Appendix — Metrish v. Hatchett
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Hatchett v. Kapture
Order denying rehearing en banc
Ce nc scecscnsccoccnecocecesees. la
Hatchett v. Kapture,
109 Fed. Appx. 34 (6th Cir. 2004),
Order dated Aug. 19, 2004 oo... .eccccccsccsssssssssseseseecoees 2a
Hatchett v. Kapture, Eastern District of Michigan,
File No. 00-CV-74340,
Opinion dated Mar. 6, 2003 .........ceccscecsssessssessssecseeees 8a
People v. Hatchett, No. 104510 (Mich. Ct. App.
Opinion dated Mar. 10, 1989) ........ccccccccccssssssscseeeeee 26a
People v. Hatchett, No. 85743, 433 Mich. 909 (1989)
Order dated Nov. 29, 1989 .o......cccccccccccccseccceceeceseeess 29a
People v. Hatchett, No. 209790
(Mich, Ct. App. Order dated Mar. 1, 1999)............ 30a
People v. Hatchett, No. 114355,
(Mich. Sup. Ct. Order dated Sept. 29, 1999)... 3la
Transcript dated Sept. 29,1987,
Testimony of Eric Minor, pp. 8-13, .......cccccccccescosees 32a
Transcript dated Sept. 29,1987,
Testimony of Michael Howard, pp. 34-38.............. 4la
Transcript dated Sept. 29,1987,
Testimony of Lloyd Whitfield, pp. 59-62 ............... 48a
iia
Transcript dated Sept. 29, 1987,
Testimony of Darrin Hatchett, pp. 79-81 ................ 54a
Transcript of Motion
Requesting Waiver Disposition
dated March 10, 1987,
Testimony of Thomas Regan
eh, Gy FE Les OES Pepectseinieniiatennansiies 59a
Transcript of Motion
Requesting Waiver Disposition
dated March 10, 1987,
Findings of Judge Barsamian, pp. 143-149............. 70a
Juvenile Court File No. 258,252
Opinion Granting Waiver
IE IE i BT sata cceiesiecisicdicas earner 78a
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Nos. 03-1421/1501
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DARRIN T. HACKETT, ORDER
Petitioner-Appellant,
Vv
ROBERT J. KAPTURE, WARDEN KINROSS
CORRECTIONAL FACILITY,
Respondent-Appellee.
BEFORE: MOORE and COLE, Circuit Judges; and
MARBLEY, District Judge.*
The court having received a petition for rehearing
en banc, and the petition having been circulated not
only to the original panel members but also to all other
active judges of this court, and no judge of this court
having requested a vote on the suggestion for rehearing
en banc, the petition for rehearing has been referred to
the original panel.
The panel has further reviewed the petition for
- rehearing and concludes that the issues raised in the
petition were fully considered upon the original
submission and decision of the cases. Accordingly, the
petition is denied.
ENTERED BY ORDER OF THE COURT
Leonard Green, Clerk
Hon. Algenon L. Marbley, United States District Judge for the
Southern District of Ohio, sitting by designation.
2a
Nos. 03-1421/1501
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DARRIN T. HACKETT,
Petitioner-Appellant,
V. ORDER
ROBERT J. KAPTURE, Warden Kinross
Correctional Facility,
Respondent-Appellee.
Before: MOORE and COLE, Circuit Judges;
MARBLEY, District Judge.*
Darrin T. Hatchett, a Michigan state prisoner
proceeding pro se, appeals a district court judgment
denying his petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254. This case has been
referred to a panel of the court pursuant to Rule
34(i)(1), Rules of the Sixth Circuit. Upon examination,
this panel unanimously agrees that oral argument is not
needed. Fed. R. App. P. 34(a).
In late 1986 or early 1987, Hatchett was charged as
a fifteen-year-old with first-degree murder and
possession of a firearm during the commission of a
felony (felony firearm). On March 10, 1987, the
juvenile division of the probate court held an
evidentiary hearing to determine whether the court
should waive jurisdiction so that Hatchett could be tried
as an adult in circuit court. At the conclusion of the
hearing, the juvenile court waived jurisdiction.
3a
*The Honorable Algenon L. Marbley, United States
District Judge for the Southern District of Ohio, sitting
by designation.
Hatchett retained attorney Charles Campbell to
represent him after the waiver hearing. Campbell
represented Hatchett at the preliminary examination in
state district court, but he did not appeal the juvenile
court's decision to waive jurisdiction. Hatchett then
was bound over to the former Recorder's Court for the
City of Detroit, Michigan, where he was represented by
a different attorney (Rene Cooper). Following a bench
trial on September 29, 1987, the trial court found
Hatchett guilty of second-degree murder, and felony
firearm. The trial court sentenced Hatchett to two years
in prison for the felony firearm conviction and to life
imprisonment, with the possibility of parole, for the
murder conviction.
Hatchett filed an appeal of right through still
another court-appointed attorney (Roman Karwowski).
Karwowski argued that the evidence was insufficient to
sustain the murder conviction and that Hatchett was
entitled to re-sentencing because the sentence was
excessive. The Michigan Court of Appeals affirmed
Hatchett's conviction and sentence in an unpublished,
per curiam opinion. The Michigan Supreme Court
denied leave to appeal because it was not persuaded
that the questions presented should be reviewed.
On September 29, 2000, Hatchett filed his habeas
corpus petition through counsel. He raised two
substantive grounds for relief:
4a
I. Mr. Hatchett is entitled to a new trial
because he _ received constitutionally
ineffective assistance from three different
appointed attorneys, one of whom was
entirely absent as proceedings were
conducted, and another of whom
inexplicably allowed. his right to appeal
his waiver into Recorder's Court lapse
without action, and the last of whom failed
to raise any of these issues on appeal.
II. Mr. Hatchett's due process rights were
violated when the Recorder's Court Judge
failed to strike inaccurate information
from the presentence report.
Hatchett supplemented his habeas petition with a
third claim, which alleged that his nght to due process
was violated "by the prosecution's Motion to waive in
violation of MCR 5.904(A)." The respondent moved
for summary judgment on the ground that the statute of
limitations barred habeas review, but on August 8,
2001, the district court denied the respondent's motion.
The respondent then filed an answer to the habeas
petition, arguing that MHatchett had procedurally
defaulted his claims in state court by failing to raise
them on direct appeal or in his first motion for relief
from judgment. On April 11, 2002, the district court
rejected the respondent's procedural default argument,
but dismissed Hatchett's second and third claims, as
well as his claim about attorney Jerome Crawford, on
the merits.
The only issues that remained before the district
court were Hatchett's claims that attorneys Charles
Campbell and Roman Karwowski provided ineffective
assistance. Oral argument on these claims were held on
—
Sa
February 19, 2003. The district court denied habeas
corpus relief after concluding that Campbell's failure to
appeal the waiver of juvenile jurisdiction did not
prejudice Hatchett and that, to set aside Hatchett's
conviction could result in a windfall to which the law
does not entitle him. The district court found no merit
in Hatchett's claim about his appellate attorney
(Karwowski) because Campbell's performance did not
prejudice Hatchett. The court granted Hatchett a
certificate of appealability as to the ineffective
assistance of counsel claim regarding attorneys
Campbell and Karwowski. Hatchett then filed two
duplicative notices of appeal (appeal No. 03-1421 and
appeal No. 03-1501). The two resulting case numbers
have been consolidated.
We review de novo a district court's legal
conclusions in habeas corpus actions and review its
factual findings for clear error. Lucas v. O'Dea, 179
F.3d 412, 416 (6th Cir.1999). A district court shall not
grant a habeas petition with respect to any claim that
was adjudicated on the merits in the state courts unless
the adjudication resulted in a decision that: (1) was
contrary to, or involved an unreasonable application of,
clearly established federal law as determined by the
Supreme Court; or (2) was based on an unreasonable
determination or me facts in light of the evidence
presented to the state courts. 28 U.S.C. § 2254(d).
On appeal to this court, Hatchett claims that the
district court applied an incorrect legal standard when it
interpreted the prejudice prong of Strickland y.
Washington, 466 U.S. 668 (1984) to mean that
Hatchett's counsel was constitutionally ineffective for
not filing an appeal from the juvenile court's decision to
waive jurisdiction only if Hatchett could show that the
appeal was meritorious. Hatchett argues that to prove
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his ineffective assistance of counsel claim under the
Sixth Amendment, he need not show the merit of his
appeal, but must show (1) that counsel's representation
fell below an objective standard of reasonableness,
Strickland, 466 U.S. at 687, and (2) that counsel's
deficient performance prejudiced the defendant. /d. at
692. We agree.
Prejudice is sufficient to satisfy the second prong of
Strickland. Prejudice is presumed from counsel's
failure to file a notice of appeal when requested by his
client. See Roe v. Flores-Ortega, 528 U.S. 470, 480
(2000). The district court, however, concluded that
Hatchett must in addition demonstrate in his 28 U.S.C.
2254 petition that his appeal had some merit. In Roe,
the Supreme Court held that counsel's failure to pursue
an appeal requested by a defendant constitutes
ineffective assistance of counsel regardless of the
likelihood of success on the merits. Jd. at 486.
Moreover, even if a defendant oes not specifically
instruct counsel to file an appeal, counsel may still have
a duty to consult with his client about an appeal. /d. at
478-80.
The record in this case does not indicate why
Campbell did not appeal the juvenile court's waiver of
jurisdiction. One of Hatchett's uncles has indicated in
an affidavit that he and his brother retained Campbell to
appeal the juvenile court's waiver of jurisdiction.
Campbell moved to adjourn the preliminary
examination in the state district court, stating that this
was a waiver from juvenile court and "[w]e have to
study all of that and consider our options there and
here. . . ." Later, however, he agreed to proceed with
the preliminary examination. Because Hatchett's uncle
retained counsel to appeal, it is clear that Hatchett
would have appealed. Therefore, the district court erred
7a
in dismissing Hatchett's habeas petition as to this claim
by examining the potential merits of a possible appeal.
Accordingly, the district court's judgment as to this
ineffective assistance of counsel claim is vacated and
the case is remanded for consideration in light of Roe.
Appeal No. 03-1501 is dismissed as duplicative of
appeal No. 03-1421, Rule 34(j2)(C), Rules of the
Sixth Circuit.
ENTERED BY ORDER OF THE COURT
/s/
Clerk
——S ti — 5
8a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DARRIN T. HATCHETT,
Petitioner,
V. CASE NO. 00-CV-74340-DT
HONORABLE NANCY G. EDMUNDS
ROBERT J. KAPTURE,
Respondent.
OPINION AND ORDER DENYING _ HABEAS
CORPUS PETITION
This matter is pending before the Court on petitioner
Darrin T. Hatchett's habeas corpus petition filed under
28 U.S.C. § 2254. For the reasons set forth below, the
habeas petition shall be denied.
I. Background
This case arose when Petitioner was charged as a
fifteen-year-old with first-degree murder and
possession of a firearm during the commission of a
felony (felony firearm). On March 10, 1987, the
juvenile division of the probate court held an
evidentiary hearing to determine whether the court
should waive jurisdiction so that Petitioner could be
tried as an adult in circuit court. At the conclusion of
the hearing, the probate court waived jurisdiction.
Petitioner retained attorney Charles Campbell to
represent him after the waiver hearing. Campbell
represented Petitioner at the preliminary examination in
state district court, but he did not appeal the probate
court's decision to waive jurisdiction. Petitioner then
9a
was bound over to the former Recorder's Court for the
City of Detroit, Michigan, where he was represented by
a different attorney. Following a bench trial on
September 29, 1987, the trial court found Petitioner
guilty of second-degree murder, MICH. CoMP. LAWS §
750.317, and felony firearm, MICH. Comp. LAWS §
750.227b. The trial court sentenced Petitioner to two
years in prison for the felony firearm conviction and to
life imprisonment, with the possibility of parole, for the
murder conviction.
Petitioner appealed his conviction and sentence
through attorney Roman Karwowski, who argued that
the evidence was insufficient to sustain the murder
conviction and that the sentence was excessive. The
Michigan Court of Appeals found no merit in the
claims and affirmed Petitioner's conviction and
sentence in an unpublished, per curiam opinion. See
People v. Hatchett, No.104510 (Mich. Ct. App. Mar.
10,1989). The Michigan Supreme Court denied leave to
appeal because it was not persuaded that the questions
presented should be reviewed. See People v. Hatchett,
No. 85743 (Mich. Sup. Ct. Nov. 29, 1989).
In 1992, Petitioner filed a pro se motion for relief
from judgment in the trial court. The trial court denied
Petitioner's motion in a reasoned opinion. On March 14;
1994; the trial court vacated its previous order because
Petitioner had asked to withdraw his motion before the
trial court denied it.
On September 3, 1997, Petitioner filed a second
motion for relief from judgment. The trial court denied
the motion because, in its opinion, Petitioner had failed
to meet the stringent standards of Michigan Court Rule
6.508(D)(3). Petitioner appealed: the trial court's
decision, but the Michigan Court of Appeals denied
10a
leave to appeal, citing Michigan Court Rule 6.508(D).
See People v. Hatchett, No. 209790 (Mich. Ct. App.
Mar. 1, 1999). On September 29, 1999, the Michigan
Supreme Court likewise denied leave to appeal. See
People v. Hatchett, 461 Mich. 877; 602 N.W.2d 580
(1999) (table).
On September 29, 2000, Petitioner filed his habeas
corpus petition through counsel. He raised two
substantive grounds for relief:
I. Mr. Hatchett is entitled to a new trial
because he _ received constitutionally
ineffective assistance from three different
appointed attorneys, one of whom was
entirely absent as proceedings were
conducted, and another of whom
inexplicably allowed his right to appeal his
waiver into Recorder's Court lapse without
action, and the last of whom failed to raise
any of these issues on appeal.
II. Mr. Hatchett's due process rights were
violated when the Recorder's Court Judge
failed to strike inaccurate information
from the presentence report.
Petitioner supplemented his habeas petition with a third
claim, which alleged that his right to due process was
violated "by the prosecution's Motion to Waive in
violation of MCR 5.904(A)."
Respondent moved for summary judgment on the
ground that the statute of limitations barred habeas
review, but on August 8, 2001, the Court denied
Respondent's motion. Respondent then filed an answer
to the habeas petition, arguing that Petitioner had
lla
procedurally defaulted his claims in state court by
failing to raise them on direct appeal or in his first post-
conviction motion. On April 11, 2002, the Court
rejected Respondent's procedural default argument, but
dismissed Petitioner's second and third claims, as well
as his claim about attorney Jerome Crawford, on the
merits.
The only issues currently before the Court are
Petitioner's claims that attorneys Charles Campbell and
Roman Karwowski provided ineffective assistance.
Oral arguments on these claims were held on February
19, 2003.
II. Standard of Review
Petitioner is entitled to the writ of habeas corpus
only if he can show that the state court's adjudication of
his claims
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(4).
This deferential standard applies even when a state
court fails to articulate its reasoning for a decision on
the merits. Onifer v. Tyszkiewicz, 255 F.3d 313, 316
(6th Cir.) cert. denied, 534 U.S. 930 (200i). The
question in such circumstances is "whether the state
12a
court decision is contrary to federal law, unreasonably
applies clearly established law, or is based on an
unreasonable determination of the facts in light of the
evidence presented....... Harris v. Stovall, 212 F.3d 940,
943 (6th Cir. 2000), cert. denied, 532 U.S. 947 (2001)).
A federal court's independent review of the record
remains deferential to the state court's result. Jd.
Ill. Discussion
Petitioner alleges that Charles Campbell, who
represented him after the juvenile waiver hearing,
should have appealed the probate court's decision to
waive jurisdiction. Petitioner contends that his appellate
attorney, Roman Karwowski, should have ordered the
probate court transcripts and raised the issue on appeal
or argued that Campbell's representation was
ineffective.
A. Strickland v. Washington
To prevail on a claim of ineffective assistance of
counsel, a petitioner must show that defense counsel's
performance was deficient and that the deficient
performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). The proper
standard for attorney performance is "reasonably
effective assistance." Jd. The petitioner must
demonstrate that his attorney's "representation fell
below an objective standard of reasonableness." Jd. at
688. The prejudice prong of the Strickland test requires
demonstrating "a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome." Jd. at 694.
l3a
"Strickland qualifies as clearly established federal
law under § 2254(d)(1). Williams v. Taylor, 529 U.S.
362, 391(2000)." Monzo v. Edwards, 281 F.3d 568, 583
(6th Cir. 2002). The question then is whether the state
court's denial of relief "is contrary to federal law.
unreasonably applies clearly established law, or is
based on an unreasonable determination of the facts in
light of the evidence presented....... Harris, 212 F.3d at
943.
B. Waiver of Probate Court Jurisdiction
A juvenile court's determination of whether to
waive jurisdiction is a "critically important"
proceeding. Kent v. United States, 383 U.S. 541, 560
(1966). At the time of the offense in this case, the
juvenile division of the probate court had exclusive
original jurisdiction over a person under the age of 17
who was alleged to have violated a state or federal
criminal law. Dickens v. Jones, 203 F. Supp. 2d 354,
361(E.D. Mich. 2002) (Tarnow, J.). The probate court
was required to follow a two-step process. First, the
court had to determine whether there was probable
cause to believe that the juvenile had committed a
felony. /d. (citing MICH. COMP. LAWS § 712A.4(3)).
Then, the court had to determine whether the interests
of the juvenile were best served by waiving jurisdiction
so that the juvenile could be tried as an adult in a
criminal court. /d. (citing MICH. COMP. LAWS §
712A.4(4)). The court was required to consider the
following five criteria when determining whether to
waive jurisdiction:
"(a) The prior record and character of the
child, his physical and mental maturity and his
pattern of living.
14a
"(b) The seriousness of the offense.
"(c) Whether the offense, even if less serious,
is part of a repetitive pattern of offenses which
would lead to a determination that the child
may be beyond rehabilitation under existing
juvenile programs and statutory procedures.
"(d) The relative suitability of programs and
facilities available to the juvenile and criminal
courts for the child.
"(e) Whether it is in the best interests of the
public welfare and the protection of the public
security that the child stand trial as an adult
offender."
People v. Dunbar, 423 Mich. 380, 385-86; 377 N.W. 2d
262, 263-64 (1985) (quoting MICH. Comp. LAws §
712A.4(4)). The Michigan court rule was "substantially
identical." Jd., 423 Mich. at 386; 377 N.W. 2d at 264.
A juvenile was entitled to an appeal of right in
circuit court from the probate court's waiver of
jurisdiction. People v. Jackson, 171 Mich. App.
191,195-96; 429 N. W. 2d 849, 852 (1988). After the
deadline for filing a claim of right expired, he could
apply for leave to appeal in the circuit court. /d., 171
Mich. App. at 196; 429 N.W.2d at 852. Failure to
appeal the juvenile court's decision to waive jurisdiction
barred review of the issue in the Michigan Court of
Appeals. Jd.; People v. Mahone, 75 Mich. App. 407,
410; 254 N.W.2d 907, 909 (1977).
The standard for reviewing a juvenile court's waiver
of jurisdiction over a juvenile defendant read as
follows:
15a
"[W]e hold that an order waiving jurisdiction
will be affirmed whenever the judge's
findings, based upon substantial evidence and
upon thorough investigation, show either that
the juvenile is not amenable to treatment, or,
that despite his potential for treatment, ‘the
nature of his difficulty is likely to render him
dangerous to the public, if released at age
[nineteen], or to disrupt the rehabilitation of
other children in the program prior to his
release.
"We believe this holding hews a close line
between the often competing interests of the
juvenile and society. We emphasize, however,
that the ‘serious of the offense,' may not alone
be used to determine the likelihood that a
potentially amenable juvenile will endanger
the public or other children in a rehabilitation
program. The Legislature and the Supreme
Court have indicated by statute and rule,
respectively, that all of the waiver criteria
shall be considered; thus, no reason appears
why the ‘seriousness of the offense’ should
gain preeminence over other factors to be
assessed."
Dunbar, 423 Mich. at 387-88; 377 N.W. 2d at 264-65
(quoting People v. Schumacher, 75 Mich. App. 505,
511-12; 256 N.W.2d 39 (1977) (footnote and citations
omitted)).
In 1988, the Michigan legislature amended the law
to provide for automatic waiver of jurisdiction to circuit
court of juveniles aged 15 to 17 who are charged with
certain felonies, including murder. Dickens, 203 F.
l6a
Supp. 2d at 361-62 (citing MICH. COMP. LAWS §
600.606). This provision became effective after
Petitioner's trial, but before the Michigan Court of
Appeals affirmed his conviction and sentence.
C. The State Court Proceedings
Attorney Charles Campbell did not appeal the
juvenile court's waiver of jurisdiction, and his failure to
do so precluded Petitioner from raising the issue in the
Michigan Court of Appeals. Jackson, 171 Mich. App. at
195; 429 N.W. 2d at 852. Petitioner alleges that
Campbell squandered his best chance at avoiding
exposure to a life sentence.
The record does not indicate why Campbell did not
appeal the juvenile court's waiver of jurisdiction. One
of Petitioner's uncles has indicated in an affidavit that
he and his brother retained Campbell to appeal the
juvenile court's waiver of jurisdiction. Campbell moved
to adjourn the preliminary examination in state district
court, stating that this was a waiver from juvenile court
and "[w]e have to study all of that and consider our
options there and here. . . ." (Tr. Mar. 23, 1987, at 3).
Later, however, he agreed to proceed with the
preliminary examination. /d. at 3-5.
footnote begins
' Had Petitioner been sentenced as a juvenile, he could
have been released when he turned nineteen. (Tr. Mar.
10, 1987, at 81-82).
footnote ends
Had Campbell acquired the transcript of the probate
court hearing, the record would have revealed that child
17a
psychologist Thomas Regan recommended "long term
incarceration because of the morbidity of his pathology
and his instability." (Tr. Mar. 10, 1987, at 71). Regan
thought that time spent in the juvenile system would be
insufficient to rehabilitate Petitioner. /d. at 71-72.
The trial court heard testimony from other experts at
the hearing and then made the following findings:
THE COURT: Based on the information the
Court has before it, the Court makes the
following findings relative to the criteria set
forth in [the] statute relative to waiver.
In terms of prior record, the Court finds that
there is no prior record.
In terms of character of the child, the court
adopts the description set forth by Mr. Regan
in his report. Specifically, that personality
tests reveal a very angry and confused
youngster who would be upset and agitated
much of the time. An individual with this
profile may have difficulty coping with the
routine everyday living. They are usually
overwhelmed to achieve or accomplish much
of anything.
Darrin's reality testing is compromised by
his egocentricity and his perception of things
would be unique and idiosyncratic. This is the
type of youngster who broods, ruminates and
worries. He would appear to be preoccupied
and distant much of the time.
Darrin demonstrates some interest in
others and has the ability to identify, but his
18a
agitation and instability leads to interpersonal
friction. He is overly sensitive to rejection,
slight or criticism, and prone to act in an
aggressive manner. Darrin has difficulty in
delaying his impulses and feelings, and may
often get involved without delay and
forethought. This is the type of youngster
who, once stimulated, would become very
intense in the expression of his feeling and
have difficulty backing off.
There are some strong delinquency trends
including egocentricity, impulsivity, self-
indulgence, hostility and a strong disregard for
rules and authority.
In terms of his maturity, he is a person
physically and mentally mature. He is
operating at the reading grade level of 5.4 and
arithmetic level of 5.3.
In terms of his pattern of living, he comes
from predominantly a single parent home
where the parent is a female.
His father has chosen to abandon him at a
very early age and has had minimal contact
with his son. His father certainly does not
provide a role model for his son, given his
criminal background.
His mother I think probably has tried the
best she can under the circumstances to
provide for her son. Unfortunately, she has
failed to provide him with a positive role
model until very recently. It seems that until
recently, until her recent marriage, she
19a
basically has provided him with basically a
female oriented home and/or a home where a
male is involved but who is not of a positive
role model.
I think that the grandmother has tried to be
supportive of her daughter and of her
grandson and has tried to intervene whenever
it's been necessary for her to intervene, and to
provide for her grandchild, probably to the
best of her ability.
And I think that the mother herself has had
a lot of problems. It seems as though she's
been able to work those problems out. She had
a drug addiction in her history and she has
been committed to the Michigan Department
of Corrections for some criminal involvement
relative to unarmed robbery.
So this youngster has been exposed to a lot
of negative criminal activity in relationship to
the people that should be very meaningful to
him. And so he has not had very positive role
models.
He has not functioned well in school, and
his grades certainly are evident of that.
I think until very recently, he's been able
to maintain himself within the community
without too much visibility in terms of
criminal activity. But it's almost as though it's
been festering within him and been building
up. And when he ultimately does exhibit the
antisocial behavior that's been building up
within him, he doesn't mess around with the
20a
small stuff; he goes right to the very big time
an[{d]} deprive[s] somebody of their life.
According to the mother and _ the
grandmother, he seems to be a person who has
exhibited many of the interests that other
children his age would normally show an
interest in. So other than this lack of parental
responsibility and the shifting between
relatives, relative to care, it seems that his life
is not any more unusual than many youngsters
in our community.
In terms of seriousness of the offense,
there's no doubt that murder first degree and
felony firearm are extremely serious offenses.
In terms of whether this offense, even if
less serious, is part of a repetitive pattern of
offenses which would lead to a determination
the child may be beyond rehabilitation under
existing juvenile programs and _ statutory
procedures, the Court finds that that criteria is
not applicable to this case, in that we do have
a serious offense here. And secondly, there is
no repetitive pattern of offenses.
In terms of relative suitability of programs
and facilities available in the juvenile and
criminal courts for the respondent, the juvenile
justice system has an array of resources
available to it. It has the Positive Peer Culture
program, the Guided Group Interaction
program, which is their predominant treatment
modality.
noe ws at mene Oe Aen
2la
Those are treatment modalities where
group intervention is used to promote values
within those that participate.
Based on the type of profile that has been
projected by Mr. Regan and presented to the
Court, it would appear that he is not a likely
candidate that would benefit from either one
of those programs, because these are programs
where youngsters are dealing with their peers,
where there is confrontation. And based on his
profile, he is very likely to respond in a
negative fashion and very quickly, and
ultimately become disruptive of the program.
In terms of the Intensive Treatment, which
is a small program available, and in terms of
the juvenile justice system, it would appear
that he is not an appropriate candidate for that
program, because apparently that program
deals with more vulnerable types of
youngsters and not the kind that we have
before us.
In terms of the camps, which would be the
other programs provided by the Department of
Social Services, it's clear from the testimony
of the representative from the Department of
Social Services that he would not be a
candidate for that program, if in fact he were
found guilty of this offense.
And so it would appear that those
resources that are available in the juvenile
justice system are not the kinds of programs
that would be successful with this respondent,
given his character and his personality traits.
22a
It would appear that he's more in need of
something that is akin to behavior
modification, and that is not available in the
juvenile justice system. He needs structure,
supervision, educational and _ vocational
training, with a milieu of behavior
modification. And it would appear that those
kinds of resources are available in the adult
system.
I think the bottom line is that while the
juvenile justice system has many programs,
the nature of this youngster, given his
personality and his diagnosis, is such that his
prognosis, if subjected to those programs,
would be very poor. It would seem that his
problems are so deep-seated that it is going to
take an extensive period of time to deal with
him all his problems to get him to a point
where he might continue to operate in our
community in an appropriate fashion.
And our system is such that we must
release him at age 19. And the evidence by the
professionals is that he is not likely to be
rehabilitated to the point where he would not
be dangerous when released at age 19. So it
would appear that we just do not have the time
within which to work, even if he were
amenable to the kind of treatment available to
him in the juvenile justice system.
And then, finally, whether the best interest
of the public welfare and protection of
security is such that he should stand trial as an
adult. It appears to me that if he is indeed
23a
guilty of the offenses of which he is charged,
he is a very dangerous individual and needs to
be put in a position where the public will not
be in danger. And I would think that the
priority here should be the safety of the public,
and that is the priority of the adult system;
and, therefore, it would be more appropriate
that he be placed there.
Id. at 143-49.
To summarize, the court considered the statutory
factors, namely, any prior record, the character of the
child, his physical and mental maturity and pattern of
living, the seriousness of the offense and whether it was
part of a repetitive pattern, the suitability of available
programs and facilities, and whether it was in the best
interests of the public welfare and the protection of the
public security that Petitioner stand trial as an adult
offender. The court concluded that the criteria for
waiver had been met and that Petitioner should be tried
as an adult. /d. at 149.
Given the probate court's reasoned opinion, as well
as the nature of the crime and the recommendation of
an expert witness that Petitioner be tried as an adult, it
is unlikely that Petitioner would have prevailed if
Charles Campbell had appealed the probate court's
decision to waive jurisdiction. Petitioner has not
demonstrated a reasonable probability that, but for
Campbell's failure to appeal the probate court's
decision, the result of the proceeding would have been
different. The Court of Appeals for the Sixth Circuit
reached the same conclusivn in a similar case. See
Spytma v. Howes, 313 F.3d 363, 372 (6th Cir. 2002)
(finding no prejudice in defense counsel's failure to
appeal the waiver of juvenile court jurisdiction where
24a
the petitioner was charged with murder and it was
likely that he would have been transferred to adult court
again if error were found on appeal and he was granted
another transfer hearing).
Furthermore, to set aside a conviction or sentence
solely because the outcome might have been different
but for counsel's error could result in the defendant
receiving a windfall to which the law does not entitle
him. Lockhart v. Fretwell, 506 U.S. 364, 369-70
(1993). Sheer outcome determination is "not sufficient
to make out a claim under the Sixth Amendment." /d. at
370. "The touchstone of an ineffective-assistance claim
is the fairness of the adversary proceeding. .. ." Jd. The
result of the proceeding in this case was neither unfair
nor unreliable in light of the 1988 amendment in the
law, which provided for automatic waiver of
jurisdiction to circuit court for a fifteen-year-old
juvenile charged with murder.
IV. Conclusion
The Court concludes that, even if Charles
Campbell's performance was deficient, his performance
did not prejudice Petiticner. Petitioner's inability to
show prejudice defeats his ineffectiveness claim as to
Charles Campbell. Because Campbell was _ not
ineffective, the Court's "inquiry is at an end; by
definition, appellate counsel [Roman Karwowski]
cannot be ineffective for a failure to raise an issue that
lacks merit." Greer v. Mitchell, 264F.3d 663, 676 (6th
Cir. 2001), cert. denied, 535 U.S. 940 (2002).
Accordingly, the state courts' denial of relief did not
result in a decision that was contrary to federal law, an
unreasonable application of clearly established law, or
an unreasonable determination of the facts. Petitioner's
application for the writ of habeas corpus is DENIED.
Reoarien bite UR
Ape,
25a
The Court declines to hold an evidentiary hearing
because Petitioner's claims lack merit and because the
parties have informed the Court that Charles Campbell
is deceased and that Roman Karwowski has no memory
of the case and no file on it. The Court is not convinced
that, even if the facts were more fully developed,
Petitioner would be able to demonstrate entitlement to
relief. Byrd v. Collins, 209 F.3d 486, 550 (6th- Cir.
2000) (Jones, C.J.; dissenting) (quoting Harris v.
Nelson, 394 U.S. 286, 300 (1969)), cert. denied, 531
U.S. 1082 (2001); see also Stanford v. Parker, 266 F.3d
442, 459 (6th Cir. 2001) (affirming the district court's
denial of an evidentiary hearing in part because the
petitioner's claims lacked merit), cert. denied, __ US.
__, 123 S. Ct. 136 (2002).
NANCY G. EDMUNDS
UNITED STATES DISTRICT
JUDGE
Date: March 6, 2003
Pane nn
26a
STATE OF MICHIGAN
COURT OF APPEAL
PEOPLE OF THE STATE OF MICHIGAN,
P | aintiff-Appellee,
Vv
No. 104510
DARRIN HATCHETT,
Defendant-Appellant.
Before:McDonald, P.J., and Doctoroff and Neff, JJ.
PER CURIAM.
Following a bench trial on September 27, 1987,
defendant was convicted of second-degree murder,
MCL 750. 317; MSA 28.549 and felony-firearm,. MCL
750.227b; MSA 28.424(2). Defendant was sentenced
to life imprisonment on the second-degree murder
conviction and two years' imprisonment on the felony-
firearm conviction. Defendant now appeals as of right
and we affirm.
Defendant first contends that the prosecutor failed
to present sufficient evidence of malice to allow a
rational trier of fact to conclude that this element of
second-degree murder had been established beyond a
reasonable doubt. Defendant also contends that the
prosecutor failed to prove that defendant's actions were
without justification, mitigation, or excuse and that the
prosecutor failed to disprove defendant's claim of self-
defense beyond a reasonable doubt. We believe that
defendant's contentions are without merit.
To determine if there is sufficient evidence to
support a conviction, the court must view the evidence
in a light most favorable to the prosecution, and
27a
determine whether a rational trier of fact could have
found that the essential elements of the crime charged
were proven beyond a reasonable doubt. People v
Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979),
reh den 407 Mich 1164 (1980), cert den sub nom
Michigan v Hamption, 449 US 885; 101 S Ct 239; 66 L
Ed 2d 110 (1980); People v Petrella, 424 Mich 221,
268-269; 380 NW2d 11 (1985).
The elements of second-degree murder are (1) that a
death occurred, (2) that the death was cauaed by the
defendant, (3) that the killing was done with malice,
and (4) that it was done without justification or excuse.
People v Porter,169 Mich App 190, 192; 425 NW2d
514 (1988), lv den 431 Mich 883 (1988).
Malice is the intention to kill, the intention to do.
great bodily harm, or the intention to create a very high
risk of death or great bodily harm with knowledge that
death or great bodily harm is the probable result.
People v Dykhouse, 418 Mich 488, 495; 345 NW2d
150 (1984); Porter, supra, 192-193. Malice must be
established from circumstances that do not constitute
excuse or justification or mitigate the degree of offense
to manslaughter. Malice may be inferred from the facts
and circumstances of the killing. Porter, supra, 193.
The trial judge found sufficient intent because
defendant had the gun and fired it at the victim.
Because there were multiple shots and because the
victim was shot twice in the head, the trial court judge
was convinced beyond a reasonable doubt that
defendant intended to kill the victim. After reviewing
the record and viewing the evidence in the light most
favorable to the prosecution, we believe that the trial
judge did not err in finding that the evidence was
sufficient to support defendant's conviction.
28a
We also believe that the trial court did not err in
finding that the defense of self-defense was not
- available to defendant in this case. The testimony at
trial revealed that defendant was the initial aggressor.
The defense of self-defense is unavailable to an
aggressor in a conflict. People v Livery Clark, 172
Mich 407, 418;_ = NW2d____ (1988).
Defendant next. contends that he is entitiled to
resentencing because his sentence of life imprisonment
for the second-degree murder conviction was excessive.
We disagree.
Our review of defendant's sentence is guided by
People v Coles 417 Mich 523; 339 NW2d 440 (1983).
Based on the standard enunciated in Coles, we cannot
conclude that defendant's sentence was excessive.
Given the facts of this case, defendant's sentence does
not shock our consciences.
Affirmed.
/s/ Gary R. McDonald
/s/ Martin M. Doctoroff
/s/ Janet T. Neff
29a
Order Michigan Supreme Court
Lansing, Michigan
Entered: November 29, 1989 Dorothy Comstock Riley
Chief Justice
—85743 & (29)
Charles L. Levin
James H. Brickley
Michael E Cavanagh
Patricia J. Boyle
Dennis W. Archer
Robert P. Griffin
Associate Justices
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
V SC: 85743
COA:104510
DARRIN HATCHETT, LC: 87-002645
Defendant-Appellant. .
On order of the Court, the delayed application for
leave to appeal and request for review under MCR
7.303, are considered. Since the defendant has applied
for leave to appeal, the letter request is DENIED as
moot. The delayed application is DENIED, because we
are not persuaded that the questions presented should be
reviewed by this Court.
41121
SEAL OF THE I, CORBIN R. DAVIS, Clerk
MICHIGAN of the Michigan Supreme
SUPREME COURT Court, certify that the foregoing
is a true and complete copy of
the order entered at the direction
of the Court.
November 29, 1989 /s/
Corbin R. Davis
30a
Court of Appeals, State of Michigan
ORDER
Jane E. Markey
Presiding Judge
People of MI v Darrin Hatchett
Docket No. 209790 Barbara B. McKenzie
David H. Sawyer
LC No. 87-002645
Judges
The Court orders that the delayed application for
leave to appeal is DENIED for failure to meet the
burden of establishing entitlement to relief under MCR
6.508(D). .
SEAL OF THE
MICHIGAN A true copy entered and
COURT OF certified by Carl L. Gomek,
APPEALS Chief Clerk on
March 1, 1999 /s/
Carl L. Gromek
3la
Order Michigan Supreme Court
Lansing, Michigan
Entered: September 29, 1999
114355
Elizabeth A. Weaver,
Chief Justice
James H. Brickley
Michael F. Cavanagh
Marilyn Kelly
Clifford W. Taylor
Mauna D. Corrigan
Robert P. Young, Jr.,
Justices
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
Vv
SC: 114355
COA: 209790
DARRIN HATCHETT, Rec Ct: 87-002645
Defendant-Appellant.
On_order of the Court, the delayed application for
leave to appeal from the March 1, 1999 decision of the
Court of Appeals is considered, and it is DENIED,
because the defendant has failed to meet the burden of
establishing entitlement to relief under MCR 6.508(D):
H0921
SEAL OF THE I, CORBIN R. DAVIS, Clerk
MICHIGAN of the Michigan Supreme
SUPREME COURT _ Court, certify that the foregoing
is a true and complete copy of
the order entered at the
direction of the Court.
September 29, 1999 /s/
Corbin R. Davis
32a
[Testimony of Eric Minor, Transcript dated September
29, 1987, pp 8-13]
[Page 8, T, 9/29/87]
A. Yes.
Q. Mr. Minor, I would like to draw your attention
PF HOH FF HF DB F&F BD PY OO S&
to December 29, 1986, at about 6:15, in the
evening, and ask you if at that time, you were at
a residence in the City of Detroit known as 9145
Mendota?
Yes.
Who lived there, sir?
Michael. |
What were you doing there?
Playing pool.
Anyone else there?
Yes.
Who all was there?
K.C., Rodney and Darrin.
K.C. and who?
Rodany and Darrin.
Rodney McCrae?
QD PF Oo
33a
Yes.
Is that person known by Lloyd Whitfield, K.C.?
Yes.
You said that you were playing pool.
Who were you playing pool with?
Rodney.
Did something happen while playing pool?
Yes.
[Page 9, T, 9/29/87]
What happened, sir?
Darrin shot Rodney.
Did you see that happen?
Yes.
Prior to Darrin shooting Rodney, anyone say
anything to each other?
Yes.
Did Rodney say anything to —
Hi to him.
Did he say anything else? Do you remember?
A.
Q.
QD FF OD -Y
34a
MR. COOPER: Actually, Judge, I
object on the grounds of hearsay, what Rodney
said. I don't see any exception.
THE COURT: Part of the res
gestae. Overrule the objection.
MR. COOPER: Okay.
MR. BECK: Do you remember
if Rodney said anything?
You still mad at me?
(By Mr. Beck). Who did he say that to?
Darrin.
Did you know what he was talking about at that
time?
No.
Did Darrin say anything to Rodney as a result of
Rodney asking him are you still mad at up?
[Page 10, T, 9/29/87]
A.
> OD FF 0
Told him to shut up, punk.
What happened?
Darrin left.
Did you see where he went?
No.
35a
Do you know if he left Michael Howard's
house?
Yes.
How do you know that?
He went outside the side door.
Did there come a time when Darrin came back?
Yes.
How long was it between the time he left and
the time he came back?
About five minutes.
After he came back, what happened then?
He ran down the stairs and started shooting.
Did he say anything before he started shooting?
He said - -
THE COURT: We are trying to
understand you. Slow down.
THE WITNESS: Talk your junk now,
punk.
(By Mr. Beck). Who did he say that to?
Rodney.
36a
Q. Where was Rodney?
A. On the side of the pool table with me.
[Page 11, T, 9/29/87]
Q. You said that you saw Darrin shoot him.
Did you see where Darrin shot him?
No.
Do you know how many times Darrin shot?
About five.
A
Q
A
Q. What did Rodney do after he shot?
A Fell.
Q After Rodney fell, did Darrin shoot anymore?
A
After he fell, I ran up the stairs. Then he ran up
after me. ;
Who did?
Darrin, and he clicked the gun, but no bullets.
At me.
Q
A
Q. Was he pointing the gun anywhere?
A
Q Did he say anything to you?
A
He said, what I'm doing? I was going outside.
He said, if I say something -- if I tell, he'll blow
my house up.
37a
Q. After that, did anything happen, sir?
A. Yes, we left.
Q. Who left?
A. Me and Darrin.
Q. What did you do when you left?
A. He said that he had to get one of his friends to
help him get the body out.
Q. Did you go get one of his friends?
[Page 12, T, 9/29/87]
A. Yes.
Q. What did you do after you got this person?
A. Came back.
Q. And what happened then when you came back?
> O &— OD
Did you go back into the house?
Yes.
Back in the basement?
Yes.
Rodney still there?
Yes.
- -
DF HD -
38a
What happened then?
His friend looked and left.
He looked?
At the body, and he ask me why he do it, and
left.
Did you know what that person's name was?
No.
Could you tell what kind of gun Darrin had
when he shot?
All I know it was small, black and a revolver.
Had there becn any arguments in your presence
while playing pool with Darrin McCrae and
Darrin Hatchett? Any argument between the
two?
No.
Did Rodney have any weapons?
No.
Now, this individual that came back made a
statement to [Page 13, T, 9/29/87] Mr. Hatchett
after he viewed the body, after the person that
you and Mr. Hatchett went to get to help remove
the body.
He came back and went into the basement?
pf PP ee PF &
39a
He didn't go in the basement. He stood in the
doorway.
Stood in the doorway?
Yes.
Rodney's body could be seen from the doorway?
Yes.
He made a statement to Darrin?
Yes.
Did Darrin say anything after that person made
the statement to Darrin, after he asked him that
question?
Not that I know of.
Did Darrin do anything -- well, did you
eventually - - was Rodney's body moved?
Yes.
How was it moved? What happened to his
body?
We put it in a dumpster.
Who did that?
Me, Darrin, Michael--- I don't really know if
K.C. did or not.
How did you get to the dumpster?
40a
A. Picked up.
Q. After it was put in the dumpster, did you go
back into
4la
[Testimony of Michael Howard, Transcript dated
September 29, 1987, pp 34-38]
[Page 34, T, 9/29/87]
MICHEAL HOWARD
called as a witness on behalf of the People, was duly
sworn in by the Court Clerk and testified as follows:
DIRECT EXAMINATION
BY MR BECK:
Q. What is your name young man?
A. Michael Howard.
Q. How old are you?
A. __ Sixteen.
Q. Mr. Howard, I would like to draw your attention
to last December 29th?
A. Uh-huh.
Q. At about 6:30, 6:15 in the evening, were you
living at 9145 Mendota, City of Detroit?
A. Yes, I was.
Q. Were you, in fact, at home at that time?
A. Yes.
Q.
Do you remember who was there with you?
42a
A. Me, Darrin, Rodney and Lloyd.
Q. Is that K.C.?
[Page 35, T, 9/29/87]
A. Yes and Eric.
Q. Eric Minor?
A. Uh-huh.
Q. Were you all in the basement?
A. Yes.
Q. What were you doing at that time?
A. I was just downstairs.
Q. Was anybody shooting pool?
A. Yes.
Q. Who was?
A. Rodney, and I think Eric.
Q. Now, did you observe any disagreement or
arguments while you were down there?
A. No.
Q. Did you hear whether or not Rodney MaCrae
said anything to Darrin Hatchett?
Yes.
43a
Q. What did he say to him?
MR. COOPER: Objection. Same
objection.
THE COURT: That objection is
preserve. I think it is part of the res gestae.
A. He said, how you doing? Hello.
Q. (By Mr. Beck). Something to that effect?
A. What?
Q. What's up, or how you doing?
A. Yes.
[Page 36, T, 9/29/87]
Q. Darrin Hatchett say anything to him?
A. Don't say nothing to me.
Q. By the way, I'll ask you if you see Darrin
Hatchett in the court?
A. Yes.
Q. Seated next to Mr. Cooper?
A. Yes.
Q. Thank you.
What happened after Mr. Hatchett spoke
to Rodney McCrae?
He had left.
Who left?
Darrin.
Did you see him leave?
Yes.
Do you remember how he left?
Through the side door.
And what happened then?
r OF Do F Oo S&F D >
Then K.C. went upstairs, and Eric an rodney
(sic) were still downstairs. Darrin came back.
Where were you?
At that time I went upstairs because we were
eating and came back down and answered the
door, and K.C. went up to use cae bathroom and
Darrin came down and shot Rodney.
Q. Did you see that?
[Page 37, T, 9/29/87]
A. Yes.
Q. Where were you when you saw that?
A. First I was on the stairs.
> Oo F&F OD PY
45a
Were you - - Which stairs were you on? There
are two steps, one coming from upsiairs to the
landing—
The one from the basement.
Do you remember how many times Darrin shot
Rodney?
Four.
Do you remember how far a part they were?
Can you tell me here in court? I will walk up
and you let me know.
Right there.
About right here?
Yes.
How wide is your basement?
Probably from the wall to about where you are
standing.
MR. BECK: Counsel would you
stipulate about 23 feet?
MR. COOPER: Okay.
(By Mr. Beck) . Was there anything obstructing
the area or when Darrin shot Rodney?
Pool table.
What kind of pool table do you have?
46a
A. About a seven footer.
Q. Do you remember how the shots were fired?
A. Yes.
[Page 38, T, 9/29/87]
Q. How were they fired?
A. He first shot him in the his chest or the heart,
and then in the side, and then he fell, and then
he shot him twice in the head.
When he fell -- Rodney fell?
Rodney fell.
Q. After Rodney fell, did Darrin get any closer to
Rodney?
A. Yes, he went around the pool table where
Rodney was laying, and he was probably about
three away from him. Two or three feet.
Q. And then?
A. Shot him twice in the head.
Q. Did you see that?
A. Yes.
Q. Do you remember whether or not Darrin said
anything to Rodney when he came down the
steps?
47a
Yes.
What was that?
What was all of that that you were saying, and
then Rodney looked, and he pulled the pistol
and he shot, and Rodney grabbed his chest and
said, he shot me, and Darrin shot him again and
he fell to the ground, and I said, no more, and he
went and shot him twice to the head.
Did you ever see Rodney threaten Darrin?
No.
48a
[Testimony of Lloyd Whitfield, Transcript dated
September 29, 1987, pp 59-62]
[Page 59, T, 9/29/87]
LLOYD WHITFIELD
called as a witness on behalf of the People, was duly
sworn in by the Court Clerk and testified as follows:
DIRECT EXAMINATION
BY MR. BECK:
What is your name, young man?
Lloyd.
Lloyd what?
Whitfield.
You got a nickname?
K.C.
How old are you?
Sixteen.
HOF BP F&F DB F&F DB FP
You know somebody by the name of Darrin
Hatchett?
Yeah.
A.
Q. See him in court?
49a
Yes.
Point to him, please, and tell me what he is
wearing?
Guy with a sweater and afro.
MR. BECK: Indicating the person of the
defendant.
[Page 60, T, 9/29/87}
Q.
PF PF DB >
(Continuing). I will draw your attention to
December 29, 1986, at about 6 o'clock in the
evening, 6:15, in the that area. Were you at
Michael Howard's house?
Yes.
On Mendota Street?
Uh—huh.
Do you remember who else was there?
Michael, Howard, Eric, me and him. Rodney.
Now, how long had you been at Michael's house
that day before the incident took place?
All day.
Been there all day. Were you on Christmas
vacation or something? You have to answer yes
or no?
Yes.
50a
Q. Because he is taking it down. That's why you
have to speak.
I want to ask you if there was a time that
you played any pool down there that day’
A. Yes.
Q. Who did you shoot pool with?
A. Yes.
Q. With who?
A. Mike.
Q. About 6 o'clock, were you doing anything in
particular? Were you downstairs, upstairs?
[Page 61, T, 9/29/87] -
A. I think we were playing pool. I went to use the
bathroom.
Q. I will ask you about that.
; When you up in the bathroom, did you
hear anything when in the bathroom?
A. I heard shots.
Q. How many did you hear?
A four..
Q. Do you recall how they occurred; in other
words, I'm asking you, did it all happen at once
or any space between any of them?
>
>
LDF Do F&F DF Do F&F DBD PP
S5la
It was first two. Then about two or three
seconds later the last two.
After you heard those, what did you do?
I jumped up and went downstairs.
Did you see anything downstairs?
Yes.
What did you see?
I saw Rodney laying on the floor.
See anybody else in the basement?
Uh-huh. Yes. Everybody.
What was everybody doing?
Staring 16 Rodney.
Did you see Darrin?
Yes.
[Page 62, T, 9/29/87]
Q.
A
Q.
A
Did you say anything to him?
No.
Did Darrin say anything when you saw him?
He was excited.
ie ae
52a
Did he say anything?
He was just cussing. He said that he didn't want
to go back to jail.
Did he say anything about Rodney, if you
recall?
He said that he shouldn't have made him mad.
While in the basement, were you down there
while Rodney and Darrin Hatchett were down
there together?
Yes.
Did you-- before the shooting, did you see any
argument or anything down there?
No.
Did you ever see Rodney with a weapon of any
kind?
No.
After you went down there and saw everybody,
what happened then?
Darrin had left.
And what did you do after he left?
We cleaned up the blood.
Did Larrin come back?
53a
A. Uh—huh. Yes.
Q. Was he alone when he came back?
54a
[Testimony of Darrin Hatchett, Transcript dated
September 29, 1987, 79-81]
[Page 79, T, 9/29/87]
opened the door up, and I was going in the basement
and Michael said he would be down in the minute
because he was eating. When I got in the basement, I
went to the other side of the room, and me and Rodney
were arguing a little more, and I pulled the gun and
said, talk your junk. I aimed the gun like that and said
that and I fired it, and I didn't know if he grabbed--- it
looked like he went for something and I shot some
more.
First of all, are you right or left-handed?
Left-handed.
You have the gun in a pocket?
Yes.
Which one?
Left pocket.
In what item of clothing?
Coat.
You pulled it out?
Yes.
DF DF DPF BH F&F DB PP
This is during an argument?
Q.
QO > QD >
55a
Yes.
Still arguing?
Yes.
When you saw him down there, why didn't you
leave?
I figured they would be leaving again pretty
soon.
But the arguing continued?
[Page 80, T, 9/29/87]
- Fr © Ff © > © >
Yes.
You pulled the gun out and said something like,
talk your junk now?
Yes.
You got the gun?
Yes.
Figured he would shut up?
Yes.
Did he shut up?
No.
So you aimed it where?
56a
A. I tried to aim it on the side of him, like more to
go pass his shoulder.
Did you pull the trigger?
A. Yes.
Q. You don't know if that first bullet hit him or
not?
A. Yes.
Q. But he grabbed in that direction?
A. Yes.
Q. Did you know if he was grabbing-- did you
know where he was grabbing?
A. No.
Q. Grabbing like toward his side?
A. Yes.
Q. Then what goes on in your mind, Mr. Hatchett?
[Page 81, T, 9/29/87]
A. I thought that he was going for something. I
thought a gun, and then I started firing some
more.
Q. You heard testimony that you shot him in the
head?
A. Yes.
>
Q
> O — DOF Do F&F Do F&F OD
57a
Is that the true?
Yes.
Were you aiming at the head or aiming at the
body? :
I was just aiming.
How many shots— how many times did you
pulled the trigger?
Four.
Okay. You realize this person was dead?
He wasn't dead at that time.
After the four shots, he was not dead yet?
No.
What led you believe he was not dead?
He was still moving.
He was on the floor though?
Yes.
Okay. Then what do you do?
After I shot him, we were standing there
looking. Eric had jumped. He tried to run for
the stairs. I said, wait a minute. Where you
going. He said, going outside for a minute, and I
58a
said, wait a minute. Wait a minute, and then
Michael said, we got to do something with the
59a
[Testimony of Thomas Regan, Transcript Of Motion
Requesting Waiver Disposition dated March 10, 1987,
pp 67-68]
[Page 67, T, 3/10/87]
or whether he can score higher.
Q. You'd require more testing, more observation?
MR. McCLINTON: Your Honor, the
question has been asked and answered. He
answered the question to the best of his ability.
He's trying to get him to say something that
obviously he cannot say at that particular time.
He hasn't done any more testing. There
is no more testing to be done. This is a hearing.
This is it.
He can't answer the question. He's
already said, "I don't know."
THE COURT: Is that what you said?
THE WITNESS: Yes, that's what I said.
THE COURT: Sustain the objection.
Q. (By Mr. Wolock, continuing): You state in your
report that "Personality tests reveal a very angry
and confused youngster."
What did you mean by that?
60a
The tests revealed a youngster who has a lot of
inner hostility, and also a youngster whose
thinking is quite confused.
You state his reality testing is compromised by
his egocentricity and his perception of things
would be unique and idiosyncratic.
What does that mean, or what did you
mean by that?
[Page 68, T, 3/10/87]
A.
That youngsters that score at his level of reality
testing just don't see things the way other people
do. They tend to be kind of idiosyncratic in their
own way. Their thinking is a little bit unusual.
You state, "This is the type of youngster who,
once stimulated, would become very intense in
the expression of his feelings and have difficulty
backing off."
What do you mean by that, sir?
To me, that says it very well.
I mean, I don't know what you mean
when you say, "What do you mean by that?"
It's very plain.
It means what it said?
It's very plain, yes.
You say, "There are strong delinquent trends
including egocentricity, impulsivity, self-
6la
indulgence, hostility and a strong disregard for
rules and authority."
What did you mean by "delinquent
trends?"
Well, those are the features you see in a
delinquent profile. You see the egocentricity,
the impulsivity, the self-indulgence, and then
the disregard for rules, authority--things like
that.
Based on your testing, was there any indication
of drug involvement?
There's no way to tell from the tests if there's
drug involvement.
62a
[Testimony of Thomas Regan, Transcript Of Motion
Requesting Waiver Disposition dated March 10, 1987,
pp 71-72]
[Page 71, T, 3/10/87]
program.
Q. Are you saying that even if he has a learning
disability, he has potential for finishing high
school as far as a GED?
A. A fifth grade level for reading is high enough to
get through high school.
Q. You state there needs to be availability of
psychiatric consultation or intervention.
A. Yes.
What did you mean by that?
This is a very unstable youngster who may
experience crises where he may need some
intervention from medical personnel; if not, that
maybe the staff where he's at would need some
consultation in terms of how to handle
situations.
Q. You state in your report, "This young man needs
long term incarceration because of the morbidity
of his pathology and his instability."
What did you mean by "long term"?
A. I mean that this is a youngster who is quite
impaired in terms of both his delinquent trends
63a
and the instability of the personality, and it's not
something that you're going to take care of in 10
or 12 months' time.
You state, "The time that he would have in the
juvenile system would not be enough time to
rehabilitate him to the point where he would be
considered, in the opinion of this examiner, as
not dangerous to others in the community.
[Page 72, T, 3/10/87]
GO F&F D >
Why?
Because the--what I see in the testing is a
youngster who is just very unstable, very
disturbed, as well being strongly delinquent.
And I don't feel that the length of time in the
juvenile system is long enough to guarantee that
this youngster would not be dangerous when he
is released.
Can he benefit from the programs in the young
adult system in the adult system?
Yes
Which programs would he benefit from?
From the educational program.
As far as the state you find the young man in
now, do you have any explanation for what-
why he's like that?
I mean, is this just something that
happens, you know, at birth? Is something
64a
missing at a young age? Do you have any.
explanation for what's happening here?
I can just speculate like anyone else. But what
the testing seem to reveal, it's just a long
standing youngster who's been pretty unstable
probably most of his life.
If I read Mr. Gregurek's report accurately,
there's some school problems but nothing
serious enough.
As far as you can tell from the report,
he's never come to the attention of the court
here, or the court in California, or any other
so—called criminal activity.
65a
[Testimony of Thomas Regan, Transcript Of Motion
Requesting Waiver Disposition dated March 10, 1987,
pp 81-82]
[Page 81, T, 3/10/87]
just to deal with crisis situations that are going
to arise with this kind of personality.
Q. Now, how long do you think this type of
treatment that you're envisioning might be
necessary before the young man might start to
turn around?
A. I see a young man who's probably going to have
emotional difficulties most of his life. So
whatever support he can get would be helpful.
Youngsters or young men like this can
make marginal adjustments. They have
difficulty holding down jobs and relating to
people, because they just are overwhelmed
easily. They get upset easily. They get agitated
easily.
So as he gets older I think he probably is
going to learn to deal with those situations
better. And the more support he has, I think the
more help that's going to be for him. But--
Q. So you don't think within four years he might be
in a situation--if he's given the right vocational
training, or given some vocational training, or
some psychiatric counseling, some role model
counseling, that within a four- year period of
66a
time he might not be able to function in a more
appropriate manner?
I am not saying to completely function.
It may not be as an average 19, 20 year old
who's never been [Page 82 T, 3/10/87]
incarcerated or that kind of thing. But to be able
to function in our society?
I feel there would be some improvement. I think
any amount of training, structure, or anything
like that, is going to improve his chances of
succeeding.
Now, you're aware of the fact if he stays in the
juvenile system he could remain here until age
19. Is that correct?
Yes.
So that would give the juvenile system four
years to work with him. Is that correct?
Yes.
MR. WOLOCK: Your Honor, I!
believe the date of birth is 9-5-71. I don't
believe that maybe is four years.
MR. McCLINTON: Three years.
MR. WOLOCK: Three and a half
years.
MR. McCLINTON: Three and a half
years.
i i i
67a
Q. (By Mr. McClinton, continuing): Within
three and a half years, would there be enough
improvement, do you feel, that he could begin to
function without the hostility that you envision,
or the intense feelings that he has?
A. No, I don't think that's enough time.
Q. How much time do you think would be
required, Doctor?
A It's really hard to say specifically how much
time.
Q. You don't know if it's 10 years or 20 years or
anything like that?
68a
[Testimony of Thomas Regan, Transcript of Motion
Requesting Waiver Disposition dated March 10, 1987,
p 92]
[Page 92, T, 3/10/87]
of thing?
A. The thing with him is, he can't stop himself. He
just gets overwhelmed.
Q. Once they help him to learn to stop that kind of
behavior, isn't that part of the group's endeavor?
A. That's part of the group's endeavor, yes.
MR. McCLINTON: Nothing further,
Your Honor.
MR. WOLOCK: Any questions, Your
Honor?
EXAMINATION
BY THE COURT:
Q. Mr. Regan, what would you say is the diagnosis
of this respondent and his problem?
A. At this point I would call it a mixed disturbance
of conduct and emotions.
Q. Does that mean his problems are primarily
characterological in nature?
69a
I see a real mixture with this youngster. I see
characterological features along with a lot of
other emotional kinds of features.
What would you say your prognosis is?
Poor.
Am I correct in interpreting what you're saying
is that he is not treatable in the sense that he's
going to be cured; or whatever his problem is, it
is a matter of more controlling the behavior
rather than changing his profile?
70a
[Findings of Judge Barsamian, Transcript of
Motion Requesting Waiver Disposition, dated
March 10, 1987, pp143-149]
[Page 143, T, 3/10/87}
others in the community.
I believe on the stand he was even more
explicit as far as this young man, that it's not set
up for this young man, or its programs, nor does
it have time for this young man or his problems,
nor is there time sufficiently to help this young
man. That even at 15 1/5 he is beyond the
assistance of the juvenile system.
We would argue that the other criteria
also have been met, and when weighed against
the other criteria, as far as amenability to
treatment, as far as facilities available, as far as
safety of society, unfortunately the grounds for
waiver have been made out. That there's a very
tragic case. I don't believe the court has much
choice, given the testimony that the Court has
heard, unfortunately.
THE COURT: Based on the information
the Court has before it, the Court makes the
following findings relative to the criteria set
forth in statute relative to waiver.
In terms of prior record, the Court finds
that there is no prior record.
In terms of character of the child, the
court adopts the description set forth by Mr.
Regan in his_ report. Specifically, that
aaa ia
Tla
personality tests reveal a very angry and
confused youngster who would be upset and
agitated much of the time. An individual with
this profile may have [Page 144, T, 3/10/87]
difficulty coping with the routine everyday
living. They are usually overwhelmed to
achieve or accomplish much of anything.
Darrin's reality testing is compromised
by his egocentricity and his perception of things
would be unique and idiosyncratic This is the
type of youngster who broods, ruminates and
worries. He would appear to be preoccupied
and distant much of the time.
Darrin demonstrates some interest in
others and has the ability to identify, but his
agitation and instability leads to interpersonal
friction. He is overly sensitive to rejection,
slight or criticism, and prone to act in an
aggressive manner. Darrin has difficulty in
delaying his impulses and feelings, and may
often get involved without delay and
forethought. This is the type of youngster who,
once stimulated, would become very intense in
the expression of his feeling and have difficulty
backing off.
There are some strong delinquency
trends including egocentricity, impulsivity, self-
indulgence, hostility and a strong disregard for
rules and authority.
In terms of his maturity, he is a person
physically and mentally mature. He is operating
at the reading grade level of 5.4 and arithmetic
level of 5.3.
72a
In terms of his pattern of living, he
comes from predominantly a single parent home
where the parent is a female.
[Page 145, T, 3/10/87]
His father has chosen to abandon him at
a very early age and has had minimal contact
with his son. His father certainly does not
provide a role model for his son, given his
criminal background.
His mother I think probably has tried the
best she can under the circumstances to provide
for her son. Unfortunately, she has failed to
provide him with a positive role model until
very recently. It seems that until recently, until
her recent marriage, she basically has provided
him with basically a female oriented home
and/or a home where a male is involved but who
is not of a positive role model.
I think that the grandmother has tried to
be supportive of her daughter and of her
grandson and has tried to intervene whenever
it's been necessary for her to intervene, and to
provide for her grandchild, probably to the best
of her ability.
And | think that the mother herself has
had a lot of problems. it seems as though she's
been able to work those problems out. She has a
drug addiction in her history and she has been
committed to the Michigan Department of
Corrections for some cmmuinal involvement
relative to unarmed robbery
73a
So this youngster has been exposed to a
lot of negative criminal activity in relationship
to the people that should be very meaningful to
him. And so he has not had very positive role
models.
[Page 146, T, 3/10/87]
He has not functioned well in school,
and his grades certainly are evident of that.
I think until very recently, hers been able
to maintain himself within the community
without too much visibility in terms of criminal
activity. But it's almost as though it's been
festering within him and been building up. And
when he ultimately does exhibit the antisocial
behavior that's been building up within him, he
doesn't mess around with the small stuff; he
goes right to the very big time an deprive
somebody of their life.
According to the mother and the
grandmother, he seems to be a person who has
exhibited many of the interests that other
children his age would normally show an
interest in. So other than this lack of parental
responsibility and the shifting between relatives,
relative to care, it seems that his life is not any
more unusual than many youngsters in our
community.
In terms of seriousness of the offense,
there's no doubt that murder first degree and
felony firearm are extremely serious offenses.
74a
In terms of whether this offense, even if
less serious, is part of a repetitive pattern of
offenses which would lead to a determination
the child may be beyond rehabilitation under
existing juvenile programs and _ statutory
procedures, the Court finds that that criteria is
not applicable [Page 147, T, 3/10/87] to this
case, in that we do have a serious offense here.
And secondly, there is no repetitive pattern of
offenses.
In terms of relative suitability of
programs and facilities available in the juvenile
and criminal courts for the respondent, the
juvenile justice system has an array of resources
available to it. It has the Positive Peer Culture
program, the Guided Group Interaction
program, which is their predominant treatment
modality.
Those are treatment modalities where
group intervention is used to promote positive
values within those that participate.
Based on the type of profile that has
been projected by Mr. Regan and presented to
the Court, it would appear that he is not a likely
candidate that would benefit from either one of
those programs, because these are programs
where youngsters are dealing with their peers,
where there is confrontation. And based on his
profile, he is very likely to respond in a negative
fashion and very quickly, and ultimately
become disruptive of the program.
In terms of the Intensive Treatment,
which is a small program available, and in terms
of the juvenile justice system, it would appear
75a
that he is not an appropriate candidate for that
program, because apparently that program deals
with more vulnerable types of youngsters and
not the kind that we have before us.
[Page 148, T, 3/10/87]
In terms of the camps, which would be
the other programs provided by the Department
of Social Services, it's clear from the testimony
of the representative from the Department of
Social Services that he would not be a candidate
for that program, if in fact he were found guilty
of this offense.
And so it would appear that those
resources that are available in the juvenile
justice system are not the kinds of programs that
would be successful with this respondent, given
his character and his personality traits.
It would appear that he's more in need of
something that is akin to behavior modification,
and that is not available in the juvenile justice
system. He needs structure, supervision,
educational and vocational training, with a
milieu of behavior modification. And it would
appear that those kinds of resources are
available in the adult system.
I think the bottom line is that while the
juvenile justice system has many programs, the
nature of this youngster, given his personality
and his diagnosis, is such that his prognosis, if
subjected to those programs, would be very
poor. It would seem that his problems are so
deep-seated that it is going to take an extensive
76a
period of time to deal with him and his
problems to get him to a point where he might
continue to operate in our community in an
appropriate fashion.
And our system is such that we must
release him at age 19. And the evidence by the
[Page 149, T, 3/10/87] professionals is that he is
not likely to be rehabilitated to the point where
he would not be dangerous when released at
agel9. So it would appear that we just do not
have the time within which to work, even if he
were amenable to the kind of treatment
availabletohimin the juvenile justice
system.
And then, finally, whether the best
interest of the public welfare and protection of
security is such that he should stand trial as an
adult. It appears to me that if he is indeed guilty
of the offenses of which he is charged, he is a
very dangerous individual and needs to be put in
a position where the public will not be in
danger. And I would think that the priority here
should be the safety of the public, and that is the
priority of the adult system; and, therefore, it
would be more appropriate that he be placed
there.
Therefore, the Court feels the criteria for
waiver have been met, and the Court will waive
him to the Recorder's Court of the City of
Detroit for trial as an adult on the offense of
murder first degree and felony firearm.
The Court willadvise him that he is
entitled to appeal the decision of this Court to a
77a
higher court. If he can't afford counsel, counsel
will be provided for him, as well as transcripts.
(Whereupon the above-entitled matter was
adjourned)
78a
STATE OF MICHIGAN
IN THE PROBATE COURT FOR THE
COUNTY OF WAYNE
JUVENILE DIVISION
in the Matter of: Juvenile Court File No. 258,252
DARRIN HATCHETT Birthdate: September 5, 1971
/
OPINION GRANTING. WAIVER
In a petition dated December 20, 1986, Darrin
Hatchett was charged with Murder, First Degree, and
possession of a Firearm in the Commission or Attempt
to Commit a Felony. These offenses are alleged to
have been committed on December 29, 1986 in the City
of Detroit.
Motion for Waiver of Jurisdiction was filed by the
Prosecutor. On January 20, 1987, a hearing on the first
phase of the Waiver proceeding was held and probable
cause was found by the court on the offenses alleged in
the petition and motion.
A dispositional hearing was held on March 10,
1987, resulting in the granting of the Motion for
Waiver.
It is alleged that the respondent, the complainant
and two other youths were in the basement of the home
belonging to the family of one of the youths. The
complainant and one of the youths were playing pool,
when the complainant asked the respondent if he was
still mad at him. Respondent told the complainant not
to say anything to him and left the house. Respondent
returned five minutes later confronting the complainant,
saying "talk your junk now," and started shooting. The
complainant was shot four times and died. When one of
79a
the other youth began to run, the respondent is alleged
to have aimed the gun at him and fired, but the gun only
clicked. He ordered the youths not to tell what
happened. Respondent went to get someone to help
him remove the body, but he refused to help.
Respondent then ordered the other youth to help him
carry the body to a trash dumpster.
During the dispositional hearing, investigation was
conducted by the Court, at which time. testimony was
taken from Thomas Patrick Regan, Psychologist,
Wayne County Clinic for Child Study; Frank Gregurek,
Jr., Probation Officer, Wayne County Juvenile Court.
Gloria Postell, Delinquency Intake Worker, Department
of Social Services; Gary Kasenow, Parole supervisor,
Michigan Department of Corrections.
Based on the information garnered during the
dispositional phase, the Court found in accordance with
the criteria set forth in M.J.C. 712A.4(4) as follows:
Criteria I - The respondent is a 15.6 year old youth,
who has no prior record.
His diagnosis is mixed disturbance of conduct and
emotions. His problems are deep seated and of long
standing. His prognosis for rehabilitation is poor.
Respondent is a very angry and confused person
who would be upset and agitated much of the time.
Individuals with this profile may have difficulty coping
with the routine of everyday living and are usually too
overwhelmed to achieve or accomplish much of
anything.
Respondent's reality testing is compromised by his
egocentricity and his perception of things would be
80a
unique and idiosyncratic. He is the type of person who
broods, ruminates and worries. He would appear to be
preoccupied and distant much of the time.
The Respondent demonstrates some interest in,
others and has the ability to identify, but his agitation
and instability leads to interpersonal friction. He is
overly sensitive to rejection, slight or criticism, and
prone to act in an aggressive manner. Respondent has
difficulty in delaying his impulses and feelings, and
may often get involved without delay and forethought.
He is the type of person who, once stimulated, would
become very intense in the expression of his feelings
and have difficulty backing off. This profile is
consistent with the alleged facts of this case.
There are also strong delinquency trends including
egocentricity, impulsivity, self-indulgence, hostility and
a strong disregard for rules and authority.
Respondent is physically and mentally mature. He
operates within the average range of intelligence. His
reading grade level is 5.4 and his arithmetic grade level
is 5.3.
Respondent's parents were never married, nor aid
they ever live together. His natural father is a career
criminal, who is currently incarcerated in the Western
Wayne County Correctional Facility, and has had
minimal contact with the respondent.
His mother was a teenager when she conceived and
delivered the respondent, and has been the primary
caretaker, except for a couple of times that she has
relied on the maternal grandmother to assume that
responsibility. The mother is a recovering drug addict
who was incarcerated for armed robbery. Since her
8la
release, she has been drug free, married and apparently
doing well. She currently resides with her husband, a
career soldier, in West Germany. At the time of this
incident, respondent resided with his maternal
grandmother because he did not want to go to West
Germany. Both the mother and maternal grandmother
perceive the respondent as being a good boy, who did
not present a problem in the home. Respondent has had
learning and behavior problems in school. He was
suspended from school once while he was a student in
California.
Criteria If - The offenses with which respondent is
charged are very serious.
Criteria III - This criteria is not applicable since
respondent is charged with very serious offenses and
there are no prior offenses.
Criteria IV - The respondent is a very disturbed and
unstable person with strong delinquency tendencies. He
will require a lot of structure, supervision plus
academic and vocational training. There is a real
question as to whether he is amenable to treatment in
either the juvenile or adult criminal system.
The predominant treatment modality available in
the Juvenile Justice system is either Positive Peer
Culture or Guided Group Interaction, which use group
processes to bring about positive social values and
behavior. Respondent's personality traits will not enable
him to participate in a group process in a meaningful
manner. He would evoke negative responses and
confrontation from his peers. He would overreact to
group interaction and not be able to internalize program
goals. Respondent's response to a group rehabilitative
process would be such that he would be disruptive in
82a
any treatment program of which he was a part. While
the Juvenile Justice system has an excellent academic
program, it does not provide any vocational training.
As indicated previously, there is a real question as
to the respondent's amenability to treatment. It will
take a long time to even begin to penetrate the
respondent is a meaningful way. Mr. Regan indicated
that it will take four years to see some improvement,
and that there is not enough time left in the Juvenile
Justice system to complete the treatment process. The
Juvenile Justice system has a limited period of time
within which to attempt rehabilitation - it must release
the respondent at age nineteen. The nature of
respondent's difficulties are such as would likely render
him dangerous to the public if released at age nineteen.
Respondents profile would not be unusual in the
adult system, and it can provide the structure,
supervision and time needed. The adult system has no
time limit, other than the sentence imposed, and can
provide the therapy, educational and vocational
programs as needed and appropriate.
Criteria V - If respondent is found guilty of the offenses
charged, he is a dangerous person, and the probability
that he will repeat his anti-social behavior is very high.
He would -represent a great risk to the community. If
found guilty of the alleged offenses, it is in the best
interest of the public welfare and the protection of
public security that the respondent be treated in the
adult system.
It is the opinion of the Court, based on the above
findings, that Darrin Hatchett meets the criteria set forth
in the statute.
83a
/s/
Y.Gladys Barsamian
Judge of Probate
Juvenile Division
YGB:smp
March 27, 1987
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.