk v. Stenberg, 163 F.3d 470 (8th Cir. 1998).. ..... 3
McKaskle v Wiggins, 465 U.S. 168 (1984)
McKoy v. North Carolina, 494 US 433 (1990).
McQueen v. Scroggy, 99 F.3d 1302 (6th Cir 1996)
Medina v. California, 505 U S. 437, 112 S.Ct.
20 L Ed.2d 353 (1992)
Michelson v. United States, 335 U.S 469, 69 S.Ct.
213,93 LEd 168 (1948),
Michigan v. Lucas, 500 U.S. 145 (1991), .
Miller v. Webb, 385 F.3d 666 (6th Cir. 2004)
Murray v Carrver, 477 U.S. 478; 106 S.Ct. 2639;
L.Ed.2d 397 (1986)
Neder v United States, 527 U.S. 1 (2009)
Old Chief v. United States, 519 U.S 172; 117 S.Ct.
Rs BG Bc eee ee Oe CT Paecisivccnccicesvane & seca so « coe 01
Patterson v. New York, 432 U.S. 197, 97S Ct.
2319, 5S ic Be. Sek CIST ei. ices vee eee
Patton v. United States, 281 U.S. 276; 5
74 L Ed 854 (1930) |
Patton v. Yount, 467 U.S 1025, 10:
Ls Bh, ee OT CRED) ois ivcccevseckccsioumenen eee
Pavel v. Hollins, 261 F.3d 210 (2d Cir. 2001)................ 37
Penson v. Ohio, 488 U.S. 75; 109 S.Ct. 346; 102 L.Ed.2d
300 (1988) cccccccceccccecese ceseeseeeee ee
People v. Falkner, 389 Mich. 682 (1973)...
People v. Freddie Nash, unpublished Michigan Court of
Appeals (No. 255874, September 15, 2005)... 16, 8, 15
People v. Jerry Smith, 122 Mich. App. 106 (1982
People v. Murphy, 282 Mich. App. 571 (2008)
People v. Pickens, 446 Mich. 298 (1994) ....0.0..0 ee. 7
People v. Strong, 404 Mich. 357 (1978)... ...... eee.
People v Unger, 278 Mich. App. 210 (2008), .................
Rickman v. Bell, 131 F.3d 1150 (6th Cir 1997)
Romptlla v. Beard, 545 U.S. 374 (2O0S) ...cciesicscsvsccescesss :
Seehan v. State of Jowa, 37 F.3d 389 (8th Cir. 1994) .... 36
Shepard v. United States, 290 U.S. 96; 54 S.Ct. 22:
40 bs Bae CRs. ccaccssiass see a
Sheppard v. Maxwell, 384 U.S. 333; 86 S.Ct. 1507:
16 1c. 2 GOO CRG) nx. cncdccsoisesssetacncies sae
Simmons v. United States, 390 U.S. 377 (1967)............ 21
Sims v. Livesay, 970 F.2d 1575 (6th Cir. 1992) ...0....... 37
State v. Karas, 43 Utah 506; 136 P. 788 (1913)........... 21
Sullivan v. Louisiana, 508 U.S. 275 (1998)........... .10, 15
Tumey v. Ohio, 273 U.S. 510 (1927)
Turner v. Louisiana, 379 U.S. 466: 85 S. Ct. 546: 13
L Ed.2d 424 (1965)
United States v. Harris, 523 F.2d 172 (6th Cir 1973)
United States ex rel Shaw v. DeRobertis, 755 F.2d
1279 (7th Cir. 1985) .
United States v. Acosta-Cazares, 878 F.2d 945 |
6th Cir 1989) .....
United States v. Allsup, 566 I’.2d 68 (9th Cir 1977)
United States v Curbelo, 343 F.3d 372 (4th Cir, 20038)
United States v. Gonzalez, 214 F.3d 1109 (9th
Cir. 2000) ...... |
United States v. Gonzalez-Lopez, 548 U S. 140 (2006)
United States v. Gonzalez- Vargas, 558 F.2d 633
feet Car. 1977)..... .
United States v. Hall, 116 F.2d 1253 (8th Cir. 1997)
United States v. Hamilton, 128 F.3d 996
(6th Cir. 1997). ....
United States v. Lamerson, 457 F.2d 371
(5th Cir. 1972) ....
United States v. Latumer, 511 F.2d 498
(10th Cir. 1975)
United States v. Leon, 534 F.2d 667 (6th Cir. 1976)..
United States v. Martin, 704 F.2d 267 (6th Cir. 1983)
United States v McLain, 823 F.2d 1457
(11th Cir. 1987).
niled States v. ; ‘3 1070 (6th Ci
1996)
nited States t
Cir, 2002)
Inited States v. Rusmtusel, 716
Cir. 1983)
nited States v. Schrock, 855 F.2d 327 (6th Cir. 1988)
inited States v. Swinton, 75 F.2d 374 (8th Cir. 1996)
nited States v. Whitmore, 480 F 2d
1973)
United States v. Marcus. 08-1341 (U.S. 5-24-2010)
Waller v Georgia, 467 U.S. 39 (1984)
Ward v. United States, 995 F.2d 1317 (6th Cir. 1993
Wardius v. Oregon, 412 U.S. 470 (1973)
Weygandt v Ducharme, 774 F.2d 1491 (9th Cir. 1985)
White v. Mitchell, 431 F 3d 517, 5382 (6th Cir.2005)
Wiggins v. Smith, 539 U.S. 510 (2003)
Willis v. Smith, 351 F.3d 741 (6th Cir, 2003)
Wolfe v. Brigano, 232 F.3d 499 (6th Cir. 2000)
Constitutional Provision
U.S. Const., Amend. VI
(J. S. Const.. Amend. XI\
Statutes
28 U.S.C. §1254
Rules
MCR 6.508(D)
M.RE 103(d)
M.R E. 702
Other Authoriti
Merriam-Webster's Medical Dictionary. 200?
The American Heritage Dictionary of the English
Language, Fourth Edition (2009)
| Wharton's Criminal Evidenc
McCormick on Evidence, §185
nd through his attorney
Lawrence
ruling of the [ngham County Circuit Court denying
het from Judgement entered December 29. 2008
OPINIONS BELOW
Che following rulings or orders are attached (1) Order of
the Michigan Supreme Court denying leave to appeal, entered
October 26, 2010, (2) Michigan Court of Appeals Order denying
leave to appeal, entered March 12, 2010, (3) Opinion and Order
of the Ingham County Circuit Court, Michigan, denying Motion
for Relief from Judgment, entered December 29, 2008, (4) Order
of the Michigan Supreme Court dated January 30, 2006 denying
leave to appeal, (5) Opinion of the Michigan Court of Appeals,
dated September 15, 2005, affirming the convictions.
STATEMENT OF JURISDICTION
[he original judgment in Ingham County, Michigan, Circuit
Court was entered May 6, 2004 The Michigan Court of
Appeals affirmed the convictions September 15, 2005. The
Michigan Supreme Court demed Icave to appeal January 30,
2006 Petitioner filed a Motion for Relief from Judgment in the
Circuit Court which was denied by opinion and order entered
December 29, 2008. ‘The Michigan Court of Appeals denied
leave to appeal on March 12, 2010. The Michigan Supreme
Court denied leave to appcal October 26, 2010. This Court has
jurisdiction under 28 U.S C. §1257 to review the final judgment
CONSTITUTIONAL PROVISIONS INVOLVED
he Sixth Amendment to the Constitution provides:
"In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the
crime shall have been committed, which district shall
have been previously ascertained by law, and to be
informed of the nature and cause of the accusation;
to be confronted with the witnesses against him, to
have compulsory process for obtaining witnesses tn
his favor, and to have the Assistance of Counsel for
lus defence."
he Fourteenth Amendment to the Constitution provides
"All persons born or naturalized in the United
States, and subject to the jurisdiction thereof; are
citizens of the United States and of the state
wherein they reside. No state shall make or enforce
any law which shall abridge the privileges or
immunities of citizens of the United States, nor shall
any state deprive any person of life, liberty, or
property, without due process of law, nor deny to
any person within its jurisdiction the equal
protection of the laws."
STATEMENT OF THE CASE
Petitioner Freddie Nash was convicted in the Ingham
County Circuit Court, by jury, before the Hon Beverly Nettles
Nickerson of first degree murder and felony firearm in the death
of Teresa Nash in Case No. 03-1003-FC. On May 26, 2004,
)
Petitioner was sentenced to prison for life plus years
consecutive
An appeal of nght was taken, and the Michigan Court of
Appeals affirmed the conviction September 15, 2005 in docket
no. 255874. The Michigan Supreme Court denied leave to appeal
in docket no. 129668 on January 30, 2006 ~~ Petitioner filed a
Motion for Rehef from Judgment with the state trial court which
was heard by the successor judge, Judge Thomas Brown, who
denied the Motion on December 29, 2008. On March 12, 2010,
the Court of Appeals demed leave to appeal, docket no 295819.
The Michigan Supreme Court denied leave to appeal, docket no.
140950, on October 26, 2010
Statement of Facts:
Gunshots were heard during the carly morning hours of
February 9, 2003 Although witnesses heard the sound, only
Sandra Wolfe saw someone walking across the street, described
as medium height, with a baseball cap and dark puffy down coat
that was below the waist, she did not see the face (T II, 116,
122, 126-7, 135). When Mr. Hulbert looked outside his door he
saw a Chevy Blazer or Suburban sitting next to a utility pole, the
vehicle engine still running (T II, 135-136). Ms Russell called
9-1-1 around 6:00am (TIL, 120).
Police arrived and attempted resuscitation of a_ black
female, but she died (T II, 161-162) The victim was Teresa
Nash, identified by her mother, I'mogene Thomas (1 Il, 214).
[he medical examiner found she died from multiple gunshot
wounds. (T III, 498). That might it had snowed up until 3.30
am. with accumulations of 1/2 to lL inch (T Il, 230, 237). lhe
police found a vehicle involved in an accident and abandoned.
(T II, 165)
Police saw a distinct boot pattern in the snow from the
passenger side of the vehicle to where the body of the victim was
found, then leading away from the scene. (1 Il, 169-170). Uhe
boot prints were photographed. (T IT, 257-258, 326-327)
A dog handler tracked the prints and the scent was lost
near 1328 Pierce Street. Police theonzed the man got into a
vehicle there (TII, 296-301).
latent prints were lifted from the passenger door of the
vehicle, however, no matches were made (T II, 248-249, 251).
Detectives tried to find boots that made the print in the
photos taken and found a similar match at a Famous Footwear
Store, a size 13 Stacy Adams work boot, and purchased that boot
and sent it to the Michigan State Police crime lab for analysis by
Karl Sum: (TIL, 522).
6
Petitioner's home was searched and 10-tS pairs of shoes
were removed, none were Stacy Adams, and all were around s17e
lO 3 (T Ill, 525, 526) When Petitioner was arrested he was
wearing size 10 FUBU tennis shoes (T IV, 590).
Chemist Karl Suni reported on his comparisons of the
photos and the boots he was provided with by the police (T III,
538, 546). It was his opinion that the shoe that made the prints
was a size 9 1/2, 10 or 10 1/2 based upon his measurement that
the shoe making the print was 12 1/2 inches long (T III, 547,
59).
Private investugator Gorsuch also made measurements and
testified the boot that made the prints measured 11 7/8 inches,
contrary to Mr Sum's conclusion (1 IV, 723, 727) The
director of merchandising from the parent company of Stacy
Adams testified that the boot print could have been made by the
boot or another model, a shoe version of the trooper model (T
IV, 754) A shoe that measures |1 7/8 inches would be size 9. (
[ IV, 746). Petitioner's shoe size was measured as being size | |
without a sock and size Il 1/2 with a sock. (T IV, 766, 770)
Jonathon Fellows testified he and his wife Alicia lived in
Mason, Michigan, but their daughter was staying at Alicia's
grandmother's in Lansing when they received a call around 4.45
am on February 9, 2003, to come get their daughter as she was
sick. (1 Il], 449). They arrived at 2427 Wadsworth and saw a
blue Chevy Tahoe pull up and a black male got out, leaving the
door open, and walk back and forth in front of the vehicle hooting
and hollering (T Il, 449, 451, 469). They went inside to retrieve
belongings, then came out and noticed the vehicle was still there,
but the door was closed and they saw no one. (TIL, 454) The
Fellows went back inside to retrieve their daughter and when
they came out, that vehicle was gone (TIII, 455). They drove
off and later saw the same vehicle had spun out of control, and
later down the street they saw the same man, not identified as
Petitioner, running down the street. (TIT, 457, 472).
Petitioner had been married to Teresa Nash previously
but they were divorced, and they did have one child together. (T
II, 216). There had been a disagreement over child support
between Ms. Nash and Petitioner. (T III, 478, 480). Petitioner
retained counsel, attorney Cynthia Law, and received a favorable
ruling after a referee hearing held January 27, 2003, less than 2
weeks before Ms. Nash's demise. (T V, 773-774). Petitioner
was not angry or upset over the matter, and was pleased he
-
prevailed, with reduction of costs by over half. (TV, 774-775).
Ms Nash had other children, including her daughter
Ra'eese Cannon, who was 12 in 2003. (7 III, 373) After the
death of Teresa Nash, the children moved in with grandmother
I'mogene Thomas. (T IIT, 397)
A month and a half after the death, Petitioner, along with
his brothers and mother, went over to Ms. Thomas' house to
pick up his child Freddie Taysia Nash (T 111,423). — Petitioner
answered a phone call. (J Ill, 424). After they left, Ra'eese
Cannon came in the room and told her grandma, Ms. Thomas,
8
that she had heard Petitioner's voice and phone tone before, the
mght her mother died. (T JIl, 425) Ms Thomas then called the
detectives ir.voived in the case (T III, 425)
Ra'eese Cannon was awakened by voices she heard from
downstairs on the early morning hours of February 9, 2003 (1
Ill, 382). She told the yury she recognized the voices as being her
mother's and Petitioner's, though she never saw who was actually
downstairs with her mother. (TIL, 383, 400). Ra’eese heard a
phone ring, but the ring was not one she was used to hearing and
heard the phone being answered (T IE, 387-388) Later, Teresa
Nash came upstairs and got her purse and keys and then left
(T1II, 392) Ra'eese went back to sleep and was awakened by
gunshots (T III, 393)
A month and half later Ra’eese claimed Petitioner's voice
and phone were the same she heard the night her mother was
i £
killed (T HI, 399).
Detective Gomez testified that Petitioner could have been
in the area of the scene of crime at the relevant time, but the
engineer from Nextel testified that even with all the information
provided one still could not tell an exact address of where the
caller was. (TIV, 683-684)
REASONS FOR GRANTING THE WRIT
QUESTION 1 IRREGULARITIES IN JURY
COMPOSITION AND PARTIALITY CONSTITUTED
STRUCTURAL ERROR ENTITLING PETITIONER TO A
NEW TRIAL.
Petitioner Freddie Nash was convicted at a jury trial of
first degree murder and felony firearm It came to the court's
attention that during deliberations one of the jurors went home
but the other jurors remained behind Defense counsel moved for
a mistrial based on proceedings taking place with only 11 jurors.
his was denied. (1 886-888, 893-898).
The record does not identify which juror had been
missing. The record does reflect that the next day al! 12 jurors
assured the judge that no deliberations took place while the juror
was missing ‘The record does not reveal how the juror who was
not present during the period was able to answer that question.
Nevertheless, the yudge made it obvious what answers to give to
keep this trial going, and jurors gave the judge the desired
answers, including the juror who was not present and had no
personal information about what happened 1n his or her absence
We submit failing to grant the mistrial constituted
reversible error, as deliberations with 11 jurors impermissibly
infringed on the federal constitutional right to jury trial, even
though the missing juror returned another day
10
[In a criminal case, "The accused shal] enjoy the right
to.. trial by an impartial jury " US Const, Amend VI Being
"fundamental to the American scheme of justice," Duncan v
Louisiana, 39} US 145, 149 (1968), the right 1s binding on the
States Turner v Louisiana, 379 U S. 466 (1965)
While the defendant can waive the right to a unanimous
verdict by 12 jurors if done knowingly, voluntarily and
intelligently, Patton v United States, 281 US 276 (1930), Boykin
v Alabama, 395 US 238 (1969), United States v Martin, 704
F.2d 267 (6th Cir. 1983), this Petitioner did not. Proceedings
with 11 jurors cannot be sustained without a valid waiver. This
is a Structural error. Sullivan v Louisiana, 508 U S. 275 (1993).
The fact is the jurors were there for the purpose of
deliberating, and it defies reason and logic to think that they
would remain in the room into the evening after one juror left, yet
not discuss the case, especially where they were not so
instructed
As the Court noted in McKoy v North Carolina, 494 U.S
433 (1990) (opinion of Scalia, J) "A jury, of course, 1s not a
collection of individuals who are asked separately about their
independent views, but a body designed to deliberate and decide
collectively."
The State trial court, in denying this issue, wrongfully
looked to whether prejudice could be shown (Opinion 4), which
is not the standard for structural errors.
1]
The State trial court denied this in part on the fact that
the judge instructed the jurors to begin deliberations "from
scratch" (Opinion, 4) An instruction to wipe from one's head
everything that had already been discussed, and resume
discussions without thinking of or referring to anything already
said, 1s form without substance. Not one individual in 1000
would be capable of following such instructions The judge
herself could not do it The following day, the judge answered
the written questions from the day before (T 897-898). The
questions the jury sent the day before were part and parcel of the
jury deliberations purportedly being discarded, on _ the
instructions of the very judge not discarding them. rhe
instruction cured nothing.
In United States v Curbelo, 343 F.3d 372 (4th Cir, 2003),
the Court held that where a defendant does not stipulate to
proceeding with 11 jurors, it is impossible to quantify the effect,
and such errors are considered structural errors
The inability to quantify the effect of the error is what
distinguishes most trial errors from structural errors. Consider
the discussion by this Court in Neder v United States, 527 U.S.
1, 8-9 (2009):
‘The error at issue here — a yjury instruction
that omits an element of the offense — differs
markedly from the constitutional violations we have
found to defy harmless-error review. Those cases,
we have explained, contain a "defect affecting the
framework within which the trial proceeds, rather
1?
than simply an error in the trial process itself
Fulminante, supra, at 310 Such errors "infect the
entire trial process," Brecht v Abrahamson, 507
U S. 619, 630 (1993), and "necessarily render a trial
fundamentally unfair," Rose, 478 U.S., at 577
A structural error is not subject to being made harmless
via later instructions In this case, the best showing of prejudice
possible, the fact that the judge herself could not follow the
impossible instructions she gave the jury, would be the most any
defendant could ever come up with As explained in Neder, the
nature of the error renders the results unreliable and no showing
of prejudice is needed
“Put another way, these errors deprive
defendants of "basic protections" without which "a
criminal trial cannot reliably serve its function as a
vehicle for determination of guilt or innocence
and no criminal punishment may be regarded as
fundamentally fair "
There was another impropriety During jury selection,
the parties read off the names of witnesses, including Officer Joel
Mires (1 6). The judge asked the prospective jurors to note 1
they knew any of the witnesses, then to inform the court when
they got in the jury box. (T 8).
On day 3, witness Mires informed the court that he
recogmzed Juror 5, Edward Wurm, saying "we've been friends
since elementary school" The judge was concerned Juror Wurm
had not disclosed that, yet, did not excuse the juror. (T 354)
Later, Sam Ostrander informed the court his friend Andy
l homas, relative of the deceased Teresa Nash, came to his house
and said one of the jurors was a friend of his and assured him he
would make sure the jury would find Petitioner Nash guilty
regardless (T 782-792). He said Andy Thomas told him that he
and the juror hang out every day (T 789) He said, "It's his
cousin that's dead, okay, and he knows this juror on the jury box,
and since he knows it was his cousin, he said he's going to find
him guilty regardless if he's not guilty. No ifs, ands, and buts
about it." (fT 791) Juror 15, Joel Post, said he knew Andy
lhomas from Lansing Christian, but had not spoken with him for
years. (1 806)
Michael Andrew Thomas testified that he was the first
cousin of the deceased, Teresa Nash He admitted telling Sam
that "I think we got a juror that we know on the jury bench." (7
816) He stated he had not had contact with the juror for at least
two months (T 817).
However, Mr. [Thomas stated that the name of the man
they knew was Doug (T 814), which matched Douglas
Blankenberg, juror no. 6, not juror Post
A defendant has a Sixth Amendment right to "a verdict by
impartial, indifferent jurors" to avoid any bias or prejudice that
might affect the defendant's right to a fair trial Dyer v Calderon,
ISI F.3d 970, 973 (9th Cir.1998) (en banc). his right is so
fundamental that the Second Circuit has held that the right to an
impartial factfinder was "inherently unwaivable" because to hold
otherwise would result in "fundamentally unfair" proceedings
against the defendant United States v Nelson, 277 ¥.3d 164, 205
(2d Cir 2002)
(he friendship relationship of Juror 5 with a_ police
witness in the case, and the friendship relationship of Juror 15
with the cousin of the deceased, leading to false statements and
failures to disclose the relationships, required removal of the
jurors No trial could fairly proceed where a juror had promised
his friend that the guy on tral was going to be convicted no
matter what
Ihe State court wrongfully looked to whether prejudice
could be shown (Opinion 5), which is not the standard for
Structural errors Bccause an impartial yury 1s so fundamental,
"[dJoubts regarding bias must be resolved against the juror
United States v Gonzalez, 214 F 3d 1109, 1114 (9th Cir. 2000)
The nature of this error was discussed in Dyer v Calderon
‘The presence of a biased juror cannot be
harmless, the error requires a new trial without a
showing of actual prejudice. See United States v
Allsup, 566 ¥.2d 68, 71 (9th Cir. 1977). Like a judye
who is biased, see 7umey v Ohio, 273 U.S 510,
535 (1927), the presence of a biased juror introduces
a structural defect not subject to harmless error
analysis See generally Arizona v fulminante, 499
US 279, 307-10 (1991).”
[he Court also erred by not finding prejudice. Ra'Eesa
Cannon, the only identifying witness, testified only to a voice
identification, reported weeks later, not a visual identification
While that {\ pe of testimony could be te asi "in SOME Case
it would not universally be so ht ; the very type of case
where the bias or incentive of a single juror could have
cnormous impact on the outcome
hrrors concerning, composition of the jury and actions of
the jury are structural errors which do not require the defendant
to make any showiny of prejudice }} (fv Ahrahamson, SO7
US. 619 (1993)
Petitioner submits that these irregularities involving both
the deliberative process and deceit in the Composition of the jury
constitute errors in that limited group Known as structural errors
As this Court observed last term in United States v Marcus, 08
$-24-2010)
‘But “structural error are “a very limited
class’ of errors that affect the " framework within
which the trial proceeds," Johnson, supra, at 468
(quoting Arizona vo fulminante, 499 U.S. 279, 310
(1991), such that it is often "difficull[t|" to "asses[s|
the effect of the error,” United States vo Gonzale:
Lope - S48 U.S. 140, 149. n. 4 (2006). See Johnson.
supra, at 468-469 (citing cases in which this Court has
found = "structural error," including (Crideon
Wainwright, 372 U.S. 335 (1963) (total deprivation
of counsel). 7umeyv vo Ohto 273 UV. S. S510 (1927)
(lack of an impartial trial judge); McKaskle v Wiygins,
465 US. 168 (1984) (right to self-representation at
trial); Waller vo Georvia, 467 U. S. 39 (1984)
(violation of the nght to a public trial); and Sullivan v
16
Louisiana, 508 U. S— 275 (1993) (erroneous
reasonable-doubt instruction))
This Court should grant review and hold that jury
composition and jury impartiality irregularities each constitute
structural error, and did so 1n this case, and order a new trial at
which the jurors are impartial and do not cover up their ties to
police witnesses and the family of the deceased, and do not make
commitments to family members of the deceased that the
defendant will be convicted, and at which the jurors deliberate as
a body, with all of them present
QUESTION 2° THE DENIAL OF ACCESS BY THE STATE
COURT TO RAISE A CHALLENGE TO TESTIMONY
OFFERED AS EXPERT TESTIMONY, THAT WAS NOT
SUBJECTED TO THE GATEKEEPING FUNCTION SET BY
THIS COURT, DENIED PETITIONER’S DUE PROCESS
RIGHTS
The state trial court ruled incorrectly that the issue of
"allowing expert testtmony under MRE 702" was “decided
against the Defendant in a prior appeal." (Opinion, 7). The
opinion in People v Freddie Nash, unpublished Michigan Court
of Appeals (No. 255874, September 15, 2005) plainly lists 2
issues sufficiency of the evidence of premeditation, and whether
to grant a new trial based on newly discovered evidence The
Court did not decide a question of whet!er the testimony of Karl
Suni was wrongfully admitted at trial
17
[In a criminal case, due process 1s violated when a state's
procedures "offend some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as
fundamental." Medina v California, S05 US 437, 445 (1992)
(quoting Patterson v New York, 432 U.S 197, 202 (1977)).
Criminal defendants must be given "an adequate opportunity to
present their claims fairly within the adversary system" Ake v
Oklahoma, 470 U.S 68, 77 (1985) Ruling that an issue cannot
be heard because it was decided before, when it was not decided
before, denied Petitioner an adequate opportunity to present his
claums.
The underlying legal error also denied due process. The
testimony in question was by Karl Suni of the Michigan State
Police lab. He received a Master of Science degree in
microchemistry from Miuchigan State and worked in_ the
microchemistry unit.
Microchemistry is’
"Chemistry that deals with minute quantities of
materials, frequently less than one milligram in mass
or one milliliter in volume " The American Eleritage
Dictionary of the English Language, Fourth Edition
(2009).
“chemistry dealing with the manipulation of very
small quantities for purposes of preparation,
characterization, or analysis." Merriam-Webster's
Medical Dictionary, 2002
Mr. Suni stated (T 537):
"In the microchemistry subunit we analyze
things On a microscopic scale such as paint, glass,
fibers, explosive residue We also in that subunit
analyze footwear and tire impressions "
The state police can organize their units any way they
wish. But the mere fact that they have joined microchemistry
with footwear and tire impressions into a single unit does not
make a microchemist an expert in other fields The prosecutor
offered Suni as an expert in microchemistry, but then used him as
an expert in another field, footwear impressions.
Without any demenstration that he was employing a
technique recognized as scientifically reliable, he testified that
there was "no question" that the submitted boots had the "same
tread" as the footprints in the snow, and that “we can say that
it's a Stacey Adams boot." (T 543) What branch of chemistry is
that?
MRE 702 provides that the judge 1s to allow only
expert testimony based on reliable techniques, by qualified
experts.
A chemist is not "a witness qualified as an expert by
knowledge, skill, experience, training, or education" to testify
about footwear identification He should not have been
permitted to give this testimony outside his qualifications
Moreover, the chemist should not have been permitted to
testify to a purported scientific technique that was not shown to
meet the requirements of Daubert v = Merrell Dow
19
Pharmaceuticals, Inc, 509 U.S 579, 113 S.Ct. 2786, 125
L.Ed 2d 469 (1993) In Gilbert vy DaimlerChrysler Corp., 470
Mich 749 (2004), the Michigan Supreme Court citing to Daubert
held the trial judge must exclude from evidence scientific
testimony that has not been established by its proponent to be
reliable. In People v Unger, 278 Mich. App. 210 (2008), the
Court applied this rule to criminal cases.
We submit that the trial court failed in its responsibilities
on this occasion, by allowing the chemist to testify about
something other than chemistry, and by accepting "footwear
identification" as a scientifically valid method of determining
facts, both of which are contrary to Daubert
Petitioner properly presented a challenge to his
conviction in a Motion for Relief from Judgment under M.C.R
6 500 et. seq. The state courts denied due process by precluding
review of this issue and making an objectively unreasonable
finding that this issue had been raised on direct appeal where the
record demonstrates that is not true.
QUESTION 3. PETITIONER WAS PREJUDICED AND
DENIED A FAIR TRIAL BY PROSECUTOR MISCONDUCT
IN VIOLATING DISCOVERY, PRESENTING IMPROPER
BAD ACTS EVIDENCE, AND LEAVING PREJUDICTIAI
PHOTOS ON DISPLAY FOR THE JURY
Petitioner proceeded to trial on charges of murder and the
prosecutor withheld exculpatory evidence until trial which
20
precluded any testing or challenge to the validity of inculpatory
evidence Petitioner submits this prosecutorial misconduct
denied a fair trial.
The case against Petitioner was circumstantial, based
upon spurious claims that boots, not owned by Petitioner, but
somehow attributed to Petitioner, left prints in the snow leading
away from the scene of the crime At trial, the victim's underage
daughter claimed that she heard a voice and phone ring tone just
before her mother died which she told the jury was simular to
what she heard months later when Petitioner was at her
grandmother's house
As the United States Supreme Court in Wardius v
Oregon, 412 U.S 470 (1973) observed
“Although the Due Process Clause has little
to say regarding the amount of discovery which the
parties must be afforded, but cf. Brady v Maryland,
373 U.S. 83 (1963), it does speak to the balance of
forces between the accused and his accuser. Cf. /n re
Winship, 397 U.S 358, 361-364 (1970) "
When the defendant withholds evidence from the
prosecutor to obtain a clear tactical advantage, the conduct merits
the strongest response. See United States v Hamilton, 128 F 3d
996 (6th Cir. 1997):
"In Michigan v Lucas, 500 U.S. 145 (1991),
the Supreme Court reiterated its holding in 7aylor
and stated that when a discovery violation amounts
to willful misconduct and is designed to obtain a
tactical advantage, regardicss of whether prejudice to
the prosecution could have been avoided by a lesser
penalty, the severest sanction 1s appropriate "
Due process and equal protection demand fair and similar
treatment. The Supreme Court has long held that due process of
law and basic fairness demand that the most reliable method of
identification possible be used in a criminal case See Summons v
United States, 390 U.S 377, 383-384 (1967).
Wharton concluded that
"The qualification of the witness to express
an opinion as to the identity of the voice must be
shown as based either on familiarity with the
speaker, or upon some peculiarity in the voice
which would make it likely that the witness could
distinguish and identify the voice in questton" |
Wharton's Criminal Evidence, § 183, p 365.
Michigan has also recognized the need for reliability
testing of voice identification People v Bozzi, 36 Mich. App.
15(1971), lv den 386 Mich. 775 (1971) noted with approval the
language of State v Karas, 43 Utah 506, 136 P. 788 (1913):
"Undoubtedly voice 1s a competent means of
identification, and one by such means alone may be
sufficiently identified. In some _ instances
identification by such means may be as ponderous
as identification by sight But the testimony should
be reasonably positive and certain, and based upon
some peculiarity of the person's voice, or upon
sufficient previous knowledge by the witness of the
person's voice™ 36 Mich App. 19 In accord
People v Murphy, 282 Mich App 571, 584
(2008) "
Here the prosecutor introduced voice identification and
ring tone identification without informing defendant of this
evidence before trial, thus preventing any hearings or line-ups to
determine the reliability of a young girl's ability to differentiate
and distinguish voices and ring tones.
[here were no line-ups or voice exemplars involved. Nor
was there anything in the testimony identifying anything peculiar
or distinctive about Petitioner's voice upon which a distinction
between voices could have been made As a result of this
prosecutorial misconduct, unreliable and highly — prejudicial
evidence was presented to the jury poisoning any reasonable
chance of a fair and impartial jury. A single 5 minute testing of
speaking by Petitioner and a few others under controlled
conditions could have blown this identification testimony out of
the water, making a conviction impossible, or highly unlikely.
The prosecutor withheld this "identification" evidence to secure a
tactical advantage
The inherently unreliable identification evidence from the
decedent's minor child unfairly prejudiced Petitioner. See Old
Chief v United States, 519 U.S 172 (1997):
"Unfair prejudice’ .. means an undue
tendency to suggest decision on an improper basis.
commonly, though not necessarily, an emotional
one."
Adding to the unfairness, the prosecutor introduced bad
character information and improper argument to the jury. A
conviction should be reversed where prejudicial and improper
argument by the prosecutor has the effect of denying the
defendant a fair trial United States v McLain, 823 F 2d 1457
(llth Cir. 1987); Bruno v Rushen, 721 F.2d 1193 (9th Cir.
1983) The standard is whether the conduct "so infected the trial
with unfairness as to make the resulting conviction a denial of due
process." Donnelly v DeChristoforo, 416 U.S. 637 (1974)
Petitioner was charged with murder of his ex-wife In an
effort to show motive, the prosecutor introduced testimony from
a Friend of the Court employee, claiming Petitioner was angry
with the victim over child support matters The prosecutor's
theory was that the Friend of the Court dispute was unfavorable
to Petitioner, thus motivating Petitioner to want to murder his ex-
wife.
The trial court ruled this testimony was_ permitted
because it dealt with motive Petitioner submits the ruling was
objectively unreasonable and the evidence unfairly prejudiced
Petitioner. If Petitioner had been unsuccessful in resolving the
child support matters with the victum, then evidence about what
happened with the Friend of the Court may have been admissible
as demonstrating motive. However, Petitioner WAS
24
SUCCESSFUL in his objections to the Friend of the Court and
obtained a favorable ruling there (I 773-775)
Essentially the prosecutor deceived the jury, stating that
Petitioner was unsuccessful in obtaining relief from the Friend of
the Court, and therefore had a motive to murder the victim The
evidence did not support motive, instead, the evidence, and its
twisting by the prosecution, was used by the prosecution to
paint Petitioner as an unsympathetic, “bad" person
In Michelson v United States, 335 U.S. 469, 475-476
(1948), the United States Supreme Court ruled "'The state may
not show defendant's prior trouble with the law, specific criminal
acts, or ul name among his neighbors, even though such facts
might logically be persuasive that he is by propensity a probable
perpetrator of the crime '
As the Court held in United States v Acosta-Cazares, 878
F 2d 945 (6th Cir 1989)
"evidence of criminal character or propensity
is excluded because the jury might convict the
defendant for the conduct proving propensity rather
than for the offense for which he is on trial.”
Even if established by evidence, fundamental fairness
prohibits "the introduction of evidence of extrinsic acts that
might adversely reflect on the actor’s character, unless that
evidence bears upon a relevant issue in the case such as motive,
Opportunity or knowledge" Huddleston v United States, 485
U.S 681, 685 (1988)
As the Court noted in United States v Schrock, 855 F.2d
327 (6th Cir. 1988), quoting from McCormick on Evidence, §185,
at 545 (1984
"Prejudice can arise . from facts that arouse
the jury’s hostility or sympathy for one side
without regard to the probative value of the
evidence " See also Shepard v_ United States, 290
U.S. 96, 54 SCt 22, 78 L Ed 196 (1933), United
States v Merriweather, 78 F.3d 1070 (6th Cir.
1996).
The prosecutor's incessant argument to the jury that
Petitioner was angry and out of control over unfavorable Friend
of the Court rulings was highly prejudicial, inadmissit!e, and
irrelevant. His alleged violent character had no _ legitimate
tendency to prove him guilty, other than by the forbidden means
of inferring from his character that he committed the charged act
See Kincade v Sparkman, 175 F.3d 444 (6th Cir. 1999),
holding that the Petitioner was entitled to Habeas Corpus relief
because the prosecutor, in argument before the jury, called him a
"professional burglar," suggesting repeated commission of other
similar crimes. As the Court noted in Kincade: "The remarks
were made deliberately. Any prosecutor should know that he
has stepped far over the line when he makes this type of closing
argument "
Z0
The submission and admission of the evidence
undermined any legitimate confidence in the trial process and the
introduction of this evidence “is so extremely unfair that its
admission violates fundamental conceptions of justice ” Dowling
v United States, 493 U.S 342, 352 (1990)
The prosecutor deliberately and repeatedly left on
display to the jury enlarged photographs of the deceased showing
her fatal injuries (T 167, 192, 200, 214). Lach photo was left on
display until the projector was needed for another exhibit
Photos from the autopsy detailing cach wound and stages of the
autopsy were also displayed to the jury, (I) 503-507), being
projected during the entirety of Dr DeJong’s testimony
The cause of death in this case was multiple gunshot
wounds. (1 498). There was no probative value to immersing
the yury in bloody photos. The only question for the jury was
who fired the shots, a question not answered in any way by the
photos. However, the photos would have the natural effect of
disgusting and hornifying the jurors, playing on their sympathies,
leading to a conviction of the Petitioner whether the evidence
against him was strong or not.
These circumstances have led the Michigan Supreme
Court in other cases to find that the only reasonable conclusion
for the use of the photographs was to incite the jury:
"Defendant's appropriately filed notice of
alibi and his consistent reliance on alibi as his
defense, coupled with the unrebutted proof that [the
murder victim| was killed by a shotgun blast,
rendered the use of these photographs neither
substantially necessary nor instructive to show
material facts or conditions We can find no othe:
reason for their use than to excite passion and
prejudice " People v_ Falkner, 389 Mich. 682
(1973).
As in Falkner, the photos were not relevant or material to
any fact in controversy
Since 1ts actual probative value on any contested matter is
zero, Clearly undue weight would be given by a jury. Why show
the jurors grucsome photos, if the intent 1s not to provoke an
emotional response? Why do itt where the cause of death 1s
obvious and uncontested, and the photos have no bearing on who
)
did the shooting’
Petitioner endorses the reasoning of People v Jerry Smith,
122 Mich App. 106 (1982), a case strikingly similar to this one
"We find that these photographs were
neither substantially necessary nor instructive to
show a material fact and were introduced only to
excite the jury's passion and prejudice. Admitting
these photographs caused a manifest injustice.
Accordingly, we reverse
(he photographs were used twice at trial
and only to establish that the extensive wounds
they depicted were those of Thomas Brooks. The
nature of the wounds. however, did not serve to
rebut defendant's alibi defense, nor was it relevant to
any clement of first-degree murder
he prosecutor’s use and display of these photos
prejudiced Petitioner, denying him a fair trial, and rendering, the
verdict unreliable
It was also improper and a denial of due process for the
prosecutor to arpue facts not in evidence. Berger v United
States, 295 US. 78 (1935), United States v Leon, 534 2d 667
679 (6th Cir. 1976), United States ex rel Shaw v DeRobertis, 7°
2d 1279 (7th Cir 1985): United States v Latime?
498 (10th Cir. 1975), United States v Whitmore, 480 |
(D.C Cir 1973), U/nited States vo Gonzalez-Vargas, 558
633 (Ist Cir. 1977), United States vo Lamerson, 457 F.9d
(Sth Cir 1972): U.S. Const... Amend. XIV
he prosecutor knew that Petitioner had been successful
in resolving his Friend of the Court matters involving the
decedent; yet the prosecutor made claims of bad blood between
Petitioner and victim based upon the improper suggestion that
Petitioner was unsuccessful in lowering child support and
arrearage, known by the prosecutor to be untrue
Here, as in United States ex rel Shaw v DeRobertis, 755
F.2d at 1281, “The prosecutor violated the fundamental rule,
known to every attorney, that argument is limited to the facts in
evidence.”
l‘or the prosecutor to provide the jury with evidence that
the witnesses did not provide the jury is for the prosecutor to
unlawtully assume the role of wit
supra Because the defendant cannot cro CXalnine a proscculotr
who docs not take the stand, such actions bi ¢ prosecutor
violate the fundamental right of cross-examination eriyht ota
defendant cross-cxamuine the witnesses ¢ ‘to him
recognized as being the most fundamental of rights » Const
Amend. VI, U ‘onst., Amend, XIV: C’rawford vo Washinvton
Supra Davis \ llaska : ; ee Hlinoiws, 476
[ ‘ (L986)
\ conviction. si d | ersed wl idicial and
Improper arpument by ¢ prosecutor
the defendant a fair trial. (/nited Stat
(llth Cir 1987) Bruno vo Rushen, 72) b.2d 1193 (9th Cu
193) lhe standard is whether the comments "so infected the
trial with unfairness as to make the resulting conviction a denial
due proces s Ldonneli \ ; , iSfosore 116 : 063)
(1974)
Ht the argument is sulficiently improper
for reversal even without an Objec tion C/rril
(6th Ci
| here no consistently applied rule denyiny relict for
failure of defense counsel to object and therefore such failure can
not be used as the basis for procedural default in federal Habeas
(Corpus. Johnson \ VMississippt 4860 U.S. 5/78. 58/7 (1988)
Numerous Michigan cases have granted relief to
defendants based on improper prosecutor argument, where the
defendant failed to object Therefore, Petitioner is not foreclosed
from revicw even though his attorney failed to object
103(d); People v Knox, 469 Mich 502 (2004), People v
404 Mich. 357 (1978)
We submit that the improper argument, which brought
matters to the jury not found in the testimony, was an extraneous
influence, material to what the jury was considering
Under Cook v Bordenkircher, 602 '.2d 117 (6th Cir
1979), because the prosecutor’s remarks had "a tendency to
mislead the jury," because they encouraged the jury to consider
alleged "facts" which were not in evidence, and because the
remarks were "deliberately — placed before the jury," 602 F.2d at
120, reversal 1s required Under Brecht v Abrahamson, supra,
the error “had a substantial and injurious effect or influence in
determining the jury’s verdict '
This Court should grant the writ and order a new trial at
which the jurors are not subjected to prolonged exposure, or any
exposure, to gruesome photos that have no bearing on who
committed this fatal shooting, or exposed to prior acts evidence,
and that the prosecutor must argue only evidence that was
introduced, and disclose requested materials.
QUESTION 4. PETITIONER WAS DENIED A FAIR TRIAI
BY INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING
TO SEEK A CHANGE OF VENUE, FAILING TO RAISE
OBJECTIONS, AND NOT CONSULTING WITH AN
EXPERI
Petitioner makes three separate claims of ineffective
assistance of counse!
Failure to Seek Change of Venue.
Petitioner was charged with the death of hts former wife
[he newspapers and other media had been running stories about
the case, including numerous articles emphasizing how the victim
left six children behind and had been trying so hard to provide for
her family. (1 1, 21-22, 65-66). Articles about Petitioner, the
victim, and the case ran as recently as the day before jury
selection (TI, 25)
The effect of the publicity was noted by one prospective
juror who 1n answering if information learned from the articles
would interfere with deliberations, the juror said: "probably,
especially if it's brought up during the testimony." (T I, 24).
Petitioner submits trial counsel was constitutionally deficient in
not seeking a change of venue and/or more extensive voir dire to
ferret out extraneously caused bias Found in the Appendix are
some newspaper articles discussing the killing and charges.
"A criminal defendant is entitled to “a fair trial by a panel
of impartial, ‘indifferent’ jurors.” /rvin v Dowd, 366 U.S. 717
(1961) A defendant who claims that media coverage tainted the
jury may prevail by showing either “presumptive prejudice” o1
“actual prejudice.” Joseph v Coyle, 469 F 3d 441, 468 (6th
Cir 2006)
If presumptive prejudice does not apply, courts must
consider whether the defendant was actually prejudiced. The
court 1s to examine the voir dire transcript and the extent and
nature of the publicity to determine whether a fair trial was
impossible. White v Mitchell, 431 F.3d 517, 532 (6th Cir.2005)
Prospective jurors being familar with the facts and issues tn the
case docs not automatically disqualify them as biased foley, 488
F.3d at 387. “The relevant question ts ‘did [the] yuror swear that
he could set aside any opinion he might hold and decide the case
on the evidence, and should the juror's’ protestation of
impartiality have been believed.” Id (quoting Patton v_ Yount,
467 US. 1025. 1036 (1984))
Although the court did remove some jurors for cause, the
standard imposed by the trial court was ineffectual Consider
Juror # 15 of the array who flat out indicated that the news
coverage interfered with her ability to deliberate. She was not
removed for cause, but only by peremptory challenge. (T 1, 24,
61) Despite the admitted lack of impartiality of this juror, the
rial court considered this juror to be umpartial and unbiased
[his was not an isolated incident. Consider juror #12,
who had read the articles in the papers and had seen the
television reports, and when asked about keeping an open mind,
he indicated. ""to be completely unbiased with this case, | would
be real hard to." (1 119) ‘The tral court did not remove this
juror for cause and the defense had to use another peremptory
—
challenge to remove this juror. (T I, 78) Left on the jury was
juror Collins who read the paper everyday and was familiar with
the case from reading about it and watching tclevision news
|
reports. (7 I, 65-65). Why should any criminal defendant, in the
United States of America, be tried by a juror who might have
some problems keeping an open mind?
966). the Court
Due process requires that the accused
receive a trial by an impartial jury free from outside
influences Given the pervasiveness of modern
communications and the difficulty of effacing
prejudicial publicity from the minds of the jurors,
the trial courts must take strong measure to ensure
that the balance is never weighed against the
accused
Petitioner Nash's trial should not have been held in
Ingham County. the inquiry should focus on the extensive
publicity, the pervasiveness of the community
the extreme familiarity of the case to the jurors, to the point
where they could recognize Petitioner on sight To allow the
jurors’ conclusions to overcome everything else the jurors said 1s
to eliminate the requirement of fair and impartial juries altogether.
To use an extreme example, under the standard employed here,
34
even if ina county where no jury could be seated without one or
more members of the Ku Klux Klan to sit in judgment of an
African-American defendant, a change of venue still could not be
had if enough jurors declared they could set that aside and be fair.
Consider Miller v Webb, 385 F 3d 666 (6th Cir. 2004).
“An affirmative statement of impartiality is
required to ensure that a juror is unbiased, but such a
statement alone 1s not the determining factor. A trial
court must still determine, from the context, whether
such a statement 1s believable” See also Wolfe v
Brigano, 232 F 3d 499, 502 (6th Cir 2000) (“A
court’s refusal to excuse a juror will not be upheld
‘simply because the court ultimately elicits from the
prospective juror a promise that he wall be fair and
impartial .. ~°” (quoting Kirk v Raymark Indus
Inc , 61 F.3d 147, 156 (3d Cir. 1995) " at 677 n 2
Juries "are extremely likely to be impregnated by the
environing atmosphere" Gropp: v Wisconsin, 400 U.S 505
(1971). "The influence that lurks in an opinion once formed is so
persistent that it unconsciously fights detachment from the
mental processes of the average man" /rvin v Dowd, supra
Allowing Petitioner to be tried in Ingham County
saturated with this type of publicity about the case was an abuse
of discretion and unreasonable.
There is a presumption of prejudice from jurors being
75
exposed to facts not in evidence, United States v Swinton,
F.2d 374 (8th Cir. 1996), which applies even to exposure of a
single juror. United States v Hall, 116 F.2d 1253 (8th Cir 1997)
Most of the articles’ information was inadmissible and not
admitted at the trial
Errors regarding composition of the jury are structural
errors, and therefore harmless error analysis is inappropriate.
Brecht v Abrahamson, supra; McGurk v Stenberg, 163 F 3d
470, 475 (8th Cir. 1998) (finding that when counsel's deficient
performance causes a structural error, reversal is automatic
without any harmless error analysis, because prejudice is
presumed).
Given the exceptionally light nature of the inculpatory
evidence, 1.e., a voice and "ring tone" identification alone by an
influenced witness weeks later, an unprejudiced jury, not
contaminated with all the negative information supplied to the
press, might wel! have found reasonable doubt
B. Failures to Object.
Trial counsel was constitutionally deficrent in not
objecting to improper conduct and introduction of evidence by
the prosecutor, cited in this petition. The critical failure of an
attorney to object can be ineffective assistance of counsel if it
deprives the defendant of an opportunity for dismissal of the
case, a favorable verdict, or for success on appeal. Gravley v
Mills, 87 F.3d 779 (6th Cir. 1996), Kowalak v United States, 645
F.2d 534, 537-538 (6th Cir. 1981), Corsa v Anderson, 443 F.
Supp. 176 (ED Mich. 1977).
Allowing damaging information to come before the jury
without objection, where the evidence could have been excluded,
is ineffective assistance of counsel Rickman v_ Bell, 131 F.3d
1150 (6th Cir. 1997); Groseclose v Bell, 130 F.3d 1161 (6th Cir.
1997); Ward v United States, 995 F.2d 1317 (6th Cir 1993).
frial counsel's performance can be deemed deficient based
upon the failure to object to highly prejudicial remarks heard by
the jury. United States v Rusmusel, 716 F.2d 301 (Sth Cir.
1983); Seehan v State of lowa, 37 F.3d 389 (8th Cir 1994);
Weygandt v Ducharme, 774 F.2d 1491 (9th Cur 1985)
iL. Failure to consult with and introduce testimony
from expert.
Petitioner was convicted on the inherently unreliable
evidence of a 12 year old, who was subjected to highly suggestive
corrupting influences as weeks went by without an arrest. The
jury was never made aware of the suggestive and unreliable nature
of this testimony because trial consel failed to consult with and
retain an expert.
Effective assistance of counsel requires that counsel make
reasonable investigations and adequately prepare for trial
Rompilla v Beard, 545 U.S. 374 (2005); Wiggins v Smith, 539
U.S $10 (2003); Kimmelman v Morrison, 477 U S. 365 (1986)
Part of effective assistance of counsel 1s to present evidence in
support of theones advanced, Foster v_ Lockhart, 9 F.3d 722
(Sth Cir. 1993).
In Habeas Corpus it has been recognized that the failure
to consult with or retain or call to the witness stand an expert
witness was ineffective assistance of counsel. Sims v_ Livesay,
970 F.2d 1575 (6th Cir. 1992), Leonard v Michigan, 256 F
Supp 2d 723 (WD Mich, 2003); Holsomback v White, 133
F 3d 1382 (11th Cir. 1998), Pavel v Hollins, 261 F 3d 210 (2d
Cir. 2001); Lindstadt v Keane, 239 F 3d 191 (2d Cir. 2001).
It is not necessary to show that the evidence not pursued
by counsel would have changed the result. A reviewing court
Should focus on whether counscl’s alleged errors "have
undermined the reliability of and confidence in the result "
McQueen v Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996): "On
balance, the benchmark for judging any’ claim of ineffectiveness
must be whether counsel's conduct so undermined the proper
functioning of the adversarial process that the [proceeding]
cannot be relied on as having produced a just result." Id at 1311-
12 (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052). See
also Kyles v Whitley, 514 U.S. 419, (1995).
This Court should grant review and then rule that
Petitioner is entitled to a new trial before a constitutionally
drawn jury and represented by constitutionally effective counsel.
QUESTION | S. PETITIONER WAS UNCONST-
PTUTIONALLY PREJUDICED BY INEFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL.
38
A criminal defendant is entitled to effective assistance of
counsel Strickland v Washington, 466 US 668 (1984), Beasley
v United States, 491 F.2d 687 (6th Cir 1974); U.S Const,
Amend VI. This right includes effective assistance of counsel on
appeal £vitts v Lucey, 469 U.S. 387; 105S Ct 830, 83 L Ed.2d
821 (1985); Penson v Ohio, 488 U S. 75 (1988)
Under Evitis v Lucey, 469 US at 396:
"nominal representation on an appeal as of
right--like nominal representation at trial--does not
suffice to render the proceedings constitutionally
adequate "
In Beasley v United States, supra, the Court stated:
"Defense counsel must investigate all
apparently substantial defenses available to the
defendant and must assert them in a timely manner."
The critical failure of an attorney to object or raise an
issue can be ineffective assistance of counsel if it deprives the
defendant of an opportunity for dismissal of the case or for
success on appeal. Graviey v Mills, 87 F.3d 779 (6th Cir 1996),
Kowalak v_ United States, 645 F.2d 534, 537-538 (6th Cir 1981);
Corsa v Anderson, 443 F. Supp. 176 (ED Mich. 1977)
We submit there was ineffective assistance of appellate
counsel regarding the failure of the appeal attorney to raise the
issues raised herein On direct appeal, only issues of sufficiency
of the evidence and newly discovered evidence were raised To
39
properly review this claim, it is necessary to consider the merits
of the issues raised before deficiency of appellate counsel's
performance can be assessed See Willis v Smith, 351 F.3d 741
(6th Cir, 2003), ("“Thus, in order to determine whether cause
exists [because of ineffective assistance of appellate counsel]. we
must, ironically, consider the merits” of the claims not raised on
direct appeal.).
[t 1s reasonably probable that Petitioner would have
gotten a reversal on his appeal of right, but for the inaction of
appellate counscl See Mapes v Coyle, 171 F.3d 408 (6th Cir.
1999), finding ineffective assistance of appellate counsel where
counsel omitted issues that were "significant and obvious
In Mason v Hanks, 97 F.3d 887 (7th Cir 1996), the
Court held, "Were it legitimate to dismiss a claim of ineffective
assistance of counsel on appeal solely because we found it
improper to review appellate counsel's choice of issues, the nght
to effective assistance of counsel on appeal would be worthless."
Ineffective assistance of appellate counsel is "good cause"
for failing to raise an issue in the appeal of right. Edwards v
Carpenter, 529 U.S. 446 (2000), Murray v Carrier, 477 U.S.
478, 488 (1986); M.C.R. 6.508(D).
In Strickland v Washington, supra, the Supreme Court
held that prejudice is shown from ineffective assistance of
counsel when "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different." 466 U.S at 664.
1
While it is truc that an attorney need not raise all arguable
claims, it does not thereby follow that the attorney never need to
raise any arguable claim Instead, "The question is whether a
reasonable appellate attorney could conclude that [the claimed
issue was] not worthy of mention on appeal."
This Court should grant the writ and upon _ full
consideration of the merits, find that Petitioner’s issues are to be
heard on the merits and grant a new trial
RELIEF SOUGHT
WHEREFORE, Petitioner Freddie Nash moves this court
to grant a writ of certiorari and vacate the conviction and order «
new trial.
Respectfully submitted
JAMES STERLING LAWRENCI
Attorney for Petittoner Nash
828 W. Eleven Mile Road
Royal Oak, MI 48067
(248) 399-6930
Dated.
Michigan Court of Appeals Opinion 9/15/2005
APPENDIX
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 15, 2005
Plaintiff-Appellee, No 255874
V Ingham Circuit Court
FREDDIE TRAIL NASH,
LC No.03-001003-FC
Defendant-A ppellant
Before. Meter, P.J., and Murray and Schuette, JJ
PER CURIAM.
Defendant appeals as of right his jury trial convictions of
first-degree murder, M.C L. 750 316 and possession of a firearm
during the commission of a felony (felony-firearm), M C.L
750.227b. Defendant was sentenced to consecutive terms of life
imprisonment for the first degree murder conviction and two
years’ imprisonment for the felony-firearm conviction. We
affirm.
I. FACTS
In the early morning of February 9, 2003, police were
notified of three gunshots heard in the vicinity of Richmond and
Mary Street in Lansing, Michigan. Upon arriving, police
discovered the victim near her vehicle with multiple gunshot
wounds. I’mogene Thomas, the mother of the victim, identified
the body as her daughter, Teresa Nash. The autopsy concluded
that the victim had been shot at close range three times, and that
Michigan Court of Appeals Opinion 9/15/2005
the third and final gunshot to the victim’s head was immediately
>
incapacitating and fatal. A fresh snowfall allowed the police to
photograph shoc prints at the residence of the victim, leading
from the vehicle to the victim, and then away from the scene
These shoe prints were later determined to be from the kind of
boots defendant was known to wear. The victim’s twelve yea
old daughter testified that prior to the murder she had overheard a
voice she identified as defendant talking with the victim
downstairs at the victim’s residence shortly before the gunshots
he victim’s daughter also heard a cell phone ring, and she heard
defendant answer the phone and say “he got this and he’ll be
there Tle don’t need no help with nothing ” Testimony from a
representative of defendant’s cell phone company — placed
defendant’s cell phone in the area of the murder A Friend of the
Court enforcement specialist testified that she was familar with
the victim and defendant and that there was a dispute about child
support between them.
I] SUFFICIENCY OF THE EVIDENCE O]
PREMEDITATION
-
Defendant first argues that there was insufficient evidence
to support his conviction of first-degree premeditated murder,
specifically contending that there was no- evidence of
premeditation or deliberation. We disagree.
A. Standard of Review
In reviewing, a sufficiency of the evidence claim, we
revicw “whether the evidence, viewed 1n a light most favorable to
the people would warrant a reasonable juror in finding” that all
the elements of the crime were proven beyond a reasonable
doubt. People v Nowack, 462 Mich 392, 399; 614 N.W 2d 78
Michigan Court of Appeals Opinion 9/15/2005
(2000) he elements of first-depree | premeditated] murdet
that the defendant killed the victim and that the killing: was
“willful, deliberate, and premeditated’ People vo Bowman
Mich App 142, IS], 656 N.W.2d 835 (2002), quoting M C.1
ISO 316(1)(a) A’ finding of premeditation and deliberation
requires there to be a lapse in time for a defendant to take a
second look belore acting, People vo Plummer, 229 Mich. App
293, 300, S81 NW.2d 753 (1998). “Premeditation and
deliberation may be established by evidence of ‘(1) the prior
relationship of the parties, (2) the defendant's actions oefore the
killing, (3) the circumstances of the killing itself; and (4) the
defendant's conduct after the homicide ’” People v Abraham, 234
Mich. App 640, 656; 599 N.W 2d 736 (1999), quoting People v
Schollaert, 194 Mich App 158, 170, 486 N W 2d 312 (1992)
By Analysis
We conclude that there was sufficient evidence that the
killing was premeditated and deliberated Testimony presented at
trial showed that defendant and the victim were recently divorced
and were involved in a dispute over child support. Viewing the
evidence favorably to the prosecution, on the morning of the
murder, the victum’s daughter heard the victim and defendant
talking in her home and heard defendant say “he’s pot this and
he’ll be there He don’t need help with nothing ” The victim’s
dauyvhter testified that her mother came up the stairs, yrabbed her
keys, said she would be night back, and presumably left) with
defendant. Shortly after, the victim’s body was found
Additionally, the circumstances of the killing itself support a
finding of premeditation and deliberation. Phe victim was shot
three times; once at close range, which was only a flesh wound
and not fatal, another time in the arm, which again was not fatal if
Michigan Court of Appeals Opinion 9/15/2005 A-4
the bleeding would have been stopped, and another shot to the
head, which the medical examiner testified would have been
immediately incapacitating Witnesses who heard the gun shots
testified that the shots were fired between two and five seconds
apart There was also evidence of traces of blood and hair fibers
found in the roof of the inside of the victim’s car and the front
driver’s side window had been broken The victim’s body was
found 1n a front yard near where her car was found. From this
evidence, the jury could have inferred that the victim was first
shot in the car and that the victum was running away from the
shooter when the incapacitating shot hit her in the head This
would have shown that defendant thought about his choice before
hand and had time to measure and evaluate this choice. People v
Morrin, 31 Mich. App 301, 329, 187 N W.2d 434 (1971) (“To
premeditate is to think beforehand, to deliberate is to measure
and evaluate the major facets of a choice or problem’).
e
<—
Ill. NEW TRIAL
Defendant next argues that the trial court erred in denying
his motion for a new trial. We disagree.
A Standard of Review
We review the trial court decision on a motion for a new
trial for an abuse of discretion. People v Lester, 232 Mich App.
262, 271; S91 N.W.2d 267 (1998). In order to obtain a new trial
based on newly discovered evidence, “a defendant must show
that: (1) ‘the evidence itself, not merely its materiality, was
newly discovered’, (2) ‘the newly discovered evidence was not
cumulative’; (3) ‘the party could not, using reasonable diligence,
have discovered and produced the evidence at trial’; and (4) the
new evidence makes a different result probable on retrial.” People
Michigan Court of Appeals Opinion 9/15/2005 A-5
v. Cress, 468 Mich 678, 692, 664 N.W 2d 174 (2003), quoting
People v. Johnson, 451 Mich. 115, 118 n 6; 545 N.W.2d 637
(1996), M C.R. 6 508(D)
B. Analysis
Defendant presented new evidence of a photograph his
mother found of him wearing boots similar to, but defendant
argues distinct from, a pair of boots the police belicved were the
same brand that made the footprints found near the victim’s
body. Defendant’s girlfriend testified at trial that she had seen
defendant wear boots similar to the ones police had obtained.
After seeing this picture, she indicated in an affidavit that the
shoes in the photograph were the shoes she testified about. The
trial court denied defendant’s motion concluding that this
evidence would not have made any difference in the outcome of
the trial.
We agree with the trial court’s conclusion The footprint
evidence was not the only piece of evidence that linked defendant
to the murder. The victim’s daughter testified that she heard her
mother and defendant talking in her home on the morning her
mother was killed. The victim’s daughter testified that she heard
the two talk for a while, including her mother call defendant by
his name, before the victim left the home. The prosecutor also
presented evidence of defendant’s cell phone records, which
placed defendant in the vicinity of the crime scene at the time of
the murder. Regarding the actual footprint evidence, defendant’s
girlfriend only testified that she saw defendant wearing shoes
similar to those police had obtained, which is the same testimony
that she would give at a new trial. Additionally, after reviewing
both the photograph of defendant wearing the shoes and the
photograph of the shoes police obtained, we fail to see a
Michigan Court of Appeals Opinion 9/15/2005 A-6
significant difference between the two In fact, the soles of the
shoes appear to be quite similar As such, we agree with the trial
court that defendant failed to show that this new evidence would
have made “a different result probable on retrial ” Cress, supra at
692
Affirmed./s/ Patrick M. Meter /s/ Christopher M Murray /s/ Bill
Schuette
Michigan Supreme Court Order 1/30/2006 A-
Order Michigan Supreme Court
January 30, 2006 Lansing, Michigan
129688 Clittord W. Taylor
Chief Justice
Michael F Cavanagh
PEOPLE OF THE Elizabeth A. Weaver
STATE OF MICHIGAN, Marilyn Kelly
aintiff-A p pellant, Maura D Corrig
Robert P Young, Jr
Stephen J Markman
Justices
FREDDIE TRAIL NASH. SC: 129668
COA 255874
Defendant-Appellee Ingham CC. 03-001003-F¢
On order of the Court, the application for leave to appeal
the September 15, 2005 judgment of the Court of Appeals ts
considered, and 1t ts DENIED, because we are not persuaded that
the questions presented should be reviewed by this Court
[SEAL ]
[, CORBIN R. DAVIS, Clerk of the Michigan Supreme Court,
certify that the foregoing 1s a true and complete copy of the order
entered at the direction of Court
January 30, 2006
Trial Court Opinion & Order 12/29/2068
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF
INGHAM
People of the State of
Michigan, OPINION AND ORDER
Plaintiff. DENYING DEFENDANT'S
MOTION FOR RELIEF
FROM JUDGMENT
Docket No 03-1003-FC
HON, THOMAS L. BROWN
FREDDIE T. NASH,
Defendant
PRESENT: HONORABLE JUDGE BROWN
Visiting Circuit Judge
Chis Court, having reviewed Defendant's Motion for
Relief From Judgment pursuant to M C.R. 6.500 et seq , Brief in
Support, all supporting documents and correspondence, and
being fully apprised of the issues, states the following:
INTRODUCTION
On April 27, 2004, Freddie Nash ("Defendant") was
convicted by jury trial before the Honorable Beverley Nettles-
Nickerson in the Ingham County Circuit Court of Homicide-
Open Murder M.C.L 750 316-C, and Weapons Felony Firearm
M C.L. 750.227B-A
On May 26th, 2004, Defendant was sentenced to a
- 1s!
mandatory life sentence without parole for ] degree
Trial Court Opinion & Order 12/29/2008 A-9
premeditated murder, and a 2 year consecutive sentence for
felony firearm
Defendant filed his Motion for Relief from Judgment
pursuant to M C.R_ 6.500 ef seg , and argues that his conviction
should be reversed for the following reasons (1) Alleged
improper jury deliberation (2) Alleged denial of a fair and
impartial jury (3) Alleged Trial Court abuse of
= =
A
A)
discretion due to “repeated” introduction of victim, crime scene,
and autopsy photographs (4) Alleged error in admittance of of
expert testimony (5) Various instances of alleged prosecutorial
misconduct; (6) Various instances of alleged ineffective assistance
of counsel; (7) The cumulative effect of the aforementioned
alleged defects at his trial; and (8) Ineffective assistance of
appellate counsel Defendant maintains that that these alleged
errors and violations require that his convictions be vacated and
that a new trial be ordered
fhe Michigan Court of Appeals affirmed Defendant's
conviction and sentence, People v Freddie Nash, unpublished
opinion of the Michigan Court of Appeals, decided September
15, 2005 (Docket No 255874) Defendant filed a application for
Leave to Appeal with the Michigan Supreme Court The
Michigan Supreme Court denied Defendant's Leave to Appeal on
January 30, 2006 People v Nash, 474 Mich 1026 (2006).
OPINION
Trial Court Opinion & Order 12/29/2008 A-10
Defendant has the burden of establishing entitlement to
the relief requested M.C R 6.508(D) This Court must examine
Defendant's motion together with all the files, records,
transcripts, and correspondences relating to his conviction for
First Degree Murder, M.C.R. 6.504(B)(1), [f Defendant's motion
appears from the face of the materials that he 1s not entitled to
relief, this Court shall deny the motion without directing further
proceedings and include a concise statement of the reasons for the
denial M.C R. 6 $04(B)(1)-(2)
The Michigan Legislature enacted MC.L 769.26, a
Statute addressing errors in judicial proceeding, which reads as
follows:
No judgment or verdict shall be set aside or
reversed or a new trial be granted by any court of
this state in any criminal case, on the ground of
misdirection of the jury, or the improper admission
or reyection of evidence, or for error as to any matter
of pleading or procedure, unless in the opinion of
the court, after an
+
examination of the entire cause, it shall affirmatively
appear that the error complained of has resulted in a
muscarriage of justice
In other words, defendants are not entitled to relief from
judgment due to a harmless error
To avoid forfeiture of an unpreserved constitutional error
under the plain error rule, three requirements must be met: 1)
error must have occurred, 2) the error must have been plain, 7 e
clear or obvious, 3) and the plain error must have affected
Trial Court Opinion & Order 12/29/2008 A-11
substantial rights of the defendant People v Cannes, 460 Mich.
750, 763-764 (1999) The third requirement generally requires a
showing of prejudice. That is to say, the defendant must show
that the error affected the outcome /d at 763. The Court will
now consider Defendant's arguments in turn
Issue One
IMPROPER JURY DELIBERATION
Defendant argues that due to juror misconduct he was
denied a fair and impartial yury. On April 26, 2004, one Juror left
before the additional eleven jurors. The defendant claims that
after the single juror left the room the other jurors continued to
deliberate On April 27" 2004, the Defendant's counsel asked the
court to grant a mistrial due to this alleged juror misconduct In
response to the request the Circuit Judge brought the jury in and
questioned them with regard to whether deliberation took place
without the full jury present. Each juror was polled and all
affirmed that there had been no deliberation without the full
panel. The Circuit Court judge declared that the juror's early
departure was a harmless error and denied the Defendant's
request for a new trial She further stated that there was no
appearance of impropriety, as deliberations stopped as soon as
the juror had left the room and she had no doubt in her mind that
there has been a fair and impartial, jury. Additionally, the Circuit
Court judge corrected the issue by instructing the jury to start
their deliberations over again The Defendant asks this Court to
find
Trial Court Opinion & Order 12/29/2008
that slight jury musconduct that resulted in harmless error
constitutes a reversible error worthy of amistnal. This Court
finds no such precedent that supports Defendant's contention
It has been a long standing principle that reversal for a
new trial does not follow automatically from a showing of error
in the court of a generally fair trial. The error which calls for a
new jury trial must be one of such significance as to have
prejudiced the result Cooper v Tranter Mfg, 4 Mich App 71
(1966), quoting Misktewicz v Smolensi, 249 Mich. 63 (1929). In
showing significant prejudice with respect to juror misconduct,
the defendant has the burden to prove that such misconduct may
have had a influence upon the final result, and caused injury to
the complaining party. Russel v Pere Marquette Ry Co, 245
Mich 624 (1929). Trial courts have broad discretion in
determining if the defendant has meet this burden, and in deciding
whether to grant a new trial on account of juror misconduct.
Impliedly, a verdict does not have to, and should not be set aside
for every trifling misconduct of a juror, which occurs without the
fault of the prevailing party Cooper v Carr, 161 Mich 405
(1910).
Under the facts of this case, it 1s clear that the early
departure of one juror did not cause prejudice. There is no
evidence that the eleven remaining juror's continued to deliberate
the verdict after the single juror left the room. Conversely, the
record shows that every juror member responded under oath that
there was no further deliberation after the juror left the jury room
and that there had never been any deliberation with out the full
Trial Court Opinion & Order 12/29/2008 A-13
panel. Additionally, to make sure that the absence of the juror did
not have a influence on the final result, the Circuit Court judge
took affirmative measures in order to correct any potential error
by ordering the jury to start their deliberation from scratch This
Court is satisfied with the Trial Court's conclusion that jury
misconduct resulted in harmless error and find that the
substantial rights of Defendant have not been affected.
Issue Two
FATLURE OF TRIAL COURT IN REFUASAL (sic) TO
EXCUSE JURORS
The Michigan Court of Appeals has ruled that a new trial
must be granted when it 1s shown that a juror gave untruthful
answers during voir dire and truthful answers would have
revealed grounds for successful challenge for cause. Collier v
Westland Arena, Inc, 183 Mich. App. 251(1990); Citizens
Commercial and Sav Bank v_ Engberg, 15 Mich. App.
251(1968). Furthermore, when a court discovers a juror's false
Statements on voir dire after trial and verdict, a party moving for
new trial must present to the court something more than the mere
fact of falsity of answers and must present proof of actual
prejudice on part of that juror or establish that that juror was
unqualified This is done by showing either actual prejudice or by
establishing to the satisfaction of the trial court that the moving
party would have successfully challenged for cause or otherwise
dismissed the juror 1n question had the truth been revealed prior
to trial Gustanfson v Morrison, 57 Mich. App. 655 (1975)
Trial Court Opinion & Order 12/29/2008
Under the facts of this case, there has been no showing of
actual prejudice, nor has the Defendant established that he would
have been successful in challenging for cause One of the jurors
that the defendant is challenging did not even deliberate in this
case Additionally, the record shows that the defendant had the
opportunity to consult with his attorney if he should file a
motion to have the second Juror removed from the jury for cause
and the Defendant chose not to file a motion for removal (T, III,
358). Furthermore, both jury members which the defendant has
called into question testified before the trial judge that prior
relationships would not unpair their ability to be impartial to the
Defendant in this case Therefore, the Defendant's arguments are
without merit and he is not entitled to relief on this issue
Issue Three
INTRODUCTION OF COLOR PHOTOGRAPHS OF THE
HOMOCIDE VICTIM
The law with regard to the admission of photographs is
well settled. The admission of photographs into evidence of
corpses of homicide victims is a matter addressed to the sound
discretion of the trial judge, so long as such photographs are not
offered with sole intention of inflaming the jury. People v /'uzi,
116 Mich. App. 277 (1982), People v Hall, 83 Mich App. 632
(1978). Specifically, the Michigan Court of Appeals has held that
photographs of homicide victims are admissible if helpful in
illuminating any material point initssue People v Champion, 452
Mich 92 (1980); People v Bergin, 63 Mich. App. 526 (1969);
People v Rogers, 248 Mich. App 702 (1968) The trial court
Trial Court Opinion & Order 12/29/2008 A-15
must determine whether the pictures are "substantially necessary
or instructive to show material facts or conditions", or whether
they are merely "calculated to excite passion and prejudice '
People v Falkner, 389 Mich. 682 (1973)
Defendant's argument that the photos of the victim were
of no significance to the case and were used for the sole purpose
to inflame is incorrect. In a criminal case, the burden in upon the
People to prove every element of the crime charged While the
pictures of the victim shown are not by any means pleasant, the
photographs showed the victim as she was found and at various
stages of the autopsy. The pictures depict the corpus delicti
Specifically the photographs were relevant to the issue of
premedication (sic) and cause of death People v full-wood, 51
Mich App. 476 (1974), Therefore the Trial Judge did not abuse
her discretion in either her decision to admit the photographs or
in the manner in which they were displayed. People v Nard, 78
Mich App 365(1977)
[his Court has reviewed and finds no ment
Defendant's claim that the introduction of
color photograph of the homicide victim was
by the trial court
issue Three
EXPERT TESTIMONY
Defendant argues that the trial court committed reversible
error in allowing expert testimony under M.R.E. 702. This, issuc
alleges grounds for relicf which were decided against the
Trial Court Opinion & Order 12/29/2008
Defendant in a prior appeal, and there has been no retroactive
change in the law that would undermine the previous decision
People v_ Kreddie Nash, unpublished opinion of the Michigan
Court of Appeals, decided September 15, 2005 (Docket No
255874) Therefore, the Defendant ts not entitled to relief on this
issue pursuant to M C R. 6 508(D)(2)
Issue Four
PROSECUTION FAILED TO COMPLY WITH THE RULES
OF DISCOVERY
Defendant argues that the Prosecutor violated discovery
rules by not providing the defense with witness testimony. that
Defendant’s voice and cellular phone ring tone were identical to
those she heard the might the victim was murdered
Defendant's argument is misguided This information was
available to the Defendant and counsel during trial, 1s not new
evidence, and its exculpatory value 1s speculative at best. "There
Is nO general constitutional ripht to discovery in a criminal case."
People v klston, 462 Mich. 751, 765 (2000). Moreover, due
process requires only that the prosecution provide a defendant
with material, exculpatory evidence 1n its possession. People
Stanaway, 446 Mich 643, 666 (1994). Upon examination of the
record, it is clear that the Defendant was given the opportunity
to probe the witness evidence for authenticity and accuracy
before and during trial Therefore, this Court finds no plain error
affecting the substantial rights of the Defendant on this issue
Trial Court Opinion & Order 12/29/200¢% A-17
Issue Five
PROSKECUTORIAL MISCONDUCT
Defendant claims that the prosecutor miuscharacterized
events by introducing testimony from a Priend of the Court
Ienforcement Spccialist witness The witness testified that thr
Defendant had become angry and animated during their prior
discussion regarding child support and that the issue had not been
victims’ death. Defendant arvues that
resolved at the time of the
this testimony was a muisreprescntation of fact in the
prosecution's attempt to establish a motive of the crime
Dclendant’s arguments are without merit. Im the cause at
bar, the statements of the prosecutor and the witness testimony
of the [:nforcement Specialist were not character evidence
Character evidence includes evidence of other crimes, acts of
vronps People \ Starr, 457 Miel 490 +9) (LOOK). Phe
prosecutor im this case was using the testimony of the
enforcement Specialist to establish motive for the crime, not to
show propensity to commit a crime tividence that has any
bearing on the intent or motive with which a crime was
committed is admissible so long as it is within sate bounds of
relevance. People v Jones, 293 Mich 409 (1940), People 1
Weatherspoon 6 Mich \pp. 233, (1967). Under the Michigan
Rules of I'vidence, M.R.. 404 provides in relevant part, “(a)
Character evidence penerally. beviden oF @ person's character oF
a trait of character is not admissible tor the purpose of proving
action in conformity therewith on a particular occasion.” The
evidence in this case was no cd lor the purpose of proving
acts in conformity therewith. It was used to show Detendant’s
Trial Court Opinion & Order 12/29/2008
motive in committing the instant offense Additionally, the
evidence was not evidence of other crimes, acts, or wrong doings
Even if it were such evidence, it was used to show motive
permissible use under M R E. 404(b)
Furthermore, evidence of a financial condition
admissible to show motive in the
circumstances of a particular case
Mich. App. 826 (1986).
It is obvious in this case that the prosecution used
witness testimony to establish motive, and not to establish the
defendants character Therefore, this Court finds no plain errot
affecting the substantial rights of the Defendant on this issue
Issue Six
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEI
Defendant claims that his trial counsel was ineffective 1
failing to file for change of venue Two approaches have been
used to determine if the defendant was entitled to
venue "(1) when there has been found where there was extensive
highly inflammatory pretrial publicity that saturated the
community to such an extent thi
tainted, and, much more infrequently, (2) community bias
been implied from a high percentage of the venire who admit
disqualifying prejudice " / Jendrzejewski, 455 Mich
(1997). Defendant argues that a change
warranted based on pretrial publicity; however,
pretrial publicity alone does not necessitate a change of
at 502. In determining whether a defendant has been deprived
Trial Court Opinion & Order 12/29/2008 A-19
fair trial by virtue of pretrial publicity, the reviewing court must
consider the totality of the circumstances and determine whether
the pretrial publicity was so unrelenting and prejudicial that "the
entire community 1s presumed both exposed to the publicity and
prejudiced by it." Jd at 501-502.
On appeal Defendant asserts that there were reports in
the newspapers and local television programs In People v
Delisle, 202 Mich App 658 (1993), the Michigan Court of
Appeals rejected the defendant's argument that the trial court
erred in denying his motion for a change in venue based on
pretrial publicity when there were more then 100 newspaper
articles published over a period often months about the case
| he | de Lisle C ourl concluded
relevant question 1s whether the circumstances surrounding the
+
fair trial b
publicity rendered the possibility of receiving a by an
impartial panel unlikely.
After examining the record of the entire voir dire, this
Court has determined that a impartial jury was tmpaneled in this
case There was sequestered questioning of potential jurors
regarding their previous knowledge about the case and their
ability to remain unbiased. While it may be some minimal cause
for concern that some of the members of the venire were at least
familiar with the basic facts of the case, it is not required that the
jurors be totally ignorant of the facts and issues involved "In
these days of swift, widespread and diverse methods of
communication, an important case can be expected to arouse
Trial Court
SCI \
opinion
mere existence ¢
or innocent of an accused
presumption of a prospect
establish an impossible star
‘sented in court
irt finds 1
. ‘ | |
dad aCludi
demes defendant's
failure
Trial Court Opinion & Order
12/29)
29/2008
or
IONS pPecrdalMny to ineliec
ud by the tri
) 1}
AP OU
ch allegations
In cases such as
1. review ts limited
erv
Trial Court Opinion & Order 12/29/2008
called a child witness expert is one of trial strategy, and this does
not amount to ineffective
+h,
if}
assistance Therefore, this Court finds no plain error affecting t
substantial mghts of the Defendant on this issue
issue Seven
CUMULATIVE EFFECT OF ERRORS AT TRIAI
this Court finds no merit to any of the Defendant's
claims regarding impropriety at his trial, therefore, it is not
necessary consider the cumulative effect of errors, as no errors
have been shown
Issue Eight
DEPRIVATION OF EFFFECTIVE ASSISTANCE OF
COUNSEL ON DIRECT APPEAL
Defendant argues that his appellate counsel was
ineffective in failing to issues in his first appeal of right
"Effective assistance of counsel does not require counsel to raise
every arguably meritorious issue on appeal, requiring appellate
counsel to raise every arguable claim would impair independence
of the legal profession, destabilize finality of judgments, and
exponentially increase burdens on appellate counsel" People
Reed, 449 Mich 375, 379 (1995). In order to establish ineffective
assistance of appellate counsel, "the movant must establish
ineffective assistance of counsel pursuant to the standard
Strickland v Washington" Id at 382. Under Strickland, the
defendant must satisfy a two-pronged test of both cause and
prejudice lo show cause, the Defendant must show that counsel
Trial Court Opinion & Order 12/29/2008 A-23
nade errors so sel that counse not functioning
‘counsel’ guaranteed the defendant by the Sixth Amendment "
Strickland v Washington, 466 U.S. 668 (1984)
As stated above, there are no grounds tor relief wher
appellate counsel did not raise every arguably meritorious issue
Because this Court finds no merit to any of the issues presented
appellate counsel failed to
on this motion, tt can not be said that ay
meritorious issues. Defendant has not sh he requisite cé
] ‘ | i. nm ttanrte > s scot = . . ’ »| +} re “>
needed to establish ineffective assistance of counsel: therefore.
there is no need to address prejudice Based on the foregoing, this
the
Court finds no plain error affecting the substantial nights of
Defendant on this issue
ORDER
rTHEREFORE, IT IS ORDERED THAT:
Detendant's Motion
DENTED.
In compliance with
that this decision
Trial Court Opinion & Order 12/29/2908
{
L212 \\A/PR
Port y
> |
aS
| *
on
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IMA
ri 4 VIAAYS
Michigan Court of Appeals Order 3/12/2010
Appeals, State of Michigan
ORDER
Donald Gibson
People of MI \ I reddie Nash. Presiding Judge
Docket No. 295819 William C Whitbeck
LC No 03-001003-F(¢ Alton T
he Court orders the delayed application for leave to
appeal is DENIED for failure to meet the burden of establishing
entitlement to relief under M C.R. 6.508(D)
true copy entered and certified by Sandra
Schultz Mengel, Chief Clerk, on March 12, 2010
s/ Sandra Schultz Mengel
Michigan Supreme Court Order 10/26/16
Order Michigan Supreme Court
October 26, 2 Lansing, Michigan
140950 Clifford W Taylor
Chief Justice
Michael F. Cavanagh
PEOPLE OF THE Ehzabeth A. Weaver
STATE OF MICHIGAN, Marilyn Kelly
Plaintiff-A ppellant, Maura D. Corrigan
Robert P Young, Jr
Stephen J Markman
Justices
FREDDIE TRAIL NASH, SC: 140950
COA: 295819
Defendant-A ppellee Ingham CC: 03-001003-FC
On order of the Court, the application for leave to appeal
the March 12, 2010 order of the Court of Appeals 1s considered,
and it is DENIED, because the defendant has failed to meet the
burden of establishing entitlement to relief under M.C.R
6.508(D)
DAVIS, J, not participating I recuse myself and am not
participating because I was on the Court of Appeals panel in this
case See M.C R. 2.003(B).
[SEAL ]
I, CORBIN R DAVIS, Clerk of the Michigan Supreme Court,
certify that the foregoing is a true and complete copy of the order
entered at the direction of Court.
October 26, 2010 /s/ Corbin R. Davis
Clerk
'
Newspaper Articles
A-27
Woman's ex- husband faces murder trial April 19
alg cess gy ci yg ase
mom. If was
because when | heard ‘thar my
mom died my heart shattered.”
The handwritten letter is worn
from the dozens of times Ra‘eesa
Cannon of Lansi
and unfolded ut in the past year.
Putting her feelings on paper
ts one way 12-year-old Ra'eesa
auggn vides maober’s deb.
“My mom was Intelligent and
was a beautiful woman working
on her Master's degree and a wor-
dcrful mother that no one can re-
place.”
Teresa Nash, H, was shot to
death ocar her Risdale Avenue
home in Lansing in February
7003.
She tcft behind six children,
ike tosing my heart $e!
has folded }
daughter, S%yrarold Mmogenc
‘Thomas, suddenly found herscif
raising another generation
Through prayer acd love, the
BEST AVAILABLE COPY
fulltime General Motors Corp.
worker holds the family rogether.
Nash's ex-husband, Freddie
Nash, {s charged with murder and
is sct to go to tru) April 19.
" -§
Ss Fastin s,
a
Newspaper Articles
Priday Y- U3 ~0t
| ‘She said she'd
be right back,
‘id testifies of
slain mother
' Daughter heard shots after mom left,
' says murder suspect at house earlier
By Keay Hassett se trial
Lonsiog Sime Journal » The trial for Freddie Mash, 26,
“She said she’d be right
back.”
} neni from her mother,
' Teresa Nash, hoars defose
} she was fatal-
"i pe ne
Newspaper Articles
‘Trial: Girl
says she
tried to
call mom
Coerreup Prom 1A
and Freddie Nash in the
downstairs living room of Teresa
Nash's Risdale Aveouc home.
That was elther late Feb 8 or
carty Feb. 9, she
testified.
"He was talking
about hefw sorry he
was and how pruch
moro responsible
he should have
been,” Ra'eesa said
in a soft but strady
voice.
‘polat woke up when Teresa Nash
came upstaira, grabbed ber car
keys and told Ra’ecsa she'd be
the Jury she {cll back
didn't stir unl)
in the strect.
wasn't there when
up that next morn-
told the jury she looked
TERETE
. ob a RS
frie! agEk
SE
R22
no answer,
At about th¢ same time, police
found the body of Teresa Nash at
Richmoaod Sucet and Mary Ave- «.
ouc, a few blocks from her bore.
She was shat [n the beac
Newspaper Articles
TUNES SNC EO OHO answer.
Al about the same Ume, police
found the bedy of Tercsa Nash at
Richmond Saect and Mary /Ave- -
nue, a few blocks froin ber home.
She was shot lo the head
Joseph Brehler, Freddic Nash's
attorney, asked Ra’eesa if she had
talked many tunes with Preddic
Nash esther before or after he
lived with her and her mother for
less than two wecks in 2000.
_a@m Ra'cesa testified that she didn’t
know Preddie Nash before he
moved fn with them In 2000 and
that she'd barcly
talked with him
die Nash laughing
during thelr con-
versation that night before her
mother dicd. She answered yes.
—~ After her testimony Ra’eesa sat
with her grandmother, I'mogrene
thomas, who wra her arm
around the child’s 3 ers and
pulled ber close. Ra'ecsa and
three of ber siblings now live wiih
Thomas, Teresa Nash's mothec
Freddie and Teresa Nash had
an ongoing custody dispute and -
were In court for 2, hearing
about a week before Teresa Nash
was Killed, Tarra Muhammad, an
advocate with Ingham County's
Frend of the Court, testified
Thursday.
The trial conthrues today .at
8:30 am. in Ingham County Cir
cvit Court
‘Contact Kelly Hasse at
267-1301 or khassett@ysj.com
Jl
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Newspaper Articles
Ex-husband
charged in
‘slaying of
mother of 6
Police believe
man, 26, shot
his former wife
i
rt
ibigeste
What's next
Freddbe Trail Nash, 26,5
scheduled to be arraigned thes
morung in Lansing Disirict Court
on 3 murder charge in the Feb. 9
shooting of his eewile, Jereca
Mash, 34
4ycrae, 2 fer blocks from
ber home.
Police dogs traced the
lailer’s scent to the 1300
Nock of Pherce Road,
where police beliewe a driv
er — who likely knew noth
ing adour the come —
picked up Freddic Nash
Teresa Nash's children
range in age from | to 18
and she wag five months
ATE OF COMPLIANC]
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.