STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF CALHOUN

__________________

THE PEOPLE OF THE STATE OF MICHIGAN, Case No. C82-128-FY

Plaintiff, HON. JAMES C. KINGSLEY

or Successor Judge
v

xxxxxxxxxxxxxxxxxxxxxxx,

Defendant,
_____________________________________/

CALHOUN COUNTY PROSECUTOR

Attorney for Plaintiff
Business Address:
161 E. Michigan Ave.
Battle Creek, MI 49017
Telephone: (269) 969-6980

xxxxxxxxxxxxxxxxxxxx
Attorney for Defendant

______________________________________________________

BRIEF IN SUPPORT OF MOTION FOR DNA TESTING,

AND FOR RELIEF FROM JUDGMENT
 TABLE OF CONTENTS
PAGE

INDEX OF AUTHORITIES.……………………………………………....…….……….………ii

QUESTIONS PRESENTED FOR REVIEW…………………………………………......…........v

INTRODUCTION.……………………………………………………………………….…….…1

TRIAL COURT PROCEEDINGS…………………………………………………….………..…1

POSTCONVICTION FILINGS, PROCEEDINGS, DECISIONS, AND ORDERS…...…..……13

LAW AND ARGUMENT………………………………………………………………...…..…15

I. THIS COURT SHOULD ORDER RELEASE OF THE BIOLOGICAL

EVIDENCE COLLECTED IN THIS CASE AND ORDER DNA
TESTING AT STATE EXPENSE PURSUANT TO MCL 770.16, AND
GRANT A NEW TRIAL AFTER SUCH
TESTING.………………………………………………….........................…….15

II. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL AT TRIAL, IN VIOLATION OF CONST 1963, ART 1,
§20 AND THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION, BY HIS COUNSEL’S FAILING TO
GIVE NOTICE OF AN ALIBI DEFENSE AND FAILING TO
ASSERT THAT DEFENSE AT TRIAL; AND TRIAL AND
APPELLATE COUNSELS’ FAILURE TO SO RAISE THE ISSUE
WAS INEFFECTIVE ASSISTANCE OF COUNSEL, ENTITLING
DEFENDANT TO A NEW TRIAL UNDER MCR 6.508………………………24

CAUSE AND PREJUDICE…………………………………..…….……………28

III. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL AT TRIAL AND ON DIRECT APPEAL, IN VIOLATION
OF CONST 1963, ART 1, §20 AND THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION, BY
HIS TRIAL COUNSEL’S FAILING TO REQUIRE THE
PROSECUTION TO PRESENT IMPORTANT RES GESTAE
WITNESSES AT TRIAL; AND APPELLATE COUNSELS’
FAILURE TO RAISE THE ISSUE ON DIRECT APPEAL WAS
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL,
ENTITLING DEFENDANT TO A NEW TRIAL
UNDER MCR 6.508……………………………………………………………..32

CAUSE AND PREJUDICE…………………………………..…….……………36

i
 IV. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL AT TRIAL AND ON DIRECT APPEAL, IN VIOLATION
OF CONST 1963, ART 1, §20 AND THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION, BY
HIS TRIAL COUNSEL’S FAILING TO INVESTIGATE THE ISSUE
OF DEFENDANT’S INITIAL DIRECT IDENTIFICATION AS THE
ASSAULTER; AND APPELLATE COUNSELS’ FAILURE TO
RAISE THE ISSUE ON DIRECT APPEAL WAS INEFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL, ENTITLING
DEFENDANT TO A NEW TRIAL
UNDER MCR 6.508.…………………………………………………………….38

CAUSE AND PREJUDICE…………………………………...…………………41

RELIEF REQUESTED …………………………………………………………..…..………….44

ii
 INDEX OF AUTHORITIES
Page
Michigan Cases

Maher v People, 10 Mich 212 (1862)…………………………..………………………..33

People v Austin, 95 Mich App 662 (1980)…………………………...…………………..33

People v Burden, 392 Mich 462 (1975)……………………………………...………..…24

People v Erb, 48 Mich App 622 (1973)……………………………………………….…24

People v John Johnson, 58 Mich App 60 (1975)………………………………...………24

People v Loudenslager, 327 Mich 718 (1950)……………………………………...……24

People v Dickinson, 2 Mich App 646 (1966)…………………………...…………….35,37

People v Edward Lewis Higley, unpublished opinion per curiam of

the Court of Appeals, issued February 24, 1984 (Docket No. 66724)…...............14

People v Ginther, 390 Mich 436 (1973)…………………………………………………44

People v Hadley, 67 Mich App 688 (1976)………………………………………………33

People v Johnston, 76 Mich App 332 (1977)…………………………………….………33

People v Kayne, 268 Mich 186 (1934)…………………................................…………...33

People v Pearson, 404 Mich 698 (1979)………………………………...………………32

People v Petrov, 75 Mich App 532 (1977)………………………………………...……..33

People v Pickens, 446 Mich 298 (1994)…………….……………27,29,30,31,36,37,41,42

People v Raider, 256 Mich 131 (1931)……………………….………………………33,37

People v Rappuhn, 78 Mich App 348 (1977)…………………………………………….33

People v Reed, 449 Mich 375 (1995)………………….………27,28,29,30,31,36,37,41,42

People v Robinson 390 Mich 629 (1973)…………....……………….…………………..32

People v Sharbnow, 174 Mich App 94 (1989)………………………………..………….44

People v Tann, 326 Mich 361 (1949)…………………………………………………….33

iii
Michigan Court Rules

MCR 6.501, Staff Comments………………………………………...………...………..28

MCR 6.504(B)(4)………………………………………………………………..……….44

MCR 6.506……………………………………………………………………………….44

MCR 6.508(C)…………………………………………………………………………...44

MCR 6.508(D)………………………………………………...……………………….1,28

MCR 6.508(D)(1)……………………………………………………..……...………….29

MCR 6.508(D)(3)…………...………………………………………...…………..….….28

MCR 6.508(D)(3)(b)(i)……………...…………………...……….……….………32,37,43

MCR 6.508(D)(3)(b)(iv)……………...………….………………………….…….………1

Michigan Statutes

MCLA 750.83……………………………………………………………………………...1

MCLA 750.316…………………………………………………………………………….1

MCLA 767.40…………………………………………………..……………………..32,36

MCLA 770.16.........……………………………………......…...1,15,18,19,20,21,22,23,44

Federal cases

Gadsen v United States, 223 F2d 627 (CA DC, 1955)…..…………………………..27,29

Gideon v Wainwright, 372 US 335 (1963)……………………………………..……27,29

Stewart v Wolfenbarger, 468 F 3d 338 (6th Cir, 2006)……………….…………………40

Strickland v Washington, 466 US 668 (1984)…………………….…27,28,29,30,31,36,41

Towns v Smith, 395 F 3d 251 (6th Cir, 2005)……………………...……………………..40

iv
 QUESTIONS PRESENTED FOR REVIEW

I. WHETHER THIS COURT SHOULD ORDER RELEASE OF THE

BIOLOGICAL EVIDENCE COLLECTED IN THIS CASE AND ORDER DNA
TESTING AT STATE EXPENSE PURSUANT TO MCL 770.16, AND GRANT A
NEW TRIAL AFTER SUCH TESTING?

II. WHETHER DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL AT TRIAL, IN VIOLATION OF CONST 1963, ART 1, §20 AND
THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION, BY HIS COUNSEL’S FAILING TO GIVE NOTICE OF AN
ALIBI DEFENSE AND FAILING TO ASSERT THAT DEFENSE AT TRIAL;
AND WHETHER TRIAL AND APPELLATE COUNSELS’ FAILURE TO SO
RAISE THE ISSUE WAS INEFFECTIVE ASSISTANCE OF COUNSEL,
ENTITLING DEFENDANT TO A NEW TRIAL UNDER MCR 6.508?

III. WHETHER DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL AT TRIAL AND ON DIRECT APPEAL, IN VIOLATION OF
CONST 1963, ART 1, §20 AND THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION, BY HIS TRIAL COUNSEL’S FAILING
TO REQUIRE THE PROSECUTION TO PRESENT IMPORTANT RES
GESTAE WITNESSES AT TRIAL; AND WHETHER APPELLATE
COUNSELS’ FAILURE TO RAISE THE ISSUE ON DIRECT APPEAL WAS
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, ENTITLING
DEFENDANT TO A NEW TRIAL UNDER MCR 6.508?

IV. WHETHER DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL AT TRIAL AND ON DIRECT APPEAL, IN VIOLATION OF
CONST 1963, ART 1, §20 AND THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION, BY HIS TRIAL COUNSEL’S FAILING
TO INVESTIGATE THE ISSUE OF DEFENDANT’S INITIAL DIRECT
IDENTIFICATION AS THE ASSAULTER; AND WHETHER APPELLATE
COUNSELS’ FAILURE TO RAISE THE ISSUE ON DIRECT APPEAL WAS
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, ENTITLING
DEFENDANT TO A NEW TRIAL UNDER MCR 6.508?

v
 INTRODUCTION

Following a seven-day jury trial before the Honorable James C. Kingsley, Defendant

Edward Lewis Higley was convicted on July 1, 1982 of Murder in the First Degree in violation

of MCLA 750.316; MSA 28.548, and Assault with Intent to Commit Murder in violation of

MCLA 750.83; MSA 28.278.

On August 16, 1982, Judge Kingsley sentenced Defendant to the statutorily-mandated

sanction of life imprisonment without possibility of parole on the murder charge, and to not less

than sixty (60) years nor more than one hundred (100) years on the assault charge. Defendant’s

convictions were affirmed on direct appeal to the Michigan Court of Appeals in February of

1984. The Michigan Supreme Court denied leave in October of 1984.

By way of the instant motion, Defendant asks this Court to grant relief

in the form of a new trial after DNA testing pursuant to MCL 770.16, and on

account of defects and errors due to ineffective assistance of counsel.

Absent the defects and errors, the Defendant would have had a reasonably

likely chance of acquittal, and Defendant is entitled to relief pursuant to MCR

6.508(D).

A statement of facts regarding the trial court proceedings, as well as all

postconviction filings, decisions, and orders is set forth below, followed by

law and argument.

TRIAL COURT PROCEEDINGS

On New Year’s Eve in 1981 at approximately 11:15 p.m., Mr. and Mrs. Kenneth Yingling

returned to their home at 124 N. Woodlawn in Battle Creek, Michigan after having spent the

evening at a neighbor’s. (1982 Trial Transcript, hereinafter “T”, pp 220-221, 224) When they

pulled into their driveway, they saw two pairs of feet lying in the snow. (T, pp 221, 224) They

1
immediately backed out of their driveway to another residential location to call the police. (T, pp

221, 225)

Battle Creek police officer Edwina Hoard was one of the first people at the scene about

11:19 p.m. (T, pp 212, 218) She observed blood, and two bodies lying in the driveway. (T, p

214) One was located between the house and a car parked in the driveway, apparently alive.

The second was similarly located, but very close to the house, with no vital signs—14-year-old

Jacqueline Johnson. (T, p 215) Officer Hoard accompanied the still living victim, 12-year-old

Tracy Hosken, to the hospital. (T, p 215) Hoard testified that she observed multiple cuts about

the face and neck of Ms. Hosken, and also observed cuts and stab wounds about her upper chest

and abdomen. (T, pp 215-216)

Dr. Bader Cassin performed the autopsy upon Jacqueline Johnson's body. (T, p 340) He

testified there was a large area of injury to the head. The nature of the crushing injury indicated

the skull was resting against a hard surface when it received the blow. Dr. Cassin opined that the

cause of death was a crushing blow to the skull (T, pp 342-343), and stated that the numerous

cutting and slashing wounds were not in themselves life threatening. (T, pp 342, 347) Dr. Cassin

stated that the cement block found at the scene could have caused the fatal injury (T, pp 346),

and opined the time of death was sometime between 9:00 p.m. and 11:00 p.m. (T, p 358).

As to the source of the cutting and stabbing wounds, Dr. Cassin characterized the weapon

as a knife, and stated that either the knife found in Defendant's basement, Trial Exhibit #5, or the

one found at the scene, Trial Exhibit #11, could have caused the wounds he observed (T, pp 350,

352), although he could not say that either one was the knife that was actually used. (T, pp 353-

356)

A team of detectives—Belote, Zuiderveen, Yesh, VanStratton, and Baker—was called in

to the police station shortly after midnight to begin the investigation. (T, p 755) Though there

was absolutely no physical evidence that tied Defendant to the scene of the crime (either at that

2
time or to this day), suspicion for the assaults immediately fell upon Ed Higley. “After receiving

information in reference to the incident”, Baker left at about 1:00 a.m. with another officer for

382 West Gougac Street to make contact with the Defendant. (T, p 755)

The police theory, which became the prosecution’s trial theory as to motive, was

that Defendant was distraught over the recent termination of his relationship with Sharon Rogers

and murdered Ms. Roger’s daughter, Jacqueline Johnson, and viciously assaulted “Jackie’s”

friend, Tracy Hosken, on December 31, 1981 (T, pp 197-198). Sharon Rogers had known

Defendant approximately four years at the time of the homicide. They were going

together as boyfriend-girlfriend prior to New Year’s Eve 1981, with the Defendant having lived

with Sharon and her daughter for about a year during the relationship. (T, p 826) The

Defendant and the deceased did not get along well; Sharon identified that as

the main reason she began to sever the relationship. (T, p 833)

The prosecution’s theory of the case at trial became that Defendant

had made a series of prank phone calls threatening to kill the two victims

sometime after 8:30 p.m. and thereby lured them outside of Sharon Rogers’s

home at 108 N. Woodlawn and over to a nearby school. Armed with kitchen

knives, the victims waited for a while at the school then separated with

Tracey first chasing after then running off with the Defendant over to 124 N.

Woodlawn—the Yinglings’ home where the bodies were found. The

prosecution contended that the Defendant assaulted Tracey at that location,

then went back to 108 N. Woodlawn at 10:00 p.m., when he lured Jackie back

out of the house while she was speaking to fellow teenager Andy Shepard on

the telephone, and somehow got her to 124 N. Woodlawn whereupon he

killed her. (T, pp 198, 1010, 1084)

3
 Detective Baker arrived that evening at the West Gougac address and noticed bloodstains

on clothing associated with and on the interior of a white station wagon parked on the corner. He

entered the house when there was no answer to his knock and announce out of concern for

Defendant’s welfare. He found Defendant sleeping nude in his bedroom and had to rouse him.

Nobody else was in the house. The Defendant had masking tape wrapped around the fingers of

his left hand. He agreed to go to the police station to cooperate in an investigation. (T, pp 757-

759)

In a special record outside of the presence of the jury, Detective Belote explained that he

told Defendant at about 2:00 a.m. at the police station that Higley was the principal suspect in a

homicide investigation, and read Higley the Miranda warnings. The Defendant wanted to speak

with an attorney, so questioning stopped. The police let him go back to sleep in the interview

room. At about ten minutes to five in the morning, Belote returned to the interview room to

advise Defendant he now had “more information” and was putting him under arrest for murder.

He walked the Defendant through the book-in process. (T, pp 775-777)

With the jury back in, both Detectives Belote and Baker testified that Defendant without

being asked to do so began at book-in to offer to explain hand injury circumstances and the

presence of a knife with blood on it at West Gougac. (T, pp 804-805, 899) Belote had taken

pictures of Defendant’s hands. (T, p 898) The Defendant explained in his direct testimony at

trial that he had cut his right hand with a paring knife found in his home, but when he attempted

to explain the injury to left hand, the police cut him off by telling him he had already exercised

his rights. (T, pp 948-949) At trial, the Defendant testified he cut his left hand by slipping and

falling on an icy road with a piece of broken glass in his hand after sliding his car off that road on

the way back home from checking on the whereabouts of Sharon Rogers. (T, pp 932-934)

Belote himself conceded that “they (weather conditions) were not favorable, it had—it was icy

out, I believe it had rained and then the temperature dropped, causing untraveled roads to be

4
hazardous, however, the traveled roads were passable, you could drive with certain amount of

safety.” (T, p 908)

The Defendant had indeed cut his left small finger badly, severing the tendon, and both

physicians who examined and treated the wound the next day testified that it could have been

made by a knife or by a piece of broken glass. (Deposition testimony of Dr. Schauer, pp 9-10);

(Deposition testimony of Dr. Comai, pp 6, 11).

At the time of his arrest, there were no witnesses placing the Defendant at the scene of

the crime, there was no physical evidence at the scene of the crime tying him to the scene by way

of fingerprints, shoeprints, or otherwise; nor was there anything known to have come from the

scene of the crime found in a search of his house or on his person. Tracy Hosken would remain

unconscious for 10 more days. (T, p 910) All the police had to support its conclusion was what

it perceived to be motive. In point of fact, Detective Belote told Sharon Rogers while Tracy

Hosken was still unconscious that if Tracy did not identify the Defendant as the attacker, he

would “walk”. (See attached Affidavit of Sharon Rogers)

At some undetermined point on or about January 11, 1982, unidentified

nurses had reportedly informed the charge nurse Ms. Struwin at Community

Hospital that Tracy had begun to make statements in regard to the incident,

and was identifying who had attacked her. Her condition was still critical at

the time. Neither the unidentified nurses nor Ms. Struwin were interviewed

by the police or produced at trial. The charge nurse informed Detective

Belote of what the unidentified nurses had told her. (See attached Exhibit 1,

January 11, 1982 Supplemental Police Report). Though he testified at trial

that the interaction was “very, very limited” (T, p 910), the police report

commemorating the first contact indicated Tracy used the word “Ed”, and

“Ed beat me” and “Ed put me in the hospital.” A full interview was

5
conducted by the Detective with the aid of a psychologist the following

Saturday, which would have been January 17, 1982. (T, p 911)

The items of physical evidence recovered by the police ended up shedding no light upon

the identity of the perpetrator. No DNA tests have been done on that evidence to date. The

prosecution called Curtis Fluker, a forensic scientist with the Michigan State Police. After voir

dire by defense counsel, Fluker was qualified as an expert witness in the field of serology (T, p

580), and over Defendant's objection, also in the field of microscopy. (T, p 587) Fluker tested

several items seized from Defendant, his residence, and his car: Defendant's eyeglasses, several

towels, a knife and pair of boots seized in Defendant's basement, a pair of gray pants, and a pair

of blue pants. (T, pp 589-590) He also tested the cement block found at the scene. (T, p 591)

Fluker was able to identify human blood stains on the cement block, Defendant's glasses,

several towels, the knife, both pair of pants, and one of the boots (T, p 591). Fluker opined that

the blood found on the blue pants, one of the towels, and the boot was the Defendant’s,

consistent with Defendant’s testimony of having cut himself. The blood on one of the towels

was consistent with either Defendant or Ms. Johnson, and inconsistent with Ms. Hosken. Fluker

was unable to adequately test the remaining evidence (T, pp 608-627), including the cement

block. Thus none of the tests linked the Defendant to either of the victims; their blood was not

found on his clothing or towels, and neither was his found on theirs. (T, pp 569-607)

Several strands of hair were seized as evidence. One was taken from

the left hand, and one was taken from the right hand of the decedent at the

autopsy. Dr. Cassin stated that would usually indicate the victim had

grabbed a hairy portion of the body of the assailant. (T, pp 323, 357)

Although he could not perform blood analysis on the cement block, Fluker did

remove hair strands from it. (T, pp 599-600) The different hairs could not be

identified, although they were not consistent with the Defendant’s hair. (T,

6
pp 606-608) Fingernail clippings and scrapings from the decedent were

taken at the autopsy (T, p 357, See attached Exhibit 2: VanStratton’s 1/1/82

Supplementary Offense Report), but there was evidently no testing ever

done on them.

Tracy Hosken (T, p 851) testified at trial that on the evening in question she and Jackie

Johnson had planned to hang around the neighborhood. (T, p 853) When Jackie’s mother left

the Rogers house at 108 N. Woodlawn, the two girls spent some time at an arcade place called

the Game Room (T, p 827), after which they returned to Jackie's house on Woodlawn. (T, p 855)

Sharon Rogers received a phone call from her daughter Jackie at approximately 8:30 p.m. to let

Sharon know that Jackie was home. (T, pp 828-829)

Ms. Hosken related that the phone began to ring. Jackie answered the first time, and the

conversation lasted three or four minutes. (T, p 857). Tracy was given the phone to listen, and

heard the caller whispering, "I'm going to kill you." (T, p 858). Tracy did not recognize the

caller's voice as being Defendant’s. (T, pp 889-891) She gave the telephone back to Jackie, who

continued to speak with the caller for a few minutes before hanging up. (T, p 858) Three or four

minutes after the first call, the telephone rang again. (T, p 859) Tracy only observed this

conversation. (T, p 859) She heard Jackie ask the caller to meet them at the Lamora Park School

near the house. (T, p 859) Tracy said the caller wanted Jackie to come to the school playground

alone. (T, p 860) After Jackie hung up the phone, Tracy said the two girls each grabbed kitchen

knives. (T, p 860) Tracy put hers in her back pocket. (T, p 860) They then left the house for the

school playground. (T, p 861) They proceeded to the outdoor basketball court. The plan was for

Tracy to hide by the teacher's lounge area of the school until the "mystery" person showed up.

(T, pp 863-864)

After hiding for 10 to 15 minutes, Tracy emerged into the open (T, p 864), when she saw

someone standing near the pine trees. (T, p 868) She ran over towards him, and said she did so

7
despite Jackie’s warning her not to go after him or her because “she [Jackie] did not know who it

was.” (T, p 869). The chase with Tracy in pursuit ended at Sharon Roger’s driveway. (T, p 869)

Tracy later identified the person she was pursuing as Defendant Edward Higley. (T, p 870).

Tracy testified she caught up with Defendant, and they talked. (T, p 870) She said Jackie

was still walking in the field at this time, not giving chase as Tracy Hosken had. (T, p 870)

When last she saw her, Jackie was walking towards them. (T, pp 870, 872) Defendant grabbed

Tracy Hosken by the arm and said, "Come on", and they started running a few houses down from

Sharon and Jackie’s house. (T, p 871) Although she did not really know, Tracy guessed the

reason for doing so was to hide from Jackie (T, p 871). Tracy presumed Jackie had returned to

her house. (T, pp 870, 872) After Tracy and Defendant shared a marijuana cigarette, he pulled

her down to the ground and hit her in the forehead. (T, pp 871-873) He apologized and hugged

her (T, p 873). He then started twisting her head. The next thing she remembers was being in

the hospital. (T, pp 874, 875)

Defendant Higley testified and gave a much different account than Tracy. On the evening

in question, a New Year's Eve party took place at 382 West Goguac in Battle Creek, where

Defendant shared a house with Richard and Teresa Yingling (son and daughter-in-law to Kenneth

Yingling), and Mark Alexander. (T, p 374). The party began about 7:00 p.m., and several

friends dropped in. (T, p 378)

He had been drinking a mixture of Kessler and Coke, but he was not drunk. (T, p 928)

At around 9:15 p.m. he telephoned Sharon Rogers (T, p 928). Their conversation lasted a little

over 45 minutes until about 10:00 p.m. (T, p 928) Intending to see Sharon, he then left the

house and drove over to Carol Simpson's on Avenue A. (T, p 929) He drove to the front of the

house and got out of his car. (T, p 929) He walked across the street into the alley that runs

beside the house and looked into the dining room area of the house. (T, p 929) He saw Sharon

Rogers and Carol Simpson inside.

8
 After rethinking whether or not he wanted to create a scene, he turned around and walked

back to his car to go home to wait for her to call like she said she would. He drove down to the

next block, made a U-turn, and headed back home east on A Avenue. (T, p 930) The road

conditions that night were icy, snowy, and very slippery. (T, p 930) During the drive, he turned

right on a short street that runs up over the railroad tracks to Upton Avenue in front of

Springfield Elementary School. (T, p 931) He then proceeded to turn left on Upton to go right

to Twentieth Street. (T, p 931)

As he was turning the corner onto Upton, he hit an object. He hit his brakes and slid off

into the front driveway of the school up into the hedges. (T, p 932) He then got out of his car to

see what he had hit. (T, p 932) He saw a broken bottle in the road a few feet from the car (T, p

932), walked over to it, and knelt down to pick up a bulbous wine bottle, probably a half gallon.

The neck was broken off, and the body of it was in several large pieces. As he went to throw it

across the street, he slipped and fell on his butt while the glass was still in both hands. It was at

that time that he cut his hand left hand badly. (T, pp 932-933) He grabbed his hand, held it up to

his chest to try to stop it from bleeding. (T, p 934) After he had returned to his vehicle, he

wrapped his hand in some clothing he had from work. (T, p 934)

He then drove back home to 382 West Goguac Street. Once he arrived, he stripped down

to his shorts and started washing his clothes that had blood on them along with some other items

that had been lying around. (T, p 935) He grabbed a green blanket that was laying on the top of

a motorcycle, wrapped himself in it, and then went upstairs (T, p 936). Once upstairs, he

explained to those at the party what had happened, that he had ran off the road. (T, pp 937, 949)

He went into his bedroom, put on some blue jeans, and used some rags to get the bleeding

stopped. (T, p 938) He went to bed. (T, p 946)

Sharon Rogers and her friend Carol Simpson supported the timing of the Defendant’s

story. Sharon spent that New Year's Eve playing cards with her best friend Carol Simpson at

9
Simpson’s home at 287 Avenue A in Battle Creek. (T, p 737) She had arrived at approximately

7:30 p.m. (T, p 827) Shortly after 9:00 p.m. that evening, Defendant telephoned for her (T, p

737), and a lengthy conversation ensued. (T, p 738)

The conversation centered around their break-up. Rogers felt that their relationship had

been rocky for the past three months. (T, p 833) She told the jury that the failure of the

Defendant and her daughter Jackie to get along well was the main reason she began to end the

relationship. (T, p 833) The Defendant had been concerned with, and wanted to take a more

active role in dealing with, Jackie's discipline problems. (T, pp 839-841) He expressed during

their phone conversation that he was sorry that things between them had ended up the way they

had, and that he still loved her, and wanted to see her (T, p 831). The Defendant invited her to

the party, but Ms. Rogers declined (T, p 830), though she promised to telephone him when she

returned to her home. (T, p 831)

Sharon looked at the clock when the conversation ended. It was 9:50 p.m. She had

requested that Jackie call her about 10:00 p.m., and she testified that Jackie did so. (T, p 836)

Carol Simpson confirmed that shortly after 9:00 p.m. that evening, Defendant telephoned

for Sharon Rogers. (T, p 737) The conversation between Sharon and Defendant lasted

approximately 45 minutes. (T, p 738) Ms. Simpson believed that the telephone conversation

ended somewhere in the area of 10:00 p.m. (T, p 738) Ms. Simpson’s dogs became agitated at

about 10:30 p.m. Ms. Rogers remarked that it was probably Defendant checking up to see if she

was there. (T, pp 740-742)

The witnesses at the 382 West Goguac Street party also supported the timing of the

Defendant’s story.

Teresa Yingling noticed at approximately 10:00 p.m. that the telephone in the house was

being used, and that the cord was extended into Defendant's bedroom with the door closed. (T,

pp 379-380) The Defendant was in his bedroom at this time. (T, pp 379-380) The next time she

10
saw Defendant he was wrapped in a green blanket and was coming up the basement steps at

approximately ten minutes after 11:00 p.m. (T, p 381) He walked directly to his bedroom. (T, p

382) Defendant came out of his bedroom five minutes later wearing a pair of blue jeans.

Debra Cooper was also at the party on West Goguac that evening. Ms. Cooper's

testimony basically corroborated that of Mrs. Yingling in terms of the general events that night.

She arrived at approximately 8:45 p.m. (T, p 412), and Defendant left the house about an hour or

an hour and a half after she arrived. (T, p 413) When Defendant was asked by those at the party

what had happened to him, he said he had gotten into a car accident or went off the road. (T, pp

417-418)

Richard Yingling also gave a similar accounting of the events of December 31, 1981.

Sometime after 9:00 p.m., he noticed that the Defendant was in his room with the telephone.

This went on for approximately 45 minutes (T, pp 429, 430). After Defendant hung up the

phone, he said he was going to leave for a little while and be back. (T, p 430)

Mark Alexander was also at the party, and his testimony was consistent with that of the

other witnesses. He testified that Defendant left the house sometime after 10:00 p.m. and

returned about 11:30 p.m. (T, pp 453-454) The Defendant told him his car went off the road.

(T, p 455)

Steven Yingling, also present at the party, essentially corroborated the testimony of the

other witnesses (T, pp 485-499). He testified that Defendant was gone for about one hour. (T, pp

494-495)

Randall Issacs testified that he also was at the party. (T, p 502) Defendant had been on

the telephone in his bedroom for approximately an hour. (T, p 503) Later that evening,

approximately 10:15 p.m., Defendant said he was going out. (T, p 503) Shortly after 11:00 p.m.,

Mr. Issacs saw Defendant back at the house. (T, p 504)

11
 Tina Morgan knew that Defendant arrived back at West Gougac about 11:00 p.m.,

because she left around 11:10 p.m. to go to another party with Debra Cooper. Defendant had

said in the kitchen in front of her, Mark Alexander, Rick Yingling, Teresa Yingling, Debra

Cooper, and Steven Yingling that he had been in an accident. He advised the two departing girls

to be careful driving. (T, pp 520-523)

Eighth grader Andy Shepard testified that he received a telephone call from Jackie

Johnson on New Year's Eve at precisely 10:00 p.m., just as the television show he was watching

(Magnum P.I.) was ending. (T, pp 692-695, 698) After talking to her for three minutes (T, pp

695, 699), he heard her exclaim, cussing, sounding shocked—“Oh my God”, “come on out”,

“come out of there, you guys” (T, pp 695-696, 700) Andy said, “what?”, but got no response.

He heard another female voice. (T, pp 701-702) He heard a door slam in the background, and

then the phone was hung up at Jackie’s end. (T, pp 695-697, 700-701) The entire conversation

lasted less than five minutes. (T, p 703)

On July 1, 1982, the jury returned verdicts of guilty on both the charge of first degree

murder and assault with intent to murder.

12
 POSTCONVICTION FILINGS, PROCEEDINGS, DECISIONS, AND ORDERS

Approximately one week after the July 1, 1982 conclusion of the trial, Tracy Hosken’s

mother Susan Hosken contacted the Prosecutor and informed him of something which she felt

should be brought to his attention. On the final day of the trial, the respective attorneys made

their closing arguments, and then the trial broke for lunch. The Court instructed the jury after

lunch and deliberations began. (Hearing Transcript ‘HT’ 2, p 5) While Susan, Tracy, and two

young friends were having lunch at a restaurant, one of the jurors had approached and interacted

with Tracy.

The Prosecutor’s office promptly informed the Court and defense counsel. The defense

filed a post-trial motion for a new trial based on juror misconduct, and a hearing was conducted

by the trial court which took place on August 3, 1982 (HT 1), August 11, 1982 (HT 2), and

concluded on August 16, 1982 (HT 3). The Court heard testimony from four jurors, the

Hoskens, and the two others in their lunch party.

Tracy Hosken testified she went to lunch that day with her mother, Christine Sackett, and

Davena Lowe (HT 1, p 34). Her mother and Christine Sackett went up to the counter to order

while she and Davena Lowe were seated in a booth across from each other (HT 1, p 35). As they

conversed, a man came up to her and said, “Hi, and how are you?” (HT 1, p 35). He said, “It

must be hard on you,” to which she replied “Yea, I guess.” (HT 1, p 35) Tracy testified the

man’s exact words then were “We're all behind you, whatever happens.” (HT 1, p 35) As he

spoke to her, he patted her on the back. (HT 1 36) She identified him as juror King. (HT 1, p

36)

The trial court denied the motion for a new trial because there had been no “showing of

prejudice or…a basis for cause. …I am not convinced there is a grounds for a

mistrial, Mr. Stevens, based upon the testimony presented, and I therefore

13
will deny the motion for a mistrial.” (HT 3, p 3) The Defendant was sentenced

immediately thereafter.

Defendant then filed a direct appeal as of right with the Michigan Court of

Appeals, and raised two issues which trial and now appellate counsel

Stevens framed thusly:

I. MUST DEFENDANT-APPELLANT’S CONVICTION BE REVERSED

WHERE A JUROR EXPRESSED AN OPINION AS TO THE MERITS OF THE
CASE PRIOR TO DELIBERATION?

II. DID THE TRIAL COURT ERR IN PERMITTING THE JURY TO SEE A
GRUESOME, INFLAMMATORY PHOTOGRAPH NOT MATERIAL TO ANY
CONTESTED ISSUE IN THE CASE?

On February 24, 1984, the Court of Appeals affirmed Defendant’s convictions

in an unpublished opinion, holding that Defendant had failed to show prejudice from the juror

misconduct and that trial counsel had failed to preserve the photograph issue for appeal. People

v Edward Lewis Higley, unpublished opinion per curiam of the Court of Appeals, issued

February 24, 1984 (Docket No. 66724).

Using new counsel, the Defendant then made delayed application for leave to appeal to

the Michigan Supreme Court raising the following two issues:

I. WAS DEFENDANT/APPELLANT DENIED A FAIR TRIAL AND IMPARTIAL

JURY WHERE, ON THE LAST DAY OF TRIAL AND BEFORE
DELIBERATIONS HAD BEGUN, A JUROR DELIBERATELY APPROACHED
AND EXPRESSED HIS SYMPATHIES TO THE SURVIVING VICTIM IN THE
CASE, THE KEY PROSECUTION WITNESS?

II. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY DENYING

DEFENDANT’S MOTION FOR A DIRECTED VERDICT ON THE FIRST-
DEGREE MURDER CHARGE WHERE THE PROSECUTOR FAILED TO
PROVE THE ESSENTIAL ELEMENT OF PREMEDITATION BEYOND A
REASONABLE DOUBT?

In a one-page Order dated October 24, 1984, the Michigan Supreme Court denied Defendant’s

delayed application “because the court is not persuaded that the questions presented should be

reviewed by this court.”

14
 Defendant has not filed any post-appeal motions in state court nor filed for habeas relief

in federal court to challenge his conviction and sentence.

15
 LAW AND ARGUMENT

I. THIS COURT SHOULD ORDER RELEASE OF THE BIOLOGICAL

EVIDENCE COLLECTED IN THIS CASE AND ORDER DNA TESTING AT
STATE EXPENSE PURSUANT TO MCL 770.16, AND GRANT A NEW TRIAL
AFTER SUCH TESTING.

Michigan's Post-Conviction DNA Testing Statute, codified at MCL 770.16, provides in

pertinent part that any person serving a prison sentence for a felony conviction may petition the

circuit court to order DNA testing of biological material identified during the investigation

leading to his or her conviction, and for a new trial based on the results of the testing. The

petition must be filed no later than January 1, 2009. Under MCL 770.16(3), the court must order

DNA testing if the defendant does all the following:

“(a) presents prima facie proof that the evidence sought to be tested is material to
the issue of the convicted person's identity as the perpetrator of, or accomplice to,
the crime that resulted in the conviction.

(b) establishes all of the following by clear and convincing evidence:

(1) A sample of identified biological material described in subsection (1)

is available for DNA testing.

(2) The identified biological material described in subsection (1) was not
previously subjected to DNA testing or, if previously tested, will be
subject to DNA testing technology that was not available when the
defendant was convicted.

(3) The identity of the defendant as the perpetrator of the crime was at
issue during his or her trial."

At the scene of the crimes and at the autopsy, various evidence was collected by the police. At

Mr. Higley’s trial, many exhibits were introduced and admitted including hair exemplars and

other physical evidence such as a cement block with blood stains. Much of this evidence was

recovered by the Battle Creek Police Department and turned over to the Michigan State Police

Crime Laboratory for blood typing and microscopic examination before trial. There was no

DNA testing conducted. A description of the evidence that was collected and preserved, and a

statement regarding its relevance to the crimes is set forth below.

16
 a. The evidence sought to be tested is material to the issue of the Defendant’s
identity as the perpetrator of the crimes of conviction.

The Defendant has steadfastly maintained he was not present at the crime scene when the

crimes occurred, and testified in conformance therewith at trial. (T, pp 950, 974-976) He

claimed to have been at a party some five miles from the crime scene speaking with Sharon

Rogers by telephone, and then remaining at the party at the kitchen table for as long as 45

minutes. The crimes were committed approximately 20 to 30 minutes prior to the end of that

time period. The Defendant's testimony as to his pre-crimes whereabouts was corroborated by

prosecution witnesses.

Even if one adopted the most conservative time line of events so as to cast them in the

light most favorable to the prosecution, and one therefore concludes the Defendant may have

been physically able to be present at the murder scene, he certainly beyond any question could

not have been present to engage in the pre-assault activities testified to by Ms. Hosken that

formed the basis of her identification of the Defendant as her attacker in the attempted murder

conviction (and thus by inference the deceased’s attacker also). (Trial counsel gave no notice of

alibi witnesses, nor requested the jury instruction on the alibi defense, even though the Defendant

has a “perfect alibi” for the sequence of events as presented by the prosecution. See Issue II

infra.) The first-degree murder case is entirely circumstantial; there is no direct evidence

implicating Defendant in the homicide. The identity of Defendant as the perpetrator in the

Jacqueline Johnson killing is based largely upon Tracy Hosken’s direct testimony that Defendant

Ed Higley assaulted Ms. Hosken by pulling her down to the ground, hitting her in the head, and

then twisting her head (T, 872-876), and because the two girls were together that night, because

their injuries are similar, and because they were found in proximity to one another; Defendant is

identified as the perpetrator in the homicide only by circumstantial inference. There is likewise

no direct physical evidence against Defendant in the attempted murder case against Tracy

17
Hosken. The case against Defendant consists of her identification of the Defendant as her

attacker when she revived from an 11-day coma, and from the circumstantial evidence that the

Defendant received a cut that evening.

Tracy Hosken identified the Defendant as her attacker when she was 12 years old.

Eleven days after the attack and just out of a coma, and while still in critical condition from cuts

and head injuries, she met with Detective Belote of the Battle Creek Police Department at

Community Hospital in Battle Creek. The detective knew he needed an identification to make

the case stick per Sharon Rogers. It was then that Tracy identified the Defendant as her attacker.

She met with the detective on two separate occasions the next day, and for a long, recorded

interview in the presence of a psychologist five days later. She testified at a preliminary

examination on March 2, 1982, and again at trial on June 29, 1982.

Suffice it to say that those records are replete with inconsistencies (e.g., timing of phone

calls, identity of the caller, the specific calls in which Tracy participated, etc.) and an inability to

perceive and remember (e.g., Tracy did not wear her glasses that evening as was customary, she

had smoked marijuana that evening). Ms. Hosken testifies at one point that she cannot

remember if any of her testimony had been suggested to her (PE, vol II, p 41), and

that…“everything is kind of fuzzy” (PE, vol II, p 61). For example, Tracy does not remember

being with a Randy Bowers that evening, and does not remember being at the Durkee’s

household, when there was unbiased testimony that she indeed did those things. (T, p 879)

Further, she only remembers the two phone calls that were pranks as taking place (T, p 881)

when it is fairly clear that Jackie Johnson talked to her mother Sharon Rogers on at least two

other occasions that evening when Tracy would have still been with her. (T, pp 828-829)

Moreover, her rendition of the events of the evening makes no logical sense. Why would

two young teenagers, after receiving a life-threatening phone call from an unknown source, agree

to meet that unknown person in the dark, then arm themselves with knives to go meet the threat;

18
and, whereupon encountering the threat who then flees, one of them (Tracy Hosken) chases the

threat until she catches him, whereupon they share conversation and a marijuana joint? Why

leave the safety of the house, why arm themselves for a fight, why go looking for a confrontation

with someone threatening homicide? (Whereupon an attack and brutal murder ensue.)

With abundant reasons to suspect that Tracy Hosken’s identification of Defendant as the

perpetrator of the assault upon her is not accurate for some yet unexplained reason, the presence

of unknown third-party DNA in the form of blood from one of the instrumentalities of the

homicide, or in the form of hair from one those instrumentalities, or in the form of hair from the

hand of the murder victim is under the statute material, indeed critical, to the issue of

identification in the homicide. It would also call into grave doubt, given the other evidence in

the case, the veracity of the identification in the assault on Tracy Hosken. The Defendant’s

exclusion as the source of the identified blood and hair, so long as it not identified as that of the

victim, when balanced against the other evidence in the case, would be sufficient to justify the

grant of a new trial pursuant to MCLA 770.16(7).

Michigan State Police forensic scientist Curtis Fluker though microscopic analysis

discovered human blood on a cement block recovered from the crime scene involving the

deceased (T, pp 591-592), recovered hairs from that cement block (T, pp 599-600), and also

examined hair removed from each hand of the deceased. (T, pp 589-590, 608). Dr. Cassin took

fingernail clippings and scrapings from Jackie Johnson at the autopsy (T, p 357, See attached

Exhibit 2, Page 1 of VanStratton’s 1/1/82 Supplementary Offense Report), but it looks as if no

testing was ever done on them.

The blood type of the sample from the cement block could not be determined (T, pp

591-592), and the forensic scientist given the state of technology at the time of trial could not

identify from whom the hairs came, he could only conclude whether the hairs were either

“consistent’ or “not consistent” with those of samples from the victims and the accused. The

19
hairs in the hands of the deceased were “not consistent” with those of the Defendant (T, pp

606-608), hairs that Dr. Cassin stated that would usually indicate the victim had grabbed a hairy

portion of the body of the assailant. (T, pp 323, 357)

Additionally, at Mr. Higley's March 1982 preliminary examination, Mr. Fluker testified

that he examined from the deceased’s right hand “a second hair which was dark, but it was only a

segment of hair and I felt that I could not reach a proper conclusion because there was an

insufficient amount of hair, a limp of that hair to really make a valid conclusion.” (Transcript of

March 22, 1982, vol III Preliminary Examination, p 35) A supplemental police report (3 pages)

dated January 7, 1982, and authored by detectives VanStratton and Yesh states on page 3 of the

report that a “small portion of the sweatshirt belonging to Tracy Hosken (i.e., the second and

surviving victim) was cut off (approx. 2" x 2" square) so as to be transported to Michigan State

Police Crime Lab for blood typing.” See attached Exhibit 3, January 7, 1982, Supplemental

Police Report. There appears to have been no mention of this evidence at Mr. Higley's

preliminary examination or trial.

Fluker testified at trial that he had examined hairs that had been removed from each hand

of the deceased. (T, pp 589-590, 608) There was hair from the right hand testified about at trial,

and also a second sampling of hair from the right hand that was testified about at the preliminary

examination that could not be tested given the technology of the time. Hair from the left hand of

the deceased was also examined. As Dr. Cassin testified, this would be expected to be the hair of

the assailant that was grabbed by the victim in a defensive maneuver. DNA analysis of these

hairs is certainly material to the identity of the Defendant as the perpetrator of these crimes. The

presence of unknown third-party DNA, and the Defendant’s exclusion as the source of the hairs,

balanced against the other evidence in the case, would be sufficient to justify the grant of a new

trial pursuant to MCL 770.16(7).

20
 Dr. Cassin took fingernail clippings and scrapings from Jackie Johnson at the autopsy (T,

p 357, See attached Exhibit 2, Page 1 of VanStratton’s 1/1/82 Supplementary Offense Report).

Any unknown third-party DNA from those clippings and scrapings would also be expected to be

that of the assailant acquired in a defensive maneuver by the victim. DNA analysis of these

clippings and scrapings is certainly material to the identity of the Defendant as the perpetrator of

these crimes. The presence of unknown third-party DNA, and the Defendant’s exclusion as the

source of that DNA, balanced against the other evidence in the case, would be sufficient to

justify the grant of a new trial pursuant to MCL 770.16(7).

Michigan State Police forensic scientist Fluker recovered hairs from the cement block (T,

pp 599-600) thought to be the instrumentality of the homicide. These hairs, if not DNA from the

victim but rather DNA from an unknown third-party, would be expected to have been left there

by the assailant incidental to the perpetration of the crime, and DNA analysis of this hair is

certainly material to the identity of the Defendant as the perpetrator of these crimes. The

presence of unknown third-party DNA, and the Defendant’s exclusion as the source of that DNA,

balanced against the other evidence in the case, would be sufficient to justify the grant of a new

trial pursuant to MCL 770.16(7).

Fluker also though microscopic analysis discovered human blood on that cement block

thought to be the instrumentality of the homicide. (T, pp 591-592). This blood sample, if not

DNA from the victim but rather DNA from an unknown third-party, would be expected to have

been left there by the assailant incidental to the perpetration of the crime, and DNA analysis of

blood sample is certainly material to the identity of the Defendant as the perpetrator of these

crimes. The presence of unknown third-party DNA, and the Defendant’s exclusion as the source

of that DNA, balanced against the other evidence in the case, would be sufficient to justify the

grant of a new trial pursuant to MCL 770.16(7).

21
 If the source of these above-named identified biological materials turns out to be an

unidentified third party, as we strongly suspect it will, it is likely that only the perpetrator of the

crimes for which the Defendant was convicted could be the source of the identified biological

materials. The same would be consistent with the Defendant’s claim and a theory of innocence,

and the materiality to the issue of the identity of Defendant as the perpetrator is enormous.

b. There is biological material available for DNA testing.

In February 2000, instant counsel for Mr. Higley wrote to the Michigan State Police with

a request to inspect or independently test the physical evidence presented at Mr. Higley's 1982

trial1. See attached Exhibit 4, February 24, 2000, letter to Michigan State Police, Criminal

Justice Information Center. Upon receiving information from the Michigan State Police that the

evidence and exhibits introduced at trial were turned over to the Battle Creek Police Department

(hereinafter ‘BCPD’), counsel submitted the same request to that agency in March 2000. See

attached Exhibit 5, March 28, 2000, letter to BCPD. In April 2000, counsel received a telephone

call from Sgt. Bright of the BCPD who informed counsel that his department had retained all

exhibits and evidence presented at the trial with the exception of the cement block introduced by

the prosecution and admitted at trial as an exhibit.

Shortly after MCL 770.16 was enacted, counsel wrote to both the BCPD and the Calhoun

County Prosecuting Attorney's office requesting that these agencies preserve any biological

material identified during the investigation of the crime or crimes of which Mr. Higley was

convicted, including preservation of the hair exemplars, paring knife, eyeglasses, cement block,

blood spatterings and stains, and any other physical evidence introduced or admitted at Mr.

Higley's trial. See attached Exhibits 6 and 7: March 5, 2001, letters to BCPD and Calhoun

County Prosecuting Attorney. Counsel for Mr. Higley received no response to these letters and

presumes therefore, in keeping with information received earlier from the prosecutor's office,
1
Counsel’s requests to inspect and test the physical evidence were made before the introduction and passage of MCL
770.16, the DNA testing statute. In response to counsel's request, assistant Calhoun County Prosecuting Attorney David
Wallace wrote counsel and indicated that his office reviewed such requests for DNA testing under criteria or guidelines
published by the U.S. Department of Justice, and provided counsel with a copy of these guidelines.
22
that most or all of the biological evidence has been preserved. Defendant can therefore meet the

criterion set forth in subsection (3)(b)(i).

c. The biological material available was not previously subjected to DNA testing.

Defendant believes it will be undisputed that no DNA testing was ever performed during

any pretrial or post-trial investigations in this case. Defendant can therefore meet the criterion

set forth in subsection (3)(b)(ii).

d. The identity of the Defendant as the perpetrator of the crime was at issue during the trial.

It was the Defendant's claim that he took no part in the crime alleged, was not present at

the scene of the crime when it occurred, and in fact was elsewhere when it was committed by

some other unknown third-party. Mr. Higley took the stand and testified in his own defense that

on the evening of the crime he had not been to the address or location where the deceased was

attacked and killed. (T, pp 950, 974-976) The Defendant presented therefore an alibi defense

and one of misidentification by Tracy Hosken – the only witness at trial to claim she eye-

witnessed either the assault or the killing and identified Mr. Higley as the perpetrator. Defendant

can therefore meet the criterion set forth in subsection (3)(b)(iii).

e. The DNA testing should be performed at state expense by private laboratory

The Bode Technology Group, Inc., and the Michigan State Police should be
directed to compare the DNA test results against the DNA data bank.

Under MCL 770.16(5), if Mr. Higley is indigent, the cost of testing must be borne by the

State. Since Mr. Higley has been continuously incarcerated since his arrest in 1982, he is

indigent.2 Therefore, should the Court grant the instant motion, Mr. Higley requests that such

testing be paid for by the State. Further, Mr. Higley requests that such testing be performed at

The Bode Technology Group, Inc. in Lorton, Virginia. Pertinent information regarding The Bode

Technology Group, Inc. is attached hereto as Exhibit 8.

2
Attorney fees and costs for the instant post-conviction motion have thus far been paid by
relatives of Mr. Higley as well as others who support his claim of innocence.
23
 Mr. Higley has met the burden as set forth by the legislature in MCL 770.16 regarding the

release and testing of the biological evidence collected during the course of the investigation in

this case. He therefore asks for the release of the biological evidence afore described and

collected in this matter, and that the items be subjected to STR DNA. If Mr. Higley is excluded

as a source of the DNA material, the DNA test results should be compared to DNA samples via

the FBI (CODIS Databank) and Michigan State Police so the true perpetrator of this crime can be

identified.

Attached hereto as Exhibit 9 is an October 1, 2007, article which appeared in the New

York Times entitled “Exoneration Using DNA Brings Change in Legal System,” authored by

Solomon Moore. The article highlights a number of developments occurring across the nation,

including increased access to DNA evidence, tougher standards for identification of suspects,

improved oversight of criminal lab procedures, and recording of interrogations. The article,

citing to the Innocence Project data, points out that of 207 exonerations over the last decade,

misidentification by witnesses led to wrongful convictions in 75 percent of those cases. Another

2005 study by University of Michigan law professor Samuel R. Gross suggested that between

1989 and 2003, 340 prisoners had been exonerated. One-half of the murder cases, and 88

percent of the rape convictions, had involved false identifications. Mr. Moore’s article and the

research within it underscores the need for DNA testing in Mr. Higley’s case and at a minimum

further scrutiny of the evidence found sufficient to convict him.

24
 II. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT
TRIAL, IN VIOLATION OF CONST 1963, ART 1, §20 AND THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION,
BY HIS COUNSEL’S FAILING TO GIVE NOTICE OF AN ALIBI DEFENSE
AND FAILING TO ASSERT THAT DEFENSE AT TRIAL; AND TRIAL AND
APPELLATE COUNSELS’ FAILURE TO SO RAISE THE ISSUE WAS
INEFFECTIVE ASSISTANCE OF COUNSEL, ENTITLING DEFENDANT TO
A NEW TRIAL UNDER MCR 6.508.

The defense of alibi provides a two-pronged attack against the state’s assertion of a

criminal offense against a defendant. If an alibi can be established, a defendant has demonstrated

a perfect defense, and the jury should return an acquittal. In the alternative, if there is reasonable

doubt as to a defendant’s presence at the scene of a crime, then the defendant should also be

acquitted. People v Burden, 392 Mich 462 (1975); People v Loudenslager, 327 Mich 718

(1950); People v Erb, 48 Mich App 622 (1973). The defendant is entitled to have the jury

instructed as to each of these avenues of relief. People v John Johnson, 58 Mich App 60 (1975).

The theory of the prosecution’s case is repeated three times—(1) in its opening statement

(T, p 198 “he viciously and shockingly stabbed and cut Tracy Hosken…shortly thereafter he

went and somehow got Jackie Johnson to come down to that location”), (2) in its closing

statement (T, p 1010 “and she’s talking to Andy Shepard…she took the time to put on her coat

and she went down there with somebody that she knew), and in (3) the Court’s instruction to the

jury as to the People’s theory of the case (T, p 1084 “Five, the evidence shows that the defendant

assaulted Tracy Hosken first, while Jackie Johnson was at her residence. The fact that defendant

went to get Jackie Johnson after having assaulted Tracy Hosken in the vicious manner he did

clearly demonstrates premeditation and deliberation on his part”). The Defendant allegedly

assaulted Tracy Hosken at 124 North Woodlawn while Jackie Johnson was in her house at 108

North Woodlawn, whereupon he then proceeded to 108 North Woodlawn, where he lured Jackie

Johnson out of the house as she was talking on the phone to Andy Shepard, whereupon he then

led Jackie Johnson back to 124 North Woodlawn and he killed her.

25
 The record at trial reflects that Defendant has a perfect alibi as to those charged events,

and that he should have been acquitted on account thereof. The alibi runs consistently

throughout the testimony of no less than ten witnesses from both sides of the case. Both Sharon

Rogers and Carol Simpson place Defendant continuously on the telephone with Sharon Rogers

from about 9:05 p.m. until 9:50 p.m. Sharon Rogers testified she looked at the clock when she

hung up. No less than six (6) witnesses at the West Gougac party some 4.8 miles from the crime

scene (T, pp 807-812) —Mark Alexander, Rick Yingling, Teresa Yingling, Debra Cooper,

Randall Isaacs, and Steven Yingling—place Defendant physically at the West Gougac party in

his bedroom on the telephone until about 10:00 p.m., and leaving that location at approximately

10:15 p.m. The Defendant himself testified consistently therewith, saying he was at West

Gougac, on the phone until about 10:00 p.m., then left the house after a short time to go over to

Carol Simpson’s house. (T, pp 928-929, 954)

If there was one person in that entire scenario of events who had absolutely no motive to

fabricate or had no interest in manipulating the time sequence, it was Andy Shepard. Something

strange happened while he was on the phone with Jackie. He is sure of the time because it

coincided with a television show ending. It is important to note that Tracy Hosken did not testify

to being present and overhearing Andy Shepard’s call coming in, consistent with her having

already having been attacked. The prosecution has made the proper deduction that she has

already been assaulted by the perpetrator(s) some 15-30 minutes earlier and is now unconscious.

The prosecution has likewise made the proper deduction that the perpetrator(s) came back to get

Jackie Johnson at about 10:00 p.m. But how on earth can anyone of reasonable mind deduce that

the perpetrator is the Defendant, who clearly cannot physically be in two places at once? He has

established a perfect alibi.

As if the direct evidence were not enough, there is much by way of circumstantial

evidence in support of the timeline of the alibi. The general sequence of events testified to by

26
Hosken was they got back to the house, the phone started ringing, and then they went outside to

meet the caller. (T, pp 879-880) Given that Rogers testified Jackie called her at 8:30 p.m. to let

her know they had arrived back home, that sequence would indicate a general time frame for the

first assault somewhere in the neighborhood of 9:30 p.m. and the homicide of shortly after 10:00

p.m. when the call came in to Andy Shepard. Secondly, a neighborhood witness in his home at

150 N. Woodlawn, Richard Gore, heard a scream and looked at the clock at 9:30 p.m., about the

time that Tracey Hosken would have been assaulted. (T, pp 652-653) Susan Hookway, of 120

N. Woodlawn, somewhere around 10:00 pm. saw a girl in her young teens come to the door, but

did not knock and kept going. (T, pp 536-540) Further, Lynette Payne, at 122 N. Woodlawn that

evening, between 10:00-10:10 p.m. sees a girl run past the front picture window and then sees a

much taller male and a girl run together by the window in the same direction as the first girl ran.

(T, pp 526-535) Stephanie Tarangle of 116 N. Woodlawn arrived home at about 10:20 p.m. that

night and noticed the paper Santa hanging on the front door was cut from top to bottom (TT, pp

540-543), suggesting that the mayhem had already taken place.

All of those circumstantial observations of unusual circumstances support a time frame

precisely as alleged by the prosecution—first the assault on Tracey Hosken somewhere in the

neighborhood of 9:30 p.m. and the homicide of shortly after 10:00 p.m. when the call came in to

Andy Shepard, whereupon Jackie Johnson was lured out of the house by a tall male and another

female who somehow got Jackie to 124 N. Woodlawn and killed her next to the body of Ms.

Hosken.

For the Defendant to have been the perpetrator, he would have had to make two prank

phone calls to Tracy and Jackie, drive in treacherously bad weather to the crime scene, meet with

Tracy and Jackie at the school yard, get chased by Tracy back to Sharon Rogers’s driveway, talk

with her some there, run a few houses down and smoke a joint with Tracy, assault and butcher

Tracy, then return back to Sharon Rogers’s house to get Jackie, and take her back to 124 North

27
Woodlawn to kill her. Even under the best of circumstances, these things would have taken at

least the entire sixty minutes before 10:00 p.m. when it is beyond question that Defendant was at

West Gougac in his bedroom on the telephone with the mother of the decedent. The inescapable

conclusion, by the prosecution’s own version of events on the night of the homicide, is that the

Defendant could not have perpetrated these crimes.

“Effective assistance of counsel” in the context of a criminal trial is

required not only by the United States Constitution and of State courts

through the Fourteenth Amendment (Gadsen v United States, 223 F2d 627

(CA DC, 1955); Gideon v Wainwright, 372 US 335 (1963)), but also by the

Michigan Constitution. Const 1963, art 1, §20.

To constitute ineffectiveness, counsel’s performance must be deficient, and that deficient

performance must have prejudiced the defense. People v Reed, 449 Mich 375 (1995); Strickland

v Washington, 466 US 668 (1984). Acts or omissions of counsel not the result of reasonable

professional judgment in light of prevailing professional norms must be present. To find

prejudice, a court must conclude that there is a reasonable probability that, absent counsel’s

errors, the factfinder would have had a reasonable doubt regarding guilt, or, that the result of the

proceeding was fundamentally unfair or unreliable. Id, n 12; Reed, supra, at p 401, n 21.

Mr. Higley can obviously account for his time through copious and redundant witness

testimony. He has a perfect alibi . Trial counsel elicited all of the testimony establishing that

alibi, so he must have had some level of awareness of its importance. He notwithstanding failed

to argue the alibi defense to the jury. He failed to request jury instructions CJI 7:2:01 and CJI

7:2:02 be read to the jury by the Court. That argument and those instructions would have

mandated the jury return verdicts of not guilty.

The performance of his counsel was below an objective standard of reasonableness under

prevailing professional norms. Reed, supra, Strickland, supra; People v Pickens, 446 Mich 298,

28
at 302-303 (1994). Trial counsel failed to recognize that his client could not possibly have

committed the crimes charged because he was shown by the prosecution’s own proofs to have

been in another location. To fail to argue that to the jury is but the poster child of ineffectiveness.

The prejudice consequent to this ineffectiveness similarly patent. To say there is

reasonable probability that, absent counsel’s errors, the fact finder would have had a reasonable

doubt regarding guilt is to understate the matter. Trial counsel’s ineffectiveness renders the

proceeding fundamentally unfair or unreliable, and must therefore be overturned. Strickland, n

12; Reed, supra, at p 401, n 21. But for the deficient performance by counsel, the jury would

have been instructed in effect to return not guilty verdicts given the prosecution’s proofs. There

is good reason to believe that the Defendant in fact did not commit these crimes.

CAUSE AND PREJUDICE

Mr. Higley is aware that MCR 6.500 et seq establishes a procedure for postappeal

proceedings challenging criminal convictions, and provides the exclusive means to challenge

convictions in Michigan courts for a defendant who has had an appeal by right or by leave, who

has unsuccessfully sought leave to appeal, or who is unable to file an application for leave to

appeal with the Michigan Court of Appeals because the application would be untimely filed. See

1989 Staff Comments to MCR 6.501. Because challenges brought under MCR 6.500 et seq are

collateral by nature, MCR 6.508(D) imposes a requirement that the defendant demonstrate (1)

“good cause” for failure to previously raise an issue and (2) “actual prejudice” as a result of the

alleged error. See MCR 6.508(D)(3). Effective October 1, 1989, Michigan Court Rule 6.508(D)

precluded consideration of non-jurisdictional grounds for relief which could have been raised on

appeal, absent a showing of cause and prejudice. MCR 6.500 protects unremedied manifest

injustice, and such postconviction relief is provided for the extraordinary case in which a

conviction constitutes a miscarriage of justice. Reed, supra, at 378, 381 (1995).

29
 Defendant’s conviction and sentence are no longer subject to

challenge on appeal pursuant to MCR subchapters 7.200 and/or 7.300. See

MCR 6.508(D)(1).

“Cause” for excusing procedural default is established by proving ineffective assistance

of trial counsel, pursuant to the standard set forth in Strickland, supra, or by showing that some

external factor prevented counsel from previously raising the issue. Reed, supra. The

ineffectiveness of trial counsel is additionally asserted above as part and parcel of the argument

as a substantive reason requiring a new trial.

Not only is the “assistance of counsel” guaranteed by the Sixth

Amendment to the United States Constitution, to pass constitutional muster

“effective assistance of counsel” must be rendered. The Fourteenth

Amendment to the United States Constitution imposes the same requirement

on State Courts. Gadsen v United States, 223 F2d 627 (CA DC, 1955);

Gideon v Wainwright, 372 US 335 (1963). The Michigan Constitution also

requires the effective assistance of counsel. Const 1963, art 1, §20.

The Michigan Supreme Court in Pickens, supra, adopted the federal test for reviewing

claims of ineffective assistance of counsel under the Michigan Constitution. To constitute

ineffectiveness, counsel’s performance must be deficient, and that deficient performance must

have prejudiced the defense. Reed, supra; Strickland, supra. Acts or omissions of counsel not

the result of reasonable professional judgment in light of prevailing professional norms must be

identified. To find prejudice, a court must conclude that there is a reasonable probability that,

absent counsel’s errors, the factfinder would have had a reasonable doubt regarding guilt, or, that

the result of the proceeding was fundamentally unfair or unreliable. Id, n 12; Reed, supra, at p

401, n 21.

30
 Counsel perhaps can be excused from failing to give notice of alibi pursuant to MCL

768.20 in that it may have been difficult at an early stage to anticipate the proofs would show the

chain of events leading to the assaults took place between 9:00 p.m. and 10:00 p.m., a time

period during which the Defendant has a perfect alibi. However, it should have been apparent

that Defendant could account for his time, and that he may have an alibi defense. Trial counsel

was competent in eliciting all of the testimony establishing the perfect alibi, so he must have had

some level of awareness of its importance. Nevertheless, counsel failed to argue the alibi

defense to the jury and he failed to request jury instructions CJI 7:2:01 and CJI 7:2:02 be read to

it by the Court. Within the four corners of the record of this trial, that argument and instruction

would have assuredly mandated the jury return verdicts of not guilty.

The prosecution even went so far with its argument of the proofs to posit that “…it’s after

ten o’clock or so [actually 10:04 p.m.] and she’s talking to Andy Shepard, he hears the words, oh,

my God…we do know that there had to be some period of time between Tracy being attacked

and his going up and getting Jackie and bringing her down. And that, I submit to you, is the vital

evidence which you need to show that this was willfully done, premeditated with deliberation.”

(T, pp 1010-1011) As corroborated by approximately ten witnesses, the Defendant was 5 miles

away at West Gougac and on the phone in his bedroom from about 9:00 p.m. until about 10:00

p.m. on a hazardous driving night because of icy road conditions. It is clear that the Defendant

could not have physically been present to have attacked Tracy at about 9:30 p.m., then

deliberated while he went to get Jackie to bring her to the scene—the prosecution characterized

evidence purporting to show Defendant did this as “vital”, all but conceding his case was dead

without it. We know from all the witnesses that the Defendant could not have been near the

homicide scene to participate in the pre-assault sequence testified to by Tracy, the 9:30 p.m.

attack on Tracy, and the “vital” 10:00 p.m. luring of Jackie outside for the homicide. He was

miles away with a telephone stuck to his ear until shortly after 10:00 p.m.

31
 There can be no serious argument that the performance of his counsel was below an

objective standard of reasonableness under prevailing professional norms. Reed, supra,

Strickland, supra; Pickens, supra, at 302-303. Failing to recognize that your client could not

possibly have committed a vicious assault and murder because he is shown by the prosecution’s

own proofs to have been in another location, then failing to argue the same to the jury and failing

to request the Court to instruct the jury on the alibi defense would seem to be a most egregious

case of ineffectiveness.

Similarly, the prejudice resulting from this ineffectiveness is almost beyond question.

Not only is there a reasonable probability that, absent counsel’s errors, the fact finder would have

had a reasonable doubt regarding guilt, but that the result of the proceeding was fundamentally

unfair or unreliable. Strickland, n 12; Reed, supra, at p 401, n 21. The jury would have been

instructed in effect to return not guilty verdicts given the prosecution’s proofs. At the very least,

it is hard to conceive of a reasonable juror not having at least a reasonable doubt as to whether

the Defendant committed these crimes had the impossibility of it all been effectively brought to

their attention. More importantly, the result of the ineffectiveness renders the proceeding unfair

and unreliable. There is good reason, if not prima facie proof, to believe that the Defendant in

fact did not commit these horrible crimes for which he is being punished, unjustly so.

Having not raised the issue of trial counsel’s ineffectiveness either in his direct appeal to

the Michigan Court of Appeals, or in his application for leave to the Supreme Court of Michigan,

Defendant must also show that appellate counsel’s performance fell below an objective standard

of reasonableness and was constitutionally deficient. Reed, supra; Pickens, supra. He must

show that appellate counsel was ineffective for failing to raise the issue that trial counsel was

ineffective. That is, double procedural default must be excused.

Again, it is hard to conceive of a tenable argument for the position that appellate counsel

was not ineffective. Trial counsel failed to recognize that his own client could not possibly have

32
committed a vicious assault and murder because the client was shown by the prosecution’s own

proofs to have been in a location other than the scene of the crime. Trial counsel then failed to

argue the same to the jury, and failed to request the Court to instruct the jury on the alibi defense,

which would have essentially instructed the jury to return not guilty verdicts. This is not just an

issue of arguable legal merit; it is an issue which should have been raised to prevent manifest

injustice. One can understand appellate counsel in the Court of Appeals for not seeing the issue,

he was the very same Mr. Stevens who functioned as trial counsel. Yet counsel in the Michigan

Supreme Court missed it also. As appellate counsel has the benefit of trial transcripts and the

luxury of reviewing the same at his or her own pace for an unlimited number of times, the failure

to raise trial counsel’s ineffectiveness also would seem to be a most egregious case of

ineffectiveness.

The “actual prejudice” [as defined in the court rule on collateral relief

from judgment, as opposed to a requirement in the test for ineffectiveness]

entitling Defendant to relief is specified in MCR 6.508(D)(3)(b)(i)—in a

conviction following a trial, but for the alleged error, the defendant would

have had a reasonably likely chance of acquittal. We submit, as we have

hereinabove, that but for the error, acquittal would have been not just

reasonably likely, but in effect directed by the Court.

III. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT

TRIAL AND ON DIRECT APPEAL, IN VIOLATION OF CONST 1963, ART 1,
§20 AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION, BY HIS TRIAL COUNSEL’S FAILING TO REQUIRE THE
PROSECUTION TO PRESENT IMPORTANT RES GESTAE WITNESSES AT
TRIAL; AND APPELLATE COUNSELS’ FAILURE TO RAISE THE ISSUE ON
DIRECT APPEAL WAS INEFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL, ENTITLING DEFENDANT TO A NEW TRIAL UNDER MCR
6.508.

Prior to 1986, it was the duty of the prosecutor to indorse on the Information and to

produce at trial all “res gestae” witnesses known to him. People v Pearson, 404 Mich 698
33
(1979); People v Robinson 390 Mich 629 (1973). The res gestae rule had its genesis in MCL

767.40:

“All informations shall be filed in the court having jurisdiction of the offense
specified therein, after the proper return is filed by the examining magistrate, by
the prosecuting attorney of the county as informant; he shall indorse thereon the
names of the witnesses known to him at the time of filing the same. The
information shall be subscribed by the prosecuting attorney or in his name by an
assistant prosecuting attorney. Names of additional witnesses may be indorsed
before or during the trial by leave of the court and upon such conditions as the
court shall determine.” (Emphasis added.)3

From this statute the Michigan courts found a “duty of the prosecution to show the whole

transaction as it was, regardless of whether it tends to establish guilt or innocence”. People v

Tann, 326 Mich 361, 367 (1949). The purpose of the rule was to protect a defendant from the

suppression of favorable testimony or from selective investigation by the state. People v Raider,

256 Mich 131 (1931); Maher v People, 10 Mich 212, 225 (1862).

A "res gestae witness" is one who is an eyewitness to some event in the continuum of a

criminal transaction and whose testimony will aid in developing a full disclosure of facts

surrounding the alleged commission of charged offense. People v Austin, 95 Mich App 662

(1980); People v Rappuhn, 78 Mich App 348 (1977); People v Johnston, 76 Mich App 332

(1977); People v Hadley, 67 Mich App 688 (1976).

A "res gestae witness" was thus broadly defined as a witness whose testimony is

necessary to illuminate some important aspect of the case. People v Petrov, 75 Mich App 532

(1977). It was not necessary that a witness be at the scene of the crime during the commission of

the crime in order to be a res gestae witness. They are witnesses to facts that illustrate and

3
MCL 767.40 now reads: “All informations shall be filed in the court having jurisdiction of the
offense specified in the information after the proper return is filed by the examining magistrate
and by the prosecuting attorney of the county as informant. The information shall be subscribed
by the prosecuting attorney or in his or her name by an assistant prosecuting attorney.” As
amended, the prosecutor is still required to list on the information the names of witnesses known
to him or her, but the prosecutor's duty to produce res gestae witnesses has been replaced with
an obligation to provide reasonable assistance to the defendant in locating those whom the
prosecutor does not intend to call to trial, should assistance be requested. See MCL 767.40a.
34
characterize the principal fact as one whole transaction, especially insofar as to protect an

accused against a false accusation in a crime of violence. People v Kayne, 268 Mich 186 (1934).

As the case against Mr. Higley proceeded to trial, the prosecution was aware through

police reports of res gestae witnesses (see attached Exhibit 10) and their prospective testimonies.

The following people should have been produced for cross-examination as res gestae witnesses

to the “whole transaction”:

1. Davena Lowe: She observed Jackie and Tracy earlier in the evening in Kay

Durkee’s driveway and believes they spoke with Mrs. Durkee.

2. Kathy Durkee: Jackie and Tracy came to her house earlier in the evening. Jackie

made two phone calls.

3. Randy Blowers: Had been with Jackie and Tracy earlier in the evening. They

approached him for a ride at the Game Room earlier in the evening, and he dropped them off at

the Durkee residence.

4. Larry Madsen: Was advised by his mother or sister that Jackie had called for him

on New Year’s Eve.

5. Cindy Isaacson: A female she believed to be Jackie, who calls for Larry Madsen

often, called the Madsen residence for Larry on New Year’s Eve.

6. Virginia Lowe: Jackie and Tracy came over to the Lowe residence earlier in the

evening asking if Davena Lowe could go to a party. Jackie made a telephone call to the Game

Room.

7. Darcel Lowe: Jackie and Tracy came over to the Lowe residence about 7:30 p.m.

They stayed for about 20 minutes. Jackie used the telephone to call the Game Room.

8. Kelly Ryan: She was at the Lowe residence on New Year’s Eve and can confirm

that Jackie and Tracy came over to the Lowe residence about 7:30 p.m.

35
 9. Charles Cuykendall: Jackie called his residence at about 9:00 p.m. and asked for

him. His mother was quite upset with him because there was a house rule that there were to be

no phone calls after 9:00 p.m.

10. Bill Johnson: Spoke with Jackie by telephone from Texas earlier in the evening,

about 8:00 p.m. Michigan time. Bill is Jackie’s father.

11. Sharon Johnson: Sharon is Bill’s wife. Can confirm telephone call between

Jackie and their household about 8:00 p.m. Michigan time.

This case came down to a credibility contest between victim Tracy Hosken, who after

recovering from an 11-day coma identified the Defendant as her attacker, and the Defendant,

who insists he did not perpetrate the crime and can account for his whereabouts during the pre-

assault activities, and very arguably at the exact time of the assaults. Tracy does not remember

being with Randy Bowers that evening, and does not remember being at the Durkee’s household

(T, p 879), when the above res gestae witnesses clearly put her there. Further, she only

remembers the two phone calls that were pranks as taking place (T, p 881) when it is fairly clear

that Jackie Johnson talked to her mother Sharon Rogers on at least two other occasions that

evening when Tracy would have still been with her (T, pp 828-829), and the above res gestae

witnesses were aware of at least six additional telephone calls made by Jackie.

For these witnesses to have been withheld from the jury by the prosecution amounts to

putting on only selectively inculpating circumstantial evidence, as the above testimony regarding

the “whole transaction” of the evening in question would have cast grave doubt on the capacity

of the victim Tracy after her injuries to remember and accurately recount the facts and

circumstances leading up to the assault—the one piece of direct evidence in the case.

In People v Dickinson, 2 Mich App 646 (1966), two physicians examined a statutory rape

victim sometime after the alleged crime. Because the story of the victim was uncorroborated,

just as in this case, and because that story might have been destroyed by the testimony of either

36
or both of the physicians in question, the testimony was held to be “res gestae”, and could not be

called cumulative. The state’s failure to produce those witnesses thus tainted the prosecution,

and a new trial where such testimony would be available was the proper remedy. “The failure of

the prosecutor to indorse their names upon the information and secure their testimony was

clearly prejudicial error.” Id, at 652.

CAUSE AND PREJUDICE

As stated above, “cause” for excusing procedural default is established by proving

ineffective assistance of trial counsel, pursuant to the standard set forth in Strickland, supra, or

by showing that some external factor prevented counsel from previously raising the issue. Reed,

supra. The ineffectiveness of trial counsel is additionally asserted above as part and parcel of the

argument as a substantive reason requiring a new trial.

For trial counsel to have failed to recognize this credibility contest

between Tracy and the Defendant’s alibi and to therefore require the

prosecution to fulfill its statutory duty pursuant to M.C.L. § 767.40 to indorse

and produce all of the res gestae witnesses who might shed significant doubt

on Tracy’s identification testimony constitutes acts or omissions of counsel

not the result of reasonable professional judgment in light of prevailing

professional norms. If Tracy is not to be believed, then certainly the

Defendant’s alibi supported by many other prosecution witnesses and the

Defendant himself surely is to be.

Trial counsel’s ineffectiveness in this regard was neither raised in Defendant’s direct

appeal to the Michigan Court of Appeals, or in his application for leave to the Supreme Court of

Michigan, so he must also show that appellate counsel’s performance fell below an objective

standard of reasonableness and was constitutionally deficient. Reed, supra; Pickens, supra. As

37
previously stated, he must show that appellate counsel was ineffective for failing to raise that

trial counsel was ineffective.

The argument for the position that appellate counsels were ineffective lies in the

nature of the pre-1986 absolute duty incumbent upon the prosecutor pursuant to M.C.L. §

767.40 to indorse on the information and to produce at trial all “res gestae” witnesses

known to him. Pearson, supra; Robinson, supra. There is no discretion granted to the

public official the prosecutor, who has an obligation very much different from that of the

defense attorney as the advocate for the defendant. The prosecutor must show the whole

transaction as it was, regardless of whether or not these witnesses would cast great doubt

on the capacity or veracity of Tracy Hosken’s memory on the night in question, and his

failure to do so violates the absolute duty to protect the defendant from the suppression

of favorable testimony. Raider, supra.

This is clearly a legal error on the part of trial counsel to fail to hold the

prosecutor to his duty, and cannot be said to be ascribed to trial strategy. It is not just an

issue of arguable legal merit; it is an issue which should have been raised on appeal

because of the critical nature of the credibility contest between the Defendant’s alibi

versus Tracy Hosken’s identification of Defendant as a participant in the pre-assault and

assault activities. For appellate counsels not to have raised the issue on direct appeal

constituted acts or omissions of counsel not the result of reasonable professional

judgment in light of prevailing professional norms. Appellate counsels’ performance fell

below an objective standard of reasonableness and was constitutionally deficient. Reed,

supra; Pickens, supra. Appellate counsel was ineffective for failing to raise that trial

counsel was ineffective.

The “actual prejudice” is that, but for the alleged error, the Defendant would have had a

reasonably likely chance of acquittal. MCR 6.508(D)(3)(b)(i). The identification of the

38
Defendant as Tracy’s attacker would have been called into serious question had these res gestae

witnesses been heard from, and that identification is the only hard evidence tying him to either of

these crimes. Just as in Dickinson, supra, the exclusion of witnesses calling into question the

uncorroborated testimony of the victim was clearly prejudicial.

39
 IV. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT
TRIAL AND ON DIRECT APPEAL, IN VIOLATION OF CONST 1963, ART 1,
§20 AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION, BY HIS TRIAL COUNSEL’S FAILING TO INVESTIGATE
THE ISSUE OF DEFENDANT’S INITIAL DIRECT IDENTIFICATION AS
THE ASSAULTER; AND APPELLATE COUNSELS’ FAILURE TO RAISE
THE ISSUE ON DIRECT APPEAL WAS INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL, ENTITLING DEFENDANT TO A NEW TRIAL
UNDER MCR 6.508.

Two separate police reports indicate that several people claimed to have been present to

hear Tracy’s initial identification of Defendant as the attacker in the case. (see Exhibits 1 and

Exhibit 11 attached hereto) Whether that initial identification was suggested to Tracy by those

people, or whether she truly had independent recollection of the events of the evening in question

was thus never put through the crucibles of investigation and cross-examination.

The testimony at the trial was that at some undetermined point on January 11, 1982,

unidentified nurses had reportedly informed the charge nurse Mrs. Struwin at Community

Hospital that Tracy had begun to make statements in regard to the incident, and was identifying

who had attacked her. The charge nurse informed Detective Belote of what the unidentified

nurses had told her. (See attached Exhibit 1, January 11, 1982 Supplemental Police Report).

Though he testified at trial that the interaction was “very, very limited” (T, p 910), the police

report commemorating the first contact indicated she used the word “Ed”, and “Ed beat me” and

“Ed put me in the hospital.” A full interview was conducted by the Detective with the aid of a

psychologist the following Saturday, January 17, 1982. (T, p 911)

Detective Belote had told Sharon Rogers while Tracy Hosken was still unconscious that

if Tracy did not identify the Defendant as the attacker, he would “walk”. (See attached Affidavit

of Sharon Rogers) It is reasonable to conclude that others in Tracy Hosken’s circle were also

aware of the critical need for an identification of the Defendant as the assailant. The Defendant

had already been under arrest for the attacks for over a week, and he clearly was the person that

the police were hoping she would identify as her attacker.

40
 Another police report (Exhibit 11 attached hereto) indicates that it was Tracy’s mother

Sue Hosken that called Detective Baker the day before, January 10, 1982, to report that Tracy

had been moved from intensive care and that she was concerned for Tracy’s safety, and that

Tracy had been making statements identifying the Defendant as her attacker.

Who were the unnamed nurses who first heard Tracy identify

Defendant as the attacker? Did they know the Defendant had been arrested

for the attack and the homicide? Did they suggest to 12-year-old Tracy while

she was still in a weakened state from her injuries that Defendant had been

arrested and that “Ed” was the attacker? What exactly did Tracy say to

them? Did she relate at some point to Sharon Rogers that what she initially

began to say according to the first ones to hear it was that “he beat me”,

and the others thought she meant “Ed beat me”? (See attached Affidavit of

Sharon Rogers) What did the others in turn say to nurse Struwin? What did

nurse Struwin say to Detective Belote? What role, if any, did Tracy’s mother

Sue Hosken have in the identification supposedly made by Tracy to the

unnamed nurses? Did she know the Defendant had been arrested for the

attack and the homicide? Did she suggest to 12-year-old Tracy while she was

still in a weakened state from her injuries, or to the unnamed nurses, that

Defendant had been arrested and indeed “Ed” was the attacker? Did she

speak with the unnamed nurses before they went to nurse Struwin?

The record does not contain any answers to the questions posed immediately above. If

any of the answers lead to the conclusion that the identity of the attacker was suggested to Tracy

in her weakened state rather than being a product of her independent recollection, her

identification at trial—critical to the conviction—would have been discredited. Nevertheless, it

does not appear that the police made any effort to question either Sue Hosken, the unnamed

41
nurses, or nurse Struwin regarding the specifics of the initial identification. More to the point,

there was no effort on trial counsel’s part to do so either. (see attached Affidavit of Edward

Lewis Higley)

As previously stated, there was absolutely no physical evidence that tied Defendant to the

scene of the crime, nor was there anything known to have come from the scene of the crime

found in a search of his house or on his person. The items of physical evidence recovered by the

police ended up shedding no light upon the identity of the perpetrator; none of the forensic tests

linked the Defendant to either of the victims; their blood was not found on his clothing or towels,

and neither was his found on theirs. Despite what appears to be an ironclad alibi regarding

Defendant’s whereabouts and activities during the criminal time frame proffered by the

prosecution, trial counsel made no attempt to interview Sue Hosken, or identify and interview the

unnamed nurses, regarding Tracy Hosken’s initial identification of Defendant as the attacker. If

the persons who first reported the identification suggested to Tracy that the Defendant was the

attacker knowing that he was already under arrest (see attached Affidavit of Sharon Rogers), the

defense neither interviewed them relative to the issue nor put them under oath to relate the facts

and circumstances thereof.

The Sixth Circuit has recently held that counsel’s failure to investigate a potential witness

constituted deficient performance and deprived the accused of effective assistance of counsel

under the Strickland standard. Stewart v Wolfenbarger, 468 F 3d 338 (6th Cir, 2006). The duty to

investigate extends to all witnesses who may have information concerning his or her client’s guilt

or innocence. Towns v Smith, 395 F 3d 251 (6th Cir, 2005). Whether failure to investigate was

reasonable or deficient under Strickland would depend on the facts and circumstances of the

case. We submit where a twelve-year-old girl comes out of an 11-day coma after serious injuries,

and the victim’s mother reports that the victim has identified a perpetrator who is a person the

mother already knows is under arrest for the alleged crime, and other unnamed caregivers with

42
the same knowledge report a similar identification, to not investigate these witnesses and

discover the degree of suggestiveness in their conversation with the victim falls below an

objective standard of reasonableness under Strickland. This is especially so when the

identification is critical to the case, where the police have related to the victim’s family that

unless there is an identification, the case may be dropped. (See attached Affidavit of Sharon

Rogers)

By any standard, in that the case is but for the identification entirely circumstantial would

necessarily infer a thorough wringing of all aspects of the initial identification, particularly when

the identifier is in a compromised medical state. There is every reason to expect that some

problem with the identification would be crucial concerning the accused’s guilt or innocence. At

the very least, trial counsel should have taken some action to determine whether or not the

identification was a “fair” one comporting with Mich Const Art I, §17, or whether it had been

suggested by those who first heard it.

CAUSE AND PREJUDICE

“Cause” for excusing procedural default is established by proving ineffective assistance

of trial counsel, pursuant to the standard set forth in Strickland, supra, or by showing that some

external factor prevented counsel from previously raising the issue. Reed, supra.

We would submit that the performance of trial counsel was below an objective standard

of reasonableness under prevailing professional norms. Reed, supra, Strickland, supra; Pickens,

supra, at 302-303. Just as a lineup identification can be suggestive depending upon the facts and

circumstances under which it is made, so can an eyewitness identification if the name and

identity of the person identified is suggested to the eyewitness by well-meaning caregivers who

know that the person identified is already charged and in custody. This is especially so when the

eyewitness is only the age of twelve and in a weakened state from serious medical injuries.

Reasonable acts by effective counsel would have included garnering the information on the

43
initial eyewitness identification from the police reports, interviewing the person to whom the

identification was purportedly made to determine whether it had been suggestive, and calling

these same people to testify at trial under oath. That the Defendant appears to have a perfect

alibi for the time period testified to by the victim that forms the basis of the eyewitness

identification accentuates trial counsel’s need to take those reasonable steps to investigate.

Instead, the testimony at trial (T, p 909-910) makes it appear that Tracy first made this

identification of Defendant as the attacker to Detective Beloit.

Appellate counsels’ performance also fell below an objective standard of reasonableness

and was constitutionally deficient for failing to raise that trial counsel was ineffective in either

the Court of Appeals or the Michigan Supreme Court. Defendant must show that appellate

counsel was ineffective. Reed, supra; Pickens, supra. Double procedural default must be

excused.

That Tracy made this identification of Defendant first was reported by her mother Sue,

and then by unidentified nurses stands out in the pretrial discovery record. It is plainly there in

the police reports for all to see. (see Exhibits 1 and Exhibit 11 attached hereto) It bears

repeating that this eyewitness identification was the only piece of direct evidence in an otherwise

entirely circumstantial case. It was reasonable for trial counsel to investigate all aspects of this

identification, certainly the facts and circumstances under which it was initially made. For

appellate counsels not to have brought to the attention of the appellate courts trial counsel’s

failure to investigate all witnesses who may have such critical information concerning his client’s

guilt or innocence was deficient. The eyewitness identification made all the difference in this

case, and trial counsel’s ineffectiveness allowed it to go unchallenged, and the same should have

been advanced by appellate counsels as requiring a new trial.

Prejudice resulting from trial counsel’s ineffectiveness is a reasonable probability in that

the identification itself is suspect because Defendant has a perfect alibi for the events underlying

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the identification by the eyewitness. He most assuredly was not there during that time. There is

a reasonable probability that, absent counsel’s errors, the fact finder would have had a reasonable

doubt regarding guilt.

The “actual prejudice” is that, but for the alleged error, the Defendant would have had a

reasonably likely chance of acquittal. MCR 6.508(D)(3)(b)(i). The identification of the

Defendant as Tracy’s attacker would have been called into serious question had the initial

identification proven to be suggestive, and that identification is the only hard evidence tying him

to either of these crimes.

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 RELIEF REQUESTED

For all of the reasons, law, and facts cited hereinabove in argument I, Defendant

respectfully requests the Court pursuant to MCL 770.16 order the following:

a. Release of the biological evidence afore described and collected in this matter;

b. That the items tested be subjected to DNA testing to determine whether

Defendant can be excluded as a source of the DNA material. If the

Defendant is excluded as a source of the DNA material, the DNA test results

should be compared to DNA samples via the FBI (CODIS Databank)

and Michigan State Police so the true perpetrator of the crime can be identified,

and Defendant’s convictions be vacated and he be granted a new trial;

c. The DNA testing be performed by The Bode Technology Group, Inc. in

Lorton, Virginia at the expense of the State of Michigan.

As a remedy for the issues raised in arguments II, III and IV, to order the Prosecuting

Attorney to respond pursuant to MCR 6.504(B)(4) and MCR 6.506; and while Defendant

submits the ineffectiveness of trial counsel is manifestly clear from the existing record4, to the

extent the Court believes the claims of ineffectiveness have not been fully developed5, to hold an

evidentiary hearing on Defendant’s claims of ineffectiveness of counsel pursuant to MCR

6.508(C); and/or order that Defendant’s convictions be vacated, and that he be granted a new

trial.

Respectfully submitted,

DATED: ______________________________
xxxxxxxxxxxxxxxxxxxxxxxxxx
Attorney for Defendant

4
Establishing the basis for the Court to make a finding of ineffectiveness in the fashion detailed
in People v Sharbnow, 174 Mich App 94 (1989).
5
In which case, a hearing is indicated pursuant to People v Ginther, 390 Mich 436 (1973).
46