Petition for Writ of Certiorari — Varner v. Michigan

Supreme Caurt, U.S.

{ FILEDO

021821 JUN 1 1 2003

No.

IN THE SUPREME COURT OF THE UNITED STATES

JANNISS VARNER,

Petitioner

-v.-

STATE OF MICHIGAN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE MICHIGAN COURT OF APPEALS

JAMES STERLING LAWRENCE (P33664)

Attorney for Petitioner Varner

717 Penobscot Building

Detroit, MI 48226

(313) 965-4189

HY

TIONS PRESENTED

Petitioner Janniss Varner was convicted at a jury trial of

assault with intent to commit murder. An appeal of night to

the Michigan Court of Appeals resulted in an opinion for

affirmance, and the Michigan Supreme Court denied leave to

appeal by a 5-2 vote. The questions presented are:

QUESTION 1: WHERE STATE LAW ALLOWS A

PRIVILEGE FOR COMMUNICATIONS TQ GOD MADE

VIA A PRIEST OR MINISTER, WHETHER IT IS

CONSTITUTIONAL FOR THE STATE TO DENY

PRIVILEGE -WHERE THE COMMUNICANT'S

RELIGIOUS BELIEFS REQUIRE HER TO ADDRESS

HER COMMUNICATIONS DIRECTLY TO GOD,

RATHER THAN THROUGH AN INTERMEDIARY.

QUESTION 2: WHETHER THE FIRST AMENDMENT

PROVIDES PETITIONER A PRIVILEGE PROTECTING

THE PRIVACY OF HER WRITTEN PRAYERS TO GOD.

QUESTION 3: WHETHER A STATE COURT CAN

MAKE A VALID RULING OF “INEVITABLE

DISCOVERY" BASED LARGELY ON SPECULATION,

AND WITHOUT ANY TESTIMONY FROM THE

PURPORTED INEVITABLE DISCOVERER.

QUESTION 4: WHETHER INEVITABLE DISCOVERY

WAS PROPERLY FOUND WHERE THE ITEM WAS

WRITINGS IN A DIARY IN A CLOSET, THE

ii

PURPORTED INEVITABLE DISCOVERER TOOK ONLY

A FEW ITEMS FROM THE APARTMENT, AND THE

APARTMENT MANAGER THREW OUT MOST OF

THE CONTENTS OF THE APARTMENT.

QUESTION 5: WHETHER A TRIAL COURT RULING

THAT PETITIONER HAD STANDING TO CONTEST

THE SEARCH CAN BE OVERTURNED BY A

REVIEWING COURT WHERE THE PROSECUTION DID

NOT APPEAL.

QUESTION 6: WHETHER A DEFENDANT HAS

STANDING TO CONTEST A SEARCH OF THE

APARTMENT WHERE SHE WAS THE PARTY ON THE

LEASE, KEPT PERSONAL ITEMS THERE SUCH AS

THE DIARY AND HER BANK STATEMENTS, AND

WHERE THE LANDLORD TESTIFIED THAT SHE WAS

LEGALLY RESPONSIBLE FOR THE RENT.

QUESTION 7: WHETHER THE PETITIONER'S

TEMPORARY MOVE TO HER MOTHER'S RESIDENCE

AFTER AN INJURY DEPRIVES HER OF STANDING TO

COMPLAIN OF A SEARCH OF HER OWN

APARTMENT.

QUESTION 8: WHETHER, WHERE STATE LAW

ALLOWS A DEFENSE OF SELF-DEFENSE OR

PROVOCATION, THE STATE CAN PRECLUDE THOSE

CLAIMS, AND BAR "BATTERED SPOUSE"

TESTIMONY IN SUPPORT OF THOSE CLAIMS.

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

INDEX OF AUTHORITIES

OPINIONS BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATUTE INVOLVED

STATEMENT OF THE CASE

STATEMENT OF PROCEEDINGS

STATEMENT OF FACTS

REASONS FOR GRANTING THE WRIT

QUESTION I

QUESTION II

QUESTION III ‘

QUESTION IV

QUESTION V

QUESTION VI

QUESTION VII

QUESTION VIII

CONCLUSION

APPENDIX

Michigan Court of Appeals Opinion, 4/23/02

Michigan Supreme Court Order, 4/8/03

iii

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iv

INDEX OF A TE

Cases

Beaudrie v. Anchor Packing Co, 231

Mich. App. 242 (1998) 25

Bumper v. North Carolina, 391 U.S. 543 (1968) 22

Bush v. Oscoda Area Schools, 109 Mich. App. 373 (1981) 25

Cantwell v. Connecticut, 310 U.S. 296 (1940) 14

Crane v. Kentucky, 476 U.S. 683, 690 (1986) - 29

Dykstra v. Director, Dept of Natural Resources,

198 Mich. App. 482 (1993) 25

Epperson v. Arkansas, 393 U.S. 97 (1968) 10

Everson v. Board of Education, 330 U.S. 1 (1947) 14

Gillette v. United States, 401 U.S. 437 (1971) 11

Glassbrook v Lansing Wheelbarrow Co., 177

Mich 29, 43 (1913) 27

IBEW Local #58 v. McNulty, 214 Mich. App. 437 (1995) 25

In re Grand Jury Investigation, 918 F.2d 374 (3d Cir 1990) 12

Kyllo v. United States, 533 U.S. 27 (2001) 23

Lamson v. Martin, 182 Mich. App. 233 (1990) 25

McMann vy. Securities and Exchange Commission,

87 F.2d 377, 378 (2d Cir. 1937) 12

Minnesota v. Olson, 495 U.S. 91 (1990) 22

Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997) 13

Morris v. Metriyakool, 418 Mich. 423 (1984) 25

Mullen v. United States, 263 F.2d 275 (D.C. Cir. 1958) 11

Nix v. Williams, 467 U.S. 431 (1984) 16

People v. Green, 113 Mich. App. 699 (1982) 27

People v. Heflin, 434 Mich. 482, 502 (1990) 26

People v. Hoskins, 403 Mich. 95 (1978) 27

People v. Lennon, 71 Mich. 298 (1888) 29

People v. Lipps, 167 Mich. App. 99 (1988) 26

People v. Pouncey, 437 Mich. 382 (1991) 28, 29

People v. Prather, 121 Mich. App. 324 (1983) 30

People v. Shelton, 64 Mich. App. 154 (1975) 26, 29

Pierce v C.H. Bidwell Thresher Co., 158 Mich 356 (1909) 27

School District of Abington Township,

Pennsylvania v. Schempp, 374 U. S. 203 (1963) 14

Shipman v. Fontaine Truck Equipment Co, 184

Mich. App. 706 (1990) 25

Stone v. Powell, 428 U.S. 465 (1976) 17

Therrian v. General Laboratories, Inc, 372 Mich.

487 (1964) 25

Totten v. United States, 92 U.S. 105 (1875) 1]

Trammel v. United States, 445 U.S. 40 (1980) 12

United States v. Bass, 41 F. Appx. 735, 2002

WL 1378219 (6th Cir. June 24, 2002) [unpublished] 19

United States v. Wilson, 536 F.2d 883 (9th Cir. 1976) 23

Walter v. United States, 447 U.S. 649 (1980) 21

Ward v. Walsh, 1 F.3d 873 (9th Cir. 1993) 14

~ Welsh v. Wisconsin, 466 U.S. 740 (1984) 23

Constitutional Provisions

U.S. Const., Amend. I passim

U.S. Const., Amend. IV 3, dae ao

U.S. Const., Amend. XIV 3, 24

Statutes

M.C.L. 600.2156 3, 12

Treatises

5 W.R. LaFave, Search and Seizure § 11.3(a),

p. 125 (3d Ed. 1996) 23

No.

IN THE SUPREME COURT OF THE UNITED STATES

JANNISS VARNER,

Petitioner

-V.-

STATE OF MICHIGAN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE MICHIGAN COURT OF APPEALS

JANNISS VARNER, Petitioner, by and through her

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

Writ of Certiorari to review the ruling of the Michigan Court

of Appeals of April 23, 2002, affirming her conviction and

sentence.

2 Petition for Writ of Certiorari

OPINIONS BELOW -

The Appendix includes the opinion of the Michigan

Court of Appeals of April 23, 2002 and the order of the

Michigan Supreme Court of April 8, 2003.

TA T

This case begen as a criminal prosecution in Wayne

County, Michigan, Circuit Court. The original judgment was

entered December 17, 1999. The opinion of the Michigan

Court of Appeals was issued April 23, 2002. The Michigan

Supreme Court denied leave to appeal on April 8, 2003. This

Court has jurisdiction pursuant to 28 U.S.C. § 1257.

Tl P N

The First Amendment to the United States Constitution

provides:

"Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the press; or

the right of the people peaceably to assemble, and to petition

the Government for a redress of grievances."

Petition for Writ of Certiorari 3

The Fourth Amendment to the United States

Constitution provides:

"The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath or affirmation,

ial ___and particularly describing the place to be searched, and the

persons or things to be seized."

The Fourteenth Amendment to the United States

Constitution provides:

~~

"No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life, liberty

or property without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws."

STATUTE INVOLVED

M.C.L. 600.2156 provides:

"No minister of the gospel, or priest of any

denomination whatsoever, or duly accredited

- Petition for Writ of Certiorari

Christian Science practitioner, shall be allowed to

disclose any confessions made to him in his

professional character, in the course of discipline

enjoined by the rules or practice of such

denomination."

STATEMENT OF THE CASE

Statement of Proceedings

Petitioner Janniss Varner was convicted of assault with

intent to murder in a jury trial in the Wayne County Circuit

Court in the November 27, 1995 nonfatal shooting of Alvin

Knight. (Mr. Knight was later killed on July 24, 1998, in an

unrelated incident for which Petitioner has not been charged).

A variety of pretrial matters were heard by the Hon. David P.

Kerwin. Trial was held before the Hon. Ulysses W. Boykin.

On December 17, 1999, Judge Boykin sentenced Petitioner to

prison for 13 to 20 years.

Appeal of right was taken to the Michigan Court of

Appeals which affirmed on April 23, 2002. The Michigan

Supreme Court, by a 5-2 vote, denied leave to appeal on

April 8, 2003.

Statement of Facts

Oscar Abney testified that he was the cousin of Alvin

Knight, whe lived in an apartment on Fenkell near Telegraph

in Detroit. Petitioner Janniss Varner was Knight's girlfriend.

Petition for Writ of Certiorari 5

(T I, 70). On November 27, 1995, Mr. Knight came to his

residence. (T I, 74). Mr. Knight complained he had been

shot, and showed the wound. (T I, 76-77). He did not know

the person who shot him. (T I, 77). Mr. Knight said it

happened in the garage at Petitioner's mother's house. (T I,

77). Mr. Knight continued in his relationship with Petitioner

Varner, who was present at the apartment when Mr. Abney

would visit. (T I, 80-81).

Off. Michael Foley testified that on November 27,

1995, around 10 a.m. he went to a location on Robeson St.

and met Oscar Abney and Alvin Knight. Knight had been

shot in the shoulder. (T I, 117-120). Mr. Knight told him

that an unknown assailant attacked him in his girlfriend's

mother's garage. (T I, 131).

Off. Peter Howard testified that on November 27, 1995

he was sent to 1603 Balmoral, home of Petitioner's mother

Nellie Varner. (T I, 151, 155). He found no evidence that the

Shooting took place there, such as casings, blood or bullet

holes. (T I, 155). However, Off. William Niarhos found

evidence of bullet strikes. (T II, 81).

Off. Karen Cooper testified that 3 years later, on July

24, 1998, at the apartment building at 23760 Fenkell, she

heard shots then saw Alvin Knight on the ground. (T I, 160,

164). He died in her presence. (T I, 165).

Georgia Kade, apartment manager at Fenkell, testified

that Janniss Varner and Alvin Knight were the tenants. (T IL,

6 Petition for Writ of Certiorari

23).

Sgt. Catherine Adams testified that they entered the

apartment, number 216, the day after the 1998 shooting.

They came back a few days later looking for more evidence.

Notebooks or journals were seized from the front closet of

the apartment by Sgt. Ellis. (T II, 34-35).

Dr. Martin Harris testified that on November 27, 1995,

he treated Alvin Knight for a gunshot wound to the shoulder

and bruises to the head. (T II, 42, 44).

Barney Flowers testified that the relationship between

Petitioner and Mr. Knight was rocky, and on and off. (T II,

63).

Sgt. Jo Ann Kinney read from Petitioner's notebooks.

(T I, 125-135; T III, 4-76). Petitioner wrote "I don't regret

what I did to him." She complains of physical abuse by

Knight including raping and choking, and other activities of

Mr. Knight. She discusses her love for the child Alvin Knight

Jr. and the deficiencies of Mr. Knight as a father. She

threatens that if Mr. Knight puts his hands on her again he is

a dead MF. She states in the document that "I had him shot

November 27, 1995 and he abused me November 25, 1995.

He raped me and tied me up for three hours, put his hands

around my neck." She states "Thank you God for answering

my prayers and taking Alvin Knight to his grave."

The notebook entries were addressed to "Dear God"

and contain criticism of organized religion. (T IV, 11-16).

Petition for Writ of Certiorari 7

As discussed below, a motion to suppress the writings

of Petitioner Vamer on grounds of illegal search and religious

privilege was denied. The court made a ruling excluding

testimony about Battered Woman Syndrome and would not

allow instructions on manslaughter because of the claim that

this was a hired shooting.

A FOR GRANTING THE WRIT

QUESTION 1: WHERE STATE LAW ALLOWS A

PRIVILEGE FOR COMMUNICATIONS TO GOD MADE

VIA A PRIEST OR MINISTER, WHETHER IT IS

CONSTITUTIONAL FOR THE STATE TO DENY

PRIVILEGE WHERE THE COMMUNICANT'S

RELIGIOUS BELIEFS REQUIRE HER TO ADDRESS

HER COMMUNICATIONS DIRECTLY TO GOD,

RATHER THAN THROUGH AN INTERMEDIARY.

QUESTION 2: WHETHER THE FIRST AMENDMENT

PROVIDES PETITIONER A PRIVILEGE PROTECTING

THE PRIVACY OF HER WRITTEN PRAYERS TO GOD.

Certiorari should be granted because the United States

Supreme Court is uniquely well suited to determine exactly

how much discrimination on the basis of religious belief is

permitted in the state courts. Janniss Varner's written

prayers and supplications to God, written and kept in her

Own apartment, were seized and used in evidence against her,

8 Petition for Writ of Certiorari

despite the timely and specific claim of First Amendment

religious privilege. }

Under the ruling in this case, certain religious beliefs and.

practices are discriminated against. If a person believes that

one communicates with God through a priest or minister, the

communications are privileged. If a person believes that she

should communicate directly with God, the communications

(at least in this case) are held not to be privileged. This Court

Should grant certiorari to determine whether it is

constitutional for a state to discriminate among religious.

beliefs in this fashion.

Prior to trial Petitioner moved to suppress the writings

as privileged religious communications. This was denied

based on the record at the preliminary examination. (T

1/29/99, 7). The Court of Appeals simply ruled in a footnote

that they "reject" the claim. We submit the issue is

considerably more complex and meritorious than the Court of

Appeals cavalier treatment would suggest. (Apx. A4).

In each case the entries, which were made on a virtually

daily basis, begin with the salutation "Dear God." (PET, 73-

76). Ms. Varner details in these letters to the Creator her

disillusionment with organized religion, and the clergy. (PET,

75, 77-78).! Some of the letters specifically take the form of

1 The entries referred to include:

Petition for Writ of Certiorari 9

conventional prayers,2 and some are more informa!, almost

conversational in tone, beginning, for example, "Dear God,

it’s me, Janniss," or ending, "well, God, I will talk to you

tomorrow." (PET, 79). The writings make clear that the

defendant gained solace and consolation from their writing,

and they gave her what she considered to be a private and

secret outlet for her innermost thoughts and feelings.3 (PET,

"I don't trust religion. I realize most organizations

are just .. . plain money cults;"

"Church was haven for a good life and possibly a

marriage to someone good. I only found that

church was hell. I learned that church practiced

witchcraft . . . and to top it all off, the preacher

and his wife were some of the main ringleaders;"

"I would love to be at a church and go on a regular

basis but I find the place offers -- it is such a

money thing that the fucking pimps, if you excuse

the expression, are out of business because of it."

2 "Lord, give me guidance and insight concerning what I

need to do, make things clear and plain to me. Give me the

things I need to have and show me the knowledge I need."

3 Passages such as the following make this clear:

"Since writing these past two pages, I feel so

much better."

10 Petition for Writ of Certiorari

79-80).

The writings contain statements that can reasonably be

said to incriminate her in this case, and which are in fact the

only evidence in the case directly linking her to the crime. If

Janniss Varner had made these confessions and entreaties to a

member of the clergy - whether orally or in writing - it could

hardly be argued that they would not be privileged. The fact

that her perceptions of ministers and church life moved her to

bypass the clergy and make her confessional appeals directly

to God does not change the essential character of the

communications, and cannot strip them of their privileged

character. |

It would constitute unlawful favoring of one religion

over another, and an establishment of religion, to provide that

the privilege that protects communications to God depends

on whether your religious beliefs require the intermediation of

a priest, or allow you to communicate directly with God. See

Epperson v. Arkansas, 393 U.S. 97, 103-104 (1968):

Dear God, I'm writing this. I don't know. Life is

so confusing for me right now. I know I have

approached the situation before only to come back

void. . . . I can't talk to anyone but you because I

have tried to trust people, male and female. They

have turned on me."

Petition for Writ of Certiorari 11

"Government in our democracy, state and national, must be

neutral in matters of religious theory, doctrine, and practice."

Under the First Amendment, the Courts must insure

"governmental neutrality in matters of religion." Gillette v.

United States, 401 U.S. 437 (1971). "The Establishment

Clause stands at least for the proposition that when

government activities touch on the religious sphere, they

must be secular in purpose, evenhanded in operation, and

neutral in primary impact." Gillette, supra.

In Mullen v. United States, 263 F.2d 275 (D.C. Cir.

1958), the Court held that the question of privilege depended

on whether it was "a confidential confession to a spiritual

adviser." No one could reasonably dispute the legitimacy of a

religious claim that God is the ultimate spiritual adviser. No

one could reasonably dispute that that is how Janniss Varner

viewed it, judging by what she actually wrote.

There exists a long line of influential American decisions

which recognize the existence of the privilege as basic to our

system of jurisprudence, even in the absence of specific

statutory enactments. Thus, for example, in Totten v. United

States, 92 U.S. 105, 107 (1875), Mr. Justice Field wrote:

"It may be stated as a general principle, that

public policy forbids the maintenance of any suit

in a court of justice, the trial of which would

inevitably lead to the disclosure of matters which

the law itself regards as confidential, and

12 Petition for Writ of Certiorari

respecting which it will not allow the confidence

to be violated. On this principle, suits cannot be

maintained which would require a disclosure of the

confidences of the confessional, or those between

husband and wife, or of communications by a

client to his counsel for professional advice, or of

a patient to his physician for a similar purpose."

See also, McMann v. Securities and Exchange Commission,

87 F.2d 377, 378 (2d Cir. 1937) (Hand, J., listing penitential

privilege among those traditionally recognized). Indeed, as

the Third Circuit declared in Jn re Grand Jury Investigation,

918 F.2d 374, 381 (3d Cir 1990), the privilege is "indelibly

ensconced' in the American common law." The Court in

Trammel v. United States, 445 U.S. 40 (1980) said "The

priest-penitent privilege recognizes the human need to

disclose to a spiritual counselor, in total and absolute

confidence, what are believed to be flawed acts or thoughts

and to receive priestly consolation and guidance in return."

That is really no different than what Ms. Varner did in

making her writings. The only difference is one that is not

constitutionally permissible to discriminate on, that is, that

her spiritual counselor is heavenly rather than human.

Michigan recognizes one kind of penitential privilege by

statute. M.C.L. 600.2156 provides:

"No minister of the gospel, or priest of any

denomination whatsoever, or duly accredited

Petition for Writ of Certiorari 13

Christian Science practitioner, shall be allowed to

disclose any confessions made to him in his

professional character, in the course of discipline

enjoined by the rules or practice of such

denomination."

This case presents the question in stark terms. If the

writings of Ms. Varner were to an intermediary to God

(priest, minister, bishop, pope) they would clearly be

covered under the privilege. To deny the same privilege to

her because her beliefs tell her to communicate directly to

God instead of through an intermediary is a discrimination

between religious beliefs and a violation of the First

Amendment, U.S. Const., Amend. I. We submit it is

unconstitutional for a state to employ a regime where a

statement to a priest is protected but a statement directly to

God is not.

Statutory penitential privileges such as Michigan’s are

generally aimed at preventing the disclosure of confessions by

clergymen to such confessions are made. Nonetheless, it is

clear that, if confessions made to a member of the clergy are

privileged, the nonconsensual interception of those

confessions does not deprive them of their privileged

character. E.g., Mockaitis v. Harcleroad, 104 F.3d 1522,

1531-1533 (9th Cir. 1997) [Taping conversations between

criminal defendant and priest in county jail; statements of the

defendant must be suppressed]. See also Franklin v.

14 Petition for Writ of Certiorari

Oregon, 662 F.2d 1337 (9th Cir. 1981) [private prayers by

prisoner are privileged].

"The ideal of our people as to religious freedom," as

incorporated in the First Amendment, is one of "absolute

equality before the law, of all religious opinions and sects;" as

to religious observance and belief, "[t]ke government is

neutral, and, while protecting all, it prefers none, and it

disparages none." School District of Abington Township,

Pennsylvania v. Schempp, 374 U. S. 203, 215 (1963).

Specifically, the Establishment Clause requires that one

form of religious practice not be preferred over another, as the

Supreme Court explained in Everson v. Board of Education,

330 US. 1 (1947).

At the same time, the coordinate protection of the Free

Exercise clause means that the state cannot unduly burden a

citizen’s chosen mode of religious expression or practice.

E.g., Cantwell v. Connecticut, 310 U.S. 296, 303-304 (1940)

["Thus the Amendment embraces two concepts, - freedom to

believe and freedom to act."]; Ward v. Walsh, | F.3d 873, 876

(9th Cir. 1993).

It would clearly offend these precepts to apply the

protections of the Michigan statute, and accord the benefits

of the Michigan law of privilege to those who accept the

orthodoxies of organized Christian sects, while denying those

protections and benefits to Janniss Varner, on the basis that

her religious opinions and beliefs moved her to avoid clergy

Petition for Writ of Certiorari 15

and the physical establishments of the Christian church,

while practicing the Christian faith, and addressing the

Christian God in her own way. It offends principles of

religious non-discrimination to say that if she had written

"Dear Reverend Jones" the writings would be privileged, but

because she wrote "Dear God," they are not.

Imagine the following: a notorious gangster is also

known to be a dedicated church-goer. In addition to attending

Sunday services, it is known that every Thursday he goes To

a particular, and secluded, pew tucked away in a private nook

of a particular church, and, in hushed tones, makes confession

before God of his sins of the week, so that he might know

"redemption and deliverance." Would anyone seriously argue

that the government could properly plant a listening device,

intercept those entreaties to God, and use them as evidence

against him?

Janniss Varner chose to exercise her religious faith, not

in some church pew, but in the privacy of her homc, in

written entreaties to the same God. If the First Amendment

means anything, it means that her private prayers are no more

admissible than those of the hypothetical hoodlum's. The

rulings of the lower courts to the contrary must be reversed.

QUESTION 3: WHETHER A STATE COURT CAN

MAKE A VALID RULING OF "INEVITABLE

16 Petition for Writ of Certiorari

DISCOVERY" BASED LARGELY ON SPECULATION,

AND WITHOUT ANY TESTIMONY FROM THE

PURPORTED INEVITABLE DISCOVERER.

QUESTION 4: WHETHER INEVITABLE DISCOVERY

WAS PROPERLY FOUND WHERE THE ITEM WAS

WRITINGS IN A DIARY IN A CLOSET, THE

PURPORTED INEVITABLE DISCOVERER TOOK ONLY

A FEW ITEMS FROM THE APARTMENT, AND THE

APARTMENT MANAGER THREW OUT MOST OF

THE CONTENTS OF THE APARTMENT.

"Inevitable discovery" is a long-recognized doctrine that

can validate an otherwise illegal search. Nix v. Williams, 467

U.S. 431 (1984). Petitioner does not seek to eliminate that

doctrine, but merely to limit it to cases where the inevitability

of the discovery is established by evidence. Proof of

inevitable discovery "involves no speculative elements but

focuses on demonstrated historical facts capable of ready

verification or impeachment . . ." Nix, 467 U.S. at 444 n. 5.

This case should be accepted and a ruling issued on the

merits to determine the question of how much speculation

can a tria! court employ in order to come up with an

"inevitable discovery" finding, where testimony about that

point was largely absent. In other cases, testimony from the

"inevitable discoverer" was required. Here the ruling was

based essentially on guesswork.

Petition for Writ of Certiorari 17

As the issue deals with the Fourth Amendment, only

the United States Supreme Court can provide any guidance to

the state courts. Because of Stone v. Powell, 428 U.S. 465

(1976), which eliminates Habeas Corpus review of Fourth

Amendment issues, pronouncements of the federal courts

lower than the Supreme Court on such questions are ignored

by the state courts.

Petitioner was convicted of assault with intent to

commit murder of Alvin Knight, her boyfriend, that occurred

November 27, 1995. Mr. Knight was later killed on July 24,

1998, in an unrelated incident for which Petitioner has not

been charged.

The search was conducted by police at 23760 Fenkell

Apartment 216A on July 30, 1998. (EHT 3/18/99, 10). The

prosecutor conceded that the search was warrantless. (EHT

2/12/99, 5). Writings by Petitioner were seized. The items

seized in the July 29 search were the basis of a search warrant

for her mother's house at 1603 Balmoral. where more writings

of Petitioner were seized. (EHT 2/12/99, 5-7).

Judge Kerwin ruled that Petitioner Varner did have

standing to complain of the search, but found that it was

inevitable that attorney Gerald Cavellier or Laverne Coleman,

sister of Mr. Knight, would have found the writings, would

have read them, and would have turned them over to the

police, if the police had not searched the apartment and

seized the writings themselves. (EHT 4/28/99, 6, 17-19).

18 Petition for Writ of Certiorari

We submit this ruling was clearly erroneous and improperly

based on speculation.

Gerald Cavellier was an attorney for Alvin Knight.

(EHT 3/9/99, 6-7). On August 31, 1998 (over a month after

the police search and seizure) he and Laverne Coleman, sister

of Mr. Knight, went to the apartment on Fenkell. He went

with her because she was uncomfortable going alone. Ms.

Coleman went there "As personal representative of the Estate

to clear out the personal belongings of Alvin Knight, her

brother." (EHT 3/9/99, 17-18). Attorney Cavellier did not

participate in the packing of property or prepare an

inventory. (EHT 3/9/99, 24).

Since attorney Cavellier did not do any searching or

seizing, he could not have discovered anything.

Georgia Gail Kade, manager of the apartment building,

testified that the sisters of Mr. Knight went in the apartinent

probably in September to get Mr. Knight's property. (EHT

3/9/99, 69). She went on to testify that they took a tv set

and some furniture, and "left most of the stuff there for us to

clean out and dispose of." Except for children's clothes taken

to a shelter, all items were placed in the dumpster. (EHT

3/9/99, 70).

Obviously, it was not inevitable that building

management would have found and read the writings and

turned them over to police. The prosecutor's case must rest

entirely on the inevitability of discovery, reading, and

mg rir sa 3:

Petition for Writ of Certiorari 19

turnover to police by Laverne Coleman.

However, Laverne Coleman did not testify. There is

thus no evidence from her as to the intent and scope of her

search. We do not have any testimony from her that she

spent hours carefully examining each item in the apartment.

We do not have any testimony from her that she did not

simply pick out a few items of apparent value and leave the

rest unexamined. Indeed, there is not even testimony that she

can read.

The only evidence we have on the scope of Ms.

Coleman's activities is the tescimony of the apartment

manager that Ms. Coleman took out only furniture and a

television and left most things behind, and the apartment

manager threw out the rest. See United States v. Bass, 41 F.

Appx. 735, 2002 WL 1378219 (6th Cir. June 24, 2002)

[unpublished] holding that since the policy of the hotel was

to throw out abandoned property, it was not inevitable that

they would have discovered property in the hotel room. The

Court in United States v. Bass held:

"In speculating on the inevitability of legal

discovery of the evidence, this Court's speculation

is constrained by the "demonstrated historical

facts capable of ready verification or

impeachment." Nix, 467 U.S. at 444-45 n. 5. The

facts in the present case do not show how the

duffel bag would have landed in police custody

20 Petition for Writ of Certiorari

without the illegal police search of Bass's hotel

room. The hotel policy regarding abandoned items

belies the government's theory of inevitable

discovery. Pursuant to this policy, the hotel, if

unable to contact Bass at his contact address,

[FN10] would have held the duffel bag for ninety

(90) days, after which it would have been

discarded. But for the warrantless search of

Bass's room, [FN11] the bag would have been

either claimed (presumably by Williams when he

was released on bond that same day) or discarded

after ninety days. Under no circumstances

pursuant to formal hotel policy would the bag

have been impounded by the police had the

unlawful search not occurred. [FN12] Therefore,

the Court cannot find that the government has met

its burden in establishing that the

unconstitutionally seized duffel bag "would have

been discovered by lawful means." Jd. at 444."

The finding that "The apartment was cleaned out by

Knight's attorney and Knight's sister" was clearly erroneous

and unreasonable where Knight's attorney searched nothing

and cleaned out nothing, and Knight's sister removed only a

few items, consisting of a tv and some furniture. The

apartment was cleaned out by the building management, who

presumably would have no interest in picking out the diary

from the rest of the trash and reading Janniss Varner’s written

prayers to God. However, presumption was not needed, as

Ure CTE PPR ETT

»

Petition for Writ of Certiorari 21

the manager testified that they picked out children's clothes

for the shelter, and threw the rest in the dumpster.

If the police wished to conduct a more thorough review

of the contents of the writings than would be accomplished in

the future by the (hypothetical) review of Ms. Coleman, a

warrant would be required. Walter v. United States, 447 U.S.

649, 662 (1980). (Warrant required to view obscene films in

box turned over to authorities by private carrier on account of

suggestive drawings and explicit descriptions on film

containers).

Where there is no testimony from the purported

inevitable discoverer that she was looking for written

material, and would have read that written material, to say

that she would have done so is unwarranted speculation. The

other purported inevitable discoverer, the attorney, searched

nothing. The apartment management threw everything left

behind in the trash. The finding of inevitable discovery was

unconstitutional because based on speculation contrary to Nix

v. Williams, and because of the total lack of evidence to

support inevitable discovery.

QUESTION 5: WHETHER A TRIAL COURT RULING

THAT PETITIONER HAD STANDING TO CONTEST

THE SEARCH CAN BE OVERTURNED BY A

REVIEWING COURT WHERE THE PROSECUTION DID

NOT APPEAL.

22 Petition for Writ of Certiorari

QUESTION 6: WHETHER A DEFENDANT HAS

STANDING TO CONTEST A SEARCH OF THE

APARTMENT WHERE SHE WAS THE PARTY ON THE

LEASE, KEPT PERSONAL ITEMS THERE SUCH AS

THE DIARY AND HER BANK STATEMENTS, AND

WHERE THE LANDLORD TESTIFIED THAT SHE WAS

LEGALLY RESPONSIBLE FOR THE RENT.

QUESTION 7: WHETHER THE PETITIONER'S

TEMPORARY MOVE TO HER MOTHER'S RESIDENCE

AFTER AN INJURY DEPRIVES HER OF STANDING TO

COMPLAIN OF A SEARCH OF HER OWN

APARTMENT.

Certiorari should be granted to determine the question

of standing, for a person who paid the rent, phone, utilities,

and kept personal items and private writings on the premises.

A temporary stay at the Petitioner's mother's house for part

of the month does not destroy standing, and this court should

so rule. Otherwise, every time a person takes a vacation, or

visits a relative, that person's residence is fair game for a

warrantless police search.

A person may have more than one place of residence for

Fourth Amendment purposes, and may have reasonable

expectations of privacy in more than one residential location.

Minnesota v. Olson, 495 U.S. 91 (1990); Bumper v. North

Carolina, 391 U.S. 543 (1968); United States v. Wilson, 536

Petition for Writ of Certiorari 23

F.2d 883, 885 (9th Cir. 1976). "It cannot be said that 'one is

protected by the Fourth Amendment at only his principal

home." 5 W.R. LaFave, Search and Seizure § 11.3(a), p. 125

(3d Ed. 1996).

"With few exceptions, the question whether a

warrantless search of a home is reasonable and hence

constitutional must be answered no." Kyllo v. United States,

533 U.S. 27 (2001). Since "physical entry of the home is the

chief evil against which the wording of the Fourth

Amendment is directed[,]'... [i]t is... 'a "basic principle of

Fourth Amendment law" that searches and seizures inside a

home without a warrant are presumptively unreasonable."

Welsh v. Wisconsin, 466 U.S. 740, 748-49 (1984).

The lease for the apartment was in the name of Janniss

Varner and Alvin Knight. The lease expired March 31, 1996,

but had a provision to continue the tenancy on a month to ©

month basis thereafter. (EHT 2/ 12/99, 9). According to the

landlord, Petitioner Varner was responsible for the rent.

(EHT 3/9/99, 89-92). Although Petitioner did use the

Balmoral address (her mother's address) for certain mail (EHT

3/30/99, 18-20), much of that mail and other documents of

the Petitioner and clothing were in the Fenkell apartment that

was searched. (EHT 3/30/99, 25, 30)

Among documents found by police at the apartment

were Petitioner's credit union and bank statements from 1998,

documents belonging to Petitioner's mother, the

24 | Petition for Writ of Certiorari

papers regarding her own adoption by her mother, her

Rolodex, and a letter sent to Petitioner at Balmoral

postmarked July 10, 1998. (EHT 2/12/99, 21, 23, 26-31, 34,

39-41). The search was July 30, 1998.

In June 1998 Petitioner was hit by a baseball and sought

care from her mother. She therefore stayed at the apartment

only 5 days in July 1998. She continued to pay the rent,

phone and electric bills. She expected her personal property

to remain there, and remain private. (EHT 3/30/99, 25, 28,

31-35). .

As Judge Kerwin also noted: "it's importarit to note that

the bank statements that she kept there and all of the

important papers while containing an address on Balmoral

were kept there by her along with personal diaries, phone

books and the journals that are the primary item of interest Di

this lawsuit... . And, indeed the most recent bank statement

went through the month of June and obviously was brought

there." (EHT 4/29/99, 11, 13). He found she had standing.

Clearly, Petitioner had a reasonable expectation of

privacy in a residential apartment where she paid the rent and

utilities, and where she kept private possessions.

When Petitioner took the matter up on appeal, she and

her attorneys had no reason to believe that the matter of

standing could be relitigated. Petitioner submits that due

process of law under the Fourteenth Amendment requires

that a party (here, the prosecutor) seeking to overturn a

Petition for Writ of Certiorari | 25

judicial ruling (such as the instant trial court ruling on

standing) appeal that ruling, so that the affected party has

cause to address the "appeal" with her pleadings.

Due process requires this result, especially where state

law holds that where a ruling is not appealed by the aggrieved

party, the appellate court lacks the power to overturn that

ruling, Morris v. Metriyakool, 418 Mich. 423, 474 (1984);

Therrian v. General Laboratories, Inc, 372 Mich. 487, 490

(1964); IBEW Local #58 v. McNulty, 214 Mich. App. 437

(1995) ; Beaudrie v. Anchor Packing Co, 231 Mich. App.

242, fn 3 (1998); Dykstra v. Director, Dept of Natural

Resources, 198 Mich. App. 482, 492 (1993); Shipman v.

Fontaine Truck Equipment Co, 184 Mich. App. 706, 714

(1990); Lamson v. Martin, 182 Mich. App. 233, 237 (1990);

Bush v. Oscoda Area Schools, 109 Mich. App. 373, 383

(1981).

It denies due process of law for a state to routinely rule

that unappealed matters are not subject to reversal on appeal,

- and then abandon that routine procedure after sandbagging the

Petitioner.

QUESTION 8:- WHETHER, WHERE STATE LAW

ALLOWS A DEFENSE OF SELF-DEFENSE OR

PROVOCATION, THE STATE CAN PRECLUDE THOSE

CLAIMS, AND BAR "BATTERED SPOUSE"

TESTIMONY IN SUPPORT OF THOSE CLAIMS.

26 Petition for Writ of Certiorari

Prior to trial, counsel informed the trial court and the

prosecution that they intended to defend the case on a theory

of self-defense and/or provocation, supported and explained

by reference to what is known as the "battered woman

syndrome," or "battered spouse syndrome," and to offer

expert testimony regarding the nature and effect of that

syndrome. The judge denied this on the ground that he

believed it was a hired or "contract" shooting. (T I, 4-17).

We submit this was error, because under Michigan law, where

the charge is assault with intent to murder, it must be shown

that if the victim had died, the defendant would be guilty of

murder, People v. Lipps, 167 Mich. App. 99, 106 (1988),

therefore, the mental state of the defendant is of critical legal

significance.

"In Michigan, the killing of another person in self-

defense is justifiable homicide if the defendant honestly and

reasonably believes that his life is in imminent danger or that

there is a threat of serious bodily harm." People v. Heflin,

434 Mich. 482, 502 (1990). As this Court explained in

People v. Shelton, 64 Mich. App. 154, 156-157 (1975), a case

relied on by the Supreme Court in People v. Heflin, supra, for

its authoritative formulation of the principles of self-defense,

the matter is to be judged from the point of view of the

defendant, using the "honest belief" standard.

The nature of the threat to the defendant - as well as the

Petition for Writ of Certiorari 27

necessity of the response - is to be judged by a subjective

standard, from matters as they appeared to the defendant, as

this Court noted in People v. Green, 113 Mich. App. 699,

704 (1982), another case cited by the Heflin Court.

The subjective nature of the standards under which

Michigan law judges the matters of "imminent danger" and

"necessity" renders those questions uniquely matters of

fact.4 Questions of fact, of course, are for the jury to decide,

and not lightly to be taken from the jury's consideration.

Rather, if there is any evidence from which a juror may

conclude that the defendant was acting in self-defense (under

the prevailing subjective standards), a self-defense instruction

must be given, and "the sufficiency of this evidence .. . for

the jury to determine." E.g., People v. Hoskins, 403 Mich.

95, 97 (1978).

She proposed to offer testimony from Dr. Lenore

Walker, the psychologist who first identified the "battered

4 Even outside of the sphere of self-defense, Michigan

law consistently has always treated issues regarding whether

danger is "imminent" as questions of fact, for a jury's

determination. See., e.g., Glassbrook v _ Lansing

Wheelbarrow Co., 177 Mich 29, 43 (1913) (whether the

danger is so imminent no prudent person would undertake to

perform the service); Pierce v C.H. Bidwell Thresher Co., 158

Mich 356, 359 (1909) (whether structure was imminently

dangerous).

28 Petition for Writ of Certiorari

woman syndrome," in order to help the jury to understand

why, in the context of such a relationship, the defendant

"honestly and reasonably" believed that the threat to her

safety was imminent, and that she "honestly and reasonably"

believed that it was necessary to strike back against Alvin

Knight in precisely the way that the prosecutor claimed she

did - with fatal force, and through the agency of a third party.

Although the facts of this case are different from those

of the most typical self-defense cases, she proposed to prove

that she honestly believed, on November 27, 1995, that she

faced imminent danger of death or serious injury at the hands

of Alvin Knight, honestly believed that she was unable to

defend herself directly, and that she honestly believed that

the only way she could defend herself was through the aid of

a third person.

Objectively, it may be hard for some to understand how

a person can feel this way, or how such beliefs may be

reasonable, but the expert testimony regarding the operation

and effect of battered woman syndrome was offered to make

clear that, from Janfiss Varner's perspective as a battered

woman, these beliefs were in fact reasonable, and well within

the recognized ambit of the range of observed conduct of

battered women.

In People v. Pouncey, 437 Mich. 382 (1991), the Court

made clear that the element of provocation provides the

difference between murder and manslaughter.

Petition for Writ of Certiorari 29

If the jury believed that-she-had, indeed, been bound

and raped by Alvin Knight - and there was no evidence to the

contrary - there is no question that this would be a sufficient

provocation to induce a homicidal rage under the objective

standard enunciated by the Court in People v. Pouncey, in

that it surely "would cause the reasonable person to lose

control."

On the question of whether Janniss Varner was still

acting under the effect of the provocation (whether her blood

had cooled) at the time of the acts upon which the instant

charge was based (or of the assault), the question was clearly

one for the jury to decide.

The net effect of the trial court rulings was to deny the

defendant- appellant a most basic Constitutional right: the

right to present a defense. Crane v. Kentucky, 476 U.S. 683,

690 (1986). The proposed expert testimony regarding

Battered Spouse Syndrome was integral to the defendant's

defense, since it is only through an understanding of that

condition that the jury would be adequately prepared to

understand and evaluate the reasonableness and honesty of

defendant's belief that the danger to her was imminent, "and

that it was necessary to do what [she] did in order to save

[herself] from such apparent threatened danger." People v.

Shelton, supra, at 157 (quoting People v. Lennon, 71 Mich.

298, 301 (1888).

Given the great emphasis which Michigan tew places

30 Petition for Writ of Certiorari

upon the defendant's own state of mind, it is hardly

surprising that it is ordinarily held by the courts of this State

that "[wJhether or not the accused acted in self-defense is a

question of fact for the jury to determine." People v. Prather,

121 Mich. App. 324, 330 (1983). The trial court's rulings

foreclosing the presentation of that defense in the case at bar,

refusing to instruct the jury on it, and excluding the expert

testimony which was essential to the jury's understanding of

it, are simply inconsistent with the governing Michigan law,

and so denied Petitioner her Constitutionally assured right to

present a defense.

SION

Petitioner Janniss Varner respectfully submits that for

the reasons stated above, this Court should grant Certiorari,

and upon consideration reverse the judgment of the Michigan

courts. :

Respectfully submitted,

J S STERLING LAWRENCE (P33664)

Attorney for Petitioner Varner

717 Penobscot Building

Detroit, MI 48226

(313) 965-4189

Dated: June 9, 2003

Michigan Court of Appeals Opinion, 4/23/02 Al

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE UNPUBLISHED

OF MICHIGAN, April 23, 2002

Plaintiff-Appellee, No. 224865

Vv Wayne Circuit Court

JANNISS L. VARNER, Criminal Division

Defendant-Appellant. LC No. 98-011265

Before: Zahra, P.J., and Neff and Saad, JJ.

PER CURIAM.

Defendant appeals as of right from a jury tial

conviction of assault with intent to commit murder, MCL

750.83, for arranging the shooting of her boyfriend, Alvin

Knight. The trial court sentenced defendant to a term of

thirteen to twenty years’ imprisonment. We affirm.

Although Alvin Knight survived the charged shooting,

he was subsequently shot to death in the parking lot of his

apartment building. The police discovered defendant’s

responsibility for this crime through her journals, which the

police seized from a closet shelf in Knight’s apartment when

the police searched the apartment, without a warrant,

following Knight’s death. Defendant argues on appeal that

A2 Michigan Court of Appeals Opinion, 4/23/02

the trial court erred in denying her motion to suppress this

evidence. Although defendant, at one time, lived with Knight,

the evidence showed that she had moved to her adopted

mother’s house and had not lived at the apartment for at least

three weeks before the killing. Defendant has the burden of

proving that she had an expectation of privacy in the object

of the search and seizure and that her expectation is one that

society recognizes as reasonable. People v Powell, 235 Mich

App 557, 560; 599 NW2d 499 (1999). Defendant no longer

had valid keys to the apartment and none of her clothing or

personal belongings were at the apartment with the exception

of the disputed documents and journals. She had not lived in

the apartment for several weeks prior to Knight’s death, and

she never returned to the apartment after he was killed.

Therefore, the trial court properly denied defendant's motion

to suppress.

We also agree with the trial court that, in light of all

relevant facts, the journals would have inevitably been

discovered. The inevitable discovery exception permits

admission of tainted evidence when the prosecution can

establish by a preponderance of the evidence that the

information ultimately or inevitably would have been revealed

in the absence of police misconduct. People v Stevens, (After

Remand), 460 Mich 626, 637; 597 NW2d 53 (1999). Here,

prior to his murder, Knight told his attorney, who went with

Knight’s family to clean out the apartment, that he was afraid

for his life and afraid of the Varners, Knight told his attorney

Michigan Court of Appeals Opinion, 4/23/02 A3

that, if anything happened to him, he wanted his sister to

have custody of his son. Defendant acknowledged that she

never returned to the apartment to retrieve any belongings.

The apartment was cleaned out by Knight’s attorney and

Knight’s sister. As the trial court noted, had the police not

searched Knight’s apartment immediately after his murder,

defendant’s journals “absolutely without question” would

have been discovered and turned over to the police. 1

Accordingly, for the reasons stated, the trial court did

not err in denying defendant’s motion to suppress

defendant’s journals.

Defendant also argues that the trial court erred in

denying her motion to present expert testimony on battered

woman syndrome, and in refusing to instruct on self-defense

and mitigating circumstances. Expert testimony regarding the

battered woman syndrome is admissible only when it is

relevant and helpful to the jury in evaluating a complainant’s

credibility and the expert witness is properly qualified.

People v Christel, 449 Mich 578, 579-580; 537 NW2d 194

(1995). Self-defense in Michigan requires a finding that the

defendant’s actions were justified because she honestly and

reasonably believed that her life was in imminent danger or

that there is a threat of serious bodily harm. People v Heflin,

434 Mich 482, 502-503; 456 NW2d 10 (1990). A person

may use deadly force in self-defense to repel a criminal sexual

assault when confronted with force that the person

reasonably believes could result in imminent death or serious

Ad Michigan Court of Appeals Opinion, 4/23/02

bodily harm, but self-defense is not available to repel a

potential force. Id. We agree that the rationale behind self-

defense or mitigating circumstances does not apply to a gun-

for-hire situation such as occurred here. The trial court did

not err in finding that a self-defense instruction was not

available in a hired-gun situation, even if defendant presented

credible evidence that she was a victim of the battered woman

syndrome. See People v Yaklich, 833 P2d 758 (Col App,

1992).

Affirmed.

/s/ Brian K. Zahra

/s/ Janet T. Neff

/s/ Henry William Saad

1 We also reject defendant’s suggestion that the body of law

regarding prayer and penitential privilege, or the statutes

regarding privileged communications with clergy, MCL

600.2156 and MCL 767.5a, apply to private writings.

Michigan Supreme Court Order, 4/8/03 A5

Order Michigan Supreme Court

Entered: April 8, 2003 Lansing. Michigan

121786 Maura D. Corrigan

Chief Justice

Michael F. Cavanagh

PEOPLE OF THE Elizabeth A. Weaver

STATE OF MICHIGAN, Marilyn Kelly

Plaintiff-Appellee, Clifford W. Taylor

Robert P. Young, Jr.

Vv Stephen J. Markman

Justices

JANNISS VARNER, SC: 121786

COA: 224865

Defendant-Appellant. | Wayne CC: 98-011265

/

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.

Cavanagh and Kelly, JJ., would grant leave to appeal.

[SEAL] |

I, CORBIN R. DAVIS, Clerk of the Michigan Supreme

Court, certify that the foregoing is a true and complete copy

of the order entered at the direction of Court.

April 8, 2003 /s/ Corbin R. Davis

Clerk