Petition for Writ of Certiorari — Ward v. Michigan (No. 07-90)

a

07-90 JUL23 2007

me OFFICE OF THE CLERK

IN THLE SUPREME COURT OF Tilt UNITED STATES

VINCENT WARD,

Petitioner

-Y-

STATE OF MICHIGAN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE CIRCUIT COURT OF OAKLAND COUNTY,

MICHIGAN

JAMES STERLING LAWRENCE (P33664)

Attorney for Petitioner Ward

828 W. Eleven Mile Road

Royal Oak, MI 48067

(248) 399-6930

QUESTIONS PRESENTED

Petitioner Vincent Ward wageconvicted of first degree

murder at a jury trial, at which we submit serious

constitutional error occurred. He was sentenced to life in

prison. Habeas Corpus was denied.

The questions presented are:

QUESTION 1: WHETHER PETITIONER WAS DENIED

THE RIGHT OF CONFRONTATION AND PREJUDICED

BY TESTIMONY THAT PETITIONER ATTACKED THE

VICTIM FIRST, INSTEAD OF SUPPORTING

PETITIONER'S VERSION THAT THE VICTIM

ATTACKED HIM, WHERE THE _ TESTIFYING

WITNESSES DID NOT SEE THE EVENT.

QUESTION 2: WHETHER PETITIONER WAS DENIED

THE RIGHT OF CONFRONTATION AND PREJUDICED

WHERE THE PROSECUTOR STATED TO THE JURY

THAT PETITIONER HAD MADE A STATEMENT TO

MS. PRYOR THAT CONTRADICTED HIS STATEMENT

TO POLICE, WHERE MS. PRYOR DID NOT TESTIFY.

QUESTION 3: WHETHER PETITIONER WAS DENIED

DUE PROCESS AND OTHER RIGHTS BY TESTIMONY

THA’ WHEN FIRST QUESTIONED BY POLICE, HE

EXERCISED HIS RIGHT TO REMAIN SILENT.

QUESTION 4: WHETHER PETITIONER WAS

PREJUDICED BY INEFFECTIVE ASSISTANCE OF

COUNSEL AT TRIAL.

QUESTION 5: WHETHER THE TRIAL COURT USED A

STANDARD OF REVIEW THAT UNREASONABLY

AND UNCONSTITUTIONALLY ELIMINATED ALL

REVIEW OF LEGAL ERRORS.

QUESTION 6: WHETHER PETITIONER WAS

PREJUDICED BY INEFFECTIVE ASSISTANCE OF

COUNSEL ON APPEAL.

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

INDEX OF AUTHORITIES

OPINIONS BEL("*V

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

STATEMENT OF PROCEEDINGS

STATEMENT OF FACTS

REASONS FOR GRANTING THE WRIT

QUESTION I

QUESTION II

QUESTION I

QUESTION IV

QUESTION V

QUESTION VI

QUESTION VII

CONCLUSION

APPENDIX

State Court Opinion and Order 03/15/2005

Michigan Court of Appeals order 09/28/2006

Michigan Supreme Court order 04/24/2007

Michigan Court of Appeals opinion 05/1/1998

Michigan Supreme Court order, 01/26/1999

INDEX OF AUTHORITIES

Cases

Baldwin v Blackburn, 653 F2¢ 942 (CA 5, 1981) 27

Banks v Reynolds, 54 F3d 1508 (CA 10, 1995) 30

Beasley v United States, 491 F2d 687 (CA 6, 1974) = 22, 27

Bell v Jarvis, 236 F3d 149 (CA 4, 2000) 29

Berger v United States, 295 US 78; (1935) 14, 15

Braley v Gladden, 403 F2d 858 (CA 9, 1968) 27

Brecht v Abrahamson, 507 US 609; (1993) 12,19

Bruno v Rushen, 721 F2d 1193 (CA 9, 1983) 16

Combs v Coyle, 205 F3d 269 (6th Cir. 2000) 22, 23

Corsa v Anderson, 443 F Supp 176 (ED Mich 1977) 24, 28

Crawford v. Washington, 541 U.S. 36 (2004) 11, 16

Davis v Alaska, 415 US 308(1974) 10, 15

Donnelly v DeChristoforo, 416 US 637 (1974) 16

Donnelly v DeChristoforo, 416 US 637; (1974) 14, 16, 21

Doyle v Ohio, 426 US 610 (1976) 20, 21

Edwards v Carpenter, 529 US 446 (2000) 29

Evitts v Lucey, 469 US 387; (1985) 27

Gravley v Mills, 87 F3d 779 (CA 6, 1996) 20, 24, 28

Groseclose v Beil, 130 F3d 1161 (CA 6, 1997) 24

Hicks v Oklahoma, 447 US 343 (1980) 27

Jackson v Leonardo, 162 F3d 81 (CA 2, 1998) 30

Jenkins v Anderson, 477 US 231 (1980) 21

Jones v Russell, 299 F Supp 970 (ED Tenn, 1968) 27

Kowalak v United States, 645 F2d 534, (CA ©, 1981) 24, 28

Lee v Illinois, 476 US 530 (1986) 10, 16

Lilly v Virginia, 527 US 116 (1999) 10

Malley v Manson, 547 F2d 25 (2nd Cir. 1976) 17

Mapes v Coyle, 171 F3d 408 (CA 6, 1999) 28

Markillie v Board of County Road Commissioners, 210 Mich

App 16 (1995) 18

McFarland v Yukins, 356 F3d 688 (CA 6, 2004) 28

Mitchell v Mason, 325 F3d 732 (6th Cir. 2003) 23

Murray v Carrier, 477 US 478; (1986) 29

Penson v Ohio, 488 US 75 (1988) 27

People v Auer, 393 Mich 667 (1975) 17

People v Carpentier, 446 Mich 19 (1994 18, 30

People v Coffman, 45 Mich App 180 (1973) 17

People v Ellison, 133 Mich App 814 (1984) 17

People v Fenner, 136 Mich App 45 (1984) 24

People v Fortson, 202 Mich App 13 (1993) 11

People v Ginther, 390 Mich 436 (1973) 25

People v Grant, 445 Mich 535 (1994) $3, 37

People v Humphreys, 24 Mich App 411 (1970) 17, 18

People v Kamin, 405 Mich 482 (1979) 13

People v Knolton, 86 Mich App 424 (1978) 17

People v Pouncey, 437 Mich 382 (1991) 11

People v Reed, 393 Mich 342 (1975) 10, 16

People v Roger White, 142 Mich App 581 (1985) 25

People v Rone (2nd remand), 109 Mich App 702 (1981) 17

People v Rosales, 160 Mich App 304 (1987) 17

People v Siler, 171 Mich App 246 (1988) 9

People v Sterling, 154 Mich App 223 (1986) 17

People v Strong, 404 Mich 357 (1978) 17

People v Stubli, 163 Mich App 376 (1987) 25

People v Tarpley, 41 Mich App 227 (1972) 17, 18

People v Ullah, 216 Mich App 669 (1996) 25

Powell v. Alabama, 287 U.S. 45 (1932) 24

Rickman v Bell, 131 F3d 1150 (CA 6, 1997) 24

South Dakota v. Neville, 459 U.S. 553 (1983) 20

Strickland v Washington, 466 US 668 (1984) 22, 23, 27

United States v Harris, 523 F2d 172 (CA 6, 1973) 17

United States ex rel Shaw v DeRobertis, 755 F2d 1279 (CA

7, 1985) 15

United States v Cook, 45 F3d 388 (CA 10, 1995) 30

United States v Gonzalez- Vargas, 558 F2d 633 (CAI, 1977)

vee 1D

United States v Lamerson, 457 F2d 371 (CA 5, 1972) 15

United States v Latimer, 511 F2d 498 (CA 10, 1975) 15

United States v Leon, 534 F2d 667 (CA 6, 1976) 15

United States v McLain, 823 F2d 1457 (CA 11, 1987) 16

United States v Whitmore, 480 F2d 1154 (CA DC, 1973) 15

Wainwright v Greenfield, 474 US 284; (1986) 20

Ward v United States, 995 F2d 1317 (CA 6, 1993) 24

Whorton v Bockting, U.S. __; 127 S. Ct. 1173 (2007 11, 16

Wischmeyer v Schanz, 449 Mich 469 (1995) 11, 17

Constitutional Provisions

Const 1963, Art 1, § 2 26

Const 1963, Art 1, §17 26

Const 1963, Art 1, §20 27

U.S. Const., Amend VI 12

U.S. Const., Amend. VI 2, 2/7

U.S. Const., Amend. XTV 3

US Const, Amend VI 10, 22, 27

US Const, Amend XIV 15, 26, 27

Statutes

28 U.S.C. §1254 2

Rules

MCR 6.508(D) 18, 30

MRE 103 11, 17

MRE 103(d) 17

MRE 602 9

MRE 801 9

MRE 802 9

No.

IN THE SUPREME COURT OF THE UNITED STATES

VINCENT WARD,

Petitioner

-v-

STATE OF MICHIGAN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE CIRCUIT COURT OF OAKLAND COUNTY,

MICHIGAN

VINCENT WARD, Petitioner, by and through his

attorney, James S. Lawrence, moves this Court to issue a

Writ of Certiorari to review the ruling of the Oakland

County, Michigan Circuit Court, of March 15, 2005, denying

a Motion for Relief from Judgment, with leave to appeal later

denied by the Michigan Court of Appeals on September 28,

2006 and by the Michigan Supreme Court on April 24, 2007.

Petitien for Writ of Certiorari 2

OPINIONS BELOW

The Appendix includes the order of the Michigan

Supreme Court of April 24, 2007, order of the Michigan

Court of Appeals of September 28, 2006, opinion and order

of the Oakland County Circuit Court of March 15, 2005,

order of the Michigan Supreme Court of January 26, 1999,

opinion of the Michigan Court of Appeals of May 1, 1998.

STATEMENT OF JURISDICTION.

This case began as a criminal prosecution in Oakland

County, Michigan, Circuit Court. The original judgment was

entered July 10, 1996. The Michigan Court of Appeals

affirmed May 1, 1998. The Michigan Supreme Court denied

leave to appeal January 26, 1999. The opinion and order of

the Oakland Circuit Court denying Motion for Relief from

Judgment was March 15, 2005. The order of the Michigan

Court of Appeals denying leave to appeal was October 24,

2006. The order of the Michigan Supreme Court denying

leave to appeal was April 24, 2007. This Court has

jurisdiction under 28 U.S.C. §1257 to review the final

judgment or decree of a state court.

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution

provides:

"In all criminal prosecutions, the

Petition for Writ of Certiorari 3

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 in his favor, and to have the

Assistance of Counsel for his defence."

The Fourteenth Amendment to the United States

Constitution provides:

"No state shall make or enforce any law

which shail 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

Statement of Proceedings

Petitioner Vincent Ward was convicted of first degree

murder and felony firearm in the death of Young Choi, in a

jury trial in the Oakland County Circuit Court before the

Hon. Robert Anderson, Case No. CR95-141741-FC. On July

10, 1996, Judge Anderson sentenced Petitioner to prison for

Petition for Writ of Certiorari 4

life plus 2 years. Trial attorney was Cyril Hall. Appeal

attorney was Lawrence Imerman. On May 1, 1998, the Court

of Appeals affirmed, Case No. 200739. On January 26,

1999, the Michigan Supreme Court denied leave to appeal.

Case No. 112346. Motion for Relief from Judgment was

filed in the Oakland County Trial Court and denied March

15, 2005 in an Opinion and Order by the Honorable Gene

Schnelz. On September 28, 2006 the Michigan Court of

Appeals denied leave to appeal. On April 24, 2007, the

Michigan Supreme Court denied leave to appeal. Petitioner

now seeks review by certiorari in the United States Supreme

Court.

Statement of Facts

Sara Choi testified that she and her husband Young

Choi owned Englewood Beauty Supply. (T i, 41). On April

21, 1995, she heard a car crash outside, and told Mr. Choi to

go outside to see what happened. She stayed in the store to

wait on customers. (T IJ, 42-43).

Sara Choi testified that Sandra McFarland, who did not

testify as a witness at trial, came in the store and said to call

the police because "this guy tried to hit your husband." (T II,

43).

She later went outside and saw glass in the parking lot

near her husband's car, which she thinks came from the other

party's car. (T Il, 44). This happened 5 or 10 minutes after

her husband went outside. (T IJ, 66). Her husband tried to

catch the driver, whom she identified as Petitioner Vincent

Ward. (T IJ, 49). She thought there would be a fight if her

husband caught him, but he did not catch him. (T II, 71).

Petition for Writ of Certiorari 5

She testified that Petitioner hit her husband's face,

although she did not see such a thing. (T II, 72). She did not

see what actions her husband took immediately before the

shooting. (T I, 76).

She testified that "My husband got punch (sic) in the

face once and my hus--my husband punched him back.

That's what I heard." (T II, 77).

Back in the store, she heard a gun sound, but never saw

the gun. She saw Petitioner in the store. She saw her

husband on the ground covered in blood. (T I, 55-59).

Otok Breaux testified that she worked in the store. (T

II, 150). She and Young Choi went outside, saw Mr. Choi's

van, which had damage in the rear. (T II, 152). She then

went back in the store. (T Il, 152). After 10 minutes "Then I

heard somebody say, Mr. Choi got hit." (T I, 154). She

never saw Mr. Choi and the man with the white car fight. (T

II, 167). She did see Mr. Choi arming himself with a stick.

(T Ul, 173).

Defense counsel asked if she remembered saying that

she did see the fight, and the witness told the jury what she

had been told (T II, 180):

Nathaniel Roberts, a shopper at the shopping center,

testified that he saw the Chinese guy ' and the “light-skinned

guy” arguing, when the Chinese guy socked the light-skinned

guy in the face. "And the light-skinned guy fell, and he got

up, and the Chinese guy just started hitting him." (T I, 202).

Michael Dixon, a customer at the car wash, testified

that he saw a white car swerve and hit a parked van. (T IL,

Mr. Choi was apparently Korean.

Petition for Writ of Certiorari 6

215). He testified that he saw the beauty shop store vwner

come out. "They exchanged some words. I seen the store

owner punch him in the face." (T IJ 217). There was a.

second confrontation where Petitioner walked up to the store

owner and "uttered words" at the store owner, "and I noticed

that the store owner kicked him in the chest." (T II, 227).

Dr. Kanu Virani testified that the victim died from two

gunshot wounds. The shot to the head would have made him

immediately unconscious, and he might have already been

dead when the second shot hit. He had an abrasion on his

face consistent with a fall. He had no injury to his jaw. (T

Ill, 8, 14, 18-20).

REASONS FOR GRANTING THE WRIT

QUESTION 1: WHETHER PETITIONER WAS DENIED

THE RIGHT OF CONFRONTATION AND PREJUDICED

BY TESTIMONY THAT PETITIONER ATTACKED THE

VICTIM FIRST, INSTEAD OF SUPPORTING

PETITIONER'S VERSION THAT THE VICTIM

ATTACKED HIM, WHERE THE TESTIFYING

WITNESSES DID NOT SEE THE EVENT.

The issue concerns hearsay statements violating

confrontation rules that were the only evidence that Petitioner

started the fight. The cyewitnesses said Petitioner was hit

several times in the face, kicked in the chest, knocked to the

ground, and chased, after hitting the victim's unoccupied van

while driving in the parking lot. This supported a claim of

voluntary manslaughter on which the judge instructed. The

Petition for Writ of Certiorari 7

error was prejudicial because if Petitioner had started the

fight, he would not be reacting to provocation, and thus

voluntary manslaughter would not apply.

Petitioner Vincent Ward was convicted of first degree

premeditated murder and felony firearm in the death of

Young Choi. Sara Choi testified that she and her husband

Young Choi owned Englewood Beauty Supply. (T II, 41).

On April 21, 1995, she heard a car crash outside, and told

Mr. Choi to go outside to see what happened. She stayed in

the store to wait on customers. (T II, 42-43).

Sara Choi testified that Sandra McFarland, who did not

testify as a witness at trial, came in the store and said to call

the police because "this guy tried to hit your husband." (T II,

43). She testified that Petitioner hit her husband's face,

although she did not see such a thing. (T II, 72). She did not

see what actions her husband took immediately before the

shooting. (T Il, 76). She testified that "My husband got

punch (sic) in the face once and my hus--my husband

punched him back. That's what I heard.” (T II, 77).

The testimony of Sara Choi was that Petitioner was the

aggressor, that Petitioner hit Young Choi first, and Young

Choi only responded to being hit. Because she did not see

any such thing, she should not have been permitted to testify

as a witness that was the sequence of events.

Otok Breaux testified that she worked in the store. (T

Il, 150). She and Young Choi went outside, saw Mr. Choi's

van, which had damage in the rear. (T II, 152). She then

went back in the store. (T II, 152). After 10 minutes "Then |

heard somebody say, Mr. Choi got hit." (T Il, 154). She

never saw Mr. Choi and the man with the white car fight. (T

Petition for Writ of Certiorari 8

Il, 167). She did see Mr. Choi arming himself with a stick.

(T U, 173).

Defense counsel asked if she remembered saying that

she did see the fight, and the witness told the jury what she

had been told (T II, 100):

"Q You sure you don't remember that?

A No. I think somebody tell me some

guy hit Choi. I went out there. |

asked Choi, are you okay. He say,

yeah, he hit me so I hit him back."

We now had two witnesses, neither of whom saw the

fight, testifying to the jury that the way the fight went was

Petitioner hit Mr. Choi, and Mr. Choi only responded to

being hit.

This hearsay testimony by the two women contradicted

testimony by others. Nathaniel Roberts, a shopper at the

shopping center, testificd that he saw the Chinese guy * and

the "light-skinned guy" arguing, when the Chinese guy

socked the light-skinned guy in the face. "And the light-

skinned guy fell, and he got up, and the Chinese guy just

started hitting him." (T I, 202).

Michael Dixon, a customer at the car wash, testified

that he saw a white car swerve and hit a parked van. (T U,

215). He testified that he saw the beauty shop store owner

come out. "They exchanged some words. I seen the store

owner punch him in the face." (T Il 217). There was a

2

Mr. Choi was apparently Korean.

Petition for Writ of Certiorari 9

second confrontation where Petitioner walked up to the store

owner and “uttered words" at the store owner, "and I noticed

that the store owner kicked him in the chest." (T II, 227).

The jury now had two versions of the facts. In the

version of the two male witnesses, they saw Young Choi

repeatedly hitting Petitioner, and one of them saw Choi

kicking Petitioner in the chest. Certainly, for one adult to be

able to kick another adult in the chest shows a level of

fighting ability well above average. The aggressive actions

of Mr. Choi described by these witnesses shows a level of

provocation that might cause a reasonable person to respond.

In the version of the two female witnesses, Petitioner

hit Young Choi, and Mr. Choi only responded. The jury then

had to decide which version of the facts they believed. The

problem is that the version told by the female witnesses

should never have been heard by the jury at all, because

based on hearsay, MRE 801, MRE 802, and not on personal

knowledge, MRE 602.

Even if the source of the "information" that Petitioner

attacked Choi, instead of Choi attacking Petitioner, was Mr.

Choi himself (the source does not appear on the record), this

would not be a dying declaration because he said nothing

after being shot, (T Il, 163). People v Siler, 171 Mich App

246 (1988). The record shows a series of confrontations,

culminating in the shooting.

In closing argument, defense counsel argued that the

Petitioner did not premeditate and deliberate when he shot.

(T U1, 63). He indicated that "the question is whether or not

he discharged that weapon in an excited state." (T III, 69).

He asked "Was his mind clouded by the excitement of the

Petition for Writ of Certiorari 10

moment?" (T III, 69-70). "If the shooting takes place during

the excitement of the moment, borne by the events, that is

manslaughter." (T If, 71). He then discussed the effect on

the Petitioner of being beaten up by Mr. Choi. (T III, 71).

He argued "When an individual is confronted with an

individual that has assaulted him and commits an act, you

look at the mental state and you listen to the instructions of

the Court, as it relates to mental state." (T I, 75).

The judge instructed the jury on first degree

premeditated murder, second degree murder, voluntary

manslaughter, and self-defense. (T III, 97-103). He

instructed that the person who begins the assault cannot

claim self-defense. (T I, 102).

US Const, Amend VI provides:

"In all criminal prosecutions, the accused

shall enjoy the right ... to be confronted with the

witnesses against him"

The right of a defendant to cross-examine the witnesses

against him is recognized under the US Constitution as being

the most fundamental of rights. Davis v Alaska, 415 US 308;

94 S Ct 1105; 39 L Ed 2d 347 (1974); Lee v Illinois, 476 US

530; 106 S Ct 2056; 90 L. Ed 2d 514 (1986); Lilly v Virginia,

527 US 116; 119 S Ct 1887; 144 L Ed 2d 117 (1999); People

v Reed, 393 Mich 342 (1975). Petitioner could not confront

whoever it was who allegedly saw him attack Mr. Choi first,

because that person was not identified. The only people who

testified to seeing the fight said Choi attacked Petitioner. See

also Crawford v. Washington, 541 U.S. 36; 124 S.Ct. 1354

Petition for Writ of Certiorari 11

(2004) [Crawford does not apply retroactively to the instant

case; see Whorton v. Bockting, __U.S.___; 1278S. Ct. 1173

(2007)}.

The admission of the hearsay testimony not subject to

cross-examination was prejudicial because if Petitioner had

started the fight, he would not be reacting to provocation and

could not lawfully claim self-defense, as the judge expressly

instructed. (T II, 102). Thus, sc!f-defense was not

considered at all, because of this hearsay.

"Voluntary manslaughter is an intentional killing

committed under the influence of passion or hot blood

produced by adequate provocation, and before a reasonable

time has passed for the blood to cool and reason to resume its

habitual control." People v Fortson, 202 Mich App 13

(1993). There must be evidence that there was something

that could cause a reasonable person to lose control. People

v Pouncey, 437 Mich 382 (1991). The attack by the outraged

owner of the van Petitioner hit qualifies as provocation, if the

jury accepted the live testimony, and rejected (or were never

to hear) the hearsay testimony.

Because this is "plain error," the failure of defense

counsel to object is excused. MRE 103; Wischmeyer v

Schanz, 449 Mich 469, 483 (1995); People v Grant, 445

Mich 535, 547-548 (1994); People v Carines, 460 Mich 750

(1999). Under People v Carines, the test is:

"1) error must have occurred, 2) the error

was plain, i.e., clear or obvious, 3) and the plain

error affected substantial rights."

Therefore there is no strictly and regularly applied

Petition for Writ of Certiorari 12

procedural default to bar federal court review. Johnson v.

Mississippi, 486 U.S. 578, 587; 108 S.Ct. 1981; 100 L.Ed.2d

575 (1988).

It is plain error, in that the rule requiring witnesses to

testify on the basis of personal knowledge, and that requires

the opportunity for cross-examination of the source of the

information, is well known. The error affected substantial

rights because it was clearly improper, and constituted the

only proof that Petitioner started the fight, and if he started

the fight he was not reacting to provocation, a legitimate

defense raised in this case and instructed on by the judge.

Under Brecht v Abrahamson, 507 US 609; 113 S Ct 1710;

123 L Ed 2d 353 (1993), the error "had a substantial and

injurious effect or influence in determining the jury’s

verdict."

The trial court did not consider the applicability of the

Sixth Amendment, U.S. Const., Amend VI. Instead, the

judge determined that prejudice could w:ver be established

because of the nature of the evidence at trial and held:

"Defendant argues that he shot the victim in self-

defense. If the jury is presented with evidence

that Defendant killed the victim, and it was not in

self-defense, then regardless of any error,

Defendant cannot demonstrate there is prejudice."

(Op., 4).

This finding is unreasonable, illogical and contrary to

established law. The inconsistent and unreasonable nature of

the holding is the subject of a separate issue. (See Question

5). If the jury had not been presented with any evidence that

Petition for Writ of Certiorari 13

a defendant killed a victim there would have been no trial in

the first place from which any review is being sought. In

other words, if a defendant is convicted of murder and raised

self-defense, then that defendant can never have court review

of any error relating to the presentation of evidence against

him. In addition to being unreasonable, this ruling violates

equal protection rights.

This Court should grant certiorari, and upon full review

of the issue grant a new trial, ruling that the repeated

testimony of what happened, by people who did not see what

happened, was a violation of the confrontation. In the

alternative, since the error mainly affects the question of

voluntary manslaughter, the Court could reduce the

conviction to manslaughter and resentence, while reserving

to the prosecutor the right to retry on first degree murder.

See People v Kamin, 405 Mich 482 (1979).

QUESTION 2: WHETHER PETITIONER WAS DENIED

THE RIGHT OF CONFRONTATION AND PREJUDICED

WHERE THE PROSECUTOR STATED TO THE JURY

THAT PETITIONER HAD MADE A STATEMENT TO

MS. PRYOR THAT CONTRADICTED HIS STATEMENT

TO POLICE, WHERE MS. PRYOR DID NOT TESTIFY.

Petitioner Vincent Ward was convicted of first degree

murder and felony firearm. In rebuttal closing argument, the

prosecutor said (T June 20 1996, 86):

"Ladies and gentlemen, he told the police he

shot him in self-defense. He told the police--here,

he told Kenesha Pryor that he shot him because he

Petition for Writ of Certiorari 14

disrespected him;"

Kenesha Pryor did not testify, and Petitioner formally

waived her presence as a witness on the record. (T June 20

1996, 46). Petitioner himself did not testify, and waived his

right to do so. (T June 20 1996, 44-45).

The only mention of Kenesha Pryor during the

evidentiary portion of the case was when Det. Serna testified

that Kenesha Pryor was Petitioner's girlfriend, and that he

had confirmed through the rental agency that she had rented

the car driven by Petitioner, a white Ford. (T June 20 1996,

256).

Where a prosecutor’s comments violate an explicitly

granted right under the Constitution, the comments constitute

a constitutional violation. Donnelly v DeChristoforo, 416 US

637; 94 S Ct 1868; 40 L Ed 2d 431 (1974). Where a

prosecutor argues facts not in evidence, the prosecutor

becomes a witness, not subject to cross-examination. In so

doing, he violates due process and the constitutional right of

confrontation. Berger v United States, 295 US 78; 55 S Ct

629; 79 L Ed 1314 (1935).

Petitioner submits that by presenting to the jury his

version of what Kenesha Pryor would have said if she had

testified, and presenting to the jury as fact that Petitioner

made statements to Kenesha that contradicted his statement

to police that he shot in self-defense, the prosecutor

improperly acted as a witness, improperly presented false

information to a jury, and presented testimony not subject to

cross-examination. It was particularly prejudicial where the

comment was made in rebuttal closing argument when

Petition for Writ of Certiorari 15

defense counsel had no opportunity to respond.

It is improper and a denial of due process for the

prosecutor to argue facts not in evidence. Berger v United

States, 295 US 78; 55 S Ct 629; 79 L Ed 1314 (1935); United

States v Leon, 534 F2d 667, 679 (CA 6, 1976); United States

ex rel Shaw v DeRobertis, 755 F2d 1279 (CA 7, 1985);

United States v Latimer, 511 F2d 498 (CA 10, 1975), United

States v Whitmore, 480 F2d 1154 (CA DC, 1973), United

States v Gonzalez-Vargas, 558 F2d 633 (CA 1, 1977); United

States v Lamerson, 457 F2d 371 (CA 5, 1972); US Const,

Amend XIV.

Here, as in United States ex rel Shaw v DeRobertis, 755

F2d at 1281, “The prosecutor violated the fundamental rule,

known to every attorney, that argument is limited to the facts

in evidence.”

For the prosecutor to provide the jury with evidence

that the witnesses did not provide the jury is for the

prosecutor to unlawfully assume the role of witness. Berger

v United States, supra. Because the defendant cannot cross-

examine a prosecutor who does not take the stand, such

actions by the prosecutor violate the fundamental right of

cross-examination.

The right of a defendant to cross-examine the witnesses

against him is recognized under the US Constitution as being

the most fundamental of rights. US Const, Amend XIV;

Davis v Alaska, 415 US 308; 94 S Ct 1105; 39 L Ed 2d 347

(1974); Lee v Illinois, 476 US 530; 106 S Ct 2056; 90 L Ed

2d 514 (1986); People v Reed, 393 Mich 342 (1975). The

prosecutor stated to the jury alleged facts that, if true, could

only be testified to by Kenesha Pryor or Petitioner Vincent

Petition for Writ of Certiorari 16

Ward. Neither of those people testified. Even if the

prosecutor did have a police report that Ms. Pryor told them

of such a statement, the prosecutor cannot legitimately

present that to the jury without a witness subject to cross-

examination.

See aiso Crawford v. Washington, 541 U.S. 36; 124

S.Ct. 1354 (2004). Crawford does not apply retroactively to

the instant case; see Whorton v. Bockting, U.S. __; 127

S. Ct. 1173 (2007). In an interesting parallel to this case, the

prosecutor in Crawford argued to the jury that the out of

court statement was "damning evidence' that ‘completely

refutes [petitioner's] claim of self-defense." This was found

to make the error prejudicial.

The prosecutor's action was clearly prejudicial.

Petitioner gave a statement to police that he did shoot, but in

self-defense. However, if Petitioner shot because he was

disrespected, that obviously is not self-defense. The

prosecutor's action directly negated the defense, with

"evidence" not subject to the right of cross-examination.

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 F2d 1457 (CA 11, 1987); Bruno v Rushen, 721 F2d

1193 (CA 9, 1983). The standard is whether the comments

"so infected the trial with unfairness as to make the resulting

conviction a denial of due _ process." Donnelly v

DeChristoforo, 416 US 637 (1974).

If the argument is sufficiently improper, it may be

cause for reversal even without an objection. United States

v Harris, 523 F2d 172 (CA 6, 1973); Malley vy Manson, 547

Petition for Writ of Certiorari 17

F2d 25 (CA 2, 1976); People v Rosales, 160 Mich App 304

(1987).

Numerous cases have granted relief to defendants based .

on improper prosecutor argument, where the defendant failed

to object. Therefore, Petitioner is not foreclosed from review

even though his attorney failed to object. MRE 103(d);

People v Knolton, supra; People v Ellison, supra; People v

Sterling, 154 Mich App 223 (1986); People v Rone (on 2nd

remand), 109 Mich App 702, 715 (1981); People v Rosales,

160 Mich App 304 (1987); People v Auer, 393 Mich 667

(1975); People v Humphreys, 24 Mich App 411, 416 (1970);

People v Tarpley, 41 Mich App 227 (i972); People v

Coffman, 45 Mich App 180 (1973); People v Strong, 404

Mich 357, 363 (1978).

Because it is plain error for the prosecutor to make

argument unsupported by the evidence, and to deceive the

jury, the failure of defense counsel to object is excused.

MRE 103; Wischmeyer v Schanz, 449 Mich 469, 483 (1995);

People v Grant, 445 Mich 535, 547-548 (1994); People v

Carines, 460 Mich 750 (1999). Under People v Carines, the

test is:

"1) error must have occurred, 2) the error

was plain, i.e., clear or obvious, 3) and the plain

error affected substantial rights."

Moreover, under Michigan law, when an issue is

jurisdictional, the Court is required to hear the issue without

inquiry into “cause and prejudice." MCR 6.508(D); People v

Carpentier, 446 Mich 19, 30 (1994). A jurisdictional issue

deals with jurisdiction, that is, the authority of people to

Petition for Writ of Certiorari 18

perform certain acts. As the Court put it in Markillie v Board

of County Road Commissioners, 210 Mich App 16 (1995),

jurisdiction is the "power to act."

The prosecutor had no authority to act as a witness.

Yet, he effectively acted as a witness by telling the jury facts

that did not come from the legitimate witnesses. Because he

went beyond his jurisdiction, this is a jurisdictional issue.

Michigan has no strictly and regularly applied rule barring

review of jurisdictional issues in a Motion for Relief from

Judgment.

For all these reasons, under Johnson v. Mississippi, 486

U.S. 578, 587; 108 S.Ct. 1981; 100 L.Ed.2d 575 (1988)

federal court review is not precluded.

Under the circumstances, “we cannot say with any

certainty that an instruction by the Court to the jury would

have countered the impact and eliminate the prejudice" of the

remarks made by the prosecution. People v Tarpley, 41 Mich

App 227, 237 (1972); see also People v Humphreys, 24 Mich

App 411, 419 (1970). Ifthe judge had stricken the offending

portion of the argument, or told the jury to disregard it, or

told the jury that the comments of the attorneys are not

evidence, the jury would simply conclude that the defense

had successfully talked the judge into excluding the relevant

evidence that the prosecutor was discussing. Once spoken by

the prosecutor to the jury, these allegations could not help but

have a devastating effect on the course of the trial.

Under Brecht v Abrahamson, 507 US 609; 113 S Ct

1710; 123 L Ed 2d 353 (1993), the error "had a substantial

and injurious effect or influence in determining the jury’s

verdict."

Petition for Writ of Certiorari 19

It cannot be said that the prosecutor's effort to make

Petitioner look guilty by showing that he confessed this was

not self-defense did not have its intended effect. The

prosecutor would not have made the remark if he did not

believe it would have an impact. The State should not be

permitted to take a contrary position simply because the

exigencies of trial have been replaced with the exigencies of

post-conviction review.

This Court should grant certiorari and upon full

consideration of the issue, this Court should then rule it was a

violation of the confrontation clause, and the duty of a

prosecutor to restrict his argument to facts in evidence, and

grant a new trial at which alleged observations of Kenesha

Pryor are testified to only by Kenesha Pryor.

QUESTION 3: WHETHER PETITIONER WAS DENIED

DUE PROCESS AND OTHER RIGHTS BY TESTIMONY

THAT WHEN FIRST QUESTIONED BY POLICE, HE

EXERCISED HIS RIGHT TO REMAIN SILENT.

Petitioner Vincent Ward was convicted of first degree

murder and felony firearm. Det. Santiago Sera testified for

the prosecution that upon questioning, Petitioner's first

response was to request an attorney (T June 18 1996, 247):

"Q What happened after--what

happened while you were reading

him his rights?

A We read him his rights. And then

when we got to the question if he

Petition for Writ of Certiorari 20

wanted an attorney, he--he indicated

that he did--he did want an

attorney."

The officer went on to testify that Petitioner later

changed his mind and agreed to speak without an attorney.

(T June 18 1996, 247-249).

We submit it was clearly improper for the prosecutor to

elicit testimony which indicated that the Petitioner had

exercised his right to remain silent at the time of his arrest.

Miranda vy. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602,

1624, 16 L.Ed.2d 694, 720, 10 A.L.R.3d 974, 1007 (1966);

Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91

(1976); Gravley v Mills, 87 F3d 779 (CA 6, 1996).

The use of Petitioner's post-arrest silence is unfair

because Miranda warnings contain an implied promise rooted

in the Constitution, that "silence will carry no penalty."

Doyle v Ohio, supra; see also Wainwright v Greenfield, 474

US 284; 106 S Ct 634; 88 L Ed 2d 623 (1986). This includes

the assertion of the right to counsel before answering

questions. As the Court held in Greenfield:

"'W]e have continued to reiterate our view

that Doyle rests on "the fundamental unfairness of

implicitly assuring a suspect that his silence will

not be used against him and then using his silence

to impeach an explanation subsequently offered at

trial." South Dakota v. Neville, 459 U.S. 553, 565

(1983).

While the United States Supreme Court in Jenkins v

Anderson, 477 US 231; 100 S Ct 2124; 65 L Ed 2d 86

Petition for Writ of Certiorari 21

(1980), has held that a Defendant can be impeached with his

pre-arrest, pre-Miranda warnings silence, Jenkins does not

control in the case at bar since the utilized silence was post-

Miranda warnings and post-arrest.

The attorney-client privilege is fundamental to our

system of jurisprudence and the privilege is destroyed if

improper inference can be drawn from its exercise. Doyle v

Ohio, supra.

In Donnelly v DeChristoforo, 416 US 637; 94 S Ct

1868; 40 L Ed 2d 431 (1974), the Supreme Court made a

careful distinction between improper prosecutor comments

generally, and those which violate specific protections under

the Bill of Rights, 416 US at 436:

"When specific guarantees of the Bill of

Rights are involved, this Court has taken special

care to assure that prosecutorial conduct in no

way impermissibly infringes them.”

This case plainly falls within the category of cases in

which relief should be granted, as outlined in Donnelly v

DeChristoforo. Here, a specific constitutional right was

breached: the constitutional right to insist on an attorney

before questioning, and the corollary right, recognized in

numerous cases, that this not be used against the defendant at

trial.

This was clearly plain error, for the rule that prohibits

evidence of the defendant's silence in the face of custodial

questioning, his assertion of a privilege, are well-established

rules known to all attorneys including prosecutors. See also

Combs v Coyle, 205 F3d 269 (6th Cir. 2000) holding that

Petition for Writ of Certiorari 22

failure of trial counsel to object to testimony that the

defendant, upon questioning, asked for a lawyer, "clearly fell

below an objective standard of reasonableness."

This Court should grant certiorari, and upon full review

of the issue grant a new trial, ruling it was a violation of the

privilege against self-incrimination, and the right to counsel,

to inform the jury that Petitioner, upon being questioned,

requested a lawyer.

QUESTION 4: WHETHER PETITIONER WAS

PREJUDICED BY INEFFECTIVE ASSISTANCE OF

COUNSEL AT TRIAL. ©

A criminal defendant is entitled to the effective

assistance of counsel. Strickland v Washington, 466 US 668;

104 S Ct 2052; 80 L Ed 2d 674 (1984); Beasley v United

States, 491 F2d 687 (CA 6, 1974); US Const, Amend VI.

i Counsel failed to object to hearsay testimony,

that violated the right of confrontation, that was the only

evidence that Petitioner started the fight, and thus was not

reacting to provocation. The eyewitnesses said Petitioner

was hit several times in the face, kicked in the chest, knocked

to the ground, and chased, after hitting the victim's

unoccupied van while driving in the parking lot. This

supported a claim of voluntary manslaughter on which the

judge instructed. The error was prejudicial because if

Petitioner had started the fight, he would not be reacting to

provocation. See Issue I.

2. Counsel failed to object to the action of the

prosecutor in rebuttal closing argument_that Petitioner had

Petition for Writ of Certiorari 23

made out of court statements to Ms. Pryor that contradicted

his statement to police, where Ms. Pryor did not testify and

no evidence to support the prosecutor's assertion was

introduced. This was prejudicial because it affected the

credibility that the jury would place upon Petitioner's

statement to police.

3. Counsel failed to object to the introduction of

testimony that upon first being questioned by police,

Petitioner exercised his right to counsel and to remain silent

(he later made a statement). In Combs v Coyle, 205 F3d 269

(6th Cir. 2000) the Court held that failure of trial counsel to

object to testimony that the defendant, upon questioning,

asked for a lawyer, "clearly fell below an objective standard

of reasonableness."

4. Petitioner states that trial attorney Cyril Hall

never visited him at the Oakland County Jail. He sent

replacements to hearings other than preliminary examination

and trial. He first met with the Petitioner for only 10 minutes

on the dzy of jury selection, in the bull pen in the basement

of the courthouse. He should have consulted with his client,

who was held without bond and could not come to the

attorney's office. ‘(See affidavit in Appendix).

Communication between attorney and client is essential to an

attorney-client relationship. Failure to visit and discuss the

case with the client is ineffective assistance of counsel. As

the Court held in Mitchell v Mason, 325 F3d 732 (6th Cir.

2003):

"Because the Supreme Court has repeatedly

made clear that there is a duty incumbent on trial

Petition for Writ of Certiorari 24

counsel to conduct pre-trial investigation, it

necessarily follows that trial counsel cannot

discharge this duty if he or she fails to consult

with his or her client.

The Sixth Amendment guarantees more than a pro

forma encounter between the accused and his

counsel."

And, as the Court neld in Powell vy. Alabama, 287 U.S.

45, 57 (1932), the pre-trial period is "perhaps the most

critical period of the proceedings . . . that is to say, from the

time of their arraignment until the beginning of their trial,

when consultation, thorough-going investigation and

preparation were vitally important."

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. Graviey v Mills, 87 F3d

779 (CA 6, 1996); Kowalak v United States, 645 F2d 534,

537-538 (CA 6, 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 F3d 1150 (CA 6, 1997); Groseclose v Bell, 130 F3d

1161 (CA 6, 1997); Ward v United States, 995 F2d 1317 (CA

6, 1993). See also People v Fenner, 136 Mich App 45

(1984) [failure to object to objectionable testimony]; People

v Roger White, 142 Mich App 581 (1985) [same]; People v

Ullah, 216 Mich App 669 (1996) [same]; People v Stubli,

Petition for Writ of Certiorari 25

163 Mich App 376 (1987) [same].

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 US at 664. Under

Strickland, the Petitioner need not make the higher showing

that "counsel's deficient performance more likely than not

altered the outcome of the case." 466 US at 693. However,

in this case both the lower standard of Strickland and the

higher standard rejected by Strickland are met.

This Court should grant certiorari, and should then

remand this matter to the state courts to conduct an

evidentiary hearing. People v Ginther, 390 Mich 436 (1973).

After or in lieu of that hearing, this Court should then grant a

new tnal, ruling that Petitioner had ineffective assistance of

counsel.

QUESTION 5: WHETHER THE TRIAL COURT USED A

STANDARD OF REVIEW THAT UNREASONABLY

AND UNCONSTITUTIONALLY ELIMINATED ALL

REVIEW OF LEGAL ERRORS.

The circuit judge refused to consider any issue in

Petitioner's Motion for Relief from Judgment having

determined that prejudice could never be established because

of the nature of Petitioner's trial, holding:

"Defendant argues that he shot the victim in self-

defense. If the jury is presented with evidence

that Defendant killed the victim, and it was not in

Petition for Writ of Certiorari 26

self-defense, then regardless of any error,

Defendant cannot demonstrate there is prejudice."

(Op., 4).

This finding is inconsistent, unreasonable and contrary

to established law. The trial court created an artificial

standard, not authorized by statute or federal and state case

law in foreclosing review of any issues relating to a murder

trial where self-defense was asserted because "the jury is

presented with evidence that Defendant killed the victim."

If the jury had not been presented with any evidence that a

defendant killed a victim there would have been no trial in

the first place from which any review would be sought.

Whether this is a proper standard is a question of major

significance to the jurisprudence of this state.

The specific effect of this standard is that any defendant

convicted of murder and who raised self-defense at his trial,

is forever foreclosed from being afforded relief from the

presentation of evidence and argument that violates

constitutional standards. A blanket rule that all errors are

harmless wherever there is evidence the defendant committed

the crime is unreasonable. The ruling violated fundamental

due process rights and denied Petitioner equal protection of

the laws.

If a state court arbitrarily withholds the benefit of a

state rule of law from a Defendant, due process of law is

denied. If a state court system treats similarly situated

defendants differently, equal protection of law is denied. US

Const, Amend XIV; Const 1963, Art 1, §§ 2, 17; Hicks v

Oklahoma, 447 US 343; 100 S Ct 2227; 65 L Ed 2d 175

Petition for Writ of Certiorari 27

(1980); Jones v Russell, 299 F Supp 970 (ED Tenn, 1968);

Braley v Gladden, 403 F2d 858 (CA 9, 1968); Baldwin v

Blackburn, 653 F2d 942 (CA 5, 1981).

We submit that the application of harmless error rules is

a question of national importance suitable for United States

Supreme Court review, and that this case involves injustice

to Mr. Ward, making it more suitable for review.

This Court should grant certiorari and upon full

consideration of the issues, reverse the rulings and holdings

of the circuit court and grant a new trial, or remand to the

state courts for consideration under a proper standard that

looks at actual prejudice, rather than an artificial standard

that no error can be prejudicial in a self-defense case.

QUESTION 6: WHETHER PETITIONER WAS

PREJUDICED BY INEFFECTIVE ASSISTANCE OF

COUNSEL ON APPEAL.

A criminal defendant is entitled to the effective assistance of

counsel. Strickland v Washington, 466 US 668; 104 S Ct

2052; 80 L Ed 2d 674 (1984); US Const, Amend VI. This

includes a right to the effective assistance of counsel on

appeal. Evitts v Lucey, 469 US 387; 105 S Ct 830; 83 L Ed

2d 821 (1985); Penson v Ohio, 488 US 75; 109 S Ct 346; 102

L Ed 2d 300 (1988); US Const, Amend VI; US Const,

Amend XIV.

In Beasley v United States, 491 F2d 687 (CA 6, 1974),

the Court stated that, to be constitutionally adequate,

"Defense counsel must investigate all apparently substantial

defenses available to the Defendant and must assert them in a

Petition for Writ of Certiorari 28

timely manner."

The critical failure of an attorney to object or raise an

issue can be ineffective assistance of counsel if it deprives

the Petitioner of an opportunity for dismissal of the case or

for success on appeal. Graviley v Mills, 87 F3d 779 (CA 6,

1996); Kowalak v United States, 645 F2d 534, 537-538 (CA

6, 1981); Corsa v Anderson, 443 F Supp 176 (ED Mich

1977).

Petitioner's affidavit (see Appendix) shows that he

informed appeal attorney Lawrence Imerman about trial

counsel Cyril Hall's refusal to meet with him until 10 minutes

before trial. Attorney Imerman took no action.

Petitioner Ward had numerous substantial defenses to

raise on appeal (found within this Motion for Relief from

Judgment and Brief in Support), and appeal counsel did not

raise them. We submit there was ineffective assistance of

appellate counsel regarding the failure of the appeal attorney

to raise the issues raised here. It is reasonably probable that

Petitioner Ward would have gotten a reversal on his appeal of

right, but for the inaction of appellate counsel. See Mapes v

Coyle, 171 F3d 408 (CA 6, 1999), finding ineffective

assistance of appellate counsel where counsel omitted issues

that were "significant and obvious." More recently, the Sixth

Circuit in McFarland v Yukins, 356 F3d 688 (CA 6, 2004)

found ineffective assistance of appellate counsel from the

failure of appellate counsel to raise the issue of ineffective

assistance of trial counsel:

"Because we have already held that the

ineffectiveness claim was meritorious and should

Petition for Writ of Certiorari

have resulted in a reversal of McFarland's

conviction, there is no question but that appellate

counsel's errors were prejudicial. Consequently,

McFarland has shown cause and prejudice

excusing her failure to raise ineffective assistance

of trial counsel on her direct appeal. Nothing,

therefore, bars her from litigating this claim."

Under Mapes v Coyle and many other cases, a court

may find ineffective assistance of appellate counsel from the

failure to raise particular issues on appeal if the issues were

obvious or should have been discovered, and if the failure to

raise them was prejudicial. It is impossible to imagine how

failure to raise these issues could have helped Mr. Ward's

appeal in any way.

Numerous federal cases hold that failure to raise

particular issues on appeal can be found to be ineffective

assistance of appellate counsel, even if other plausible issues

are raised on appeal. Mapes v Coyle, supra; Jackson v

Leonardo, 162 F3d 81 (CA 2, 1998); Mason v Hanks, 97 F3d

887 (CA 7, 1996); Banks v Reynolds, 54 F3d 1508 (CA 10,

1995); Mayo v Henderson, 13 F3d 528 (CA 2, 1994); Fagan

v Washington, 942 F2d 1155, 1157 (CA 7,1991); Matire v

Wainwright, 811 F2d 1430, 1438 (CA 11,1987); Bell v

Jarvis, 236 F3d 149 (CA 4, 2000).

Ineffective assistance of appellate counsel is “good

cause” for failing to raise an issue in the appeal of right.

Edwards v Carpenter, 529 US 446; 120 S Ct 1587; 146 L Ed

2d 518 (2000); Murray v Carrier, 477 US 478, 488; 106 S

Ct 2639; 91 L Ed 2d 397 (1986); MCR 6.508(D); People v

Carpentier, 446 Mich 19 (1994).

Petition for Writ of Certiorari 30

In fact, the issues of hearsay denying right of

confrontation, that was the only evidence Petitioner started

the fight, the prosecutor making up evidence, admitting

evidence that the Petitioner at first chose to ask for an

attorney and remain silent, and the issues of ineffective

assistance of trial counsel, were "dead-bang winners” for

Petitioner, and the issues were "obvious from the trial

record," meaning that there was ineffective assistance of

counsel from failure to raise them. Banks v Reynolds, supra;

United States v Cook, 45 F3d 388 (CA 10, 1995); Jackson v

Leonardo, supra.

CONCLUSION

Petitioner Vincent Ward respectfully submits that for

the reasons stated above, this Court should grant Certiorari,

reverse the judgment of the state courts, and grant a new trial.

Respectfully submitted,

JAMES STERLING LAWRENCE (P33664)

Attorney for Petitioner Ward

828 W. Eleven Mile Road

Royal Oak, MI 48067

(248) 399-6930

Dated: July 19, 2007

State Trial Court Opinion and Order, 03/15/2005 Al

STATE OF MICHIGAN

CIRCUIT COURT FOR THE COUNTY OF OAKLAND

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff,

Case No. 1995-141741-FC

Hon. Gene Schnelz

VINCENT WARD,

Defendant.

DAVID G. GORCYCA (P41352)

Oakland County Prosecuting Attorney

1200 N. Telegraph Rd.

Pontiac, MI 4834]

JAMES STERLING LAWRENCE (P33664)

Attorney for Defendant

717 Penobscot Building

Detroit, MI 48226

I

OPINION AND ORDER

At a session of said Court, held in the Courthouse, in

the City of Pontiac, County of Oakland, State of Michigan,

on MARCH 15, 2005

PRESENT: HONORABLE GENE SCHNELZ,

Circuit Judge

This matter is before the Court on Defendant's

Motion for Relief from Judgment pursuant to MCR 6.500 ef

seq. On June 20, 1996, Defendant was convicted by a jury

of first-degree murder, contrary to MCL 750.316, and

possession of a firearm during the commission of a felony,

State Trial Court Opinion and Order, 03/15/2005 A2

contrary to MCL 750.227b. Defendant was sentenced to

consecutive terms of life imprisonment without parole for

the murder conviction and two years' imprisonment on the

felony-firearm conviction. Defendant's convictions were

affirmed on appeal. People v Vincent Ward, unpublished

opinion per curiam of the Court of Appeals, decided May

1, 1998 (Docket No. 200739), Iv den 459 Mich 940 (1999).

When challenging a conviction by a motion for relief

from judgment, Defendant has the burden of establishing

that he is entitled to relief. MCR 6.508(D). MCR 6.508(D)(3)

provides that "[t]he court may not grant relief to the

defendant if the motion alleges grounds for relief, other than

jurisdictional defects, which could have been raised on

appeal from the conviction and sentence or in a prior motion

under this subchapter unless the defendant demonstrates .. .

good cause for failure to raise . . . [the issue] on appeal or in

the prior motion, and. . . actual prejudice from the alleged

irregularity . .. ." MCR 6.508(D)(3)(a) and (b).

Good cause is established by proving ineffective

assistance of appellate counsel or by showing some external

factor prevented counsel from previously raising the issue.

People v Reed, 449 Mich 375, 378 (1995). The court may

waive good cause if it concludes there is a significant

possibility the defendant is innocent of the crime.

MCR 6.508(D)(3).

Actual prejudice means that:

(i) in a conviction following a trial, but for the

alleged error, the defendant would have had a reasonably

likely chance of acquittal;

(ii) in a conviction entered on a plea of guilty

... the defect in the proceedings was such that it renders the

plea an involuntary one toa degree that it would be

manifestly unjust to allow the conviction to stand;

State Trial Court Opinion and Order, 03/15/2005 A3

(iii) In any case, the irregularity was so offensive to

the maintenance of a sound judicial process that the

conviction should not be allowed to stand regardless of its

effect on the outcome of the case;

(iv) in the case of a challenge to the sentence, the

sentence is invalid. MCR 6.508(D)(3).

"Postconviction relief is provided for the extraordinary

case in which a conviction constitutes a miscarriage of

justice." Reed, supra, at 381. In his motion.

Defendant presents the following grounds for relief arguing:

(1) he was denied the right of confrontation by testimony of

people who did not see Defendant attack the victim first; (2)

the prosecution denied Defendant due process and the right

of confrontation by making remarks in closing regarding

Defendant's statements to Ms. Pryor; (3) he was denied due

process by testimony he asserted his right to counsel; (4) he

was prejudiced by ineffective assistance of counsel; (5) he

was prejudiced by ineffective assistance of counsel on

appeal; (6) his legal issues may properly be heard.

As a threshold matter. Defendant argues that

the prosecution's closing remarks, regarding Defendant's

statements to Ms. Pryor, resulted in a jurisdictional defect.

To bypass the limitations of MCR 6.508, the defendant

must demonstrate there was improper personal jurisdiction,

improper subject matter jurisdiction, double jeopardy,

imprisonment when the trial court had no authority to

sentence defendant to the institute in question, or that the

defendant was convicted for no crime whatsoever. People v

Carpentier, 446 Mich 19, 49-50 (1994) (Riley J.,

concurring). "If the court has jurisdiction of the person and

the subject-matter, and could render a judgment upon a

showing of any sufficient state of facts, any judgment which

it may render, however, erroneous, irregular or unsupported

<

State Trial Court Opinion and Order, 03/15/2005 A4

by evidence is no jurisdictional defect." Jd. at 46-47.

This Court finds there is no jurisdictional defect and that

Defendant is subject to the requirements of MCR 6.508.

Turning first to the prejudice prong, Defendant must

demonstrate that but for the alleged errors, he would have a

reasonable likelihood of acquittal. Defendant argues that he

shot the victim in self-defense. If the jury is presented with

evidence that Defendantkilled the victim, and it was not in

self-defense, then regardless of any error. Defendant cannot

demonstrate there is prejudice.

In this case, Michael Dixon testified Defendant's

vehicle struck the victim's vanin the parking lot of the strip

mall. Mr. Dixon observed the victim come out of his

storeand inspect the vehicle. Mr. Dixon later saw the victim

and Defendant exchanging words. He also saw the victim

punch and kick Defendant. Then Mr. Dixon saw Defendant

walk back to the Lion's Market yelling and screaming and

making a lot of noise.

Nathaniel Roberts testified that he witnessed the

"conflict" and saw the victim sock Defendant in the face.

When Mr. Roberts came out of the Lion's Market he

observed Defendant with a clip for a gun telling "everybody

to leave the store, he about( sic) to do them in."

Otok Breaux testified she worked for the victim at his

beauty supply store. Ms.Breaux testified she was outside in

the parking lot talking with her father-in-law when

Defendant walked into the beauty supply store carrying a

long gun. She then heard thegun shooting. She ran and hid

and then saw Defendant leave the store. When she raninside

the store she saw the victim lying on the ground.

State Trial Court Opinion and Order, 03/15/2005 A5

Sara Choi, the victim's wife, testified she was inside

the store talking with her husband while she cleaned the store

when she heard a gun sound. Then she heard Defendant say

"mother fucker, I told you I'd be back and kill you." She

looked and saw the Defendant a few feet away. She then saw

him walk out of the store. When she looked for her husband,

she saw his feet, and then she saw blood.

Dr. Kanu Virani, Deputy Chief Medical Examiner,

testified the victim died ofgunshot wounds to the head and

back.

Based upon this testimony, the jury found Defendant

guilty of first-degree murder and possession of a firearm

during the commission of a felony. None of the errors raised

by Defendant undermine this evidence and create a

reasonable likelihood of acquittal. MCR 6.508(D)(3)(b)(i).

Therefore, Defendant has failed to demonstrate actual

prejudice.

In order to obtain postappeal relief under MCR

subchapter 6.500, it is Defendant's burden to demonstrate

both "good cause" and "actual prejudice." MCR

6.508(D)(3)(a) and (b). Because Defendant has failed to

demonstrate "actual prejudice" it is unnecessary to address the

"good cause" component. MCR 6.508(D); see also People v

Pennington, 240 Mich App 188, 198 (2000); People v Reed,

449 Mich 375, 400-401 (1995).

WHEREFORE, IT IS HEREBY ORDERED that

Defendant's Motion for Relief from Judgment is denied.

GPNE SCHNELZ

CIRCUIT JUDGE

HON. GENE SCHNELZ

Michigan Court of Appeals

People of MI v Vincent Ward

Docket No. 268923

LCNo. 1995-141741-FC

Order, 09/28/2006 A6

Court of Appeals, State of Michigan

ORDER

Michael J. Talbot

Presiding Judge

E. Thomas Fitzgerald

Michael R. Smolenski

Judges

The Court orders that

DENIED.

the motion to remand is

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).

/S/ Michael J. Talbot _

Presiding Judge

SEAL A true copy entered and certified by Sandra

Schultz Mengel, Chief Clerk, on

SEP 28 2006 /S/ Sandra Schultz Mengel

Date Chief Clerk

Michigan Supreme Court Order, 04/24/2007 A7

Order Michigan Supreme Court

Lansing, Michigan

April 24, 2007 Clifford W. Taylor,

Chief Justice

132534 Michael F. Cavanagh

Elizabeth A. Weaver

Marilyn Kelly

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman,

Justices

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

Vv SC: 132534

COA: 268923

VINCENT WARD, Oakland CC: 1995-141741-FC

Defendant-Appellant.

/

On order of the Court, the application for leave to

appeal the September 28, 2006 order 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).

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 the Court.

April 24, 2007 /S/ Corbin A. Davis

Date Clerk

Michigan Court of Appeals Opinion, 05/01/1998 A&

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED

May 1,1998

Vv No.200739

Oakland Circuit Court

VINCENT WARD, LCNo.95-141741-FC

Defendant-Appellant

Before: Young, Jr., P.J., and Kelly and Doctoroff, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of

first-degree murder, MCL 750.316; MSA 28.548, and

possession of a firearm during the commission of a felony,

MCL 750.227b; MSA 28.424(2). He was sentenced to

consecutive terns of life imprisonment without parole for die

murder conviction and two years’ imprisonment on the

felony-firearm conviction. Defendant appeals as of right We

affirm.

Defendant first argues that the trial court erred in

denying his motion to suppress his confession because it was

not voluntarily given. We disagree. When reviewing a trial

court's determination of voluntariness, this Court must

examine the entire record and make an independent

determination. People v Robinson, 386 Mich 551,557; 194

NW2d 709 (1972). However, we gi. deference to the trial

court's assessment of the weight of the evidence and the

credibility of the witnesses, and the trial court's findings will

not be reversed unless they are clearly erroneous. People v

Brannon, 194 Mich App 121,131; 486 NW2d 83 (1992).

Defendant argues that the police officers threatened

him both physically and psychologically into giving a

Michigan Court of Appeals Opinion, 05/01/1998 A9

confession. He testified that be felt physically threatened by

the officer who drove him to The police station and then

stood outside the door of the interrogation room. However,

he admitted that he initially exercised his right to have an

attorney despite being physically intimidated. Furthermore,

defendant was the one who began asking questions after

requesting an attorney. Finally, the trial court apparently did

not find defendant's version of events credible. The officers

denied using any threats. As stated, this Court defers to the

trial court's superior ability to view the evidence and

witnesses. The trial court did not clearly err in finding that

defendant's statement was voluntary.

Defendant next argues that prosecutorial misconduct

denied him a fair trial. Prosecutorial misconduct issues are

reviewed on a case by case basis. People v McElhaney, 215

Mich App 269, 283; 545 NW3d 18 (1996). On review, this

Court must examine the pertinent portion of the record and

evaluate a prosecutor's remarks in context Jd.

Defendant first takes issue with the prosecutor's

comment during closing argument mat "[tjhis is the best case

of first-degree murder that I've ever seen." Prosecutorial

remarks which inject personal opinions into the case are

generally improper. People v Bahoda, 448 Mich 261, 286-

287; 531 NW2d 659 (1995). However, injecting personal

opinions does not always amount to error requiring reversal.

Id. This Court must determine whether the error caused the

jury to suspend its power of judgment in favor of the belief

of the prosecutor's office. /d. at 287. After review of the

record, we conclude mat me prosecutor's comment, even if

improper, did not constitute error requiring reversal.

Defendant also argues that the prosecutor deprived

him of a fair trial when he misstated that the law required the

court to give an instruction on manslaughter. However, an

alleged misstatement of the law by the prosecutor is

presumptively not harmful, since the trial judge instructed the

jury properly. People v Reed, 449 Mich 375,401; 535 NW2d

Michigan Court of Appeals Opinion, 05/01/1998 Al0

496 (1995). Defendant was not denied a fair trial by the

prosecutor's misstatement.

Finally, defendant argues that the trial court erred in

allowing two witnesses to view a photographic showup

while defendant was in custody. We disagree. Because

defendant failed to challenge me pretrial identification

procedures below, appellate review is foreclosed absent

manifest injustice. People v Melvin Davis, 146 Mich App

537, 547; 381 NW2d 759 (1985). The record indicates mat,

prior to the preliminary examination, a corporeal lineup was

scheduled. However, due to defendant's light skin color and

small stature, me police were unable to secure individuals

with similar characteristics for a proper lineup. This is a

recognized exception to the general requirement mat a

photographic lineup should not be used when me accused is

in custody. See Jd. at 546. Accordingly, no manifest

injustice would result from our failure to further review this

issue.

Affirmed.

/s/ Robert P. Young, Jr.

/s/Michael J.Kelly

/s/ Martin M. Doctoroff

Michigan Supreme Court Order, 01/26/1999 All

Order Michigan Supreme Court

Lansing, Michigan

January 26, 1999 Elizabeth A. Weaver,

Chief Justice

132534 James H. Brickley

Michael F. Cavanagh

Marilyn Kelly

Clifford W. Taylor

Maura D. Corrigan

Robert P. Young, Jr.

Justices

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

Vv SC: 112346

COA: 200739

VINCENT WARD, LC: 95-141741-FC

Defendant-Appellant.

/

On order of the Court, the delayed application for

leave to appeal is considered, and it is DENIED, because we

are not persuaded that the questions presented should be

reviewed by this Court.

Young, Jr., J., not participating.

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 the Court.

January 26, 1999 /S/ Corbin A. Davis

Clerk