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Plaintiff-Appellee, COA No. 273407

V. LC No. 06-2597-FC




James R. Linderman, P23088

Emmet County Prosecutor

200 Division Street

Petoskey, MI 49770


Attorney for Plaintiff-Appellee

Joel Nathan Dufresne, #257173

Ionia Maximum Correctional Facility

1576 West Bluewater Highway

Ionia, MI 48846

In Pro Per



ISSUE TWO Continued (from Application for Leave to Appeal, hereafter Application, p.22)

Up until trial the element of coercion in Counts 1,2,10 and 11 was allegedly through imminent hazard to W___’s daughters (Attached A, MSP 2/24/06, pp. 1, 2; PE, PP. 31-32, direct examination), and Counts 10 and 11 were bound over on that specific testimony (PE, pp. 75, 81). At trial W____ testified to the contrary, that her children were not even present (T2, pp.9, 24, direct examination), and the prosecutor argued that this absence of children was evidence of Defendant’s guilt (T3, p.14). Counsel was deficient in performance in neglecting to impeach W____ with her prior inconsistent testimony, resulting in the prejudice of trial on charges materially different from those for which Defendant was bound over from preliminary examination.

W____ made many inconsistent statements, many of them under oath, and counsel testified that use of impeachment evidence against W____ was the reason that the risky trial strategy regarding the creativity movement was followed (Ginther Hearing, pp. 3-7). At trial counsel referenced some of her prior inconsistent statements while cross-examining W____ (T2, pp.32-33, 47-55; see Attachment B, W___’s 2/16/06 statement) but then got distracted by the topic of “pinch hickeys” (T2, pp.55-56) and asked her no further questions. Counsel deficiently failed to seek admission of any of the documents impeaching W___’s testimony, including those for which counsel had based his trial strategy (Ginther Hearing, p.6) then argued as if those documents had been admitted (T3, pp.25-26), prejudicing the defense by leaving the jury under the false impression that the defense was an attempt to distract them with nonsense; Strickland vs. Washington, 466 US 668; 104 S.Ct 2052; 80 L.Ed.2d. 674(1984), People vs. Carbin, 463 Mich 590; 623 NW 2d 884(2001).

The appellate court relied upon People vs. Vaughn, 186 Mich App 376, 380; 465 NW 2d 365(1990), and found “the sole exculpatory testimony came from the defendant” (COA Opinion, p.3). Vaughn is distinguished from the instant case because in Vaughn and its line of precedents no significant credibility evidence was concealed from court and jury (see this issue, and New Issue ONE at DISCOVERY, PERJURY, LIE DETECTOR, and APPELLATE COUNSEL), and Defendant did not give the only exculpatory testimony.

W____ testified that Counts 5 and 6 did not occur (Application, pp. 19-21).

Binganen testified that Defendant solidly maintained complete innocence (T2,p.92-direct examination; p.95, cross examination) and was seeking exculpatory information from jail (T2,pp.92-93, direct examination; pp.96096, cross-examination; see Ginther Hearing, p.6, and this issue herein, above)

Det.Sgt. Harrington testified that his forensic report (see T2,p.105, direct examination of White-Erickson) included “data that previous user might have believed…deleted”(T2,p.124, affirmative answer in direct examination:, meaning that neither the threats that W____ claimed were on the computer (Attachment A, MSP 2/24/06,p.3; PE,pp.18-20, direct examination; T1,p.242, direct examination) were on it, nor were the tell-tale traces that such threats had been there.

Appellate counsel’s performance was deficient for failing to ask Klawuhn why no attempt was made to introduce any of the impeachment evidence central to trial strategy (Ginther Hearing, pp.3-8), for failing to distinguish Vaughn from this case, and for failing to familiarize the court with all of the exculpatory evidence, resulting in the prejudice of erroneously reversible findings; People vs. Reed, 449 Mich 375(1995). The Vaughn finding in this case is based on a tape (trial court opinion, p.8) W____ herself described as misleading about her relationship with Defendant, calling the tape “all a lie, Gwen said you can do it, pretend, it doesn’t matter, lie to him, so I did” (PE, p. 61, cross-examination; see New Issue ONE at DISCOVERY, PERJURY, and LIE DETECTOR)


NEW ISSUE ONE, Continued (from Application, P.25)

Consideration of all the issues Defendant presents is necessary for proper determination of this case, Providence Hospital V National Labor Union Health and Welfare Fund, 162 Mich App 191; 412 NW 2d 690(1987), and to avert a miscarriage of justice, People V Oliphant, 399 Mich 472, 501; 250 NW 2d 443(1976). The nature and high number of errors in this case is itself indicative of an actually innocent Defendant.

B. PERJURY, MCLA § 750.423, Continued (From Application, p.44)

W____ testified at preliminary examination that People’s Exhibit 9(see Application, pp.25-26, 32-40) was not fairly characterized as a talk about her relationship with Defendant because that conversation was “all a lie”(PE,pp.60-61,cross-examination), yet at trial she testified that People’s Exhibit 9 really was about “the things” Defendant “had done to her” (T1,p.255, direct examination), clearly claiming that it wasn’t “all a lie” after all, but instead all true


On 2/16/06 W____ wrote a detailed and vivid statement (Attached B) that was materially at odds with her vague and prevaricating testimony about the Cadillac incident(T1,pp.231,233-234, direct examination; T2,pp.48-50 cross-examination) and even more at odds with Attachment C (MSP6/25/05) and testimony of Trooper Cobalt.

W____’s 2/16/06 statement notes two periods of time (Attachment B; page numbers in that document begin at p.6; p.11, 12) in which her memory was unreliable and is otherwise meticulous with details and clarifications. That 2/26/06 statement is explicit that the porch at 112 Second St., Mesick, MI(see Attachment C, p.4, at “HOME OWNER”) is NOT an enclosed porch (Attachment B,pp.7,9,11), which is true-there is no enclosed porch anywhere at that address (see Attachment D). Attachment B claimed that Defendant found W____ in an interior room, exposed his penis, and threatened to rape Ms.W_____ while kneeling beside her, only to be interrupted by the police shining a flashlight or two through the windows (Attachment B,pp.11-12).

Cobalt testified that the police found Defendant and W_____ outside on the windowless unenclosed porch while Defendant was fully dressed and not touching, kneeling by, or threatening W____ at all; T1,pp.170-172, cross-examination; pp.172-173, redirect examination;

Attachment C.

W_____’s story was rewritten for trial to include “A closed in porch” (T1, p.228, direct examination; see also T1, pp.233-234, direct examination) to account for the windows and flashlights detail; see T2, pp.49-51, cross examination.

Trial counsel established foundation for this prior inconsistent statement (T2, pp.47-53), then never moved to admit it; see Issue TWO, herein. This knowing use of perjury by the prosecutor, United States V Agurs, 427 US 97: 96 S.Ct 2392;49 L.Ed 2d 342(1972), was neglected by appellate counsel in favor of inferior issues; see Application, pp.24, 48-50; APPELLATE COUNSEL, herein below.

W____’s 2/16/06 statement references a “sick, twisted, degrading, demented act that he makes me do” (Attachment B, p.13), apparently a reference to the threatened urination in her mouth that W___ consistently claimed but Attachment C and Cobalt’s testimony refutes. W___’s allegations of sexual violence commence directly after the Cadillac incident (Attachment E, Affidavit; PE, pp.13-14, direct examination; T1, pp. 235-237, direct examination) and end only a week or so before W___ wrote the 2/16/06 statement (T3, p.18), so it is strange that there are no other allegations of sexual violence in Attachment B. Her 2/14/06 custody statement (PE, pp.36-43, cross-examination) contains no allegations of sexual violence at all, and she ended her 2/16/06 statement wishing upon Defendant the sort of sexual violence she eventually alleged Defendant committed. This calls into question the testimony of W____ (PE, pp.7-8, direct examination; p.35, cross examination; T1, pp.248-249, direct examination) and White-Erickson (T2, p.98, direct examination; see Attachment E and Application pp.28-32) about when, how and why the subject of sexual violence first arose.

W_____ always claimed that she had exactly two shots of alcohol that night (Attachment B, p.9; T1, p.228, direct examination; see Application, p.41-42). At 06:00 hours at Munson Medical Center her blood alcohol content was still .139(Attachment F). Even had she started drinking at the Yuma Bar (Attachment C,p1) was closing at 02:00 hours, her actual consumption had to be at least 9 ounces of liquor (Attachment C,p.3, at “VICTIM:,” “WGT:150”; Attachment G).

Any prosecutor must be familiar with blood-alcohol levels. W____’s “two shots” was an in mistakably deceptive answer to an in mistakably preplanned question on a highly material subject; Agurs, supra.

H. OTHER TRIAL DEFICIENCIES, Continued (from Application, p.48)

Although Klawuhn made the beginnings of effective efforts at discovery (see Application, pp.25-40), attacking the so-called medical corroboration of W___’s stories (Application, pp.25-40), and impeaching W____’s credibility (see Issue TWO, herein), Klawuhn failed to pursue any of those efforts to completion. This failure made Klawuhn worse than useless as counsel, because by starting these efforts he caused the jury to expect them to be completed. Klawuhn’s failure to fulfill these expectations, despite having the means to do so, cannot be sound strategy and caused prejudice in a jury left unaware that Klawuhn was arguing from strong exculpatory evidence; Strickland, supra; Carbin, supra. When viewed as a whole, everything Klawuhn did bolster the prosecution and prejudiced the defense.

Klawuhn had, and understood the significance of, many documents he didn’t pass on to appellate counsel. That includes the 6/27/05 Northern Michigan Hospital follow-up visit records of W____ (highly pertinent to the alleged rape and beating just prior to that visit; PE, pp. 14-15, direct examination; T1, pp. 237-238, direct examination; see Application, pp. 30-31), the records of the first exculpatory rape kit results, the exculpatory evidence Defendant gathered in jail (Ginther Hearing, p.6; see Issue TWO, herein), the 2/14/06 custody statement of W___ and Attachment B (see Issue TWO, herein and PERJURY above), Attachment F, and additional medical records (see Attachment H)

I. APPELLATE COUNSEL, Continued (from Application, p. 50)

Counsel on appeal neglected to secure the entire record and relevant documents for essential preparation from prior counsel (see Attachment I) after Klawuhn neglected to provide them (OTHER TRIAL DEFICIENCIES, above herein) and appellate counsel withheld access to the record from the Defendant-compromising the right to file Pro Per. After representation counsel never sent Defendant the post conviction register of actions, appeals court special instructions to Skinner, or lie detector documents given to counsel by Defendant (the only copy Defendant had). See Attachments J, K, L and M (“I am enclosing, essentially, my entire file…I have not kept anything received from the Court” [emphasis added]).