Appellant's Appendix - Michigan Courts

Appellant's Appendix

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Table of Contents

1. Judgment of Sentence 1a 2. Court of Appeals Majority Opinion 2a-8a 3. Court of Appeals Concurrence & Dissent 9a-11a 4. Trial Court Register of Actions 12a-18a 5. Court of Appeals Register of Actions 19a-24a 6. Felony Information 25a-26a 7. Trial Day 1 – Audrey Polk Testimony 27a-72a 8. Trial Day 3 73a-195a 9. Trial Day 4 – Antonio Jackson Testimony & Closings 196a-289a 10. May 2012 Sentencing 290a-322a 11. May 2014 Resentencing 323a-360a 12. December 2017 Resentencing 361a-399a

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1a Judgment of Sentence

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If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED February 25, 2021

v No. 344242 Wayne Circuit Court

ANTONIO JACKSON, LC No. 11-012637-01-FC

Defendant-Appellant.

Before: CAVANAGH, P.J., and SERVITTO and CAMERON, JJ.

PER CURIAM.

Defendant, Antonio Jackson, was convicted in 2012 of first-degree criminal sexual conduct (“CSC-I”), MCL 750.520b. Following a remand from this Court, Jackson was resentenced as a second habitual offender, MCL 769.10, to 30 to 50 years’ imprisonment for the CSC-I conviction. Jackson again appeals, and we affirm.

I. BACKGROUND

This case concerns Jackson’s sexual assault of the victim. The underlying facts are as follows:

This case arises from events that occurred in 1997, though no charges were filed until 2011. According to the victim, an unknown man wielding a firearm entered the apartment where she was staying with her sister and sexually assaulted her as she lay in bed between her two young children. After the man left, the victim and her sister called 911, and the victim was taken to the hospital, where a rape kit was collected. In 2011, DNA analysis was performed on the evidence collected in the rape kit, and [Jackson] was identified from the analysis. The charges were filed in September 2011. At trial, the issue was consent. [Jackson] claimed that he had consensual sexual intercourse with the victim after they met in a parking lot and discussed a payment of $500 for sex. He claimed that this occurred in a different apartment and that he never went to the apartment where the victim was staying with her sister. Apparently to explain the claim of sexual assault when the act was consensual, [Jackson] testified that he left without paying and never saw the victim

2a Court of Appeals Majority Opinion

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again. [People v Jackson (Jackson I), unpublished per curiam opinion of the Court of Appeals, issued March 6, 2014 (Docket No. 311557), p 1.]

In 2012, a jury convicted Jackson of first-degree home invasion, MCL 750.110a(2), and CSC-I. Jackson was acquitted of possession of a firearm during the commission of a felony (“felony-firearm”), MCL 750.227b, and possession of a firearm by a convicted felon (“felon-in-possession”), MCL 750.224f. Jackson was initially sentenced to 10 to 20 years’ imprisonment for the home-invasion conviction and to 30 to 50 years’ imprisonment for the CSC-I conviction. Jackson appealed. This Court affirmed Jackson’s conviction of CSC-I, but vacated Jackson’s first-degree home-invasion conviction because the statute of limitations had expired. Jackson I, unpub op at 2, 4. This Court remanded the matter for resentencing. Id. at 4. Jackson filed an application for leave to appeal this Court’s decision to our Supreme Court.

While Jackson’s application for leave to appeal was pending, the trial court resentenced Jackson on May 30, 2014. The trial court again sentenced Jackson to 30 to 50 years’ imprisonment for the CSC-I conviction. Thereafter, Jackson’s application for leave to appeal was denied, People v Jackson, 497 Mich 869; 853 NW2d 351 (2014), and Jackson appealed from the May 30, 2014 judgment of sentence. This Court vacated the sentence, holding that, “[b]ecause [Jackson’s] appeal to our Supreme Court was still pending when the trial court imposed its sentence in violation of MCR 7.302(C)(5), we are constrained to vacate and remand for resentencing.” People v Jackson, unpublished per curiam opinion of the Court of Appeals, issued December 8, 2015 (Docket No. 323165), p 1.

In December 2017, the trial court held the resentencing hearing. During the hearing, the parties disputed whether offense variable (“OV”) 1 and OV 2 of the former advisory judicial sentencing guidelines were properly scored. Over Jackson’s objections, the trial court assessed 15 points for OV 1 and 25 points for OV 2. The trial court again sentenced Jackson to 30 to 50 years’ imprisonment for the CSC-I conviction. In doing so, the trial court stated as follows:

What [Jackson] did was horrific. To break into a home in the middle of the night, into the sanctity of the person’s home and attack them in their bed while they’re sleeping, and engage in a criminal sexual conduct, these are things that a civilized society cannot tolerate . . . . As I say, it was a unanimous verdict. It’s not easy to get a unanimous verdict. So[,] the evidence obviously was sufficient. . . .

I have heard, anecdotally, that there was no remorse shown at the time. Obviously, we went to trial in an effort to get a not guilty verdict. But the jury saw the facts the way they did and [the predecessor sentencing judge] sentenced [Jackson] to 30 to 50 years for the crime of criminal sexual conduct first degree. And based upon everything that I have seen, I’m not in a position to indicate or say that [the judge] has done anything erroneous. [The predecessor sentencing judge’s] result was reasonable within the realm of possibilities. And as I look at this now, under [People Lockridge, 498 Mich 358; 870 NW2d 502 (2015)], the guidelines are advisory. But as I look at the facts, I do not find that [the judge’s] sentence of


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30 to 50 years was unreasonable. It does appear to be reasonable and proportionate to the facts and circumstances.

* * *

[T]he [c]ourt places particular importance on this sentence on the nature ofthe offense and the impact that it has had on the lives, the victim and her children. And I think all we have to do is take a look at the victim’s impact statement in the Presentence Investigation Report to understand . . . [that Jackson’s] victims have spent time in their own special kind of prison. They have serious problems . . . .

So I do believe that this sentence provides for deterrence, it’s a protection of society.

Jackson filed a delayed application for leave to appeal, which this Court denied. People v Jackson, unpublished order of the Court of Appeals, entered October 25, 2018 (Docket No. 344242). Jackson appealed to our Supreme Court, which remanded the matter to this Court “for consideration as on leave granted.” People v Jackson, 505 Mich 874; 935 NW2d 362 (2019). In doing so, our Supreme Court cited People v Beck, 504 Mich 605; 939 NW2d 213 (2019). Jackson, 505 Mich at 874.

II. STANDARDS OF REVIEW

We review constitutional issues, such as due process challenges, de novo. People v Benton, 294 Mich App 191, 203; 817 NW2d 599 (2011). Under the judicial guidelines, the trial court’s sentencing decision is to be reviewed for an abuse of discretion, applying the principle of proportionality standard set forth in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). People v Babcock, 469 Mich 247, 253-254; 666 NW2d 231 (2003). Furthermore, as it relates to the judicial guidelines, “[a]ppellate review of guidelines calculations is limited, and a sentencing court has discretion in determining the number of points to be scored provided there is evidence on the record that adequately supports a particular score.” People v Cain, 238 Mich App 95, 129-130; 605 NW2d 28 (1999) (quotation marks and citation omitted).

III. ANALYSIS

A. SENTENCING—CONSIDERATION OF ACQUITTED CONDUCT

Jackson argues that the trial court erred when it sentenced him. More specifically, Jackson argues that the trial court erred when it scored OVs 1 and 2 on the basis of acquitted conduct. We disagree.

As an initial matter, we note that the judicial guidelines apply to Jackson’s offense because it was committed before January 1, 1999. MCL 769.34(1); People v Reynolds, 240 Mich App 250, 253-254; 611 NW2d 316 (2000). The judicial guidelines, which were used in Michigan courtsfrom 1983 to 1998, were crafted by the Michigan Supreme Court and were promulgated byadministrative order. People v Hegwood, 465 Mich 432, 438; 636 NW2d 127 (2001). As notedby the prosecutor, “because the recommended ranges found in the judicial guidelines were not theproduct of legislative action, a sentencing judge was not necessarily obliged to impose a sentence


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within those ranges.” Id. Thus, appellate courts will only offer relief “where (1) a factual predicate is wholly unsupported, (2) a factual predicate is materially false, and (3) the sentence is disproportionate.” People v Mitchell, 454 Mich 145, 177; 560 NW2d 600 (1997).

In this case, however, Jackson does not argue that he has a cognizable appellate claim under Mitchell. Instead, Jackson raises a constitutional challenge under our Supreme Court’s decision in Beck, 504 Mich at 629, which held that “reliance on acquitted conduct at sentencing is barred by the Fourteenth Amendment.” “When a jury has made no findings (as with uncharged conduct, for example), no constitutional impediment prevents a sentencing court from punishing the defendant as if he engaged in that conduct using a preponderance-of-the-evidence standard.” Id. at 626. However, “when a jury has specifically determined that the prosecution has not proven beyond a reasonable doubt that a defendant engaged in certain conduct, the defendant continues to be presumed innocent.” Id.

In People v Roberts (On Remand), ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 339424); slip op at 5, rev’d by People v Roberts, ___ Mich ___ (Docket No. 161263, entered October 21, 2020), this Court inferred from Beck that “a sentencing court must consider a defendant as having undertaken no act or omission that a jury could have relied upon in finding the essential elements of any acquitted offense proved beyond a reasonable doubt.” This Court further concluded that “Beck expressly permits trial courts to consider uncharged conduct and any other circumstances or context surrounding the defendant or the sentencing offense.” Roberts (On Remand), ___ Mich App at ___; slip op at 5. Specifically, the Roberts Court held as follows:

Nothing in Beck precludes a sentencing court from generally considering the time, place, and manner in which an offense is committed. We conclude that Beck does not exclude from consideration the contextual fact that the acquitted conduct was committed by someone, so long as that conduct is not actually attributed to the defendant. [Id. at ___; slip op at 5.]

In a peremptory order, however, our Supreme Court reversed this Court’s decision in Roberts, seemingly concluding that some contextual facts upon which this Court relied were, in fact, part of the conduct of which the defendant had been acquitted. People v Roberts, ___ Mich ___; ___ NW2d ___ (Docket No. 161263, entered October 21, 2020).1 Based on our Supreme Court’s decision to reverse Roberts, it appears that the prohibition in Beck extends to circumstances surrounding the sentencing offense if the circumstances concern acquitted conduct that the sentencing offense does not contemplate.

In this case, Jackson was charged with felon-in-possession, felony-firearm, CSC-I, and first-degree home invasion. At trial, the victim testified that, after her attacker entered her home in the early morning hours and got into bed with her and her young children, the attacker put a silver gun “to [her] head.” The victim testified that, although it was dark in the room, she was able to see the gun. The victim testified that her attacker covered her eyes and removed some of her

1 Peremptory orders from our Supreme Court are binding precedent “to the extent they can theoretically be understood, even if doing so requires one to seek out other opinions.” See Woodring v Phoenix Ins Co, 325 Mich App 108, 115; 923 NW2d 607 (2018).


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clothing in order to accomplish penetration. The victim’s son, who was six years old in 1997, testified that he saw the victim’s attacker holding a gun.

Jackson was charged under alternate theories of CSC-I and first-degree home invasion, some of which involved possession of a “weapon” or a “dangerous weapon.” In relevant part, the jury was instructed that it could find Jackson guilty of first-degree home invasion if it determined that “when [Jackson] entered, was present in or was leaving the dwelling, he was armed with a dangerous weapon or [the victim] was lawfully present in the dwelling.” The jury was also instructed that it could find Jackson guilty of CSC-I if it determined, in relevant part, that “the alleged sexual assault occurred under circumstances that also involved . . . the commission of home invasion,” or that Jackson “was armed with . . . a weapon” or “with an object used or fashioned in a manner to lead [the victim] to reasonably believe that it was a weapon.”

As already stated, Jackson was acquitted of felon-in-possession and felony-firearm, both of which require possession of a firearm. However, he was convicted of CSC-I and first-degree home invasion. The reason that the jury decided to acquit Jackson of felon-in-possession and felony-firearm but to convict Jackson of CSC-I and first-degree home invasion is not clear from the verdict form. It is possible that the jury concluded that Jackson possessed a “weapon” or a “dangerous weapon” that was not a firearm, that Jackson possessed an object used or fashioned in a manner to lead the victim to reasonably believe that it was a weapon, or that Jackson did not possess a weapon at all but nonetheless entered the victim’s home when she was lawfully present therein. Nonetheless, because it is not clear from the record, we are constrained to presume under Beck that the jury determined that Jackson did not possess a firearm when he committed his crimes.

1. OV 1

The judicial sentencing guidelines state that OV 1 for the aggravated use of a weapon should be assessed at 15 points if there was “[a] firearm pointed toward victim or touching with another weapon[.]” Michigan Sentencing Guidelines (2d), p 44. Five points should be assessed if there was “[a] firearm displayed, implied, or possessed; any other weapon displayed[.]” Id. Zero points are to be assessed if there was “[n]o firearm discharged, displayed, implied, or possessed; no other weapon[.]” Id. Furthermore, “[a] firearm refers to an operational or nonoperational firearm, or any instrument fashioned to appear to be a firearm,” and a trial court should assess five points if “an offender uses an object in his or her pocket to suggest the presence of a firearm.” Id.

At the resentencing hearing, after Jackson objected to the trial court assessing 15 points to OV 1, the trial court held as follows:

I do know that there was—[an] allegation that the weapon was thereby placed by the victim’s head.

* * *

Well, I do believe there’s sufficient factual basis for the scoring of OV 1 at 15, despite the fact that the home invasion charge was dismissed because of the statute of limitations.


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So[,] we will score OV 1 at 15.

We conclude that OV 1 was properly assessed at 15 points. The judicial sentencing guidelines state that OV 1 should be assessed at 15 points if there was “[a] firearm pointed toward victim or touching with another weapon[.]” Michigan Sentencing Guidelines (2d), p 44 (emphasis added). Because the word “or” is a disjunctive term that indicates a choice between two things, see Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich 191, 209; 895 NW2d 490 (2017), OV 1 can be assessed 15 points if there was “touching with another weapon,” Michigan Sentencing Guidelines (2d), p 44. While we are constrained under Beck to presume that Jackson did not possess a firearm during the CSC-I, we are not constrained to presume that Jackson did not possess a weapon. “Weapon” is defined as “something . . . used to injure, defeat, or destroy.” Merriam-Webster’s Collegiate Dictionary (11th ed) (emphasis added).

The victim testified that she saw a silver gun and that she felt her attacker hold the gun to her head. Although the jury appears to have disregarded the victim’s testimony that she was able to see the gun despite the fact that it was dark in the room, the jury could have concluded that Jackson nonetheless was in possession of a weapon during his crimes. Indeed, the victim’s testimony supports that Jackson possessed some sort of weapon. Aside from attempting to keep her legs pressed together before the penetration occurred, the victim did not resist the assault. After the assault was complete, the victim instructed her sister not to chase after her attacker because she believed that he had a gun. As already stated, the jury could have convicted Jackson of CSC-I if it concluded that Jackson “was armed with . . . a weapon.” Because we are not constrained under Beck to presume that Jackson did not possess weapon and because the record supports the factual predicate for the trial court’s scoring decision with respect to OV 1, we conclude that OV 1 was properly assessed 15 points.

2. OV 2

OV 2 concerns physical attack or injury of the victim. Michigan Sentencing Guidelines (2d), p 44. Specifically, 25 points are to be assessed if the victim suffered “[b]odily injury and/or [was] subjected to terrorism.” Id. Zero points are to be assessed if the victim suffered “[n]o injury[.]” Id. “Terrorism is conduct that is designed to increase substantially the fear and anxiety that the victim suffers during the offense.” Id.

With respect to the merits of Jackson’s argument, the trial court found that OV 2 was properly assessed at 25 points, stating:

I have reviewed the file and reviewed the appellate decisions in this [case] and I do believe there’s sufficient factual basis for the scoring of OV 2 at 25 points based upon subjection of the victim to fear and anxiety during the offense that occurred.

So[,] we will score OV 2 at 25 points.

Jackson argues that, “[t]o the extent that the [trial] court’s conclusion that the victim was subjected to ‘terrorism’ involved a finding that the assault occurred at gunpoint, the score was based on acquitted conduct and violated . . . Jackson’s due process rights.” However, there is no indication that the trial court relied on Jackson’s use of a firearm. Rather, the trial court referenced


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the fact that Jackson subjected the victim “to fear and anxiety during the offense that occurred.” This is supported by record evidence, which establishes that Jackson, who was a stranger to the victim, entered the victim’s home in the early morning hours and got into bed with the victim and her two young children. The victim awoke to “[h]eavy” “weight” “[o]n top of [her].” From there, Jackson covered the victim’s eyes and penetrated her. The victim’s testimony supports that, during the assault, Jackson possessed a weapon that she perceived to be a firearm. When the victim began to pray during the penetration, Jackson stated, “shut up, bitch.” Testimony supports that the victim was crying and whimpering during the assault.

Thus, the record supports that Jackson’s conduct was designed to substantially increase the fear and anxiety of the victim so that Jackson could accomplish his objective of forcing an act of criminal sexual conduct upon her. See People v Dilling, 222 Mich App 44, 55; 564 NW2d 56 (1997). Because the record supports the factual predicate for the trial court’s scoring decision with respect to OV 2, we conclude that OV 2 was properly assessed at 25 points.2

Affirmed.

/s/ Mark J. Cavanagh /s/ Thomas C. Cameron

2 Based on this holding, we need not consider the prosecutor’s argument that the law-of-the-case doctrine applies.


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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

UNPUBLISHED February 25, 2021

v No. 344242 Wayne Circuit Court

ANTONIO JACKSON,

LC No. 11-012637-01-FC

Defendant-Appellant.

Before: CAVANAGH, P.J., and SERVITTO and CAMERON, JJ. SERVITTO, J. (concurring in part, dissenting in part)

While I agree with the majority’s conclusion that the trial court properly scored offense variable (OV) 2, I respectfully disagree with its conclusion that the trial court also properly scored OV 1.

Our Supreme Court has made clear that when a defendant is acquitted of a given crime, it violates due process to sentence the defendant as if he committed that crime. In People v Beck, 504 Mich 605, 610; 939 NW2d 213 (2019), the defendant was convicted by jury of being a felon in possession of a firearm (felon-in-possession) and carrying a firearm during the commission of a felony (felony-firearm). He was acquitted of open murder, carrying a firearm with unlawful intent, and two additional counts of felony-firearm attendant to those charges. Id. While the defendant’s guidelines range was 22 to 76 months, the court imposed a sentence of 240 to 400 months, explaining that it found by a preponderance of the evidence that the defendant committed the murder of which the jury acquitted him. Id. The Beck Court noted that due process not only encompasses the requirement that the state prove the charges beyond a reasonable doubt, but also the presumption of innocence and the requirement of notice. Id. at 620-621. Our Supreme Court thereafter determined that:

. . . when a jury has specifically determined that the prosecution has not proven beyond a reasonable doubt that a defendant engaged in certain conduct, the defendant continues to be presumed innocent. To allow the trial court to use at sentencing an essential element of a greater offense as an aggravating factor, when the presumption of innocence was not, at trial, overcome as to this element, is

9a Court of Appeals Concurrence and Dissent

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fundamentally inconsistent with the presumption of innocence itself. [Id. at 626-627 (quotation marks omitted)]

In making its determination, the trial court acknowledged that uncharged conduct presents a different consideration and that “no constitutional impediment prevents a sentencing court from punishing the defendant as if he engaged in that [uncharged] conduct using a preponderance-of-the-evidence standard. Id. at 626. However, “conduct that is protected by the presumption of innocence may not be evaluated using the preponderance-of-the-evidence standard without violating due process.”1 Id. at 627.

Here, a jury convicted Jackson of first-degree home invasion, and first-degree criminal sexual conduct, but acquitted him of possession of a firearm during the commission of a felony and possession of a firearm by a convicted felon. The prosecution based its charge of first-degree criminal sexual conduct on “multiple variables” of sexual penetration, specifically that which occurred “during the commission of the felony of Home Invasion 1st Degree or [while] defendant was armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon.” (emphasis added). The verdict form provided to the jury did not have an option to specify under which of the two bases it found defendant guilty of first-degree criminal sexual conduct.

A conviction for first degree home invasion allows for the conviction if a defendant breaks and enters a dwelling or enters a dwelling without permission and “with intent to commit a felony, larceny, or assault in the dwelling” if either the defendant is armed with a dangerous weapon or if another person is lawfully present in the dwelling. MCL 750.110a(2). In my opinion, because the jury acquitted defendant of the only two charges that require the possession/use of a weapon, it can be inferred that it convicted defendant of first-degree criminal sexual conduct based on his doing so “during the commission of the felony of Home Invasion 1st Degree” and convicted him of first-degree home invasion based on his entering the home without permission, with the intent to commit the felony of first-degree criminal sexual conduct “while another person [was] lawfully present in the dwelling.”2

That the judicial sentencing guidelines apply to defendant’s convictions due to the date they occurred (People v Reynolds, 240 Mich App 250, 253-254; 611 NW2d 316 (2000)) compels no different result. As our Supreme Court aptly stated, “[t]he difference between acquitted conduct and uncharged bad acts presented at sentencing is critical and constitutional” and “reliance on

1 Defendant was sentenced under the judicial sentencing guidelines, which had an “any supporting evidence” review standard, People v Watkins, 209 Mich App 1, 5; 530 NW2d 111 (1995), whereas the statutory sentencing guidelines had a higher “preponderance of the evidence” review standard. 2 While the majority states it is possible that the jury concluded that Jackson possessed a weapon or a dangerous weapon that was not a firearm, or that Jackson possessed an object used or fashioned in a manner to lead the victim to reasonably believe that it was a weapon, the only evidence presented at trial concerning anything of that matter was that defendant possessed a gun at the time of the incident.


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acquitted conduct at sentencing is barred by the Fourteenth Amendment.” Beck, 504 Mich 621, 629. Thus, this is a due process issue, not a sentencing guidelines issue. While the application of the judicial and later, the statutory, sentencing guidelines have undergone changes in their application (see, MCL 769.34(1) and People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015)) the principles behind and application of due process have and do remain solid.

Because OV 1 of the judicial sentencing guidelines addresses the aggravated use of a weapon and the jury acquitted defendant of the only charges that required evidence of a weapon, I believe the trial court erroneously assessed defendant 15 points for OV 1. In imposing sentence, the trial court specifically stated that there was an allegation that “the weapon was thereby placed by the victim’s head,” and that it found sufficient factual basis for scoring OV 1 at 15 points. The only evidence concerning a weapon that was presented at trial was the victim’s testimony that defendant pointed a gun at her head and the trial court clearly assessed the 15 points based upon defendant’s possession of a gun—conduct for which defendant was acquitted. The assessment of 15 points on OV1 thus violated defendant’s due process rights under Beck. OV 1 should be scored at 0.

“A sentence is invalid when it is beyond statutory limits, when it is based upon constitutionally impermissible grounds, improper assumptions of guilt, a misconception of law, or when it conforms to local sentencing policy rather than individualized facts.” People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997) (internal citations omitted). Because the sentence in this case was based on an improper assumption of guilt and violated due process, it was based upon inaccurate information. And when OV 1 is correctly scored at 0, points, defendant’s OV score changes from 50 points to 35 points, which in turn changes defendant’s OV level from IV to III, and his sentencing guidelines from 240-480 months to life imprisonment to 180-360 months to life imprisonment. The trial court sentenced defendant to 360 to 600 months’ imprisonment. While the 360-month minimum is within the corrected sentencing guidelines range, it is at the very top of the range. Where the trial court saw fit to initially sentence defendant only to the middle of the guidelines range and the sentence was based upon inaccurate information, I would find that defendant is entitled to resentencing. See People v Francisco, 474 Mich 82, 90-92; 711 NW2d 44 (2006).

/s/ Deborah A. Servitto


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COA 344242MSC 162908PEOPLE OF MI V ANTONIO JACKSONLower Court/Tribunal

WAYNE CIRCUIT COURT

Judge(s)

HATHAWAY THOMAS M J

Case Header

Case Number

COA #344242 MSC #162908

Case Status

MSC Pending on Application

COA Case Concluded; File Open

Docket Case Documents

Case Information

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Parties & Attorneys to the Case - Court of Appeals

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PEOPLE OF MIPlaintiff - Appellee

Attorney(s)

CARTWRIGHT KRISTEN, Prosecutor

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JACKSON ANTONIODefendant - Appellant

Attorney(s)

MARCUZ KATHERINE L, State Appellant Defender

Parties & Attorneys to the Case - Supreme Court

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PEOPLE OF MIPlaintiff

Attorney(s)

Kristin Cartwright, Ass't Pros

�

JACKSON ANTONIODefendant

#82411

#76625

#82411

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https://www.courts.michigan.gov/case-search/?resultType=cases&aBarNumber=82411



Attorney(s)

Katherine Marcuz, Ass't Defender

�

PAAM

Amicus Curiae

Attorney(s)

Prosecuting Attorneys Ass'n of MI

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CDAM

Amicus Curiae

Attorney(s)

Criminal Defense Attorneys of MI

#76625

#127489

#1274890

COLLAPSE ALL EXPAND ALL

��/��/�� App for Delayed Appeal - Criminal

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��/��/�� Motion: Supplemental Brief

��/��/�� Submitted on Motion Docket

��/��/�� Order: Application - Deny - App for Delayed Appeal

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��/��/�� Supreme Court Order: Remand as Leave Granted

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��/��/�� Brief: Appellant

��/��/�� Presentence Investigation Report or Other Confidential Material

��/��/�� Stipulation: Extend Time - AE Brief

��/��/�� Noticed

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��/��/�� Application for Leave to SCt

��/��/�� Supreme Court: Answer - SCt Application/Complaint

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i

MR. KOMORN: No, judge.

2 THE COURT: Youre excused, maam.

3 THE WITNESS: Okay.

4 (The witness was excused at 3:30 P.M.)

S MS. HAGAMAN-CLARK: Thank you.

6 People would call Audrey Polk.

7 THE COURT: Would you raise your right hand,

8 please?

9 AUDREY POLK,

10 called as a witness at 3:34 P.M., having first been duly

ii sworn by the Court, was examined and testified on her oath

12 as follows:

5 13 THE WITNESS: Yes.

14 THE COURT: Thank you. If youll just have a

15 seat right there, that microphone swivels out so its easy

16 to sit down.

17 MS. HAGAMAN-CLARK: May I proceed?

18 THE COURT: Yes. Go right ahead.

19 MS. HAGAMAN-CLARK: Thank you.

20 DIRECT EXAMINATION

21 BY MS. HAGAMAN-CLARK:

22 Q. Good afternoon.

23 A. Good afternoon.

24 Q. Could you tell us your name, please?

5 25 A. Audrey Polk.

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Si Q. Ms. Polk, I wanna ask you how old are you today?

2 A. Forty-one.

3 Q. And back on February 17, 1997, how old were you then?

4 A. Twenty-six.

S Q. Did you have anychildren?

6 A. Two.

7 Q. And what are their names?

8 A. Thurmon and Bianca.

9 Q. And back in 1997, how old would Thurmon have been?

10 A. Thurmon was six years old.

ii Q. And how old would Bianca have been?

12 A. She wasnt even one yet. She wasa baby-baby, premature

5 13 actually.

14 Q. And today are you in school?

15 A. Yes.

16 Q. And where do you go to school at?

17 A. University of Phoenix.

18 Q. And what are you studying?

19 A. Psychology.

20 Q. How close are you to being finished?

21 A. Actually, I have my bachelors and Im going for my

22 masters.

23 Q. I want to direct your attention back to February 17, 1997.

24 Do you recall where you were staying at or where

5 25 you were living at this point?

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2 Q. Where were you living?

3 A. With my sister on Meyers and Chicago.

4 Q. Would that be 9407 Meyers?

S A. Yes.

6 Q. And prior to February 17, 1997, do you know how long you

7 had been staying there for?

8 A. Maybe about three, four months maybe.

9 Q. Whats locatedat 9407 Meyers? Is that a house? Is it a

10 flat?

ii A. Apartments like.

12 MS. HAGAMAN-CLARK: May I approach the witness?

13 THE COURT: Yes.

14 MS. HAGANAN-CLARK: Thank you.

15 Q. (By Ms. Hagaman-Clark, continuing): Im showing you

16 whats been marked as Peoples ProposedExhibit Number 9.

17 Can you take a look at that for me? And what

18 does that depict? Do you recognize what that is?

19 A. Oh, Point A seems like --

20 Q. Do you recognize that neighborhood?

21 A. Yes.

22 Q. What is that neighborhood?

23 A. Where?

24 Q. Is that West Chicago and Meyers area?

2S A. It looks like it, yes.

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1 Q. Okay. Im gonna show you whats been marked as Peoples

2 Proposed Exhibit Number 10.

3 Do you recognize whats in that?

4 A. Yes.

5 Q. And what is that?

6 A. Thats the apartment.

7 Q. All right. Im gonna show you ii and ask you whats that?

8 A. Thats the apartment as well.

9 Q. Is that just a closer up shot?

10 A. Closer.

ii Q. And Im gonna show you Peoples ProposedExhibit Number

12 12. Do you recognize that as well?

5 13 A. Window.

14 MS. HAGAMAN-CLARK: Okay. Im gonna ask for the

15 admission of Peoples Proposed Exhibits 9 through 12.

16 THE COURT: Any objection?

17 MR. KOMORN: No objection.

18 THE COURT: Theyre admitted.


20 Q. (By Ms. Hagaman-Ciark, continuing): Ms. Polk, can you see

21 the monitor?

22 A. Yes.

23 Q. Okay.

24 MS. HAGAMAN-CLARK: Can all the jurors see the

5 25 monitor?

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1 THE JURORS: (No verbal response.)

2 Q. (By Ms. Hagaman-Clark, continuing): The apartment, was it

3 this building here in the middle (indicating)?

4 A. Where the A is.

S Q. Where the little A is?

6 A. Yes.

7 Q. Is this the window that would have been into the

8 apartment?

9 MR. KOMORN: Objection; leading.

10 Q. (By Ms. Hagaman-Clark, continuing): Would that have been

ii into the apartment, this first window?

12 A. That is the apartment window, yes.

5 13 Q. Okay. And showing Peoples ii, is that the same picture

14 just a little bit closer in time?

iS A. Thats the same picture.

16 Q. Okay. Ms. Polk, did something happen to you back on

17 February 17th that brings you here to court today?

18 A. Yes.

19 Q. What happened to you?

20 A. I was raped there.

21 Q. And was there anybody else that stayed at that apartment

22 besides you and your sister and your two children?

23 A. No.

24 Q. And, Im sorry, did you tell us your sisters name?

5 25 A. No, I didnt tell you.

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Si Q. What is your sisters name?

2 A. Lisa.

3 Q. And was this a one bedroom? Two bedroom? Three bedroom?

4 A. One.

5 Q. One bedroom. And how big of a place was it?

6 A. Not very big. It was a small apartment.

7 Q. Okay. Did it have a living room?

8 A. Yes.

9 Q. When you come into the front door, is that right into the

10 living room?

ii A. Yes.

12 Q. Is there a separate dining area?

5 13 A. Kitchen area.

14 Q. All right. And then are the bedroom toward the back or is

15 the bedroom toward the back?

16 A. Yes.

17 Q. Do you know if there was more than one way to get into and

18 out of that apartment?

19 A. Besides the door?

20 Q. No, Im talking about just the door.

21 A. Just that one door.

22 Q. So there wasnt a back entrance or anything like that?

23 A. No.

24 Q. All right. Do you recall approximately what time you went

5 25 to bed that night?

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1 A. Yes, it was around 3:30 in the morning.

5 2 Q. Do you remember what you were doing immediately before you

3 went to bed?

4 A. Yes.

S Q. What were you doing?

6 A. Writing a letter.

7 Q. Do you recall who you were writing a letter to?

8 A. To my brother.

9 Q. And did he live in the area?

10 A. No. He had actually just left for Mississippi.

ii Q. And do you recall what time you went to bed that night?

12 A. Yes, around 3:30.

5 13 Q. Before you went to bed, did you make sure that the door

14 was locked?

15 A. No.

16 Q. Before you went to bed, did you make sure that the windows

17 were all secured?

18 A. No.

19 Q. When you went to bed, did you go into the bedroom?

20 A. Yes.

21 Q. And what happenedwhen you got into bed?

22 A. I kind of made a spot between the babies and went to bed.

23 Q. And when you said that you made a spot between the babies,

24 did you have one on each side of you?

5 2S A. Yes.

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1 Q. And where is your sister at at this point?

S 2 A. In the bed. There was two beds in the room. She was in

3 the other bed.

4 Q. Was she already asleep when you went to bed?

5 A. To my knowledge.

6 Q. Okay. Were your children sleeping when you climbed into

7 bed?

8 A. Yes.

9 Q. Did you fall asleep?

10 A. Yes.

ii Q. Whats the next thing that you rememberhappening?

12 A. Weight.

5 13 Q. And did you feel the weight?

14 A. Heavy.

15 Q. Where did you feel that heaviness at?

16 A. On top of me.

17 Q. Did that feeling of weight wake you up?

18 A. Yes.

19 Q. And what did you see when you opened your eyes?

20 A. A gun and basically that was it.

21 Q. Could you tell if a person was holding the gun?

22 A. Yes, he was.

23 Q. And you say he.

24 Could you tell that it was a man?

5 25 A. Yes.

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I Q. And where is that gun at?

5 2 A. To my head.

3 Q. And could you tell anything about whether or not this

4 person was white or black or Asian?

5 A. No.

6 Q. You could simply tell that it was a man?

7 A. Yes.

8 Q. What happenswhen he has this gun?

9 A. Its to my head.

10 Q. And what do you do when you see -- did you see the gun?

11 A. Yes.

12 Q. Do you rememberwhat color it was?

5 13 A. Silver. Thats the only reason why I saw it.

14 Q. Is it dark in the room?

15 A. Yes.

16 Q. So there were no lights on?

17 A. No.

18 Q. Was it a big gun or a small gun?

19 A. No, it wasnt a big gun.

20 Q. And what happens next?

21 A. He covered my eyes.

22 Q. This person that covered your eyes, what did he cover your

23 eyes with?

24 A. His hand.

5 2S Q. When he covered your eyes, your eyes with his hand, were

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Si you then unable to see anything?

2 A. Right. I couldnt see anything.

3 Q. Could you smell anything?

4 A. Yes.

5 Q. What could you smell?

6 A. Funk, alcohol.

7 Q. Not a pleasant odor?

8 A. Very unpleasant.

9 Q. Okay. What happens after this person covers your eyes?

10 A. I dont recall him uncovering my eyes until he left.

ii Q. Im sorry. Thats my mistake.

12 Once he covered your eyes, what happens next?

5 13 A. He was trying to make his way in.

14 Q. When you say that He was trying to make his way in, are

15 we talking about specific parts of his body?

16 A. Yes.

17 Q. What part of his body are we talking about?

18 A. His penis.

19 Q. And did it go somewhere?

20 A. My vagina.

21 Q. And do you recall what clothes you were wearing that

22 night?

23 A. No. Pajamas, but, no, I dont recall exactly.

24 Q. Does this persons penis ever end up into your vagina?

5 25 A. Yes.

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Si Q. And how long would you say that that was happening for?

2 A. That he was in there?

3 Q. The sex assault. How long did it physically feel like it

4 took place?

5 A. About 15, maybe 20 seconds.

6 Q. Would you classify it as a short period of time?

7 A. Very short.

8 Q. To your knowledge, did this person ejaculate inside of

9 you?

10 A. To my knowledge, I dont know.

ii Q. All right. Is he saying anything to you while his penis

12 is inside of you or while this is going on?

5 13 A. Well, yeah. He told me to shut up, bitch.

14 Because I was praying in his ear.

15 Q. When did you begin to pray?

16 A. Once he made it in.

17 Q. And thats when he told you to shut up, bitch?

18 A. Yes.

19 Q. And did you shut up?

20 A. Yes, I did.

21 Q. What happens next?

22 A. He does what he does and then he gets up.

23 Q. Is your sister still in the room at this point?

~ :: Q. Does she ever make any noises?

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1 A. She called my name.

5 2 Q. Do you have any nicknames?

3 A. Yes.

4 Q. Whats your nickname?

S A. Spicy Meatball.

6 Q. And who gave you that Spicy Meatball nickname?

7 A. My dad.

8 Q. And is that the name that your sister called?

9 A. Yes, she say Spicy.

10 Q. And is this person still in the room with you at that

11 point when your sister calls out?

12 A. Yes.

1 ::~this person appear to acknowledge that calling out?

15 Q. What happens then?

16 A. He continued.

17 Q. What happensafter he continued?

18 A. He left.

19 Q. Did you see how he left?

20 A. Out of the bedroom.

21 Q. And when he left, is there a door on the bedroom?

22 A. Yes, it -- he pulled the door closed, and there was a cord

23 in the door and the door bounced back open. And he came

24 back and closed the door.

5 25 Q. After he closed the door the second time, could you hear

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1 if this person left?

5 2 A. I dont know.

3 Q. After the door closes the second time, what do you do?

4 A. Wait for a second.

5 Q. How long did you wait for?

6 A. Just until it just really registered what had happened,

7 and I just got my phone.

8 Q. Was this a traumatic event for you?

9 A. Very much so.

10 Q. Were you emotional at that point?

ii A. Yes.

12 Q. You indicated that you got your phone?

5 13 A. Yes.

14 Q. And who did you call?

15 A. The police.

16 Q. After you called the police, did they come?

17 A. Yes.

18 Q. Do you know about how long it would have taken them from

19 the time that you called before they actually arrived?

20 A. I dont remember.

21 Q. Do you remember how many officers came?

22 A. I know there ended up to be a few people there.

23 Q. And is your sister still there?

24 A. Yes.

5 25 Q. Do you speak with the two -- were there -- you said that

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1 there is some officers showed up. Were they men? Women?

5 2 Both?

3 A. Both.

4 Q. Do you remember who came first?

S A. No.

6 Q. Did you speak with the officers?

7 A. Yes.

8 Q. The male officers as well as the female officers?

9 A. I would assume. I dont remember exactly.

10 Q. Okay. Do you recall giving them a written statement where

ii they sat down and asked you questions about what had

12 happened?

5 13 A. Yes.

14 Q. And do you recall when you gave them that written

15 statement?

16 A. At the hospital, I believe.

17 Q. And do you recall how you got to the hospital?

18 A. I really dont.

19 Q. Did anybody go with you to the hospital?

20 A. Yes.

21 Q. Who went with you to the hospital?

22 A. My dad, my daughters father, my cousin. Thats all I can

23 really remember.

24 Q. Okay. When you got to the hospital, did additional people

5 25 come there?

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1 A. I believe, yes.

5 2 MS. HAGANAN-CLARK: May I approach the witness?

3 THE COURT: Yes.

4 Q. (By Ms. Hagaman-Clark, continuing): Im showing you a

5 two-page document. Im gonna ask you if you recognize

6 this document.

7 A. I recognize the document but I didnt write it.

8 Q. Okay. What is that document?

9 A. This is a statement that I gave the police.

10 Q. And is your signature on there?

ii A. Yes.

12 Q. Is it on both pages or just one?

5 13 A. Just the one.

14 Q. Okay. And may I have that back?

15 Have you seen this statement since you gave it

16 back in 1997?

17 A. I saw it -- actually I didnt see it.

18 The investigator that came to my house had it

19 and she asked me did I want to read it and I told her no.

20 And she just asked me to tell her what happened.

21 Q. And did you give this statement to the police officers

22 back on February 17, 1997?

23 A. Yes.

24 Q. And you told us that you believe that you did it at the

5 25 hospital?

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5 2 Q. Would that have been around5:16 A.M.?

3 A. Yes, in the morning.

4 Q. All right. And when you went to the hospital and you

5 talked to the police, did you tell them what happened?

6 A. Yes.

7 Q. Okay. The police officers that came to your house, you

8 told us that you believe you talked to them as well. Do

9 you recall that?

10 A. Yes.

ii Q. All right. Did they ask you to provide a description of

12 the person who had sexually assaulted you?

5 13 A. I couldnt.

14 Q. Do you remember giving them any kind of a description?

15 A. Except for he was heavy; I mean and smelled horrible and I

16 guess he had on dark clothes.

17 When he was leaving out, I saw him leaving out.

18 Q. He had dark-colored clothing on?

19 A. Yes.

20 Q. Were you ever able to give them of an approximate age?

21 A. No.

22 Q. What about a height? Could you tell if this person was

23 taller or shorter than you?

S :: ~. Once you got to the hospital, did you see some doctors and

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1 nurses?

2 A. Yes.

3 Q. And did they perform whats known as a rape kit?

4 A. Yes.

S Q. Where did you have that rape kit done at? Do you remember

6 what hospital you went to?

7 A. I -- maybe Sinai—Grace but Im not really sure.

8 Q. Okay. And the rape kit itself, did you have it done in

9 the emergency room?

10 A. When I went to the hospital that night, that morning, they

ii did it then.

12 Q. And could you -- thats difficult, but could you describe

5 13 what that process was like for you?

14 A. Describe what they did or what it was like?

15 Q. What it was like for you.

16 A. Completely embarrassing.

17 Q. Did you have to take your clothes off?

18 A. Yes.

19 Q. And was it a male doctor?

20 A. I believe it was a woman.

21 Q. And did they take samples?

22 A. Yes.

23 Q. Okay. Similar to -- without the samples but similar to a

24 gynecological exam?

5 25 A. Yes.

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1 Q. Do you remember how long that process lasted?

2 A. No, not exactly I dont.

3 Q. Okay. Do you remember if they gave you any medications or

4 any kind of shots or anything like that?

5 A. Yes.

6 Q. Do you remember what —- what was it? Was it medication or

7 shots?

8 A. Medication.

9 Q. And do you recall what time you were able to leave the

10 hospital?

ii A. No.

12 Q. After -- at some point you did leave the hospital, though,

• :: A. :5~1~tfair to say?

15 Q. Do you remember where you went when you left the hospital?

16 A. To my cousins house.

17 Q. And whats your cousins name?

18 A. Sophia.

19 Q. Sophias last name?

20 A. Burton.

21 Q. And did Sophia live over on Longacre?

22 A. Yes.

23 Q. And when you left with Sophia, did you ever return back to

24 the 9407 Meyers to live?

5 25 A. No.

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1 Q. Where did you go and live?

2 A. With Sophia for about two or three weeks until I got an

3 apartment.

4 Q. Okay. Why didnt you want to go back to 9407 Meyers?

5 know it seems like a dumb question.

6 A. The whole -- I was afraid.

7 Q. Im gonna take your attention now to February 3, 2011.

8 Did Investigator Debra Turner come to your home?

9 A. Yes, she did.

10 Q. And were you expecting her?

ii A. No, I wasnt.

12 Q. Did it come as a surprise to you?

13 A. Yes.

14 Q. And did she explain to you the 400 Project and things like

15 that?

16 A. Yes.

17 Q. And did you have to again tell her what had happened?

18 A. Yes.

19 MS. HAGANAN-CLARK: May I approach the witness?

20 THE COURT: Yes.


22 two-page document. Im gonna ask you if you recognize

23 this?

24 A. Yes, this is a statement that she took from me.

5 25 Q. And is your signature on there?

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1 A. Yes, it is.

5 2 Q. Its not in your handwriting but it is your signature?

3 A. Yes.

4 Q. And this statement was taken back on February 3, 2011 at

S approximately 10 A.M.?

6 A. Yep.

7 Q. After you spoke with her, did you then testify across the

8 street at the 36th District Court?

9 A. In December?

10 Q. Yes.

ii A. Yes.

12 Q. And that would have been December of 2011?

5 13 A. Yes.

14 Q. And you were asked questions about what happenedand

15 things like that?

16 A. Yes.

17 Q. Let me ask you this.

18 You had indicated that the person who came into

19 your house spoke to you, told you shut up, bitch; is that

20 right?

21 A. Yes.

22 Q. Did you recognize that persons voice?

23 A. No. He -- no.

24 Q. That same evening when you left your bedroom, did you ever

5 25 go back out in the living room?

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l

A. Only when the police -- I dont even -- I dont even think

2 I got out of the bed until the police got there.

3 Q. When the police got there, did you get out of the bed?

4 A. Yeah.

5 Q. Did you see anything disturbed in the living room?

6 A. No.

7 Q. Has this sexual assault affected your life up to this

8 point?

9 A. Yes.

10 Q. In what way?

11 A. A 1~tof different ways.

12 Q. Tell us one of those ways.

5 13 A. Maybe relationships with men.

14 THE COURT: Im sorry. I could not hear your

15 answer.

16 THE WITNESS: Relationships with men.

17 Q. (By Ms. Hagaman—Clark, continuing): Has this assault had

18 a lasting affect on your life?

19 A. Yes.

20 Q. Do you have an independent recollection of the last time

21 that you had had sex consensually before the night you

22 were sexually assaulted?

23 A. No.

24 Q. After you called the police, did you find anything that

5 25 didnt appear to belong in your bedroom?

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2 : What did you find?

3 A. An open condom packet.

4 Q. Was the condom still in the packet or was it just the

5 wrapper?

6 A. Just the wrapper.

7 Q. Now the person who sexually assaulted you, do you know if

8 they wore a condom?

9 A. No, I dont know.

10 Q. And do you know if the police took that wrapper?

ii A. I dont know.

12 Q. The person seated to my left in the white, do you know

5 13 this person?

14 A. No, I dont.

15 Q. Prior to having to come to court, had you ever seen this

16 person before to your knowledge?

17 A. No.

18 Q. Did you ever go by the nickname Dray-Dray?

19 A. No.

20 THE COURT: Say that again.

21 MS. HAGAMAN-CLARK: I asked her if she ever went

22 by the nickname Dray-Dray.

23 THE WITNESS: Dray—Dray? Dray-Dray? That

24 sounds like a guys name.

5 25 Q. (By Ms. Hagaman-Clark, continuing): Did you ever agree to

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1 have sex with the defendant in exchange for $500?

5 2 A. No.

3 Q. And youre not here today because youre upset that you

4 didnt get paid $500?

5 A. Fifteen years ago?

6 Q. Ill take that as a no.

7 A. Absolutely not.

8 MS. HAGANAN-CLARK: May I have just a moment?

9 THE COURT: Sure.

10 MS. HAGANAN-CLARK: Thank you, Ms. Polk.

ii I dont have anything further at this time.

12 THE COURT: You may proceed.

5 13 cROSS-EXAMINATION

14 BY MR. KOMORN:

15 Q. Good afternoon.

16 Im gonna ask you some questions and if any of

17 them upset you, theyre not intended to upset you. Let me

18 be clear about that. I understand that this is a

19 traumatic experience for you and that is not my intent.

20 If I do ask a question that you dont

21 understand, stop me, tell me you dont understand and Ill

22 rephrase it. Okay? Okay?

23 And youre gonna have to answer verbally for the

24 two court reporters. Theyre taking information down.

5 2S Okay?

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: :: ::: you.

3 Prosecutor asked you a couple questions about

4 number of times that you have spoken to the police or

5 publicly on the record under oath regarding this case, and

6 I just wanna be clear that I understand and that the jury

7 understands.

8 You believe that you made one statement sometime

9 after the incident on February the 17, 1997 and you

10 believe that it was either at the house or at the

ii hospital, correct?

12 A. Correct.

5 13 Q. That one statement and the only time you spoke relative to

14 the incident then; is that correct?

15 A. That I can remember.

16 Q. Okay. And then as you had gotten the call from the

17 investigator who came to your house Debra Turner in must

18 have been 2001 I understand, you then gave another

19 statement or you gave a statement at that time; is that a

20 fair statement?

21 A. Yes.

22 Q. Okay. And in between those two times you dont -- you

23 never talked to any other police about that incident,

24 true?

5 25 A. Not actually true.

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1 Q. Not actually true? Im asking about written statements

2 that you made out to the police. You said you made one in

3 1997?

4 A. Right.

5 Q. And then you made one in 2011?

6 A. Correct.

7 Q. And then you spoke when you took the witness stand in 36th

8 District Court and you were under oath during the

9 Preliminary Exam, correct?

10 A. Correct. Spoke what?

ii Q. You testified as a witness I should say?

12 A. Yes.

5 13 Q. Okay. And do you know of any other time that you have

14 either spoken and it was taken down in writing or spoke to

15 a police officer that wrote something down, or you

16 yourself wrote something down about the incident of

17 February the 17, 1997?

18 A. I dont recall.

19 Q. So its fair to say just those three then.

20 All right. You agree you dont recognize my

21 client, never seen him before, right?

22 A. Never.

23 Q. Okay. And is it true you dont recall, but if I showed

24 you a document that reflected that you had been given a

25 description to a police officer of the person who

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i

allegedly committed the act, would you dispute that you

2 had told the police that he was five foot ten, over 200

3 pounds?

4 A. I dont recall.

S MR. KOMORN: If I may approach the witness to

6 show the Preliminary Complaint Report to see if it

7 refreshes her recollection?

8 THE COURT: Sure.

9 Q. (By Mr. Komorn, continuing): Im handing you

10 officer-in-charge -- Im sorry. Delbert Jennings, Jr., is

ii a police officer had taken a report. At the very top its

12 supposedto reflect what you had said.

5 13 Just look at that top area and let me know if

14 that in fact refreshes your recollection as how you

15 described the person that you saw.

16 A. No, I never said how tall or weight. I just said he was

17 heavy.

18 Q. Okay.

19 A. And I said he had on dark clothing.

20 Q. Okay.

21 A. I cant tell how tall a person is if I didnt see them,

22 especially if theyre laying on top of me.

23 Q. Understood. And you also dispute that you indicated to

24 the officer that it was a black male, right? You do not

5 25 know the race or origin of the individual, correct?

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1 A. Well the hair texture was there but that doesnt mean he

2 was a certain color.

3 Q. Of course. I understand. I just -- I wasnt sure cause

4 in the report, according to this officer, after he spoke

5 to you he wrote down --

6 MS. HAGAMAN-CLARK: Objection. She cant

7 comment on what another witness or police officer may have

8 written in their report.

9 Q. (By Mr. Komorn, continuing): If a person -- the officer

10 that had written that you had said it was a black male,

ii you would say thats not true?

12 MS. HAGANAN-CLARK: Im objecting again. She

13 cant be asked to comment on what somebody else may or may

14 not have written in a report.

15 MR. KOMORN: Its generated in the report. She

16 looked at it.

17 THE WITNESS: I didnt read the whole report.

18 THE COURT: Excuse me. Please dont talk when

19 theyre objecting. I have to make a ruling.

20 Im sustaining the objection. It is what it is.

21 She said she doesnt remember it.

22 MR. KOMORN: Okay.

23 Q. (By Mr. Komorn, continuing): And as you sit here today,

24 you dont have a specific recollection of what the race or

5 25 origin of the individual was that you were interacting

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Si with, correct, that you say assaulted you?

2 A. I dont know what race the person was.

3 Q. Okay. You have a very distinct memory of the smell; is

4 that right?

S A. Yes.

6 Q. And if I understand things correctly, you do recall seeing

7 somebody in a store earlier in that day; is that true?

8 A. What are you talk -—

9 Q. That had the same kind of funky smell that you described?

10 A. No. I dont know what youre talking about.

ii Q. Okay. And when you -- well let me back up for a second.

12 That day was a Sunday, do you agree?

13 A. Yes.

14 Q. Okay. The incident happened late or even into Monday

15 morning, would you agree with that?

16 A. Correct.

17 Q. The earlier in the day what —— where did you find

18 yourself? Just explain to the jury what was going on

19 that—- how you got to the point chronologically before

20 this incident happened, if you would.

21 A. I was at church all day. We ate dinner at church. Went

22 over to familys house, ended up taking my brother to the

23 airport, bus station, one of the two to go to Mississippi.

24 Q. Okay. And you had indicated that you were writing a

5 25 letter; is that right, later on in the evening?

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Si A. Early that morning.

2 Q. Early that morning?

3 A. Yes.

4 Q. And immediately before you went to the bedroom, right?

5 A. Yes.

6 Q. Okay. Were you with anybody between that dinner period of

7 time and about the time you went to bed?

8 A. Could you -- I dont understand.

9 Q. Youd gotten back from church you said and you were at

10 home. And was there anyone else that you were with

ii between 6:00 and 7:00 in the evening at the house?

12 A. No. Besides my sister and my children, no.

5 13 Q. Okay. And do you know what time they would have gone to

14 bed or not been around you?

iS A. I dont remember that, what time they went to bed.

16 Q. All right. But they definitely were not up when you were

17 up at 3:30 or 3:00?

18 A. No, I was sitting at the kitchen table alone.

19 Q. Okay. Now you dont recall today, if I understand your

20 testimony, that you in fact thought the person resembled

21 someone that you had seen earlier in the store; is that

22 what youre saying today?

23 A. I dont know, for one, what youre talking about a store.

24 And I never said -- a person that I cant identify cant

5 25 even resemble anyone.

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i

Q. Do you remember -- in the statement that you gave to the

2 police back in 97, do you remember the investigating

3 officer asking you the question, Did you recognize the

4 face? And you gave the answer, He looked like the guy I

5 saw at the store. I just seen that part, his face from

6 his mustache.

7 A. I said his mouth.

8 Q. Hold on. Let me finish. The guy smelled and the guy I

9 saw at the store smelled, too.

10 Do you remember being asked that question and

11 giving that answer to the police on February the 18th,

12 1997?

S 13 A. I saw the guys mouth, that was it.

14 Q. Okay. Do you remember saying that he resembled the person

iS that you had seen in the store?

16 A. No.

17 Q. Earlier in the day?

18 A. No.

19 Q. You never said that? Youre denying that you said that to

20 the --

21 THE COURT: Would you let her -- ask a question

22 and let her answer it. She starts answering, you cut her

23 off and we are not understanding -- the question makes no

24 sense.

5 25 So ask her the question, then stop talking so

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1 she can answer the question.

5 2 MR. KOMORN: Thank you, judge.

3 Q. (By Mr. Komorn, continuing): First of all, do you

4 remember making that statement to the police in 1997?

S A. Yes.

6 Q. All of it?

7 A. I didnt say he looked like anybody. I never said that.

8 Q. Okay. Did you make a reference to being at a store

9 earlier in the day to the police officer when you gave

10 your statement?

ii A. I dont recall.

12 Q. Okay.

5 13 MR. KOMORN: Can I hand you your statement so

14 you can take a look at it and see if it helps refresh your

15 recollection?

16 If I may approach the witness, Your Honor?

17 THE COURT: You may approach the witness.

18 Q. (By Mr. Komorn, continuing): Where it says question right

19 there, if you want to look at it.

20 THE COURT: You can read as much of the

21 statement as you like.

22 THE WITNESS: Thank you.

23 No, this -- this is not -— this is not the

24 person that I saw in the same day. That wasnt even --

5 25 there was a person that was around the neighborhood that

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i

wore Army fatigue, okay.

2 Q. (By Mr. Komorn, continuing): Who? Who was --

3 A. I didnt know who he was.

4 Q. No, no. Youre referring to what?

5 A. The person that was in the neighborhood.

6 Q. Yes. What about that person?

7 A. You said who?

8 Q. I had asked you if your memorys been refreshed about

9 whether or not you made that statement and you responded

10 by saying that person had fatigues on. And Im asking you

ii who are you referring to?

12 A. The person youre referring to.

13 Q. Youre saying the person that had sexual -- you mean

14 sexually assaulted you?

15 A. No.

16 Q. You knew from the neighborhood?

17 A. No. No.

18 Q. Okay.

19 A. I said I saw his mouth, his, whoever the person that came

20 in. I saw a glimpse of his mouth, that was it.

21 Q. Okay.

22 A. Which resembled a person in the neighborhood. Did I say

23 it was the guy in the neighborhood? No. I dont know who

24 it was.

25 Q. All right. What about the reference to the person that

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Si you saw in the store that smelled bad?

2 A. Well thats the person in the Army fatigue. And I dont

3 know if he smelled bad because I dont get close to people

4 like that. I dont know about that.

5 Q. Well look at your statement and see if it refreshes your

6 recollection as to what you may have said to the police.

7 A. I can barely really read the writing. Can you read it for

8 me?

9 Q. Thats challenging. Im having a tough time, too, thats

10 why I was hoping you could help.

ii But seems to say officer asked you to --

12 MR. KOMORN: If I may, judge?

13 THE COURT: Pardon?

14 MR. KOMORN: If I may, Im gonna try to assist

15 if I can here.

16 THE COURT: You can do that.

17 Q. (By Mr. Komorn, continuing): The question -- it is a

18 question mark there in the middle, about middle-ish bottom

19 of the page. Did you recognize his face? ANSWER: He

20 looked like the guy I saw at the store. I had just seen

21 the part of his face from his mustache. The guy smelled

22 and the guy I saw at the store —— something -— smelled,

23 too.

24 MS. HAGANAN-CLARK: How about he?

5 25 MR. KOMORN: He smelled, too.

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i

Q. (By Mr. Komorn, continuing): Did you make that statement

2 tothe--

3 A. Yes, I did.

4 Q. When you made that statement, were you referring to the

S person that sexually assaulted you?

6 A. I dont know who sexually assaulted me.

7 Q. Right. But when the question that was asked to you was

8 did you recognize his face and you proceeded to give an

9 answer related to someone that you had seen earlier in the

10 day, who were now learning was a person that you actually

11 know from the neighborhood that has fatigues on --

12 A. No, I did not know the person.

13 Q. Okay.

14 A. And I dont know —- no, I said I saw a glimpse of his

15 mouth, that was it.

16 Here. I dont need this anymore. Thank you.

17 Q. Thanks.

18 You were just living at this house or at this

19 apartment for a short period of time; is that what I

20 understand?

21 A. Correct.

22 Q. And who was the -— who was the actual person on the lease,

23 if you know? Was it your sister?

2: ~. Ok:y. If I understand your testimony, it was a short

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i

period of time after you went to bed that this person, as

2 you state, showed up and committed this assault; is that

3 right?

4 A. Maybe about 20 minutes or so, 15, 20 minutes maybe.

5 Q. You dont recall -- when the prosecutor asked you --

6 whether or not you had checked to see if the doors were

7 looked or if the windows were closed; is that right?

8 A. No, I dont recall. I didnt.

9 Q. And it was February, you would agree, right?

10 A. Right.

ii Q. And if you recall, was that something you would normally

12 do, leave your doors open or a window open?

13 A. Well if the door isnt open, how can I shut it? Or if a

14 window isnt open, why would I shut a closed window?

15 Q. Okay. Well thats what I am asking.

16 Would you normally close a window in February

17 before you go to bed is really the question?

18 A. I sleep with my windows open in the winter; I do.

19 Q. Okay. Now were the windows open in the bedroom?

20 A. I dont even recall windows being in that bedroom over

21 there. I dont know.

22 Q. Okay. And you will agree that you personally never saw

23 any evidence of a breaking into the home? There was no

24 smashed windows?

25 A. I never paid attention or looked. I just went to the

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1 hospital.

S 2 Q. Right.

3 A. To come back days later with a U-Haul truck.

4 Q. Okay. And then you would agree that you had never

5 witnessed any breaking, evidence of any breaking into the

6 house? There was no smashed in door or a window, would

7 you agree with that?

8 I never stopped to notice.

9 Q. Thank you.

10 All right. Was the door to the bedroom --

ii before this immediately happened, do you recall if it was

12 open or closed?

5 13 A. I was sleep. I dont remember.

14. Q. I see. Do you remember if it was closed when you went to

iS bed? Did you close it behind you?

16 A. I dont recall doing that either.

17 Q. Okay. And you dont recall if it was open?

18 A. I dont know.

19 Q. Do you have a recollection of a way you would normally do

20 that while you were living there, if you closed the door

21 or not?

22 A. When I was living there, I did things totally different

23 from the way I do things now.

24 Q. Okay. Why is that?

5 25 A. Becauseof the incident.

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Si Q. Okay. So at that time -- so now you do what then? You

2 close the door before you go to bed?

3 A. Everything is locked maybe about 10 times a day and

4 theyre already locked.

5 Q. Okay.

6 A. Everythings shut, chained and checked compulsively.

7 Q. Understood. And I was asking cause I didnt know whether

8 you would be able to hear a door open when they came to

9 the bedroom or not.

10 You said you had only been awakened by someone

ii being on top of you and I wanted to see if you had a

12 recollection of a door possibly opening and you didnt; is

5 13 that right?

14 A. I was asleep.

15 Q. Okay. And the first thing that you recall after being

16 asleep is that you find a person on top of you, correct?

17 A. No, I felt a person on top of me.

18 Q. Okay. And what kind of bed is this? Is it king size?

19 Queen? Is it single?

20 A. Full.

21 Q. Full what? Full? Queen?

22 A. Big enough for me and my two babies.

23 Q. Okay. And were they next to one another? Were they --

24 were you in between the two of them?

25 A. I was in the middle. My son was against the wall and my

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i

daughter was in my arm.

2 Q. Okay. And thats how you fell asleep as you recall,

3 right?

4 A. Yes.

5 Q. And youre next awakened with somebody on top of you?

6 A. Im sorry.

7 Q. Youre next awakened when someone was on top of you is

8 what youre saying, correct?

9 A. Just the weight woke me up.

10 Q. And did you say you see a gun, silver gun, right?

ii A. Yes.

12 Q. And youre able to identify the actual color of the gun

13 despite the fact that you testified that its dark out,

14 right, dark in the room?

15 A. Yes.

16 Q. But you are not able to identify the persons skin color?

17 A. No.

18 Q. But silver is something thats more identifiable

19 apparently, right?

20 A. At that moment.

21 Q. Okay. Now you said that you saw the gun and you knew that

22 it was being pointed at your head, right?

23 A. Well if you feel the gun there, Im sure its ——

24 Q. Okay. Whether you saw it or you felt it, you felt it?

2S A. Both.

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Si Q. Okay. And you also said that the person put his hand over

2 your eyes so you couldnt see; is that right?

3 A. Right.

4 Q. Okay. Now where, if you know, at this time are the --

5 your children?

6 A. In my bed.

7 Q. Okay. Did you notice if they woke up at this time?

8 A. No, I hadnt noticed.

9 Q. Did you hear the baby crying?

10 A. No, the baby didnt cry.

ii Q. Okay. Did your son say anything when this person

12 immediately got on top of you?

13 A. My son didnt say a word.

14 Q. Okay. And if I understand things correctly, with one

15 thing (sic) on your eyes and the other one with the gun,

16 he was able to pull your pajamas down; is that right?

17 A. I dont know.

18 Q. You dont know what?

19 A. What he was doing down there, but he was having a hard

20 time. He was doing something for a minute.

21 Q. Okay. And this is while he had the gun in one hand and

22 your hand -- and his hand over your eyes on the other?

23 You dont know? Cant explain that?

24 A. I cant explain it.

5 2S Q. Okay. But somehow hes able to get his penis into your

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i

vagina, right?

2 A. Yep.

3 Q. And when you said 20 seconds he ejaculates or its over,

4 right? Youre not sure if he ejaculated or not, but you

5 know that the period of time that he was inside was a mere

6 20 seconds; is that what you said, 20 or 30 seconds?

7 A. Short lived.

8 Q. Okay. And you do say that he was fidgeting down there and

9 you previously testified that he was fidgeting down there

10 and you were trying to close your legs so that he couldnt

11 put his penis into your vagina; is that a fair statement?

12 A. Fair statement.

5 13 Q. Okay. So you -- when you say fidgeting down there, do you

14 mean that he had his hand down there to assist in getting

15 his penis into your vagina?

16 A. No, he was doing something before that.

17 Q. Okay. Was his hand involved?

18 A. Yeah.

19 Q. Okay. So you will agree then that his hand must have

20 either not been on the gun or either not been on your

21 eyes, right?

22 A. One of the two.

23 Q. And you were alluding to -- the fidgeting around, he was

24 doing something down there, you say something.

5 25 Do you really have no idea and was it something

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other than trying to put his penis in your vagina?

2 A. Yes.

3 Q. What was it?

4 A. Well the conclusion I came to after it was over and I saw

S the empty pack, possibly maybe he was trying to put the

6 rubber on.

7 Q. Okay. Now you did not provide that to the police; is that

8 correct?

9 A. Provide what?

10 Q. You did not show them the rubber, I mean the empty condom

11 wrapper or --

12 A. I dont recall what happenedto it.

13 Q. Okay. You remember seeing it afterwards, though?

14 A. It was in the bed.

15 Q. Okay. Now during this period of time after hes

16 penetrated you, still your children dont wake up; is that

17 right?

i8 A. I dont know.

19 Q. You didnt hear them cry or say something to you?

20 A. No.

21 Q. You will agree that he -- when you say he was doing

22 something down there with the -- kind of would have been

23 moving at least a little bit, right?

24 A. Maybe so. Of course.

5 2S Q. You said that he —- you say that at some point in time

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1 your sister says something; is that right?

2 A. Yes.

3 Q. Okay. And you maintain that once thats stated the person

4 gets up and gets out of the room; is that right?

5 A. She called my name.

6 Q. Okay. And thats when this person got up and left, right?

7 A. No.

8 Q. No? What happened when she called your name?

9 A. Nothing. She called me again. She said she heard me

10 whimpering.

11 Q. How far away was her bed from yours?

12 A. As far away as this is from me right now.

5 13 Q. You want this jury to believe that you were sexually

14 assaulted and the person in the bed right next to you —-

15 MS. HAGANAN-CLARK: I have to object. Thats

16 argumentative and thats not a fair question.

17 THE COURT: Its not -- the question is —— what

18 she wants somebody to believe is totally ridiculous.

19 Q. (By Mr. Komorn, continuing): And you didnt see the

20 sister——

21 THE COURT: I do want to say for the record that

22 she pointed to a place thats about three feet from her

23 chair.

24 MR. KOMORN: Thank you.

25 Q. (By Mr. Komorn, continuing): And you became aware that

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. 1 your sister did not know that you had been sexually

2 assaulted after this person left?

3 MS. HAGANAN-CLARK: Objection. What her sister

4 may or may not have -- she may have learned from her --

5 MR. KOMORN: If she -- whats the objection?

6 MS. HAGAMAN-CLARK: Can I put my objection on

7 the record?

8 MR. KOMORN: Sure. Go ahead.

9 MS. HAGAMAN-CLARK: Whether or not and what she

10 may have learned later from her sister, its not relevant,

ii first of all.

12 Second of all, its gonna be hearsay.

5 13 MR. KOMORN: Well its, first of all, not

14 offered for the truth. And this is information that if

15 she knows by way of interacting with her sister as to what

16 happened.

17 I mean I am gonna ask the sister the same

18 question. But if she knows after having a conversation

19 with her afterwards that she didnt know what had just

20 taken place, and she knows that from the conversation, I

21 am not asking what was said there by the sister. I am

22 asking if she becameaware of her sisters state of mind

23 at that time.

24 THE COURT: Its hearsay.

25 MR. KOMORN: Very well, judge.

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. 1 Q. (By Mr. Komorn, continuing): So you did interact with

2 your sister for a period of time afterwards, she stayed

3 with you after the incident; is that right?

4 A. No, I dont recall her being even there with me in the

5 hospital.

6 Q. And how old is your sister at that time?

7 A. Five years older than me, so she must have been about 31.

8 Q. Okay. Were you ever aware that the police never submitted

9 your rape kit to any lab for testing?

10 MS. HAGAMAN-CLARK: Objection. Whats the

ii relevance of what she was aware of as it relates to her

12 rape kit?

13 THE COURT: How is it relevant?

14 MR. KOMORN: Well Ill ask it a different way.

15 Q. (By Mr. Komorn, continuing): Did you ever call the police

16 department yourself to see if there was any follow-up with

17 the rape kit, if it had ever been processed?

18 A. I think I did. I do believe so.

19 MR. KOMORN: If I could have one second, Your

20 Honor.

21 THE COURT: Actually I think well just break

22 for the day, ladies and gentlemen. And the witness will

23 have to come back in either case.

24 So please be back at 9:15. Now the reason I say

25 9:15 is because the casino parking lots are all free after

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1 9:00. So thats why you dont have to be here until 9:15.

S 2 I know we dont pay you very much for jury service and I

3 just thought the free parking might help.

4 So see you tomorrow morning at 9:15.

5 (The jury was excused at 4:25 P.M.)

6 MS. HAGAMAN-CLARK: Judge, should she go back to

7 the witness room?

8 THE COURT: Sure.

9 (The witness was excused.)

10 THE COURT: Anything for the record?

ii MS. HAGANAN-CLARK: No on before of the People,

12 judge.

13 MR. KOMORN: What was the question? Im sorry.


15 MR. KOMORN: No, nothing for the record. 9:15

16 tomorrow as I understand?

17 THE COURT: 9:15, correct. Please be on time.


19 (At about 4:27 P.M., proceedings concluded.)

20 — — —

21

22

23

24

•25

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1 CERTIFICATE

02

3 STATE OF MICHIGAN)

4

5 COUNTYOF WAYNE

6

7

8 I, Betty Sanders, CSR-2931, and Official Court

9 Reporter of the Third Judicial Circuit Court for the

10 County of Wayne, Criminal Division, State of Michigan, do

ii hereby certify that the foregoing pages 1 through 219,

12 inclusive, comprise a full, true and correct transcript of

S 13 the proceedings and testimony taken in the matter of the

14 People of the State of Michigan versus Antonio Jackson, on

iS April 30, 2012.

20~S~ders,SR-2931

21 Official Court Reporter

22

23

24

25 DATED: This 19th day of June, 2012.

219


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~TATEOFMICHIGAN~/~

1

2 THIRD JUDICIAL CIRCUIT COURT FOR THE COUNTYOF WAYNE

3

4 THE PEOPLEOF THE STATE OF MICHIGAN,

5

6 vs. Case No. 11—12637

7

8 ANTONIO JACKSON,

9 Defendant. ~1~

10 ________________/

-J~?11 —

12 JURY TRIAL

13 BEFORE THE HONORABLE CAROLE F. YOUNGBLOOD, CIRCUIT JUDGE

14 704 Frank Murphy Hall of Justice, 1441 St. Antoine,

012

15 Detroit, Michigan - ~

1716 APPEARANCES: ~ )7~)ANIELLE FIAGAMAN CLARK1.)ayne County Prosecutoi~s Qff ice

18 1441 St. Antoine, 12th/~!k~,~ ~ (Detroit, MI ~

19Appearing on behalf of the People.

20

21 MICHAEL KOMORN (P47970)3000 Town Center, Suite 1800

22 Southfield, Michigan 48075

23 Appearing on behalf of t

~24 REPORTEDBY:

25 Betty Sanders (CSR—2931)Certified Shorthand Reporter

73a Trial Day 3

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1 TABLE OF CONTENTS

2 WITNESSES PAGE

3 FREDERICK CRANK

4 DIRECT EXAMINATION BY MS. HAGAMAN-CLARK 4CROSS-EXAMINATION BY MR. KOMORN 7

5THURMON POLK

6DIRECT EXAMINATION BY MS. HAGAMAN-CLARK 10

7 CROSS-EXAMINATION BY MR. KOMORN 15

8 LAV~T.T.~TYSON


10 REDIRECT EXAMINATION BY MS. HAGAMAN-CLARK 42

11 DELBERT JENNINGS, JR.


S13__LISA GORE


15 CROSS-EXAMINATIONBY MR. KOMORN 72REDIRECT-EXAMINATION BY MS. HAGAMAN-CLARK 96

16KIMBERLY TURNER


18 CROSS-EXAMINATIONBY MR. KOMORN 110

19

20 EXHIBITS

21 IDENTIFICATION MARKED ADMITTED

22

23

NONE

2

74a Trial Day 3

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1 Detroit, Michigan

2 Wednesday, May 2, 2012

3 At or about 9:38 A.M.

4 — — —

5 THE CLERK: This is the People of the State of

6 Michigan versus Antonio Jackson, Case Number 11-4012637-01

7 FC.

8 This case here is continuation of a jury trial

9 thats in progress.

10 MS. HAGAMAN-CLARK: Good morning, Your Honor.

11 Danielle Hagaman—Clark on behalf of the People.

12 MR. KOMORN: Good morning. May it please the

13 Court.

14 Michael Komorn on behalf of Antonio Jackson who

15 is present.

16 THE COURT: Good morning. Are we ready for the

17 jury?

18 I understand all the jurors are here, right.

19 THE DEPUTY: Yes.

20 THE COURT: Are we ready for the jury?

21 MS. HAGAMAN-CLARK: Yes.

22 THE COURT: All rise for the jury.

23 (The jury entered the courtroom at 9:36 A.M.)

24 THE COURT: You may be seated, ladies and

25 gentlemen.

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1 Good morning, members of the jury.

2 THE JURORS: Good morning.

3 THE COURT: Were ready to proceed.

4 You may call your next witness.


6 The People call Frederick Crank.

7 THE COURT: Good morning, sir. Would you tell

8 me your name, please?

9 THE WITNESS: Frederick Crank, C-r-a-n-k.

10 THE COURT: And do you solemnly swear or affirm

11 that the testimony you will give will be the whole truth,

12 so help you God?

13 THE WITNESS: I do.

14 THE COURT: Please have a seat right there.

15 Thank you.

16 Go right ahead.


18 FREDERICK CRANK,

19 called as a witness at 9:36 A.M., having first been duly

20 sworn by the Court, was examined and testified on his oath

21 as follows:

22 DIRECT EXM4INATION


24 Q. Good morning.

25 Could you tell us your name, please?

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1 A. Frederick Crank.

2 Q. And, Mr. Crank, I want to direct your attention back to

3 February of 1997.

4 Were you employed at that time?

5 A. Yes, I was.

6 Q. And where were you employed at?

7 A. I was with the Detroit Medical Center assigned to Grace

8 Hospital which used to be Mt. Carmel.

9 Q. And what were your responsibilities and your job there?

10 A. I was in security working the day shift and I was assigned

11 to the emergency room.

12 Q. Prior to working security at the DMC or Sinai-Grace or

13 whatever it was called at the time, did you have any law

14 enforcement background?

15 A. Yes.

16 Q. What was your law enforcement background?

17 A. I was 25 years Detroit Police Department, retired from

18 there in 1987.

19 Q. And how long did you work as a security officer for the

20 DMC?

21 A. Approximately seven years.

22 Q. And do you still reside in this area?

23 A. No, I do not.

24 Q. Okay. Just tell us what city you live in.

25 A. Caseville, Michigan. Tip of the thumb.

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1 Q. Are you retired now?

2 A. Oh, yes.

3 Q. As part of your duties as a security officer, did you ever

4 have contact with rape kits?

5 A. Yes.

6 Q. And I wanna show you whats been marked as Peoples

7 Exhibit Number 2. Im gonna ask you if you recognize

8 anything on this kit.

9 A. Yes, my name has been printed. Thats my printing and the

10 date of February the 17, 1997 at 0930 hours. And I

11 received it from Mary Kay Martin who is an RN in the

12 emergency section.

13 Q. When you would receive these kits, would they have already

14 been sealed?

15 A. Yes.

16 Q. And what would you have done with this kit after receiving

17 it from Mary Kay Martin?

18 A. I would take it into my possession and notify the Detroit

19 Police Department that we had evidence for the Detroit

20 Police Department where it would remain in our either

21 lockup or I would keep it personally, which probably was

22 what I had with me because we dont have a lockup in the

23 emergency room for safer evidence.

24 Q. To your recollect -- do you have in any independent

25 recollection of this particular kit?

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• 2 Q. You indicated that you had been assigned to the emergency

3 room on this date?

4 A. Correct.

5 Q. And you would have held onto it, you believe, until the

6 Detroit Police arrived?

7 A. Thats correct.

8 MS. HAGAMAN-CLARK: Thank you. I have nothing

9 further of this witness at this time.

10 THE COURT: Mr. Komorn.


12 CROSS-EXAMINATION

13 BY )~. KOMORN:

14 Q. Just so I understand your testimony, that kit -- were you

15 present when it was prepared by the physician?

16 A. No.

17 Q. You get it at some other point in time; is that correct?

18 A. Yes. The emergency personnel, either the nurse or someone

19 else, would notify security assigned to the emergency room

20 that they have evidence to be turned over to the police

21 department, at which time then I would have entered

22 probably the examination room or the nurse would have come

23 right outside the door and handed it to me, one way or the

24 other.

25 Q. Do you have a specific recollection of what happened in

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1 this particular instance?

2 A. No.

3 Q. But somehow you ended up with it and your names on that

4 box; is that right?

5 A. Thats correct.

6 Q. And there is no place for you to store that box in the

7 hospital; is that right?

8 A. Yes, there is, but I would have to take that up to the

9 security office and put it into our safekeeping safe.

10 Q. Okay.

11 A. Whereas if you are assigned to the emergency section, you

12 would keep it in possession knowing that you would have a

13 scout car probably arriving within 10 to 15 minutes to

14 pick up your property.

15 Q. Do you know when that happened, if and when the police

16 picked it up?

17 A. I dont have -- yes, 11:15 A.M.

18 Q. Okay. Did you have -- are you aware of any other rape

19 kits that you were handling that day?

20 A. Not to my knowledge, no.

21 Q. Is there anything that you could look at that would

22 refresh your recollection?

23 A. Well this is -- it is mine because I have my printing on

24 it.

25 Q. I understand. But you dont know if there were others

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1 that you were handling that day, do you?

2 A. No. No.

3 MR. KOMORN: Nothing further. Thank you.

4 MS. HAGAMAN-CLARK: Nothing further.

5 THE COURT: Thank you.

6 Thank you, sir. You may step down.

7 And is he released.


9 THE COURT: And so you may stay and watch the

10 trial or you may leave, whichever.

11 THE WITNESS: Im sorry.

12 THE COURT: Youre released. You dont have to

13 stay if you didnt want to.

14 THE WITNESS: Thank you, Your Honor.

15 THE COURT: You may call your next witness.

16 MS. HAGAMAN-CLARK: Thank you. People would

17 call Thurmon Polk.

18 THE COURT: You could step right over here, if

19 you would.

20 Would you state your full name for the record,

21 please?

22 THE DEFENDANT: Thurmon Polk.

23 THE COURT: Spell your first name.

24 THE WITNESS: T-h-u-r-m-o-n.

25 THE COURT: Would you raise your right hand?

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1 You solemnly swear or affirm that the testimony

2 you will give will be the whole truth, so help you God?

3 THE WITNESS: Yes.


5 Once you sit down, please bring the microphone over close

6 to your face so we can all hear you.

7 TIWEMON POLK,



10 as follows:

11 THE WITNESS: Yall can hear me?

12 THE COURT: Yeah, bring it closer to you.

13 THE WITNESS: Yall can hear me now?

14 THE COURT: I can hear you.



17 Q. Will you tell us your name, please?

18 A. Thurmon Polk.

19 Q. Mr. Polk, how old are you?

20 A. Twenty-one.

21 Q. And what is your date of birth?

22 A. 9—23—90.

23 Q. 9—23—1990?

24 A. Yep.

25 Q. Back on February 17, 1997, would you have been six years

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1 old?

2 A. Yes.

3 Q. Do you remember where you were staying at at that time?

4 A. On Meyers.

5 Q. And do you know who you were living with?

6 A. My mother, my sister and my aunt.

7 Q. And what is your aunts name?

8 A. Lisa Gore.

9 Q. Are you still residing here in the Metro-Detroit area?

10 A. No.

11 Q. Do you live in a different state now?

12 A. Yes.

13 Q. I dont need to know the city, but what state do you live

14 in?

15 A. Texas.

16 Q. And back on February 17, 1997, did something happen that

17 brings you here to court today?

18 A. Yeah.

19 Q. Do you remember much about that evening or that early

20 morning?

21 A. Not too much but --

22 Q. Well tell us what you do remember.

23 Do you remember going to bed that night?

24 A. Yeah. Like I dont remember what I -- like I just

25 remember waking up.

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1 Q. Okay. Do you remember if you were in a bedroom by

2 yourself when you went to bed or were there other people

3 in the bedroom?

4 A. I was in the bed with my mama.

5 Q. Was there anybody else in the bed besides you and your

6 mom?

7 A. I think my little sister was in the bed, too.

8 Q. Did anybody else sleep in that same room?

9 A. My aunt.

10 Q. And you said that you remember waking up.

11 Do you know what woke you up?

12 A. Him. Him on top of my mom.

13 Q. Okay. You said him. Do you see the person herein

14 court today?

15 A. Yes.

16 Q. Okay. Could you point to him for me?

17 A. (Indicating).

18 MS. HAGAMAN-CLARK: The witness -- would the

19 record reflect that the witness has pointed to and

20 identified the defendant?

21 THE COURT: Yes.

22 Q. (By Ms. Hagaman-Clark, continuing): You said you saw him

23 on top of your mother; is that right?

• :: Q. Could you tell what he was doing to your mother at that

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1 time?

2 A. I was younger. Like I just -- he was on top of her and it

3 was movement and she was crying. So I didnt know what

4 was going on, but I knew it wasnt something right. And--

5 Q. Did you ever say anything at the time?


7 Q. Did you ever see if he had anything in his hand?

8 A. Besides the gun?

9 Q. Did you see a gun?

10 A. Yeah.

11 Q. Do you recall what hand he had the gun in?

12 A. I think it was the right hand.

recall how big that gun was?15 Q. Was it a big, long gun?16 A. No.17 Q. Okay. Do you remember what color it was?18 A. Like silver-ish. Like whitish.

19 Q. What happens next? Whats the next thing that you

20 remember?

21 A. I just -- I remember her keep crying and then thats

22 really all I remember.

23 Q. Do you remember if this person left?

24 A. Yeah.

25 Q. All right. Do you know how they left?

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1 A. Nawl. But I knew like real soon after like the police and

2 like my sister daddy, like everybody was just -- like it

3 was something going on. Like it was a whole bunch of

4 stuff going on.

5 Q. Was that still at the apartment?

6 A. Yeah.

7 Q. Do you know if you moved from that apartment after that?

8 A. Yes.

9 Q. Do you know where you went to live or who you went to live

10 with?

1]. A. Yes.

12 Q. Who did you go to live with?. 13 A. My cousin.

14 Q. Whats that persons name?

15 A. Sophia.

16 Q. And do you know how long you stayed at Sophias place for?

17 A. I stayed with my cousin for -- I dont even remember.

18 Cause I dont remember cause I go -- I been going over her

19 house practically all throughout my life.

20 So like after living with her, I cant really

21 separate it cause I was so young.

22 Q. All right. Have you and your momtalked about this since

23 it happened back in 1997?

24 A. After I got older and I knew what happened, like she would

25 always like -- she would try to talk to me about it and I

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1 wont want to talk about it. Like Ill leave.

S 2 Q. Why wouldnt you want to talk to your mom about this?

3 A. Because it made me mad.

4 Q. Has your mother ever told you what to say here in court?

5 A. Nawl. I never even thought I —- truthfully, I didnt

6 think I would be able to come here.

7 Q. Do you remember if you had to go to the hospital or if you

8 stayed at the house? You remember immediately after this

9 happened where you went?

10 A. No, I dont remember.

11 Q. Have you ever known your mother to be called Drey-Drey or

12 have you ever heardother people call her Drey-Drey?

5 13 A. No.

14 MS. HAGAMAN-CLARK: I dont have any further

15 questions.

16 THE COURT: Mr. Komorn.

17 MR. KOMORN: Thank you, Your Honor.

18 cROSS-EXAMINATION

19 BY b~. KOMORN:

20 Q. Good morning, Mr. Polk.

21 A. Good morning.

22 Q. Gonna ask you some questions. If you dont understand

23 them, stop me, I will try to rephrase them so you do,

24 okay?

5 25 A. All right.

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Si Q. You were six years old at the time; is that right?

2 A. Yep.

3 Q. Do you remember talking to some police officers when you

4 were -- they came to your house?

5 A. No, I dont remember.

6 Q. Did you review any documents before you came to court

7 today?

8 A. I saw pictures and I saw a statement.

9 Q. What statement? Your statement that you made?

10 A. Yes, I guess, when I was younger.

11 Q. Right. Do you remember what you said in that statement?

12. A. No.

5 13 Q. Can I show it to you so your memory would be refreshed, if

14 it would help?

15 A. Yeah.

16 MR. KOMORN: Im handing the witness his

17 statement.

18 THE COURT: Okay. Thank you.

19 Q. (By Mr. Komorn, continuing): Did you get a chance to look

20 at that? Has your memory been refreshed as to what you

21 stated to the police back then?

22 A. No.

23 Q. From looking at this, has your memory been refreshed?

• :: Q. No? Does it help at all as far as what you said?

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5 2 Q. You will agree with me that you did not mention a

3 description of any kind to the police back then, correct?


5 Q. You agree that it wasnt written down in your statement

6 that you just read, correct?

7 A. Yeah.

8 Q. You didnt say to the police at that time that you had got

9 a look at the persons face, did you?


11 0. But you agree that its not written in the statement that

12 the police purportedly took from you back then, correct?

13 A. Yes.

14 Q. And this is the first time youve spoken in 15 years about

15 being able to identify the specific person that you say

16 you saw in the bed, right?

17 A. Yeah.

18 Q. Okay. And you say that you didnt speak with your mother

19 at all about what youre gonna testify today?

20 A. No.

21 Q. How did you get to court today? Did you drive with her?

22 A. Yeah.

23 Q. Do —- you guys didnt discuss the case at all?

24 A. I mean she told me to stay calm.

25 Q. Okay. She didnt talk about what she had testified to?

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5 2 Q. You didnt look at her statements?

3 A. No.

4 Q. Okay.

5 A. The only thing I ever saw from this whole case was a piece

6 of paper talking about the case and his picture.

7 Q. I see.

8 A. Thats —— thats how I know his face cause of the picture.

9 Q. I see. From the picture you saw in the paper?

10 A. Yeah.

11 Q. Youre maintaining now that you were not able to --

12 A. And I didnt even recognize the picture really. Cause he

5 13 walked in the bathroom with me yesterday and I didnt even

14 notice it was him.

15 0. Okay. So you werent able to see the face of the person

16 you said you saw in the bed then, right, at the time back

17 in 1997?

18 A. Yes.

19 Q. Is that correct?

20 A. Yes.

21 Q. Okay. Was the bedroom -- were the lights on or were the

22 lights off? Do you recall?

23 A. Everything was dark.

24 Q. Youre six years old at the time. You agree that your

5 25 memory is not --

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1 A. Right.

S 2 Q. -- absolute, correct?

3 A. Right.

4 Q. And there are details that you may not remember as you

5 testify today?

6 A. Yes.

7 Q. Correct? And are there details that you wanna remember

8 but you cant?

9 A. No.

10 Q. Okay. The statement you told the police at the time was

11 that you heard something, right?

12 A. Yes.

5 13 Q. Okay. And that was to say you told the police you heard

14 your mother -- you heard that man tell your mother to shut

15 up, right?

16 A. Thats what it says on the paper.

17 0. Right. And was there a time where you heard an alarm

18 clock?


20 Q. Okay. Do you know if your -- did you hear your sister —-

21 I mean your aunt wake up?

22 A. I didnt -- I dont rememberhearing too much stuff of

23 anything.

24 Q. Okay.

5 25 A. Like, I dont remember. I dont remember the sound.

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1 All I remember is like visuals and stuff like

5 2 just like quick flashes of them in my head.

3 Q. You dont remember seeing any -- a broken window or a

4 broken door?

5 A. Nawl.

6 Q. Okay. You dont remember the house being in disarray or

7 things turned over?

8 A. Nawl.

9 Q. You dont remember a purse that had been dumped out and

10 looked through or given the appearance that it had been

11 looked through?

12 A. (No verbal response.)

13 Q. Is that a verbal -- I got to hear a verbal.

14 A. No. No, I dont.

15 Q. Okay. Do you remember how long -- do you have a

16 recollection of how long the man was in the bed?

17 A. Like I do but I dont. Like I cant truthfully tell you.

18 Q. Okay.

19 A. That it was for, you know what Im saying, one minute, two

20 minutes. Like it was -— all I remember was like my mom

21 crying and movement. And then like after so much

22 movement, like, like I dont remember something -- I dont

23 remember like too much like. Everything go out again.

24 Q. Okay.

5 25 A. A lot of reasons, though, I dont remember stuff cause I

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Si been in a coma, like, yeah.

2 Q. You have been in a coma?

3 A. Yeah.

4 Q. How did you end up in a coma?

5 A. I got shot. So thats why Im saying like a lot of my

6 memory is messed up and got lost in the coma.

7 Q. Why did you get shot?

8 MS. HAGAMAN-CLARK: Objection. Whats the

9 relevance of that?

10 THE COURT: Sustained.

11 Q. (By Mr. Komorn, continuing): Do you have a recollection

12 of the room itself that you were sleeping in at that time

5 13 in this apartment?

14 A. I was in the room with my mom.

15 Q. I mean do you remember -- I mean when you --

16 A. Like the house set-up?

17 Q. Yeah.

18 A. No, I dont.

19 Q. Do you remember how many beds were in there?

20 A. In the room?

21 Q. Yeah.

22 A. Two.

23 Q. Okay. Do you remember how far away the bed that you were

24 not in was from the bed you were in?

25 A. It was a little -- it was a little bit of space. Like

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Si Ill -- probably like maybe like six feet maybe.

2 Q. Closer than from you to me?

3 A. Her bed was probably like —- her bed probably started like

4 maybe at that wire over there or something like that,

5 maybe a little bit closer.

6 THE COURT: Well --

7 MR. KOMORN: Thats his estimate of six.

8 THE COURT: Well he says -- he said six feet.

9 MR. KOMORN: Okay. Very well.

10 THE COURT: I cant -— for the record, I cant

ii see the wire, so I dont even know what he is talking

12 about.

5 13 THE WITNESS: No, I dont like —- I didnt even

14 like —— Ill say maybe the wire or closer.

15 THE COURT: Okay.

16 THE WITNESS: Like Im going off of little bit

17 of issue what I remember in my head of just that room.

18 I dont even remember how the house was set up.

19 THE COURT: Thats fine, sir. Thanks.

20 Q. (By Mr. Komorn, continuing): Have there ever been

21 occasions in the past where something like that had

22 happened where there was someone else in the bed while you

23 were sleeping in there?

24 A. No, sir.

5 25 MR. KOMORN: All right. Nothing further.

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1 Thank you.

5 2 MS. HAGAMAN-CLARK: I have nothing further for

3 this witness.

4 May he be excused?

5 THE COURT: Yes.

6 Thank you, Mr. Polk. You may step down.

7 (The witness was excused at 9:59 A.M.)

8 THE COURT: The witness is excused.

9 MS. HAGANAN-CLARK: Thank you. May he remain in

10 the courtroom?

11 THE COURT: Sure.

12 MS. HAGAMAN-CLARK: Okay.

5 13 People would call Lavelle Tyson.

14 THE COURT: Would you spell your first and last

15 name for the court reporter, please?

16 THE WITNESS: First names L-a-v-e—l-l-e. Last

17 name T-y-s-o—n.

18 THE COURT: And will you raise your right hand,

19 please?

20 Do you solemnly swear or affirm that the

21 testimony you will give will be the whole truth, so help

22 you God?

23 THE WITNESS: Yes.


25 That microphone swivels on that stand.

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Si You may proceed.

2 MS. HAGANAN-CLARK: Thank you, judge.

3 LAVELLE TYSON,



6 as follows:



9 Q. Good morning.


ii A. My name is Lavelle Tyson.

12 Q. And, Mr. Tyson, how are you employed?

5 13 A. Right now?

14 Q. Yes.

15 A. Im a consultant for a company in Birmingham, Alabama;

16 adolescent sexual health consultant.

17 0. Back in 1997, specifically February of 1997, how were you

18 employed?

19 A. I was employed with the Detroit Police Department.

20 Q. And what was your job duties as an employee of the Detroit

21 Police Department?

22 A. I was a police officer and my job was to respond to 911

23 calls, dispatch calls and enforce the law as far as

24 traffic and along those lines.

5 25 Q. Back in February of 1997, how many years into your career

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Si as a Detroit police officer would you have been?

2 A. Ninety—seven -- I came on the board in January of 96, so

3 about a year and a month. Probably been on the street

4 seven months.

5 Q. So sort of a rookie?

6 A. Yes, was a rookie.

7 Q. All right. Now back on February 17, 1997, did you get a

8 police run to 9407 Meyers?

9 A. Yes.

10 Q. Is that here in the City of Detroit?

11 A. Yes.

12 Q. And were you working as a police officer when you received

5 13 that run?

14 A. Yes, I was.

15 Q. How did you get notified of that run to 9407?

16 A. There was a call over dispatch stating that a rape had

17 just happened, so it came over dispatch.

18 Q. When calls come in through dispatch, are those the ones

19 that come through the 911 system?

20 A. Yes.

21 0. And were you working alone or with a partner that day?

22 A. I was working with a partner.

23 Q. Do you remember your partners name?

24 A. Yes, Delbert Jennings.

5 25 Q. And do you know if you were the driver or passenger of the

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1 vehicle?

S 2 A. I dont remember that night.

3 Q. Im gonna show you what has been marked, admitted as

4 Peoples Proposed Exhibit -- Im gonna start with Peoples

5 Proposed Exhibit Number 9 and ask if you recognize —-

6 were gonna go with that.

7 Can you see that.

8 A. Yes, I can.

9 Q. Okay. Would you agree with me that the run location of

10 9407 would be right in this vicinity here in the middle of

ii the screen?

12 A. Yes, it is.

5 13 Q. And do you recall where you were at when you received that

14 police run?

15 A. Yes, we were at Oscars Coney Island which is going to be

16 right on Chicago in between --

17 0. On West Chicago?

18 A. Yeah, in between Meyers and -— I cant remember if that

19 Appoline, but its going to be a street headed towards the

20 east.

21 0. Would it be this building right here (indicating)?

22 A. Yes.

23 Q. And, for the record, I am gonna go ahead and circle it on

24 there and you can tell me if thats the right one.

25 A. That is the right one.

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Si Q. And so you and your partner were having a light dinner,

2 early breakfast, something along those lines?

3 A. I dont think we were eating. Sometimes we just stop by

4 just to see everything okay, just kind of hang out,

5 whatsoever.

6 Q. When you received the police run, is it fair to say that

7 you went directly to the location?

8 A. We went directly to the location.

9 Q. Now Im showing you whats been marked and admitted as

10 Peoples Exhibit Number 10.

11 Does that appear to be the location that you

12 went to?

5 13 A. Yes, it is.

14 Q. Okay. And Im showing you Peoples Exhibit ii, just a

15 little bit closer view.

16 Is that the same location?

17 A. Yes, it is.

18 Q. Now when you enter this apartment, do you recall how you

19 made entry?

20 A. Through the front door.

21 And the front door is going to be on the north

22 side of that picture, so where that sidewalk leads up to.

23 Q. The sidewalk here (indicating)?

~ :: Q. Okay. So the front door would have been somewhere in this

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• 1 general vicinity up here?

2 A. Yes.

3 Q. All right. Do you recall if there were any windows beside

4 that door?

5 A. Yes, windows to the left side of the door.

6 0. Okay. When you arrived at that location, did you have

7 contact with anyone?

B A. Yes. According to the report, we spoke to the complainant

9 and the person reporting.

10 Q. Now you said according to the report.

11 Did you prepare a police report in this matter?

12 A. In this instance, I didnt prepare a police report because

13 they only required one.

14 0. When you say that it only requires one, is it fair to say

15 that either you or your partner have to fill out a report?

16 A. Yes.

17 Q. And in this case, your partner filled out the report?

18 A. Yes.

19 Q. Have you had an opportunity to look at that report since

20 you became notified that you had to be here for trial?

21 A. I have.


23 THE COURT: Yes.


25 two-page document, Im gonna ask you if you recognize

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1 this.

2 A. Yes,Ido.

3 Q. And is that the police report that was prepared by your

4 partner?

5 A. It is.

6 Q. And youve reviewed that in an effort to testify today; is

7 that right?

8 A. Yes.

9 0. Do you have an independent memory as it relates to this

10 particular police run?

11 A. I remember the front window being open and I vaguely

12 remember like a lamp or something being on the floor being

5 13 knocked over or something along those lines.

14 Q. Okay. You indicated that you remember a lamp being

15 knocked over?

16 A. Yes.

17 Q. And where would that lamp have been at inside the

18 apartment?

19 A. It would have been in -- I think off the back wall of the

20 living room. And it was kind of like in the middle of the

21 floor.

22 0. You also indicated that you remember that the window was

23 open?

24 A. Yes, it was.

5 25 0. Now which window are we talking about?

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Si A. Its gonna be the window right next to the front door.

2 Q. That window next to the front door, you said that you

3 physically saw that it was open?

4 A. Yes.

5 Q. Did it appear to you as though a body could fit through

6 that window?

7 A. Yes.

8 Q. Did you see any damage to the window?

9 A. I didnt notice any damage.

10 Q. When you got to that location, did you speakwith anyone?

ii A. We spoke to the complainant and PRO, person reporting

12 offense.

5 13 0. Is it fair to say that there is the person reporting the

14 offense which is the PRO?

15 A. Yes.

16 Q. Who. was that or who did you label as that?

17 A. According —- its gonna beLisa Gore.

18 Q. And then there was the complainant. What is the

19 complainant?

20 A. Audrey Polk.

21 Q. And would that be the person who suffered some injury or

22 is complaining of some injury?

23 A. Yes.

24 0. And when you spoke to Lisa Gore andAudrey Polk, did they

5 25 give you some information about what had just happened?

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2 Q. And when you spoke to Audrey Polk and Lisa Gore, what was

3 their demeanor like at that point?

4 A. They were forthcoming. They were giving us information.

5 Im not a clinician, but they were -— seemed

6 like there were kind of, you know, kind of stunned at just

7 what happened.

8 Q. And were they able to give you a description of the person

9 that they saw come into their house?

10 A. Yes, they gave me a vague description according to the

ii report, if I may review it.

12 Q. Certainly.

5 13 A. Its gonna be an unknown black male, 27 to 28.

14 Q. Okay. Let me stop you right there.

15 They indicate to you that they did not know who

16 this person was?

17 A. Yes.

18 Q. You indicated that they said that the person was 27 to 28

19 years old?

20 A. Yes.

21 Q. Okay. What else?

22 A. Five ten, about 200 pounds, medium complexion, wearing a

23 skull cap, blue hooded sweatshirt, blue jogging pants and

24 armed with a nickel-plated automatic.

5 25 0. Now a nickel-plated automatic, what does that tell you

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Si about the -- what does that mean, first of all?

2 What is a nickel-plated automatic?

3 A. Okay. Its gonna be a semiautomatic pistol. It would

4 have a magazine and not a chamber.

5 0. What color would it be?

6 A. It would be sort of like a nickel color, silver color.

7 Q. Did they give you any indication of anything besides that?

8 A. Asfaras?

9 Q. The description went.

10 A. Oh, yes. Also said he had a bad odor, smelled like

11 cigarettes and maybe alcohol.

12 0. All right. When you spoke to —- after you spoke to Ms.

5 13 Polk and Ms. Gore, did you see any children around or do

14 you recall if there were children around?


16 Q. Did Ms. Polk indicate to you whether or not this person

17 had ever said anything to her?

18 A. Yes, according to the report -- find it here.

19 According to the report, she responded when he

20 entered in the home and she said, No, dont hurt my

21 babies. And she stated that --

22 MR. KOMORN: Judge, he is just reading from the

23 report. If he wants to look at it and get his memory

24 refreshed, I think he should do it that way.

5 25 THE COURT: Yes.

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1 MS. HAGAMAN-CLARK: Okay. Take a minute to

2 review it.

3 THE WITNESS: Okay.

4 Q. (By Ms. Hagaman-Clark, continuing): And did this person

5 say anything to her?

6 A. Shut up, bitch, and open your legs.

7 Q. Did she indicate to you whether or not if she knew a

8 condom was used?

9 A. No, she said she didnt know if a condom was used.

10 Q. Did she ever show you any evidence of a condom?

ii A. No, I dont recall that.

12 0. Now when you spoke to Lisa Gore, the PRO, did she indicate

13 that she had some information about what happened?

14 A. Yes. She was in the same room in another bed and she

15 stated that she heard some noise, some mumbling or

16 whatsoever. She called out to the name and at that time

17 complainant(sic) heard, jumped up and exited through the

18 front door.

19 0. Okay. Now did they indicate to you whether or not there

20 was any damage in their home or anything that was seemed

21 in disarray?

22 A. Yes. Purse had been gone through, dumped out and I think

23 there was a jacket that had been messed with.

24 0. Were they complaining that anything had been taken from

5 25 them like money or jewelry or anything like that?

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5 2 Q. They indicated to you that nothing had been taken?

3 A. Correct.

4 Q. Now specifically this -- you got this run on February 17,

5 1997?

6 A. Correct.

7 0. And do you recall what day of the week this would have

8 been?

9 A. According -- Monday.

10 Q. And what time did you receive the run?

ii A. It was sometime in the morning. I remember we got there

12 about 4:05, so -- and it was a short time between the call

5 13 was reported and the time we got there.

14 Q. Did they indicate to you the method of entry into the

15 apartment?

16 A. Yes, entered in through that window.

17 0. And did they indicate to you how the person left?

18 A. Through the front door.

19 Q. Now is there any procedure thats used to notify other

20 departments within the police department?

21 A. Yes.


23 A. In instances where there is sex crimes case, we have to

24 notify Sex Crimes.

5 25 0. And was that procedure followed in this --

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1 A. Yes, it was.

5 2 0. And what time did you notify them?

3 A. 4:25, around there.

4 Q. And do you know if Sex Crimes officers arrived at the

5 apartment?

6 A. I dont recall them arriving.

7 Q. Do you know if any other officers arrived at the house?

8 A. I cant recall if they arrived.

9 Q. And do you recall if E.M.S. ever arrived to transport the

10 victim or how she left the location?

ii A. No, I dont.

12 MS. HAGAMAN-CLARK: I have nothing further at

5 13 this time.

14 THE COURT: Cross-exam.

15 MR. KOMORN: Yes.


17 BY ~. KOMORN:

18 Q. Officer, you dont have a specific recollection of

19 anything that night, do you?

20 A. I remember the lamp. I remember where we parked the car

21 and I remember speaking -- my partner speaking to the

22 complainant and the PRO.

23 Q. Okay. But everything that you testified to was after you

24 were able to look at your preliminary -- your report and

5 25 to fresh your recollection; you dont have a specific

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Si memory, right?

2 A. Correct.

3 Q. Okay. Did you take statements from either the PRO or the

4 complainant?

5 A. Yes, according to the report we did.

6 Q. You actually wrote out their statement?

7 A. No, I didnt have to write out the statement. Where you--

8 we only needed one report and my partner did that.

9 Q. When I say to you did you take a statement from the

10 complainant, Im asking you did you sit down with the

11 complainant or the PRO, ask questions and they gave

12 answers and you wrote things down, had them look at it and

• 14 A. :igri it? Did you do that?

15 Q. You heard things that they had said and you -- partner

16 wrote them into a report, right?

17 A. That is correct.

18 0. And you dont have a specific recollection of what they

19 said other than looking at what your partner wrote in the

20 report today, right?

21 A. Thats correct.

22 Q. And when you arrived at the scene to investigate, did you

23 spend any time in the actual bedroom where the incident

24 allegedly happened?

5 25 A. No.

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Si Q. You did not go into the room where the incident happened?

2 A. No. Most time was spent in the living room.

3 Q. But you understood at that time that the incident

4 purportedly took place in the bedroom, right?

5 A. That is correct.

6 0. As a police officer, you didnt take the steps to go to

7 the bedroom and look in there?

8 A. No, at that time we didnt.

9 Q. Okay. At any time after that, right?

10 A. No.

ii 0. Okay. Did you -- so thats to say then you did not gather

12 any evidence from that room cause you didnt go into it,

5 13 right?

14 A. No, we didnt gather any.

15 Q. When the prosecutor asked you if you ever handed or

16 discovered a condom wrapper, thats because you didnt

17 look for one nor did you ask for one, right?

18 A. At that time, no.

19 Q. Or at any time after that?

20 A. No.

21 Q. Okay. You didnt go out and you didnt canvas the area to

22 try to talk to any witnesses, did you?

23 A. No.

24 Q. Okay. You didnt ask any questions about what the

5 25 complainant had been doing immediately before the incident

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Si either, right?

2 A. She stated that -— she stated she was in the bed with her

3 kids.

4 Q. Right. But before that, earlier in the day, if she had

5 any contact with anybody?

6 A. No.

7 Q. Do you remember her saying something about seeing somebody

8 in a store earlier in the day?

9 A. No, dont recall that.

10 Q. You dont remember that.

ii Do you remember saying that the person looked

12 like someone that they might have seen earlier in the day?

5 13 A. No.

14 Q. Do you remember anyone that you spoke to at the scene,

15 either the PRO or the complainant, saying that it was an

16 alarm clock that went off in the room?

17 A. No.

18 0. Do you remember what it was said, if anything, by the PRO

19 as to what had woken her up?

20 A. Yes, she heard the mumbling of the voices or whatsoever.

21 Q. Mumbling of voices, okay.

22 You didnt take any pictures of any -- of the

23 apartment, did you?

24 A. No. At that time, our job as responding officers were to

25 take a preliminary report. We call Sex Crimes, they do

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1 their investigation.

2 Q. But you said they didnt come to the house, right?

3 A. I dont recall them coming to the house.

4 Q. You would have written it in your report -- would you be

5 able to look at it to see if youre able to refresh your

6 recollection saying specifically if someone showed up to

7 back you up, right?

8 A. If it had happened, we might have omitted it.

9 Standard procedures is we wouldnt leave that

10 scene until Sex Crimes shows up or some --

ii Q. Or until --

12 THE COURT: Please. Please let him finish his

5 13 answer.

14 MR. KOMORN: Im sorry. Yes, maam.

15 THE COURT: Go ahead.

16 THE WITNESS: So the standard procedures we

17 could not have left that scene.

18 Q. (By Mr. Komorn, continuing): Until the scene is cleared,

19 right?

20 A. Yes, or until Sex Crimes or Homicide shows up.

21 Q. Or until the complainant would leave and/or go somewhere,

22 right? Would that also close it?

23 A. Procedures is that we would have to keep them there until

24 Sex Crimes showed up, unless Sex Crimes gave a release for

5 25 that.

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Si Q. And you dont know if they showed up or you do?

2 A. I dont recall them showing up.

3 Q. Did you take any steps to try to fingerprint any of the

4 doorknobs, for example, or the window?

5 A. As Detroit police officers, thats not our job.

6 Investigators do that.

7 Q. In light of the fact that you maintain that -- how was the

8 window in the apartment? Do you recall?

9 A. I remember the window being open. I remember it being

10 fully open, yes.

ii Q. It was February at the time, right?

12 A. Yes.

5 13 Q. And was the door -- do you remember the front door being

14 unlocked or locked when you arrived?

15 A. No, I dont.

16 Q. Were there shades in the window?

17 A. No, I dont recall any shades.

18 Q. No shades at all?

19 A. I dont recall any.

20 Q. Okay. And do you remember the window opened in toward the

21 house or out from the house or up and down or right to

22 left?

23 A. I know -- I believe it opened out. I cant tell you which

24 direction.

5 25 0. Okay. But specifically no shades?

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1 A. I dont recall any shades.

5 2 Q. Any evidence of any force, breaking into the house?

3 A. I dont recall that. Dont remember seeing any force or

4 anything.

5 Q. Did you canvas the house to see if there was any evidence

6 of any persons outside?

7 A. No.

8 0. Did you go look in the back to see if there was any other

9 methods of entry or escape out of the house?

10 A. No, we didnt go around to the back of the house.

ii We knew there was a window on the east side of

12 the house cause thats where we pulled up.

5 13 Q. Did you take any steps to go look for someone that may be

14 on foot in the area?

15 A. No, we didnt.

16 Q. And you left at 4:25; is that right?

17 A. Thats when we notified Sex Crimes around 4:25.

18 Q. When did you leave the scene, if you know?

19 A. Dont recall exactly what time we left the scene.

20 Q. 4:25 would have been 20 minutes after you arrive at the

21 scene; is that right, approximately?

22 A. Yes.

23 Q. Is it possible you left at 4:25 as your report seems to

24 indicate?

5 25 MS. HAGAMAN-CLARK: Objection. Thats not what

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1. the report indicates and thats not what this officer has

5 2 testified to.

3 Its a mischaracterization.


5 0. (By Mr. Komorn, continuing): Do you know when you left?

6 MS. HAGAMAN-CLARK: Its been asked and

7 answered.

8 MR. KOMORN: All right. Nothing further.

9 REDIRECT EXAMINATION


ii Q. If I understand you correctly, your duties as a Detroit

12 police officer at that time are to go to the location?

5 13 A. Correct.

14 Q. Speak with whoever is there?

15 A. Yes.

16 Q. And fill out a report?

17 A. Yes.

18 0. Any investigation, including canvassing for witnesses,

19 fingerprinting evidence, collection of evidence, all that

20 stuff is left to investigators; is that fair?

21 A. The specialized unit, Sex Crimes, Homicide and thus forth,

22 yes.

23 Q. This case, Homicide has nothing who do with it.

24 A. Correct.

5 25 0. So it would just be Sex Crimes?

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. 1 A. Sex Crimes.

2 Q. And you have no idea whether or not they came. You are

3 not saying they didnt come, correct?

4 A. No, Im not saying they didnt come. Im saying I cant

5 remember exactly if they showed up. Im not saying they

6 didnt show.

7 MS. HAGAMAN-CLARK: Okay. I have nothing

8 further.

9 THE COURT: Anything else?

10 MR. KOMORN: Nothing, judge.

ii THE COURT: Thank you, officer. Youre excused.

12 THE WITNESS: Thank you.

13 THE COURT: Is the witness released?


15 THE COURT: Which means you can leave if you

16 wish. You dont have to but you dont have to --

17 THE WITNESS: Okay. Thank you.


19 THE COURT: Sir, would you tell me your name,

20 please?

21 THE WITNESS: Delbert Jennings, Jr.

22 THE COURT: Mr. Jennings, would you raise your

23 right hand?

24 Do you solemnly swearor affirm that the

5 25 testimony you will give will be the whole truth, so help

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1 you God?

5 2 THE WITNESS: Yes, maam.


4 DELBERT JENNINGS,



7 as follows:



10 Q. Good morning.

ii A. Good morning.

12 Q. Could you tell us your name, please?

5 13 A. Delbert Jennings, Jr.

14 Q. And, Mr. Jennings, how are you employed?

15 A. Police officer for the City of Detroit.

16 0. And how long have you been a police officer with the City

17 of Detroit?

18 A. Approximately 17 and a half years now.

19 Q. Back on February 17, 1997, were you working as a Detroit

20 police officer?

21 A. I was.

22 Q. Were you working alone or did you have a partner?

23 A. I had a partner.

24 Q. What was your partners name?

5 25 A. Lavelle Tyson.

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Si 0. And did you receive a police run to 9407 Meyers in the

2 City of Detroit?

3 A. I cant recall the numbers offhand, but if I had my

4 report--

5 0. Did you prepare a police report in this matter?

6 A. That I did.


8 THE COURT: Yes.

9 0. (By Ms. Hagaman-Clark, continuing): Im gonna show you

10 whats been -- I am gonna show you a two-page document and

ii ask you if you recognize it.

12 Do you recognize that?

5 13 A. Yes,

14 0. What is that?

15 A. At that point in time it was called a PCR, Preliminary

16 Complaint Report.

17 Q. And what is Preliminary Complaint Report?

18 A. Handwritten report of the incident of crime or the offense

19 that was committed.

20 0. Have those reports changed over the years?

21 A. They have now got computerized. Its now called a CRISNT

22 System.

23 Q. All right. But back in 1997, you were operating under the

24 old system, if you will, and it was a PCR?

25 A. Correct.

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Si Q. And does having looked at that PCR refresh your memory as

2 to where you went?

3 A. 9407 Meyers, yes.

4 Q. And how was it that you were notified to go to that

5 location?

6 A. That was a police run to that location that a rape had

7 just happened.

8 0. Do you recall where you were at just prior to receiving

9 that run?

10 A. I wanna say less than a block away.

11 0. And Im gonna show you whats been admitted as Peoples

12 Exhibit Number 10 and ask is that the location that you

5 13 went to? Can you see that?

14 A. Not really.

15 Q. Okay. What about that one, Peoples 11? Is that any

16 better?

17 A. Thats better. Thats closer to the apartments. Its two

18 rows of like one-bedroom apartments that are just on the

19 southwest corner just south of Chicago on the west side of

20 Meyers.

21 0. Showing you Peoples Exhibit Number 9, can you see that?

22 A. Yes.

23 0. You indicated that it would have been on the southwest

24 corner of Meyers. So where the A is at, does that

5 25 appear to be --

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Si A. Thats approximately -— that is correct.

2 0. Does that appear to be where it was at?

3 A. Approximately, yes.

4 Q. Okay. Now going back to Peoples Exhibit 11, does that

5 appear to be the location that you went to?

6 A. Yes, maam.

7 Q. And do you recall how you made entry to that location?

8 A. Entry through the front door.

9 Q. Did you make any observations as to whether or not there

10 were any windows beside that front door?

ii A. If there were windows to the location, yes, there were.

12 Q. And when you arrived at that location, did you speak with

13 anyone?

14 A. The complainant and the -— and I believe it was her sister

15 at the time, the PRO, that we call the person reporting

16 offense.

17 0. And the person -- the complainant, who would that have

18 been?

i9 A. Referring to my report, thats Audrey Marty -- Martin that

20 spoke.

21 0. And the person reporting the offense, that would be the

22 PRO?

23 A. Lisa Gore, her sister.

24 Q. Did they give you some information about what had happened

5 25 just previous to you being there?

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Si A. A narrative of the situation, yes.

2 Q. And let me ask you this.

3 Do you have any independent recollection of

4 going to this police run?

5 A. Real vague, honestly.

6 Q. Is it fair to say then that information that you do

7 remember about this incident comes from your police

8 report?

9 A. It would be from my report, yes.

10 Q. When you spoke to Audrey Gore -- Im sorry, Audrey Polk

ii and Lisa Gore, did they give you a description of the

12 person who had committed this crime?

5 13 A. They did.

14 Referring to my PCR, it was told me unknown

15 black male, aroundthe ages of 27 and 28, approximately

16 five ten in height, 200 pounds in weight, medium

17 complexion, wearing a skull cap, blue hoodie, a blue

18 hooded sweatshirt, blue jogging pants, armed with a

19 nickel-plated automatic.

20 Q. And nickel—plated automatic is what?

21 A. Semiautomatic weapon, maybe like it could be stainless

22 steel or shiny.

23 0. And did they give you any further description about a

24 possible odor?

25 A. Also had a bad odor, a bad odor of possibly alcohol or

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Si cigarettes.

2 Q. And you indicated that you went to that location becausea

3 rape had just occurred?

4 A. Yes, maam.

5 Q. And who was the victim of that rape?

6 A. Ms. Audrey Martin, Tina Polk.

7 Q. And did they give you any indication of what had happened

8 to her?

9 A. Referring to my report here, she advised us that while she

10 was sleep above subject had gotten on top of her. She had

ii her children in the bed beside her. Placed his hand over

12 her eyes and told her to shut up. Displayed the weapon

5 13 and ordered complainant to open her legs. Complainant

i4 began to speak and asking him not to hurt her children.

15 The subject told her to shut up.

16 MR. KOMORN: Judge, the reading of just -- we

17 want to refresh his recollection, thats the best way to

18 testify.

19 0. (By Ms. Hagaman-Clark, continuing): You need to read your

20 report, refresh your memory and then tell us what it says.

21 A. Okay. To summarize it, she was sleep. She wasawakened

22 by him on top of her. He had given her orders. She

23 complied so her children would not get hurt, get harmed.

24 And the sister was awakenedby these actions and

5 25 the voices, called out to -- the complainants name.

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. 1 Subject jumped up, ran out the location.

2 Q. Did they indicate to you whether or not anything was

3 disturbed in the apartment?

4 A. Referring to the report again.

5 0. If it helps to refresh your memory.

6 A. Okay. Window open. Purse dumped out on floor and couch

7 and the -- I believe the coats, the coats had also been

8 disturbed aswell, their jackets.

9 Q. Did they complain of anything being taken?

10 A. No, not that I can recall.

11 Q. In fact, do you note in your report that nothing was taken

12 from the location?

S 13 A. Nothing was taken.

14 Q. At that time, did Ms. Polk indicate to you whether or not

15 a condom wasused?

16 A. She couldnt tell me whether it was or not.

17 0. And did you ever see any evidence of a condom?

18 A. I cant recall seeing so.

19 MS. HAGAMAN-CLARK: I have nothing further.


21 BY MR. KOMORN:

22 0. Officer, I think you stated before you dont have a

23 specific recollection as you sit here today if you stop

24 and think about what happenedback on February the 17,

5 25 1997, do you?

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Si A. Im sorry. Can you rephrase?

2 Q. Do you remember a specific recollection or a memory of the

3 events that took place on February 17, 1997?

4 A. What I can tell you about this -- this incident here that

5 I can recall back then was -—

6 Q. No, no. Im just -- generally your memory, if you think

7 back on this call, this run, do you have a specific

8 recollection of your being there and talking to people

9 and--

10 A. Just some points of it, yes.

ii 0. Okay. And youre using your report from back then as its

12 intended to help remember fresh your recollection,

5 13 correct?

14 A. Yes, sir.

15 Q. Let me ask you this.

16 Do you rememberwhat your shift was that evening

17 or what, you know, what your --

18 A. At this point in time, I was working midnights.

19 0. And what did that mean? That means you get on at

20 midnight?

21 A. 12 A.M. to 8 A. M.

22 Q. Okay. And then do you rememberwhere you would have --

23 A. Im sorry. 12 A.M. to 8 A.M. I dont know if I said

24 that.

25 0. Do you remember where you went immediately after you left

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Si the house, this house that you were called to?

2 A. Im not sure if it was a possible local business or to the

3 station to finish up.

4 Q. Okay. Or so would that be the protocol then after the run

5 to the house? You would go back to the police station and

6 do your paperwork; is that right?

7 A. Depending on the situation.

8 Q. Do you have a specific recollection from this instance?

9 A. If I can recall correctly, because we were doing reports

10 then, a lot of the times then the practice was at that

ii time the investigators would collect the reports from you

12 at the scene; or if you did not have the reports done at

5 13 the scene, then they would meet you at the station and

14 collect them from you there.

15 Q. Do you remember if you wrote your report at the scene or

16 at the station?

17 A. That Im unsure of.

18 Q. Do you know if you took any notes at the scene?

19 A. Im pretty sure I did.

20 Q. You dont have those anymore, do you?

21 A. No, sir.

22 0. Do you destroy them when you make your report or usually

23 keep them?

24 A. Not immediately after, but this is from 97, sir.

5 25 Q. I understand. I just wondered procedurally like if you

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Si were out at a scene or you -- youre not with the report

2 and clipboard in hand taking notes on the report; youre

3 taking stuff, you have a note pad of some kind, right?

4 A. Normally, yes.

5 Q. Okay. And when you got to the -- when you arrived at the

6 location, you had indicated that you spoke to the PRO and

7 the complainant, right?

8 A. Correct.

9 Q. Do you remember where in the house you -- this

10 conversation took place?

ii A. I wanna say the front room.

12 Q. Okay.

5 13 A. Which would be like the living room area.

14 0. Okay. And I got the impression -- as you were speaking,

15 you were saying they said to me, implying the PRO and the

16 complainant.

17 Was one speaking more than the other?

18 A. Negative. No.

19 Q. Who was doing the talking when you were -- as you

20 reflected in your report what was said?

21 A. As far as the assault itself, 1 was talking to the victim.

22 And as far as the sister being awakened and

23 calling out her sisters name, thats from the PRO.

24 Q. Okay. Now do you recall the PRO telling you that she had

25 closed the window?

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1 A. No, I cant recall that.

5 2 Q. But you rememberspecifically -- youre testifying today

3 under oath that you rememberspecifically seeing a window

4 open as you arrived?

5 A. Thats correct.

6 0. Okay. Was there any other damage to anywhere on the

7 house?

8 A. Structurally to the location?

9 Q. Yes.

10 A. No. That I can remember, no.

ii 0. Did you go anywhere else in the house to investigate other

12 than the front room where you said you spoke with the PRO

5 13 and the complainant?

14 A. It would be the bedroom.

15 0. Did you go into the bedroom?

16 A. You would step in to see visually and not -- and to secure

17 any evidence, any possible evidence.

18 Q. Did you do that in this case?

19 A. That we did.

20 0. You and your partner?

21 A. That we did.

22 0. Okay. And did you gather -- did you take any pictures of

23 the bedroom?

24 A. I dont do that.

5 25 0. Did you write a description of any kind of the bedroom,

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Si how the bedroom was laid out?

2 A. That I did not, sir. Dont have it in my report.

3 Q. Do you recall how many beds were in the bedroom?

4 A. No, sir.

5 Q. Do you remember makinga notation that there was any

6 sheets on the bed that could have been notated to the Sex

7 Crimes Unit to gather for evidence?

8 A. No, sir.

9 Q. Did you suggest to anybody that becausethere was --

10 becauseyou saw a window open that fingerprints should

11 have been taken from the window?

12 A. I dont make that suggestion.

S 13 But I didnt make any notations of that, no.

14 Q. Okay. Or the doorknob in that you were told apparently

15 that they left through the front door?

16 A. No, sir.

17 Unfortunately, those type of orders come from

18 the OIC, the individual thats making that scene, or a

19 supervisor.

20 Q. When you learned that you had arrived at the scene where a

21 rape had allegedly just taken place within five minutes of

22 the call, did you make any calls to dispatch backup

23 officers to go look in the area for the person?

24 A. That -- I cant even recall that as well.

25 Q. Is that something that police officers would normally do,

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Si if you know?

2 A. Practice, normal practice.

3 Q. But you dont have a notation anywhere in the report here

4 that you did that?

5 A. No, sir, I do not.

6 Q. Did you see any people on the road on your way from the

7 location that you were at as you arrived to the house on

8 Meyers?

9 A. I cant recall that.

10 Q. Youll agree that nothing in your report indicates that

11 the complainant was in an upset emotional state, correct?

12 A. That hasnt been noted as well.

5 13 Q. Do you recall how close the -- you dont rememberhow many

14 beds were in the bedroom; is that what you said?

15 A. Thats what I said, sir. No.

16 Q. Do you rememberseeing a condom wrapper in the bedroom

17 when you investigated?

18 A. I dont recall any evidence of a condom being in play,

19 utilized, left behind, whatever, no, sir.

20 0. Do you recall the complainant telling you that she had

21 found a condom wrapper?

22 A. Can I refer to my report, sir?

23 0. Please.

24 A. The only thing about a condom I have in here, sir, it was

25 unknown if one was used.

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Si Q. And had you been told by anybody, whether the complainant

2 or the PRO that, there was a condom wrapper, that is

3 certainly something you would have indicated in your

4 report, right?

5 A. Unfortunately, sir, at this point in time I only had like

6 two and a half years on the job. And looking at this now,

7 knowing what I know now, its a lot of stuff I left out of

8 this report. Honestly, its even embarrassingto have to

9 sit up here and look at it and testify to it.

10 MR. KOMORN: Nothing further.

ii THE COURT: Anything else?

12 MS. HAGANAN-CLARK: No, judge.

5 13 THE COURT: Thank you, Officer Jennings. You

14 may step down, sir.

15 You are releasedas a witness.


17 THE COURT: Maam, would you please tell me your

18 name?

19 THE WITNESS: Lisa Gore.

20 THE COURT: Miss Gore, would you raise your

21 right hand?

22 Do you solemnly swearor affirm that the


24 you God?

5 25 THE WITNESS: Yes.

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2 Once you sit down, please bring that microphone up over

3 close to your face so we can all hear you.

4 You may proceed.


6 LISA GORE,


8 sworn by the Court, was examined and testified on her oath

9 as follows:


ii BY MS. HAGAMAN-CLARK:

12 0. Good morning.

5 13 A. Good morning.

14 0. Could you tell us your name, please?

15 A. Lisa Gore.

16 Q. And, Ms. Gore, I wanna ask where are you currently

17 residing? I dont need a street. I just -- a state that

18 you live in.

19 A. West Virginia.

20 0. And do you know somebodyby the name of Audrey Polk?

21 A. Yes, I do.

22 0. And how do you know Audrey?

23 A. She is my sister.

24 Q. So youve known her all of your life, all of her life?

5 25 A. All of her life.

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Si Q. Shes your younger sister?

2 A. Yes.

3 Q. And has it been some time since youve seen Audrey?

4 A. A few months.

5 0. Okay. And did you fly in this morning?

6 A. Yes, I did.

7 Q. And you have not seen Audrey since you have arrived; is

8 that fair to say?

9 A. No, I havent.

10 Q. Okay. So seeing her here in court right now is the first

11 that youve seen her; is that right?

12 A. Yes.

5 13 Q. I wanna direct your attention back to February 17 of 1997.

14 Do you recall that time period?

15 A. Yes, I do.

16 Q. Do you recall where you were living at that time?

17 A. 9407 Meyers.

18 0. Wanna show you whats been marked and admitted asPeoples

19 ProposedExhibit -- Im gonna direct your attention over

20 to the monitor.

21 Im gonna show you Peoples ProposedExhibit

22 Number 10 or Exhibit Number 10. Can you see that from

23 where youre sitting, seated?

24 A. No, I cant.

5 25 0. Okay. Let me approach with it then.

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Si Im gonna show you whats been marked as

2 Peoples Exhibit 10 and ask if you recognize that picture?

3 A. Yes, I do.


5 A. Its my apartment complex.

6 Q. And Peoples Exhibit 11, is that just a closer up picture?

7 A. Yes, it is.

8 Q. And here is Peoples Exhibit Number 9. Its just an

9 aerial photo of the location.

10 Does that seem to be about the same place where

ii it was located there between Meyers and West Chicago?

12 A. Yes, it is.

5 13 Q. Okay. Ill take those back. Thank you, maam.

14 Now back on February 17, 1997, when you were

15 residing on Meyers, who was staying with you?

16 A. My sister was.

17 Q. And was anybody else staying there besides your sister?

18 A. My niece and nephew.

19 0. And that would be -- do you have any other sisters besides

20 Ms. Polk?

21 A. No.

22 0. Okay. And your niece and nephew, would that be Thurmon

23 and Bianca?

~ :: 0. And do you know how long they had been staying with you

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Si prior to February of 97?

2 A. Probably about maybe a year.

3 Q. All right. And how big was this apartment?

4 A. Its a one-bedroom apartment.

5 Q. Where did everybody sleep when they went to bed at night?

6 A. It was all one bedroom. There were two beds in one

7 bedroom.

8 Q. All right. And how far apart were those beds?

9 A. Maybe three feet, if that.

10 0. And do you recall -- did you sleep in one bed?

11 A. Yes.

12 0. And did Audrey and her children sleep in the other bed?

5 13 A. Yes.

14 0. All right. Now back on February 17, 1997, did you go to

15 bed that evening?

16 A. Yes, I did.

17 Q. And did something awaken you?

18 A. Yes.

19 Q. What was it that drew your attention?

20 A. My sister crying.

21 Q. And when you heard your sister crying, was she crying

22 loudly like or was it --

23 A. Like a whimper.

24 Q. You described it as a whimper?

25 A. Yes.

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Si 0. And when you heard your sister whimpering, was that --

2 would that have been unusual at that time to hear her

3 crying like that?

4 A. Yes.

5 0. What did you do when you heard that?

6 A. I woke up.

7 Q. And when you woke up, what did you see?

8 A. I seen a shadow over her which was unusual because she

9 never brought anyone to the house.

10 Q. When you say that she never brought anybody to the house,

ii are you speaking specifically about men? Women?

12 A. Men or women.

5 13 Q. And what did you think was going on when you saw that?

14 A. I actually didnt know.

15 Q. All right. And what happens then?

16 A. When I called out her name, thats when that figure that

17 was over her jumped up and ran out.

18 Q. And when you called out her name, did you call out the

19 name Audrey?

20 A. No, I didnt.

21 0. What name did you call out?

22 A. I call her Spice.

23 Q. And is Spice a nickname that she has?

~ :: Q. And how long has she had that nickname for?

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Si A. Since she was born.

2 Q. Do you know who gave her that nickname?

3 A. My father.

4 0. And have you ever heard her referred to as Drey-Drey?

5 A. No.

6 Q. When this person ran out, what happened next?

7 A. Well he tried to slam the door.

8 Q. When you say that he tried to slam the door, are you

9 talking a bedroom door or a house door?

10 A. The bedroom door.

11 Q. And when he tried to slam the door, what happened?

12 A. It popped back open.

5 13 Q. What happened then?

14 A. He came back and closed it.

15 Q. Once you heard him close this door the second time, what

16 happened?

17 A. He ran out the front door.

18 0. Could you tell if he had gotten into a car?

19 A. No. Sounded like he ran.

20 0. What happens then?

21 A. I jumped up and was on my way out the door behind him.

22 0. Did something stop you from going -- did you continue out

23 the door down the street -—

~ :: Z: :~chasing?

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Si Did something stop you from doing that?

2 A. My sister.

3 Q. What -- did she say something to you that made you stop?

4 A. Yeah. She says, Dont, dont go, dont go. He got a

5 gun.

6 0. And then what happened?

7 A. I stopped and looked at her, asked her what was going on,

8 who was this.

9 Q. Did she indicate to you whether or not she knew who this

10 person was?

ii A. She didnt know.

12 Q. What was her emotional state like at that point?

5 13 A. She was emotional and scared.

14 Q. Was she upset?

15 A. Yes.

16 0. Do you know if you had -- did you have an alarm clock in

17 the room?

18 A. Yes, I did.

19 0. Did you ever hear that alarm clock go off that morning?

20 A. It went off at about four.

21 0. And why would your alarm clock have been going off at 4

22 A.M.?

23 A. Because I had to be at work at 6:00.

24 Q. Do you recall where you were working at at that time?

5 25 A. I was working for Guardian Security.

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Si Q. Now after this person leaves, do you know if someone

2 called 911?

3 A. I believe either me or my sister called for the police.

4 Q. And do you know -- let me ask you this.

5 When you saw this figure over your sister in the

6 bed, do you know if -- where the children were at at that

7 point?

8 A. On each side of her.

9 Q. Did the police come?

10 A. Yes, they did.

ii 0. And do you know if you talked to them?

12 A. Yes, I did.

5 13 0. Did you tell them what you knew about what had happened?

14 A. Yes, I did.

15 0. How quickly did the police come after 911 was called?

16 A. Maybe two or three minutes.

17 Q. And did you let them in?

18 A. Yes, I did.

19 Q. When your -- well even before you spoke to the police, did

20 you notice if there was any windows open or doors open?

21 A. My front living room window was open.

22 Q. Now that front living room window, could you tell us --

23 well in these pictures that I showed you, you can clearly

24 see the windows that are on the side of Meyers.

5 25 That window thats in the front by the door, is

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Si that window bigger or smaller or about the same size?

2 A. Theyre about the same size but it sits lower down.

3 Q. Okay. So Im showing you Peoples Exhibit Number ii.

4 Can you see this window thats in the middle of

5 the screen?

6 A. Yes.

7 Q. And youre saying that the window that is by the front

8 door on the side there was bigger than this window here

9 (indicating)?

10 A. Yes.

ii Q. And can you see how this window opens toward the outside

12 (indicating)?

5 13 A. Yes.

14 Q. Is that the same way —- did those windows in the front,

15 did they open as well?

16 A. They actually open coming out this way. But the one on--

17 MR. KOMORN: Thats indicating towards her

18 meaning -- and just to clarify.


20 Is that correct? It was —- so the window opened

21 in towards you?

22 THE WITNESS: No.

23 Q. (By Ms. Hagaman-Clark, continuing): Okay. Well let me

24 ask you this.

25 How did the front window open.

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Si A. The front window opened just like the one on the facing

2 Meyers.

3 Q. Okay. So it opened outward?

4 A. Right.

5 Q. And that opening, would it have been big enough for a

6 person to get through?

7 A. Yes.

8 0. You indicated that the window in the front actually sits

9 lower than these windows on the side; is that right?

10 A. Yes. Yes.

11 0. Okay. And you told us that that window was open?

12 A. It was open.

you know if there was any damage to that window?

15 0. Was there any damage to the closing mechanism on it?

16 A. Yes.

17 Q. Okay. Had you noticed that damage prior to February 17th?

18 A. No.

19 Q. You indicated that you talked to the police; is that

20 right?

21 A. Yes, I did.

22 Q. Did you ever indicate to the police or did you notice

23 anything about the living room that seemed disturbed to

24 you?

5 25 A. Well, one, the ironing board was turned over and my purse

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1 was turned over.

5 2 0. When the police came, do you know how long they stayed

3 for?

4 A. No, not exactly.

5 0. The first police -- was there -— how many police officers

6 do you think came to the house, to the apartment?

7 A. I believe there was two.

8 Q. And do you know if they were men? Women?

9 A. Two men.

10 Q. And did any additional police officers come?

ii A. I dont recall.

12 Q. Do you know how long they stayed at the apartment for?

5 13 A. No.

14 Q. Do you know if Audrey left the apartment and went

15 somewhere?

16 A. Yes, she did.

17 Q. Do you know where she went?

18 A. Over to my cousins house.

19 0. Now Im asking specifically about that morning.

20 Do you know if she ever went to the hospital?

21 A. Yes, she did.

22 Q. Do you know if she went to the hospital first?

23 A. She went to the hospital first and then to my cousins.

24 0. And your cousins name?

5 25 A. Sophia Burton.

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. 1 0. Did Audrey go to live with Sophia after this?

2 A. Yes.

3 Q. Do you know how quickly after the incident she went to or

4 she moved out of your place and into --

5 A. She never came back.

6 Q. Do you continue to stay on Meyers?

7 A. Yes, I did.

8 0. And how long did you stay on Meyers for?

9 A. Maybe a month.

10 Q. You left after that month was over?

11 A. Yes.

12 Q. Why did you leave?

5 13 A. I didnt wanna be there.

14 0. Have you ever known your sister to be promiscuous?

15 A. No.

16 Q. Have you ever known her to be a prostitute or to offer to

17 sell her body in exchange for money?

18 A. No.

19 0. Let me ask you this about the apartment itself.

20 Was there an alternate exit in the back of the

21 apartment?

22 A. In through the laundry room, there was another door.

23 Q. Okay. Was that door accessible to people to go into and

24 out of?

5 25 A. No.

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1 Q. Why not?

2 A. I use it as a storage.

3 Q. Do you know if Audrey had a car at that time?

4 A. No, she didnt.

5 Q. Was she a bus rider?

6 A. No.

7 Q. Have you and Audrey talked about this incident since it

8 happened in 1997?

9 A. Yes.

10 Q. Has she ever attempted to tell you what to say here in

ii court today?

12 A. No.

5 13 0. After February 17, 1997, did you ever see if -- any visual

14 effects on Audrey from this assault? Do you understand my

15 question? It was kind of--

16 A. Yes.

17 0. Okay. Can you answer it for me then?

18 A. Yes.

19 Q. What kind of -- did she -- in what ways did she express

20 her issue with being assaulted?

21 A. Depression.

22 Q. You say depression.

23 Did you ever see a physical manifestation of

24 that depression?

5 25 A. Yes.

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Si Q. That night, do you know if the police ever spoke to

2 Thurmon?

3 A. I dont recall.

4 Q. Okay. Do you remember giving the police or did you give

5 the police a description of the person that you had seen?

6 A. I believe I did.

7 Q. Do you recall what that description was?

8 A. Well I do know it was a black male.

9 Q. Okay.

10 A. I do remember he had on a jogging suit.

ii Q. Okay.

12 A. And old beat-up gym shoes.

1 :: there any light on in the bedroom at the time?

15 Q. When you saw this person, did you know who he was?

16 A. No.

17 Q. You did not recognize him?

18 A. No.

19 Q. Do you remember speaking to the police on February 17,

20 1997?

21 A. Briefly.

22 0. Okay.


24 THE COURT: Sure.

5 25 Q. (By Ms. Hagaman-Clark, continuing): Im gonna show you a

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Si one-page document an ask you if you recognize this?

2 A. Yes.

3 Q. Okay. Is there a signature on that?

4 A. Yes, it is.

5 Q. And is that purportedly the statement that the police

6 officers took from you back on February 17, 1997?

7 A. Yes, it is.

8 0. Okay. And do you recall a police officer by the name of

9 Alicia Stevenson, a female taking the statement from you?

10 A. No.

ii 0. Okay. Do you remember them asking you for a description

12 and you saying black male, medium-dark complexion, hooded

5 13 jogging suit, maybe blue or dark colored gym shoes, maybe

14 27, no mustache?

15 A. Briefly.

16 0. Okay.

17 MS. HAGAMAN-CLARK: May I have just one moment,

18 Your Honor?

19 THE COURT: Yes.

20 MS. HAGAMAN-CLARK: Thank you, Ms. Gore. I

21 dont have any further questions at this time.

22 THE COURT: Cross.

23 CROSS-EXAMINATION


5 25 Q. Miss Gore, Im gonna ask you questions. If you dont

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Si understand them, stop me, I will try to rephrase them so

2 you do. Okay?

3 A. Okay.

4 Q. How many times did you speak about the incident to law

5 enforcement at the time of the incident, if you know?

6 A. I dont recall.

7 Q. Let me ask it this way.

8 Two police officers you said came to your house,

9 correct?

10 A. Uh-huh.

ii Q. You spoke with them there, right?

12 A. Yes.

5 13 Q. Was there another time that you sat with or spoke with

14 officers and gave —- you know, other officers than the two

15 that came to your house, if you recall?

16 A. Not that I know of.

17 0. So there was just one time and one time only where you

18 made a statement to the police; is that correct?

19 A. I believe so.

20 0. And the document that the prosecutor handed you to look at

21 was your statement that you made back then, correct?

22 A. Yes.

23 Q. And your signatures on it, correct?

. :: ~ ::cating that its not in your writing, someone else

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Si wrote it, correct, or maybe its in your writing? I dont

2 know. Is it in your writing?

3 A. Is that my writing?

4 Q. Yeah, just the contents of the report.

5 Did you write it or did you --

6 A. No, I didnt write it.

7 Q. You spoke it and another officer wrote it down, correct?

8 A. Yes.

9 Q. And then you signed it after you had a chance to review

10 it, correct?

11 A. Yes.

12 0. And when you signed it, you were indicating that the

14 A. things that were in this were truthful, right?

15 Q. And you recall today at least that this was given to the

16 officers that had come to the scene, correct?

17 A. That --

18 Q. The officers that were at the house, the reporting

19 officers that you spoke to, is that when you gave this

20 statement?

21 A. Yes, I did.

22 0. All right. First, how long had your sister been living

23 with you at that location?

24 A. About a year.

5 25 0. Do you know if she was planning on moving prior to this

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1 incident?

S 2 A. No, she wasnt.

3 Q. She was planning on staying there?

4 A. For a little while.

5 Q. Okay. Do you know if she was happy in her living

6 arrangement at that time before the incident?

7 A. She was pretty happy.

8 Q. Okay. Were you with her earlier in the day that day?

9 A. No, I was not.

10 Q. Do you recall where you were earlier in the day?

11 A. Probably at the house.

12 0. At the house?

5 13 A. Or either at work, one of the two. Probably at work.

14 Q. On Sunday would have --

15 A. Thats when my shift started.

16 Q. Security guards dont have weekends off, I understand.

17 Do you -- would you -- did you know your sister

18 to be a regular attender of church on Sunday?

19 A. Yes.

20 Q. Okay. Do you know if she had a routine of doing that, and

21 if so who she went with?

22 A. If she went, it was usually with my dad.

23 0. Okay. And you maintain you would have been at the house

24 most of the day or at work?

5 25 A. Either at work -- if I was at the house, I would have been

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1 asleep.

5 2 Q. Okay. Was your sister working at this time? Did she have

3 ajob?

4 A. Yes, she did.

5 0. What was she doing?

6 A. She was working across the street at a club.

7 0. What kind of club?

8 A. Its a like a lounge.

9 Q. Okay. Doing what? Do you know?

10 A. Waitress.

11 0. And what was it called?

12 A. Reggies Moulin Rouge.

5 13 Q. Okay. Do you know how long she was working there for?

14 A. Maybe -- I dont know. I dont remember.

15 Q. A while?

16 A. No, it wasnt a while.

17 0. Did she continue to work there afterwards? Do you know?

18 A. No.

19 Q. Now you maintain that when you came out of the bedroom

20 after the incident, whatever had been observed in there,

21 you said that you observed the -- a window open; is that

22 right?

23 A. Window was open, the ironing board was knocked over.

24 Q. Okay. Were any lamps knocked over?

5 25 A. No.

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Si Q. Your purse was dumped out?

2 A. Yes.

3 0. Is it true that when you saw the window was open you went

4 and closed it?

5 A. Yes, I probably did.

6 Q. And that was before the police arrived, correct?

7 A. Probably afterwards.

8 Q. Youre saying that you left it open and called the police

9 and then had them -- and then they arrived and it was

10 still open?

11 A. Yes.

12 Q. You dont deny that you told the police that when you came

5 13 out you saw that the living room window was open and you

14 said, I closed it; is that right?

15 A. Right.

16 0. And youre saying that when you closed it, that was after

17 the police had arrived?

18 A. Right.

19 Q. Thats what that means? Is that what youre saying?

20 A. Right.

21 Q. And I just wanna be clear when you said, I looked around

22 and outside, saw that the front living room window was

23 open I closed it.

24 A. Right.

5 25 Q. That was --

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Si A. After the police had arrived, i closed the window because

2 it was cold.

3 Q. Okay. You didnt notice that the window was open anytime

4 earlier?

5 A. No.

6 Q. Was that window left open normally?

7 A. No.

8 Q. Okay. And you maintain that there was some damage to the

9 window?

10 A. Yes.

ii Q. Did you point that out to the police?

12 A. I may have. I dont recall.

5 13 Q. Did you indicate anywhere in your report about any damage

14 to the window, if you recall?


16 MR. KOMORN: Could I approach the witness and

17 have her see if that will help her?

18 THE COURT: Sure.

19 Q. (By Mr. Komorn, continuing): Im handing you your

20 statement that we have talked about before.

21 Look at it and tell me if you -- you need your

22 glasses? I dont mean to --

23 A. Yes.

24 Q. Im handing you your statement. Feel free to review that

5 25 and let us know if it helps refresh your recollection.

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S 2 Q. Its true you did not indicate to the police that there

3 was any damage done to any windows; is that right?

4 A. No, I did not.

5 0. And the police didnt take any pictures, if you recall,

6 right?


8 Q. Okay. Do you recall if the police went into any of the

9 rooms to investigate?

10 A. I dont remember that.

ii 0. Okay. Do you remember where it was in the house that you

12 spoke with them?

5 13 A. In the living room.

14 0. And was your sister there with you?

15 A. Yes, she was.

16 Q. Okay. And were there shades in the windows?

17 A. Yes.

18 0. Okay. And which way did the window open? Was it outward,

19 you know, out away from the house, or into the house?

20 A. Out away from the house.

21 Q. Okay. And out away from the house, okay.

22 And now returning to the time that you observed

23 someone else in the bedroom. When you go to sleep, do you

24 usually shut the bedroom door?

5 25 A. No.

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1 Q. You leave it open?

5 2 A. Yes.

3 Q. Okay. On this particular night, you had gone to sleep

4 before your sister; is that right?

5 A. Yes.

6 Q. And when you went to sleep, do you recall her being awake?

7 A. She was awake writing my brother a letter.

8 Q. Writing your brother a letter, okay.

9 And her children were where?

10 A. In the bed.

11 0. With you?

12 A. No, in her bed.

5 13 0. Okay. What was the distance of the two beds, if you

14 recall?

15 A. Roughly around three feet.

16 0. Okay. And both of the children were in the bed?

17 A. Yes.

18 Q. That other bed. And you were in the other bed?

19 A. Yes.

20 0. Do you recall what kind of beds they were? Were they -—

21 A. Full-size bed.

22 0. Full-size bed, okay.

23 And approximately how big was the room, if you

24 know?

25 A. It was large enough to fit two full-size beds in there and

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1 a table and a dresser.

5 2 Q. Okay. Okay. Was there a closet in there, too?

3 A. Yes.

4 0. Okay. Now the lights were off in the room; is that right?

5 A. Yes, they were.

6 0. Okay. Now you say that you hear some whimpering, correct?

7 A. Yes.

8 Q. From your sister, and you see someone on top of her; is

9 that right?

10 A. Yes.

11 0. Or you see a shadow that you recall?

12 A. It was a shadow.

5 13 Q. Okay. You could not see an individual on top of her?

14 A. Well, he was on top of her.

15 Q. Okay.

16 A. But it was a shadow because the lights were out.

17 Q. Right. Okay. You never saw a weapon, right?

18 A. I really didnt look for one.

19 Q. Okay.

20 A. To be honest with you.

21 0. Because Audrey was the one that told you not to go after

22 her —- him because --

23 A. He had a gun to her.

24 Q. But you did not -- that you were not aware of when you

5 25 observed the shadow or the person, correct?

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1 A. Right.

2 Q. But you were able to get a clear description of his face,

3 right?

4 A. I could see that he was dark.

5 Q. Okay. You were able to describe his complexion, correct?

6 A. He looked dark to me.

7 0. Okay. You were able to describe the actual color of his

8 gym shoes?

9 A. As he went out of the bedroom, you can see all of that.

10 Q. Okay. Into the what? Into the hallway?

11 A. Going towards the living room.

12 0. Okay.

5 13 A. Cause there was a light on in there.

14 Q. Okay. And thats when you were following him out of the

15 bedroom?

16 A. I jumped up and ran after him.

17 Q. You ran after him, okay.

18 A. Going through the living room.

19 0. And as you were chasing him, you were able to get the

20 description of his clothing?

21 A. I seen the back of him.

22 Q. Okay. So the things that you said that you observed here

23 were not while you were in the bedroom, right?

. :: 0. Okay. You never indicated to the police that you chased

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i

after the perpetrator; is that correct?

2 A. Oh, I didnt go out of the house.

3 0. Right.

4 A. My sister wont let me go out of the house.

5 0. Okay. But you did not indicate that you went, left the

6 bedroom to go after him, correct?

7 A. No.

8 0. Did you call out to have him stop?

9 A. No.

10 0. Did you see a gun in his hand when he got to the living

ii area?

12 A. I wasnt even looking for that.

5 13 0. Okay. You described him as being five foot ten, right?

14 A. Maybe.

15 0. No, no. Im asking -- Im sorry. Your answer is what?

16 A. Maybe around that, that height.

17 Q. Could be five 11? Could be five nine?

18 A. Yeah.

19 Q. Heavy-set, 200-plus pounds?

20 A. I dont know. I dont recall saying any of that.

21 0. Okay. Now you said that the person left, he slammed the

22 door shut, correct?

23 A. He tried to close the bedroom door.

24 Q. Okay. He didnt slam it -- he tried to close it; is that

5 25 what youre saying?

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1 A. Tried to pull it.

S 2 0. Pull it from inside?

3 A. From the outside.

4 Q. The bedroom door opens toward the bedroom or out?

5 A. Toward the bedroom.

6 Q. Okay. So it was open toward the bedroom and youre saying

7 when he walked out he --

8 A. When he ran out.

9 Q. When he ran out, he pulled it behind him to shut it?

10 A. He tried to.

ii Q. And it popped back open?

12 A. And it popped right back open.

5 13 0. And you observed this from --

14 A. My bed. My bed was right there at the door.

15 Q. He is not in the lit area at this time; you still dont

16 have a description of him, do you?

17 A. Once you open up the bedroom door, all lights will shine

18 inside.

19 Q. Into the bedroom?

20 A. Yes.

21 Q. Okay. The bedroom door was open when he was in there?

22 A. Yes.

23 Q. Okay. So there was light inside the bedroom; is that what

24 youre saying?

25 A. There was a shadow.

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Si Q. Okay. There was light in the room from the exterior or

2 there was not?

3 A. From the kitchen, yes.

4 Q. Into the bedroom?

5 A. You could see like a shadow.

6 Q. Okay. So he tries to shut the door, this person?

7 A. He tried to slam the door.

8 Q. Okay. And it pops back open, correct?

9 A. It popped right back open and he turned around and came

10 back and tried to close it again.

11 0. And it was closed?

12 A. Yes.

5 13 0. Okay. So the door was now closed?

14 A. Closed.

15 Q. And you dont see him at this time, correct?

16 A. No, I dont see him but I grab the door fast enough where

17 I -- if I really wanted to, I could have caught him.

18 Q. Okay. And this is the point in time where -- when you

19 open the door back up, where is he?

20 A. When I open up the door, he was on his way trying to go

21 out the front door.

22 Q. Okay. And thats when you continued into the hallway and

23 then into the front living room after him?

~ Q. And thats when you got a description of him?

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S 2 Q. Okay. Did you notice which direction he went?

3 A. No, I did not.

4 0. Okay.

5 A. By that time, my sister had ran out and grabbed me.

6 0. Police officers, when they interviewed you, asked you did

7 you hear a car and you responded I heard him run?

8 A. I heard him run.

9 Q. Okay.

10 A. But, see, from the inside of the complex, you cant tell

11 which direction theyre running in.

12 0. Okay. Cause coming out the front door they could have

5 13 gone to --

14 A. Either the right or the left.

15 Q. Right. And to the right would have been Meyers?

16 A. Yes.

17 Q. And to the left would have been deeper into the complex,

18 right?

19 A. It would have been deeper into the complex and an alley.

20 Q. Okay. But you were able to tell me how close you were to

21 him when he was in the living room after he shut the door?

22 A. Maybe six feet or so.

23 Q. Okay. And he goes out the front door, correct?

S :: Q. And does he try to shut the door behind him?

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1 A. I dont recall if he tried to shut it or not. All I know

2 is I got ready to go out into the snow after him.

3 Q. Okay. And you saw him go out the front door and then what

4 did you see, if anything?

5 A. I didnt see anything else. Just heard running.

6 0. Okay. You didnt tell the police that you saw him running

7 from the scene, right?

8 A. What do you mean?

9 Q. Well they asked you did you hear a car and your response

10 was I heard him run.

ii A. I heard him run.

12 Q. Right. But you didnt see him run, or did you?

13 A. I heard him run.

14 Q. But did you see him -- cause he may have gotten into a

15 car.

16 A. I didnt hear a car start up or anything.

17 0. When you say you heard him run, did you hear his --

18 A. I heard his foot, his feet.

19 Q. In what? The snow?

20 A. Yes.

21 Q. And that was making noise that you could hear?

22 A. Yes.

23 0. Okay. And how long did that last for that you were able

24 to hear him?

5 25 A. Until my sister grabbed me.

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Si Q. Did you direct the police to the possible footprint in the

2 snow so they could track him?

3 A. No. No. I dont recall doing that.

4 0. Did you get a chance to step outside yourself to see what

5 direction he may have ran?

6 A. No, I did not.

7 Q. And you do -— youre certain that there was a lot of —-

8 there was snow on the --

9 A. There was snow outside.

10 Q. Do you have a specific recollection of it being like a

11 couple feet that it snowed that day?

12 A. It was -- all I can recall it was snow outside.

~ :1 ~ Was your walkway shoveled, if you recall?

15 Q. It was not shoveled?

16 A. No.

17 Q. How long did you stay at the location afterwards?

18 A. Maybe a month.

19 MR. KOMORN: Can I have one second, Your Honor?

20 THE COURT: Well just take -- well take our

21 morning break now.

22 Ladies and gentlemen, well take our break.

23 Please be back in 20 minutes. You may go downstairs, of

24 course, if you would like to, or you may go back to the

25 jury room. Whichever you please.

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Si All rise for the jury.

2 (The jury was excused from the courtroom at

3 11:11 A.M.)


5 MS. HAGAMAN-CLARK: No.

6 May we approach just briefly, Your Honor?

7 THE COURT: Yes.

8 (Discussion had at the bench between the Court

9 and counsel.)

10 (Of f the record.)

ii THE COURT: All rise for the jury.


5 13 THE COURT: You may be seated, ladies and

14 gentlemen.

15 You may resume the witness stand, Ms. Gore.

16 Youre still under oath.

17 You may continue, Mr. Komorn.

18 MR. KOMORN: Thank you, judge.

19 0. (By Mr. Komorn, continuing): You stated earlier that you

20 knew your sister to go to church.

21 And do you recall her going to church that day?

22 You were not with her at church, were you?

23 A. I doubt it.

24 0. Okay. You described your observations of the person that

5 25 was in the room.

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Si Are you testifying today that you got a look at

2 the persons face or not?

3 A. I never said I seen his face.

4 Q. Okay. Do you remember telling the police that the person

5 did not have a mustache?

6 A. No, I dont.

7 MR. KOMORN: May I approach and see if the

8 statement by the witness will help her refresh her memory?

9 THE COURT: Sure.

10 Q. (By Mr. Komorn, continuing): If I can help, its in that

ii area there (indicating).

12 A. Okay.

5 13 Q. So your memory has been refreshed after reviewing your

14 statement, correct?

15 A. Yeah.

16 Q. Do you recall now as you testify seeing a persons face?

17 A. No.

18 Q. You dont dispute that the police officer or that your

19 statement indicates that you saw that the person didnt

20 have a mustache, do you?

21 A. It doesnt even say that in the statement. It just says

22 dark complected.

23 It never says anything about a mustache.

24 0. Im sorry. Let me point it to you right there. Says, no

5 25 mustache. Do you see that?

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5 2 Q. No mustache. Thats your report, right?

3 A. Yeah.

4 Q. And thats your signature at the bottom of the report?

5 A. Yeah, thats my signature.

6 Q. And you said before that when you signed it you were

7 attesting that the contents in it were truthful, correct?

8 A. Yes.

9 Q. So but you dispute that now?

10 A. I dont remember seeing a mustache.

ii Q. Right. But in order to do that, you would have to get a

12 look at a persons face?

5 13 A. Yeah.

14 Q. And you did not is what youre testifying today?

15 A. All I seen was he was dark skinned to me.

16 Q. Okay. Now the window that you said was open, could we

17 talk about that for a second?

18 Was it —- youve said it was a window that went

19 out away from the house, right?

20 A. Away from the building.

21 Q. And that was done in what manner? Was it something that

22 you could slide it out or was there a crank?

23 A. Its a crank.

24 Q. Okay. And the crank was on the outside or the inside?

5 25 A. Its on the inside.

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Si Q. Okay. And the damage that you said you saw was on the

2 outside or the inside?

3 A. On the inside.

4 Q. The damage was on the inside?

5 A. Yes.

6 Q. Okay. Not on the outside of the window?

7 A. I never looked outside of the window.

8 Q. Was it that way prior to February 17th?

9 A. I dont know.

10 Q. So you dont know if that was something that had occurred

ii that night or had existed prior to February 17, 1997,

12 right?

5 13 A. No, because I never opened up the window. That window

14 stayed closed all the time.

15 Q. Was it sealed closed? Do you know?

16 A. No.

17 Q. And it would stay closed all the time?

18 A. Yes.

19 Q. Never opened ever before that day?

20 A. Never opened it period. I always opened up the windows

21 facing Meyers.

22 0. Okay. Were those open on that night?

23 A. No.

24 Q. Were they the same kind of windows that rolled out?

5 25 A. Yes.

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Si Q. Was there any damage to them on the inside?

2 A. I dont know.

3 Q. Was the window near the front door, that wall, that side

4 that were speaking of that you said had damage, was it

5 not open because it could not be opened or you just --

6 A. I just never opened it.

7 0. Okay. At what point do you recall when you were in the

8 bedroom that the person got up and left? Like in what

9 context was it?

10 A. What do you mean?

11 0. Well you said that you had heard your sister making some

12 noises and you described it as --

5 13 A. Whimpering.

14 0. -- whimpering?

iS A. Crying.

16 0. Crying. You called out to her, right?

17 A. Yes.

18 Q. And you said Spice --

19 A. Whats wrong?

20 0. And you thought it was her boyfriend that was in the room

21 with her, right?

22 A. Yes.

23 0. Because she had had her boyfriend over?

• 2: Q. Never? And it was -- was it -- but you thought

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Si immediately that it may have been her boyfriend in the

2 bed, that was your initial thought, right?

3 A. I thought he was there.

4 0. Okay. And you said something to her; is that right?

5 A. Yes.

6 Q. What did you say, if you know?

7 A. Whats wrong?

8 Q. Whats wrong, and its at that point that he got up and

9 left?

10 A. Well when I called out her name, thats when he jumped up.

11 0. Okay. And after he jumped up, what did he do?

12 A. He ran out.

5 13 0. Okay. Was there an alarm clock going off at this time?

14 A. No, not yet.

15 0. Okay. Do you recall the alarm clock going off?

16 A. Yes, I do.

17 0. That day?

18 A. Yes.

19 Q. Why is that?

20 A. Because I had to go to work.

21 Q. I know that.

22 But was there something specific about it like

23 you were out in the living room and you heard the alarm

24 clock going off so you went back or what? You knew that

25 you had to be at work and therefore the alarm clock would

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Si have gone off that day?

2 A. No, I heard it go off.

3 Q. Okay. Where were you when it went off?

4 A. In the living room.

5 0. Okay. Where was your sister at that time?

6 A. In the living room with me.

7 Q. Did she follow you out of the bedroom?

8 A. She ran behind me to grab me.

9 Q. To grab you?

10 A. Yes.

ii Q. She did not stay in the bedroom until the police came,

12 right?

5 13 A. No.

14 Q. She was outside walking around, right?

15 A. No, she wasnt outside walking around. She just ran in

16 there and grabbed me to keep me from running out.

17 Q. Okay. I meant outside of the bedroom. I apologize.

18 But she was outside the bedroom, not outside the

19 house, when the police came, right?

20 A. I dont recall. All I remember her is grabbing me.

21 Q. Okay. And what happened after that?

22 A. I stayed with her.

23 Q. And did you stay in the living room? Did you go back in

24 the bedroom?

5 25 A. I think I walked around the house.

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Si Q. Did the incident happen before the alarm went off or after

2 the alarm went off?

3 A. Before.

4 MR. KOMORN: Okay. No further questions.

5 Thank you, Your Honor.

6 THE COURT: Any questions?

7 MS. HAGANAN-CLARK: Yes, I just have a couple.

8 Thank you.

9 REDIRECT EXAMINATION


11 Q. Ms. Gore, you do not know the person seated at the table,

12 do you?

5 13 A. No, I dont.

14 0. Do you recognize him as somebody who hung around the

15 neighborhood?

16 A. No, I dont.

17 0. Do you recognize him as someone that your sister had sex

18 with?

i9 A. No.

20 0. Now you testified that you believe that Ms. Polk had been

21 working at Reggies Moulin Rouge?

22 A. Yes.

23 0. What kind of a club is that?

24 A. Its just a regular lounge.

5 25 Q. Is it a topless lounge?

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2 Q. Isit a strip club?

3 A. No.

4 0. Its just a bar?

5 A. Just a bar.

6 Q. And you testified that you gave a statement to the police,

7 right?

8 A. Yes.

9 0. And that statement that you gave to the police, would you

10 agree with me that it was taken at 5:20 A.M.?

ii Do you see that at the top.

12 A. (No verbal response.)

5 13 Q. Okay. Lets start in the beginning.

14 Would you agree that the statement was taken on

15 February 17, 1997?

16 A. Yes.

17 Q. Okay. Right next to that is a place for time, would you

i8 agree with me?

19 A. Yes.

20 Q. Would you agree with me that it says 5:20 A.M.?

21 A. Yes.

22 0. And would you agree that the location where the statement

23 was taken says 9407 Meyers?

S :: Q. Would you further agree with me that the statement was

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Si taken by a person by the name of Alicia Stevenson?

2 A. Yes.

3 Q. Would you agree with me that that would be a female?

4 A. Yes.

5 0. Okay. Do you recall speaking with a female?

6 A. All I know is it was a police officer.

7 Q. Okay. But this is —- the one-page document, the

8 information that weve just spent the last hour or so

9 going over, is the information that you gave her, correct?

10 A. Yes.

11 Q. And then you sign it at the bottom?

12 A. Yes.

5 13 THE COURT: Is that 5:20 A.M., you said?





18 Thank you.

19 THE COURT: Any additional recross?

20 Thank you very much, Ms. Gore. You may step

21 down.


23 THE COURT: You may call your next witness.


5 25 People would call Investigator Kim Turner.

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Si THE COURT: Would you state your name for the

2 record, please?

3 THE WITNESS: Kimberly Turner, T-u—r—n-e—r.

4 THE COURT: Would you raise your right hand?



7 you God?



10 KIMBERLY TURNER,

ii called as a witness at 11:53 A.M., having first been duly

12 sworn by the Court, was examined and testified on her oath

5 13 as follows:


iS BY MS. HAGAMAN-CLARK:

16 Q. Good morning.


i8 A. Kimberly Turner.

19 Q. And, Ms. Turner, how are you employed?

20 A. The Detroit Police Department.

21 Q. And how long have you been with the Detroit Police

22 Department?

23 A. Since 1995.

24 0. And have you forever worked -- well let me ask you this.

5 25 Are you assigned to a special unit at this

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1 point?

2 A. Yes, I am, the Sex Crimes Unit.

3 Q. And how long have you been assigned to Sex Crimes?

4 A. Since 1997; 11—20—1997.

5 Q. Now since you have been assigned to Sex Crimes in 1997,

6 would you agree with me that sexual assault cases are

7 investigated in a different way today than they were then?

8 A. Yes.

9 Q. In which ways?

10 A. Theyre -- theyre -- its more thoroughly investigated

ii today. We do things a little bit different than we did

12 back in 1997.

5 13 Q. Now you were involved in Sex Crimes back in 1997.

14 Did you work stranger sexual assaults?

iS A. No, I did not.

16 Q. Does the Sex Crimes Unit of the Detroit Police Department

17 break up the Sex Crimes Unit into different areas?

i8 A. Yes, we do.

19 Q. And what areas are there?

20 A. We have the kiddie squad which is 16 and under with

21 juvenile defendants which would be another -- the

22 defendant in the case would be 16 and under, the

23 complainant would be 16 and under.

24 Then we have 16 and over known defendants. And

25 then we have 16 and over unknown defendants.

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Si Q. And when you first went into the Sex Crimes Unit, you

2 indicated that you worked on the 16 and under with

3 juvenile offenders?

4 A. Yes.

5 0. Okay. When did you inherit this case?

6 A. I inherited this case in, I believe, May or June of 2011.

7 Q. And when you inherited this case, did you have a statement

8 from Audrey Polk?

9 A. Yes.

10 0. That was taken back in 1997?

ii A. Thats correct.

12 Q. Did you have a statement from Thurmon Polk that was taken

5 13 back in 1997?


15 Q. Did you have a statement from Lisa Gore?


i7 Q. Did you have the police report from the -- from Officer

i8 Jennings?

i9 A. Correct.

20 0. And did you have a document that was entitled Progress

21 Notes from the previous officer-in—charge?

22 A. Correct.

23 Q. Now whatever was done back in 1997, you didnt have any

24 involvement in it, is that fair to say?

5 25 A. Thats fair to say.

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i

Q. So your -- what you know about what was done or what

2 wasnt done is from looking at the file and what evidence

3 is there; is that fair to say?

4 A. Thats correct. Yes.

5 0. Do you know if a 911 call was preserved?

6 A. They -— I dont know. They only preserve 911 calls, I

7 believe its 30 days. Thirty to 60 days.

8 Q. And when you received this file, was there a 911 call in

9 there?

10 A. No, there was not.

ii Q. Now do you know whether or not evidence techs were called

12 to that location?

5 13 A. Im not -- not one hundred percent for sure.

14 I believe they were called. I dont know if

15 they showed up.

i6 Q. Okay. And do you have an evidence tech report that would

17 have been generated from that run?

i8 A. No, I dont.

19 0. And is it common for them to fill out a report when they

20 go to a location?

21 A. Yes.

22 Q. And what about photographs? Were any photographs taken of

23 the scene?

24 A. Not to my knowledge.

5 25 Q. Besides the 911 call and the photographs not being

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Si available, is there anything that you would have done

2 differently as far as the initial investigation?

3 A. The initial investigation I would have did a canvass.

4 would have made sure that the evidence techs came out to

5 the scene, processed the scene, collected evidence if

6 there was any evidence to be collected, dusted for

7 fingerprints and a canvass.

8 0. Now a canvass is what?

9 A. A canvass is when you walk around the neighborhood to

10 knock on doors to see if anybodys seen or heard anything.

ii Q. To your knowledge, was that done in this case?

12 A. I dont believe so, no.

5 i3 Q. There is no evidence of that?


15 Q. Now the rape kit.

i6 Back in 1997, do you know if -- well let me ask

17 you this. How did -- who was the prior officer-in—charge

18 of this case?

19 A. Officer Rosalind Means.

20 Q. And did you make attempts to get Officer Rosalind Means

21 here to court today?

22 A. Yes, I did.

23 0. And was she served with a subpoena?

24 A. Yes, she was.

5 25 0. And has she appeared?

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1 A. No, she hasnt.

5 2 Q. Did she make any attempts to you to indicate to you that

3 whether or not she was coming?

4 A. Yes.

5 0. What did she tell you?

6 A. That she was very sick with Lupus. She cant breathe.

7 She cant walk. She is wheelchair bound. She wasnt

8 coming.

9 0. And--

10 A. Oh, and she cant see either.

11 0. Okay. You indicated that you -- when you received

12 information in this case, did she have a progress notes

5 i3 sheet?

14 A. Yes, she did.

15 Q. And does that indicate to you all of the things that she

16 says that she did as it relates to the investigation of

17 this case?

18 A. Yes, it does.

19 Q. And there was nothing in there about the 911 call being

20 preserved?

21 A. No.

22 Q. Nothing in there about getting photographs?

23 A. No.

24 Q. Nothing in there about doing a canvass?

5 25 A. No.

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i

0. How is this case resolved back in 1997?

2 A. Its not resolved. Its —- we have a disposition called

3 To Locate which means the case remains open until we get

4 an arrest. So it can be kept on file from 1997 til

5 whenever we get an arrest.

6 Q. So technically this case was never closed?

7 A. Thats correct.

8 Q. To Locate; did they have any -- does that mean that they

9 know who the suspect is and they just need to go out and

10 find them? What does To Locate really mean?

ii A. To Locate really means that we dont know who it is and

12 until we get any new leads on who the defendant is its

13 left as To Locate.

14 Q. And do you know if in 1997 kits were going to the lab for

15 any kind of CODIS entry or inserting in any databases?

i6 A. I dont know that.

17 Q. Now Im sure that during the course of this trial, as well

18 as your experience as a Detroit police officer, youve

i9 heard of Project 400?


21 0. And you are aware of all of the rape kits that are sitting

22 in storage?

23 A. Correct.

24 Q. As a result of Project 400 and those kits being

5 25 discovered, have policies changed about rape kits?

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1 A. Absolutely.

5 2 Q. What is the policy now?

3 A. Every single rape kit now goes to the lab.

4 Q. Now when you were assigned this case in May or June of

5 2011, did you make any attempts to determine whether or

6 not the -- were you made aware that there had been a CODIS

7 hit?

8 A. Yes.

9 Q. Now once you get a CODIS hit, is that the end of the

10 story, thats got to be the defendant, thats got to be

11 our bad guy?

12 A. Can you repeat that?

5 13 Q. Sure.

14 Just because you get a CODIS hit, does that mean

15 that its automatically gonna be the bad guy?

16 A. Sometimes yes, sometimes no. Depends.

17 Q. Did you make any attempts to determine whether or not the

18 person of Antonio Jackson was a consensual sex partner of

19 Ms. Polk?

20 A. Yes.

21 0. And how did you do that?

22 A. I showed her a photograph of him.

23 0. Okay. And she indicated to you that she had no idea who

24 he was?

5 25 A. She had never saw him before.

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Si Q. She didnt say to you thats him, I know it, thats the

2 person who raped me?

3 A. No.

4 0. Do you know -- once you do your investigation, are you

5 then given reports from Deb Turner from the Project 400?

6 A. Yes, I do.

7 Q. Okay. With the updated statement from Audrey Polk?

8 A. Thats correct.

9 Q. And what do you do with all of those reports?

10 A. I read over the reports and then I put them in the file,

ii keep the file together.

12 0. Now do you put together whats known as an Investigator

5 13 Report?

14 A. Yes, I do.

15 0. And whats the purpose of an Investigator Report?

16 A. Investigator Report is -- its a report that -- what we do

17 is we write down what happened, all the witnesses, if

18 there is any kind of showup, if there is any other kind of

19 evidence involved and we present that to the prosecutor.

20 0. And when you present it to the prosecutor, what are you

21 presenting it to the prosecutor for?

22 A. For an arrest warrant.

23 Q. Was that presented in this case?

~ :: Q. And after the warrant was issued, do you know what date it

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i was issued?

2 A. No, I dont.

3 Q. If I showed you your copy of your Investigator Report,

4 would that help to refresh your memory?

5 A. I dont think its on there, the date that its issued.

6 MS. HAGAMAN-CLARK: May I approach?

7 THE COURT: Yes.

8 Q. (By Ms. Hagaman-Clark, continuing): Would the charging

9 documents refresh your memory?

10 A. Yes.

ii Q. Im showing you your two-page Investigator Report as well

12 as a third page thats the prosecuting attorneys warrant

5 13 recommendation for -- that you provide as part of the --

14 of your Investigators Report.

15 A. This Investigators Report was typed 6-12-li.

16 Q. Okay. And if you look on the very last sheet, does it say

17 when the warrant was authorized?

18 A. 9—21—11.

19 0. Okay. After the warrant was issued, did you make attempts

20 to have the defendant arrested?

21 A. Yes, I did.

22 0. Do you know what date he was arrested?

23 A. 10—19—li.

24 Q. And on or about that date, did you take a fresh buccal

5 25 swab from the defendant?

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5 2 0. Okay. And how did you do that?

3 A. I —— when he was arrested, I went and talked to him at the

4 Sixth Precinct and I had a search warrant to take a buccal

5 swab from him.

6 Q. Now a buccal swab refers to be described as something that

7 looks like a 0-tip?

8 A. Correct.

9 Q. Is that what you used?


11 Q. What did you do with the buccal swab after you obtained

12 that from -- I assume you took it from his mouth or

5 13 somewhere else?

14 A. Yes. I had the defendant rub the insides of his cheek

15 about 10 times inside. Then that is placed and sealed

i6 into a envelope and it was taken to Detroit Police

17 Department.

18 0. And did you associate an evidence tag with that piece of

19 evidence?

20 A. Yes, I did.

21 Q. What is that evidence tag number?

22 A. 41704904.

23 Q. And did you make arrangements to have it transported to

24 the Michigan State Police Crime Lab?

5 25 A. Not myself personally, no.

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Si Q. What did you do with it once you had it?

2 A. I took it to Detroit police lab who then takes it to the

3 Michigan State Police lab.

4 MS. HAGANAN-CLARK: I have nothing further.

5 CROSS-EXAMINATION

6 BY MR. KOMORN:

7 0. Do you know who it was that took it to the lab, this State

8 Police lab, from the Detroit?

9 A. No, I dont.

10 Q. Now you are the officer-in-charge of this case, right?

ii A. Correct.

12 0. And that involves organizing and preparing and getting all

5 13 the documents in order for a case, correct?

14 A. Correct.

15 0. Youre also the one that presents it, the warrant, to the

i6 Prosecutors Office, right?


18 Q. When youre doing an investigation, your investigations

19 supposed to gather evidence, thats the goal essentially,

20 right?

21 A. Correct.

22 Q. Evidence that is both -- thats relative to the case,

23 meaning both evidencethat may be beneficial to the

24 defendant and that would support a victims story; is that

5 25 correct?

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1 A. I collect evidence, yes.

5 2 Q. Collect evidence. And thats stated if you came across

3 evidence that was in conflict with what the victim would

4 have said, as an investigator youre not gonna ignore

5 that?

6 A. No.

7 Q. And youre gonna gather it, correct?

8 A. Correct.

9 Q. Notate it in some manner?

10 A. Know what?

ii Q. Notate it in some way?

12 A. Maintain it.

5 13 Q. Notate. Notate.

14 A. Note it, yes. Thats correct.

15 Q. And that would be something that would be within a report,

16 correct?

17 A. Correct.

18 0. All right. You agree that none of that was done in this

19 case, right? There is no gathering of any evidence at the

20 crime scene, right?

21 A. I cant speak for what was taken at the crime scene.

22 wasnt at the crime scene, but, no.

23 Q. Okay. And as you were describing it, if you would have

24 been the officer—in-charge at the time this would have

5 25 been done much differently, correct?

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1 A. Thats correct, yes.

5 2 0. You did say everything has changed since then to now in

3 terms of how the investigative procedures are done in

4 terms of Sex Crimes, right?

5 A. Gradual changes throughout the years, yes.

6 0. Theyre still destroying dispatch calls and audio tapes

7 and car videos within 30 to 40 days, arent they?

8 A. Yes, I believe so.

9 Q. That has not changed, right?

10 A. No.

ii Q. Now you -- youre aware that in 1997 fingerprint analysis

12 was one of the techniques that the State lab was made

14 A. :::~1~1e~ correct?

15 Q. And was there a Detroit Police Department fingerprints

16 technician as well that -- in the lab that would do

17 analysis, if you know?

18 A. I believe that -- yes.

19 Q. Okay. And that would have been something that would have

20 and should have been collected at the crime scene and it

21 was not in this case, right?

22 A. Correct.

23 0. Now you took a second statement from the complainant in

24 this case, right?

5 25 A. No.

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Si 0. Right. It was investigator —— who was it who took the

2 statement from her, from the complainant in 2001, if you

3 know?

4 A. I never -- it was Investigator Deb Turner, the Project 400

5 investigator.

6 0. Right.

7 Now the current way in which the Sex Crime Unit

8 is broken down, as you described it, is three different

9 units; is that right?

10 A. Back in 1997, I believe there may have been -- there was

ii four different squads. Now we have three squads.

12 0. Okay. Are they -- are the squads set up in a way to

5 13 reflect the national statistic that 80 or 85 percent of

14 most sex assaults take place between people that know each

15 other?

16 A. No.

17 Q. No? Is that the way --

18 A. Theyre not set up that way.

19 Q. Okay. Do you dispute that as far as what youve come to

20 learn as an investigator for many years?

21 A. Im not -- I dont know.

22 Q. You dont know. You dont dispute it, though?

23 A. I dont dispute it, no.

24 0. Okay. There was evidence of a second donor in the rape

5 25 kit; youre aware of that, right?

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i A. I am now, yes.

5 2 0. And youre aware of the regulations and procedures set out

3 in the Project 400 protocol? You had a chance to look at

4 that, correct?

5 A. Correct.

6 Q. And youre aware that the protocol and procedures desire

7 that unknown donor samples that exist in the rape kits be

8 learned of or explored so they can be excluded in the DNA

9 analysis, correct?

iO A. Correct.

ii 0. Youre aware of it, that is, a procedure that is outlined

12 in the rules and regulations of Project 400, correct?

5 13 A. Correct.

14 Q. And youre also aware that that was requested by both BODE

15 Lab as well as the Michigan State Police to conform with

16 the Project 400 procedures and regulations, right?

17 A. Yes.

i8 0. And that was not done in this situation, in this case, was

i9 it?

20 A. No.

21 Q. And things are different, right?

22 A. Yes.

23 Q. Than they were.

24 Okay. How many other cases, if you know, is

5 25 Rosalind Means not gonna be testifying in or that she was

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Si involved in that are coming up with the Project 400, if

2 you know? If you know.

3 MS. HAGANAN-CLARK: Objection to the relevance

4 of that.

5 MR. KOMORN: She is the officer-in-charge. I

6 just want to know if she -—

7 MS. HAGANAN-CLARK: Its still got to be

8 relevant.

9 THE COURT: Sustained. I dont believe thats

10 relevant to anything in this case.

ii Q. (By Mr. Komorn, continuing): You are -- youre aware that

12 the CODIS system came into effect in what year, if you

5 13 know?

14 A. I believe it was late 1997, early 1998.

15 Q. Did you have any -- when you were investigating -- when

16 you were an investigator in the other unit back in 1997,

17 are any of the cases that you were involved in, did they

18 have rape kits that were not submitted to the Michigan

19 State Police?

20 A. I dont recall that.

21 Q. Have all of the cases that you have been involved in since

22 working in the Sex Crime Unit for all those years, have

23 all of them been?

24 A. No, they havent, not all of them.

5 25 Q. So some of the cases that you have been involved in would

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i be part of the 11,000 that have not been?

5 2 A. Could be. Could be. I have been there a long time.

3 0. You were there a long time and you were part of an

4 investigative team that saw that go on, right? If you

5 were aware that your DNA kits or rape kits were not being

6 submitted to the lab, right?

7 A. Yes.

8 0. And you didnt do anything about it, did you?

9 A. I am not a boss.

10 Q. You didnt say anything to the boss and you didnt go to a

ii superior and let them ——

i2 A. Our bosses knew what our protocol was.

5 13 0. Okay. And you continued to work for them -- did you

14 approve of their protocol?

15 MS. HAGANAN-CLARK: Objection again. Whats the

16 relevance of what she approved of?

17 THE COURT: She is --

18 MR. KOMORN: Well she is offering her statement

19 that everything has changed. And I want to know if --

20 what has changed cause theres already been instances

21 where there has not been change.

22 So Im ——

23 MS. HAGAMAN-CLARK: I dont object to those

24 questions, but thats not the question that he asked.

5 25 THE COURT: Thats not what you asked her. You

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Si asked her if she approved of it.

2 It doesnt matter if she approves of it. Shes

3 a police officer. She is not a commander. She has no say

4 in it, so I think its a totally irrelevant question.

5 0. (By Mr. Komorn, continuing): And how long were you in

6 that unit for?

7 A. Since 1997, so its gonna be 17 years —— no, 15 years, Im

8 sorry, in November.

9 Q. You were in that unit, though, the 16 and under known

10 participants?

ii A. I was in there from 1997 til I believe maybe 2001, 2002.

12 Then I went to the unknown squad, then they stopped

5 13 squads. Now squads are back.

14 Q. How long -- so from 2001 to 2002 when you were in the

15 unknown squad?

16 A. You know what, I dont recall.

17 Q. And we know that unit as well as rape kits that you were

18 involved in, involved with investigating, would make up

19 the 11,000 that were --

20 A. Its possible.

21 Q. -- unsubmitted.

22 When did the lab stop operating -- or when did

23 the unit stop operating? You said it was a period of time

24 where it was not and then reopened again.

5 25 When was that, if you know?

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1 A. I didnt say that.

5 2 Q. Okay. Maybe I misunderstood you.

3 You were in the --

4 A. They got rid of squads.

5 Q. Squads?

6 A. Yes, squads where everybody handled whatever. Whatever

7 cases came in, they were assigned. They didnt go to

8 certain people.

9 Q. And how is it now?

10 A. Now its back to there is three different squads that we

ii have. We call them squads.

12 Q. Okay.

13 MR. KOMORN: I have nothing further. Thank you.


15 THE COURT: Thank you, officer. You may step

16 down.

17 (The witness was excused at 12:14 P.M.)

18 MS. HAGANAN-CLARK: Judge, we did have a

19 stipulation to put on the record and that is that prior to

20 February 17, 1997, the defendant had previously been

21 convicted of a felony and was ineligible to possess a

22 firearm.

23 THE COURT: Is that a correct stipulation?

24 MR. KOMORN: Thats a correct statement.

5 25 THE COURT: Ill accept that stipulation.

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. 1 MS. HAGANAN-CLARK: Judge, I have one further

2 witness that is flying in this afternoon and will be

3 available tomorrow morning at 9 A.M.

4 THE COURT: Okay. Then we will recess for the

5 day.

6 This trial will be over —- you will have the

7 evidence, all the evidence to decide this case, tomorrow.

8 Were sure of that. This witness will not be a long

9 witness, I believe. And then, of course, the defense may

10 put on any witnesses theyd like.

11 So we do have -- we will be finish, we believe,

12 with this case tomorrow. Im sorry to take up -- giving

5 13 you a free afternoon off, but have a nice day and well

14 see you tomorrow morning at 9:15.

15 (The jury was excused at 12:10 P.M.)

16 THE COURT: Could I see counsel up here, please?


18 and counsel.)

19 THE COURT: Okay. We just have one short motion

20 to take up and that is the prosecutors motion to use the

21 previously -- previous -- defendants previous conviction

22 in 2005 for receiving and concealing stolen property, if

23 the defendant does in fact testify.

24 Did you have anything you wanted to add to that?

25 Ms. HAGANAN-CLARK: Judge, just that its -- I

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i

made the motion prior to defendants opening statement.

2 And now that hes made his opening statement, he made it

3 very clear that he intends to make this a credibility

4 contest between the complainant and between the defendant.

5 So I think it makes it even more relevant.

6 MRE 609 indicates that evidence of a conviction

7 of a crime can be used for impeachment under certain

8 standards. And I believe that the conviction that the

9 defendant has from 2005 falls within that 10—year window

10 and contains an element of theft and that its receiving

ii and concealing stolen property. And that I do believe

12 that its not overly prejudicial.

S 13 This is not an armed robbery. This is not an

14 assaultive crime of theft. And the jurors should be able

15 to evaluate that same piece of evidence as they would be

16 anything else. There would be no question that if Audrey

17 Polk had a conviction for receiving and concealing stolen

18 property they would be screaming about getting it in.

i9 So I do believe that we have the legal basis to

20 do so and I would ask the Court to allow to impeach him

21 with that if he chooses to testify.

22 THE COURT: Do you want to say anything else?

23 MR. KOMORN: Just that whether I would scream

24 for it, to get it in or not, its really not really the

25 issue. The issue is whether or not the rules allow for

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Si it.

2 It is inherently not allowed unless the certain

3 circumstances provide for it. Its got to be within 10

4 years of the date by which someone is -- within 10 years

5 that of the date that theyre testifying to, not 10 years

6 afterwards. This incident occurred after the period of

7 time by which the accused would be testifying.

8 The issues of what took place at that time are

9 what he is gonna testify to. And the only reason that the

10 case did not happen earlier, as weve learned by their own

ii admission, is because of the police officers neglect,

i2 their failure take any action whatsoever. Now some period

5 13 of time afterwards they want to bring a case iS years

14 later and try to use things that happened many years

15 afterwards against the accused at the time that it

16 happened. That is patently prejudicial, well beyond any

17 probative value that this evidence would have, and Id ask

18 you not to allow that to be used.

19 Thank you.

20 THE COURT: Okay. Well Ive looked at several

21 of the cases on this, and I believe that this is not -- if

22 it were a different charge than receiving and concealing

23 stolen property, I might agree that this could be more

24 prejudicial than probative. But because its a receiving

5 25 and concealing stolen property, its not a violent crime,

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Si and I dont think is more prejudicial than probative.

2 And the truth -- youre arguing about these

3 dates, but really if the defendant had been picked up on

4 them in 1997 or 1998, then of course he would still have a

5 felony on his record becausehe had a 94 B&E. So there

6 would still be something to impeach him. So its really

7 not unduly -- the time thing isnt, doesnt really work in

8 his behavior —- on his behalf.

9 So Im gonna allow you to use that.


ii THE COURT: And I will see you tomorrow morning

12 9:15.

5 13 MS. HAGAMAN-CLARK: Thank you, judge.

14 (The proceedings were adjourned at about 12:22 P.M.)

15 — — —

16

17

18

19

20

21

22

23

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1 CERTIFICATE

*2


4

S COUNTYOF WAYNE

6

7

8 I, Betty Sanders, CSR—2931, and Official Court



ii hereby certify that the foregoing pages 1 through 123,


13 the proceedings and testimony taken in the matter of the

14 People of the State of Michigan versus Antonio Jackson, on

15 Wednesday, May 2, 2012.

20 ~ySanders,SR-2931


22

23

• :: DATED: This 9th day of June, 2012.

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3 you God?


5 THE COURT: Thank you. Please have a seat right

6 there.

7 Excuse my voice.

8 ANTONIO JAcKSON,



11 as follows:


13 BY MR. KOMORN:

14 Q. Sir, please state your name for the record.

15 A. Mr. Antonio Jackson.

16 Q. And how old are you?

17 A. Im 38.

18 Q. Where were you -- where do you grow up?

19 A. Detroit.

20 Q. And what kind of educational background do you have?

21 A. I went to 11th grade and I went back to get my G.E.D., in

22 99. And I went to Specs Howard School of Broadcasting,

23 graduated from there and I been a professional

24 videographer every since.

25 Q. Okay. What is your history of employment, if any?

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1 A. I worked for AAA Quality Roofing for like five years.

2 worked Midwest Monument Company for eight years.

3 Q. What do they do?

4 A. Make headstones.

5 Q. Okay. What else, if any?

6 A. And I do professional videographer where I do weddings,

7 highlight films, sports events.

8 Q. Okay. Are you single?

9 A. No, Im married.

10 Q. How long have you been married for?

11 A. Five years.

12 Q. How long have you known your wife for?

• 13 A. Eleven years.

14 Q. Do you remember when you met her, what year it was?

15 A. Ninety-nine.

16 Q. Okay. And Im gonna hand you a proposed exhibit Defense

17 Exhibit 15.

18 Do you recognize the people in that picture?

19 A. Yes.

20 Q. Who are they?

21 A. Its me and two friends from Atlanta.

22 Q. Anyone else? Is there -- and when was that picture taken,

23 if you know?

24 A. April 18, 1997.

25 Q. And does the picture as you are depicted in there

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1 accurately reflect how you looked back in 1997?

2 A. Yes.

3 MR. KOMORN: Judge, I would move to --

4 MS. HAGANAN-CLARK: No objection.

5 MR. KOMORN: No objection? Okay.

6 THE COURT: It was Defense Exhibit 15?

7 MR. KOMORN: Correct.

8 THE COURT: Thank you. Its admitted.

9 Q. (By Mr. Komorn, continuing): And I would hand you defense

10 exhibit, Proposed Exhibit 14.

11 Who is that?

12 A. Its me.

13 Q. Okay. Do you know when it was?

14 A. April 18, 1997.

15 Q. Okay. What day?

16 A. April 18th.

17 Q. Okay. And does that picture accurately reflect how you

18 looked in 1997?

19 A. Yes.

20 MR. KOMORN: Judge, I would move to have that

21 admitted as well.


23 MS. HAGAMPiN-CLARK: No.

24 THE COURT: Its admitted.

25 Q. (By Mr. Komorn, continuing): How tall are you?

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1 A. Im five six and some inches. I usually just say five

2 seven.

3 Q. Back in 1997, do you recall how much you weighed?

4 A. Yeah, it was like 165.

5 Q. Okay. All right. Youve heard testimony of Audrey Polk,

6 her sister and her brother -- I mean her son.

7 Did you rape Audrey Polk?

8 A. No, I did not.

9 Q. Do you know Audrey Polk?

10 A. I know her as Drey-Drey.

11 Q. Okay. And how did you know her as that?

12 A. Thats the name she gave me.

13 Q. When?

14 A. When we met on the 17th of February.

15 Q. And where did you meet her?

16 A. In the Waigreens parking lot on Plymouth and Evergreen.

17 Q. Okay. And will you explain how it was that you met with

18 her or came to meet her?

19 A. I just seen her walking through the parking 1st.

20 Approached her in my van, asked if I could talk to her for

21 a little while. She told me to get out the van.

22 Q. Was there anybody with you at the time?

23 A. Yes.

24 Q. Who was that?

25 A. Maurice Allen.

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. 1 Q. Okay. And where in the parking 1st, if you know? Was it

2 close to the store? Was it —-

3 A. It was close to the store.

4 Q. Okay. And so you said you pulled up to her?

5 A. Asked her if I could speak with her for a little while.

6 Q. And she didnt run away?

7 A. No.

8 Q. What did you do?

9 A. She asked me to get out the van, so I got out the van.

10 Q. And what did you do then?

11 A. Got out the van, asked her her name. She told me it was

12 Drey-Drey and then we talked. I told her my name was

13 Hakeem. And she said, I just want you to know there

14 wont be no bending it without benefits.

15 Q. And what did you take that to mean?

16 A. Well it kind of shocked me and I was thinking like, wow,

17 shes blunt, like up front.

18 Q. Before she had mentioned that, what had you been talking

19 about, if anything?

20 A. Just getting to know her.

21 Q. Okay. And after she mentioned the no bending it without

22 benefits, what did you do or say?

23 A. I just -- I paused for a moment and then I, urn, said,

24 Well I mean I got benefits. And she asked me for my

25 number, so I gave her my number, my pager number and my

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. 1 cell phone number.

2 Q. Okay. And what, if anything, happened after that?

3 A. I got back in the van —— well actually I went to the van,

4 got a pen and pulled -- I fumbled through my pockets for

5 something to put my number on. I put my number on the

6 paper, gave it to her and I got back in the van and left.

7 Q. Okay. And do you recall where you went?

8 A. I went back to Maurice Allens house.

~ Q. And approximately how long were you there for?

10 A. About two or three hours.

11 Q. Do you recall around the time it was that you first

12 encountered the complainant?. 13 A. Im not exact on the time cause it been so long, but I

14 know it was after 2:30 and it had to be before 5:00.

15 Q. Okay. And after you left the Walgreens, you went to

16 Maurice Allens house, do you recall how long were there

17 for?

18 A. Maurice house about three -- two, three hours.

19 Q. And where do you go after that? Anywhere?

20 A. Picked my daughter up from my moms and I picked a friend

21 of mine up name Ayanna to do her hair. And we went to get

22 something to eat and then we went back to my house.

23 Q. Okay. What time was it when you arrived back to your

24 house?

25 A. Probably like 7:30, 8:00.

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1 Q. Okay. And what did you do when you got back to your

2 house, if anything?

3 A. Just sat around, talked, watched her braid my daughters

4 hair. I dozed off for a little while and I was awoke by a

5 phone call.

6 Q. Was it a phone call?

7 A. Yes.

8 Q. To your cell phone?

9 A. Yes.

10 Q. And approximately what time was it, if you know?

11 A. It was good 12:45, 1:00.

12 Q. And who was it who called you?

13 A. Drey-Drey. Ms. Polk.

14 Q. And what did she say?

15 THE COURT: Is this A.M. or P. M., 12:30?

16 THE WITNESS: Its A.M.

17 THE COURT: A.M.?



20 Q. (By Mr. Komorn, continuing): What did she say?

21 A. Asked me if I still wanted to get together.

22 Q. And you said what?

23 A. I said, Yeah. Sure.

24 Q. And who spoke next, and if so what did they say?

25 A. And she asked me what kind of benefits was I gonna supply.

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1 Q. And you said what?

2 A. I just said I had like $500.

3 Q. Okay. And then what happened?

4 A. Then after I finished talking to her, she gave me an

5 address.

6 Q. What was that address?

7 A. 12037 Evergreen, if Im not mistaken.

8 MR. KOMORN: I should have had this marked

9 before I started.

10 (Defendants Proposed Exhibits 18, 19, 20 marked

11 for identification.)

12 Q. (By Mr. Komorn, continuing): Okay. Im gonna hand you

• :: whats been marked as Defense Proposed Exhibits 18, 19 and

15 Will you take a look at those and answer whether

16 or not you recognize that location?

17 A. Yes. Yes.

18 Q. Whats in that -- whats in the picture?

19 A. Its a white house with an Armour Guard bars.

20 Q. Okay. Is that house familiar to you?

21 A. Yes.

22 Q. Why?

23 A. Cause this is the house that -- of the addresswhere I met

24 her.

25 Q. Okay. When you say met her, meaning what?

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1 A. Meaning after I got off the phone and took my shower and

2 went over there, this is the house where I pulled up at.

3 Q. Okay.

4 A. This house matches the addressthat she gave me.

5 Q. Okay. And do you remembergoing to that house?

6 A. Yes.

7 Q. Do the pictures -- is whats depicted in the pictures

8 accurately reflect the house that you went to?

9 A. Yes, except for it was no cars in the driveway.

10 Q. Okay. And thats for all three of the proposed exhibits?

11 A. Yes.

12 THE COURT: Whats that address again?

13 THE WITNESS: 12037 Evergreen.


15 MR. KOMORN: Your Honor, Id move to admit.

16 MS. HAGAMAN-CLARK: No objection.

17 THE COURT: This is 18, 19 and 20?


19 THE COURT: Those are admitted.

20 Q. (By Mr. Komorn, continuing): And what happened?

21 A. When I pulled in the driveway, she met me at the side door

22 and she kind of gave me the hush signal, be quiet. And we

23 walked up like three stairs, passed the living room.

24 It was someone sleep on the couch in the living

25 room and we went to the first bedroom to the front of the

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1 house.

S 2 Q. Okay. What happened when you got there?

3 A. It was kind of dark in the house, but when we got in the

4 house she immediately proceeded to unfasten my pants.

5 And I thought that we was gonna, you know, go to

6 a room or something. But, anyway, she proceeded to

7 unfasten my pants and she gave me kind of like an oral

8 sample, I guess, and got my penis erect. And then she

9 bent over a full—size bed. It was a full—size bed that

10 she bent over and I pulled her panties to the side from

11 the back cause she had on a T—shirt and some panties. I

12 pulled her panties to the side from the back and I entered

13 her. I ejaculated.

14 And when I got up, I said I was going to the

15 bathroom. And when I proceeded to go to the bathroom, I

16 just pulled my clothes up and went out the side door and

17 left.

18 Q. Okay. Were there any kids in the bedroom when you were in

19 there?

20 A. No.

21 Q. I misunderstood. Did you say you were in that bedroom?

22 A. Yes.

23 Q. And the lights were out when you were in there?

. :: Q. Okay. Did you -- was there any talking before or after?

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1 A. When I got there, no. We didnt converse at all.

S 2 Q. Okay. Did —- was there a time when she asked for the

3 money?

4 A. No. She should have asked before we had sex but she

5 didnt.

6 Q. Okay. And why was it that you left?

7 A. Because, for one, I, um -- I was kind of skeptical because

8 we was in that house and it was kind of gloomy or

9 whatever. And once I ejaculated, I was done. It was no

10 need to be there anymore.

11 Q. Okay. Did you have any interactions with her afterwards?

12 A. No. She called me like two times after that I guess to

5 13 see what happened.

14 MS. HAGANAN-CLARK: Objection. Calls for

15 speculation.

16 THE COURT: Yes. Ill just strike the guess

17 part.

18 THE WITNESS: Okay. She called me twice after

19 that, that night.

20 Q. (By Mr. Komorn, continuing): That night?

21 A. Yeah.

22 Q. How soon afterwards?

23 A. I guess when she realized I was gone.

24 MS. HAGAMAN-CLARK: Objection. I guess.

25 Speculation.

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1 THE WITNESS: Im sorry. When she realized I

2 was gone.

3 Q. (By Mr. Komorn, continuing): Do you know how long -- do

4 you know approximately what time it was that this

5 happened? You said you got the call at 12:45ish?

6 A. Yeah.

7 Q. 12:40 or something, right?

8 A. 1:00, 12:40.

9 Q. How long did it take you -- you said you showered?

10 A. Yes.

11 Q. And you went over there, correct?

12 A. Yes.

13 Q. Do you have any idea what time you arrived there?

14 A. I cant recall exactly, but I know it was not no later

15 than 1:30 when I pulled in the driveway.

16 Q. And then how long were you there for?

17 A. Probably 20 —- 20 minutes.

18 Q. Okay. And so that would have meant that you left

19 somewhere around 2:00 A. M.?

20 A. It was about 1:50, something like that, yeah.

21 Q. Okay. And then the calls that you received from her were

22 when?

23 A. It was -- by the time I pulled up into my driveway, I had

24 a missed call already. And then the phone rung again and

25 I kind of figured it was her, so I powered my phone off

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1 and went into the house.

S 2 Q. Okay. Did you have any contact with her after that?

3 A. No.

4 Q. Ever talk to her again?

5 A. No.

6 Q. Did you leave town after that?

7 A. No.

8 Q. Where have you been living the last 15 years?

9 A. In Detroit.

10 Q. Okay. You said you had some kids?

11 A. Yes.

12 Q. How many?

13 A. Five total.

14 Q. Are they all yours biologically?

15 A. Yes -- no.

16 Q. Some are and some are whose?

17 A. Some mine, some is my wife.

18 Q. Okay. They all live with you?

19 A. Not anymore. They did.

20 Q. All right. Ms. Polk says that you sexually assaulted her.

21 Is that true?

22 A. Never.

23 Q. Ms. Polks sister says that she was in the room when you

24 sexually assaulted her sister.

25 MS. HAGAMAN-CLARK: Objection. That is not what

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1 Ms. Gore testified to. Its a mischaracterization.

S 2 And he cant comment on what somebody else has

3 already testified to.

4 MR. KOMORN: I can ask him if he heard it and if

5 he -- if its true. Its relevant whether hes heard it

6 or not, if he chose not to hear it at the time, didnt

7 hear it.

8 THE COURT: Thats not relevant.

9 The objections sustained.


11 Q. (By Mr. Komorn, continuing): Were you ever at that house

12 on Meyers?

5 13 A. No.

14 Q. Did you break into it through a window?

15 A. No.

16 Q. Did you sexually assault Ms. Polk as she stated?

17 MS. HAGAMAN-CLARK: Objection. Its been asked

18 and answered.


20 MR. KOMORN: I have no further questions, Your

21 Honor.

22 MS. HAGAMAN-CLARK: May I?

23 THE COURT: Yes.

24

•25

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1 CROSS-EXAMINATION

2 BY MS.

3 Q. Good morning, Mr. Jackson.

4 A. Good morning.

5 Q. Mr. Jackson, have you been convicted of any crimes

6 involving theft or dishonesty within the last ten years?

7 A. Sure.

8 Q. And, Mr. Jackson, when you are arrested, you use an alias;

9 isnt that right?

10 A. No.

11 Q. You have never used an alias when youve been arrested?

12 A. I have but I didnt when I was arrested in --

5 13 Q. What is the name of the person that you use when youre

14 arrested?

15 A. Maurice Allen.

16 Q. And Maurice Allen is a friend of yours, right?

17 A. Correct.

18 Q. Now you indicated to this court that you met Ms. Polk at a

19 Walgreens; is that right?

20 A. Yes.

21 Q. And she told you immediately off the bat if you want to

22 bend it you better come with benefits, right?

23 A. Yes.

24 Q. And you were okay with that?

S 25 A. Yes.

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1 Q. You were gonna pay a prostitute for sex?

2 A. Yeah.

3 Q. You go to a house that you have never been to before,

4 right?

5 A. Yes.

6 Q. You have no idea if this is a potential robbery, right?

7 A. Yes.

8 Q. You have no care for your own safety when you go in,

9 right?

10 A. I did.

11 0. Well what did you do to prepare for your own safety then?

12 A. I slowly walked up to the door that she met me at.

~ z :.t~~i you went inside, right?

15 0. And you have no idea if there were armed people inside

16 that house, right?

17 A. Exactly.

18 Q. You could have been beaten, right?

19 A. Yes.

20 Q. You could have been killed?

21 A. Yes.

22 Q. But you just casually walk up to this house and go inside,

23 right?

24 A. I did.

5 25 Q. And you indicate to us that you had sex with Ms. Polk,

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1 right?

5 2 A. Yes.

3 Q. You didnt wear a condom?

4 A. No.

5 Q. And you are fully aware of gonorrhea?

6 A. Yes.

7 Q. You are fully aware of genital warts?

8 A. Yes.

9 Q. You are fully aware of AIDS?

10 A. Yes.

11 Q. And HIV?

12 A. Yes.

O ~ : ~15 Q. Chlamydia?

16 A. Yes.

17 Q. You knowingly exposed your penis in that woman who you

18 believed to be a known prostitute and didnt use a condom?

19 A. Not the first time.

20 0. Okay. You didnt use a condom at all, did you?

21 A. No, I didnt.

22 0. You told us that your children live with you, right?

23 A. Yes.

24 Q. So did you leave them home alone when you went on this

5 25 rendezvous with Ms. Polk?

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1 A. No, the female Ayanna Coleman was at my house.

2 Q. Was that your girlfriend?

3 A. No, she wasnt.

4 Q. So you left another woman at your house to watch your

5 children while you go off and have sex with a prostitute,

6 right?

7 A. Yes.

8 Q. Now you indicated -- let me ask you this.

9 When you were arrested on October 19, 2011,

10 Officer Turner took a buccal swab from you, right?

11 A. Yes, she did.

12 Q. Swabbed the inside of your cheek or you actually did that,

S~~:A.

15 Q. You saw her take that sample, seal it up, right?

16 A. Yes.

17 Q. She also asked you a bunch of questions, right?

18 A. Yes, she did.

19 Q. She asked you what your height was, right?

20 A. Yes.

21 0. And you told her at that time that you were five eight,

22 right?

23 A. No.

24 Q. Okay. So when she put that down, she was mistaken?

25 A. Maybe. Cause I never said I was five eight.

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1 Q. Okay.

S 2 A. The tallest I ever said I was is five seven.

3 Q. Did you ever tell her that you lived at 11729 Minock in

4 the City of Detroit?

5 A. Yes.

6 Q. Did you tell her that you had lived there for 11 years?

7 A. Yes.

8 Q. Did you tell her that your phone number was 313-346—3419?

9 MR. KOMORN: Objection, Your Honor.

10 THE WITNESS: At that time, yes.

11 Q. (By Ms. Hagaman—Clark, continuing): Did you tell her

12 that?

5 13 THE COURT: Whats your objection?

14 Q. (By Ms. Hagaman-Clark, continuing): Your mother was

15 Barbara Allen?

16 A. Yes.

17 Q. Did you tell her that your father was deceased?

18 A. I dont know if she asked me all that.

19 Q. Did you tell her that you had a sister by the name of is

20 it Caprice Dayton?

21 A. Drayton.

22 Q. Drayton. Thank you for correcting me.

23 Did you tell her that?

24 A. Im not sure.

5 25 0. Did you tell her that you had a brother by the name of

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1 Michael Allen?

5 2 A. If she said I did.

3 Q. Did you tell her that you have a daughter by the name of

4 Jenae Jackson?

5 A. Yes.

6 Q. A spouse by the name of Lisa Jackson?

7 A. Yes.

8 Q. That you worked for -- is it AAA Roofing?

9 A. Yes.

10 Q. That youre a baptist?

11 A. Yes.

12 Q. Told her all that stuff, but you didnt tell her that you

14 A. ::e five eight, right?

15 Q. Now she also asked you questions at that time, didnt she?

16 A. Yes.

17 Q. She advised you of your Miranda Rights, right? You had

18 the right to remain silent?

19 A. Yes.

20 Q. To get an attorney; but you chose to speak with her,

21 right?

22 A. Yes.

23 Q. And you were asked the question: Do you know somebody by

24 the name of Audrey Polk? Right?

5 25 A. Correct.

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1 Q. And you said, No, I have never heard that name, I dont

5 2 know anything about that person, right?

3 A. Correct.

4 Q. And you dont know anybody that lived on Meyers either,

5 right?

6 A. Correct.

7 Q. And you signed that statement?

8 A. Correct.

9 Q. Is this the only prostitute that youve stiffed over the

10 years?

11 A. No.

12 Q. So there have been lots of women that youve done this

5 13 with?

14 A. Not lots; just one.

15 Q. And you didnt think to mention that?

16 A. To?

17 Q. To the officer that, hey, back in 1997 when were alleging

18 that this incident happened, the night that were alleging

19 this incident happened, you didnt pay a prostitute and

20 shes probably pretty upset about it.

21 You didnt bother to tell her any of that, did

22 you?

23 A. Well I was in total shock when she told me the charges

24 that I was being charged with knowing I have never, ever

5 25 in my life and would never take from a female.

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1 Q. Can you just answer my question?

S 2 Why didnt you tell the officer about this

3 purported consensual pros -- act of prostitution?

4 A. Because that didnt cross my mind until I seen her at the

5 preliminary.

6 Q. Oh, okay.

7 And these -- this address on Evergreen, you

8 never provided that information to the police, did you?

9 A. I didnt have an address at that time. I had go back by

10 the house.

11 Q. But sometime before Monday you went back by the house,

12 right?

5 13 A. No, I stayed in jail for two months.

14 Q. Okay. You didnt stay in jail on Monday, did you?

15 A. What you mean?

16 Q. You got out of jail in January, right?

17 A. Was it January? I got out in December.

18 Q. Okay. So from December until Monday --

19 MR. KOMORN: Judge, what relevancy is -- its

20 not his obligation to provide information to the police.

21 He was -- he was read his Miranda Warnings. He exercised

22 his rights.

23 Why are we talking about this?

24 THE COURT: So youre saying its not relevant?

5 25 MR. KOMORN: Its not relevant.

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1 THE COURT: Overruled.

S 2 Q. (By Ms. Hagaman-Clark, continuing): The first weve heard

3 about this address on Evergreen was Monday during opening

4 statement, isnt it?

5 A. Well thats the first time you heard about it but I told

6 my attorney immediately.

7 Q. All right.

8 MS. HAGANAN-CLARK: Mr. Jackson, I dont have

9 any further questions.

10 MR. KOMORN: Nothing, Your Honor.


12 Thank you, Mr. Jackson. You may step down.


14 THE COURT: Do you wish to call any additional

15 witnesses?

16 MR. KOMORN: One second, judge.

17 We did have a witness, judge, but were gonna

18 waive his -- waive calling him. And the defense would

19 rest at this time.

20 THE COURT: Okay. Any rebuttal?

21 MS. HAGANAN-CLARK: None necessary.

22 THE COURT: Okay. Ready for closing argument?

23 MS. HAGAMAN-CLARK: I just need one second to

24 sort of put everything together and get it set up, if I

5 25 could have.

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1 THE COURT: Okay. Well just take a five minute

2 break, ladies and gentlemen, and bring you right back out

3 for closing argument.

4 (The jury was excused to the jury room at 10:08

5 A.M.)

6 THE COURT: Ill be back in just one second.

7 (Of f the record at about 10:09 A.M.)

8 THE COURT: For the record, you did give me a

9 list of jury instructions that you wanted, Ms. Clark. And

10 I wanted you to know that I am giving -- weve gone over

11 all instructions, my research attorney and I, and we are

12 giving all of those instructions.

13 MS. HAGANAN -CLARK: Okay.

14 THE COURT: And we couldnt find any others that

15 might be appropriate.

16 Are you aware of any jury instructions you would

17 like, Mr. -—

18 MR. KOMORN: 20.27 gonna be submitted?

19 THE COURT: I dont have them memorized.

20 MR. KOMORN: Im sorry.

21 MS. HAGANAN-CLARK: Is that -- I assume thats

22 consent?

23 Is the Court gonna give consent?

24 THE COURT: Is consents in yours?

25 MS. HAGAMAN-CLARK: Consent is not in mine.

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1 Your research assistant and I spoke about consent this

5 2 morning, and I indicated to her that I believed it was

3 probably gonna be relevant. So she may or may not have

4 pulled it.

5 THE COURT: Okay. Well give that one. Thats

6 23 what, point what?

7 MR. KOMORN: 20.27.

8 THE COURT: 20.27, okay. Ill make sure thats

9 in there.

10 Anything else?

11 MR. KOMORN: I would like to see them. I didnt

12 have any conversations with anybody. I didnt have--

5 13 THE COURT: Well Im not saying Im not gonna

14 let you look at them. Ill let you look at them.

15 Im gonna give you both a copy of them. I have

16 a copy when I read them for the jury. Ill give you both

17 a copy, you could go through them as I read them if you

18 wish.

19 And, of course, if I make any mistakes I will

20 ask you if there are any things you want to change and you

21 can come approach the bench. But, yeah, you can see them.

22 You cant see them this second because shes putting the

23 last one in the book, but you can see them.

24 MS. HAGAMAN-CLARK: Ive already seen them this

5 25 morning, so Im all set.

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Si Thank you.

2 THE COURT: Thanks.

3 Yes, consent is definitely a part of the

4 instructions.

5 Anything else? Your machines all ready?

6 MS. HAGAMAN-CLARK: Im ready to go.

7 THE COURT: Okay. All rise for the jury.



10 gentlemen.

11 And you may proceed with your closing argument.


5 13 Good morning.

14 THE JURORS: Good morning.

15 MS. HAGANAN-CLARK: Ladies and gentlemen of the

16 jury, let me first start by saying thank you for your time

17 and for your patience in this matter. Our system would

18 not work without you here. And I know that it is an

19 inconvenience and that it is a drain whether its from

20 taking time from your families, from your jobs, just from

21 your lives, to be here with us and for that we thank you.

22 This is the People of the State of Michigan

23 versus Antonio Jackson. February 17, 1997, at 9407 Meyers

24 in the City of Detroit, sometime between 3:50 and 4:10

5 25 A.M., Audrey Polk was sexually assaulted in her own home.

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Si The defendant in this case is charged with four

2 counts. Count One is home invasion in the first degree,

3 and there are two different theories of how hes guilty of

4 that. Either he broke and entered by breaking the window

5 and coming in, or he entered without owners permission.

6 And well go over those elements a little more a little

7 later.

8 Count Two, criminal sexual conduct in the first

9 degree. There are also two theories of criminal sexual

10 conduct in the first degree. Both of those theories

11 require a penetration. Thats not different. What is

12 different is that he was either in the commission of a

5 13 felony, that being the home invasion, felon in possession,

14 felony firearm, or that he was armed with a weapon.

15 Either/or.

16 Hes also charged in Count Three with being a

17 felon in possession of a firearm. That simply means that

18 he had previously been convicted of a felony and was

19 ineligible to possess a firearm, and that he did possess a

20 firearm at the time he committed these crimes.

21 And, finally, felony firearm. Dont be

22 confused. They do sound similar but they are different

23 crimes.

24 Felony firearm goes to the commission of a

5 25 felony while in possession of a handgun. And any of those

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Si felonies could be the home invasion first degree, the

2 criminal sexual conduct first degree, or the felon in

3 possession.

4 We know that this happened at 9407 Meyers in the

5 City of Detroit. There is an aerial view of that location

6 to give you an orientation of where this particular

7 apartment building is located. This is a picture of the

8 neighborhood, specifically the apartment that is in

9 question in this case. This is just another close-up view

10 of the apartment. You can see it there. You can see the

11 walkway.

12 We know that the front door is on the right

5 13 which would be the north side of the apartment. And we

14 know that the windows in this apartment open as clearly as

15 shown in this picture. And Ms. Gore testified that the

16 window in the front by the door also opened in a similar

17 fashion. Clearly big enough for somebody to get in.

18 The question that you really have to decide in

19 this case, after having heard the defendant testify this

20 morning, is who is telling the truth. This truly is a he

21 said, she said. And you have to decide whether or not Ms.

22 Polk is lying to you or is the defendant lying to you. I

23 submit to you that the evidence has shown that the

24 defendant is the one who has not been truthful here today.

5 25 The judge is gonna give you instructions about

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S1 determining credibility. And its a good instruction. It

2 says something to the effect of did the witness make an

3 honest and reasonable effort to answer the questions, or

4 did they evade the questions, want to answer their own

5 question, or did they make an honest and reasonable effort

6 to answer to the best of their ability?

7 Lets give you some other things that I think

8 that you should consider when you go back to that room to

9 begin your deliberations, questions that you should ask

10 yourself in determining whether or not Audrey Polk has

11 told the truth.

12 First, does she have a motivation to lie in this

S 13 matter? This case happened many, many years ago. And I

14 submit to you that there is no motive for her to lie. All

15 these years later, what could she possibly have to gain?

16 Has she been consistent in this about a one-time story?

17 We know that shes told a number of people over the years

18 about what happened. And its up to you to decide whether

19 or not she has been consistent, whether or not she has

20 told the same set of facts over and over and over, or

21 whether or not her facts are just falling apart and she

22 has no idea what happened. I submit to you that she has

23 been consistent.

24 What does the medical evidence say to you? The

5 25 medical evidence in this case supports what Audrey Polk

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says happened and not what the defendant says happened.

2 The DNA evidence in this case clearly supports her version

3 of the events and the events leading up to the assault.

4 This was an immediate disclosure. This wasnt

5 something where she got to sit around and call a couple

6 days later and say, oh, yeah, I was a victim of sexual

7 assault. There was no delay. She reported it as soon as

8 it happened.

9 You also have eyewitness testimony in this case

10 that corroborates what the victim said. Now think about

11 that. Sexual assault is not a crime that usually happens

12 when people are watching. But in this case, you actually

5 13 have people who saw this incident happen and they

14 testified consistent with the victim.

15 So lets start with motive to lie. I submit to

16 you that she didnt have a motive to lie, and there has

17 been not one shred of credible evidence that she would lie

18 about this matter. Think about what it is that she had to

19 do, if you really believe that the defendant had

20 consensual sex with her and stiffed her out of $500.

21 First of all, $500 in 1997 is ridiculous. But if you

22 really think that that happened, you should find the

23 defendant not guilty. But, quite frankly, that is not the

24 truth. Its not the truth.

5 25 She had to talk to police officers. She had to

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. 1 go to the hospital and she had to undergo not just a

2 regular pap smear, not just a regular pelvic exam, but she

3 was at the hospital for about three hours. If you look at

4 the medical records, and if you want to see them all you

5 have to do is write a note out, send them in to you and

6 you can look through them.

7 You will see that she wasnt even discharged

8 until after 10:00 in the morning. And she had to have

9 legs in a stirrups, she had to get naked again with

10 another man that she doesnt know. And Dr. Manos seems

11 like a really nice guy, but having just been sexually

12 assaulted thats the last thing that you want to be going

5 13 through is to be having somebody look at every crevice of

14 your body and digging around in your vaginal area, as well

15 as your rectum, taking samples, pulling pubic hairs. Who

16 goes through that just because they say that they were

17 stiffed out of $500 for an act of prostitution which makes

18 no sense?

19 But then fast-forward 15 years. Youre gonna

20 come into court. Youre gonna give another statement to

21 the police. You are gonna come into court in front of 14

22 people, at least 14 people that you dont know, and talk

23 about the most horrific details, the most intimate and

24 personal details of your life for what? For what? She

5 25 has no motive to lie in this case.

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Si If she really was stiffed out of $500, dont you

2 think she would have told the police that? Oh, hey, by

3 the way, Im lying about this rape thing but Im gonna

4 make it really good and say that even though my purse was

5 knocked over there was a bunch of money taken out of it.

6 Neither Lisa Gore nor Audrey Polk never said that. They

7 claim they told the police nothing was ever taken from

8 this house. If this was really about payback, about

9 setting somebody up because theyre really mad, angry, you

10 could damn well bet that they are gonna say something was

11 taken from that house. But they dont say that.

12 Has she been consistent? We know that she told

S 13 medical staff. When you go through her medical charts,

14 youll see she told not just the doctor, not one chart

15 nurse; she had to tell the same story over and over. You

16 decide whether or not she was consistent. She told the

17 initial police responding, that was Lavelle Tyson and his

18 partner Delbert Jennings.

19 Delbert Jennings pretty honest. Sat in the

20 chair, said been on the job 17 and a half years, back then

21 two and a half years; this report is really crappy. I am

22 embarrassed to even sit here and talk about it. But he

23 was very honest in what he said and what he told you Ms.

24 Gore and Lisa Polk said -- excuse me, Audrey Polk said at

5 25 the time. And it was consistent with what she has said

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Si today.

2 She gave a written statement back in February

3 1997 and you heard about that written statement and what

4 she told the police at that time. She was approached in

5 February 2011 and she was asked, hey, do you remember the

6 facts of this case. I have your statement here if you

7 want to review it. And what did she say? I dont need to

8 review that. I know exactly what happened to me. Some of

9 the details about what I was doing beforehand, those are a

10 little fuzzy, but the event itself tells you everything

11 that happened.

12 She testified before under oath at a Preliminary

S 13 Examination, and she testified here in court before you.

14 You decide whether or not shes been consistent. But when

15 you go through her testimony and you go through the

16 medical records, you will see that she has told the same

17 set of facts over and over and over.

18 Her medical records. Lets talk about em. You

19 can look at them. Ive pulled a few of them out here.

20 Her history. The doctor told you that the history is

21 important. And I dont know if you can see that, but this

22 is what it says. Twenty-six year old female that states

23 while she was sleeping approximately 3 to 4 A.M., someone

24 broke into her home, put a gun to her head, told her not

5 25 to speak and then raped her. Had vaginal intercourse with

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1 her. No oral, no anal. And she told the doctors at the

2 time, because its important to know when was your last

3 consensual sex, last consensual sex was -- with her

4 partner was on Saturday, the 15th, which was approximately

5 36 hours before she was sexually assaulted.

6 Also in her medical records you will see that at

7 7:23 A.M. patient was awake, she was cooperative. She

8 states an unknown assailant came into her home, broke in

9 and raped her.

10 Again, if she wanted to pin something on the

11 defendant, you can bet that when she is shown a picture of

12 the person who hits in CODIS she was gonna say thats the. 13 guy who raped me. She maintains that she does not know

14 this person and has never seen him before.

15 Again, in her medical records she talks to yet

16 another nurse. Patient at home asleep. Someone broke in,

17 sexually assaulted her. Then police report made.

18 The DNA reports. We know that this case was

19 solved because of an unknown match in the CODIS system.

20 Thats that data base that searches for known offender

21 profiles. And we know that the defendant was in it. It

22 matched to the defendant.

23 But lets talk about those DNA reports. This is

24 the reports from Sarah Shields and Tiffany Meadows.

5 25 Theyre the ones who work for BODE Technology. And they

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Si initially get the rape kit. They inventory it. They go

2 through everything thats in it and they screen it to see

3 if there is any male foreign DNA. And what do they find?

4 DNA was detected in the following sample. That is the

5 vaginal swabs, consistent with what the victim says. She

6 says she was penetrated vaginally and thats where they

7 find the semen.

8 They also say that the -- in the sperm fraction,

9 thats the male portion, there is clearly a major

10 contributor and a minor contributor. That is consistent

ii with what Audrey Polk says happened to her in the days

12 leading up to the assault and the assault itself. She had

5 13 consensual sex with her male partner on the 16th -- sorry,

14 on the 15th, 36 hours before, that is the minor profile.

15 The major profile being that of the defendant, consistent

16 with being raped by him on the 17th.

17 The report from Aaron Berenter says it gets —-

18 the reports from Sarah Shields and Tiffany Meadows go back

19 to Katherine Merideth. She uploads that profile into

20 CODIS and there is a hit to Antonio Jackson. So the

21 officers go out and they arrest them and they get a fresh

22 buccal swab. Because what do we know about CODIS? That

23 its an investigator tool. Not gonna come in court and

24 say hes guilty because he hits CODIS. You have to get a

5 25 fresh sample to make sure that its really the right

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Si person, and thats what they did. Got a fresh sample from

2 the defendant. And the major DNA types obtained from the

3 vaginal swab sperm fraction matched the defendant.

4 Now the DNA stuff, its sort of irrelevant at

5 this point because the defendant admits to having sex with

6 the victim, but its not to see that the DNA is right.

7 And youre likely to see the same statistical population-—

8 if you were to look, it would take you 8.150 Quadrillion

9 people before you would see the same genetic profile. So,

10 again, the defendant specifically confirms what we know is

ii true and that is his sperm is in the victim.

12 Immediate disclosure. We talked about this

5 13 briefly just a moment ago, but she reported it as soon as

14 possible. This isnt a situation where she sat around for

15 five or six hours and said, hum, what should I do. Should

16 I call the police? Should I not call the police? I dont

17 know if I can go through with this. I dont know what to

18 do. As soon as she was reasonably safe, she called the

19 police.

20 There was no delay whatsoever. There is no

21 delay even for her and her sister to get their stories

22 together. Simply the assault happens and they call the

23 police. And then within two or three minutes the police

24 are there because theyre hanging around the corner at the

5 25 coney island. Theyre there very quickly.

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Si They tell you that -- officers tell you that

2 both Lisa Gore and Andrea Polk were forthcoming and

3 cooperative. They werent trying to evade questions.

4 There were trying to be as helpful as they could in an

5 effort to catch the person who had done this.

6 Now Ms. Burton, Sophia Burton. Sophia Burton is

7 the cousin of Ms. Polk and she indicated that she got a

8 call about the assault and she goes to the hospital. She

9 sees the victim after she has the rape kit done.

10 What does Dr. Manos tell you? He says there is

ii no indication in the report that she is crying hysterical.

12 He notes that as a flat affect. And what does he

S 13 attribute that to? Hes seen lots of victims of sexual

14 assault over the years. Hes been a practicing emergency

15 room physician for a long time, and he says that that flat

16 affect is probably indicative of being in shock.

17 Once she sees her family members, once Audrey

18 Polk is in a safe environment with her family, she

19 completely loses it. She completely loses it. Shes

20 emotional, distraught, upset. Ms. Burton says the only

21 time that she had ever seen Ms. Polk like this before was

22 when her mother had passed away. That is the amount of

23 trauma Ms. Polk was suffering.

24 Now if she wasnt really sexually assaulted,

5 25 give the woman an Academy Award. Because thats what the

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defense wants you to believe that she is so good at being

2 an actress that she has fooled friends, family and

3 everyone in life. And thats simply not possible. She

4 disrupts her entire life because of this. She cant go

5 back to the house on Meyers because she doesnt feel safe,

6 so she goes and she lives with Ms. Burton and her family.

7 Thurmon Polk. Six-year—old at the time.

8 Doesnt have a real clear recollection of what happened,

9 but he adds a little bit to this case. He says he saw a

10 man on top of his mother. He got a birds-eye view of

ii whats going on. He sees a gun in the mans hand and he

12 can hear his mother crying.

S 13 Clearly this is not a consensual encounter, and

14 this is something that has affected Thurmon even today.

15 He says that he remembers that there was a commotion

16 immediately after. And he says that they moved in with

17 their cousin Sophia. He indicates to you that he never

18 wanted to talk about it with his mother, that over the

19 years periodically the issue would come up. And he did

20 not want to talk about it with her because if he came --

21 she was so upset that it would make him enraged as any one

22 man would be.

23 Hes very honest. Thurmon Polk told you, you

24 know, I remember what I remember and what I cant

5 25 remember, I cant remember. Maybe because I had this coma

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Si and was shot. But I clearly remember certain things and

2 this is what he remembers.

3 Lisa Gore. What does she say? Oh, and about

4 Thurmon. Thurmon gives a statement to the police

5 immediately after the assault happens back in 1997. If he

6 wanted to come in and lie for his mom, hed have stuck to

7 the facts. Hed have stuck to what he remembered what was

8 in that report, but he didnt. He comes in and he tells

9 you what he remembers.

10 Now Lisa Gore. She says that she saw a shadow

11 on top of her sister. She calls out her sisters name,

12 and that she saw the shadow get up and run. She told you

S 13 that her sister never had men come over. That she was

14 certainly not promiscuous, and that there was something

15 that was completely unusual. And it didnt even cross her

16 mind to think that somebody had broken into their house.

17 She doesnt know what was going on, but she tells us she

18 soon learns she sees that open window and that broken

19 latch.

20 Now were not saying that the defendant broke

21 the latch. We dont know. He may have. He may have

22 broke the latch. He may have broke the window and came in

23 that way. We submit that he came in the window. We dont

24 know if it was open first or if he broke it and came in.

25 Thats why there is two different theories on the home

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invasion first degree. Either he broke and entered, or he

2 came in without owners permission. Either way, he is

3 guilty of first-degree home invasion.

4 She indicates to you that she saw her purse was

5 dumped out only. She doesnt say anything was taken. It

6 was just simply awry. And she is so I freaked out. But

7 what happened is that she moves out of that location a

8 month later. Again, Audrey Polk is gonna -— now shes

9 lied and disrupted her sisters life? Makes no sense.

10 Ms. Gore tells you that over the years she knew

ii her sister to suffer from the effects of being a sexual

12 assault victim. That she clearly was depressed. She was

5 13 upset, and she saw physical manifestations or physical

14 acts that showed her how much her sister was terrorized by

15 being a victim of sexual assault.

16 She gives a description at the time of a black

17 male, medium—dark complexion, wearing a jogging suit, old

18 shoes, heavyset, maybe around 27. And she says that she

19 never saw his face and she doesnt come in here and try to

20 say that it was the defendant. She tells you what she

21 recalls.

22 So how is this case solved? Now Ill admit the

23 Detroit police probably could have done more. Probably

24 could have gotten some pictures of the inside. That

5 25 doesnt change the facts of this case. Now this case was

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solved through DNA.

2 The victim was assaulted on February 17, 1997.

3 The rape kit was collected by Dr. Manos and the nurse Mary

4 Kay Martin on that same date and then it sat in storage.

5 And it went nowhere until Project 400 came along and sent

6 it to the lab. That was in April of 2010. It was

7 received by Katherine Merideth and sent out over to BODE

8 Technology that same month April of 2010. An unknown

9 profile was developed by Sarah Shields in October of 2010,

10 and it was sent back to Katherine Merideth who uploaded it

ii into the CODIS data base in November, November of 2010.

12 We get the CODIS hit and the defendant is

13 arrested on October 19, 2011. A buccal swab, fresh buccal

14 swab, is taken by the officer-in-charge on the date that

15 he is arrested and sent on to the lab on the 16th of

16 November. Its processed on December 21, 2011, and its

17 confirmed that it is the defendants DNA on January 3,

18 2012.

19 The judge is gonna tell you that in sexual

20 assault cases a victims testimony does not need to be

21 corroborated if you believe it. So what does that mean?

22 That means there doesnt have to be DNA evidence. There

23 doesnt have to be eyewitness testimony. There doesnt

24 have to be any other testimony than the victim coming into

5 25 court, swearing to tell the truth, and saying the

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Si defendant sexually assaulted her.

2 Now if you think about sexual assault, thats

3 usually a crime that happens between two people, a man and

4 a woman. It could happen between two men or it could

5 happen between two women, but typically it happens between

6 a man and woman.

7 And as the judge told you, a defendant does not

8 have to testify. So that leaves the prosecution with only

9 usually one witness to a sexual assault, that being the

10 victim. Thats why the law is what it is. If you believe

11 her, thats all thats required. Check the box the

12 defendants guilty.

13 In this case, you have a heck of a lot more than

14 just Audrey Polk because Audrey Polk isnt the person who

15 can say that its the defendant that sexually assaulted

16 her. From day one she has said I dont know who it was.

17 I cannot identify this person. Thats what she has said.

18 So in order to find the identity of the person who

19 sexually assaulted her, you need the DNA. Thats how we

20 know that its the defendant.

21 But typically the victims word alone is enough.

22 Because even with DNA evidence that doesnt explain to you

23 how the DNA got where it got. The victim tells you how

24 the DNA got there, and that is the law. Youve all sworn,

5 25 taken an oath to follow the law. And this is the law in

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. 1 this case.

2 Now the defendant is charged with four counts.

3 Home invasion first degree requires either a breaking and

4 entering, or entry without owners permission with an

5 intent to commit an assault while somebody is legally home

6 or armed with a weapon. So when you read the jury

7 instructions, and I believe the Court is gonna give you a

8 copy of the actual instructions on each one of these

9 counts, read them carefully. Some of them are ors.

10 Either he came in through the broken window, which was

11 entry without owners permission, or he broke the window

12 and came in. You have to find one or the other. I submit

13 to you that weve proven both and you should mark that box

14 guilty.

15 Defendant is charged in Count Two with criminal

16 sexual conduct in the first degree multiple variables.

17 That is another one that is and/or. To find the defendant

18 guilty of criminal sexual conduct in the first degree, you

19 first have to find that there was in fact a penetration,

20 that being the defendants penis went into the genital

21 opening of Ms. Polk. There is no question of that. There

22 is no question. The defendant admits that.

23 Then you have to find that it was -— that

24 penetration happened during the commission of a felony,

25 that being the home invasion, felon in possession, or the

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Si felony firearm. Or, there is another one of those ors,

2 he was armed with a weapon. I submit to you weve proven

3 both of those beyond all reasonable doubt, you should

4 check the box.

5 Count Three, felon in possession of a firearm.

6 In order for you to find the defendant guilty of being a

7 felon in possession of a firearm, you have to first find

8 that he is a convicted felon. Well we all know that he

9 is. Hes admitted that. You second have to find that he

10 actually possessed a firearm. Submit to you that we have

ii proven that beyond a reasonable doubt.

12 Ms. Polk testified that the person who sexually

13

assaulted her had a gun, thats why she did what she did.

14 Please dont hurt my babies. Please dont hurt my babies.

15 She did whatever he wanted her to do because he was armed

16 with that gun. I submit weve proven that beyond a

17 reasonable doubt.

18 Finally, the defendant is charged with felony

19 firearm. That is, he committed a felony and at the time

20 he committed the felony he possessed a firearm. I submit

21 to you that we have proven beyond a reasonable doubt that

22 hes committed home invasion first degree, criminal sexual

23 conduct in the first degree, and felony firearm.

24 Once you find that, all you have to find is that

25 he had a gun. I submit to you weve proven that beyond a

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reasonable doubt and ask you to find him guilty of that

2 charge.

3 When you look at all the evidence in this case,

4 it only points to one person and that is the defendant.

5 When you look at the descriptions given at the time of the

6 assault, they match the defendant. When you decide

7 whether or not Ms. Polk has been consistent over the last

8 15 years, that shows the defendant is guilty.

9 This case is corroborated by eyewitness

10 testimony of not one, but two other people that are

11 consistent with what Audrey Polk says happened that night.

12 The physical evidence. The apartment is clearly

5 13 messed up as testified to by the police officers. The

14 window is broken. The purses dumped out. The lamp is

15 knocked over. The ironing board is knocked over. The

16 physical evidence is consistent with what the victim says

17 happened that night.

18 The medical evidence is consistent with what she

19 says happened. I had consensual sex with my boyfriend on

20 the 15th, that Saturday. I was sexually assaulted Sunday

21 night going into Monday. Major male contributor is the

22 rapist, minor male contributor is her consensual sex

23 partner.

24 There is no credible evidence for this victim to

5 25 lie. And the DNA that is found corroborates what she says

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happened the night of the assault. For all those reasons,

2 ask you find the defendant guilty as charged.

3 Thank you again.

4 THE COURT: Mr. Komorn, your closing argument,

5 please.

6 MR. KOMORN: Good morning, ladies and gentlemen.

7 I wanna thank you as well for your cooperation, your

8 attention in this case that has lasted a week and times

9 heard from some dry testimony and whatnot and everyone

10 paid good attention. Both myself -- I appreciate it. Of

11 course my client does as well.

12 As far as the prosecutor, I am gonna agree with

5 13 the way that she presented to you what the elements of the

14 crime are, in terms of what each of the elements would be

15 in the crime that would have to be proven beyond a

16 reasonable doubt. As well as the Court is gonna read you

17 instructions verifying that as well. But it ends there as

18 far as the agreement. In fact, I would go as far as to

19 say that she misstated the law to you in regards to what

20 this case is about. Its not about who is telling the

21 truth. The truth is a search that one goes through in

22 their life.

23 This is a case -- and the rules are very, very

24 clear. The issue is have they proven their case beyond a

5 25 reasonable doubt. That means that if there is doubt cast

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1 on the testimony, the elements, the issues, the

2 witnessess testimony, the result you must return is that

3 of not guilty. Why is it that way? Why is it that

4 reasonable doubt is the commanding factor that drives your

5 deliberation? Its because we live in a system that is

6 supposed to be a system of justice.

7 A system of justice means that we use a jury

8 system to evaluate the case that the people bring.

9 Because in our country just cause the government says that

10 its so does not automatically mean that. And in our

11 country we believe that we would rather have five guilty

12 people go free than one innocent person be sent to prison.

13

And thats the way it works and thats why we have

14 reasonable doubt. Because if its in your mind that there

15 is a question, you can return a verdict of not guilty and

16 the law allows you to do that without even thinking twice

17 about it.

18 Im not saying that it is that close of a call.

19 I would suggest that the evidence is overwhelming here

20 that the victim is lying in this case. And the

21 suggestions by the prosecutor that there is this

22 consistency is misleading. And the opposite is in fact

23 what has happened.

24 Reasonable doubt is not something that we have

5 25 to prove as the defense. Its something that the

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prosecutor must remove. This whole case starts with the

2 presumption that my client is innocent. And when you hear

3 the testimony, it is upon the prosecutor to provide facts

4 to you that convince you beyond a reasonable doubt. Her

5 job is not to be persuasive or effective in evoking

6 emotion. Its about presenting the facts. Their job is

7 to seek justice.

8 Now when you look at the facts of the case and

9 the evidence thats presented, there is two different

10 sides to what the evidence really is here. Youve got the

11 DNA side and youve got the lay witness testimony. Now

12 before you can even talk about that, you have to go back

5 13 to how we got here and how the concept of justice has been

14 completely removed from this entire process.

iS Its been removed because you know that there

16 has been a scandal. That there has been a procedure that

17 has been going on amongst the Detroit Police Department

18 that is unacceptable. Its embarrassing as it was

19 testified to. So much so that they needed to bring in

20 another government agency, the federal government. They

21 needed to have additional funds to try to clean up this

22 mess that theyve had. Theyve given who knows how much

23 money to try to fix the wrong thats happened to all of

24 these 11,000 samples. And I am very sympathetic to that.

5 25 But this is their first case that comes before a jury and

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they picked the wrong one for that. Cause thats a good

2 cause and they are trying to do right, but he failed to do

3 the things that are necessary to bring a case that is of

4 value and is one that is supported by evidence.

5 Now you will notice that the strengths that they

6 offer are the DNA. We dont doubt that he was there. We

7 dont doubt that his DNA was in there and we admitted

8 that. And you have heard that from my client from the

9 very beginning of the case. But look at what this case is

10 really about when you put the two types of evidence that

ii they have put forward.

12 Theyve got hired private industry, not public

5 13 or, you know, working for a state agency. These are

14 private companies that have been hired, that are paid

15 money to analyze things. Theyre cleaned up. They look

16 good. They know their case. They come in and theyre

17 supposed to deter you from seeing what the real facts of

18 the case are. They went to great lengths. They flew

19 people in from all over the country to make the case of

20 that the DNA matched. Well there is no issue about that

21 and weve explained that.

22 The problem is that that became the value of

23 their case and the strength of their case because the real

24 issues, the real facts are missing to make their case.

5 25 Because we know that in this case in particular the issue

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Si is whether or not there was consent. Whether or not, as

2 the defendant explained to you, he had been called, went

3 there, there was consensual sex and he left.

4 Now if the police had done what they should have

5 done, we may have been able to show evidence more

6 corroborating of our story. We may have been able to see

7 other witnesses that -- or bring in witnesses that were

8 around the area. We may have been able to get the phone

9 records of these phone calls that took place but they

10 dont exist anymore. We may have been able to hear the

ii actual timing of what took place because it would have

12 been a dispatch call that had been made. And that would

13 have been recorded and we could have actually heard the

14 voice of the person that called and understood at that

15 moment what exactly happened.

16 None of thats there. And I submit to you had

17 it been there, it would have been evidence that supported

18 our contention that this happened consensually. Whose

19 fault is that? Its not the defendants fault. And you

20 as jurors are gonna hold the prosecutor to prove its case

21 beyond a reasonable doubt. You heard the investigator,

22 officer—in—charge in this case, say that when they do an

23 investigation its not just about supporting evidence for

24 their theory. Its to -- its to gather evidence

5 25 objectively to maybe exonerate somebody, to gather what we

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call exculpatory evidence or evidence more likely to prove

2 that the defendant is innocent. But that didnt happen

3 here.

4 What happened here was, as defined by the

5 officer, described by the officer, embarrassing. The

6 prosecutor went to great lengths to try to minimize that.

7 First question she asked the first officer that appeared

8 on the scene how long were you on the force for at the

9 time. A year, year and a half. Oh, so youre brand new,

10 you dont really know what youre doing. This is

11 acceptable behavior but -- to be on the force because

12 youre gonna let them off because there didnt go to the

13 police academy. They carry a gun. They have the

14 authority to arrest. They have the authority to bring

15 people in and charge them and bring them before a judge,

16 request warrants on them based on their observations. And

17 we just wanna let that go?

18 One thing that is missing here is an apology for

19 their failed investigation. We havent heard that. These

20 are the protect and serve, protect and serve the people;

21 all of the people, not just who they want to. And were

22 not just -- we shouldnt just let them off the hook. They

23 did nothing here. You heard the officer-in-charge say

24 well usually there is a group that comes out from the Sex

25 Crimes Unit that does an analysis of the scene. They

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Si didnt even know if that happened. They didnt think it

2 happened. There is no record of it.

3 She will -— the officer-in-charge will have you

4 believe things have changed. Its all better now. Dont

5 worry. You can let us off the hook. Our hands are clean.

6 Now we have got it all together. We got this DNA program

7 going on. Its all good. Did you change the 940

8 destroying the audio tapes? No. You are somebody that

9 was participating actively in the 11,000 rape kit backlog,

10 youre part of the system that brought this scandal to be

11 and all of those people are still involved here. They

12 havent been trained otherwise. They havent taken --

5 13 been taken out and told to do differently. They just know

14 that theyve been embarrassed and they just know that

15 they-- no one suggested a new method that theyre doing

16 things.

17 The officers. We dont know that theyre

18 following up like theyre supposed to. As far as we know,

19 its business as usual and thats why were here 15 years

20 later, not because of the defendant. You know that hes

21 been around in the area the entire time. And I will tell

22 you if there would have been just a minimal amount of

23 work, if they had gone to this store that the victim

24 maintains in one of her statements but then doesnt

5 25 remember that she told the police that now, if they would

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have gone and looked for a video tape, that could have

2 been there.

3 Had they done a dusting of fingerprints on the

4 door handle, you know -- and you heard that my client had

5 a conviction in 1995. He would have been fingerprinted at

6 that time, right? So if they would have done a dusting,

7 they would have been able to find -- they would have been

8 able to track him down. We would have gotten someone. We

9 would have seen what was going on, or they dont or it

10 didnt exist cause he wasnt at that house. It goes on

ii and on and on and on.

12 And the question is when the prosecutor presents

13 a case, they bring their witnesses in and you accept them

14 as face value that they are doing their job well, that

15 they are working hard and diligently. But thats not the

16 case here. Thats not the case here. They didnt show up

17 with that as a backdrop. The backdrop that they show up

18 is that they are miserable at their job and they have done

19 nothing but create a catastrophic problem that has been a

20 real tragedy.

21 Now what is the evidence that weve heard on the

22 other side regarding the complaining -- the version told

23 regarding the lay witnesses? And as I said, it is an

24 issue of who do you believe. And if you believe one

5 25 versus the other, thats who wins. Its not about who

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Si calls the most witnesses. Its not about whether the

2 witnesses are police officers or not. Its about have

3 they proven their case beyond a reasonable doubt as we sit

4 here today, without giving excuses of what they remember

5 or what they dont remember cause its so late in time.

6 Thats their fault. Were not gonna forgive them and then

7 give them excuse also.

8 But lets look at what they say. The victims

9 story. In order to believe that, youd have to believe

10 that my client doesnt know Ms. Polk, doesnt know

11 anything about the house, never been in it before. Walked

12 around at 4:00 in the morning looking for somebody to

5 13 rape. Doesnt know who, what, where, when and just

14 decides to go into a house.

15 You heard the prosecutor ask those questions to

16 my client about you just went into a house, you could have

17 been shot, you could have been killed, you could have been

18 mugged, you could have been robbed. Thats what shes

19 suggesting that to go into a house not knowing anybody

20 there, who knows whats going on inside of a house.

21 Thats what you would have to believe if youre

22 gonna believe the complainants version of the story that

23 hes just somehow able to know that there is a woman in a

24 bed that he can go rape. And hes gonna go in and do it

5 25 regardless of whether there is kids in a bed, whether

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S1 there is someone else in the room. Gotta be psycho.

2 And you saw my clients testimony. Judge him.

3 Evaluate him. If you think he is that kind of person, do

4 what you have to do. But I suggest to you he is not that

5 type of person.

6 And the evaluation is on whether youre going to

7 believe the version offered by the prosecutor and it

8 convinces you beyond a reasonable doubt. Her story, other

9 than suggesting that my client has to be a psychopath, is

10 not credible at all. The idea that this took place and

11 when somebody walks into a room, think about it in common

12 sense. Someone walks into a room and youre not aware,

5 13 youre not disturbed, youre not gonna know whats going

14 on. She says that the -- my client holds a gun to her

15 head, covers her eyes. Thats two hands.

16 Throughout the entire incident, she says she is

17 not able to see his face but she —— well I dont know what

18 she said but she made a number of different statements in

19 regards to whether or not she saw his face, she didnt see

20 his face; what she told the police then, what she says now

21 what she remembers. She could not put her story together

22 straight. And I would urge you to draw the conclusion

23 that consistency of her story is not what took place. Not

24 consistent to the point where it can be believed beyond a

5 25 reasonable doubt.

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Si But lets do this. Without a hand to do this,

2 according to her testimony, her ability to have hands on

3 her face, a gun to her head and still do whatever he was

4 doing to get his penis into her vagina for 20 seconds and

5 pull aside her underpants as she said, or her pajamas as

6 she said, doesnt make any sense. And during this period

7 of time, there would have been some ability to observe.

8 But we also know that there was lights in the

9 room, according to the sister, or there wasnt. Were not

10 sure. There was a shadow. Shoes were able to be seen.

11 No mustache on a face was able to be seen. Couldnt tell

12 if he was Black or White or Chinese in one version. That

5 13 there is a light on outside of the room and that it shines

14 in. Sometimes you can see what you want to see.

15 Sometimes you can see what you cant see according to

16 Audrey Polk.

17 But here you go. Heres the kicker. That she

18 got up and chased after him she says. Never mentioned it

19 to the police. Never saw a gun, but that is the one thing

20 that the complainant was able to see with the lighting in

21 the room the way that it was. And she say she gets up and

22 chases him into a room. And theyll see everything at

23 that point. Its light. Its brightly lit.

24 The most troubling is this issue about the

5 25 window. This window story. You heard Audrey try to

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Si explain -- I mean, Im sorry, the sister try to explain

2 why her statement said she got up from the room, went into

3 the living room, she says the window was open and she

4 closed it. The police, when they show up, say the

5 windows open. The issue of consistency is just not here.

6 And there is so many that I could go on. I dont want to

7 do overkill on it, but it goes on and it goes on and it

8 goes on.

9 The police. When there got there, what do they

10 do? One tells you they went into the bedroom. The other

11 one says they didnt go into the bedroom. One says they

12 didnt see any damage to the window. All of sudden there

S 13 is damage to the window. Consistency, proof beyond a

14 reasonable doubt on the elements of consistency does not

15 exist.

16 The motive to lie is the most pressing of all

17 the evidence. Why are these stories so mixed up? Why is

18 there not consistency? Why do they want to portray the

19 complainant as being someone that she is not? No one was

20 offering up that she works at a bar in the neighborhood.

21 Theyd have you believe she goes to church and doesnt

22 participate in any of that kind of behavior.

23 And I dont-- and Im not judging that, but its

24 the idea that they want to be misleading. They want to

5 25 present something because that makes their case for them.

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Si That makes their case. Gotta make her somebody that shes

2 not and the behavior to make it seem outrageous and

3 unrealistic. But you saw the complainants testimony, and

4 you can judge whether or not her story makes any sense,

5 whether it can be believed beyond a reasonable doubt.

6 These issues of this description, issues of

7 credible evidence; the medical evidence is consistent with

8 consent. There is no physical injuries. There is no

9 assaultive injuries in, around the body. There is no

10 genitalia injuries around that area.

ii There is nothing substantive about the medical

12 records. You can ask for them and you can look them over.

13The idea that the person was flat affect as the doctor

14 described, he has no idea what she was like before back

15 then 15 years ago. We dont know what kind of anything

16 that has happenedthat would present her differently today

17 as what her affect may be. So dont draw conclusions from

18 things unless theyre supported by actual evidence. Cause

19 everything here is a suggestion to try to make you attach

20 to it as substantive, valuable evidence butits not. It

21 continues to fall on its face. The suggestions of things

22 that have been made here do not consistently add up for

23 proof beyond areasonable doubt.

24 The prosecutor getsto go again after I sit down

5 25 becauseits their burden. They get to go last. They are

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the ones that have to convince you, if they can, that

2 theyve proven their case. Rememberto hold the

3 prosecutor and the state to their burden. Rememberthat

4 the issues in this case are whether or not they can

5 establish beyond areasonable doubt and there is actual

6 substantive, convincing evidence that the defendant did

7 what they said he did beyond a reasonable doubt.

8 There is also gonna be aninstruction thats

9 gonna be read to you about consent. Its not just that

10 the -- the prosecutor has to prove each and every single

ii one of the elements beyond a reasonable doubt, but they

12 have to disprove that consent did not take place. So

5 13 there is an additional burden that took place here.

14 Now lets talk about Antonio Jackson for a

15 second. You would think that if he was capable of doing

16 the things that were alleged againsthim, he wouldnt be

17 the type of person that was able to acclimate himself and

18 stay in society. Wont be the type of person that would

19 get married, take careof five kids, get a college degree,

20 work, maintain a job. And I would suggest to you that the

21 behavior and the conduct that would be required of

22 somebody to do that is not even close to indicative of

23 Antonio Jackson. You saw the type of person that he is.

24 You heard his testimony.

5 25 And while its not a question whether you

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Si believe him beyond areasonable doubt, he was not -- there

2 is nothing about his testimony that would suggest that he

3 was not lying. What is someonesupposedto do when youve

4 been accusedof the most heinous of heinous crimes and you

5 dont know about it for 15 years? What was he supposedto

6 do? They wanna makeissue that he decided to dont know

7 what they were talking about. Youre told youre charged

8 with criminal sexual conduct in the first degree and home

9 invasion, they expect you -- I mean its shock. What do

10 they expect him to do? The first thing he says I wanna

11 call a lawyer cause this is insane. I didnt rape

12 anybody.

5 13 But they wanna use that as evidence that hes

14 guilty. I mean think about whats going on here with this

15 government and what theyre trying to do here. The wool

16 theyre trying to pull over your head. Theyre grasping

17 at straws trying to put something together here when their

18 case is weak, embarrassing. Its an attempt to step away

19 and draw your attention from the absolute neglect and

20 miserable failure of what their police agencies have been

21 doing for years. Dont excuse them.

22 Now you can find reasonable doubt for any reason

23 and you dont even have to explain it. You dont have to

24 come up with it. You dont have to be able to even

5 25 verbalize it. If after you hear all this stuff it doesnt

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. 1 sit right to you, and thats what reasonable doubt is, you

2 render a verdict of not guilty, you do not have to explain

3 it to anyone.

4 And you know what else? As jurors, you are the

5 final arbiter in all of this. Youre the ones that are

6 gonna decide what happened as you analyze the evidence in

7 the context of the rules that the Court is gonna give you.

8 You each have the power to say no, that youre not gonna

9 accept this kind of behavior. That you are gonna spend

10 all this money and go out and go to all this lengths to

ii try to cure a problem that took place 15 years ago and

12 apparently still going on, you gotta do better than that.

5 13 And were not gonna forgive you and were not gonna just

14 let you go. And if youre gonna try a case, a trial the

15 seriousness of whats involved here, have more quality

16 evidence. Be able to put a case together that actually is

17 consistent, that the testimony is consistent.

18 This is a very important case, obviously, to

19 Antonio Jackson. And I know you have been paying

20 attention and I hope at times I didnt seem offensive in

21 cross-examining the complainant. I am sympathetic to

22 anyone that would have to go through -- being in court,

23 let alone those type of allegations.

24 But the fact is that you are the ones that stand

25 between justice and injustice. You took an oath in this

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case. You promised and swore that you were gonna hold the

2 government to its burden, that you are gonna judge them

3 and make them remove doubt. And I will tell you that more

4 than reasonable doubt exists in this case. More than

5 questions of consistency. And they have not overcome and

6 will not overcome, be able to disprove that consent for

7 the sexual act took place.

8 And I believe that when you assess all the

9 evidence, and considering the context of the rules that

10 the Court will give you when she reads you the

11 instructions, that you will return a verdict of not guilty

12 on all charges and I would urge you to do that.

13 Thank you very much.

14 THE COURT: Rebuttal.


16 I love it when a defense attorney gets up and

17 doesnt really talk about the facts because it shows that

18 they dont really have much to say. So for the last 20

19 minutes or so, the argument by the defense has been bad

20 Detroit Police Department, bad Detroit Police Department.

21 Well, we concede that. There is no question that they

22 sucked in this case.

23 Well lets talk about what they did do. What

24 did they do right? They went to the apartment. The cops

5 25 went there and they made observations. They saw that the

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window was open. They saw that the house was in disarray.

2 They saw and spoke to the complainant and her sister and

3 they wrote down what they were told. They did enough.

4 Defense gets up and says they didnt call the

5 evidence tech unit. Well what does the evidence tech do?

6 They come out and they take pictures. You have seen

7 pictures of the outside. Pictures of the inside arent

8 gonna help you decide whether or not the defendant had

9 consensual sex with the victim. No, its not gonna help

10 you decide that.

ii What else didnt they do? Oh, well, they didnt

12 preserve the 911 call. Well who cares about the 911 call

S 13 of the dispatch times? The officers told you they got the

14 call, that it came in as a 911 and they went to the

15 location. What does that add to the defendants benefit?

16 What does that add?

17 Phone records. They didnt provide any phone

18 records. Well who knew to even get phone records until

19 Monday? They didnt know anything about a house on

20 Greenfield or Evergreen or where its supposed to be. If

21 we did, maybe we could have investigated it. But we

22 didnt know anything about that. And they dont have to

23 tell us any of that, but you have to evaluate his evidence

24 the same way that you do anybody elses. And if you dont

5 25 tell us, how are we supposed to do -- how can we be held

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Si responsible for something we know absolutely nothing

2 about?

3 So lets talk about what a huge cluster the rape

4 kit issue is. Because they spent so much time on that,

5 maybe we ought to talk about it for a few minutes. A

6 scandal of epic proportions. Oh, sure. The lab was

7 closed because of guns, not because of DNA. And there is

8 nothing in this case to suggest that the DNA is wrong.

9 The defendant himself admits I had sex with the woman,

10 believed DNA should be there and thats exactly what we

ii found.

12 Proof beyond a reasonable doubt. Reasonable

13 doubt. That means its based on common sense and reason.

14 Its not proof beyond all doubt. And, sure, the defendant

15 is presumed to be not guilty. Hes presumed innocent.

16 That presumption is gone based on these facts. Hes

17 cloaked in innocence until you hear the facts of this

18 case, and thats out the window.

19 It is an issue of consent and it is an issue of

20 who you believe. Defense counsel says its not about

21 whether you believe her or whether or not you believe him.

22 Well it absolutely is. There are two stories that are

23 diametrically opposed. Either you believe Audrey Polk I

24 was raped in my bed and I didnt know who did it; or I met

5 25 this woman at the store, I gave her my number, she told me

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$500 to have sex and then I go to a house where I didnt

2 know anybody and I dont know whats going on, which is

3 exactly what happened in our case, and I go in and I go

4 into a bedroom, which is exactly what happened in this

5 case, and I had sex with her. Exactly what happened in

6 this case. Oh, I didnt pay her. I just ran out. She

7 called me twice. She never made any threats for me to

8 call the police, but thats got to be what this is about.

9 He has to say that now.

10 Because when hes arrested, he doesnt ask for a

ii lawyer like the defense counsel just told you. Thats not

i2 what the evidence showed. He was advised, hey, you have a

13 right to call a lawyer. Do you want to do that? No, I

14 dont want to do that. I want to tell you. I dont know

15 Audrey Polk, so I have to create this name Drey-Drey.

16 Shes never been called that a day in her life. Oh, yeah,

17 and cause I cant say that I know Audrey Polk because Ive

18 already told the police on the day that I was arrested I

19 know nothing about this.

20 Well here comes the DNA. Now what are you gonna

21 do? Clearly you had sex with this woman. There are only

22 two defenses to criminal sexual conduct. Either you were

23 raped but it wasnt me, or it was consents so on the day

24 he is arrested, the defense is its not me, I dont know

5 25 anything about this. Now we go forward a bunch of months

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and we come to trial, its consent now. My DNAs there, I

2 have to say that. I have to say that. Im left with

3 nothing else. Its irrefutable.

4 So it is about who you believe. And his story

5 is incredible because he already gives one version of it.

6 Ill tell you one thing that has not changed since 1997

7 and that is a victim of sexual assault is nothing more

8 than a whore. That is the defense that has been tried to

9 be used forever, and thats exactly what they tried to do

10 in this case. She doesnt go to church. Lets go to

ii prostituting. She is just a piece of garbage because she

12 is a prostitute.

5 13 MR. KOMORN: Judge, with all due respect I never

14 said that.

15 MS. HAGAMAN-CLARK: Its what has been implied

16 and it is argument.

17 MR. KOMORN: I just didnt say that. I just

18 wanna be clear cause I dont want to be misquoted.

19 THE COURT: Your objections overruled.


21 MS. HAGANAN-CLARK: Its the defense of the

22 ages.

23 Lets ignore the fact that this woman has a

24 bachelors degree. Lets ignore the fact that she is

5 25 getting her masters degree. Lets ignore the fact that

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Si everyone who testified said she is truthful, she is

2 someone who tells the truth and she is not promiscuous.

3 We have known her for years and she is not like that.

4 Versus the defendant. What do we know about

5 him? Well we know that when he is arrested he lies to the

6 police. He gives a bogus name. And whats the purpose

7 for giving a bogus name? To try to get out of trouble.

8 So we know that when the defendant is in trouble he lies,

9 which is exactly what he has done in this case.

10 We also know that he is a convicted felon. We

11 know that he steals things from people. He was convicted

12 of a crime involving theft and dishonesty within the last

5 13 ten years. And you are allowed to consider that when

14 judging his testimony.

15 Dont have any of that with Ms. Polk, but yet

16 were gonna call her the whore. We are gonna say that she

17 is the promiscuous one and she is the one that was out

18 there prostituting, when there is not a single shred of

19 credible evidence of that.

20 Why did he do this? I have no idea. We all

21 know that sexual assault is usually about power and

22 control. But why he chose that house on this particular

23 day I have no idea. I have no idea. He could have been

24 drunk. Ms. Polk said that the person that sexually

5 25 assaulted her wreaked of alcohol and cigarettes. He could

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have been high. He could have just been breaking in to

2 see what he could steal, rifled through everything and

3 didnt see anything worth while taking, goes into the room

4 and sees an opportunity and takes it.

5 The reality is I have no idea. But the judge is

6 gonna tell you that I dont have to prove a motive. All I

7 have to prove is that he actually did it and we have

8 proven that beyond a reasonable doubt.

9 Consistency. I submit to you that Audrey Polk

10 has been consistent over the years. Defense counsel has

ii said no she hasnt been consistent, but then doesnt

12 really give you a reason why. Doesnt tell you what she

13

hasnt been inconsistent on. There are inconsistencies

14 between what Thurmon sees and what Lisa Gore sees and what

15 Audrey Polk sees, but thats reasonable. But then doesnt

16 tell you that people hear and see things differently,

17 particularly people who are in the throes of a traumatic

18 experience.

19 Audrey Polk is in the throes of a traumatic

20 experience when she is relating what happened to her

21 immediately after. Lisa Gore, on the other hand, is not

22 experiencing that same trauma. She is able to give you

23 more details about what she remembers because she is not

24 the one who has just been violently sexually assaulted.

5 25 The defense tells you that Mr. Jackson is a good

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Si guy; he would never do this. I submit to you that its

2 improper character evidence being brought out by the

3 defense attorney to make you feel bad for him, and youre

4 not allowed to do that. The judge is gonna tell you that

5 sympathy for either side is not appropriate in your

6 deliberations.

7 Youre supposed to be like umpires. You call it

8 as you see it. Balls are balls and strikes are strikes.

9 Whether or not hes a good guy doesnt mean anything about

10 what he was like back in 1997.

11 Defense counsel tells you that the State is

12 grasping at straws to try to put this case together.

5 13 Well, ladies and gentlemen, Ive got news for you. We

14 have a lot of crime here in Detroit and I do not lack for

15 work. So if I was grasping at straws, thats ridiculous.

16 The testimony in this case and the evidence in

17 this case is a heck of a lot more than what you typically

18 get in a sexual assault case. Youve got eyewitness

19 testimony. Youve got DNA evidence. Youve got

20 corroborating witnesses. Youve got medical evidence.

21 Youve got medical evidence. What more could you possibly

22 have asked for?

23 The evidence in this case is overwhelming. I

24 have proven each and every element beyond a reasonable

5 25 doubt. You have sworn to take an oath and to deliver

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1 justice. Audrey Polk has waited 15 years for justice and

2 the only just verdict in this case is guilt beyond a

3 reasonable doubt on all of the charges.

4 Thank you.


6 Could counsel approach the bench? I just want

7 to give you a copy of the jury instructions which you can

8 follow me as I read these.

9 MS. HAGAMAN-CLARK: Thank you, judge.

10 THE COURT: Ladies and gentlemen, Im gonna give

ii you written copies of these, so you dont have to take any

12 notes.

5 13 Members of the jury, the evidence and arguments

14 in this case are finished and I will now instruct you on

15 the law. That is, I will explain the law that applies to

16 this case. Remember that you have taken an oath to return

17 a true and just verdict based only on the evidence and my

18 instructions on the law. You must not let sympathy or

19 prejudice influence your decision.

20 As jurors, you must decide what the facts of

21 this case are. This is your job and nobody elses. You

22 must think about all the evidence and the testimony and

23 then decide what each piece of evidence means and how

24 important you think it is. This includes whether you

25 believe what each of the witnesses said. What you decide

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about any fact in this case is final.

2 It is my duty to instruct you on the law. You

3 must take the law as I give it to you. If a lawyer says

4 something different about the law, follow what I say. At

5 various times, I have already given you some instructions

6 about the law. You must take all of my instructions

7 together as the law that you are to follow. You should

8 not pay attention to some instructions and ignore others.

9 To sum up, it is your job to decide what the facts of the

10 case are, to apply the law as I give it to you and in that

ii way to decide the case.

12 A person accused of a crime is presumed to be

5 13 innocent. This means that you must start with the

14 presumption that the defendant is innocent. This

15 presumption continues throughout the trial and entitles

16 the defendant to a verdict of not guilty unless you are

17 satisfied beyond a reasonable doubt that he is guilty.

18 Every crime is made up of parts called elements.

19 The prosecutor must prove each element of the crime beyond

20 a reasonable doubt. The defendant is not required to

21 prove his innocence or to do anything. If you find that

22 the prosecutor has not proven every element beyond a

23 reasonable doubt, then you must find the defendant not

24 guilty.

5 25 A reasonable doubt is a fair, honest doubt

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Si growing out of the evidence or lack of evidence. It is

2 not merely an imaginary or possible doubt, but a doubt

3 based on reason and common sense. A reasonable doubt is

4 just that a doubt that is reasonable after a careful and

S considered examination of the facts and circumstances of

6 this case.

7 When you discuss the case and decide on your

8 verdict, you may only consider the evidence that has been

9 properly admitted in this case. Therefore, it is

10 important for you to understand what is evidence and what

ii is not evidence. Evidence includes only the sworn

12 testimony of witnesses and the exhibits admitted into

5 13 evidence. Many things are not evidence and you must be

14 careful not to consider them as such. I will now describe

15 some of the things that are not evidence.

16 The fact that the defendant is charged with a

17 crime and is on trial is not evidence. The lawyers

18 statements and arguments are not evidence. Theyre only

19 meant to help you understand the evidence and each sides

20 legal theory. The lawyers questions to witnesses are

21 also not evidence. You should consider these questions

22 only as they give meaning to the witnesses answers. You

23 should only accept things the lawyers say that are

24 supported by the evidence or by your own common sense and

5 25 general knowledge.

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Si My comments, rulings and instructions are also

2 not evidence. It is my duty to see the trial is conducted

3 according to the law and to tell you the law that applies

4 to this case. However, when I make a comment or give an

5 instruction, I am not trying to influence your vote or

6 express a personal opinion about the case. If you believe

7 that I have an opinion about how you should decide this

8 case, you must pay no attention to that opinion. You are

9 the only judges of the facts and you should decide this

10 case from the evidence.

ii You should use your own common sense and general

12 knowledge in weighing and judging the evidence, but you

13should not use any personal knowledge you may have about a

14 place, person or event. To repeat once more, you must

15 decide this case based only on the evidence admitted

16 during this trial.

17 As Ive said before, it is your job to decide

18 what the facts of this case are. You must decide which

19 witnesses you believe and how important you think their

20 testimony is. You do not have to accept or reject

21 everything a witness said. You are free to believe all,

22 none or part of any persons testimony. In deciding which

23 testimony you believe, you should rely on your own common

24 sense and everyday experience. However, in deciding

5 25 whether you believe a witnesss testimony you must set

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aside any bias or prejudice you may have based on the

2 race, gender or national origin of the witness.

3 There is no fixed set of rules for judging

4 whether you believe a witness, but it may help you to

5 think about these questions: Was the witness able to see

6 or hear clearly? How long witness the witness watching or

7 listening? Was anything else going on that might have

8 distracted the witness? Did the witness seem to have a

9 good memory? How did the witness look and act while

10 testifying? Did the witness seem to be making an honest

ii effort to tell the truth, or did the witness seem to evade

12 the questions or argue with the lawyers? Does the

5 13 witnesss age and maturity affect how you judge his or her

14 testimony? Does the witness have any bias, prejudice or

15 personal interest in how this case is decided? Have there

16 been any promises, threats, suggestions or other

17 influences that affected how the witness testified? In

18 general, does the witness have any special reason to tell

19 the truth or any special reason to lie? All in all, how

20 reasonable does the witnesss testimony seem when you

21 think about all the other evidence in the case?

22 Sometimes the testimony of different witnesses

23 will not agree and you must decide which testimony you

24 accept. You should think about whether the disagreement

5 25 involves something important or not and whether you think

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Si someone is lying or is simply mistaken. People see and

2 hear things differently and witnesses may testify honestly

3 but simply be wrong about what they thought they saw or

4 remembered. It is also a good idea to think about which

5 testimony agrees best with the other evidence in the case.

6 However, you may conclude that a witness deliberately lied

7 about something that is important to how you decide the

8 case. If so, you may choose not to accept anything that

9 witness said. On the other hand, if you think the witness

10 lied about some things but told the truth about others,

11 you may simply accept the part you think -— accept the

12 part you think is true and ignore the rest.

5 13 The evidence must convince you beyond a

14 reasonable doubt that the crimes occurred on February 17,

15 1997, in the City of Detroit, Wayne County, Michigan.

16 The possible penalty should not influence your

17 decision. It is the duty of the judge to fix the penalty

i8 within the limits provided by law.

19 Facts can be proved by direct evidence from a

20 witness or an exhibit. Direct evidence is evidence about

21 what we actually see or hear. For example, if you look

22 outside and see rain falling, that is direct evidence that

23 it is raining. Facts can also be proved by indirect or

24 circumstantial evidence. Circumstantial evidence is

5 25 evidence that normally or reasonably leads to other facts.

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i

So, for example, if you see a person come in from outside

2 wearing a raincoat covered with small drops of water, that

3 would be circumstantial evidence that it is raining.

4 You may consider circumstantial evidence.

5 Circumstantial evidence by itself or a combination of

6 circumstantial evidence and direct evidence can be used to

7 prove the elements of a crime. In other words, you should

8 consider all the evidence that you believe.

9 When the lawyers agree on a statement of facts,

10 these are called stipulated facts. You may regard such

ii stipulated facts as true but you are not required to do

12 so.

13 You should not decide this case based on which

14 side presented more witnesses. Instead, you should think

15 about each witness and each piece of evidence and whether

16 you believe them. Then you must decide whether the

17 testimony and evidence you believe proves beyond a

18 reasonable doubt that the defendant is guilty.

19 You have heard that a lawyer or a lawyers

20 representative talked to a witness. There is nothing

21 wrong with this. A lawyer or a lawyers representative

22 may talk to a witness to find out what the witness knows

23 about the case and what the witnesss testimony will be.

24 You have heard testimony from the following

5 25 expert witnesses: Catherine Merideth, who is an expert in

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the field of forensic biology; Aaron Bereriter, who is an

2 expert in the field of forensic biology; Sarah Shields,

3 who is an expert in the field of DNA analysis, and Tiffany

4 Meadows who is an expert in the field of forensic biology;

5 and Paul Manos, who is an expert in the field of emergency

6 room medicine.

7 Experts are allowed to give opinions in court

8 about matters they are experts on. However, you do not

9 have to believe an experts opinion. Instead, you should

10 decide whether you believe it and how important you think

ii it is. When you decide whether you believe an experts

12 opinion, think carefully about the reasons and facts he or

13 she gave for the opinion, and whether those facts are

14 true. You should also think about the experts

15 qualifications and whether his or her opinion makes sense

16 when you think about the other evidence in the case.

17 You have heard testimony from witnesses who are

18 police officers. That testimony is to be judged by the

19 same standards you use to evaluate the testimony of any

20 other witness.

21 The defendant is charged with the crimes of

22 assault -- Im sorry. Charged with the crimes of home

23 invasion, criminal sexual conduct being a felon in

24 possession of a firearm, and felony firearm. These are

5 25 separate crimes and the prosecutor is charging that the

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defendant committed each of them. You must consider each

2 crime separately in light of all the evidence in the case.

3 You may find the defendant guilty of one or more of these

4 crimes, or not guilty.

5 In Count One, the defendant is charged with home

6 invasion in the first degree. To prove this charge, the

7 prosecutor must prove each of the following elements

8 beyond a reasonable doubt: First, that the defendant

9 broke into a dwelling. It does not matter whether

10 anything was actually broken, however, some force must

ii have been used. Opening a door, raising a window and

12 taking off a screen are all examples of enough force to

S 13 count as a breaking. Entering a dwelling through an

14 already open door or window without using any force does

15 not count as a breaking. And that the defendant entered

16 the dwelling. It does not matter whether the defendant

17 got his entire body inside. If the defendant put any part

18 of his body into the dwelling after the breaking, that is

19 enough to count as an entry.

20 Or, this is the alternative first element.

21 First, that the defendant entered the dwelling without

22 permission. It does not matter whether the defendant got

23 his entire body inside. If the defendant put any part of

24 his body in the dwelling without permission, that is

5 25 enough to count as an entry.

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1 Second, that when the defendant broke and

2 entered or entered without permission, he intended to

3 commit an assault.

4 Third, that when the defendant entered, was

5 present in or was leaving the dwelling, he was armed with

6 a dangerous weapon or Audrey Polk was lawfully present in

7 the dwelling.

8 In Count Two, the defendant is charged with the

9 crime of first-degree criminal sexual conduct. To prove

10 this charge, the prosecutor must prove each of the

11 following elements beyond a reasonable doubt: First, that

12 the defendant engaged in a sexual act that involved entry

13 into Audrey Polks genital opening by the defendants

14 penis. Any entry, no matter how slight, is enough. It

15 does not matter whether the sexual act was completed or

16 whether semen was ejaculated.

17 Second, that the alleged sexual act occurred

18 under circumstances that also involved, one, the

19 commission of a first-degree home invasion which was

20 previously -- has previously been defined for you, or,

21 two, that the defendant was armed at the time with, A, a

22 weapon or with any other object capable of causing

23 physical injury that the defendant used as a weapon; or,

24 with any other object used or fashioned in a manner to

25 lead Audrey Polk to reasonably believe that it was a

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1 weapon.

2 To prove charges of criminal sexual conduct, it

3 is not necessary that there be evidence other than the

4 testimony of Audrey Polk if that testimony proves guilt

5 beyond a reasonable doubt.

6 To prove the charge of criminal sexual conduct,

7 the prosecutor does not have to show that Audrey Polk

8 resisted the defendant.

9 There has been evidence in this case about the

10 defense of consent. A person consents to a sexual act by

11 agreeing to it freely and willingly, without being forced

12 or coerced. Consent does not have to be verbal. It is

5 13 not necessary to show that Audrey Polk resisted the

14 defendant to prove that this crime was committed, nor is

15 it necessary to show that Audrey Polk did anything to

16 lessen the danger to herself.

17 In deciding whether or not Audrey Polk consented

18 to the act, you must consider all the evidence. It may

19 help you to think about the following questions: A, was

20 Audrey Polk free to leave and not take part in the sexual

21 act? B, did the defendant threaten Audrey Polk with

22 present or future injury? C, did the defendant use force,

23 violence or coercion? And, D, did the defendant display a

24 weapon?

25 If you find that the evidence raises a

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reasonable doubt as to whether Audrey Polk consented to

2 the act freely and willingly, then you must find the

3 defendant not guilty. The prosecutor bears the burden of

4 proving absence of consent beyond a reasonable doubt.

5 In Count Three, the defendant is charged with

6 having possessed a firearm in this state after having been

7 convicted of a felony. To prove this charge, the

8 prosecutor must prove each of the following elements

9 beyond a reasonable doubt: First, that the defendant

10 possessed a firearm in this state. Second, that the

ii defendant was previously convicted of a felony.

12 In Count Four, the defendant is charged with the

5 13 crime of possessing a firearm at the time he committed a

14 felony. To prove this charge, the prosecutor must prove

15 each of the following elements beyond a reasonable doubt:

16 First, that the defendant committed the crime of

17 first-degree home invasion, or first—degree criminal

18 sexual conduct, or being a felon in possession of a

19 firearm. These crimes have been defined for you. It is

20 not necessary, however, that the defendant be convicted of

21 any of these crimes. Second, that at the time the

22 defendant committed the crime he knowingly carried or

23 possessed a firearm.

24 When you go to the jury room, you should first

5 25 choose a foreperson. The foreperson should see to it that

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Si your discussions are carried on in a businesslike way and

2 that everyone has a fair chance to be heard.

3 A verdict in a criminal case must be unanimous.

4 In order to return a verdict, it is necessary that each of

5 you have agree on that verdict. In the jury room, you

6 will discuss the case among yourselves but ultimately each

7 of you will have to make up your own mind. Any verdict

8 must represent the individual considered judgment of each

9 juror. It is your duty as jurors to talk to each other

10 and make every reasonable effort to reach agreement.

ii Express your opinions and the reasons for them, but keep

12 an open mind as you listen to your fellow jurors. Rethink

5 13 your opinions and do not hesitate to change your mind if

14 you decide you were wrong.

15 Try your best to work out your differences.

16 However, although you should try to reach agreement, none

17 of you should give up your honest opinion about the case

18 just because other jurors disagree with you or just for

19 the sake of reaching a verdict. In the end, your vote

20 must be your own and you must vote honestly and in good

21 conscience.

22 When you go to the jury room, you will be given

23 written copies of the instructions you have just heard.

24 As you discuss the case, you should think about all of my

5 25 instructions together as the law that you are to follow.

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Si And if you would like to communicate with me

2 while you are in the jury room, please have your

3 foreperson write a note and give it -- knock on the door

4 and give it to the deputy. It is not proper for you to

5 talk directly with the judge, lawyers, court officers or

6 other people involved in the case. As you discuss the

7 case, you must not let think one, even me, know how your

8 voting stands. Therefore, until you return with a

9 unanimous verdict do not reveal this to anyone outside the

10 jury room.

11 And I will send in all the exhibits that have

12 been admitted into evidence. And I have prepared a

5 13 verdict form listing the possible verdicts. As you go

14 through the counts and reach a decision on each count,

15 your foreperson should check the appropriate box of what

16 your decision is. And then once you have reached a

17 unanimous decision on each of the four counts, the

18 foreperson should sign the verdict form and date it and

19 then give us a note which says you have reached a verdict

20 and then I will have everybody come into the courtroom to

21 deliver the verdict of the jury.

22 Any objection to my reading of the jury

23 instructions?

24 MS. HAGANAN-CLARK: No, judge.

5 25 MR. KOMORN: No, judge.

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Si THE COURT: And, ladies and gentlemen, as a

2 matter of law, in a criminal case only 12 people may

3 deliberate. Now we do pick two extra people in case

4 somebody gets sick or there is a family emergency and

5 somebody has to leave. So we have everybodys —- but we

6 have everybodys name in this box and my clerk is going to

7 pick out two names and those people will not deliberate.

8 But I do want to ask you this favor. I would

9 like you, whoever you are, to not discuss this case with

10 anyone until there is a verdict. Now the reason for that

ii is if somebody became ill or somebody did have a family

12 emergency while theyre deliberating, I would have to

13 excuse them and I would bring you back to continue

14 deliberations with the jury. And so -- and if youve

15 talked to other people about the case, of course it

16 wouldnt really be fair then that you would come back and

17 deliberate.

18 So if you would like to wait for a verdict, you

19 may do that. If you would like us to call you, just give

20 us a number, we will be glad to call you; or well give

21 you our numbers and you can call us to find out what the

22 verdict is and well let you know as soon as the verdict

23 is reached. So thank you very much for that.

24 Okay, Michelle.

5 25 THE CLERK: Juror Number Two, Joann Hoyt.

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1 THE COURT: Ms. Hoyt, thank you very much.

2 THE CLERK: Juror Number Eight, Anthony

3 Vassallo.

4 THE COURT: Thank you, Mr. Vassallo.

5 Would you swear in the deputies, please?

6 THE CLERK: Do you swear or affirm to keep the

7 jurors in the form and manner prescribed by law?

8 CORPORAL DARRISAW: I do.

9 THE DEPUTY: I do.

10 THE COURT: Ladies and gentlemen, you may retire

ii to deliberate. I am gonna send in a couple copies of the

12 jury instructions in just a couple of moments and a copy

5 13 of the verdict form as well.

14 Will counsel approach the bench to take a look

15 at the verdict form?


17 and counsel.)

18 THE COURT: Okay. Any objection to the verdict

19 form, for the record?


21 MR. KOMORN: None.

22 THE COURT: I need the jury instructions,

23 please.

24 MR. KOMORN: Im sorry.

5 25 THE COURT: Would you please gather together the

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Si exhibits and give them to me so that I can give them to

2 the jury?

3 Mr. Komorn, would you look at her exhibits to

4 see if you agree and would you look at his exhibits to see

5 that you agree?

6 MS. HAGAMAN-CLARK: Sure.

7 THE COURT: Thank you very much.

8 MR. KOMORN: Did the DNA come in? Just kidding.

9 MS. HAGAMAN-CLARK: Okay. Not this. That

10 doesnt go in to the jurors.

ii Sheriff, I am gonna leave them right here on the

12 corner for you.

13 CORPORAL DARRISAW: Okay.


15 THE COURT: Counsel, you agree these are all the

16 correct exhibits?


18 MR. KOMORN: Yes.

19 (Of f the record at 11:40 P.M.)

20 (Back on the record at 12:22 P.M.)

21 THE COURT: This is just one of those questions

22 we always get. Can we have a copy of the police reports

23 from February 17, 1997? Can we have a copy of all written

24 statements.

25 Im just gonna send them a note saying, no,

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1 those statements and the police report were not admitted

5 2 into evidence and therefore you cannot have a copy.

3 MR. KOMORN: And to use your collective memory

4 as to what was said.

5 THE COURT: Sure. I usually wait until later to

6 say that, but Ill be right back and Ill read the note.

7 (Off the record at 12:22 P.M.)

8 THE COURT: Your client can sit up there with

9 you if he wants to.

10 Okay. This is my proposed response. Ladies

11 and gentlemen, you have requested a copy of the police

12 report and the written statements of the witnesses. These

5 13 documents were not admitted into evidence, so you may not

14 consider them. You must base your decision on the sworn

15 testimony of the witnesses and the exhibits admitted into

16 evidence.

17 Any objection to that?


19 MR. KOMORN: No.


21 (Of f the record at 12:25 P. M.)

22 THE COURT: Im going to -- well send them to

23 lunch about 1:00 and have them come back at 2:00. So—-

24 MS. HAGAMAN-CLARK: Okay.

5 25 THE COURT: Just so youll know.

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1 (Off the record at 12:25 P. M.)

2 (The jury was excused for lunch at 1:00 P. M.)

3 (The jury returned from lunch and resumed

4 deliberations at 2:00 P. M.)

5 THE COURT: Were back on the record.

6 I have two notes. The first note says: When a

7 verdict is reached, does anyone in the Sheriffs

8 Department escort us out? Question mark. Where do you

9 get letters for work? Question mark. And can we have a

10 new verdict form? Question mark.

ii This is my response for your approval.

12 Ladies and gentlemen, usually sheriffs

5 13 deputies do not escort jurors out of the courthouse.

14 However, if any jurors wish to be escorted to their cars,

15 that can be done.

16 Once a verdict has been reached, letters will be

17 prepared for anyone who needs one. Anyone that wants one

18 can just tell the deputy, it will be prepared. It does

19 not take long for one to be done.

20 I have given you a new verdict form.

21 Any objection to that response?


23 MR. KOMORN: No.

24 THE COURT: And then I have a second note that

5 25 says: We have reached a verdict.

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1 So we are gonna let them read that note and then

S 2 Ill bring them out for the verdict.

3 (Off the record.)

4 THE COURT: Okay. You can bring the jury out,

5 please.

6 All rise for the jury.

7 (The jury entered the courtroom at 3:31 P.M.)


9 gentlemen.

10 Would the foreperson please rise?

ii Has the jury reached a unanimous decision on

12 each of the four counts?

5 13 JUROR NUMBERTEN: Yes, we have, Your Honor.

14 THE COURT: And did you check the verdict of the

15 jury as to each of those four counts?

16 JUROR NUMBERTEN: Yes, I have.

17 THE COURT: Have you signed and dated the form?

18 JUROR NUMBERTEN: Yes, maam.

19 THE COURT: Would you please read the verdict of

20 the jury?

21 JUROR NUMBERTEN: On Count One, home invasion

22 in the first degree; guilty of home invasion in the first

23 degree.

24 Count Two, criminal sexual conduct in the first

5 25 degree; guilty of criminal sexual conduct in the first

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Si degree involving penis in genital opening.

2 Count Three, felon in possession of firearm; not

3 guilty.

4 Count Four, felony firearm; not guilty.


6 Would you like the jury polled?

7 MS. HAGANAN-CLARK: Yes, judge.

8 MR. KOMORN: Yes.

9 THE COURT: Okay. Juror Number One, is that and

10 was that your verdict?

ii JUROR NUMBERONE: Yes.

i2 THE COURT: Juror Number Three, was that, is

5 13 that your verdict?

14 JUROR NUMBERTHREE: Yes.

iS THE COURT: Juror Number Four, was that and is

16 that your verdict?

17 JUROR NUMBERFOUR: Yes.

18 THE COURT: Juror Number Five, was that and is


20 JUROR NUMBERFIVE: Yes.

21 THE COURT: Juror Number Six, was that and is


23 JUROR NUMBERSIX: Yes.

24 THE COURT: Juror Number Seven, was that and is

5 25 that your verdict?

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1 JUROR NUMBER SEVEN: Yes.

5 2 THE COURT: Juror Number Nine, was that and is


4 JUROR NUMBERNINE: Yes.

S THE COURT: Juror Number 10, was that and is


7 JUROR NUMBERTEN: Yes, maam.

8 THE COURT: Juror Number 11, was that and is


10 JUROR NUMBERELEVEN: Yes.

ii THE COURT: Juror Number 12, was that and is


5 13 JUROR NUMBERTWELVE: Yes.

14 THE COURT: Juror Number i3, was that and is


16 JUROR NUMBERTHIRTEEN: Yes.

17 THE COURT: Juror Number 14, was that and is


19 JUROR NUMBERFOURTEEN: Yes.

20 THE COURT: Anything else before I excuse the

21 jury?

22 MS. HAGAMAN-CLARK: No, judge.

23 MR. KOMORN: No.

24 THE COURT: Ladies and gentlemen, thank you very

5 25 much for being jurors in my courtroom. I know this was a

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1 long case and it took a great deal of your time and I

5 2 appreciate your willingness to serve as jurors. Again,

3 without people being willing to serve as jurors, we could

4 not have a justice system.

5 Thank you very much and you are excused with my

6 thanks and my gratitude. And if youll go back to the

7 jury room, we do have a letter regarding your jury service

8 and a Certificate of Appreciation from me. And you can

9 talk to the deputy if there is anyone that would like any

10 assistance in going to their cars.

ii Thank you very much.

12 (The jury was discharged at 3:34 P.M.)

5 13 THE COURT: Sentencing will be -- the defendant

14 is remanded.


16 MR. KOMORN: Judge, is that --

17 THE COURT: As Im required to do by law.

18 And sentencing will be on May 17.

19 MR. KOMORN: Let me check.

20 Can we do it Thursday, the 31st?

21 THE COURT: The 31st? You want to delay it for

22 two more weeks?

23 MR. KOMORN: Yes. Im not available on those

24 days.

25 THE COURT: At any time?

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1 MR. KOMORN: I have trials starting on the

2 following Mondays the next three weeks.

3 THE COURT: How about the 18th then? Thats a

4 Friday.

S MR. KOMORN: Not in this building; elsewhere.

6 But, yes, thats fine, my first available date

7 if the Court would accommodate.

8 THE COURT: The 18th?

9 MR. KOMORN: No, the 31st. If youre talking

10 the week of Memorial Day, Im available. But if you want

11 to go Tuesday, Wednesday or Thursday --

12 THE COURT: And youre not available on the

5 13 25th?

14 Fridays we dont do trials in this building

15 normally.

16 MR. KOMORN: The trials that Im speaking of are

17 not in this building. Theyre in other jurisdictions.

18 THE COURT: All right. Then May 31 is okay.

19 (At about 3:38 P.M., proceedings concluded.)

20 — — —

21

22

23

24

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1 CERTIFICATE


4

5 COUNTYOF WAYNE

6

7

8 I, Betty Sanders, Certified Court Reporter of the

9 Third Judicial Circuit Court, Criminal Division, Wayne

10 County, State of Michigan, do hereby certify that the

11 foregoing 110 pages comprise a full, true and correct

12 transcript of the proceedings and testimony taken in the

S 13 matter of the People of the State of Michigan versus

14 Antonio Jackson, on Thursday, May 3, 2012.

18 _______________

19 Betty Sanders, CSR-2931


21

22

23

• :: Dated: August 15, 2012

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1 STATE OF MICHIGAN~

2 THIRD JUDICIAL CIRCUIT COURT FOR THE~GUNTY.~OF~:WAYNE

3


ORIGINAL6 vs. Case No. 11—12637

7

8 ANTONIO JACKSON,

9 Defendant.

10 __________/

11 SENTENCE

12 BEFORE THEHONORABLECAROLE F. YOUNGBLOOL~

11 of Justice, 1441 St Antoine,13 704 Frank Murphy Ha an - ~

• 14 Detroit, Michig

15 /~~i~u~7D/16 APPEARANCES:

17 DANIELLE HAGAMAN-CLAR

18 County Pros~r1!~ffl~QT~S/1441 St. Antoine, 12th FloorDetroit, MI 48226—2302

192$ Appearing on behalf of the People.

20MICHAEL KOMORN, (P47 970)3000 Town Center, Suite 1800

21 Southfield, Michigan 4807522

Appearing on behalf of the23

25 Betty Sanders (CSR-2931)~ 24 REPORTEDBY:Official Certified Shorthand ~eporter~~ç e~~/

1 C

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1 TABLE OF CONTENTS

2 WITNESSES PAGE

3

4

5

6

7

8

9 EXHIBITS

10 IDENTIFICATION MARKED ADMITTED

11

12

14 NONE

15

16

17

18

19

20

21

22

23

24

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1 Detroit, Michigan

2 • Thursday, May 31, 2012

3 At or about 11:09 A.M.

4 — — —

5 THE CLERK: People versus Antonio Jackson,

6 11—12636 —— Im sorry, 12637.

7 This case is here for sentencing.

8 MS. HAGANAN-CLARK: Good morning, Your Honor.

9 Danielle Hagaman-Clark on behalf of the People.

10 MR. KOMORN: Good morning. May it please the

11 Court.

12 Michael Komorn for Antonio Jackson who is

13 present.

14 THE COURT: Good morning.

15 Have you each had a chance to review the

16 presentence report?

17 MS. HAGAMAN-CLARK: I have, judge, and I do have

18 some corrections.

19 THE COURT: Okay. You may go first, if you

20 like.


22 I would note on the face sheet of the report it

23 indicates that the defense counsel is appointed. I

24 • believe he is retained.

25 THE COURT: Is that correct?

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1 MR. KOMORN: Yes.

2 THE COURT: Okay. Ill change that.

3 MS. HAGAMAN-CLARK: Under the personal history

4 section under marital status, it indicates that he is

5 single. I do believe that he is married.

6 THE COURT: Okay. Thats correct, isnt it,

7 that he is married?

8 MR. KOMORN: It is. That is correct, judge.


10 Anything else?

11 MS. HAGAMAN-CLARK: Yes. Under -- on page, the

12 next page, page two where it details the jail credit, it

• 13 currently has him receiving 223 days jail credit. Thats

14 not correct.

15 It has him consecutively serving time from

16 October 20, 2011, until May 30, 2012. When, in actuality,

17 the defendant served from 10-20—11 until December 17th.

18 He was released from December 17th until January 6th. He

19 was locked up again from --

20 THE COURT: You are going a little fast. Okay.

21 So 10—20—11to 12—17—11?


23 THE COURT: Okay. Then whats the next one?

24 MS. HAGAMAN-CLARK: Then he was out from

25 12—17—11until January 6th or 1—6—12.

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1 THE COURT: January 6th of 12, okay.

2 MS. HAGANAN-CLARK: He was locked up again from

3 January 6, 2012, until January 26, 2012.

4 THE COURT: Okay.

5 MS. HAGAMAN-CLARK: He was out then from January

6 26th until the conviction date of May 3rd.

7 THE COURT: Okay.

8 MS. HAGAMAN-CLARK: And then he was in again

9 from May 3rd until May 31st. And I have that time

10 calculated as 108 days credit.

11 THE COURT: Do you disagree with any of that?

12 MR. KOMORN: No, not for the credit.

13 THE COURT: Okay. So thats 108 days. Thank

14 you.

15 MS. HAGAMAN-CLARK: Moving on to Page One of the

16 actual body of the plan under Evaluation and Plan, in the

17 second paragraph from the bottom, it indicates on the

18 third sentence from the bottom that matter was closed

19 without improvement February 2, 1989.

20 THE COURT: Im sorry. Its the third

21 paragraph?

22 MS. HAGANAN-CLARK: Its the second paragraph

23 from the bottom.

24 THE COURT: Okay.

25 MS. HAGANAN-CLARK: Starts as as an adult, and

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1 its the third sentence from the bottom.

2 THE COURT: Okay.

3 MS. HAGAMAN-CLARK: Says that matter was closed

4 without improvement on 2—2-1989.

5 THE COURT: Yes.

6 MS. HAGANAN-CLARK: 89 is a typo. It should be

7 1998.


9 Is that correct?


11 THE COURT: Okay.

12 MS. HAGAMAN-CLARK: On the next page at the very

• 13 bottom under Victims Impact Statement, second sentence

14 from the bottom, starts out for their safety and then it

15 moves on to after the within offense occurred, the

16 defendants sister also moved from the area. That should

17 read the victims sister.

18 THE COURT: Okay. Now thats on Page Two?

19 MS. HAGAMAN-CLARK: Page Two of the report under

20 the section entitled Victims Impact Statement and it is

21 the second sentence from the bottom.

22 THE COURT: Okay.

23 MS. HAGAMAN-CLARK: Last paragraph. That whole

24 line starts off for their safety, after the within

25 offense occurred, the defendants sister also moved from

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1 the area because her family felt unsafe in the

S 2 neighborhood. That finishes off that entire paragraph,

3 but it should read the victims sister.

4 THE COURT: I see. Okay. Thank you. I got it

5 now.

6 MS. HAGAMAN-CLARK: My final correction I

7 believe is on Page Six of the report.

8 THE COURT: Okay.

9 MS. HAGAMAN-CLARK: And it is two-thirds of the

10 way down and it deals --

11 THE COURT: Does it say Page Six on the bottom?

12 MS. HAGAMAN-CLARK: It does. It says Page Six

13 in the bottom right-hand corner.

14 THE COURT: Okay.

15 MS. HAGAMAN-CLARK: Its dealing with the

16 offense -- its seven out of eight under that section.

17 THE COURT: Yes.

18 MS. HAGAMAN-CLARK: That discharge date is

19 indicated as 6—16—1989.

20 THE COURT: And it should be 98?

21 MS. HAGAMAN-CLARK: Ninety-nine.

22 THE COURT: Ninety-nine, thank you.

23 MS. HAGAMAN-CLARK: Yep.


25 MS. HAGAMAN-CLARK: Yes, one more. And its in

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1 the next one under age of eight it indicates charges at

S 2 arrest home improvement.

3 THE COURT: Should be home invasion.

4 MS. HAGANAN-CLARK: Yes.

5 THE COURT: I sort of made that --

6 MS. HAGAMAN-CLARK: Those were all the

7 deletions, corrections, modifications that I made within

8 the report.

9 THE COURT: Mr. Komorn, do you have any

10 corrections, changes, deletions?


12 On the cover page, there is in the employed,

13 where employed, it says unemployed. He was employed.

14 think its even reflected in the --

15 THE COURT: It is. What is the name of the--

16 MR. KOMORN: AAA Quality Roofing and

17 Construction Company.

18 THE COURT: Okay. Anything else?

19 MR. KOMORN: Far as factual inaccuracies, no.

20 THE COURT: Okay. Would counsel approach the

21 bench for just one moment, please?


23 and counsel.)

24 MS. HAGAMAN-CLARK: Judge, we do have some

25 discrepancy or some argument between myself and defense

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1 counsel as it relates to the——

S 2 THE COURT: Sentencing guidelines?

3 MS. HAGAMAN-CLARK: -- guidelines. Guidelines.

4 THE COURT: Yes. Ive gone over those, too.

5 But go right ahead, please.

6 MS. HAGAMAN-CLARK: I believe that we -- well

7 maybe we dont agree.

8 The current prior record variable score I have

9 that at 65, and I believe that that is accurate.

10 THE COURT: Do you believe that the numbers they

11 put in and the spaces they put them in are accurate, too?

12 MR. KOMORN: Yes, I do.

S13 THE COURT: What do you think, Mr. Komorn?

14 MR. KOMORN: As far as prior record, there is

15 the -- there is an issue of the subsequent concurrent on

16 PRV 7.

17 THE COURT: Okay.

18 MR. KOMORN: I know that the -- and just for the

19 record, we are dealing with the 1997 guidelines as opposed

20 to the current edition which are mandated by statute.

21 At that particular time they were advisory to

22 the bench at the time, I believe.

23 THE COURT: Yes.

24 MR. KOMORN: So the Court isnt compelled by

25 them necessarily, but the PRV 7 section before --

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1 THE COURT: I dont have the 97 up here, but I

5 2 have 99 up here which are you -- what do you think is

3 inaccurate about PRV 7?

4 MR. KOMORN: The language. Its used for

5 subsequent or concurrent, that hasnt changed. The

6 principle there, I believe, is intended to punish or add

7 points for multiplicity of convictions. At the time of

8 the conviction, two counts of a conviction would be, you

9 know, one concurrent or subsequent.

10 Whats happened here in the scoring is that he

11 is being evaluated from a 1997 position at the time as if

12 the conviction happened then, and its looking from that

S 13 point in time into his future and seeing that other

14 convictions happened, when, 2006, I think, 2005, 2004.

15 And those are being counted as the subsequent or

16 concurrent convictions.

17 And to me that just seems inherently unfair.

18 And due process have notice of that not having even -- the

19 law being that particular interpretation at the time, the

20 guideline not even mandating it. And, you know, we had

21 some issues about this in the trial as far as evidence

22 and, you know, from trying the case in 2012. But, you

23 know, whats 10 years from 1997 to go back? Do we go

24 forward?

5 25 I mean there were issues about that of how we

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1 are going to utilize his prior convictions or subsequent

2 convictions. And I just think that the, you know, piling

3 it on on the PRV 7 for what would be -- I mean this is a

4 two-convictions case. If youre gonna count it in 1997,

5 its two convictions. Its one or more. And I think that

6 that would have been the appropriate score which would

7 have put it at 10. I dont know that that makes a

8 difference per se on the PRV totals, but I think its

9 something to consider and Id ask the Court, encourage the

10 Court to make such a finding.

11 THE COURT: Is that it?

12 MR. KOMORN: On PRV 7.

. 13 MS. HAGAMAN-CLARK: Judge, the PRV 7 back in

14 1997 indicates to score 20 points for two or more

15 subsequent or concurrent convictions. The use notes

16 indicate score the appropriate point value when the

17 offender is convicted of multiple felony counts or is

18 convicted of a felony subsequent to the commission of the

19 instant offense. Thats exactly almost word for word the

20 same as what it is today in todays sentencing guidelines

21 for PRV 7.

22 Now whether or not if the defendant would have

23 been given five points or 10 points back in 1997 is

24 irrelevant. He is charged and convicted today. The

25 guidelines standard that we use are the book from 1997 and

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1 it indicates to score 20 points in this particular case.

S 2 So 20 points is appropriate.

3 MR. KOMORN: If I may just respond.

4 To suggest that there is something unique about

5 how you would evaluate this is disingenuous. And when you

6 look at the sentencing as this -- as the guidelines direct

7 you to, we are talking about a person thats been

8 convicted at a specific time.

9 This conviction took place 13, 15 years later.

10 To suggest that this is just you read it and you assess it

11 that particular way, I dont think its a fair assessment.

12 Because had this taken place in 1997, it would be a

S13 completely different story; all different types of factors

14 and circumstances that would have gone into it.

15 Unfortunately, we dont have that. And now to pretend

16 that this took place and he got convicted in 1997 and

17 were evaluating things afterwards is just patently

18 unfair. Because if you look when he was convicted 2012,

19 there is two convictions. Subsequent to that, after this

20 nothing as far as we know. So how are we gonna —— I mean

21 you cant have it both ways.

22 So Id suggest that you evaluate from the time

23 of the conviction cause thats when he is getting

24 sentenced and thats when the Court is reflecting on.

5 25 MS. HAGAMAN-CLARK: But thats not what the use

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1 instructions tell us to do. The use instructions are

5 2 specific; theyre very clear. The defendant was convicted

3 of home invasion second degree on May 8, 1998, and again

4 convicted of receiving and concealing stolen property over

5 $20,000 on April 29, 2005.

6 THE COURT: I agree. And I think the 20 points

7 is appropriate.

• 8 MS. HAGANAN-CLARK: Thank you.


10 MR. KOMORN: I have noted PRV 6 should be five

11 points and not 15.

12 MS. HAGAMAN-CLARK: PRV 6 relies or indicates

S13 prior relationship to criminal justice system. Fifteen

14 points is appropriate if post-conviction relationship

15 exists, or the offender committed the instant offense

16 within six months of termination of probation or parole.

17 A post—conviction relationship exists if at the time of

18 the instant offense the offender was incarcerated,

19 incarcerated in jail, on parole or probation.

20 The defendant was on probation for the B&E

21 building that he was convicted of back on January 4, 1995.

22 He was not discharged from probation until February 2,

23 1998. So at the time of the offense, he was on probation.

24 Clearly the use notes indicate that the defendant should

5 25 be scored 15 points.

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1 MR. KOMORN: And I would just respond the same

5 2 argument that were still looking at it from him being

3 convicted in 1997 and applying the time and place then to

4 his sentencing today in 2012.

5 And whats more is I believe that if you

6 evaluated his circumstance under the 2012 guidelines, it

7 would have only been five points that he actually go on

8 from 1997, and the choices of status at the time of

9 conviction I think limited to either 0 or 20 points. Its

10 not broken down in the current guidelines 20 points if

11 youre incarcerated, awaiting, and then it goes down to I

12 think five points if youre on probation which would have

S 13 been the situation he was in in 1997. But, nonetheless,

14 any way you look at it, it is a pile-on on his guidelines

15 because —-

16 THE COURT: I think -- lets just go with

17 reality, the reality of the situation. He was where he

18 was when this crime was committed, and hes been found

19 guilty of committing this crime.

20 I think that 15 points is correct.

21 MR. KOMORN: And just for the record -- Ill

22 move on. Just the sentencing guidelines usually in

23 assisting the period of time relates to the conviction

24 time as well.

5 25 For some reason, inherent in a sentence is

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1 considered the actual time of the conviction. I think

5 2 that has just been a loose variable thats been moved

3 around from 2012 to 97..

4 THE COURT: It doesnt say that. It says --

5 MR. KOMORN: I know. I am just making a record.

6 THE COURT: It says when the crime occurred.

7 Anything else?


9 MS. HAGANAN-CLARK: No, judge. I believe that

10 makes his total PRV score 65.

11 THE COURT: Yes.

12 MS. HAGAMAN-CLARK: It makes him a Record Level

13 D.

14 THE COURT: Okay. What about the OVs?

15 MS. HAGAMAN-CLARK: Judge, I believe that the

16 offense variables are properly scored except for offense

17 variable 13 and offense variable number 25.

18 But I note defense counsel disagrees with some

19 of the earlier guidelines, so perhaps we should begin at

20 . the beginning.

21 THE COURT: Yes, of course. Go right ahead.

22 MS. HAGAMAN-CLARK: Offense Variable Number 1

23 deals with aggravated use of a weapon. It indicates to

24 score 15 points if a firearm was pointed toward the victim

5 25 or the victim was touched by any other weapon.

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1 I believe that the testimony in this case showed

5 2 that the defendant was armed with a handgun. That was

3 testified to by both Ms. Audrey Polk as well as her son

4 Thurmon Polk. And while the jury found the defendant not

5 guilty on that, under People versus Perez cited at 255

6 Mich App 703, the Court of Appeals indicates that a

7 sentencing court only must find by a preponderance of the

8 evidence that there was in fact facts that could support

9 scoring the offense variable.

10 And it goes on to talk about a case where the

11 court scored for that penetration even though the

12 defendant was found not guilty of the penetration but only

S13 guilty of the touching. It found that that was

14 appropriate. So I do have a copy of that case if the

15 Court would like to see it.

16 And I think that certainly the facts of this

17 case show that the defendant was armed with a weapon by

18 the preponderance standard and that 15 points is

19 appropriate for OV 1.

20 THE COURT: Thank you. Mr. Komorn.

21 MR. KOMORN: I mean why have juries if -- and I

22 know that the standard is lower, but clearly the jury

23 rejected the testimony. And the suggestion that the sons

24 testimony was reliable, that this Court could make a

5 25 finding as such I would disagree with.

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1 If I recall correctly, he had had his own

5 2 medical condition where he had, I think had been in a coma

3 possibly from a gunshot or something, and testified that

4 he did not have a good memory of what happened, I think

5 essentially concluded that he could not reflect on any of

6 that. Also, the sister who was in the room does not

7 testify about seeing a gun.

8 It would be evidence to the contrary of what the

9 prosecutor would suggest would make that a preponderance

10 standard, and for those reasons Id ask you to find as the

11 jury did that there was no weapon and that PRV should be

12 scored a 0.

S13 THE COURT: Okay. Well I agree that the jury

14 did find -— I dont think the jury rejected the

15 complainants testimony. I think they just decided it

16 didnt prove beyond a reasonable doubt that he had a

17 firearm.

18 However, I am certainly convinced by a

19 preponderance of the evidence that he had a firearm. So I

20 think the 15 points is appropriate.

21 MS. HAGAMAN-CLARK: Thank you, judge.

22 Moving on to Offense Variable Number 2, Offense

23 Variable 2 deals with physical attack and/or injury.

24 Its currently scored at 25 points and I do

5 25 believe that thats appropriate. Twenty-five points is

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1 warranted when there is bodily injury and/or a victim is

2 subjected to terrorism. Terrorism is conduct that is

3 designed to increase substantially the fear and anxiety

4 that the victim suffers during the offense.

5 I think that its appropriate on both fronts.

6 First, Ms. Polk was required to seek medical treatment for

7 the sexual assault. She received medication and treatment

8 for the possible sexually transmitted diseases. But also,

9 more importantly in this case, the terrorism element I

10 think, I believe comes from the fact that she was sexually

11 assaulted in her own home, in her own bed while her

12 children were laying beside her.

. 13 I dont think that there is a situation where a

14 woman could be anymore terrorized than by being told to

15 shut up as she is praying for the safety of herself and

16 for her children. So I do think that the fact warrants 25

17 points.

18 MR. KOMORN: I would disagreement (sic).

19 I think the intent of that is to evaluate

20 whether there is any injury. As it states -- I think that

21 we had testimony from a physician stated there wasnt any

22 physical injury of any kind. She had described a

23 certain-- probably forgot what he said, but it was

24 something related to a kind of flat demeanor. But that

25 would not make it in and of itself suggest any evidence of

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1 an injury or psychological or other. And had there been,

5 2 Im sure that there would have been some substantive

3 evidence that was presented. I dont think its enough

4 just to say, you know, I was hurt and I was

5 psychologically affected is enough to substantiate that

6 PRy. And I would suggest even beyond the injury, the

7 suggestion of terrorism would not have been met either.

8 And under the requirements to substantiate the

9 OV scoring of 25, I would ask you to find it 0.

10 THE COURT: I think 25 is appropriate.


12 MS. HAGANAN-CLARK: Judge, the next two offense

S13 variables five and six are both scored at 0.

14 I believe that thats appropriate.

15 THE COURT: And seven?

16 MR. KOMORN: I dont argue with that.

17 THE COURT: Okay.

18 MS. HAGAMAN-CLARK: Offense Variable Number 7

19 deals with offender exploitation of victims

20 vulnerability. Its currently scored at five points.

21 believe that that is appropriate. It indicates to score

22 five points if the offender exploits the victim through a

23 difference in size, strength or because the victim was

24 intoxicated, under the influence of drugs, asleep or

25 unconscious.

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1 I believe that she —— that there is a difference

5 2 in size and strength, but more importantly I think that

3 the testimony showed that she was asleep at the time that

4 the defendant came into the apartment and began the sexual

5 assault. So I think that five points is appropriate.

6 THE COURT: For seven?

7 MS. HAGANAN-CLARK: Yes, for Offense Variable 7.

8 THE COURT: Yes.

9 MR. KOMORN: I would disagree.

10 I think the intent of that if -- is if youre

11 picking on a victim that is physically weak, smaller in

12 size, smaller in stature, has some kind of disability that

S13 youre taking advantage of. I dont think that criteria

14 set out in OV 7 would apply to this case.

15 For that reason, I would object.

16 THE COURT: I think five points is appropriate.

17 MS. HAGAMAN-CLARK: Offense Variable Number 9 is

18 scored at 0. I believe thats correct.

19 . MR. KOMORN: No objection.

20 MS. HAGAMAN-CLARK: Offense variable 12 is

21 scored at 0. I believe that that is correct.

22 MR. KOMORN: No objection.

23 MS. HAGAMAN-CLARK: Offense variable 13 deals

24 with psychological injury to a victim. It indicates to

25 score five points if serious psychological injury to the

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1 victim or the victims family necessitating professional

5 2 treatment.

3 Within the body of the presentence investigation

4 report, Ms. Polk has given an impact statement where she

5 indicates that she has received psychiatric counseling

6 because of this incident, this offense, over the years,

7 and that she still suffers from the affects emotionally as

8 well as mentally. And I believe that she is prepared to

9 talk about that after I have had my say. But I do think

10 that five points is warranted.

11 THE COURT: For 13?


S13 MR. KOMORN: You know, we have the same

14 discussion, same facts argued in OV 2 which is scored 25

15 points which incapsulate those assertions factually. I

16 dont know why there would be an ability here to double --

17 in fact, I even think the current guidelines eliminates

18 that conflict where there would be a double-dipping

19 scoring in this instance.

20 I dont think its appropriate. And the same

21 fact were used, as I said, in OV 2. So I would ask the

22 Court to find OV 13 at 0.

23 THE COURT: No, I think five points is

24 appropriate.

5 25 MS. HAGAMAN-CLARK: Thank you, judge.

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1 And then as it relates to Offense Number 25,

5 2 its currently scored at five. I believe it should be

3 scored at 0.

4 THE COURT: I think it -- you have no objection

5 to that?

6 MR. KOMORN: Right.

7 MS. HAGANAN-CLARK: I believe that remains a

8 total score then of PRVs of 50 and makes him a Level 4.

9 THE COURT: Yes.

10 MS. HAGAMAN-CLARK: I have calculated the

11 guideline range of 240 to 480 months or life.

12 THE COURT: Would you agree that thats a

S13 correct calculation based on the scores?

14 MR. KOMORN: Yes.

15 THE COURT: Okay.

16 MS. HAGAMAN-CLARK: Judge, using those same

17 offense variables in the same PRV variables for the home

18 invasion, I have him scored at 60 months to 120 months.

19 THE COURT: Okay. Thank you. Do you think

20 thats correct?

21 MR. KOMORN: I would have all the same arguments

22 as it relates to those OVs and PRys and assume the Court

23 found the same, and for that I would not object to that

24 scoring.

5 25 THE COURT: Thank you.

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1 MS. HAGAMAN-CLARK: And just for the record, I

5 2 would quickly argue or just quickly state for the record

3 that the PRVs would remain the same, same scoring that

4 weve already talked about on the burglary grid. OV 1

5 would be 15, OV 2 would be 25, OV 11 would be 10, and OV

6 13 would be five, bringing it to a total score of 55.



9 THE COURT: Anything else -- I understand the

10 victim would like to speak.

11 MS. HAGANAN-CLARK: Yes, judge. The victim is

12 in court today and she would like an opportunity to

S13 address this Court prior to sentencing.

14 THE COURT: Okay. Great.

15 Now the report and the guidelines are all done

16 with, correct?

17 MS. HAGAMAN-CLARK: Yes, judge.


19 THE COURT: Thank you. And if you will have a

20 seat there, Ms. Polk will speak.

21 THE COURT: Ms. Polk, please state your name

22 first and then please proceed with your statement.

23 MS. POLK: My name is Audrey Polk, and I was

24 taught what you did in the dark came to light.

5 25 When you did what you did, woke me up like that

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1 when my kids were there, now the weight is off my chest;

5 2 now its on yours.

3 Imagine a little boy laying next to his mother

4 while a man is doing that and hes six years old and he

5 cant even help his mother. So he lived the rest of his

6 days angry and fighting people, and I had to deal with

7 that because of what you did. I know you dont care. You

8 really dont care.

9 I couldnt even talk to men cause I didnt know

10 if you was him. I couldnt even talk to nobody.

11 My heart goes out to your wife. I hate to see

12 people hurt, but you ruined my whole life, me and my

S13 kids, and it aint nothing ever gonna change that, never.

14 I just -- Im happy that God made all of this

15 come to light. I dont have to worry about if its this

16 dude or if its that dude. Constantly locking my doors

17 and checking my windows. Now I dont even have to do that

18 no more cause now I know. I know now. If it wasnt for

19 whatever triggered this evidence room, Ill still be

20 somewhere up on a shelf with the rest of the ladies.

21 And I hope and pray to God that they continue

22 this project so they can get justice just like I did. It

23 took 15 years. I never thought Id see this day ever.

24 knew you got away with it. I knew you did. And I know

25 there is a God and you just cant do it. Just cant do

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1 it.

5 2 I want to thank everybody, the Prosecutors

3 Office, Kym Worthy, Danielle Clark, Project 400, Michigan

4 State Police, all the witnesses, all the different

5 entities that got involved in this so that I could have

6 justice.

7 When they found. you guilty on May 3rd about

8 3:29, I was born all over again. I felt free. Im free.

9 I always knew youd pay for what you did, but I never knew

10 how Id find out. I didnt think Id find out ever. I

11 never thought it would come to this and I thank God it

12 did. I really thank God that everybody involved that made,

S13 it happen, Wayne County SAFE, everybody. Everybody that

14 played a part in this helped me get my justice. Now I can

15 live. I can just live now.

16 THE COURT: Thank you, Ms. Polk.

17 MS. HAGAMAN-CLARK: Your Honor, there is not

18 much that I can say that speaks anymore eloquently than

19 what was just said.

20 There is a lot of discretion in this case. The

21 legislative guidelines did not go into effect until I

22 believe 1999, so the guidelines that you have before you

23 at 240 months up to 480 are a recommendation and they are

24 presumed to be -- theyre presumed to be a sentence that

25 is proper. But this Court can -- has the discretion to do

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1 whatever it chooses to do.

5 2 Having heard the facts of the case, having heard

3 the testimony and allocution by Ms. Polk, though, I would

4 ask this Court for a sentence at the top of the

5 guidelines.

6 Thank you.


8 Mr. Komorn, Mr. Jackson, you may step forward.

9 Mr. Komorn, what would you like to say first?

10 MR. KOMORN: Judge, we had a jury trial. There

11 was a lot of unusual things I think that went into this.

12 I dont think that that can be denied.

S13 And while we litigated some of those in terms of

14 what we described as a disadvantage of trying the case at

15 the time that it was and not having the benefit of a real

16 investigation at the time that may have flushed out other

17 issues, we do stand here understanding what the jury ruled

18 or decided. But there was something important I do want

19 the record to reflect which was that they did, as

20 reflected in one of the notes that came out, draw some

21 kind of emotion from the people that were in the gallery.

22 I know one of the jury notes suggested that, in

23 light of the fact that the jury found my client not guilty

24 of two of the counts, and as the Court indicated would at

5 25 least at a minimum suggest they didnt believe beyond a

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1 reasonable doubt that issue, seemed as if there were a lot

5 2 of factors, external factors that may have played an

3 important fact in the outcome of this case. And that

4 being one of them that the jury was obviously drawing

5 conclusions and having fear from other people that were in

6 the courtroom and associated those people with my client.

7 Thats not evidence, but for some reason that made its way

8 in the jury deliberations. I want the record to be clear

9 of that.

10 But moving forward, judge, you know, since 1997

11 my client was married. Hes got a family. If you read

12 the presentence report and his background, its not one of

S13 a person that would have these kind of guidelines hanging

14 over their head. You would find that hes been a

15 relatively responsible citizen in the last 15 years. Hes

16 gotten his education. Hes gone to Specs Howard School.

17 Hes got a degree there. Hes been working regularly.

18 Thats all been verified. He got married. Hes got a

19 family. He takes care of his kids.

20 And as was pointed out by the victim in this

21 case, there is a lot of people, especially his wife and

22 family that goes along with it, that are gonna be

23 devastated by that. A change thats gonna take place in

24 the prison sentence. And I want -- I hope the Court will

5 25 consider that as far as what happens.

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1 I mean theres been a period of time, and I

5 2 understand.the Courts goal is to sentence so that there

3 is a punishment that is served, but the uniqueness of this

4 case, I think circumstances -- I think Im asking the

5 Court to be encouraged in using a discretion thats more

6 reasonable than was suggested by the prosecutor.

7 The Court knows its not compelled by the

8 guidelines. It can get —- create essentially any sentence

9 assuming that it comports with the statute of some kind of

10 prison sentence. But -- and I would ask the Court to

11 consider a much lower sentence.

12 There has been a long time. You know, if -- I

13 would suggest that the Court can look at his behavior, his

14 responsibilities in the community, contemplating his

15 likelihood of rehabilitation, all of those things in the

16 way that hes behaved over the last 15 years knowing that

17 to be the case. And I think that would be substantive,

18 substantive basis that the Court could render a much more

19 reasonable sentence, something even below the guidelines.

20 I would encourage the Court to do that in light of

21 everything.

22 And thats all. Thank you.

23 THE COURT: Mr. Jackson, what would you like to

24 say, sir?

5 25 THE DEFENDANT: Maam, this case was basically

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1 he say, she say case. And I know it had no relevancy in

5 2 the court, but I did pass a polygraph. And Im not that

3 type of person.

4 I do have a statement that I would like to read

5 to you.

6 THE COURT: You may go right ahead.

7 THE DEFENDANT: It starts off I stand here today

8 before you, Your Honor, a changed man from whom the Court

9 sees on paper. I have been for many years, and I worked

10 hard who be that person.

11 I used to be a petty thief only because I

12 thought there was no other way for an uneducated person to

S13 provide for his family. I had a four-year-old daughter

14 that I had full custody of at the time. And I was raised

15 very poor and I chose the wrong path and the wrong vice to

16 produce financial stability for my daughter and I. I

17 thought being a petty thief was at the time a better

18 choice of any other criminal I could have become because

19 being a petty thief allowed me to provide money for my

20 family without putting myself in a position to hurt

21 anyone.

22 As I got older, I was stricken with a lot of

23 guilt for being that petty thief. One reason was because

24 my daughter was convinced by a classmate to steal a dollar

5 25 from her teachers desk and I had to punish her for that.

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1 And it was hard to punish her for that when I was under

2 those same influences.

3 So I worked hard over those years to remove

4 myself for this -- from that stigma and I live by an

5 example, and over those years I became a tax-paying,

6 law-abiding citizen. I had first to complete my

7 education, then I began to build a number of businesses

8 for myself so I can provide for natural stability for her

9 and I. I started a recording company studio. I started a

10 videographer editing and recording company. I started and

11 maintained a lawn service removal company and snow removal

12 company, and I also worked for AAA Quality Roofing.

S13 I worked to remove myself from crime which

14 wasnt hard because I was only after monetary gain. I

15 have never had assaultive or violent behavior towards

16 anyone, which my record reflects.

17 It takes a sick and twisted person to be a

18 rapist, and those people dont stop until theyre caught.

19 I am not, nor never have I been that type of person even

20 by one percent. I wont stand here and proclaim my

21 innocence, but I can never accept this. And I hope the

22 Court can accept that without punishing me extra.

23 The DNA evidence is supposed to be a hundred

24 percent. But the Innocence Project had proven that

25 innocence of over 250 men that have been wrongly convicted

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1 by DNA evidence when there was supposed to be -- they were

5 2 supposed to be the sole contributor of that DNA.

3 I have spent my life caring and raising women

4 from four sisters to three daughters. Theyre all grown

5 women doing well in society.

6 I hope the Court can see by my lengthy time away

7 from the jail system and by my record that only reflects

8 petty theft crimes that Im not a threat to society. And

9 I hope not to be punished as if I have been out here in

10 society taking part in this activity that I also despise

11 myself.

12 My wife and an ex-girlfriend of mine suffered

O13 the same -- suffered the same affects as Mrs. Polk. And I

14 would not be standing here with no remorse for raping

15 someone as horrible as that would be. I love and respect

16 all women. I have had some overnight stands and Ive had

17 some flings, but I have always been a one—woman man from

18 the first girlfriend Ive ever had to the loving wife I

19 have today. I have been with her for over 14 years. I

20 dont possess a dominating personality and my wife runs

21 and control my household as I was raised.

22 I worked for the PAL youth league for the

23 Westside Steelers as a volunteer. Ive been responsible

24 for giving young men hope and direction and providing jobs

25 for eight youths through my lawn service company. I gave

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1 up crime years ago, a lot of years ago, because I never

2 wanted to go to prison. And I never wanted to give up my

3 family and have my freedom taken from me.

4 With the Project 400, I never got a fair chance.

5 The one thing that could provide my innocence and prove my

6 credibility was rejected by Ms. Hagaman, even though I

7 passed. Where was my justice?

8 I pray that one day Im allowed to get back to

9 my family and my grandchildren lives and continue on my

10 path to righteousness to live in the nine fruits of the

11 spirit. So I throw myself on the mercy of the courts to

12 help me.

13

THE COURT: Anything else, sir?

14 THE DEFENDANT: No. Thats it.

15 THE COURT: Okay. On the charge of home

16 invasion in the first degree, I sentence you to a minimum

17 of 10 years and a maximum of 20 years in the Michigan

18 Department of Corrections.

19 On the charge of criminal sexual conduct first

20 degree, I sentence you to 30 years -- minimum 30 years and

21 maximum of 50 years in the Michigan Department of

22 Corrections.

23 You have credit for 108 days that you served in

24 jail. And you have 42 days from todays date to appeal

25 your conviction and sentence to a higher court.

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P •

1 (The proceedings were concluded at about 11:51 A.M.)

3 CERTIFICATE

4


6

7 COUNTYOF WAYNE

8

9

10 I, Betty Sanders, CSR-2931, and Official Court



13

hereby certify that the foregoing pages 1 through 33,


15 the proceedings and testimony taken in the matter of the

16 People of the State of Michigan versus ANTONIO JACKSON, on

17 Thursday, May 31, 2012.

18

19

20

21

22 Betty Sanders, R-2931


24

25 DATED: This 15th day of August, 2012.

33

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J~7t7~~RIGINAL

1 STATE OF MICHIGAN

2 IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

3 CRIMINAL DIVISION

4 ______________________________________________

5 THE PEOPLE OF THESTATE OF MICHIGAN,

6Plaintiff,

7vs. ) Case No. 11—012637—01—FC

8ANTONIO JACKSON,

9Defendant.

10 __________________________________

11 RESENTENCE

12 BEFORE THE HONORABLEJAMES A. CAL~JAHAN

13 FRANK MURPHYHALL OF JUSTICE:.Z

14 1441 ST. ANTOINE - COURTROOM-~

15 FRIDAY, MAY 30, 2014 ~x

16 APPEARANCES:C)

17 For the People: WAYNECOUNTYPROSECUTORSOFFICEBy: Suzette Samuels, Esq. (P51796)

18 1441 St. Antoine — 10th FloorDetroit, Michigan 48226

19 (313) 224—5777

20 For the Defendant: Jonathan B.D. Simon, Esq. (P35596)P.O. Box 2373

21 Birmingham, Michigan 48012(248) 433—1980

~ ~M4R082018 /PrO~ed

APPELLATE OEFENQER OFFICE

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p8:35:21 1 Detroit, Michigan 2

2 Friday, May 30, 2014

3 (At about 10:31 A.M.)

4

5 THE COURT: Calling Case Number

6 11—012637-01-FC, People of the State of Michigan

7 versus Antonio Jackson. Appearances, please.

8 MS. SAMUELS: Good morning, Your Honor.

9 Susan Samuels for the People.

10 MR. SIMON: Jonathan Simon for

11 Mr. Jackson.

12 THE COURT: Wow.

13 MS. SAMUELS: I know, Judge.

14 THE COURT: Were going to have to keep

15 your talking down to a minimum then, huh?

10:31:28 16 MS. SAMUELS: Make a lot of people happy.

17 THE COURT: Todays the date and time

18 scheduled for resentencing of Mr. Jackson. Have you

19 had the opportunity of reviewing the presentence

20 investigation report?

21 MR. SIMON: Yes, Your Honor.

22 THE COURT: Is it factually accurate now?

23 MR. SIMON: There is one discrepancy, it

24 seems kind of minor, but it does affect the

25 guideline calculation.

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2 MR. SIMON: At the bottom of page 1, it

3 indicates that his adult record —— well, the last

10:31:58 4 lii~e carrying on to page 2, at the time of the

5 within offense, 1997, he was serving a probation

6 sentence of B and E of an occupied dwelling, and

7 thats not true. The fact is that B and E came

8 later. Its a subsequent offense. The offense for

9 which he was on probation was actually B & E of a

10 building which is a low severity felony conviction.

11 So it will make a difference later in terms of

12 calculation.

13 THE COURT: Do you agree?

14 MS. SAMUELS: No, I dont agree. I think

15 they checked it out here, they went through that

10:32:29 16 before. Weve gone through this before. B and E

17 occupied dwelling with intent, the matter was closed

18 without improvement on February 2, 1989, and I

19 believe all of the PRVs are scored correctly; that

20 were only here to take up home invasion which was

21 banned by statute of limitations. The guidelines

22 dont change in this matter at all.

10:32:57 23 MR. SIMON: Judge, the -— looking at the

24 adult history, it shows that number -— well, number

25 4 ——

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1 THE COURT: Number 2 and 6, breaking and4

2 entering of an occupied building with intent?

3 MR. SIMON: Yes.

4 MS. SAMUELS: Thats correct, Judge.

10:33:29 5 MR. SIMON: It shows that that was a 1998

6 case, and this offense was alleged to have occurred

7 in 1997. So he could not have been on probation for

8 a 98 case at the time hes charged with committing

9 an offense in 1997. It does, however, show that

10 there was a B and E of a building, a ten year low

11 severity felony, which was —- for which he was on

12 probation, and then that was subsequently closed

13 out.

14 MS. SAMUELS: Im not sure which one hes

15 referring to, Your Honor.

10:33:59 16 THE COURT: Yeah.

17 MS. SAMUELS: Because the one you --

18 number 2 is a 1994 offense.

19 THE COURT: Right.

20 MS. SAMUELS: He pled in 95, and he was

21 discharged in 98.

22 MR. SIMON: Yes, and thats a building.

23 Its not an occupied dwelling. Thats a low

24 severity conviction. Its not an occupied dwelling.

25 THE COURT: No, it is an occupied. It


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1 says breaking and entering of an occupied building

2 with the intent.

3 MR. SIMON: A building, not a dwelling.

4 THE COURT: An occupied building.

5 MS. SAMUELS: Correct.

10:34:30 6 MR. SIMON: Well, I think this is before

7 the home invasion statute. B and E of an occupied

8 dwelling and there was B and E of a building. An

9 occupied dwelling, whether theres people in it or

10 not, its still a 15-year felony, and B and E of a

11 building was a 10-year felony. The word —- the use

12 of the word occupied I think is inconsistent with

13 the word -— use of the word building. It doesnt

•0:34:58 14 say dwelling. It says building. To me thats a

15 ten—year felony which would indicate that there

16 would also be changes in guideline with respect to

17 subsequent, concurrent felony convictions, prior

18 high severity felony convictions, a number of issues

19 which well address later when we go through the

20 guidelines.

21 MS. SAMUELS: Thats just simply not the

22 state of the law. Whether he takes issue with

23 building or dwelling, when the legislature looked at

24 it, it was the occupied, and put it in this class

25 that it was in. It doesnt change it from a high


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p0:35:30 1 severity. Excuse me. 6

2 MR. SIMON: It does not state in the

3 state in the statute. It doesnt say whether its

4 110 or 115.

5 THE COURT: One person at a time,

6 Mr. Simon. If you want to talk, there wasnt any

7 interruption by you. So, Madam Prosecutor.

8 MS. SAMUELS: Yes, Your Honor.


10 MS. SAMUELS: And it stays the same. It

11 doesnt change. Its the occupied. It doesnt

12 matter whether its the 10 or the 15 the way the

13 legislature put it as to whether its a high

14 severity or low severity, and thats just not the

10:35:58 15 law what hes saying.

16 THE COURT: And this particular

17 connection was on a low severity crime -— or low

18 severity felony or a high severity?

19 MR. SIMON: Im sorry. To whom was that

20 question addressed?

21 MS. SAMUELS: Im sorry, Judge, which

22 one?

23 THE COURT: That breaking and entering of

24 an occupied building with intent.

25 MS. SAMUELS: I believe they calculated

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1 it as a low, but it is actually a high. But its

2 already calculated the way hes arguing it, the way

3 Im looking at it.

4 THE COURT: As a low severity.

5 MR. SIMON: It does not state a statute.

10:36:28 6 It says a building. And I think, to me, the word

7 occupied is surplusage. Because whether -- if

8 its a building, it doesnt matter whether its

9 occupied or not.

10 THE COURT: Irene, see if you can get on

11 the computer. Can you bring up that Case Number,

12 94?

13 MS. SAMUELS: I would say if it doesnt

5 14 matter whether its a building, if its occupied or

15 not, then why even put the word in there? Why just

16 say not -- why dont you just say B and E of a

17 building?

18 THE COURT: That was the distinction

19 years ago, being an occupied building or an

20 unoccupied building.

21 MR. SIMON: No, it wasnt. The

10:36:58 22 distinction was between an occupied and an

23 unoccupied dwelling. Now there was no distinction

24 whether the building was occupied or not.

25 COURT CLERK: Is that 941279, Judge, is


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1 that the one? 8

10:37:19 2 THE COURT: Yes. Were going to take a

3 short break at this juncture. Take the defendant in

4 the back.

5 (Recess)

10:37:53 6 THE COURT: Recalling Case Number

7 11-012637-01-FC, People of the state of Michigan

8 versus Antonio Jackson. Again, appearances, please.

9 MS. SAMUELS: Yes, good morning again,

10 Your Honor. Suzette Samuels for the People.

11 MR. SIMON: Jonathan Simon for

10:43:24 12 Mr. Jackson. Judge, I reviewed the computerized

13 records of the Wayne Circuit Court. It appears as

5 14 though it was a B and E of an occupied dwelling.

15 The report was misleading when it said building,

16 so apparently that should be corrected. The word

17 building should be changed to dwelling.

18 THE COURT: Okay, well change that to

19 dwelling.

20 MR. SIMON: With that the report is

21 correct, and also it will not make any changes in

22 the prior record variables. However, with respect

10:43:58 23 to the report itself, the reason why we werent

24 here -— we didnt do this two weeks ago is because

25 we had requested an update of the institutional


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5 1 record and also, of course -- I think there was some9

2 correction of the time -- credit for time served.

3 But more importantly the institutional record, there

4 is now an indication in the report beginning at the

5 bottom of page 6 indicating that during the

10:44:29 6 defendants incarceration, he has not received any

7 misconduct tickets. He has earned his GED. What it

8 doesnt indicate is that hes also employed there at

9 the prison. He works in the kitchen. Hes a cook.

10 And so I would ask later when we allocute with

11 respect to a sentence that the Court take into

10:44:56 12 consideration what Mr. Jackson has been doing for

13 the last few years, and all of it apparently to the

14 good.

15 Again, because the report correctly

16 indicates that it was -— the bottom of the report

17 that its a B and E of an occupied dwelling,

18 notwithstanding the indication in the offense

19 section about a building, then I would agree that

10:45:24 20 the prior record variable is correct, it is a D.

21 And I would limit my argument then to the offense

22 variables.

23 THE COURT: All right. And in regard to

24 the offense variables, what should they be scored?

25 MR. SIMON: Well, Your Honor, offense


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1 variable 1, aggravated use of a weapon. Now 10

2 Mr. Jackson was originally charged, in addition to

3 home invasion 1, CSC 1, he was charged with felon in

4 possession of a firearm and felony firearm. He was

10:45:59 5 found not guilty of felon in possession of a

6 firearm. He was found not guilty of felony firearm.

7 And I would ask the Court to respect the jury

8 verdict and therefore change the scoring for OV 1

9 where he was receiving 15 points for a firearm

10 pointed toward victim or touching with another

11 weapon to be changed to zero given the fact that the

12 jury has found that he is not guilty of the firearm

13 offenses.

50:46:26 14 Now I understand currently under the

15 legislative guidelines the current state, I believe,

16 of the Michigan law is to score these variables

17 based upon a preponderance of the evidence. Im not

18 certain that was the state of affairs back in 1997

19 when the judicial guidelines were in effect.

20 Nevertheless, I believe that in many other states

21 they do respect the verdict of the jury in terms of

10:46:59 22 scoring the guidelines and not scoring certain

23 offenses which were found to be not cognizable by

24 the jury, and there is a good dissent by -— of the

25 Michigan Supreme Court given certainly that it is a


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5 1 dissenting opinion. Its not persuasive. But I

2 mean its not binding, but I think it is persuasive

3 that its not good practice to score points for

4 things which the jury found Mr. Jackson not guilty

10:47:28 5 of. I respectfully request the Court to discount

6 the 15 point assessment for OV 1.

7 MS. SAMUELS: I couldnt disagree more.

8 Its properly scored. If you look at the

9 information in this case, criminal sexual conduct in

10 the first degree, one of the aggravating

11 circumstances is with a weapon, and thats what they

12 found him guilty of. The elements for the felon in

13 possession and the felony firearm are markedly

50:47:59 14 different, and you can understand why they could

15 come to that decision. But the fact of the matter

16 is they did convict him on criminal sexual conduct

17 in the first degree with a weapon used as one of the

18 aggravated circumstances. So scoring 15 not only

19 would be legal now, it was legal then; it is

20 supported by the evidence.

21 THE COURT: What evidence was elicited

22 during the course of trial to establish that?

23 MS. SAMUELS: I wasnt the trial lawyer.

24 Otherwise home invasion would have been taken care

10:48:29 25 of then. However, I do remember the case. And she


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. 12

1 indicated that she was sleeping.

2 THE COURT: The victim.

3 MS. SAMUELS: She was sleeping in her

4 room with her child, her young child in the room

5 with her when she awoke to the defendant with a

6 weapon in his hand, a gun, who put it up to her

7 head, had it laying next to her head during the

8 sexual assault, and I believe she was threatened

9 with that gun. I dont know if he specifically

10 threatened the child, but I do know she was begging

10:48:59 11 for the life of her child. So there was testimony

12 by the victim that a weapon was used and was charged

13 that way. He was convicted on that count, and then

5 14 the elements for felony firearm and felon in

15 possession would have been markedly different than

16 the criminal sexual conduct in the first degree,

17 aggravated circumstance, one of them, with a weapon.

18 It is properly scored at 15.

19 MR. SIMON: Judge, the jury is certainly

10:49:28 20 allowed to be inconsistent in their verdicts. We

21 dont know why they came back first degree criminal

22 sexual conduct after having found Mr. Jackson not

23 guilty of felony firearm and not guilty of felon in

24 possession of a firearm. I dont think that we can

25 assume it was because they did find that he used a



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1 gun in the commission of a CSC while at the same 13

2 time finding that he did not have a gun for purposes

3 of felon in possession and felony firearm. I dont

4 know if we could attribute any reason for the

5 verdict. Certainly I think the most compelling

10:49:58 6 evidence that there was no weapon used was the fact

7 that they acquitted him of the weapons violation.

8 THE COURT: Well, they must have thought

9 that he was guilty of having some weapon because it

10 was a criminal sexual conduct in the first degree,

11 true?

12 MS. SAMUELS: Thats true. And the

13 elements are quite different when youre reading the

14 elements of a felony firearm. And by counsels own

15 arguments of preponderance of the evidence, there is

16 evidence on the record by the victim that he --

17 THE COURT: Well, they may have perceived

10:50:25 18 that the weapon was something other than a gun. OV

19 1 is properly scored at 15 points.

20 MR. SIMON: Moving on --

21 THE COURT: OV 2.

22 MR. SIMON: Variable 2, he received 25

23 points for bodily injury and/or subjected to

24 terrorism. I dont know that there was any

25 testimony about bodily injury. I dont know that


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1 theres anything in the presentence report about

2 body injury. As far as terrorism is concerned, I

10:50:56 3 would argue that —— against that and without any

4 further comment and ask the Court to rescore OV 2

5 down from 25 to zero points.

6 THE COURT: Ms. Samuels.

7 MS. SAMUELS: Yes, that specifically was

8 addressed by the Court of Appeals in their opinion.

9 And if you look at page 3, the defendant —- of the

10 Court of Appeals opinion of March 6, 2014, the

11 defendant actually took that variable up on appeal

12 on terrorism, and the Court of Appeals affirmed that

10:51:29 13 terrorism is defined by the guidelines as, quote,

14 Conduct that is designed to increase substantially

15 the fear and anxiety that the victim suffers during

16 the offense. The Court of Appeals went on to say:

17 In this case, given the victims testimony, that

18 the assault occurred in the apartment where she was

19 staying in the bed she was sharing with her two

20 young children and at gunpoint, the trial court did

21 not abuse its discretion in imposing 25 points for

22 terrorism.

10:51:58 23 Not only did the Court of Appeals address

24 the issue of terrorism, they also used the word at

25 gunpoint. It is properly scored at 25, and its


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1 been affirmed by the Court of Appeals.

2 THE COURT: All right, OV 2 will remain

3 at25.

4 MR. SIMON: Judge, OV 7, there was an

5 assessment of five points.

6 THE COURT: Yes.

7 MR. SIMON: OV 7 provides offender

8 exploitation of victim vulnerability, five points

9 are assessed in a situation where the offender

10 exploits the victim through a difference between a

10:52:29 11 size/strength or because the victim was intoxicated,

12 under the influence of drugs, asleep or unconscious.

13 THE COURT: Well, I guess --

5 14 MR. SIMON: I believe there was testimony

15 that she was sleeping.

16 THE COURT: Well, she was sleeping, and

17 also she had her children there. So I mean that

18 seems to me a no brainer. OV 7 is properly scored

19 at five points.

20 MR. SIMON: Saving the best for last. OV

10:52:57 21 25, five pints for two or more contemporaneous

22 criminal acts. There were no other contemporaneous

23 criminal acts. He was found not guilty of felon in

24 possession, not guilty of felony firearm, and the

25 Court of Appeals has vacated the home invasion. So

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5 1 with that I dont know that even Ms. Samuels would

2 have a dispute.

3 MS. SAMUELS: I dont have a dispute with

4 that.

5 MR. SIMON: That does change things.

6 MS. SAMUELS: However, I do have a

7 dispute with OV 13 that Ill get to when the time is

8 right.

9 THE COURT: Okay, all right. And -- all

10:53:28 10 right, so OV 25 you agree should be scored at zero?

11 MS. SAMUELS: Yes.

12 THE COURT: All right, well change that

13 from five to zero.

5 14 MR. SIMON: Subject to the arguments with

15 respect to OV 13, it would reduce the offense

16 severity level from four to three because instead of

17 50 points, it would be 45, which brings him within

18 the 25 to 49 point range for a score of -— OV score

19 of3.

20 MS. SAMUELS: May I address OV 13?

21 THE COURT: Yes.

22 MS. SAMUELS: How they scored originally

10:54:01 23 zero for OV 13 psychological injury to a victim, I

24 just cannot imagine in this case. She —-

25 THE COURT: What did the victim indicate


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1 during the course of the trial, Ms. Samuels? 17

2 MS. SAMUELS: During the course of the

3 trial, she indicated how she could not return to

4 that apartment, how she -- she actually had sought

5 psychological treatment, which I think was a higher

6 standard then than it is now.

10:54:29 7 THE COURT: She actually did as opposed

8 to may.

9 MS. SAMUELS: And its even reflected in

10 the body of the presentence report that she

11 indicated that she had done that, continued to do

12 that.

13 THE COURT: So what youre saying is that

14 OV13--

15 MS. SAMUELS: Should be a five.

16 THE COURT: Five or ten?

17 MS. SAMUELS: Well, it was a five then.

18 You couldnt get a ten.

19 MR. SIMON: OV 13 there are only two

20 objections. Zero as to no psychological injury,

21 five points for serious psychological injury to a

10:54:56 22 victim or victims family necessitating —— and

23 thats necessitating professional treatment. I

24 would simply argue that the word requires a finding

25 of serious psychological injury, and I dont


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1 believe the serious threshold has been met him. 18

2 MS. SAMUELS: I believe, Your Honor, it

3 was met at the time. The victim could testify at

4 the time of sentencing regarding psychological

5 injury, unlike now. She did that. And not only did

6 she testify to serious psychological injury for

10:55:29 7 herself, but her son as well who has grappled all

8 these years with the issue that I couldnt protect

9 my mother. Its in the body of the presentence

10 report.

11 THE COURT: Its a frightening thought to

12 think that these people awoke with the defendant in

13 their bedroom and not resulting in some

14 psychological treatment that the people would need.

15 And I think Ms. Sarnuels indicated that the victim in

16 this case, the mother, actually did seek

17 psychological therapy.

10:55:59 18 MS. SAMUELS: I believe both of them

19 have.

20 MR. SIMON: I understand. I would just

21 correct or object to one portion of her argument,

22 and that would be with respect to the complainants

23 son. And then thats not provided for under these

24 guidelines. So I would ask the Court to limit its

25 findings with respect to the complainant alone.


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1 MS. SAMUELS: I just want to round out 19

2 the record. It says serious psychological injury to

3 victim or victims family. I think your son is your

4 family. She indicate -—

5 THE COURT: Are you looking at the

10:56:30 6 guidelines that existed back in 1997?

7 MS. SAMUELS: Yes, I am. Im looking at

8 the old judicial guidelines.

9 THE COURT: Well, thats kind of sneaky,

10 isnt it?

11 MS. SAMUELS: Yeah, it is.

12 THE COURT: Okay. Well, OV 13 is

13 properly scored at five points then. Well change

14 it from zero to five.

15 MR. SIMON: Thats fine.

16 THE COURT: Okay. Any other alterations?

17 MR. SIMON: We do see one by five and

18 adding five to another makes no change.

19 THE COURT: Still 50.

20 MR. SIMON: Exactly. So that would keep

10:56:58 21 the guidelines as scored at 240 to 480 or life.

22 THE COURT: Okay.

23 MR. SIMON: Your Honor, --

24 THE COURT: Was there a habitual on this

25 as well?


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1 MS. SAMUELS: There was a habitual. 20

2 THE COURT: What was the habitual?

3 MS. SAMUELS: He was habitual fourth --

4 second. Im sorry. He was habitual second.

5 THE COURT: So this was a --

6 MS. SAMUELS: And, Judge Youngblood did

7 not use the habitual in this case when she sentenced

8 him to 30 to 50 years.

10:57:29 9 THE COURT: Why in the world did she not

10 do that?

11 MS. SAMUELS: I dont know. But in any

12 case, the guidelines tell you back then that they

13 dont -— habitual doesnt apply to the guidelines,

5 14 but it certainly could have been used.

15 MR. SIMON: Well, whos to say that they

16 werent. A 30 to 50 year sentence, you know, the

17 habitual ——

18 THE COURT: He was facing life

19 imprisonment anyway.

20 MR. SIMON: Life and a half.

21 THE COURT: Wasnt he facing life

22 imprisonment to begin with?

23 MR. SIMON: Yes, so it is a habitual

10:58:00 24 sentence. Let me just go over on the record a few

25 of the rules which were in effect back in 1997 under

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1 the old judicial guidelines. First of all, the 21

2 guidelines were not made law by the legislature

3 until 1999. These judicial guidelines are

4 discretionary, and a few rules which are different

5 from the current rules apply. For one, habitual

6 information, the rule provides as follows: The

7 sentencing guidelines do not apply to habitual

10:58:29 8 offender convictions. In order to develop

9 guidelines for habitual offenders, the judge must

10 record on the SIR when an offender is convicted as a

11 habitual offender, the level of conviction and the

12 new statutory maximum.

13 Okay, you can indicate on the record that

5 14 its habitual, but it doesnt change the statutory

15 maximum.

16 THE COURT: Okay. But am I limited to

17 the sentencing that was imposed in this case by

10:58:57 18 Judge Youngblood or can I exercise my discretion

19 today?

20 MR. SIMON: Well, Judge, I would submit

21 that to exceed that sentence would, given

22 Mr. Jacksons institutional record and the fact that

23 one count has now been vacated, to go beyond what

24 hes already received would, I think, punish him for

25 exercising his constitutional rights on appeal.


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22

1 Your Honor, there are a few other rules

2 involved in the judicial guidelines, that being the

10:59:30 3 departure rules. Of course because they were

4 discretionary, there is no requirement of a finding

5 of substantial and compelling reasons. However, the

6 sentence must be proportionate to the offense and to

7 the offender. Under the case of People versus

8 Milbourn, which was a Michigan Supreme Court case

9 relied heavily upon at that time, the rule was that

10:59:56 10 the sentencing guidelines are the best barometer of

11 that which is proportionate to both the offense and

12 to the offender. And so —-

13 THE COURT: But does that mean therefore

5 14 that we are supposed to vitiate or not take into

15 consideration the defendants previous criminal

16 behavior and the fact that he was given notice of

17 being habitual? He was given notice of being

18 habitual second here, was he not?

19 MR. SIMON: Yes.

20 MS. SAMUELS: Absolutely.

11:00:27 21 MR. SIMON: Those -— while the habitual

22 offender, per se, is not accounted for in the

23 guidelines, the prior record which comprises the --

24 which makes him such and the subsequent or

25 concurrent convictions also are taken into account

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1 in the guidelines. So I dont believe that those 23

2 would be reasons for departure. As a matter of

3 fact, my argument would be that even if the Court

4 were to stay within those guidelines, it should

11:00:58 5 depart below that which was imposed by Judge

6 Youngblood based upon his fine institutional record

7 and the fact that he is now being sentenced on only

8 one offense instead of two.

9 THE COURT: Well leave that within the

10 hands of the Michigan Department of Corrections.

11 Im not going to alter that at all. Thats for them

12 to utilize that in determining as to whether or not

13 the defendant should serve the maximum period of

5 14 incarceration or the minimum period of

15 incarceration.

16 MR. SIMON: I understand that.

17 THE COURT: Im not going to touch that.

11:01:30 18 MR. SIMON: Im speaking only to the

19 minimum, the guideline range.

20 THE COURT: The guideline range, youve

21 already set forth on the record of being 240 to 480

22 to life. Thats without the habitual.

23 MS. SAMUELS: Yes.

24 THE COURT: And what is it with the

25 habitual second?


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1 MR. SIMON: There are no separate 24

2 guidelines for habituals.

3 THE COURT: Its just the same, right?

4 MS. SAMUELS: Yes, its the same, because

5 the statute is still -—

6 THE COURT: Because it carries with it

7 life imprisonment.

8 MR. SIMON: It does not increase that

11:01:58 9 lower range, although it is accounted for in the

10 calculation of that range.

11 THE COURT: Well the Courts going to

12 take into consideration habitual second. Im not

13 going to do away with or forget or not take into

5 14 consideration the defendants previous criminal

15 behavior. So it is going to be utilized.

16 MS. SAMUELS: Could I say one thing,

17 Judge, to round out the record? If you were to take

18 into consideration habitual, yourenot departing.

19 Thats not a departure.

20 THE COURT: I know.

21 MS. SAMUELS: And youve already

11:02:28 22 indicated that. And I just would like to say that

23 when youre using your discretion in this case, this

24 defendant was in constant contact with the criminal

25 justice system from 1998 all the way through the


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1 year 2005 at least. And although charges were 25

2 dismissed in 1989, he had a juvenile case of assault

3 with intent to commit sexual penetration, felony

4 firearm, CSC first. Granted, that was dismissed,

11:02:56 5 but thats the type of contact that he had as a

6 juvenile.

7 And then when you take a look at page 5

8 of his current Presentence Investigation Report, you

9 see that in 1994 as counsel pointed out, it was

10 B and E of a building, an occupied dwelling. What

11 do we have here? Breaking and entering an occupied

12 dwelling where a woman is sleeping in her bed, every

11:03:28 13 persons worse nightmare, I might add, because your

14 child is there. Then you go on to that, 1997, home

15 invasion, well, this case. But even after that, you

16 go to 1998 on page 6, what does he have? Even after

17 this case, a home invasion second degree, in 2005,

18 home invasion second degree. So even after the

19 sexual assault of this woman, he continued to go

20 into homes.

11:03:59 21 I will tell you this, Judge. I

22 completely trust this Courts judgment. Im not

23 even going to make a recommendation other than to

24 say he shouldnt get anything less than the 30 to 50

25 that Judge Youngblood gave him. Thank you, Your


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1 Honor. 26

2 MR. SIMON: Judge, if the juvenile

3 incident alleging CSC was dismissed, we shouldnt

4 even be discussing that. In fact, I should be

5 asking to have it stricken.

6 THE COURT: Im not taking that into

7 consideration at all.

8 MR. SIMON: Okay.

9 THE COURT: Because it was a juvenile

10 matter.

11:04:29 11 MR. SIMON: Okay, and one final point,

12 and that is that Judge Youngblood did sentence

13 Mr. Jackson to a sentence which I think was

5 14 substantial and which I dont know where were

15 getting this conclusion or supposition that it did

16 not take into account the habitual offender notice.

17 And I dont think that this Court can make that

11:04:56 18 rationale and use it to impose an even greater

19 sanction.

20 THE COURT: Well, did the record back

21 then indicate that Judge Youngblood did take into

22 consideration in exercising her discretion?

23 MR. SIMON: Very well.

24 THE COURT: Well, did she or did she not?

25 MR. SIMON: Well, she certainly --


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1 THE COURT: She said nothing about it. 27

2 So if she said nothing about it, then it wasnt

3 taken into consideration. She didnt exercise any

4 discretion.

5 MR. SIMON: I disagree. Simply by not

6 saying anything doesnt mean it was not considered.

7 I dont think --

8 THE COURT: Not that Court of Appeals

9 wouldnt think that way, would they?

10 MR. SIMON: I cannot speak for the Court

11:05:29 11 of Appeals.

12 THE COURT: The Courts got to exercise

13 its discretion and say that its actually exercising

14 its discretion in that regard. Otherwise the Court

15 of Appeals would say, well, gee, it wasnt even

16 taken into consideration. It wasnt taken into

17 consideration by Judge Youngblood if she didnt say

18 anything on the record about it. It would seem

19 ludicrous to think otherwise.

20 MR. SIMON: I dont know that most

21 habitual offender sentences in this courthouse

11:05:58 22 incorporate that phrase in the course of imposing a

23 sentence. Its understood based upon the filing.

24 THE COURT: Its a notice, and the thing

25 is the Court does have discretion to either utilize


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1 that notice of habitual offender or disregard it. 28

2 Not take it into consideration in imposing the

3 sentence. And if the Court does exercise that

11:06:27 4 discretion, then the Court should make note of it in

5 regard to its sentencing as to whether or not it has

6 or has not. It doesnt have to do it if it doesnt

7 because then it wont be taken into consideration by

8 the Court of Appeals in evaluating whether or not

9 the sentencing was proper or not.

10 MR. SIMON: Well, unfortunately, and I

11 mean this most sincerely --

12 THE COURT: You take a look at my

13 worksheets, and I indicate on every one of my

14 worksheets as to whether or not the defendant has

15 any habitual status, whether its a second, third or

11:06:59 16 fourth on every one of my worksheets. And I assume

17 that other judges in this building and throughout

18 the state do the same doggone thing. They may use a

19 different form, but they should. Be that as it

20 may --

21 MS. SAMUELS: I can tell you, Judge, that

22 the Presentence Investigation Report, when you look

23 at the guidelines back then, the regular guidelines

11:07:30 24 under D4, which defendant was, was 240 to 480 months

25 or life. That is not what the habitual ——


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1 THE COURT: Without even taking into 29

2 consideration habitual second.

3 MS. SAMUELS: Correct.

4 MR. SIMON: Well, again, the habitual

5 offender -- Ive made my argument.

6 THE COURT: Yeah, you have.

7 MR. SIMON: I dont believe that that

8 argument is based upon the fact. Its based upon

9 the lack of a statement rather than an affirmative

10 statement.

11 THE COURT: Ms. Samuels, do you wish to

11:07:59 12 say anything further on behalf of the people?

13 MS. SAMUELS: Judge, that he doesnt get

5 14 anything less than what he was originally sentenced

15 to.

16 THE COURT: Mr. Simon.

17 MR. SIMON: Your Honor, again, theres

18 been demonstration over the past three years of his

19 incarceration or at least two years showing

20 exemplary behavior, albeit within the confines of

21 the Michigan Department of Corrections. Theres no

22 tickets. Theres employment which is not reflected

11:08:29 23 in that report. There is good family support.

24 There are a number of other factors which the Court

25 can consider which are not included within the

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S 30

1 guidelines which ameliorate the harshness of Judge

2 Youngbloods sentence. We ask the Court to take all

3 of those into consideration. Also given the fact

4 that he is being sentenced for one offense, two of

5 them having being found not guilty by the jury and

11:08:59 6 the fourth having been vacated by the Court of

7 Appeals because it was barred by the Statute of

8 Limitations. And for all of those reasons, to

9 sentence to a proportionate term of incarceration,

10 one which we respectfully request be somewhat less

11 than that imposed by Judge Youngblood.

12 THE COURT: Mr. Jackson, do you wish to

13 say anything to me on behalf of yourself?

14 DEFENDANTJACKSON: Yes, sir. My record,

11:09:27 15 when you look at my record, its pretty harsh, I

16 understand. I had a rough childhood, and I did some

17 dumb things. And there was a very substantial break

18 in my criminal activity. And even though the people

19 and everyone would try to say that those home

20 invasions were for anything other than monetary gain

21 which was, I know, stupid.

11:09:55 22 But over the years as I grew up and after

23 99 and 2000 when I was reborn and baptized, I

24 stayed out of trouble. I didnt do anything. I

25 ended up in 2005 having receiving and concealing


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1 that I wanted to take to trial. But because of my

2 previous record and with a videotape of the guy who

3 admitted to that crime, I wanted to take that to

11:10:28 4 trial. But I was advised by my attorney, that same

5 attorney of the trial that I just had on this case,

6 advised me --

7 THE COURT: What attorney do you have?

8 DEFENDANTJACKSON: Michael Camore.

9 THE COURT: Who?

10 DEFENDANTJACKSON: Michael Camore.

11 THE COURT: Okay.

12 DEFENDANT JACKSON: Advised me not to

13 take that to trial just because of my previous

5 14 record, and I didnt. So they gave me probation

15 after they seen -— they was offering me a three to

16 six and a cop, but they gave me probation after they

11:10:57 17 seen the videotape. And I took the probation just

18 to continue with my life and not have to worry about

19 going to prison or jail time. And Ive turned my

20 life around.

21 I mean I know the crime that was

22 committed was horrible, and I —- theres nothing I

23 can say that could make that better. But this is

24 nothing that I have ever done in my life. The

25 previous crime shes talking about from juvenile was



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p1:11:28 1 a guy, and the charges was just totally overly 32

2 exaggerated. The guy was beat up by a friend of

3 mine, and the guy told him, I should make you suck

4 my penis, and he told the police everyone that was

5 there, and we all went to jail, not just me. And I

6 never went in front of a judge on that charge at

7 all. It says dismissed, but I was never placed in

8 front of a judge as a juvenile for that charge.

9 And I said Ive changed my life since

11:12:00 10 2000. I went to school, I got my GED, I did Specs

11 Howard School of Broadcasting, I built a couple

12 businesses, lawn care service. I did roofing, and I

13 built a videographer/studio company. Ive raised

5 14 three beautiful daughters. Two of my daughters are

15 in Wayne State. Ive raised three sisters, a

11:12:25 16 brother, I got married and I changed my life. And

17 if I could take any of the things that Ive done in

18 my previous past away, I would have done that in a

19 heartbeat. I would have gave my life to take those

20 things away. I mean I was just embarrassed on my

21 own thinking about all the stuff that I did before

22 this case even came up, just some of the things I

11:12:55 23 did for monetary gain. And like I said, if I could

24 take all that stuff away and walk the path that I

25 walk now, I would have done it.


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1 THE COURT: Well, rape wasnt certainly

2 for monetary gain, was it?

3 DEFENDANTJACKSON: Well, thats -- Im

4 not here to discuss guilt or innocent on that. Ill

5 handle that in my appeals and deal with that when

6 that actually come around. And, you know, Im not

11:13:29 7 here today to throw -— to talk about the thorns on

8 the rosebush. Im just here thankfully and glad for

9 the roses thats on the thorn bush.

10 THE COURT: What if this was your house

11 that had been broken into and it was one of your

12 daughters that had been raped by somebody else?

13 DEFENDANTJACKSON: Well, as I said,

5 14 Im ——

15 THE COURT: Pretty upsetting, huh?

16 Thats an upsetting thought, isnt it?

17 DEFENDANTJACKSON: Sure, it is.

11:14:00 18 THE COURT: Yeah. Its a revolting

19 thought.

20 DEFENDANTJACKSON: But theres always

21 two sides to a story.

22 THE COURT: Oh, two sides to a story.

23 DEFENDANTJACKSON: Yes, sir.

24 TI-lB COURT: Maybe you didnt give me your

25 side of the story. You were invited into the house?


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1 DEFENDANTJACKSON: Ive given in my

2 testimony my side of the story. Now my witness --

3 THE COURT: See, the thing is, you know

4 what the first step is in rehabilitation for, lets

5 say, an alcoholic? They have to acknowledge the

11:14:28 6 fact that they are an alcoholic in order for their

7 life to change at all.

8 DEFENDANTJACKSON: Yes, sir.

9 THE COURT: You apparently do not want

10 your life to change at all.

11 DEFENDANT JACKSON: If I wasnt an

12 alcoholic, I cant admit to being an alcoholic, sir.

13 THE COURT: So you didnt rape this girl

5 14 at all?

15 DEFENDANTJACKSON: I mean I was found

16 guilty, and Im serving that time and Im taking

17 that responsibility.

18 THE COURT: Well, you arent taking that

19 responsibility. Thats the whole point.

20 DEFENDANTJACKSON: Im taking the

11:14:55 21 responsibility that I was found guilty. I cant --

22 I cant -— you cant be responsible for something

23 that didnt happen.

24 THE COURT: Oh, I see.

25 DEFENDANTJACKSON: And the problem is


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1 with the two sides to a story is what it is. Its35

2 two sides to a story. And my witness that was

11:15:30 3 supposed to come to court, he was there. He was in

4 the bathroom. The lawyer didnt go get him. He

5 went out in the hallway to find him. He came back.

6 He rest. But other than that, its two sides to a

7 story. And being that Im in Appeal Court right

8 now, you know, and Im still fighting this, Im

9 just, you know, trying to -- Im trying to move on

11:15:56 10 from this situation.


12 DEFENDANTJACKSON: No, sir, thats it.

13 THE COURT: Okay. All right, it is the

5 14 sentence of this Court that you be remanded to the

15 Michigan Department of Corrections for a period of

16 30 years to 50 years. Youll be given 953 days jail

17 credit time.

18 You are to register as a sexual offender.

19 The Court is taking into consideration habitual

11:16:28 20 second. The defendant had been given previous

21 notice of being a habitual offender, and the Court

22 is exercising its discretion in doing so.

23 Im not increasing the amount of time

24 that Judge Youngblood had previously given to you,

25 but now the Court of Appeals can take into


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1 consideration that decision that I am, in fact, 36

2 exercising that discretion. And based upon your

3 previous criminal behavior, I see very little

11:16:58 4 likelihood of rehabilitation on your part.

5 You are to pay $130 state —- crime

6 victims assessment fee, $68 in state fee, $600 in

7 court costs and $600 in attorneys fees.

8 DEFENDANTJACKSON: Thats -- excuse me.

9 Thats the fee that I just paid. Do I have to do

10 that again?

11 THE COURT: No, you dont have to pay

12 them again. If theyve already been paid, they

13 dont have to be paid again. What were you going to

14 say, Mr. Simon?

15 MR. SIMON: Thank you. Your Honor just

11:17:30 16 cleared up question.

17 THE COURT: Okay.

18 MR. SIMON: Because hes only here for

19 resentencing.

20 THE COURT: Just a resentencing.

21 COURT CLERK: Do you want them on this

22 commitment?

23 THE COURT: If they werent on the

24 previous commitment, yes. But if they were on the

25 previous commitment, no.


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• .37

1 All right. Now because your conviction

2 was by jury verdict, you do have a right to file a

3 claim of appeal as of right with the Court of

4 Appeals. That claim of appeal as of right may be

5 perfected by you on the very form which youre

6 signing this morning. It further explains to you in

7 written form what your appellate rights are. If you

8 wish to file a claim of appeal as of right, it must

9 be done so within the next 42 days. And if you

10 would like the assistance of an attorney in filing

11:17:58 11 of it and cannot afford an attorney, an attorney can

12 and will be appointed for you. Do you understand?

13 DEFENDANTJACKSON: Yes.

14 THE COURT: Good-bye.

15 MR. SIMON: Thank you, Your Honor.

16 (Proceedings concluded about 11:18 A.M.)

17

18

19

20

21

22

23

24

25


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S 38

1 CERTIFICATE OF NOTARY PUBLIC - COURTREPORTER

2

3 I do certify that the attached

4 proceedings were taken before me in the

5 above-entitled matter; that the proceedings

6 contained herein was by me reduced to writing by

7 means of stenography, and afterwards transcribed

8 upon a computer. The attached pages are a true and

9 complete transcript of the proceedings.

10 I do further certify that I am not

11 connected by blood or marriage with any of the

12 parties, their attorneys or agents, and that I am

13 not an employee of either of them, nor interested,

14 directly or indirectly, in the matter of

15 controversy.

16 IN WITNESS WHEREOF, I have hereunto set

17 my hand and affixed my notarial seal at West

18 Bloomfield, Michigan, County of Oakland, this 11th

19 day of August 2014.

22 Theresa L. oberts, CSR

23 Certified Shorthand Reporter — CSR—4870

24 Notary Public - Oakland County, MI

11:19:17 25 My commission expires 10—4—2014


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QOp~,

Si STATE OF MICHIGAN

2 THIRD JUDICIAL CIRCUIT COURT FOR THE COUNTY OFWAYNE

3 CRIMINAL DIVISION


5

6 Plaintiff, No. 1i—012637—01--FC

v Sentence RECEWED9 ANTONIO JACKSON, JUN 14 2O~8

10 Defendant. APPELLATE DEFENDER OFFICE

ii ______________________________________________/

12 SENTENCE

13 BEFORE THE HONORABLETHOMASN.J. HATHAWAY

14 FRIDAY, DECEMBER15, 2017

15 APPEARANCES:

16 For. the People: DANIELLE S. BENNETTS

17 1441 St. Antoine Street

18 Detroit, Michigan 48226

19 For the Defendant: LEE A. SOMERVILLE

20 Law Office Of Lee A. Somerville

21 P0 Box 40250

22 Redford, Michigan 48240-0250

23 Reported by: Carol Dillon #2950

24 Registered Professional Reporter

25 313.986.8445 Processed

361a December 2017 Resentencing

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2

S i TABLE OF CONTENTS2 Proceeding Page

3

4 SENTENCE 3

5

6

7 INDEX TO EXHIBITS

8 (None offered)

9

10 Exhibit Page

ii

12

•3

14

15

16

17

18

19

20

21

22

23


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3

S i Detroit, Michigan2 Friday, December 15, 2017

3 10:57 a.m.

4 * * * *

5 THE COURT: Calling Case No. 11—012637-01—FC,

6 People versus Antonio Jackson. Were here today fpr

7 sentencing —- resentencing in this matter. Appearances

8 for the record, please?

9 MS. BENNETTS: Good morning. Danielle

10 Bennetts on behalf of the People.

ii MS. SOMERVILLE: Lee Somerville on behalf of

12 Mr. Jackson who is present and standing at the podium.

13 THE COURT: Sir, please introduce yourself for

14 the record.

15 DEFENDANTJACKSON: Antonio Jackson.

16 THE COURT: Mr. Jackson, good morning again.

17 DEFENDANTJACKSON: Good morning.

18 THE COURT: Were here today for sente~1cing.

19 Have the parties had an opportunity to review the

20 Presentence Investigation Report and the guidelines in

21 this matter?

22 MS. BENNETTS: I have, Your Honor.

23 MS. SOMERVILLE: Yes, Your Honor.

24 THE COURT: Okay. Lets deal with the

25 Presentence Investigation Report first. Is there


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4

S i anything by the way of any factual material contained in2 the report that either side wishes to object to,

3 explain, add to, revise?

4 MS. SOMERVILLE: Yes, Your Honor. With

5 respect to the Prior Record, in the original Presentence

6 Investigation Report, there were only three juvenile

7 contacts listed. In this one, theres eight.

8 Mr. Jackson doesnt have a clear record of all

9 of his contacts as a juvenile, but he specifically does

10 not recall any contact with the Dearborn Police

ii Department, which would be Juvenile 3 of 8, which was

12 not one of the —— I dont believe it was listed in the

13 first Presentence Investigation Report.

14 And it doesnt matter to the guidelines

15 because that case is listed as dismissed.

16 THE COURT: Correct.

17 MS. SOMERVILLE: And I would point out that

18 each time Ive gone to the jail to visit Mr. Jackson, I

19 had to come up with his birthday because there are so

20 many people named Antonio Jackson, apparently. There

21 were three people in the jail at the time. So I think

22 that theres a possibility that his juvenile record may

23 have been confused with somebody elses.

S 24 THE COURT: Someone else that was a juvenile25 back in 1989 with the same name, is that what youre


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5

S i saying?2 MS. SOMERVILLE: Im saying he doesnt

3 remember any contact with the Dearborn police. He cant

4 say yes or no to all of these additional added juvenile

5 contacts, but he specifically doesnt recall any

6 contacts with them. And I dont know if he just would

7 like to make that notation or however the Court wants to

8 treat it.

9 The only other thing is under the Substance

10 Abuse, Mr. Jackson asserts that he tried alcohol and

ii cigarettes around the same time and didnt like them.

12 Therefore, he discontinued the same year. So where it

13 says under Alcohol, the start date and the end date

14 should be 1998.

15 THE COURT: What page is that on?

16 MS. SOMERVILLE: Thats a hard question. Its

17 under substance abuse. So its toward the end —— I

18 believe Page 12.

19 THE COURT: Yes, Page 12. So Alcohol, start

20 date 1998 and end date is 1998?

21 MS. SOMERVILLE: Yes.

22 THE COURT: Any objections?

23 MS. BENNETTS: No, Judge.

24 THE COURT: Lets change that date of July 4,

25 2005 to 1998 then.


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6

S i THE COURT: Any other changes, corrections?2 MS. SOMERVILLE: Not to the body of the

3 report.

4 THE COURT: Ms. Bennetts?

5 MS. BENNETTS: No corrections to the body of

6 the report, just the guidelines.

7 THE COURT: All right. Lets take a look at

8 the guidelines.

9 MS. BENNETTS: Your Honor, there are two

10 specific OV5 that I would like to make the arguments

ii for. I told Ms. Somerville which two of these are.

12 OV 2, I believe should be scored at 25 points.

5 13 And I would point out that this is specific OV variable

14 —— this variable is one of the variables that the

15 Defendant challeng~d to the Court of Appeals. And the

16 Court of Appeals already affirmed that, in the trial

17 Courts discretion, scoring 25 points is proper.

18 OV 2 in the 1997 guidelines, 25 points would

19 be bodily injury and/or subjected to terrorism. And it

20 was scored at 25 points by the trial Court in the

21 March 6, 2014 opinion by the Court of Appeals. They

22 affirmed that scoring and they defined the terrorism

23 that is in OV 2 as conduct that is designed to increase

S 24 substantially the fear and anxiety the victim suffers25 during the offense. They went on to say in this case,


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7

Si given the victims testimony, that the assault occurred

2 in the apartment where she was staying in bed with her

3 two young children and at gunpoint, the trial court did

4 not abuse its discretion in imposing 25 pounds. So I

5 would ask that that be scored today.

6 MS. SOMERVILLE: Your Honor, I notice that

7 youre looking at the guidelines book. Those are not

8 the correct guidelines. I have a copy.

9 If youd like to make a copy.

10 THE COURT: Yes. This is the current

11 guidelines. Thank you.

12 MS. BENNETTS: I had to get those today, too.

5 13 MS. SOMERVILLE: Do you need those back or can

14 we just keep those?

15 MS. BENNETTS: If I can take a look at your -—

16 CLERK OF THE COURT: Im giving him a copy.

17 MS. SOMERVILLE: Did you want me to -- do you

18 want to hear all of her changes and then ——

19 THE COURT: No. Well go -- let me do it this

20 way, then, which is how I typically do it. Lets look

21 the OVs. OV 1 is scored at 15. Any objection to

22 OV 1?

23 MS. BENNETTS: I think thats proper.

5 24 MS. SOMERVILLE: I would argue no, because

25 this gentleman was charged with four crimes originally.


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8

1 The two that the jury found him not guilty of were felon

2 in possession and felony firearm. And so this is scored

3 for a firearm. So I would argue that it should not be

4 scored.

5 MS. BENNETTS: It was previously scored,

6 Judge, and the argument was made. The OV 1 in the 1997

7 guidelines is a firearm or a weapon. And as the Court

8 took from the testimony, the victim said it was a gun.

9 El elements of FIP and FF are substantially different

10 than the CSC first degree with a weapon that the jury

ii found him guilty of. And the Court had previously

12 stated on the record that they could have —— the jury

13 could have thought it was a different weapon and maybe

14 not a gun and if the victim thought it was a gun, just

15 because they acquitted him of those two counts, theyd

16 still find him guilty of CSC first degree with a weapon,

17 so 15 points is proper.

18 MS. SOMERVILLE: . And, Your Honor, I think

19 theres an alternate CSC, and I did not get those trial

20 transcripts, so I dont know if those jury instructions

21 were given.

22 But CSC first can also be scored —— I mean

23 charged if the CSC occurred during the commission of

24 another felony. And he was charged with home invasion.

25 So that would be another basis for that charge.


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9

1 MS. BENNETTS: However, the instructions are

2 clear to the jury. They dont all have to agree on

3 which theory that they agreed on that made it a CSC

4 first degree.

5 The instructions are very clear. All of you

6 do not have to agree on which theory, but you just have

7 to agree on one of those theories. And they found him

8 guilty of CSC first degree and one of the aggravating

9 circumstances was with a weapon.

10 THE COURT: So the record would support that?

ii MS. BENNETTS: Yes.

12 MS. SOMERVILLE: And I would argue that it

13 doesnt because they found him guilty of another felony

14 which would support the one theory. And they found him

15 not guilty of the gun charges.

16 MS. BENNETTS: Different elements, Judge. And

17 thats the argument that the trial prosecutor made.

18 Its the same argument that Judge Youngblood scored 15

19 points on. And I know Counsel says that we cant take

20 into consideration any judgment made by Judge Callahan.

21 But he also found that the verdict is -— CSC first

22 degree substantiates that there a weapon. And the

23 testimony of the victim was that there was a weapon.

24 Theyre totally different elements and the jury can come

25 up with inconsistent verdicts, but one of their verdicts


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10

Si does support a weapon.

2 THE COURT: And I do know that there was --

3 allegation that the weapon was thereby placed by the

4 victims head.

5 MS. BENNETTS: Yes.

6 THE COURT: So that was there. And OV 1 was

7 not reversed on appeal?

8 MS. Bennetts: No.

9 THE COURT: Well, I do believe theres

10 sufficient factual basis for the scoring of DV 1 at 15,

ii despite the fact that the home invasion charge was

12 dismissed because of the statute of limitations.

13 So we will score DV 1 at 15.

14 MS. BENNETTS: Thank you, Your Honor.

15 THE COURT: Looking at DV 2 stored at 0. Any

16 objection to that?

17 MS. BENNETTS: Yes. I believe it should be

18 25 points and that is —— that scoring was confirmed by

19 the Court of Appeals.

20 MS. SOMERVILLE: Your Honor, even if the Court

21 finds that there was a gun, which we just have, but the

22 jury did not, I would argue that that doesnt arise to

23 the level of terrorism.

S 24 There are a lot of crimes committed with guns25 that dont arise to the level of terrorism. And the


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11

1 record does support that there was no physical injury to

\. SI

2 the victim. So I would argue 0.

3 MS. BENNETTS: But thats not what the

4 argument is, Your Honor. Thats simply the gun. The

5 testimony was that this woman was awoken in the middle

6 of the morning with her six year old child in her bed

7 and she was raped in her own bed with her own child

8 there. And they pointed out that the conduct of the

9 Defendant was designed to increase the fear and anxiety

10 that she suffered. It makes no mention of a weapon.

ii The facts and the case, the testimony and the

12 conviction support 25 points, completely regardless of

13 whether there was a gun or not.

14 MS. SOMERVILLE: And I was just mentioning the

15 weapon because that was the basis for the Court of

16 Appeals decision.

17 THE COURT: Was the weapon?

18 MS. BENNETTS: In this case, given the

19 victims testimony that the assault occurred in the

20 apartment where she was staying in bed and was sharing

21 with her two young children and at gunpoint, trial court

22 did not abuse its discretion in imposing 25 points.

23 And, again, he was convicted of CSC first

24 degree, one with aggravating circumstances, again, with

25 a weapon. So that was -- the Court of Appeals is basing


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12

1 that, again, on the CSC first conviction.

2 He was not convicted of the gun charge, FF and

3 FIP. Different elements. Again, the Court of Appeals

4 affirmed 25 points on that and I think the facts fully

5 support it.

6 THE COURT: Well, I do think that the facts

7 that Im aware of at this time -- obviously, as the

8 successor Judge, I did not preside over the trial on

9 this matter. But I have reviewed the file and reviewed

10 the appellate decisions in this and I do believe theres

11 sufficient factual basis for the scoring of DV 2 at

12 25 points based upon subjection of the victim to fear

13 and anxiety during the offense that occurred.

14 So we will score DV 2 at 25 points.


16 DV 5 at 0, I agree with that.


18 MS. SOMERVILLE: I al~o agree.

19 THE COURT: DV 6 is scored at 0. Any

20 objection?

21 MS. SOMERVILLE: No.

22 MS. BENNETTS: I do, Judge. I would note that

23 I dont know that this was argued before. I dont have

24 the original sentencing. I have the transcript of the

25 second sentencing where the sentence was vacated. I


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1 dont believe they addressed DV 6. I dont know. I

2 dont have the previous presentence report to know if

3 that was ever scored. But I believe that DV 6 should be

4 scored at 10 points.

5 DV 6, again, two or more victims would be 10

6 points. It indicates each person who was placed in

7 danger or injury or loss of life as a victim. Again,

8 the victim testified that her six—year—old son, who was

9 very, very deeply affected by this, was in the bed with

10 her. And if the jury made findings to believe that a

ii weapon would have been present and they believed a

12 sexual assault happened in that bed, that child is also

13 in the bed. The child is no less a victim than her. A

14 possible victim being placed in the potential of injury

15 or loss of life. They both were. So theyre both

16 victims for purposes of scoring DV 6.

17 THE COURT: So the argument of the People is,

18 is that the young child, who was in the bed with the

19 victim, was placed in danger of injury or loss of life,

20 as was the victim.


22 MS. SDMERVILLE: And, Your Honor, we would

23 argue that that is not proper scoring. First of all,

24 the jury found there was no gun. Second, this has never

25 been ——


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1 THE COURT: Did the jury make a finding of no

2 gun or did they just find not guilty on the charge?

3 MS. SOMERVILLE: Not guilty of felon in

4 possession and not guilty of felony firearm.

5 THE COURT: Was the weapon ever recovered?

6 MS. SOMERVILLE: There was no weapon.

7 THE COURT: Well, that would certainly explain

8 the jury verdict then. Go ahead. Im sorry.

9 MS. SOMERVILLE: DV 6 has never been scored in

10 this case. It was not scored originally and the

11 Prosecutor has never appealed that scoring. So I think

12 that it should not be scored now.

i3 There was no finding of a gun by the jury.

14 And, apparently, Judge Youngblood did not find that

15 there was more than one victim.

16 MS. BENNETTS: I dont have the original

17 findings of Judge Youngblood to know whether or not that

18 was even argued. I was, unfortunately, not the trial

19 prosecutor, nor was I the sentencing prosecutor. So I

20 dont have that.

21 She keeps saying theres no gun, theres no

22 gun, theres no gun. And whatever weapon the jury made

23 the finding of for the CSC first degree still could

24 potentially be potentially putting that six-year-old at

25 risk for injury or loss of life.


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1 We know that juries come up with inconsistent

2 verdicts all the time. But that v~erdict that we do have

3 supports a weapon. And I think the fact that she was

4 violently sexually assaulted in her own bed next to this

5 child -- this man without a gun, without a hammer,

6 without a rock, without any sort of weapon, certainly

7 could have been a threat to that child with his own

8 hands. I dont think you need a weapon to score DV 6.

9 So thats our position.

10 THE COURT: And Im aware of case law that

ii indicates that individuals who are present in the

12 vicinity of felonious act, but are not within the scope

13 of danger, canno.t be scored. But it appeared to me that

14 this young child was in the bed with the victim at the

15 time that the rape was going on. And I believe I -— if

16 I recall, the Presentence Investigation Report indicates

17 that the young son was awake during that action. And to

18 this day, still has issues —- emotional, psychological

19 issues as a result of the trauma of that night.

20 So there is evidence that it appears that the

21 young son, while not sexually victimized, was somewhat

22 traumatized by the action of what was happening with the

23 Defendant and his mother.

24 MS. SOMERVILLE: Your Honor?

/

25 THE COURT: Yes.


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1 MS. SOMERVILLE: I believe that the DV refers

2 to physical injury or loss of life.

3 MS. BENNETTS: It doesnt indicate that. It

4 just says injury. And I can attest to the fact that in

5 CSC crimes, we can charge mental injury to escalate a

6 CSC 3 to a 1. The legislature is very clear that mental

7 injury is to be treated under that statute the same as

8 physical. The guidelines in 199,7 do not explicitly say

9 physical. So I think mental injury would be sufficient

10 as well.

11 MS. SOMERVILLE: But mental injury is scored

12 under a different —— is scored under DV 13.

13 MS. BENNETTS: Again, this is just indicating

14 how many victims were potentially put at risk of injury.

iS Again, it does not state physical injury. And I dont

16 want to assume thats whats meant when the legislature

17 clearly did not state that. But again, he was at risk

18 of potential, even physical harm.

19 MS. SOMERVILLE: And these are not legislative

20 guidelines. And I do have the original SIR if the Court

21 doesnt have it.

22 THE COURT: I do not have it in the file in

23 front of me.

24 MS. SOMERVILLE: Do you want to see it?

25 CLERK OF THE COURT: Do you want the


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1 guidelines?

2 THE COURT: No. The SIR.

3 CLERK OF THE COURT: Youre talking about the

4 guidelines or are you talking about the whole

S presentence report?

6 MS. SOMERVILLE: Well, I have the whole

7 presentence report. But actually, its not the

8 original. Its from 2014.

9 MS. BENNETTS: So its from James Callahans

10 -- Judge Callahans sentencing?

11 MS. SOMERVILLE: No. It says Judge Youngblood

12 at the top.

13 CLERK OF THE COURT: I think he has that.

14 THE COURT: This is it.

15 MS. SOMERVILLE: Okay.

16 THE COURT: And I see that DV 6 was scored at

17 0.

18 Well, at this point, based upon what knowledge

19 I have of the record, I will go with the DV 6 scoring

20 that was originally done of 0.

21 MS. BENNETTS: Okay, Your Honor.

22 MS. SOMERVILLE: Thank you, Your Honor.

23 THE COURT: Looking at DV 7, that is scored at

24 5. Any objections to DV 7?

25 MS. BENNETTS: No objection.


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1 MS. SOMERVILLE: No objection, Your Honor.


3 objection to DV 9 scoring?

4 MS. BENNETTS: No.

S MS. SOMERVILLE: No.


7 objection?

8 MS. BENNETTS: None.


10 THE COURT: DV 13 is scored at S. Any

ii objection?


1 ~

13 MS. SOMERVILLE: Well, I guess I cant object

14 because the Court has found that the young boy was

15 psychologically injured.

16 MS. BENNETTS: And in the victims previous

17 statement to the writer of the Presentence Report, the

18 original Presentence Report, she has sought out

19 counseling and to this day is severely psychologically

20 damaged by this.

21 THE COURT: And DV 25 is scored at 0?

22 MS. BENNETTS: Thats correct.


24 MS. SOMERVILLE: No objection.

25 THE COURT: So we have a revised total here of


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1 the OVs.

2 MS. BENNETTS: I believe it should be 50

3 points, Your Honor.

4 THE COURT: Well, I have -— that is correct,

S SO points. So were scoring DVs at 50 points. And that

6 places it in Category 4, correct?

7 MS. BENNETTS: That is correct.

8 MS. SOMERVILLE: Correct.

9 THE COURT: Then looking at the Prior Variable

10 Scores, PRV 1 scored at 0. Any objections to that

ii scoring?


/

13 THE COURT: PRV 2 is scored at 10. Any

14 objections to that scoring?

iS MS. BENNETTS: None. I believe its correct

16 at a D grid, Your Honor.

17 MS. SOMERVILLE: Yeah. I didnt have any

18 changes to the Prior Record Variables as scored, Your

19 Honor.

20 MS. BENNETTS: And so I believe and I think

21 Counsel even wrote in her original sentencing memorandum

22 that the guidelines were 240 to 480 or life.

23 THE COURT: So we have no objections to PRV

24 being scored at 0?

25 MS. BENNETTS: We both agreed the PRV total is


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i is 55 points.

2 MS. SOMERVILLE: Yes.


4 THE COURT: The PRV 4, no objections to that

S being scored at 5?

6 MS. BENNETTS: Yes. No objection.

7 THE COURT: PRV 5, no objections to being

8 scoring at 5?



ii THE COURT: PRV 6, no objection to scoring at

12 iS?


14 THE COURT: And PRV 7, no objection to scoring

15 at 20?



18 THE COURT: That~ does yield a PRV total of 55

19 and thats the D grid.

20 MS. BENNETTS: Yes, Your Honor.

21 THE COURT: And the D grid yields what?

22 MS. BENNETTS: 240 to 480, Your Honor.

23 THE COURT: Is that contained in the document

24 I received?

25 MS. BENNETTS: It should be on this page,


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1 right here, Your Honor. Life. It would be the life

2 grid.

3 CLERK OF THE COURT: Page 47.


S THE COURT: Yes. Here, it is. Yes. Okay.

6 take you at your word, but I do want to make sure the

7 record supports that.

8 MS. BENNETTS: Sure. Thank you, Judge.

9 THE COURT: All right. So the sentencing

10 guidelines are consistent with where we were before. Is

ii that correct?

12 MS. BENNETTS: That is correct.

13 THE COURT: Lets take a look at this. And

14 for the Prosecution ——


16 THE COURT: Anything to say before the Court

17 passes sentence?

18 . MS. BENNETTS: Theres a few things I just

19 want to address that had been highlighted in Ms.

20 Somervilles sentencing memo and then Id like to speak

21 on behalf of Ms. Polk.

22 Ms. Polk, the victim, was here at the last

23 date. She was here in front of Judge James Callahan and

24 she was here in front of Judge Youngblood and she was

25 here for the trial. So this is a long —— every hearing,


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1 she just -— she just cant come anymore. She told me

2 last time she was here that she cant keep doing this.

3 Its too much. Its too hard on her.

4 As the Court is aware, this sexual assault

S happened in 1997. And Ms. Polks rape kit was one of

6 the first rape kits that we discovered was not sent

7 timely to be tested. It was not tested ultimately until

8 2011, identifying the Defendant as the perpetrator. And

9 as she pointed out in her previous statement to the

10 Court, that was like 15 years of incarceration for her,

ii not knowing where the man was that did this to her.

12 And shes appalled that she was called a

13 prostitute. She was called a liar in the trial. And

14 that, really, honestly, and its a point I would have

iS made myself without Ms. Polk telling me, that the

16 Defendant never took responsibility for any of this.

17 Previous dates, he always denied having any doing of any

18 of this.

19 So she really has a hard time understanding

20 how he can come to court and ask for a lower sentence

21 when he never took responsibility for this and really

22 painted her out to be a liar.

23 Now, Ms. Somerville indicates in her

24 sentencing memorandum —— and looks like, really, the

25 biggest basis as to why she believes he should get a


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1 lower sentence is that hes adjusting to prison. And~/• ~.

2 she does attach a couple documents -— evaluations from

3 workers or employ —— supervisors in the MDOCon his work

4 ethic and a certificate showing that he completed a

S Bible study course.

6 And I want to point out to the Court that

7 every one of these documents are between May and

8 September of this year. And I pointed that out for

9 reasons that we dont know what the Defendant was doing

iO for all the previous years. And to be very fair, Im

11 not really concerned with his adjustment and behavior in

12 prison. I am more concerned that he doesnt know how to

13 comport himself to the laws of society when hes out.

14 So thats my biggest concern is because he --

15 and I dont mean to demean what hes done in the last

16 seven months. But just because he took a Bible study

17 course and hes able to comply with the rules, the job

18 that he has in prison, thats what hes supposed to do.

19 And so, really, I —- it really gave me no

20 sense of this is a real reasonable request to go as low

21 as theyre requesting because the last seven months hes

22 been doing well in prison.

23 We dont really have any substantiation of no

24 tickets or any problems or any behaviors. So we dont

25 really have anything, to substantiate that. His issues


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1 with his family, his health, that really does not strike

2 the People as any sort of mitigating factor that he

3 should get as low as the numbers that hes asking for.

4 Judge Youngblood heard the testimony and heard

5 the facts and she sentenced the Defendant to 30 to

6 50 years, which was mid guideline range.

7 She did not go above, even though they were

8 advisory back then. She didnt go to the top. She gave

9 a reasonable sentence back then. And she heard the

10 facts and she heard the testimony. And I certainly

ii dont mean any disrespect to Ms. Somerville when I say

12 this, but to go to 10 years, which is 20 years below the

ED 13 bottom of what he was sentenced to, and 10 years below

14 the bottom of the guidelines, to a man who went to

15 trial, lost, never took responsibility, and we know the

16 egregious facts, really adds insult to injury to this

17 victim and what shes gone through.

18 And while the Defendant is not responsible for

19 the years she waited for justice, hes not responsible

20 for that. Thats —— the police is responsible for that.

21 But she has suffered a great deal. She suffers every

22 day a great deal. And to make the request for the

23 Defendant to request such a deviated low sentence

24 because, in his words, hes been adjusting well in the

2S last seven months to prison, is an insult to the victim


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1 as to what she went through, to that six—year—old child

2 who has not recovered from this.

3 I think the sentence he got from Judge

4 Youngblood, who heard the facts, was very reasonable.

5 In fact, I think its far too low. But I would ask you

6 to follow that. Id ask you to sentence him exactly the

7 same as hes been sentenced, 30 to 50 years in the

8 Michigan Department of Co.rrections, along with the

9 lifetime Sex Offender Registration, which is mandated by

10 statute. Thank you.

ii THE COURT: Ms. Somerville?

12 MS. SOMERVILLE: Your Honor, obviously,. I

C; 13 disagree with the Prosecutor. And the first thing I

14 want to take up is her claim that theres nothing to

15 substantiate that he said no tickets while in prison.

16 I would ask the Court to look at the

17 Evaluation & Plan on the updated Presentence

18 Investigation Report. Third paragraph, last sentence,

19 Ive never seen these words in a Presentence Report

20 before, describes Mr. Jackson as a model prisoner. He

21 has been in no trouble. He has been compliant with

22 everything since hes been there. He has done the

23 courses that he is allowed to do. Hes earned his GED.

24 Hes taken the Christian Bible Course, the Bridges

25 Course and other courses, but we dont have


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1 documentation of that because its hard to keep the

2 paperwork together in prison.

3 Obviously, this person preparing this had

4 access to the Department of Correction records and would

S have known if he had gotten any tickets.

6 Further, Im arguing that his rehabilitation

7 started before he was ever charged with this crime. He

8 had at least three, possibly up to eight, depending on

9 which Presentence Report you look at, juvenile contacts.

10 Although most of them did not result in any sort of

ii adjudication.

12 And then he had a number of adult contacts,

Ci 13 but those ended. Theyre primarily in the 90s. But he

14 had one or two in the mid 2000s. 2005, I believe. And

15 then he had no contacts after that until his arrest in

16 this case.

17 So Im arguing that history rehabilitation

18 began before he was ever placed in prison. He had

19 learned his lesson and he had changed his life. And I

20 realize this doesnt help the victim, in particular, but

21 rehabilitation is one of the things that this Court must

22 look at when imposing a sentence.

23 He has adjusted well in prison. Hes

24 maintained a job, as well as doing all the other things

25 and doing whatever it takes to be classified as a model


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1 prisoner by somebody preparing a Presentence Report for

2 the resentencing. He still enjoys the support of his

3 family. And we are asking that the Court consider going

4 at least to the bottom of the guidelines in this case,

5 which would still be a 20-year sentence.

6 Hes continuing to serve his sentence, which

7 is punishment. He has demonstrated rehabilitation.

8 And protection of society, any -- I think

9 society was already protected from him when he changed

10 his ways in the early 2000s.

11 THE COURT: Is there anything that Mr. Jackson

12 would like to say?

13 DEFENDANTJACKSON: Yes. Humbly, I would

14 first like to apologize and say that Im very sorry that

15 Ms. Polk and her family had to endure the pain and

16 suffering that she went through.

17 But I would also like to indicate that the

18 Department of Corrections doesnt have rehabilitation.

19 They have punishment. And I understand the punishment.

20 But what I would like to say about that is when you

21 commit a crime yesterday and you get caught today, you

22 get put away for the things you might do tomorrow. But

23 in my case, I realize that I made some horrible mistakes

24 and I needed to find a way to change. And one of the

2S ways to change was for me to give my life to God and him


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1 show me the way. And it hurts that the Prosecutor

2 belittles the effort that I put in to become a better

3 person. And if I could take away the pain for Ms. Polk,

4 I would do it in a heartbeat. I was young, ignorant,

5 with no guidance. And I had to learn on my own through

6 a lot of struggle and pain to get away from people that

7 I was around and to figure out what I needed to do. And

8 one of the things I did was, during one of those

9 probationary periods, I had to do community service.

iO And I talked to the pastor of the church that I did the

ii community service from and I asked him to pray for me

12 and asked God what can I do for him to help me. And he

13 said he prayed for me. And he told me that the devil

14 was reaching for me and stay reaching for God. So

15 thats what I did.

16 And I got into every program that they will

17 allow me to get into in the prison system. I was in

18 Level 4. Level 4, they dont give you any programs

19 unless its mandated by the Court. And even the one for

20 the alcohol and sexual abuse, they didnt give that to

21 me either, because they said I have to be in the

22 position ready to go home before I can take those

23 courses.

24 So I went to URF, which is a corrections up in

2S -- up north and I tried to get into programs up there.


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1 I tried to get into the food tech program, builders

2 trade program. I tried to get in —— because they

3 wouldnt let me get into like Finger For a Change.

4 There was a violence course. They wouldnt let me get

5 into the mandated court courses. So I stayed there two

6 years and I kept a job and I worked hard at that job

7 because thats all I could do.

8 But now that Im at lonia IMAC, they offer

9 courses to individuals who are willing to sign up and

10 take them. They dont make you take them. You have to

11 have self—preservation and awareness of what you want to

12 do.

13 Now, I have been around horrible people and

14 Ive seen those people do 25 years, leave and come right

15 back because when you violate your probation, they send

16 you back to the last prison you were at previously.

17 And Ive seen that the confinement is not

18 where your rehabilitation happens. Its within. Its

19 from you. And, like I said, if the Prosecutor is

20 willing to just stay on the fact that I was not

21 remorseful, I am remorseful. Its not easy to just be

22 charged with something and no one gives you the

23 opportunity to even plead guilty. They just run you in

24 front of cameras and bring your family in. And its

25 just not easy. And I know and I realize that what I did


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1 was horrible. But the rehabilitation did not start whenn

2 I went to jail and its not going to end while Im in

3 jail or when Im released.

4 Rehabilitation started from when I realized

S what I was doing wrong.

6 I ask for leniency so I can get out. I have

7 four grandchildren, four grandsons, and I would like to

8 make sure that they know hard work and opportunity is

9 where life begins and not running with friends and being

10 a criminal. Thank you.

11 THE COURT: All right. Mr. Jackson, the Court

12 appreciates your comments, your sentiments and its

CC 13 evident to me that you have obviously reached a certain

14 level of enlightenment about who you are, what you were

iS and what you have done.. Its important. Its important

16 for you, as a person. And if I were in a position to do

17 something on my own, without the constraints of the law,

18 the guidelines, the facts, the judgment, the unanimous

19 judgment of the jury, I may be inclined to do some

20 things, but I represent the balance of justice. I hear

21 what you have to say and I didnt hear the allocution of

22 the victim, but Ive read her victim statement.

23 I have reviewed portions of the file. I

24 didnt, as I indicated earlier, preside over this trial,

25 so I didnt hear all of the evidence as it went in. But


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1 Ive seen the record that was created. And its evident

2 that you -- and I endorse what you said. What you did

3 was horrific. To break into a home in the middle of the

4 night, into the sanctity of the persons home and attack

5 them in their bed while theyre sleeping, and engage in

6 a criminal sexual conduct, these are things that a

7 civilized society cannot tolerate. And the fact that

8 you learned from it because you were arrested, charged,

9 tried and unanimously convicted, as I said, is a good

10 mark that you seem to be tuning around who you were and

11 what you were doing. But Im left with the task of

12 looking at all of the facts from all of the sides and

13 finding out what is a reasonable and proportional

14 sentence for the crime that you were convicted of. As I

15 say, it was a unanimous verdict. Its not easy to get a

16 unanimous verdict. So the evidence obviously was

17 sufficient.

18 I have heard, anecdotally, that there was no

19 remorse shown at the time. Obviously, you went to trial

20 in an effort to get a not guilty verdict. But the jury

21 saw the facts the way they did and Judge Youngblood

22 sentenced you to 30 to 50 years for the crime of

23 criminal sexual conduct first degree. And based upon

24 everything that I have seen, Im not in a position to

25 indicate or say that she has done anything erroneous.


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1 Her result was reasonable within the realm of

2 possibilities. And as I look at this now, under People

3 versus Lockridge, the guidelines are advisory. But as I

4 look at the facts, I do not find that her sentence of

5 30 to 50 years was unreasonable. It does appear to be

6 reasonable and proportionate to the facts and

7 circumstances.

8 And so it is the sentence of this Court that

9 for the crime of criminal sexual conduct, first degree,

10 multiple variables, as an habitual second offender that

ii you will serve a minimum of 30 years, a maximum of

12 50 years in the Michigan Department of Corrections, with

13 the requirement of Registration of Sexual Offender

14 Registry Act, which I understand you have already done.

15 Theres also a No Contact Order with Audrey

16 Polk or her family, either verbal, written, electronic,

17 directly or indirectly, through other people. And

18 youre not to be within 500 feet of her, her residence

19 or place of employment.

20 Also, you will receive jail credit of

21 2,249 days. And the fees, as Im understanding from the

22 Presentence Investigation Report, there is a State fee

23 of $68 for which there is a credited for $136 that has

24 been paid. Theres a crime victim fee of $75, which has

25 already been paid. There are court costs of $600 for


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1 which there is a credit $462.50 paid. And theres an

2 appointed attorney fee cost of $600. So you are

3 receiving for $23 that has been paid over and above the

4 State fee, the crime victim fee and the court costs.

5 All of the interest and delinquent charges have been

6 dropped. But you do have a balance that must be paid

7 under the appointed attorney fee of $600. And as I

8 indicated, there is a $23 credit that would be applied

9 to that.

10 Now, this sentence is imposed, as I indicated

11 after due consideration of all the matters that were

12 raised in the Presentence Report and in the briefs that

13 I received from the parties. And by the way, parties

14 are to be commended. You provided important and

15 valuable information to the Court. I appreciate the

16 effort that you put in to research and provide that

17 information.

18 But the Court places particular importance on

19 this sentence on the nature of the offense and the

20 impact that it has had on the lives, the victim and her

21 children. And I think all we have to do is take a look

22 at the victims impact statement in the Presentence

23 Investigation Report to understand, Mr. Jackson, that

24 you spent time in prison, but your victims have spent

25 time in their own special kind of prison. They have


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1 serious problems and Im sure youve reviewed, in

2 looking at the victims Impact Statement.

3 So I do believe that this sentence provides

4 for deterrence, its a protection of society. It has

5 already apparently started on the purpose of reformation

6 and it will provide discipline for you.

7 Going forward, I trust that you will continue

8 to follow the path that you are on.

9 Now, because this sentence was imposed as a

10 result of a trial based conviction, it is my duty to

ii inform you that you do have the right to appeal your

12 conviction and your sentence to the Michigan Court of

13 Appeals. If you are deemed to be indigent and are

14 unable to afford an attorney, one will be appointed for

15 you at public expense and that attorney will be provided

16 with the necessary transcripts to perfect that appeal.

17 Do you understand that, Mr. Jackson.


19 THE COURT: All right. And youre further

20 advised that if you do wish to file an appeal of any

21 motion for the request of the appointment of an

22 attorney, you must do so within 42 days of todays date.

23 And you should have received —- if you havent, you will

24 —— a Notice of Appellate Rights. I want you to review

2S it, consult with your attorney, Ms. Somerville. If you


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1 understand it, sign it and give it back to my Court

2 Clerk. But, again, I remind you that you must file that

3 form with the Clerk of the Court within 42 days if you

4 wish to file an appeal and have Counsel appointed.

5 Understood?

6 MS. SOMERVILLE: Your Honor, I have a

7 question. Because it was my understanding from the

8 Presentence Investigation Report that he had paid in

9 excess of all of the fees charged in his original

10 Judgment of Sentence and I have never received copy of

11 that.

12 THE COURT: I read the same thing. But I

13 noticed when I went back in the file that there was an

14 appointed attorney fee charge that was never identified

15 in the Presentence Investigation Report as having been

16 paid.

17 MS. SOMERVILLE: Was that from the original

18 sentence?

19 THE COURT: The original sentence, $600. Yes.

20 DEFENDANTJACKSON: I hired my attorney.

21 MS. SOMERVILLE: He had retained counsel.

22 THE COURT: You retained counsel?


24 THE COURT: Well, then, it was error that it

25 was marked off $600 for appointed Counsel. So if thats


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1 at case, that would account for the discrepancy. And

2 based upon that, you do have a 423 credit then. All the

3 fees have been paid.

4 So the record should reflect that the

5 appointment of the appointed attorney fee charge of $600

6 that was instituted initially is in error and I marked

7 it down here on this that it was retained counsel.

8 MS. SOMERVILLE: Okay. Would that be put into

9 his account in prison?

10 THE COURT: Yes. What well do here is

ii identify there is a $23 credit that should be placed

12 into the account. Well note that on the judgement.

CD 13 , MS. BENNETTS: Thank you.

14 THE COURT: Any questions?

15 MS. SOMERVILLE: Appellate rights? Does he

16 get a form to sign?

17 THE COURT: Yes. Thats what I just

18 discussed.

19 (Proceeding concluded at 11:42 a.m.)

20 * * * * *

21

22

23

24

25


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1 CERTIFICATE OF NOTARY

2

3 STATE OF MICHIGAN

4 ) SS

5 COUNTY OFOAKLAND

6 I, Carol Dillon, Certified Shorthand Reporter, a

7 Notary Public in and for the above county and state, do

8 hereby certify that the above proceeding was taken

9 before me at the time and place hereinbefore set forth;

10 that the proceeding was duly recorded by me

11 stenographically and reduced to computer transcription;

12 that this is a true, full and correct transcript of my

13 stenographic notes so taken; and that I am not related

14 to, nor of counsel to either party nor interested in the

iS event of this cause.

16

17

18 /s/ Carol Dillon

19 Carol Dillon RPR, CSR 2950

20 Notary Public,

21 Oakland County, Michigan

22 My Commission expires: 9—3—2022

23

24

25


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