Petition for Writ of Certiorari — Goza v. Michigan (No. 07-1378)

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OFFIGE OF THECLERK

UNITED STATES

SUPREME COURT

No.

ROBERT GOZA,

Petitioner

STATE OF MICHIGAN

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE WAYNE COUNTY, MICHIGAN

CIRCUIT COURT

JAMES STERLING LAWRENCE (P33664)

Attorney for Petitioner Goza

828 W. Eleven Mile Road

Royal Oak, MI 48067

(248) 399-6930

QUESTIONS PRESENTED

Petitioner Robert Goza was convicted of second

degree murder and armed robbery at a bench trial,

at which we submit serious constitutional error

occurred. He was sentenced to 25 to 60 years in

prison. Relief was denied in the state courts. The

Circuit Court found there was good cause for the

delay in filing the motion, and did not find any

procedural defaults, but denied the motion on the

merits.

The questions presented are:

QUESTION 1: WHETHER PETITIONER WAS

UNCONSTITUTIONALLY PREJUDICED BY THE

INTRODUCTION INTO EVIDENCE OF

CODEFENDANT GREEN'S CONFESSION TO

POLICE, WHICH A FEDERAL COURT LATER

FOUND TO HAVE BEEN AN INVOLUNTARY

STATEMENT.

QUESTION 2: WHETHER THERE WAS

INSUFFICIENT EVIDENCE TO SUPPORT THE

CONVICTIONS.

QUESTION 3: WHETHER PETITIONER'S RIGHT

TO REMAIN SILENT WAS VIOLATED.

T NTENT

QUESTIONS PRESENTED

TABLE OF CONTENTS

INDEX OF AUTHORITIES

OPINIONS BELOW

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 III

CONCLUSION

APPENDIX

Michigan Court of Appeals opinion 11-2-94

Michigan Supreme Court order, 6-30-95

Trial Court Order Denying Relief, 9-19-06

District Court ruling, Green v Stegall, 12-10-98

District Court Order, 6-28-96

District Court Order, 1-28-96

Michigan Court of Appeals order, 7-14-04

Michigan Supreme Court order, 11-29-07

Ge.

oeonrh PB WNW D CE:

INDEX OF AUTHORITIES

Cases

Beecher v. Alabama, 389 U.S. 35 (1967) 11

Blackburn v. Alabama, 361 U.S. 199 (1960) 10

Boddie v. Connecticut, 401 U.S. 371 (1971) 13

Brecht v. Abrahamson, 507 U.S. 609 (1993) 15

Brown v. Mississippi, 297 U.S. 278 (1936) 11

Bruton v. United States, 391 U.S. 123 (1968) 13

Champaign-Urbana News v. J.L. Cummins, 632 F.2d

680 (7th Cir. 1980) 28

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S.

579 (1993) 11

Green v. Stegall, E.D. Mich. Case No. 95-737852, 4,

bis 10, 27

In Re Winship, 397 U.S. 358; 90 S.Ct. 1068; 25

L.Ed.2d 363 (1970) 16, 22, 23

Jackson v. Denno, 378 U.S. 368 (1964) 10

Jackson v. Virginia, 443 U.S. 307; 99 S.Ct. 2781; 61

L.Ed.2d 560 (1979) 16, 22

James v. United States, 476 F.2d 936 (8th Cir. 1973)

bee 23

Jerkins v. United States, 530 F.2d 1203 (5th Cir.

1975) 23

Lee v. Illinois, 476 U.S. 530 (1986) 13, 15

Lego v. Twomey, 404 U.S. 477 (1972) 10, 15

McGee v. United States, 496 F.2d 243 (2d Cir. 1972)

Michigan v. Mosley, 423 U.S. 96 (1975) 26

Miller v. Fenton, 474 U.S. 104 (1985) 10, 15

Mincey v. Arizona, 437 U.S. 385 (1978) 11

Miranda v. Arizona, 384 U.S. 436 (1966) 25, 26

Mullane v. Central Hanover Trust Co, 339 U.S. 306

(1950) 13

People v. Aaron, 409 Mich. 672 (1980) 18, 19

People v. Barbara, 400 Mich. 352 (1977) 27

People v. Butler, 193 Mich. App. 63 (1992) 14

People,y. Flowers, 191 Mich. App. 169 (1991) 19

People v. Gordon, 60 Mich. App. 412 (1975) 17

People v. Hart, 161 Mich. App. 630 (1987) 17

People v. Henry, 202 Mich. 450 (1918) 21, 24

People v. Herndon, 246 Mich. App. 371 (2001) 18

People v. Hillhouse, 80 Mich. 580 (1890) 21, 24

_ People v. Holcomb, 395 Mich. 326 (1975) 21, 24

People v. Kelly, 423 Mich. 261 (1985) 17

People v. Mechura, 205 Mich. App. 481 (1994) 27

People v. Shaunding, 268 Mich. 218 (1934) 21, 24

People v. Turner, 125 Mich. App. 8 (1983) 19

People v. Usher, 121 Mich. App. 345 (1982) 17

People v. Woods, 416 Mich. 581 (1982) 17

People v. Wright “cn remand), 99 Mich. App. 801

(1980) 17

Speigner v. Jago, 923 F.2d 427 (6th Cir. 1991) 20

Stallings v. Bobby, 464 F.3d 576 (6th Cir. 2006) 14

Townsend v. Burke, 334 U.S. 736; 68 S.Ct. 1252; 92

L Ed 1690 (1948) 23

United States v. Cirami, 563 F.2d 26 (2d Cir. 1977)

as . 28

United States v. Dunlap, 28 F.3d 823 (8th Cir. 1994)

pe 20

United States v. Leos-Quijada, 107 F.3d 786 (10th

Cir. 1997) 20

United States v. Moore, 540 F.2d 1088 (D.C. Cir.

1976) 23

United States v. Robinson, 690 F.2d 869 (11th Cir.

1982) 28

United States v. Stewart, 145 F.3d 273 (5th Cir.

1998) 19

Watkins v. Sowders, 449 U.S. 341 (1981) 10

Constitutional Provisions

U.S. Const., Amend. V 3, 25, 26

U.S. Const., Amend. XIV 3, 16

Statutes

28 U.S.C. §1257 2

4 a

et)

No.

UNITED STATES

SUPREME COURT

ROBERT GOZA,

Petitioner

ou.

STATE OF MICHIGAN

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE WAYNE COUNTY, MICHIGAN

CIRCUIT COURT |

ROBERT GOZA, Petitioner, by and through his

attorney, James S. Lawrence, moves this Court to

issue a Writ of Certiorari to review the ruling of the

Wayne County Circuit Court of Sixth Circuit Court

of Appeals of September 19, 2006, denying a Motion

for Relief from Judgment, with the Michigan Court

Petition for Writ of Certiorari 2

of Appeals denying leave to appeal July 26, 2007,

and the Michigan Supreme Court denying leave to

appeal November 29, 2007.

OPINIONS BELOW

The Appendix includes Michigan Supreme

Court order, November 29, 2007; Michigan Court of

Appeals order, July 14, 2007; Wayne Circuit Court

order, September 19, 2006; United States District

Court Memorandum and Order in case of

codefendant, Green v. Stegall, E.D. Mich. Case No.

95-73785 , December 10, 1998; Michigan Supreme

Court order, June 30, 1995; Michigan Court of

Appeals opinion, November 2, 1994.

STATEMENT OF JURISDICTION.

This case began as a criminal prosecution in

Wayne County, Michigan, Circuit Court. The original

judgment was entered November 21, 1991. The

ruling of the Circuit Court denying a Motion for

Relief from Judgment was entered September 19,

2006. The order of the Michigan Court of Appeals

was issued July 14, 2007. The final judgment of the

Michigan Supreme Court was issued November 29,

2007. This Court has jurisdiction under 28 U.S.C.

§1257.

CONSTITUTIONAL PROVISIONS INVOLVED

Petition for Writ of Certiorari

The Fifth Amendment to the United States

Constitution provides:

"No person shall be held to answer

for a capital, or otherwise infamous

crime, unless on a_ presentment or

indictment of a Grand Jury, except in

cases arising in the land or naval forces,

or in the Militia, when in actual service in

time of War or public danger; nor shall

any person be subject for the same offence

to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal

case to be a witness against himself, nor

be deprived of life, liberty, or property,

without due process of law; nor shall

private property be taken for public use,

without just compensation."

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

Petition for Writ of Certiorari 4

person within its jurisdiction the equal

cad

4 Beverly Jasper. On November 21, 1991, she imposed :

q sentences of 25 to 60 years on each count. Case No. a

: 91-5995. The Michigan Court of Appeals affirmed on ;

November 2, 1994. Case No. 151735. The Michigan

Supreme Court denied leave to appeal June 30, 1995.

Case No. 101560. Ks

Petitioner was jointly tried with codefendants

: protection of the laws." ;

: ST T OF THE CASE 3

4 Statement of Proceedings e

: Petitioner Robert Goza was convicted in Wayne 4

; County Circuit Court of second degree murder and 4

4 armed robbery in a bench trial before the Hon.

Anthony Green, George Dotson (tried in bench trials)

and Erick Webster (tried in a jury trial).

Petitioner's codefendant Anthony Green

received Habeas Corpus relief from the United

States District Court, Eastern District of Michigan,

on December 10, 1998. Green v. Stegall, E.D. Mich.

Case No. 95-73785. The state's appeal to the Sixth

Circuit was dismissed April 12, 1999. Case No. 99-

| 1062. The ruling found that out of court statements

of Anthony Green, admitted at trial, were

| involuntary.

Petitioner filed a Motion for Relief from

Judgment in the Wayne County Circuit Court, which

chee

Petition for Writ of Certiorari 5

was denied on the merits by Judge Timothy Kenny

on September 19, 2006. The Michigan Court of

Appeals denied leave to appeal July 14, 1997. Case

No. 276870. The Michigan Supreme Court denied

leave to appeal November 29, 2007. Case No.

134727.

_ Stat S

Dr. Sawait Kanleun, Deputy Chief Medical

Examiner for Wayne County testified that the

deceased Nicole Cash died from multiple gunshot

wounds. (T I, 139). Donna Cash identified the body

of the deceased to be Nicole Cash (T I, 150-151).

Damen Youngblood testified that he and Nicole

Cash (the deceased) were alone in the house on

Trinity Street on the night in question (T I, 155).

Ms. Cash opened the front door, and that co-

defendant Webster was standing on the porch with

another individual. (T I, 159-160). The two

individuals forced their way into the house. (T I,

163-169). He testified that he observed co-defendant

Webster shoot Ms. Cash in the head. (T I, 17 1-172).

Although the witness testified that he recognized co-

defendant Webster, he was unable to identify the

other individual. (T I, 160).

Sergeant Deborah Monte testified that she took

two statements from the Defendant (T II, 22-26; 37-

38). Defense counsel objected to both statements. (T

Petition for Writ of Certiorari 6

II, 26-28; 38). The Court overruled the objections

and the statements were read into the record. (T II,

29-37; 38-41). Petitioner Goza's own statement to

police was that he was outside and heard shots fired

inside. (T I, 31-32). He does not confess to wanting a

killing or participating in a killing.

She also gave testimony recounting Anthony

Green's confession. (T II, 13-21). Anthony Green's

statement mentions the activities of Petitioner

several times.

Eric Youngblood testified that he lived at the

incident location with the deceased, Nicole Cash (T

II, 103-104). He testified that he had left the house

on the day in question at 4:00 p.m, and did not

returned until 5:30 a.m. the following day (T II, 47).

He further testified that his bedroom had been

ransacked, and that several items were missing

including a safe with cash and weapons. (T II, 50-

54).

Loamoadre Vann testified that he, Petitioner

Goza, and co-defendant Dotson went to a motel (T II,

100). He also testified that he questioned Defendant

and co-defendant Dotson about the incident, and that

the Defendant said “yes, but you don't know

anything.” Petitioner Goza did not express any

knowledge of the incident. (T II, 103-104). Mr.

* Vann testified that most of his statement to the

police was the truth (T II, 105). He further testified

that he observed codefendant Dotson with large

Petition for Writ of Certiorari 7

amounts of money at the motel, and that Dotson said

the money came from the safe (T II, 106-107). He

also testified that the Defendant was counting the

money (T II,110).

On cross-exam, however, Mr. Vann admitted

that he committed perjury at the preliminary exam.

(T II, 114). He further admitted that he lied to the

police when he gave his statement (T II, 115-116,

122). He then testified that the deceased's boyfriend

and prosecution witness Eric Youngblood abducted

him prior to trial and threatened him into changing

his testimony from his preliminary exar-. testimony.

(T II, 119). He also indicated that ‘nis in-court

testimony was based on his statement to the police

(T II, 122-123). Finally, Mr. Vann testified that

Petitioner Goza neither stated nor implied that he

(Goza) participated in the robbery (T II, 118).

The next witness to testify was LaTonya Goza,

cousin of Petitioner. Ms. Goza testified that around

6:00-8:00 P.M. on May 22, 1991, all the codefendants

were in the basement of a house on Freeland with

Ms. Goza (T II, 139). She stated that everyone was

drinking, music was playing, and some individuals

were playing video games (T II, 140-141). She

testified that she began to talk on the telephone and

had to move to the stairs because the music was too

loud (T II, 142-143). She testified that she overheard

a codefendant say he "wanted his (expletive) money."

(T II, 145). She testified that she also overheard a

Petition for Writ of Certiorari 8

codefendant say he knew where the safe was and

that he would knock with two in the front and two in

the back (T II, 146-148). She also stated that no one

responded to these statements (T II, 147, 148). She

then testified that all four co-defendants left at the

same time (T II, 149). The witness then testified that

codefendant Dotson admitted to killing the decedent:

but she couldn't remember if he talked about the

actions of anybody else (T II, 161-163).

The final witness was Officer Neil Gracer.

Officer Gracer testified that he and his partner

responded to the incident location and found the

deceased lying by the front door (T II, 194-196). He

further testified that he got a description of the

perpetrators from Damen Youngblood and he noted

that the bedroom was in disarray (T II, 199-202).

Closing arguments for all three bench trial

defendants were heard on October 18, 1991. The

judge then issued a verdict finding all three guilty of

second degree murder and armed robbery. (T IV, 73-

79). On November 1991, the Court imposed a

sentence term of 25 to 60 years on both counts (ST,

13). Defendant appealed his conviction to the Court

of Appeals. He raised three issues.

THE COURT IMPROPERLY

ALLOWED INADMISSIBLE

STATEMENTS TO COME INTO

EVIDENCE AGAINST THE

DEFENDANT AS ADOPTIVE

Petition for Writ of Certiorari

ADMISSIONS

THE DEFENDANT WAS

ERRONEOUSLY SCORED 50 POINTS

FOR OV 3 IN THE SENTENCING

INFORMATION REPORT

THE CORPUS DELICTI OF THE

CRIME WAS NOT PROVEN PRIOR TO

THE ADMISSION OF THE

DEFENDANT'S CONFESSION

Petitioner later filed a Motion for Relief from

Judgment raising the instant issues and others.

REASONS FOR GRANTING THE WRIT

QUESTION 1: WHETHER PETITIONER WAS

UNCONSTITUTIONALLY PREJUDICED BY THE

INTRODUCTION INTO EVIDENCE OF

CODEFENDANT GREEN'S CONFESSION TO

POLICE, WHICH A FEDERAL COURT LATER

FOUND TO HAVE BEEN AN INVOLUNTARY

STATEMENT.

It is our position that since the introduction of

an involuntary statement against the speaker is

unconstitutional, it is also unconstitutional to

introduce that same involuntary statement against a

codefendant. Where prejudicial, this should result in

the grant of a new trial.

Petitioner's codefendant Anthony Green

received Habeas Corpus relief from the United

Petition for Writ of Certiorari 10

States District Court, Eastern District of Michigan,

on December 10, 1998. Case No. 95-73785. The

state's appeal to the Sixth Circuit was dismissed

April 12, 1999. Case No. 99-1062. The ruling found

that the out of court statements of Anthony Green,

admitted at trial, were involuntary, and granted

Habeas Corpus relief. Some of the reasons for the

finding of involuntariness were the length of

interrogation, and use of deliberately tightening

handcuffs and other physical pressure to encourage

Mr. Green to talk.

An involuntary statement is not to be used in

evidence. Part of the reasoning behind the exclusion

of involuntary statements is that they are likely to be

unreliable. Lego v. Twomey, 404 U.S. 477 (1972);

Miller v. Fenton, 474 U.S. 104 (1985); Jackson v.

Denno, 378 U.S. 368 (1964); Blackburn v. Alabama,

361 U.S. 199 (1960).

The protection against unreliable evidence in

criminal and non-criminal cases has been a

particular concern of the Supreme Court. See, for

example, Watkins v. Sowders, 449 U.S. 341 (1981):

"It is the reliability of identification evidence that

primarily determines its admissibility.". See also

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S.

579 (1993) {court must assess reliability of proffered

scientific technique before allowing evidence derived

from it to be presented to jury].

When a person is put under physical stress as

Petition for Writ of Certiorari 11

part of an interrogation, most people, sooner or later,

are going to give in to saying what the people doing

this to them want them to say. See Mincey v.

Arizona, 437 U.S. 385 (1978) [Petitioner "“at the

complete mercy” of Detective Hust, unable to escape

or resist the thrust of Hust's interrogation"; held

statements could not even be used for impeachment].

See also Beecher v. Alabama, 389 U.S. 35 (1967);

Brown v. Mississippi, 297 U.S. 278 (1936).

Codefendant Anthony Green's confession, held

to have been unconstitutionally obtained, was read

into evidence. (T II, 13-21). It mentions the

activities of "Rob" several times. } It was discussed

by the prosecutor in closing argument.

In this case, three defendants were tried by

bench trial, and one by jury trial. The bench trial

arguments were one after another, and the judge

then entered verdicts in all the bench trial cases.

We submit that the finding of the state court

that the trial judge sitting as trier of fact would be

able to "compartmentalize" the evidence as to each

defendant was unreasonable.

In: support of this, we point to the actual

findings of fact of the trial judge, (T III, 73-79) where

1 Several potential legal issues are presented by this scenario.

Somes lost in the first appeal and are not renewed here, but

certainly would be renewed if it were allowed. Here, we raise

only the issues raised in the Motion for Relief from Judgment,

which mainly arise from the 1998 United States District Court

ruling in the case of codefendant Anthony Green.

Petition for Writ of Certiorari 12

she discusses the evidence against the 3 bench trial

defendants as a whole. She finds all three of them

guilty all in the same sentence. Certainly the format

used by the judge, hearing argument on the three

cases in sequence, then deciding them all together,

was not designed to compartmentalize anything.

Judge Kenny, in denying the motion, used the

presumption that Judge Jasper would be "presumed

to follow the law." However, Judge Jasper

repeatedly displayed a failure to follow proper

procedures. She ruled that no defendant could

complain of evidence introduced purportedly against

another defendant. She ruled that neither Anthony

Green.nor anyone else could complain about the

admissibility of the statement because Green

disagreed with the officer over what was said. She

refused even to determine if the Green statement

was involuntary. (T I, 134-135; T 8-31-91, 27-28).

The United States District Court in Green's case

rightfully castigated that type of ruling.

If the trier of fact can hear Green's out of court

statement talking about Goza, and Goza is not

allowed even to speak an objection, that is a clear

due process violation. Any evidence heard by the

trier of fact in a case is reasonably likely to affect the

outcome of that defendant's case, particularly if it is

relevant (Green's statement was clearly relevant)

and particularly if it expressly discusses the alleged

role of the other defendant (Green's statement

Petition for Writ of Certiorari 13

mentions Petitioner Goza several times). Judge

Jasper's policy barring objection by defendants

affected by the testimony is a monument to violation

of due process of law, because it takes away the most

essential element of due process, the right to be

heard. Mullane v. Central Hanover Trust Co, 339

U.S. 306 (1950); Boddie v. Connecticut, 401 U.S. 371

(1971).

The standards used by the Michigan courts for

determining prejudicial nature of errors in bench

trials contributed substantially to this incorrect

ruling. The rule of Bruton v. United States, 391 U.S.

123 (1968) is instructive. The United States

Supreme Court applies this rule to bench trials.

They find that a codefendant's statement implicating

the accused is reasonably likely to affect the judge as

trier of fact in a bench trial. Lee v. Illinois, 476 U.S.

530 (1986). Yet, Michigan courts find that the

Bruton rule does not even apply to bench trials,

because the judge can be _ trusted’ to

compartmentalize the evidence. People v. Butler,

193 Mich. App. 63 (1992). We submit this type of

analysis is inherently in opposition to Lee v. Illinois.

The Sixth Circuit case of Stallings v. Bobby, 464

F.3d 576 (6th Cir. 2006) is also instructive. In that

case, the Sixth Circuit rejected the state's claim that

simply because it was a bench trial, the trial judge

would know to, would decide to, and would be

effectively able to disregard evidence that he would

Petition for Writ of Certiorari 14

hear.

In duterctinine prejudicial nature of an error, it

is useful to look at the other evidence in a case; if

overwhelming, a constitutional error of this nature

could be harmless. Stallings v. Bobby, supra. In this

case, there was testimony that Petitioner Goza was

present while Erick Webster and George Dotson

discussed money owed by Mr. Youngblood and how

they might get it back. He then left at the same time

as the others. (T II, 139-149). Significantly, no

witness testified to Petitioner Goza being present at

the scene of the killing, agreeing to a killing, or

committing a killing. In fact, Damen Youngblood

testified that he saw Erick Webster commit the

killing, and Petitioner Goza was not in sight. (T I,

171-172). Petitioner Goza's own statement to police

was that he was outside and heard shots fired inside.

(T I, 31-32). He does not confess to wanting a killing

or participating in a killing. The killing was an

unexpected event.

We therefore submit that the statement by Mr.

Green was reasonably likely to have affected the

verdict, making it prejudicial. Brecht _ v.

Abrahamson, 507 U.S. 609 (1993).

We submit this Court should follow its ruling in

Lee v. Illinois, and refuse to uphold the state court

ruling that the existence of a bench trial means that

codefendant's statements implicating the defendant

are immune from review because judges are

Petition for Writ of Certiorari 15

presumed to not be affected by evidence that

mentions the defendant's name. We submit this

Court should follow its rulings in Lego v. Twomey

and Miller v. Fenton, and find that the use of Green's

involuntary statement naming Goza requires that

the case against Goza be remanded for a new trial

without such evidence.

We submit that the nature of the issues of

reliability and harmfulness of error in a bench trial,

which in the past have been important to Supreme

Court jurisprudence, continue to be important to that

jurisprudence, and that the instant case is well

suited for examination of such issues.

QUESTION 2: WHETHER THERE WAS

INSUFFICIENT EVIDENCE TO SUPPORT THE

CONVICTIONS.

Due process requires that no criminal conviction

be sustained unless each fact the prosecutor is

required to prove for conviction is supported by proof

beyond a reasonable doubt. In Re Winship, 397 U.S.

358; 90 S.Ct. 1068; 25 L.Ed.2d 363 (1970); U.S.

Const., Amend. XIV. Sufficiency of evidence is

measured by the standards of Jackson v. Virginia,

443 U.S. 307; 99 S.Ct. 2781; 61 L.Ed.2d 560 (1979),

which states:

"(Thhe Fourteenth Amendment

protects a defendant in a criminal case

Petition for Writ of Certiorari 16

against conviction except upon proof

beyond a reasonable doubt of every fact

necessary to constitute the crime with

which he is charged."

The Court in Jackson discussed the importance

of the rule established in Winship:

"The standard of proof beyond a

reasonable doubt, said the Court, "plays a

vital role in the American scheme of

criminal procedure," because it operates to

give "concrete substance" to the

presumption of innocence to ensure against

unjust convictions, and to reduce the risk of

factual error in a criminal proceeding."

Under Michigan law, to convict of second degree

murder, it must be shown that the defendant had an

intent to kill or do great bodily harm, or intentionally

created a very high risk of death with knowledge of

the probable consequences, People v. Woods, 416

Mich. 581 (1982). To convict as an aider and abetter,

the defendant must personally possess the intent

necessary to convict for the crime. People v. Usher,

121 Mich. App. 345, 350 (1982); People v. Hart, 161

Mich. App. 630 (1987); People v. Wright (on remand),

99 Mich. App. 801, 820 (1980); People v. Gordon, 60

Mich. App. 412, 418 (1975); People v. Kelly, 423

Mich. 261, 278 (1985).

There clearly was no evidence that Petitioner

Petition for Writ of Certiorari 17

Goza personally committed the killing. No witness

testified to Petitioner Goza being present at the

scene of the killing, agreeing to a_ killing, or

committing a killing. In fact, Damen Youngblood

testified that he saw Erick Webster commit the

killing by shooting, and Petitioner Goza was not in

sight. (T I, 171-172).

_ There was no physical evidence tying Petitioner

Goza to the killing, no fingerprints, blood, hair, fiber,

gunshot residue, etc.

There clearly was no evidence that Petitioner

Goza discussed a killing, or was present when others

discussed a killing. The main basis to convict him of

anything is the testimony of his cousin, LaTonya

Goza, that Petitioner Robert Goza was present in a

basement when codefendants stated that they

wanted their money back from Eric Youngblood and

that he had a safe that probably had money in it. (T

II, 139-149). Significantly, there was no discussion

of killing at all.

Petitioner's own statement to police said that he

was outside the house when he heard shots. He did

not confess to wanting a killing or participating in a

killing. The killing was an unexpected event. (T I,

31-32).

In People v. Aaron, 409 Mich. 672 (1980), the

Michigan Supreme Court held that intent to

participate in the robbery is not sufficient intent to

make a person guilty of murder. They stated:

Petition for Writ of Certiorari

"In situations involving the vicarious

liability of co-felons, the individual liability

of each felon must be shown. It is

fundamentally unfair and in violation of

basic principles of individual criminal

culpability to hold one felon liable for the

unforeseen and unagreed-to results of

another felon."

"The Michigan Supreme Court has indicated

that the crime of murder, no matter its type, requires

proof of intent." People v. Herndon, 246 Mich. App.

371 (2001), citing to People v. Aaron, 409 Mich. 672

(1980).

At the trial, there was zero evidence that any

killings had been discussed. There was zero evidence

that Petitioner Goza knew of, or approved, a killing.

Even if there is an armed robbery conspiracy, if

homicide is not within the main purpose of the

conspiracy, robbery participants are not criminally

hable for the homicide. People v. Flowers, 191 Mich.

App. 169 (1991). Mere presence is not enough to

convict. People v. Turner, 125 Mich. App. 8 (1983).

In this case, even the mere presence is attenuated, in

that the killing took place inside the house and

Petitioner Goza was outside the house.

There was no evidence that the shooting of

Nicole Cash by Erick Webster was part of any plan to

which Petitioner agreed and took part in.

Even if Petitioner Goza was present outside the

Petition for Writ of Certiorari 19

house at the time of the shooting, there was nothing

in the evidence to suggest that the killing in the

house by Erick Webster was anything other than

“the unforeseen and unagreed-to results of another

’ People vy. Aaron, supra, as to Mr. Goza.

Certainly, there was nothing to prove it beyond a

felon,’

reasonable doubt.

See United States v. Stewart, 145 F.3d 273 (5th

Cir. 1998): "A verdict may not rest on mere

suspicion, speculation or conjecture, or on an overly

attenuated piling of inference on inference." "The

evidence supporting conviction must be substantial

and must do more than raise a mere suspicion of the

defendant's guilt." United States v. Leos-Quijada,

107 F.3d 786, 794 (10th Cir. 1997).

It is certainly of significance that in the findings

of fact by the trial judge, Judge Jasper (T III, 73-79),

there is not a single finding that links Petitioner

Goza to the killing, and no mention of any evidence

that supports that he was involved in, or knew there

was going to be, a killing. A finding of guilt must be

based upon evidence; not upon speculation. Speigner

v. Jago, 923 F.2d 427 (6th Cir. 1991); United States

v. Dunlap, 28 F.3d 823, 827 (8th Cir. 1994).

In the findings of the successor judge, Judge

Kenny, denying the motion, the judge found that the

“circumstantial evidence" showed that Petitioner

Goza participated in an “armed, non-consensual

entry," but does not explain how being outside

Petition for Writ of Certiorari 20

constitutes participation in an entry, and improperly

applies a presumption that if someone is armed, that

means that non-armed people have an intent to kill.

Judge Kenny simply did not address the

enormous gap between knowing that someone has a

gun, and knowing that the gun-wielder intends to

kill. The evidence to convict of murder was

insufficient, the analysis used by Judge Kenny was

flawed, and the analysis used by Judge Jasper was

virtually nonexistent.

We submit that because there was no evidence

linking Petitioner to the killing, or to pre-existing

knowledge there would be a killing, there was not

sufficient evidence to convict of murder.

The same is true, for different reasons, as to

robbery. The discussion in the basement, the key

evidence against Petitioner, involved codefendants

Webster and Dotson stating that they only wished to

retrieve money that was theirs. (T II, 139-149).

Under Michigan law, a person who retrieves

what is theirs, even if he acts forcefully, has not

committed robbery or larceny of any sort. People v.

Hillhouse, 80 Mich. 580 (1890); People v. Henry, 202

Mich. 450, 455 (1918); People v. Shaunding, 268

Mich. 218, 219 (1934); People v. Holcomb, 395 Mich.

326 (1975). As the Court held in Henry, supra:

“If the defendant in good faith believed

that the money which he demanded was

Petition for Writ of Certiorari

his money, and that he was entitled to its

possession, he could not be guilty of either

robbery or larceny in taking it, because

there would be no felonious intent”

The evidence showed that Petitioner learned of

a plan to retrieve the codefendant's money from the

wrongful possessor of that money. He was never

informed of any robbery, and therefore any

participation did not constitute robbery.

In determining the sufficiency of evidence, the

elements of the crime are established by state law,

but whether the evidence is sufficient is a question of

federal law.

In the case of In Re Winship, 397 U.S. 358, 90

S.Ct. 1068, 25 L.Ed.2d 368 (1970), the United States

Supreme Court said:

"It is critical that the moral force of

the criminal law not be diluted by a

standard of proof that leaves people in

doubt whether innocent men are being

condemned. It is also important in our free

society that every individual going about

his ordinary affairs have confidence that

his government cannot adjudge him guilty

of a criminal offense without convincing a

proper factfinder of his guilt with utmost

certainty."

The Court in Jackson v. Virginia discussed the

fact that triers of fact on occasion will convict a

Petition for Writ of Certiorari 22

defendant even if a rational trier of fact could not

properly find proof beyond a reasonable doubt, and

that in such a case it is the duty of the reviewing

court to grant relief:

"Yet a properly instructed jury may

occasionally convict even when it can be

said that no rational trier of fact could find

guilt beyond a reasonable doubt, and the

same may be said of a trial judge sitting as

a jury. In a federal tral, such an

occurrence has traditionally been deemed

to require reversal of the conviction. [Cites

omitted]. Under Winship, which

established proof beyond a_ reasonable

doubt as an essential of Fourteenth

Amendment due process, it follows that

when such a conviction occurs in a state

trial, it cannot constitutionally stand."

The question of when participation in one crime

makes a defendant liable for all crimes committed is

certainly a question of major significance to the

jurisprudence of the Supreme Court. The question of

when intent to retrieve property from a wrongdoer

constitutes robbery is perhaps of lesser importance,

but still important enough to justify a grant of

certiorari.

This Court should reverse the convictions for

insufficient evidence. In the event that only one of

the convictions is reversed for insufficient evidence,

Petitioner should be resentenced on the remaining

Petition for Writ of Certiorari 23

count, since the sentence on the count of conviction

was affected by incorrect information of Petitioner

being guilty of both counts. Sentencing based on

inaccurate information denies due _ process.

Townsend v. Burke, 334 U.S. 736; 68 S.Ct. 1252; 92

L Ed 1690 (1948); United States v. Moore, 540 F.2d

1088 (D.C. Cir. 1976); McGee v. United States, 496

F.2d 243 (2d Cir. 1972); Jerkins v. United States, 530

F.2d 1203 (5th Cir. 1975); James v. United States,

476 F.2d 936 (8th Cir. 1973).

QUESTION 3: WHETHER PETITIONER'S RIGHT

TO REMAIN SILENT WAS VIOLATED.

Petitioner Goza testified at a pretrial hearing

that when questioned by Investigator Monte, he

declined to answer any questions. However, she

continued with him for hours, often leaving him

alone and returning to resume questioning, and

made promises of benefits to him if he answered,

until he finally gave in and made a statement. (T 8-

31-91, 34-37).

Petitioner's statement (T II, 139-149), while not

a full confession, contains admissions that he was

outside the house where the killing took place, and

that he knew of an intent to take property from the

residence. It therefore substantially contributed to

~ Petitioner's conviction.

We submit the statement does not confess to

Petition for Writ of Certiorari 24

robbery because of Michigan's "claim of right"

defense, because Petitioner said that codefendant

Dotson declared he was only trying to retrieve money

he was owed. People v. Hillhouse, 80 Mich. 580

(1890); People v. Henry, 202 Mich. 450, 455 (1918);

People v. Shaunding, 268 Mich. 218, 219 (1934);

People v. Holcomb, 395 Mich. 326 (1975). As the

Court held in Henry, supra:

“If the defendant in good faith believed

that the money which he demanded was

his money, and that he was entitled to its

possession, he could not be guilty of either

robbery or larceny in taking it, because

there would be no felonious intent”

Moreover, the statement does not admit to any

involvement in the killing or intent to kill, though it

does place Petitioner somewhat near to the killing,

immediately outside the house.

The Circuit Judge ruled that she did not believe

Petitioner concerning the circumstances of the

interrogation. (T 8-31-91, 45-46). While this

normally would end the - matter, unique

circumstances of this case permit review, or at least

a remand for redetermination of the issue.

In Miranda v. Arizona, 384 U.S. 436 (1966), the

Court established the basic rules for interrogation,

which included the following:

Petition for Writ of Certiorari

“Once warnings have been given, the

subsequent procedure is clear. If the

individual indicates in any manner, at any

time prior to or during questioning, that he

wishes to remain silent, the interrogation

must cease.FN44 At this point he has

shown that he intends to exercise his Fifth

Amendment privilege; any statement taken

after the person invokes his privilege

cannot be other than the product of

compulsion, subtle or otherwise. Without

the right to cut off questioning, the setting

of in-custody interrogation operates on the

individual to overcome free choice in

producing a statement after the privilege

has been once invoked. If the individual

states that he wants an attorney, the

interrogation must cease until an attorney

is present. At that time, the individual

must have an opportunity to confer with

the attorney and to have him present

during any subsequent questioning. If the

individual cannot obtain an attorney and

he indicates that he wants one before

speaking to police, they must respect his

decision to remain silent."

In Michigan v. Mosley, 423 U.S. 96 (1975), the

Supreme Court made clear that under U.S. Const.,

Amend. V, the police must “scrupulously honor" any

invocation by a suspect of his right to remain silent:

"A reasonable and faithful

.nterpretation of the Miranda opinion must

Petition for Writ of Certiorari

rest on the intention of the Court in that

case to adopt “fully effective means... to

notify the person of his right of silence and

to assure that the exercise of the right will

be scrupulously honored... .” 384 U.S., at

479, 86 S.Ct., at 1630. The critical

safeguard identified in the passage at issue

is a person's “right to cut off questioning.”

Id., at 474, 86 S.Ct., at 1627. Through the

exercise Of his option to terminate

questioning he can control the time at *104

which questioning occurs, the subjects

discussed, and the duration of the

interrogation. The requirement that law

enforcement authorities must respect a

person's exercise of that option counteracts

the coercive pressures of the custodial

setting. We therefore conclude that the

admissibility of statements obtained after

the person in custody has decided to

remain silent depends under Miranda on

whether his “right to cut off questioning”

was “scrupulously honored.”

The circumstances that allow the

redetermination are as follows:

:. Petitioner's statements about’ the

circumstances of the interrogation have been

confirmed by a polygraph examination, submitted to

the state courts. Michigan considers polygraph

results admissible in a motion seeking a new trial.

People v. Barbara, 400 Mich. 352 (1977); People v.

Mechura, 205 Mich. App. 481 “1994).

Petition for Writ of Certiorari 27

2. United States District Court Judge Avern

Cohn, in considering the case of Green v. Stegall,

supra, ruled that the testimony of Investigator

Monte was not believable and found that Anthony

Green's version of events was the more credible.

The findings of Judge Cohn constitute new

evidence, which permits a redetermination of the

issue without regard to rules of "law of the case."

United States v. Robinson, 690 F.2d 869 (11th Cir.

1982); United States v. Cirami, 563 F.2d 26 (2d Cir.

1977); Champaign-Urbana News v. J.L. Cummins,

632 F.2d 680 (7th Cir. 1980).

This Court should grant certiorari to determine

this issue, and whether newly discovered evidence

requires that the matter be redetermined.

Petition for Writ of Certiorari

CONCLUSION

Petitioner Robert Goza respectfully submits

that for the reasons stated above, including the fact

that the lower court ruling was on the merits and not

on the basis of procedural default, this Court should

grant Certiorari and Habeas Corpus relief. On

question 1 this Court should grant a new trial. On

question 2, this Court should vacate and dismiss

both convictions or, failing that, vacate and dismiss

one conviction and remand the other for

resentencing. On question 3 this Court should

remand the case for a redetermination on the

statement issue, and/or grant a new trial.

Respectfully submitted,

JAMES S. LAWRENCE P33664

Attorney for Petitioner Goza

828 W. Eleven Mile Road

Royal Oak, MI 48067

(248) 399-6930

Dated: February 15, 2008

MI CT OF APPEALS OPN, 11-2-94 Al

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee November 2,1994

v No. 149768

GEORGE DOTSON, LC No. 91-05995

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, No.150816

Vv LC No. 91-05995

ANTHONY GREEN,

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, No. 151735

Vv LC No. 91-05995

ROBERT GOZA,

Defendant-Appellant.

Before: Sawyer, P.J., Weaver and S.A. Turner,* Jd.

PER CURIAM. Fach of the defendants were

convicted, following bench trials, of murder in the

second degree, MCL 750.317; MSA 28.549. and

armed robbery, MCL 750.529;

*Circuit judge, sitting on the Court of Appeals by

assignment.

MI CT OF APPEALS OPN, 11-2-94 A2

MSA 28.797. Each received terms of twenty-five to

sixty years on the murder convictions, and on the

armed robbery convictions, defendant Dotson

received a term of fifteen to sixty years, defendant

Green received a term of fifteen to thirty years, and

defendant Goza received a term of twenty-five to

sixty years. They now appeal and we affirm. We

turn first to an issue raised by each of we defendants,

namely the admissibility against them of statements

made by Dotson and codefendant Erik Webster. This

issue concerns the testimony of defendant Goza's

cousin, LaTonya Goza, who testified that prior to the

robbery and murder in the case at bar, defendants

were in the basement of her house and she overheard

parts of their conversation. Specifically, she heard

defendant_Dotson say that he wanted his money and

codefendant Webster state that he knew where the

victim's boyfriend stayed and that he had a safe in

the house and that there was money all over the

house. Webster then stated he would knock on the

front door and kick the door in. Thereafter, all four

defendants left together. The trial court ruled the

statements admissible as adoptive admissions under

MRE801(d)(2)(b).

While it is true that defendants did not

specifically make statements adopting’ those

admissions, we believe that they can properly be

termed adoptive admissions in light of the

circumstances in which they were made. The

MI CT OF APPEALS OPN, 11-2-94 A3

statements were concerned with the planning of a

crime, no objections were voiced to those plans, and

defendants left together to commit the crime. We

would further note mat the statements would

nevertheless be relevant under an aiding and

abetting theory to demonstrate that all of the

participants to the crime knew what was intended, to

dissuade a defense of being an "innocent bystander."

For the above reasons, we conclude that

LaTonya Goza's testimony concerning the statement

she heard from Dotson and Webster were admissible

in each of the defendants’ trials. We now turn to the

individual issues raised by defendants.

Defendant Dotson

Defendant Dotson first argues mat mere was

insufficient evidence to convict him of either robbery

or murder. We disagree. We review a sufficiency of

we evidence argument by looking at the evidence in

me light most favorable to the prosecution and

determining whether a rational trier of fact could

find that the essential elements of me crime were

proven beyond a reasonable doubt People v Petrella.

424 Mich 221, 268-269; 300 NW2d 11 (1985). There

was more than sufficient evidence to support a

conviction for both armed robbery and second-degree

murder. Specifically, LaTonya Goza testified that she

MI CT OF APPEALS OPN, 11-2-94 A4

heard defendant state that he wanted his money,

heard the discussion as to where Eric Youngblood

lived, that there was money to be found in

Youngblood's house, as well as the plans to gain

entry to the house. Furthermore, LaTonya Goza

further testified that after the killing defendant told

her that he was the one who shot the decedent. If

believed by the trier of fact, which apparently it was,

this would be sufficient to convict defendant Indeed,

this evidence would be sufficient to have convicted

defendant of first-degree felony murder.

Next, defendant argues mat he was denied due

process of law when the trial court instructed his

attorney that he could not object to testimony

describing the actions of a codefendant. However,

defendant misrepresents the nature of the trial

court's instructions. The statement by the trial court

came in the context of an inquiry by Webster's

attorney concerning the procedures to be followed at

trial, since there was one jury trial for Webster, and

three bench trials for the remaining defendants

being run as part of the same proceeding. The trial

court did not preclude any attorney from raising any

objection ihe attorney felt necessary to protect his

client's interests, the court merely cautioned the

attorneys that they should be raising only those

objections which did deal with their own client's

interests. That is, the attorneys were cautioned not

MI CT OF APPEALS OPN, 11-2-94 A5

to raise objections which involved matters that would

only affect one of the other defendants. Accordingly,

defendant's attorney was free to raise whatever

objection he felt was in his client's interest.

Next, defendant argues that the trial court

erred in denying his motion to quash _ the

information. We disagree. Defendant's claim that

the trial court ruled on the motion to quash without

having read the preliminary examination transcript

misrepresents the record. While the trial court's

comments at the initial hearing on this matter

indicate that it had not in fact read the preliminary

examination transcript, the motion to quash was not

denied until a subsequent hearing, at which the trial

courts comments make it clear that it had, at that

point, read the transcript. Accordingly, defendant's

claim that the trial court improperly denied the

motion to quash without having read the transcript

is without merit.

Defendant also suggests that if the trial judge

had read the transcript, she would have been

obligated to disqualify herself from presiding over

the bench trial under People v Ramsey. 385

Mich 221; 187 NW2d 887 (1971). However, we are

not persuaded that Ramsey applies to the case at

bar. Ramsey involved a situation in which the trial

judge, sitting as the trier of fact, reviewed the

preliminary examination transcript in connection

with the trial itself in order to supplement the

MI CT OF APPEALS OPN, 11-2-94 A6

factual record. In the case at bar, on the other hand,

the trial judge did not read the preliminary

examination transcript as evidence at the trial, but

merely reviewed it in connection with the motion to

case at bar. Next, defendant

argues that the trial court erred in denying his

motion for severance and by the introduction at the

joint trial of the out-of-court statements of

codefendants Goza and Green. We _ disagree.

Defendant argues that the trial court violated the

rule established in Bruton v United States. 391 US

123; 88 S Ct 1620; 20 L Ed 2d 476 (1968), by allowing

the introduction of the confessions of the

codefendants at the joint trial. However, this Court

in People v Butler. 193 Mich App 63, 66; 483 NW2d

430 (1992), held that the Bruton rule does not extend

to bench trials. Defendant

Dotson's final argument is that be was denied the

effective assistance of counsel by counsel's failure to

present the claim of right defense to the robbery

charge. We disagree. To establish a claim of

ineffective assistance of counsel, defendant must

overcome the presumption that the challenged action

might be considered sound trial strategy. People v

Tommolino, 187 Mich App 14, 17; 466 NW2d 315

(1991). Defendant has not overcome that

presumption.

MI CT OF APPEALS OPN, 11-2-94 A7

Defendant Green

Turning to the issues raised by defendant

Green, he first argues that the trial court erred in

introducing his statement which was not voluntarily

obtained and obtained in violation of his right to

counsel. We disagree. At the Walker hearing held

concerning the admissibility of defendant's alleged

statement to the police, defendant did not contest

either the voluntariness of the statement or whether

he had invoked his right to counsel, but rather

denied making a statement to the police at all. That

is, defendant claimed at the hearing that he had

made no statements, that the answers to the

questions in his alleged confession had come from the

interrogating officer. Thus, the question was not

whether defendant had voluntarily made a

statement, but whether he bad made a statement at

all. This latter question involves a question of

credibility to be resolved by the trier of fact. That is,

that was for the trier of fact to determine whether

the officer testified truthfully concerning defendant's

having made a statement and the content of that

statement.

Next, defendant argues that he is entitled to

resentencing because of inaccurate assumptions

concerning his prior record and criminal history and

to correction of misinformation in the presentence

report. However, defendant has failed to preserve

MI CT OF APPEALS OPN, 11-2-94 A8

this issue for appellate review raising’ the

appropriate objection in the trial court. People v

Persails, 192 Mich App 380, 384; 481 NW2d 747

(1991).

Defendant Goza

Finally, we turn to the issues raised by

defendant Goza. First, defendant argues that the

magistrate erred at the preliminary examination in

admitting defendant's confession without the corpus

delicti having been” established. Specifically,

defendant argues that there had been no evidence

presented at the preliminary examination concerning

an armed robbery on the deceased or that the

deceased was killed during the perpetration of a

robbery. Defendant, however, misapprehends what

constitutes the corpus delicti for felony murder. The

corpus delicti for felony murder is the same as for

premeditated murder: that the victim is dead as the

result of some criminal agency. People v Hughey, 186

Mien App 585, 589; 464 NW2d 914 (1990). Thus, it is

not necessary to establish the commission of the

underlying felony in order to satisfy the corpus

delicti rule in a felony-murder case. la the case at

bar, it was well established that the victim died and

that the victim's death was the result of a criminal

agency. Accordingly, defendant's confession was

properly admitted. Defendant also argues that the

MI CT OF APPEALS OPN, 11-2-94 A9

trial court erred in scoring fifty points for Offense

Variable 3 in the sentencing information report. We

disagree. Fifty points are appropriate for OV 3 where,

inter alia the homicide is committed during the

perpetration of a robbery. Inasmuch as defendant

was convicted of both murder and robbery, we are

satisfied that there were sufficient facts to support

the scoring of fifty points for this variable since the

murder occurred during the perpetration of that

robbery.

Affirmed.

/s/ David H. Sawyer

/s/ Elizabeth A. Weaver

Turner, J., not participating.

1 Defendant Dotson, of course, only contests in

this respect the admission of the statement by

Webster. We also note that although Webster's

appeal is not consolidated with the instant case, °t

was also submitted to this same panel as Docket No.

150797.

2 People v Walker (On Rehearing). 374 Mich 331:

13% !W2d 87 (1965).

igh

a d

Bee

ee,

Pe:

Bet.

MI SUPREME CT ORDER, 6-30-95 Al10

535 N.W.2d 797, 449 Mich. 866, People v. Goza,

(Mich. 1995)

*797 5385 N.W.2d 797 (The decision of the Court is

referenced in the North Western Reporter in a table

captioned "Supreme Court of Michigan Applications

for Leave to Appeal.")

449 Mich. 866

People

Vv.

Robert Goza

NO. 191560. COA No. 151735.

June 30, 1995

Disposition: Leave to appeal DENIED.

Supreme Court of Michigan WEAVER, J., not

participating.

MI TRIAL CT ORDER, 9-19-06

All

STATE OF MICHIGAN

IN THE THIRD CIRCUIT COURT

FOR THE COUNTY OF WAYNE

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee. HON.TIMOTHY M KENNY

vs. CASE NO.91-005995

ROBERT GOZA,

Defendant-Aprellant,

RDER DENYING DEFENDAN'IS MOTION

FOR RELIEF FROM JUDGMENT

At a session of this Court In the

Frank Murphy Hall of Justice,

City of Detroit, County of Wayne,

On this date: September 19.2006

In 1991, defendant Robert Goza along with

three codefendants were tried before the Honorable

Beveriy Ann Jasper of the Recorder's Court of the

City of Detroit. Defendant Goza was convicted after

a bench trial of one count of second degree murder

and one count of armed robbery. The defendant was

sentenced to 25 to CO years on each of the two counts.

In 1994, the Michigan Court of

Appeals affirmed the defendant's conviction and

MI TRIAL CT ORDER, 9-19-06

A12

sentence. In 1995, the Michigan Supreme Court

denied defendant Goza's application for leave to

appeal. The defendant

now brings a motion for relief from Judgment

pursuant to MCR 6.500 et seq. seeking a new trial.

Defendant Goza's motion is based on the claim that

the co-defendant Anthony Green's statement so

tairnied the joint trial that defendant Goza could not

receive a fair trial. The defendant also claims there

was insufficient evidence to convict him of second

degree murder. In the motion for relief from

Judgment, defendant Goza claims that he was

denied effective assistance of counsel for prioz

counsel's failure to raise the two above-cited issues

during trial.

Michigan Court Rule 6.508(D)(3)(a)(b) states:

"(D) Entitlement to Relief. The defendant

has the burden of establishing entitlement

to the relief requested. The Court may not

grant relief to the defendant if the

motion...

(3) 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 sub-chapter, unless the defendant

MI TRIAL CT ORDER, 9-19-06

Al3

demonstrates...

(a) good cause for failure to raise such

grounds on appeal In the prior motion,

and...

(b) actual prejudice from the alleged

irregularities that support the claim for

relief."

With regards to the issue of good cause for

failure to raise the grounds on appeal, this Court

does find that the defendant's burden has been met.

In challenging the use of the co-defendant Green's

statement, appellate counsel could not raise the issue

until Mr. Green prevailed in his case in the Federal

District Court for the Eastern District of Michigan.

For this reason, the Court will entertain the claim

that the co-defendant Green's trial statement tainted

Mr. Goza's trial and subsequent conviction.

In order to prove

ineffective assistance of counsel, the defense must

show (1) that counsel's performance was below an

objective of standard of reasonableness under

professional norms and that (2) there Is a reasonable

probability that but for counsel's errors the result

would have been different and the result that did

occur was fundamentally unfair or unreliable.

Strickland vs Washington, 486 US 668,104 8

MI TRIAL CT ORDER, 9-19-06

Al14 -

Ct 2052,80 L Ed 2d 674 (1984). People vs Riley (after

remand) 468 Mich 135; 659 NW2d 611 (2003).

Defendant Goza_ claims

that a new trial is mandated in this case because

Judge Jasper sitting as the tier of fact heard the

alleged confession of co-deferidant Anthony Green.

Co-defendant Green's statement was _ ruled

Involuntary in a habeas corpus action heard before

the Honorable Avern Cohn in the United States

District Court for the Eastern District of Michigan.

Defendant Goza contends that the presentation of co-

defendant Green's confession tainted the ability of

the trier of fact to evaluate the evidence against

defendant Goza. A trial judge

hearing a bench trial is presumed to follow the law.

This legal concept permits reviewing courts to give

greater latitude to the trial court in reviewing

alleged errors. People vs Edwards, 171 Mich App

613,431 NW 2d 83 (1988). People vs Fanner, 30 Mich

App 707,186 NW 779 (1971). Michigan appellate

courts have also ruled that it is not necessary for the

judge in a bench trial to make findings on every

element of the offense. It is sufficient if the facts

found indicate that the trial Judge was aware of the

factual issues in the case and correctly applied the

law. People vs Wardlaw, 190 Ml App 318,47 5 NW 2d

387 (1991), People vs Armstrong, 175 MI

App 181,437 NW2d 343 (1989). In the present case,

MI TRIAL CT ORDER, 9-19-06

Al15

Judge Jasper clearly stated that she considered the

case against each of the co-defendant's separately.

The Court stated;

"IT have tried each of these cases as if the

person were on trial separately and I have

looked separately at the language, the conduct

and the behavior of each of the two defendants."

Additionally, when co-defendant Anthony

Green's statement, was being read into the record at

the trial of the co-defendants, counsel for one co-

defendant's stated: To preserve the record, I assume

at this point the same understanding is that the

statement only comes in as to Mr. Green, the

individual defendant." The Court's response was to

the co-defendant's attorney:" Mr. Cripps, 1 assume

that you are only representing your client, but in

answer to your question, yes."

In response to the concern of co-counsel

regarding the limitation of Mr. Green's statement,

the trial court stated in its fact finding that it

reviewed and considered the testimony as if each

individua! defendant were on trial separately. This

Court concludes that co-defendant Green's statement

was not part of the verdict against the defendant

Robert Goza. For these reasons, the defendants claim

of error falls.

MI TRIAL CT ORDER, 9-19-06

Al16

Il.

The defendant Goza also claims that there was

insufficient evidence to convict him of second degree

mmrder. In reviewing whether there was sufficient

evidence to support a conviction, the Court must

‘review the evidence de novo in the light most

favorable to the prosecution to determine whether a

rational finder of fact could find that the essential

elements of the crime were proven beyond a

reasonable doubt. People vs Jobnson. 460 Mich

720,597 NW 2d 73 (1999), The Court may consider

both direct and _ circumstantial evidence. The

prosecution is not required to negative all theories

consistent with innocence. It is sufficient if the

prosecutor can prove the case beyond a reasonable

doubt. People vs Doss, 122 Mi App 571,332 NW 2d

541 (1983). In the present case, defendant Goza was

convicted under an aiding and abetting theory. The

concept of aiding and abetting comprehends all

words or deeds that may support, encourage or incite

the commission of a crime and includes the actual

presence of a participant for the purpose of rending

assistance. The amount of = assistance’ or

encouragement is not material, but requires that it

had the affect of inducing the commission of the

crime. People v Palmer, 392 Mich 370, 220NW

MI TRIAL CT £OORDER, 9-19-06

A17

2d 393 (1974); MCLA Sec. 767.39.

An individual] does not have to have an active

stake In the outcome of a crime in order to be guilty

of aiding and abetting. A defendant's presence can be

enough to support a conviction as an aider and

abettor where the presence of the defendant is

intended to and does in fact aid the principal

participants in the offense. U.S vs Taytor, 612 Ed 2d

1272 (10th Circuit 1980). The Michigan Supreme

Court has long held that by voluntarily choosing to

join the group that was intent on committing a crime,

the defendant's action constitutes support,

encouragement and incitement for the commission of

the offense. People vs Smock, 399 Mich 282,249 NW

2d 69 (1979).

In the present case, trial witness Damen

Youngblood testified that he and the deceased were

alone in a home on Trinity Street In the city of

Detroit on the night of the murder. Mr. Youngblood

testified that the deceased opened the front door and

Mr. Youngblood then observed two individuals force

their way into the home through the back door

(defendant Goza stated that he was one of the two

individuals at the back door). -Witness Youngblood

indicated that when the two individuals forced their

way into the back of the house, co-defendant Webster

entered through the front and shot the deceased in

MI TRIAL CT ORDER, 9-19-06

A18

the head. Witness Eric Youngblood testified

that he returned to the homicide scene after the

shooting and found his bedroom ransacked and

several items including a safe containing cash and

weapons were missing.

At trial, LaTonya Goza testified that all of the

co-defendants were in the basement of a home on

Freeland Street in Detroit and she heard one of the

co-defendants indicate that he wanted his money.

She also heard the co-defendant indicate that he

knew where the safe was aad that two individuals

could be at the front door and two at the back when

they went to obtain the money. She testified that all

four co-defendants left together and that one of the

co-defendant's admitted to killing the victim.

Loamoadre Van testified that he, and

defendant Goza and co-defendant Dotson went to a

motel and Mr. Van spoke to Goza and Dotson about

the shooting incident, Defendant Goza said, "Yes,

but you don't know anything." Vann testified that he

saw large amounts of money in the motel room

occupied by defendant Goza and co-defendant Dotson

and that Goza was the one actually counting the

money In the motel.

At the trial defendant Goza's

statements were introduced. In his statement he

indicated that a few weeks before the robbery and

murder co-defendant Webster stated that he knew

ra ae)

HEX we

: 7 ee oe as rs f=

es Pee Sa a eras

Fea fa Ly SSS * Sn aoe OE SORE RO Be ee

MI TRIAL CT ORDER, 9-19-06

A19

about guns and money that he had seen at the home

of the deceased. Co-defendant Webster and Goza

discussed the idea of breaking into the home on the

day of the murder. Webster stated that one of the

Youngblood's owed him money. Goza further

indicated there was an agreement by the co

defendants to go to the home of the deceased, go

inside and get the safe that contained the guns and

money. Defendant Goza admitted that he was at the

back of the Youngblood residence and that he heard

three shots. He stated he went inside, helped carry

the safe to the car and received one-fourth of the

money that was recovered from the safe.

Second degree murder requires that the actor

either a) intended to kill, b) intended to do serious

bodily injury or c) acted with wanton and willful

disregard that the natural tendency to the behavior

was to cause death or great bodily harm. People vs

Awon, 409 Mich 672,299 NW 2d 304 (198); People vs

Dykhousg, 418 Mich 488, 346 NW 2d 150 (1984).

Michigan law has long held that malice is a

permissible inference if there is the use of a deadly

weapon. People vs Martin, 392 Mich 653,221 NW 2d

338 (1874).

In the present case, the trier of fact could find

beyond a reasonable doubt that defendant Goza

aided and abetted in a second degree murder.

MI TRIAL CT ORDER, 9-19-06

A20

Evidence presented during the trial clearly indicated

that the defendant was aware of the fact that guns

and drugs were being stored in a safe at the

residence of the deceased. There was circumstantial

evidence to indicate that the four defendants were

going to the residence of take the guns and money

from the safe because those items would not be given

up voluntarily by the victim or the Youngbloods. The

four co-defendants went to the homicide location

together, and entered the premises at the same time.

The shooting occurred immediately upon entry into

the home. Defendant Goza continued to assist by

removing the safe counting the money and sharing

the in the proceeds. All these factors provide ample

circumstantial evidence to indicate that defendant

Goza participated in an armed non-consensual entry

and robbery of the homeowners and participated in a

knowingly violent confrontation where one of the co-

defendants was armed with a weapon and used the

weapon to murder the deceased.

This Court finds that there was ample

circumstantial evidence to establish that the

defendant Goza aided and abetted in a second-degree

murder. The defendant's claim of _ insufficient

evidence falls.

rhe

MI TRIAL CT ORDER, 9-19-06

A21

Defendant Goza contends that the Court looked

outside the trial record making and based her

decision on pre-trial motions and evidentiary hearing

testimony regarding statements given to the police

by the defendant and co-defendants. The defendant's

claim is without merit. An examination of the Court's

ruling reveals that the Court was making reference

to statements that were made for impeachment

purposes and the credibility of witnesses. Clearly the

trier of fact could consider these matters in resolving

credibility issues. As stated earlier, the Court is

presumed to follow the law and no reversal is

required. People VB Edwards, supra.

IV.

Finally, defendant Goza contends that a new

trial is mandated because the police erroneously

interfered with the defendant's assertion of his right

to remain silent. The defense relies on the

defendant's claim that he repeatedly indicated that

he did not want to make a statement when initially

advised of his rights by Sergeant Deborah Monti of

the Detroit Police Department Homicide Section.

Michigan Court Rule 6.608(D)(2) states that the

Court may not grant relief to the defendant if the

motion alleges grounds for relief which were decided

against the defendant in a prior appeal unless the

defendant establishes that a retroactive change in

MI TRIAL CT ORDER, 9-19-06

A22

the law has undermined the prior decision. In the

present case, the issue surrounding his claim of

—violation of the defendants right to remain silent-was

litigated on appeal. Pursuant to the Michigan Court

Rule it cannot be re-litigated in the motion for relief

from judgment. This Court does not find that the

habeas corpus ruling in the Federal District

regarding the co-defendant Green amounts to a

retroactive change in the law as stated under

Michigan Court 6.508(D)(2).

Conclusion

For the reasons. set forth above, the

defendant's motion for relief from judgment is

denied. This Court does not find that the defendant's

brief and attached appendices set forth sufficient

evidence to establish the actual innocence of the

defendant or a basis for the granting of a new trial.

IT IS SO ORDERED.

Date: Sep 19, 2006/S/ Timothy M. Kenny

Timothy M. Kenny

Circuit Court Judge

US DISTRICT CT ORDER 12-10-98 A23

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANTHONY GREEN,

Petitioner,

Vv Case No. 95-73785

JIMMY STEGALL,

Respondent.

MEMORANDUM AND ORDER

COND ANTING WRIT OF

BEA RPUS

This is a habeas corpus case, 28 U.S.C. § 2254.

Petitioner is challenging his state court conviction for

second degree murder. The background of the case is

reflected in the Order of June 28, 1996 (Exhibit A), in

which the Court ordered the appointment of counsel,

and the Memorandum of January 28, 1998 (Exhibit

B), in which the Court found that there was a

disputed issue of fact regarding the voluntariness of

petitioner's statements that the state trial judge

failed to resolve. On April 20 and 22, 1998, the Court

conducted an_ evidentiary hearing on _ the

ares

US DISTRICT CT ORDER 12-10-98 A24

circumstances of petitioner's arrest and subsequent

questioning by Detroit police officer Deborah Monti

(Monti). The hearing was necessitated by the Court's

determination thatthe state trial judge's finding that

petitioner denied making any statement to Monti

was wholly unsupported by the record. The Court

took testimony from petitioner, Monti, and Tony R.

Saunders, the Detroit police officer who took

petitioner into custody and turned him over to Monti.

Based on the transcripts of the state court

preliminary examination, the trial testimony, and

the evidentiary hearing; assessing the credibility of

petitioner, Monti, and Saunders; and drawing such

inferences as are reasonable, the Court finds:

z: There was an_ outstanding warrant for

petitioner's arrest in the hands of Saunders.

2. Petitioner, through his attorney, made

arrangements to surrender to Saunders.

3. Petitioner surrendered to Saunders. Saunders

knew petitioner was represented by an

attorney and that it was improper to question

petitioner without his lawyer present.

US DISTRICT CT ORDER 12-10-98 A25

Saunders took petitioner to Detroit police

_headquarters where he turned him over to _

Monti. Monti told Saunders that he must

make out a Complaint Report (PCR) before she

could accept custody of petitioner. Saunders

made out the PCR.

Saunders told Monti that petitioner was

represented by an attorney. As an experienced

police officer, Saunders knew this was

important information.

Monti questioned petitioner over his objections.

During the course of the questioning, another

Detroit police officer began squeezing

defendant's wrists, which were secured by

handcuffs.

When petitioner attempted to explain to the

state trial judge’ at his_ preliminary

examination that he was forced to answer

"The state trial judge at the preliminary examination

was the state judge at trial. Petitioner was tried by the

bench.

Monti's questions and that Monti suggested his

answers to him, the trial judge cut petitioner

off and declined to allow him to explain the

US DISTRICT CT ORDER 12-10-98 A26

circumstances of his surrender to Saunders and

the events that followed.

_The_ refusal to allow petitioner to explain _-

carried over to the trial. As a consequence,

petitioner's answers

to Monii's questions were admitted into

evidence, through the testimony of Monti, by

the state trial judge without any consideration

of whether the circumstances of Monti's

questioning of petitioner’ violated his

constitutional rights.

The assertions by respondent, that "[allthough

the petitioner had retained counsel, he did

voluntarily surrender himself to the police and

voluntarily submitted to questioning without the

presence of counsel," is wrong. Petitioner voluntarily

surrendered himself through his attorney, but

petitioner did not voluntarily submit to questioning

without his attorney being present. First, petitioner

told Saunders he had an attorney. Second, Monti

knew that petitioner had an attorney, having

received this information from Saunders. This is

established by the record made at the evidentiary

hearing.

US DISTRICT CT ORDER 12-10-98 A27

Monti testified as follows (Tr. 4/20/98, pp. 32

and 33):

Q. And do you recall interrogating Anthony

Green?

Yes.

And can you tell us, on May 21st, 1991,

can you tell us what happened, how your

interrogation came about?

I was working days at the Homicide

Section that day, and I got a telephone call

from an officer of the Major Crime Mobile

Unit, I'm not sure exactly which one it

was, but it might have been Sergeant

Saunders, and he asked me if we were still

looking for Anthony Green. And I told him

that we were, and he, he informed me

either that Mr. Green had turned himself

in or was preparing to turn himself in, but

in any event, I said yes, that we were still

looking for him. So a short time later the

officers of the Major Crime Mobile Unit

delivered Mr. Green to the Homicide

Section to my office. Initially I believe

they brought him in my office, and I

asked them if they had made their PCR,

their Preliminary Complaint Record yet,

US DISTRICT CT ORDER 12-10-98 A28

and they stated they hadn't. So they took

Mr. Green from my office back out to the

main area of the Homicide Section’ where

there's-a-large table, fingerprint cards,~

black reports, and one or two typewriters

and they prepared an arrest PCR, and at

the completion of that they delivered Mr,

Green back to my office.

Saunders testified as follows (Tr. 4/22/98, pp. 15-17):

[Ylou -were aware [petitioner] was

represented by Mr. Crawford?

I was aware based on what his secretary

told me that he was.

And at the time Mr. Green turned himself

in he in fact told you I don't want to talk to

you until I have my attorney present?

He could have. I had no intention of

asking him any questions.

So because you didn't intend to ask him

any questions it wasn't significant to you

whether or not he told you that or not?

US DISTRICT CT ORDER 12-10-98

A29

Well, I knew he was represented by

counsel, but I'm not the investigator of the

case....

I believe you testified you don't have any

independent recollection of speaking with

Sergeant Monti about whether Mr. Green

was represented by counsel or not?

That's correct, sir, yes.

So you could have told her his lawyer is

Tim Crawford?

Had I seen her, but 1 don't have an

independent recollection of having a

conversation with her.

If you had seen her, would you have told

her that he was -

If I had seen her.

Because that would have been your

standard practice in the Detroit Police

Department?

That's my normal practice.

So if you did see her, you probably told

her?

US DISTRICT CT ORDER 12-10-98 A30

A. IfI did see her, I would have told her.

Q. That Mr. Green was _ represented by

___counsel? _

A. Yes.

Although Saunders had no recollection at the

evidentiary hearing of talking to Monti, he said that

if he had seen her he would have told her petitioner

was represented by an attorney. Mont: testified at

the evidentiary hearing she told Saunders to prepare

a PCR. Therefore, it is reasonable to conclude that

Monti talked to Sanders, and further, that having

talked to Monti, Saunders told Monti that petitioner

was represented by an attorney.

At the evidentiary hearing, petitioner testified

as follows (Tr. 4/20/98, pp. 8-15):

Q. Then what happened? (after being taken

into a room)

Well, when Detective Monti came in the

room, she told me what her name was. She

said her name was Detective Sergeant

Monti.

THE WITNESS: She came in the room. She said

US DISTRICT CT ORDER 12-10-98 A31

she was a sergeant. She asked me my

name. I told her my name. She was

reading some papers. I told her I was

—waiting on my attorney.She said, "Okay," __

and then she went on to conversate. I told

her that my lawyer - no, she said, "I have a

few questions for you.” 1 said, "My lawyer

told me not to answer any questions until

he get here." She said, "Fine." She said she

needed to ask me some questions, what

school I went to, she asked me basic stuff

about school, she asked me stuff about

sports, and then she went and asked me

did I know the victim of the crime.

Q. What did she ask about the victim of the

crime and what did you tell her?

A. I asked her was this concerning the case,

and she told me, "Yes." I told her my

lawyer told me not to answer any

questions concerning the case until he get

here.

And then what happened after that?

I think it was at that time she asked me to

read which I know now was the rights

form. At that time I told her I couldn't

read, and she snatched the form.

RE RS Eons

eather ome Lee We

PES ne

US DISTRICT CT ORDER 12-10-98 A32

Why did you tell her you couldn't read?

Because I didn't want to be bothered. My

lawyer told me not to sign anything.

Could you at the time read and write?

Sure I could, yes.

Did you make any effort to read what was

on the form?

Not at all.

Why is that"

Because my lawyer told me not to sign

anything, and she wanted me to sign

whatever it was, the rights form.

Then what happened after that?

After I told her I couldn't read, then she

snatched it and said something, I'm

playing games, something to that sort,

that I was playing games with her,

All right. Then what happened?

She left out the room. I was sitting there. I

just laid my head on the table.

US DISTRICT CT ORDER 12-10-98 A33

Q. How long were you sitting in that room?

a A. Somewhere between I'd say 20 minutes

4 and an hour.

Okay. Roughly how big was this room?

Say 11x6.

4 . All rmght. And at that time were you

3 handcuffed?

No, sir.

Was the door to the room open? 4

No, sir. si

2 > © >

Okay. So you were in this room alone

4 unhandcuffed, the door opening out to this

| larger room?

No, the door opened out like to a hallway

because it's right on the side other office.

Okay. So after you were waiting in this

room, then what happened?

They woke me up when they came in

there. Sergeant Monti and two other

officers.

US DISTRICT CT ORDER 12-10-98 A34

When you say they woke you up, had you

fallen asleep?

_ Yes.

Do you know how much time passed?

Somewhere between 20 minutes to an

hour. I'm not exactly sure. I forgot my

watch ‘i

And after you were woken up by Officer

Monti and these two officers, what

happened?

When they came in the room, the officer

asked me to stand up. I stood up. He

asked me to turn around. I turned around.

He put the handcuffs on me and then told

me to have a seat

Then what happened?

Well, she kept asking me questions. I

specifically told her five or six times that I

wouldn't answer any questions until my

lawyer got there.

Okay. What sort of questions was she

asking you?

Did I know who killed this person, and tell

US DISTRICT CT ORDER 12-10-98 A35

- -. -.. -

her what she needed to know about the

robbery.

Okay. And you _ responded to those

questions how?

At that I responded I wasn't going to

answer any questions until my lawyer got

there, he'll be there in a little while.

Then what happened?

Well, at that time she kept asking me

questions. I said F you all. At that time

the officer hit the table, he didn't hit me he

hit the table, then he stood. Well, he came

up in back of me and put his hands on my

shoulders, he didn't squeeze me hard, he

put his hands almost hke a massage and

saying that they was trying to help me and

it would be best for me if I made a

statement.

And did they tell you anything else?

Yeah.

What else?

Basically, you know, that the prosecutor

was going to hit me up with the crime if I

US DISTRICT CT ORDER 12-10-98 A36

didn't, you know, do what they wanted me

to do and they was trying to save me and

all of that type of stuff.

When you say all of that type of stuff, can

you be a little more specific?

Okay. Well, well, I don't remember the

precise wording, but he was saying that

the prosecutor was going to give me first

degree murder if I didn't make a

statement, you know, if I didn't help them

out. They was trying to help me.

How did you respond to that?

When my lawyer gets here, I'll make a

statement.

Then what happened?

At that time he put his hands on - I'm

sitting here facing this way. He put his

hands one hand on my shoulder and the

other hand starting clicking the handcuff

saying do what the lady says.

When you say clicking the handcuffs, does

that mean tighter on your wrist?

Yes.

US DISTRICT CT ORDER 12-10-98 A37

The handcuffs have a_e ratcheting

mechanism that makes them tighter

Yeah. When you squeeze them, they click,

and he was clicking them one at a time.

How many times did he click them?

I'd say about - it was already tight when

he put them on, but I'd say about three or

four times.

Then what happened after that?

After he started squeezing the handcuffs,

Sergeant Monti asked me again, tell her -

no, she asked me did I know who killed

this person. I told her I did not know. At

that time she went to reading and telling

me what I had done.

Okay. Do you specifically recall what she

told you?

No, I don't - no. I wasn't even - it didn't

even matter what she was saying. I was

just trying to get out of them handcuffs.

You've had a chance to review the contents

of this statement that you signed in this

case; 1s this correct?

US DISTRICT CT ORDER 12-10-98 A38

This is correct.

To the best of your recollection was she

presen.ing you with information similar to

that within that statement?

Yes.

And what was your response?

I was agreeing. I was repeating what she

was saying. Anything it took to get loose.

Okay. So if she, for example, said do you

know who killed Nicole Cash, what was

your response?

Well, if she had asked me, if she had just

asked me that question, I would have told

her I didn't know, but it was more so like

telling me what I had done, like when I

went over there such and such, what

happened. You know, she was giving me

the information. I was repeating what she

was saying.

But you were basically agreeing with the

way she described the events as what

happened?

Yes.

US DISTRICT CT ORDER 12-10-98 A39

Q. Why were you doing that?

A. Because he wasn't loosening up the

handcuffs.

Q. Did you eventually - how long did this go

on for?

3 A. I would say 30 to 40 minutes, if not longer.

3 I didn't have on a watch. It seemed like

: days. us

Q. Okay. If that officer hadn't been clicking

on those handcuffs, would you ever have

agreed to what Sergeant Monti told you?

A. No way.

Q. Did you ultimately sign a statement in

this case?

A. Yes, I did.

This testimony is consistent with petitioner's

description of Monti's questioning at _ trial

(Memorandum of January 28, 1998, pp. 7-9).

As described in the Order of June 28, 1996, and

US DISTRICT CT ORDER 12-10-98 A40

the Memorandum of January 28, 1998, petitioner

was denied the opportunity to object to the

admissibility of his statements to Monti at trial on

the grounds that the statements were involuntary

and, therefore, inadmissible. The trial judge never

ruled whether the statements were voluntary.

Because there has been no prior determination of the

voluntariness of petitioner's statements, the Court

has the obligation to make the determination. See

Townsend v. Sain. 372 U.S. 293, 312-313 (1963)

(overruled on other grounds. Kennev v. Tamavo-

Reves. 504-U.S. 1 (1992)). Under the circumstances,

the Court Finds that the statements’ were

involuntary and hence inadmissible.

An involuntary confession may not be used

against a defendant. See Lego v. Twomey. 404 L'S.

477 (1972); Miller v. Fenton. 474 U.S. 104 (1985).

"(T]he Court's analysis has consistently been

animated by the principle that ‘ours is an

accusatorial and not an inquisitorial system,' and

that, accordingly, tactics for eliciting inculpatory

statements must fall within the broad constitutional

boundaries imposed by the Fourteenth Amendment's

guarantee of fundamental fairness." Miller. 474 U.S.

at 109-110 (quoting Rogers v. Richmond. 365 U.S.

534, 541 (I960))- When petitioner refused to answer

US DISTRICT CT ORDER 12-10-98 A4l1

Monti's questions concerning the crime, petitioner

was forced to respond. In an attempt to prevent pain,

petitioner responded to Monti's questions. This alone

makes the statements to Monti involuntary.

The argument that petitioner, because he

denied making the statements, cannot challenge the

statements has no merit for two reasons. First,

standing to challenge the admissibility of

incriminating statements does not depend upon an

admission that the statements were made. See Lee v.

Mississippi. 332 U.S. 742, 744 (1948) 2. Second,

2. As the Supreme Court noted in Lee. 332 (cont)

does not deny talking to Monti after she initiated

questioning. What he obviously was trying to say

was that Monti effectively told him what to say.

This second point gives rise to an additional

ground for determining that petitioner's statements

should not be admitted: petitioner invoked his Sixth

Amendment right to counsel. "[H]aving expressed his

desire to deal with the police only through counsel,

[an accused] is not subject to further interrogation by

(footnote continued) U-S. at 745-46; The due process

clause of the Fourteenth Amendment invalidates a state court

conviction grounded in whole or in part upon a confession which

is the product of other than reasoned and voluntary choice. A

US DISTRICT CT ORDER 12-10-98 A42

conviction resulting from such use of a coerced confession,

(continued on next page) however, is no less void because the

accused testified at some point in the proceeding that he had

never in fact confessed, voluntarily or involuntarily. Testimony

of that nature can hardly regalize a procedure which conflicts

with the accepted principles of due process. And since our

constitutional system permits a conviction to be sanctioned only

if in conformity with those principles, inconsistent testimony as

to the confession should not and cannot preclude the accused

from raising the due process issue in an appropriate manner.

_ While v. State of Texas. 310 U.S. 530, 531, 532 [(1940)j. Indeed,

such a foreclosure (continued) of the right to complain 'of a

wrong so fundamental that it made the whole proceeding a

mere pretense of a irial and rendered the conviction and

sentence wholly void,’ Brown v. State of Mississippi. 297 U.S.

278, 286 [(1936)], would itself be a denial of due process of

law. (Footnote omitted).

the authorities until counsel has been made available

to him unless the accused himself initiates further

communication, exchanges or conversations with the

police." Edwards v. Arizona. 451 U.S. 477, 484-485

(1981). Whether Monti in fact told petitioner what to

say or petitioner responded to her questions is not

important. The critical point is that Monti, with

knowledge that petitioner was represented by an

attorney, initiated the questioning, not petitioner.

See Michigan v. Jackson. 475 U.S. 625, 634 (1985)

(the rule in Edwards applies in the context of the

Sixth Amendment). "[Blefore a suspect in custody

can be subjected to further interrogation after he

requests an attorney there must be a showing that

US DISTRICT CT ORDER 12-10-98 A43

the ‘suspect himself initiates dialogue with the

authorities." Oregon v. Bradshaw. 462 US.

1039. 1044 (1983) (quoting Wvrick v. Fields. 459 U.S.

42, 46 (1982)).

Respondent cannot argue that petitioner's

statements were properly admitted because

petitioner waived his right to counsel. A waiver of

Sixth Amendment rights must be _ knowing,

intelligent, and voluntary. See Patterson v. Illinois.

487 U.S. 285, 292 (1988). Petitioner did not

voluntarily waive his Sixth Amendment rights.

Finally, absent the confession, the evidence at

trial was insufficient to establish petitioner's guilt.

See Arizona v. Fulminante. 499 U.S. 279, 289 (1991)

(harmless error analysis applies when coerced

confession is admitted). The Court has previously

found, based on its reading of the trial transcript of

October 18, 1991, at pages 73-80, that the trial judge,

in finding petitioner guilty, relied principally on

petitioner's statements. See Memorandum of

January 28, 1998, at 10. Such reliance was not a

harmless error. Respondent's analysis of the

evidence at trial against petitioner, independent of

petitioner's statements, does not persuade the Court

} ,

US DISTRICT CT ORDER 12-10-98 A44

otherwise. See Respondent's Supplemental Brief in

Opposition to Petition for Writ of Habeas Corpus, at

15. All that respondent's analysis establishes is that

petitioner was present at the meeting during which

the robbery was planned, and was in possession at

that time of a handgun. Given what occurred

following the meeting, petitioner's presence at the

meeting does not allow for the inference that he was

part of the robbery.

Accordingly, the petition for writ of habeas

corpus is GRANTED and_ petitioner's conviction is

VACATED. This grant of the writ is conditional. The

State of Michigan shall have 60 days in which to

decide whether it intends to retry petitioner.

SO ORDERED.

IS AVERN COHN

AVERN COHN

UNITED STATES DISTRICT

JUDGE

DATED DEC 10 1998

Detroit, Michigan

US DISTRICT CT ORDER 6-28-96

A465

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANTHONY D. GREEN,

Petitioner,

Vv. Civil No. 95-73785

JIMMY STEGALL, Warden,

Macomb Correctional Facility,

Respondent. '

ORDER

Before the Court is a Petition for a Writ of

Habeas Corpus under 28 U.S.C. § 2254 in which the

petitioner is challenging the validity of his conviction

on several grounds, including that the trial court

violated his due process rights by refusing to

suppress an involuntary confession. A magistrate

judge recommends the Petition be dismissed.

Petitioner takes exception to the magistrate judge's

finding that:

[A] review of the trial transcript clearly

demonstrates that the Petitioner has never sought to

challenge the voluntariness of the statement

US DISTRICT CT ORDER 6-28-96

A46

allegedly given to the police. He simply claimed that

he had no recollection of giving such a statement... .

[T]he voluntariness of the statement was never an

issue... .

Because the claim was not based upon voluntariness,

but rather that the confession was never made, the

trial judge correctly left it up to the fact finder at

trial (ultimately itself) to decide whether Petitioner

actively gave the statement in question.

The Court's reading of the transcript of the August

13, 1991 motion hearing suggests instead that

petitioner testified that he made a statement and

that it was coerced.

When questioned by his lawyer, petitioner

testified as follows:

Q. (By Mr. Crawford continuing) In respect to

the statement did you give it of your own

free will?

No, I did not.

What caused you to give a statement?

Squeezing the wrist.

Were your wrist [sic] being squeezed at

US DISTRICT CT CRDER_ 6-28-96

A47

the time you made verbal [sic] statement?

Yes, it was.

Then in your opinion was your statement

voluntary or involuntary?

A. Involuntary, for sure.

(Transcript of August 31, 1991 Hearing at 23-

24). The cross-examination went as

follows;

THE COURT: What kind of questions was she

asking you, sir, about the weather, what

;, kind of questions were being asked, how

: you get the weather or what?

THE DEFENDANT: No/ she was asking :

questions off the paper she was reading. ft

What I am saying | wasn't concentrating

on what she was saying, what she was

4 saying on the sheet of paper. I was

concentrating on getting that handcuff

loose, that's all that was on my mind.

THE COURT: What answer was given when she

told you to answer?

US DISTRICT CT ORDER 6-28-96

A48

THE DEFENDANT: I —

THE COURT: No, no, answer the question Mr.

Green. Stop playing games here. What

answer was given, the one she told you to

give, the ones that came out of your

mouth?

THE DEFENDANT: I'm sure I said no to that

question when she asked did I| kill her or

know who killed her.

THE COURT: Answer the question, sir, you

gave some answer out of your mouth?

THE DEFENDANT: No, nothing but that one.

THE COURT: Just one?

THE DEFENDANT: Only one, did I know who

killed this person.

THE COURT: None of the answers did you give

or answer?

THE DEFENDANT: No, I heard the questions. I

was trying to say anything she wanted me

to say so I could get loose. She was telling

me what I done.

THE COURT: You are saying that any answers

A49

DISTRICT CT ORDER 6-28-96

on this page are answers that the

Sergeant gave, not your words? Fine, get

down because I can't suppress something

that somebody said they never said. I have

no time to play games with people. I can't

suppress something people said they never

said.

MR. CRAWFORD: I think it can be cleared up.

THE COURT: He said he didn't make an

answer. He said all the answers came out

of this woman's mouth, not his.

MR. CRAWFORD: I think, your Honor, —

THE COURT: No Mr. Crawford I cannot

suppress a statement that people say they

never made.

MR. CRAWFORD: I understand that, your

Honor.

THE COURT: He said the answers came out of

officer Monte's mouth. There is nothing to

suppress, nothing to rule on.

MR. CRAWFORD: Your Honor, I have

argument.

US DISTRICT CT ORDER 6-28-96

A50

THE COURT: Have a seat Mr. Crawford, you

have no argument to that issue. Set down.

Call your next witness or Mr. Lusby, let's

not waste time here gentlemen. We have

wasted all morning getting here as it

is.(Id. at 26-28) .

The Court does not read this testimony as

petitioner stating he did not make a statement.

Rather there is considerable ambiguity in the record.

It is not clear whether petitioner was saying that he

parroted the police officers' words or simply said

nothing. The trial judge's abruptness in terminating

petitioner's testimony and denying his lawyer an

opportunity to argue compounds the ambiguity.

Under the circumstances, counsel should be

appointed for petitioner and the question better

briefed than is possible by a pro se petitioner.

Accordingly, -the deputy clerk will arrange for

the appointment of counsel for petitioner and

afterwards set a briefing schedule for further

consideration of the Petition by the Court.

SO ORDERED.

/s/ AVERN COHN

AVERN COHN

UNITED STATES DISTRICT JUDGE

US DISTRICT CT ORDER

A51

DATED: JUN281996

6-28-96

DETROIT, MICHIGAN

US DISTRICT CT MEMO 6-28-96 A52

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANTHONY D. GREEN,

Petitioner,

Vv. Civil No. 95-73785

JIMMY STEGALL, Warden,

Macomb Correctional Facility,

Respondent

MEMORANDUM

This is a habeas corpus case. 28 U.S. C. § 2254.

The background of the petition is reflected in the

Michigan Court of Appeals decision of November 2,

1994, People of the State of Michigan v. Anthony

Green. No. 150816 (unpublished), and the Magistrate

Judge's Report and Recommendation of May 8, 1996,

recommending that the petition be denied, and the

Order of June 28, 1956, appointing counsel for

petitioner.

Essentially petitioner challenges his state court

conviction for murder in the second degree and

armed robbery, Mich. Stat. Ann. § 28.549, Mich. Stat.

Ann. § 28.797, for which he is serving a 25 to 60 year

custody term and a 15 to 30 year custody term

ae.

US DISTRICT CT MEMO 6-28-96 Ab3

concurrently on the two convictions. Petitioner says

his conviction is constitutionally defective because of

the admission of an involuntary confession at trial.

Respondent says that petition lacks merit because

petitioner denied ever making the statement in

question and therefore had no right to challenge its

adinission. Petitioner is right--he did in fact make

the statement and, unfortunately, the trial judge did

not assess its voluntariness. -Rather, the record

establishes that the trial judge peremptorily refused

to consider whether the statement was voluntary

because of an arbitrary interpretation of petitioner's

testimony.

Because of the uncertainty of the consequences

of this finding, the Court will hold a hearing to

determine the future course of the case.

Il.

The facts underlying the petition are essentially

as follows. To fully illustrate the egregiousness of the

proceedings, the records of the Walker* hearing and

trial will be quoted at length.

On Morch 22, 1991, Nicole Cash was killed

during the course of a robbery of her home.

Petitioner was charged with participating in the

robbery. He was alleged to have driven a car to the

home with the co-defendants as passengers and then

positioning himself in the rear of the home to guard

against anyone escaping from it.

*People v. Walker, 374 Mich. 331 (1965).

US DISTRICT CT MEMO 6-28-96 Ab4

Prior to trial petitioner moved to suppress a

statement he gave to the police following his

surrender and arrest. A pretrial, or Walker.1 hearing

was held on August 13, 1991, at which the trial judge

presided, to determine the voluntariness of the

statement. Petitioner testified that he contacted his

lawyer to arrange the arrest and was instructed by

his lawyer not to say or sign anything without his

lawyer present.

Q. Did that counsel give you any advice as to

answering any questions as to any police

officers, any where in the world concerning that

homicide, did that counsel give You advice.

A. Yes, you did.

Q. To the best of your recollection what advice

didI give you?

A. For me not to answer any questions

concerning the case or anything until you got there.

Don't sign nothing or make any statements until you

got there.

Q. When you walked into the police station was

that your attitude in answering any questicns to any

police officers any where?

A. That is correct.

Q. Did you ever change that any where

th bute a

“et

Na Bieta alae ies Saag SRR cL a hs ei, kate ihn an ata Mia Stn it

US DISTRICT CT MEMO 6-28-96

voluntarily?

A. No, I didn't.

Petitioner testified that after he surrendered to

the police through his attorney, he was taken to

Detroit Police Headquarters where he was

questioned by Sergeant Deborah Monte (Monte).

Although petitioner told Monte that his attorney was

supposed to meet him at the Mobile Crime Unit on

McGraw Street, Monte questioned petitioner in the

absence of his attorney.

Q. Tell us what happened and keep it as brief

as possible when she came in the room.

A. When she came in the room she said my

name is Sergeant Monte. She said what is

your name. I said Anthony Green. She

looked at the sheet of paper. I said I was

waiting on my lawyer. She said okay fine.

I want to ask you a couple of questions so

we can get you out of here. At that

time I said my lawyer told me not to

say anything about the case or sign

anything until he gets here. She said okay.

She wanted to ask me some questions. She

asked me about school. She asked me did I

play sports. Then she went back and asked

me, asked me did I know Nicole Cash

[and] I said is this concerning the case. ... I

told her my lawyer said not to answer any

ED Eve ROS KEN

piel stat haa eon rant Uintah Tad Fut iti a7 u8 dw abeyit e

US DISTRICT CT MEMO 6-28-96

A56

questions concerning the case. She said I

am trying to get you out of here quicker.

Petitioner's attorney then proceed to raise and

develop the issue of voluntariness. Petitioner

testified that during questioning an _ officer

handcuffed him and squeezed his wrists to the point

that petitioner received scars and nerve damage.

(By Mr. Crawford continuing) Go on?

[Monte] kept asking me questions. I put

my head down. I put my head down like I

wasn't paying attention to her. At that

time she told me to read the form. At this

time I guess it was the right form she was

talking about. I told her I couldn't read.

She said I wanted Co play games. She

came back twenty or thirty minutes later

with two officers, the officer in charge of

her and she was in the middle. One officer

was in back of her. The officer came in

there with handcuffs and told me to get

up kk *

What occurred next?

He put the handcuffs on me and told me

to sit in the seat and he--

*x**

US DISTRICT CT MEMO 6-28-96

One of the officers was in back of me and

one stayed at the door all the time, he

never-left the door. She said J want you to

make a statement now and [I said I told

you I will not make a statement until my

lawyer gets here. He put his hands on my

shoulders and he didn't yank hard he

swung it and said do what the ladv said

and make it easier on yourself.

* &

What did he do in terms of physicalness to

yourself?

He started squeezing my left wrist. I don't

know why he picked the left wrist. He, I

don't know why he picked the left wrist.

He started squeezing my left wrist while

he told me to make a statement.

k*k*

As a result of [squeezing] the handcuffs on

the wrist what physically occurred to the

wrist?

A nerve was damaged in the wrist.

US DISTRICT CT MEMO 6-28-96 A58

Q. Did you receive pkysical scars as a result

of that?

A. Yes. I did.

Would you hold your hand up and show

the scars that resulted from the handcuffs

on the wrist?

Okay, these are the marks.

Q. You have to hold that wrist-"

THE COURT: I can see it.

Q. (By Mr. Crawford continuing) As a result

of those scars did you receive any type of

medical attention?

A. Yes, I did.

(Emphasis added) . Although it was obvious that

petitioner's attorney was developing a record to

attack the voluntariness of petitioner's statement,

the trial judge abruptly intervened and peremptorily

refused to allow the questioning to continue:

Q. Did the doctor tell you that you had a

definite injury?

A. He said nerve damage.

US DISTRICT CT MEMO 6-28-96 A59

Q. To the best of your recollection of that

injury how did you get the nerve damage?

A. Squeezing my left wrist in the handcuffs.

THE COURT: Save all of that for Circuit

Get to the statement and your client's

position that he was making every

indication and waiting for you to arrive.

MR. CRAWFORD: It kind of like goes to the

voluntariness.

THE COURT: No, it doesn't. That's a _ civil

matter. This is a criminal court. Save that

for a civil iurv.

(Emphasis added). Petitioner's attorney nevertheless

continued:

Q. In respect to the statement did you give it

of your own free will?

No. I did not.

What caused you to give a statement?

Squeezing the wrist.

Were your wrist being squeezed at the

time you made verbal statement?

US DISTRICT CT MEMO 6-28-96 A60

A. Yes. it was.

Q. Then in vour opinion was vour statement

; SRO

A. Involuntary, for sure.

(Emphasis added).

Petitioner was then cross-examined. The

prosecutor raised the issue of voluntariness as well,

although his examination was brief because the trial

judge once again intervened. The record shows that a

great deal of confusion occurred during the trial

judge's questioning of petitioner. Notwithstanding

the question in the record regarding voluntariness,

as well as the petitioner's repeated assertions that he

could not concentrate during Monte's questioning

because an officer was squeezing his handcuffs, the

trial judge found thai petitioner's position was that

he did not make any statements to Monte. After

making this finding, the trial judge stated that she

had “nothing to rule on" with respect to

voluntariness and would not "waste time" to address

the voluntariness issue. The entire’ cross-

examination of petitioner follows.

BY MR. KING:

Q. Sir. you made an involuntary statement to

the police?

A. Yes. that is correct.

Q. They asked you if you shot anybody and

. $41 Op F Se ee Se ee :

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yee . baie EE I TE PRO ere or RES a NS bs

a US DISTRICT CT MEMO 6-28-96 A61

3 you said no?

A. They never asked if I shot anybody.

3 They asked if you seen anybody get shot

3 and you said no?

F A. I didn't answer any questions concerning

2 this case.

Q. ‘hey didn't ask any questions concerning

; this case. In other words you didn't give a

q A. I didn't give a statement until he done

z what he done.

4 Q. Any statement you gave, what statement

a did you give them?

4 A. She asked me questions. I was going by

a what she said.

a THE COURT: He wants to know what answers _

a you gave, sir.

q THE DEFENDANT: She was giving the

4 ven know what h ned in |

4 ing I said is what she told me. sh

said.

ete ge Ee a. oe

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US DISTRICT CT MEMO 6-28-96

A62

(By Mr. King continuing)

told her was involuntary, right?

That is correct.

Did she ask you did you shoot Nicole Cash,

did she ask you that?

That's what I was trying to explain.

Please answer my question. Did she ask

you did you shoot Nicole Cash?

A. Like I said I didn't know what she was

saying.

Q. Your answer is no, your answer is no?

MR.

THE

CRAWFORD: He is arguing with the

witness.

COURT: Mr. Green, this man's job is to

ask you questions. However the questions

and answers got there on that paper is

what he wants to 'know. He has the right

to ask you. Do you remember being asked

this question, did you shoot Nicole Case

whether he asked you that question or

somebody eise told you, asked you

that question. He wants to know was that

PE Rap a reece AM eee ERR SEE TER ety ROR On 1S MR LE ON PAG RA ee DEE TD ee ee ee

US DISTRICT CT MEMO 6-28-96 A63

one of the questions asked.

THE DEFENDANT: Truthfully I can't

remember certain questions. I wasn't

thinking about the questions at the time.

THE COURT: What kind of questions was she

asking you, sir, about the weather, what

kind of questions were being asked,

how you get the weather or what?

THE DEFENDANT: No. she was _ asking

questions off the paper she was reading.

What I'm saying I wasn't concentrating on

that. I wasn't concentrating on what

she was saying, what she was saying on

the sheet of paper. I was concentrating on

getting that handcuff loose, that's all that

was on my mind.

_ THE COURT: What answer was given when she

told you to answer?

THE DEFENDANT: I--

THE COURT: No, no, answer the question Mr.

Green. Stop playing games here. What

answer was given, the one she told you to

give, the ones that came out of your

US DISTRICT CT MEMO 6-28-96 A64

mouth?

THE DEFENDANT: I'm sure I said no to that

question when she asked did I kill her or

know who killed her.

THE COURT: Answer the question, sir, you

gave some answer out: of your mouth?

THE DEFENDANT: No, nothing but that one.

THE COURT: Just one?

THE DEFENDANT: Only one, did | know who

killed this person.

THE COURT: None of the answers did you give

or answer?

THE DEFENDANT: No. I heard the questions. I

was trying to say anything she wanted me

to sav so I could get loose. She was telling

me what I done.

THE COURT: You are saving that any answers

on this page are answers that _ the

Sergeant gave. not your words? Fine. get

down because I can't suppres ssomething

that somebody said they never said. I have

no time to play games with people. I can't

US DISTRICT CT MEMO 6-28-96 A65

suppress somethin id the Vv

said. (Emphasis added).

Petitioner's attorney immediately attempted

to clarify petitioner's position. The trial judge,

however, after blatantly misconstruing petitioner's

testimony, once again refused to consider the

voluntariness of the statement.

MR. CRAWFORD: I think it can be cleared up.

THE COURT: He said he didn't make an

answer. He said all the answers came out

of this woman's mouth, not his.

MR. CRAWFORD: I think, you Honor,--

THE COURT: No Mr. Crawford I cannot

suppress a statement that people say they

never made.

MR. CRAWFORD: I understand that, you

Honor.

THE COURT: He said the answers came out of

officer Monte's mouth. There is nothing to

suppress. nothing to rule on.

MR. CRAWFORD: Your Honor, I _ have

argument.

THE COURT: Have a seat Mr. Crawford, you

US DISTRICT CT MEMO 6-28-96 A66

have no argument to that issue. Set down.

Call your next witness or Mr. Lusby, let's

not waste time here gentlemen. We have

wasted all morning getting here as it is .

(Emphasis added).

, $

Ac trial, petitioner's statement was admitted in

evidence through the testimony of Monte.

Petitioner's attorney objected to the admission of the

testimony into evidence, but the trial judge, who had

also been the hearing judge, overruled the objection:

MR. CRAWFORD: The only objection. I think

the statement was forcefully extracted

from the Defendant based on the injuries

that existed that day.

THE COURT: Have you had a pre-trial motion

based on suppress based on that issue.

MR. CRAWFORD: We have.

THE COURT: Was there a ruling?

MR. CRAWFORD: Yes, there was.

THE COURT: I believe there was no ruling

because your .client's comments made it a

mute issue....

US DISTRICT CT MEMO 6-28-96 A67

(Emphasis added).

The trial judge, in finding petitioner guilty,

relied principally on the statement. (Transcript of

October 18, 1991, pp. 73-80).

The Michigan Court of Appeals, in an

unpublished opinion, affirmed the trial court. The

court framed the issue as follows:

Turning to the issues raised by defendant

Green, he first argues that the trial court erred in

introducing his statement which was not voluntarily

obtained and obtained in violation of his right to

counsel. We disagree. At the Walker hearing held

concerning the admissibility of defendant's alleged

statement to the police, defendant did not contest

either the voluntariness of the statement or whether

he had invoked his right to counsel, but rather

denied making a statement to the police at all. That

is, defendant claimed at the hearing that he had

made no statements, that the answers to the

questions in his alleged confession had come from the

interrogating officer. Thus, the question was not

whether defendant had voluntarily made a

statement, but whether he had made a statement at

all. This latter question involves a question of

credibility to be resolved by the trier of fact. That is,

that was for the trier of fact to determine whether

the officer testified truthfully concerning defendant's

having made a statement and the content of that

statement.

SEP tere eee, OE NT

US DISTRICT CT MEMO 6-28-96 A68

People v. Green, No. 150816, at p.3 (unpublished);

decided November 2, 1994 (footnote omitted).

ITT.

An involuntary confession may not be used

against a defendant. See Lego v. T'womey. 404 U.S.

477 (1972); Miller v. Fenton. 474 U.S. 104 (1985). "

[T]he ultimate question whether, under the totality

of the circumstances, the challenged confession was

obtained in a manner compatible with the

requirements of the Constitution is a matter for

independent federal determination." Miller. 474 U.S.

at 112. "The aim of the requirement of due process is

not to exclude presumptively false evidence, but to

prevent fundamental unfairness in the use of

evidence, whether true or false." Colorado v.

Connelly. 479 U.S. 157, 167 (quoting Lisenba_v.

California. 314 U.S. 219, 236 (1941)).

Pursuant to 28 U.S.C. § 2254 (d) , an application

for writ of habeas corpus may be granted if the

adjudication of the claim:

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light

US DISTRICT CT MEMO 6-28-96 A69

of the evidence presented in the State court

proceeding.

The United States Supreme Court has stated:

"Where the facts are in dispute, the federal court in

habeas corpus must hold an evidentiary hearing if

the habeas applicant did not receive a full and fair

evidentiary hearing in a state court, either at the

time of the trial or in a collateral proceeding. In other

words a federal evidentiary hearing is required

unless the state-court trier of fact has after a full

hearing reliably found the relevant facts." Townsend

v. Sain. 372 U.S. 293, 312-13 (1963).2

The refusal of the hearing judge to rule on the

voluntariness of the statement based on a finding

that petitioner denied making the statement is belied

by the record. Petitioner testified that the statement

he gave Monte was a parroting of her words in an

effort to avoid further pain. The trial judge's refusal

to address the issue of | voluntariness based on an

arbitrary interpretation of petitioner's testimony was

unreasonable under the circumstances. 3

US DISTRICT CT MEMO 6-28-96 A70

2 Townsend was overruled on grounds unrelated to this

case by Keeney v. Tamayo-Reyes. 504 U.S. 1 (1992) . The

Supreme Court in Townsend stated in part:[A] federal court

must grant an evidertiary hearing to a habeas applicant under

the following circumstances. If (1) the merits of the factual

dispute were not resolved in the state hearing; (2) the state

factual determination is not fairly supported by the record as a

whole; (3) the fact-finding procedure employed by the state

court was not adequate to afford a full and fair hearing ... or (6)

for any reason it appears that the state trier of fact did not

afford the habeas applicant a full and fair fact hearing.

Townsend. 372 U.S. at 313.

3 Similarly, the Michigan Court of Appeals’ statement

that “at the Walker hearing .defendant did not contest the

FOOTNOTE CONTINUED).

In finding petitioner guilty, the trial judge did

not clearly articulate the evidentiary basis for her

conclusion. Inferentially, it is fair to conclude that

the statement was integral] to the finding of guilty

because it appears there was no other evidence of

any substance against petitioner.

Accordingly, petitioner's conviction cannot stand

if the statement was involuntary. Because there has

been no prior determination of whether the

statement was involuntary, it appears that this

Court has the obligation to make that determination.

See Town send. 372 U.S. at 312-13. Because the

course the Court should follow is not clear, the Court

will hold a further hearing to be scheduled by the

deputy clerk.

PE fe TR ad Nag ee A Ne NE Mito CRE Pg oe eI Ba Boda Pek led Aes eke | ile i asa ea Ne an ea ie ie ache ie te ik > hastens seuh etn

US DISTRICT CT MEMO 6-28-96

/s/ AVERN COHN

AVERN COHN

UNITED STATES DISTRICT JUDGE

DATED: JAN281996

(footnote continued)

voluntariness of the statement" further grossly misconstrues

the record. Indeed, petitioner's attorney was attempting to

develop the record to contest voluntariness, and petitioner

himself said "I was crying to say anything she wanted me to say

so I could get loose" immediately prior to the judge's finding

that "I can't [suppress] something that somebody said they

never said."

MI CT OF APPEALS ORDER 7-26-07 A72

Court of Appeals, State of Michigan

ORDER Michael J. Talbot

Presiding Judge

People of MI v ROBERT GOZA

Docket No. 276870 E. Thomas Fitzgerald

LC No. 91/005995 Michael R. Smolenski

Judges

The Court orders that the delayed

application for leave to appeal is DENIED for

failure to meet the burden of establishing

entitlement to relief under MCR 6.508(D).

Presiding Judge

A true copy entered and certified by Sandra

Schultz Mengel, Chief Clerk, on

[SEAL]

Date JUL 26, 2007 /s/ Sandra Schultz Mengel

Chief Clerk

MICH SUPREME CT ORDER 11-29-07 A73

Order Michigan

Supreme Court

Entered’ November 29, 2007 Lansing, P.

Michigan .

134727 Clifford W. q

Taylor 4

Chief Justice q

Michael F. Cavanagh . ;

PEOPLE OF THE Elizabeth A. 7

Weaver 4

STATE OF MICHIGAN, Marilyn”

Kelly ——

Plaintiff- Appellee, Maura D. 4

Corrigan 4

Robert P. Young, Jr. :

Vv Stephen J. Markman 4

Justices 4

ROBERT GOZA, SC: 4

134727 a

COA:276870 a

Defendant-Appellant. Wayne CC: 91-005995

On order of the Court, the application for leave

to appeal the July 26, 2007 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

MICH SUPREME CT ORDER 11-29-07 A74

Supreme Court, certify that the foregoing is a true

and complete copy of the order entered at the

direction of Court.

November 29, 2007 /s/ Corbin R. Davis

Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.