Opposition Brief — Timothy Ray Jones, Jr., Petitioner v. South Carolina

NO. 23-6078

IN THE

Supreme Court of the United States

TIMOTHY RAY JONES,

v.

Petitioner,

STATE OF SOUTH CAROLINA,

Respondent.

_____________

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF SOUTH CAROLINA

____________

BRIEF IN OPPOSITION

_____________

ALAN WILSON

Attorney General

DONALD J. ZELENKA

Deputy Attorney General

*MELODY J. BROWN

Sr. Assist. Deputy Attorney General

TOMMY EVANS

Assistant Attorney General

Office of the Attorney General

Post Office Box 11549

Columbia, South Carolina 29211-1549

(803) 734-6305

*Counsel of Record

ATTORNEYS FOR RESPONDENT

TABLE OF CONTENTS

PETITIONER’S QUESTIONS PRESENTED ............................................................. iii

RESPONDENT’S COUNTER-STATEMENT OF QUESTIONS PRESENTED ........ iii

TABLE OF AUTHORITIES ......................................................................................... iv

BRIEF IN OPPOSITION............................................................................................... 1

CITATIONS TO OPINIONS BELOW .......................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 2

STATEMENT OF THE CASE....................................................................................... 2

I.

Facts of the Murders and Jones’s Capture ...................................................... 2

II.

Procedural History ........................................................................................... 5

REASON WHY CERTIORARI SHOULD BE DENIED............................................... 6

I.

II.

The Court should deny certiorari on Jones’s claim that the Due

Process Clause and the Eighth Amendment secures the

right for a capital defendant to have the jury informed of and

questioned on a point of law that is neither part of sentencing

nor ever a matter for the jury to decide. ....................................................... 7

A.

Resolution by the Supreme Court of South Carolina. .......................... 7

B.

Jones fails to show a consequential split in authority as the

Constitution does not compel a jury instruction or jury

voir dire on the consequences of an insanity verdict

in a capital or non-capital case. ........................................................... 8

The Court should deny certiorari on Jones’s Fourth Amendment

claim where the Supreme Court of South Carolina rejected his

“bored officer only” theory and faithfully applied this Court’s

precedent in rejecting the claim after full consideration of all

the facts presented at the suppression hearing. ........................................ 15

A.

Resolution by the Supreme Court of South Carolina. .................... 16

i

B.

Jones fails to show any reason for review because, though

Jones disagrees with the result, the Supreme Court of South

Carolina simply applied well-established precedent to the facts

of his case. If the Court were inclined to grant the petition for

error correction, there is no error to correct ................................... 18

CONCLUSION............................................................................................................ 21

ii

*CAPITAL CASE*

PETITIONER’S QUESTIONS PRESENTED

1.

Whether the Due Process Clause and the Eighth Amendment require that a

jury, as the sentencer in a capital case, be told the truth about the effect of a verdict

of not guilty by reason of insanity and a capital defendant allowed to voir dire

potential jurors about their ability to render this verdict.

2.

Whether a roadblock conducted by two bored police officers with minimal

oversight and excessive discretion violated the Fourth Amendment.

RESPONDENT’S COUNTERSTATEMENT

OF QUESTIONS PRESENTED

1.

Should the Court deny certiorari on Jones’s claim that the Due Process Clause

and the Eighth Amendment secures the right for a capital defendant to have the jury

informed of and questioned on a point of law that is neither part of sentencing nor

ever a matter for the jury to decide?

2.

Should the Court deny certiorari on Jones’s Fourth Amendment claim where

the Supreme Court of South Carolina rejected his “bored officer only” theory and

faithfully applied this Court’s precedent in rejecting the claim after full consideration

of all the facts presented at the suppression hearing?

iii

TABLE OF AUTHORITIES

Cases:

Adams v. Texas, 448 U.S. 38 (1980) ............................................................................ 9

Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016) ........................................ 8

Atkins v. Virginia, 536 U.S. 304 (2002) .................................................................... 13

Brown v. Texas, 443 U.S. 47 (1979) ....................................................................... 6, 16

City of Indianapolis v. Edmond, 531 U.S. 32 (2000) ........................ 15, 17, 18, 19, 20

Coe v. Bell, 161 F.3d 320 (6th Cir. 1998) .................................................................. 11

Delaware v. Prouse, 440 U.S. 648 (1979) ................................................ 15, 17, 18, 20

Ford v. Wainwright, 477 U.S. 399 (1986) ................................................................. 13

Garrett v. State, 320 A.2d 745 (Del.1974)) ................................................................ 13

Hall v. Florida, 572 U.S. 701 (2014) ......................................................................... 13

Lyles v. United States, 254 F.2d 725 (D.C. 1957) ....................................................... 8

Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) ............................... 17, 18

Miller v. Alabama, 567 U.S. 460 (2012) .................................................................... 13

Mu’Min v. Virginia, 500 U.S. 415 (1991) .............................................................. 8, 14

People v. Goad, 364 N.W.2d 584 (Mich. 1984) .......................................................... 12

People v. Meeker, 407 N.E.2d 1058 (Ill. App. 5 th Dist. 1980) .................................. 13

People v. Tally, 7 P.3d 172 (Colo. App. 1999) ........................................................... 14

Roper v. Simmons, 543 U.S. 551 (2005) .................................................................... 13

Shannon v. United States, 512 U.S. 573 (1994) .................................... 8, 9, 10, 11, 12

Simmons v. South Carolina, 512 U.S. 154 (1994) ...................................................... 9

State v. Becker, 818 N.W.2d 135 (Iowa 2012) ............................................................. 8

State v. Bell, 360 S.E.2d 706 (S.C. 1987) .................................................................... 7

State v. Cooper, 700 A.2d 306 (N.J. 1997) ................................................................. 11

State v. Jones, 891 S.E.2d 347 (S.C. 2023). ......................................... 1,4, 5, 6, 17, 18

State v. Poindexter, 431 S.E.2d 254 (S.C. 1993) ...................................................... 14

State v. Stanko, 658 S.E.2d 94 (S.C. 2008) ............................................................... 15

State v Wallace, 333 A.2d 72 (Me. 1975) ................................................................... 13

United States v. Battle, 264 F. Supp. 2d 1088 (N.D. Ga. 2003) ............................... 11

United States v. Fisher, 10 F.3d 115 (3rd Cir. 1993)) ............................................... 12

United States v. Martinez-Fuerte, 428 U.S. 543 (1976) ............................................ 20

Wainwright v. Witt, 469 U.S. 412 (1985) .................................................................... 9

Constitutional Provisions:

U.S. Const. amend. IV. ................................................................................................ 2

U.S. Const. amend. VIII. ............................................................................... 2, 7, 8, 14

Statutes:

28 U.S.C. § 1257(a) ..................................................................................................... 2

S.C. Code Ann. § 17-24-40 ........................................................................................ 13

iv

BRIEF IN OPPOSITION

*Capital Case*

Petitioner, Timothy Ray Jones, Jr., was convicted by a jury of the murders of

his five small children and sentenced to death. His petition comes to this Court after

the direct appeal review by Supreme Court of South Carolina which affirmed the

convictions and sentence without dissent. Jones now seeks review of two issues.

Respondent submits, however, that he has failed to show a compelling reason for

review, and that this Court should deny the petition.

CITATIONS TO OPINIONS BELOW

The Supreme Court of South Carolina’s published opinion issued on July 19,

2023, affirming Jones’s convictions and death sentence is reported at 891 S.E.2d 347,

and is reproduced in the petition appendix. Pet. App. A1-A38. The July 19, 2023,

order granting in part and denying in part Jones’s petition for rehearing that resulted

in the substituted opinion issued that same day, is unreported but is included in the

petition appendix. Pet. App. A60. The former opinion issued on March 29, 2023, that

was superseded by the opinion issued on July 19, 2023, is also included in the petition

appendix. Pet. App. A61-A97.

JURISDICTION

On July 19, 2023, the Supreme Court of South Carolina’s granted in part and

denied in part Jones’s petition for rehearing and issued a substituted opinion. On

September 18, 2023, Jones requested an extension to file his petition. On September

28, 2023, the Chief Justice granted the extension until November 16, 2023. Jones

1

filed his petition on November 16, 2023. He invokes this Court’s jurisdiction pursuant

to 28 U.S.C. § 1257(a). Pet. at 1.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Fourth Amendment to the United States Constitution,

which provides:

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

houses, papers, and effects, against unreasonable searches

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

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

U.S. Const. amend. IV.

Jones submits this case also involves the Eighth Amendment to the United

States Constitution, which provides:

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

U.S. Const. amend. VIII.

STATEMENT OF THE CASE

A.

Facts of the Murders and Jones’s Capture.

Jones, a computer professional 1 who had graduated with a 3.81 GPA from

Mississippi State, lived in Lexington County, South Carolina, in 2014.

He was

divorced from his wife and had primary custody of the couple’s five young children:

Merah Gracie, age 8, Elias Xavier (Eli), age 7, Nahtahn Hehseyd, age 6, Gabriel Asher

Jones “perform[ed] validation engineering” at Intel. (R. p. 4640). He was, however, becoming

“bored” with the engineering position and was going to attend medical school. (R. p. 4642, 4874 and

3608-3609).

1

2

(Gabe), age 2, and Abigail Elizabeth (Elaine), age 1. (R. p. 3295). The Supreme Court

of South Carolina summarized the evidence of the horrific murders of these small

children as follows:

Throughout the day of August 28, 2014, Jones smoked

spice—a form of synthetic marijuana—at work to cope with

the stress of an impending project. Jones left work in the

late afternoon and went to his home in Lexington County.

He smoked more spice before leaving home to pick up his

children. Abigail (age 1) and Gabriel (age 2) were staying

at a neighbor’s house, and Nahtahn (age 6), Elias (age 7),

and Merah (age 8) were participating in an after-school

program. Jones retrieved the children and purchased

takeout from a local restaurant.

After Jones and the children returned home with their

supper, Jones discovered an electrical outlet in the house

was not working. He accused Nahtahn of tampering with

the outlet because Nahtahn had an unusual interest in

electricity. To get Nahtahn to admit he played with the

outlet, Jones forced Nahtahn to do one hundred pushups,

one hundred situps, and two hundred squats, all in sets of

ten.

Nahtahn never admitted to playing with the outlet, but

Jones later heard Nahtahn telling his mother over the

phone, “It was an accident, Mommy.” Enraged, Jones sent

Nahtahn to bed. Later that night, Jones went to check on

Nahtahn. He shook Nahtahn by the shoulders and again

demanded to know what happened to the outlet. Nahtahn

collapsed to the floor. Jones told Elias and Merah he

thought Nahtahn was dead, and Merah confirmed

Nahtahn was not breathing.

Jones then searched the internet for a violent male-onmale rape scene from the movie American History X and

began to fear the things he would endure in prison as a

“baby killer.” At approximately 2:00 a.m., Jones took

Merah with him to purchase ten packs of cigarettes at a

nearby convenience store. Jones claimed that on the way

home, he heard voices in his head telling him to kill his

3

other four children because they would be better off in

Heaven than without parents.

When Jones and Merah returned home, Merah went to bed.

Jones smoked two bowls of spice and walked to the living

room where Elias and Merah were sleeping. Jones wrapped

his hands around Elias’ neck and strangled him to death

while Elias begged, “Dad, take me with you.” Jones then

turned toward Merah, who pleaded, “Daddy, I love you,”

and strangled her to death. Jones proceeded to strangle

Abigail and Gabriel to death using a belt because his hands

were too big to wrap around their tiny necks.

State v. Jones, 891 S.E.2d 347, 352–53 (S.C. 2023). (See also Pet. App. A2-A3).

After the murders, according to Jones, he used more spice through the night,

then, the next day, “wrapped each of the five bodies in bedsheets and stacked them

in the back of his Cadillac Escalade.” Id., at 225; Pet. App. A3. For eight days, he road

from state to state collecting materials to dismember and dissolve the children’s

bodies – being careful to also purchase necessary items to protect himself in the

process such as goggles and a dust mask – all while “he searched online for applicable

extradition laws and local dumpsites, landfills, and campgrounds.” Id., at 225-226;

Pet. App. A3.

On September 6, 2014, after having put each body in its own trash bag, he

discarded the remains of his five small children in a remote logging area in Alabama.

Id., at 226; Pet. App. A3. He was stopped that day at an authorized checkpoint in

Smith County, Mississippi, where officers, unaware of the murders and disposal of

bodies, notice distinct odors coming from the Escalade – smells “of burnt marijuana

and garbage coming from the vehicle.” Id.

Jones’s consent, showed the following:

4

A search of the Escalade, made with

… bleach stains on the floorboard; synthetic marijuana;

drug paraphernalia; bleach; muriatic acid; charcoal fluid;

and a scribbled note reading in part, “Head to

campground,” “Melt bodies,” “Sand to dust or small pieces,”

and “Day 1: Burn up bodies. Day 2: Sand down bones. Day

3: Mexican Border☺, dissolve, and discard.”

Id.

The officers arrested Jones, whose eyes appeared “red and glassy and his

speech … slurred … for driving under the influence, possession of a controlled

substance, and possession of drug paraphernalia.” Id.

When later calling in the license, the officers were advised that the Escalade

was tagged as being of interest in the search for five missing children from Lexington

County, South Carolina.

Id.

Jones confessed, and later led officers to the

decomposing and animal-ravaged remains of his five children. Id; Pet. App. A3-A4.

Jones was returned to South Carolina for prosecution. Id; Pet. App. A-4.

B.

Procedural History.

A Lexington County, South Carolina grand jury true-billed five indictments

against Jones at the January 2015 term. (R. pp. 8356-8365). On December 9, 2015,

the State served notice of intent to seek the death penalty. (R. p. 8353). Four attorneys

represented him: Boyd Young, Esquire, Robert Madsen, Esquire, Bill McGuire,

Esquire, and Casey Secor, Esquire.

On April 29, 2019, Jones was arraigned and entered a plea of not guilty by

reason of insanity. (R. pp. 120-121). A jury trial followed with opening statements

presented on May 14, 2019. On June 4, 2019, the jury convicted Jones on all five

counts murder. (R. p. 5097). The sentencing phase began on June 6, 2019. (R. p. 5161).

5

On June 13, 2019, the jury returned a verdict that the State had proven beyond

a reasonable doubt a required statutory aggravating circumstance which authorized

consideration of a death sentence, in particular the jury found: “Two or more persons

were murdered by the Defendant by act or pursuant to one scheme or course of

conduct” and “the murder of five children eleven years of age or younger,” (R. pp.

5953, 5965), then recommended death, (R. p. 5966). That same day Judge Griffith

imposed the death sentence as required by the jury’s decision. (R. p. 5971). Jones

timely appealed to the Supreme Court of South Carolina where his convictions and

sentence were affirmed without dissent. Jones, supra. (See also A1-A38).

REASONS WHY CERTIORARI SHOULD BE DENIED

Jones presents no compelling reason to grant his petition. He first claims that

the Constitution secures a right to inform capital jurors of a point of law that they

are never asked to decide. In support, Jones argues that the States differ in their

approach; however, he cannot show a split as to application of a Constitutional right

as there is none. A general showing of policy differences among the States fails to

show a split in application of federal law. Further, in his second issue Jones tries to

bring in an argument based on Brown v. Texas, 443 U.S. 47 (1979), but he failed to

argue Brown in his brief to the Supreme Court of South Carolina and made only

passing reference to it in reply. There is no ruling on the argument to review. As to

the arguments addressed, the state court correctly applied this Court’s precedent to

the facts received at the suppression hearing. Jones fails to present either a case or

claim worthy of certiorari review and his petition should be dismissed.

6

I.

The Court should deny certiorari on Jones’s claim that the Due

Process Clause and the Eighth Amendment secures the right for

a capital defendant to have the jury informed of and questioned on a

point of law that is neither part of sentencing nor ever a matter for

the jury to decide.

Special capital voir dire provisions exist to determine whether a potential juror

can fairly consider both the possibility of a life sentence or the possibility of a death

sentence. Neither Due Process nor the Eighth Amendment compel a state court to

allow a potential juror during capital voir dire to be advised of the result of a “not

guilty by reason of insanity” verdict because sentencing is not a jury concern where

such a verdict is returned. There is no merit to Jones’s contention.

A.

Resolution by the Supreme Court of South Carolina.

The Supreme Court of South Carolina acknowledged “Jones’s request for voir

dire and a jury instruction detailing the consequences of an NGRI verdict” during his

trial proceedings and considered on the merits his argument that the trial court erred

in denying both. (Pet. App. 12). It affirmed finding state law, with limited exceptions

(including an exception to cure an incorrect statement on the matter), does not allow

a jury instruction on insanity verdict consequences in non-capital cases or on similar

matters not decided by the jury in capital cases. 2 (Pet. App. A12).

The state supreme court also rejected Jones’s argument that the Due Process

Clause and the Eighth Amendment compelled a different result. (Pet. App. A13). As

2

In State v. Bell, 360S.E.2d 706 (S.C. 1987), the capital case cited, the request was for an instruction that

sentencing would proceed if the jury found a capital defendant guilty but mentally ill. Bell, 360 S.E.2d at 710. The

Supreme Court of South Carolina found no error in declining that instruction on the same principle: “The subsequent

progress of a trial is not relevant to the jury’s determination of whether a defendant is guilty, guilty but mentally ill,

or not guilty, and it is not error to refuse to instruct the jury regarding punishment at the guilt phase. “ Id., at 710.

7

to his due process violation, the state supreme court found Jones only relied on federal

cases where other instructions were necessary to qualify a point relevant to

sentencing phase deliberations, however, since the instruction here could only be

given in the guilt phase, the cases were not controlling. (Pet. App. A13). As to his

argument for an Eighth Amendment violation, the court rejected Jones’s “heightened

reliability requirement of the Eighth Amendment” argument based on this Court’s

precedent “where the defendant is mentally ill or less culpable due to his mental

state,” observing that the jury found Jones was “neither mentally ill nor insane.” (Pet.

App. A14).

B.

Jones fails to show a consequential split in authority as the

Constitution does not compel a jury instruction or jury

voir dire on the consequences of an insanity verdict either

in a capital or non-capital case.

Jones attempts to show a split in authority among the states as a reason for

certiorari review. This fails in several ways.

First, there is a glaring absence of authority grounded in the Due Process

Clause or Eighth Amendment in the petition. Instead of relying on an actual split on

whether the Constitution requires such a charge, he argues that state courts have

made different policy decisions on better practice for that state. (See Pet. at 11).

However, “[d]ebates as to which policy is best, as opposed to whether a practice is

constitutionally acceptable, are better left in the province of the legislature and the

rulemaking process.” State v. Becker, 818 N.W.2d 135, 159 (Iowa 2012), overruled on

other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016). As this

Court has observed, for federal courts, it may exercise “supervisory power” in deciding

8

best practice in voir dire, but in review of state matters the Court’s “authority is

limited to enforcing the commands of the United States Constitution.” Mu’Min v.

Virginia, 500 U.S. 415, 422 (1991). A split in state policy or practice does not make

an issue worthy of this Court’s review – it does quite the opposite.

Second, the “division” Jones references in state case law is in large part driven

by old acceptance of persuasive authority in Lyles v. United States, 254 F.2d 725 (D.C.

1957). The Supreme Court of South Carolina in the Jones opinion did recognize what

it termed a “trend” in allowing an instruction, (Pet. App. A13), but notably, it did not

label it as a “growing” trend. Rightfully so. Of the 12 items listed in support of a

”trend,” 5 are cases that predate this Court’s 1994 opinion, Shannon v. United States,

512 U.S. 573 (1994), that found such an instruction should not generally be given in

federal cases, and 5 others are state statutes. The other referenced authority in the

footnote shows an instruction may be requested by a party or the jury. This places

even more distance between Jones’s position and a finding that the varied state

practices somehow tie to mandatory Constitutional mandates. And, to his credit,

Jones concedes, as he must, that this Court has directed the federal courts not to

instruct on consequences of such a verdict. (Pet. at 9). It is a difficult argument to

make that the Supreme Court of South Carolina’s resolution that follows this Court’s

direction to federal courts is Constitutionally inadequate and must be reviewed.

Third, his reliance on capital voir dire instructions and “heightened

requirements” for capital cases is misplaced. In voir dire, potential jurors are

questioned to ensure they are unbiased to the penalty, i.e., will they following the

9

judge’s instructions as given and fairly consider either a life sentence or death

sentence. See, e.g., Wainwright v. Witt, 469 U.S. 412, 424 (1985) (to disqualify

potential juror, “the juror’s views” must be such as “would ‘prevent or substantially

impair the performance of his duties as a juror in accordance with his instructions

and his oath’”) (quoting Adams v. Texas, 448 U.S. 38 (1980)). But again, the “views

at issue are those “on capital punishment.” Id., at 424 (emphasis added). The

information Jones seeks to have conveyed amplifies or explains neither unyielding

belief or impairment as to capital punishment. Related to the voir dire aspect of his

argument, Jones refers to one potential juror who appeared to require an explanation

of what happens after returning a “not guilty by insanity” verdict. (See Pet. at 20).

The trial judge found her disqualified “because the trial court is forbidden from

informing the jury of those consequences,” and, citing to the controlling state law, the

Supreme Court of South Carolina agreed. (Pet. App. A11). 3 This shows no error in

the capital voir dire process, i.e., questions to discern “the juror’s views” on the death

penalty.

Fourth, Jones pins great hope on this Court’s footnote in Shannon that

referenced a capital jury may have a sentencing function. Jones asserts “Shannon

pointedly left open the question of whether a capital jury must receive a consequence

instruction,” and the Court’s reference to Simmons v. South Carolina, 512 U.S. 154

(1994) in the note, “is a strong indication that the logic of Simmons would apply to an

Petitioner asserts “[t]he state had this juror struck,” but the record is clear the trial judge made the

determination on qualification, mostly on the basis of the direct questioning between the juror and the trial judge.

(Pet. App. A9-A11).

3

10

NGRI consequences instruction in a capital case.” (Pet. at 10). Jones reads too much

into footnote 4. The note merely reflects recognition that capital juries may be given

a “sentencing function” but that was not the case for Shannon’s jury. Id., at 579 n. 4.

The remainder of the paragraph makes clear the “division of labor in our legal system

between judge and jury” is the key point and ends with the Court’s conclusion that

“providing jurors sentencing information invites them to ponder matters that are not

within their province, distracts them from their factfinding responsibilities, and

creates a strong possibility of confusion.” Id. While it is true that in capital

proceedings a jury may determine a sentence, they do not determine a sentence

during the guilt phase. See United States v. Battle, 264 F. Supp. 2d 1088, 1198 (N.D.

Ga. 2003) (no such instruction is warranted in the guilt phase of a capital trial as that

is separate part of the capital bifurcated process). Accord Coe v. Bell, 161 F.3d 320,

346 (6th Cir. 1998) (on federal habeas corpus review of state capital case where

capital defendant complained that a consequence instruction was given to his

prejudice, finding: “Because bright-line rules of constitutional law were not at issue

(in Shannon or any other case), Coe has not sufficiently demonstrated that the state

courts in this case violated a principle of federal law that bound them.”). Cf. State v.

Cooper, 700 A.2d 306, 331 (N.J. 1997) (“An ultimate-outcome instruction is required

only during the penalty phase.”). However, Shannon is instructive as to possible

reasons why some States prohibit instructions.

In Shannon, this Court acknowledged that “providing jurors sentencing

information invites them to ponder matters that are not within their province,

11

distracts them from their factfinding responsibilities, and creates a strong possibility

of confusion.” Id., at 579.

The Court rejected the concept that Jones appears to

embrace:

We also are not persuaded that the instruction Shannon proposes would

allay the fears of the misinformed juror about whom Shannon is

concerned. “[I]f the members of a jury are so fearful of a particular

defendant’s release that they would violate their oaths by convicting [the

defendant] solely in order to ensure that he is not set free, it is

questionable whether they would be reassured by anything short of an

instruction strongly suggesting that the defendant, if found NGI, would

very likely be civilly committed for a lengthy period.”

Id., 585–586 (quoting United States v. Fisher, 10 F.3d 115, 122 (3rd Cir. 1993)).

Further, again addressing the concerns Jones now embraces, this Court

reasoned:

Instead of encouraging a juror to return an NGI verdict, as Shannon

predicts, such information might have the opposite effect—that is, a

juror might vote to convict in order to eliminate the possibility that a

dangerous defendant could be released after 40 days or less.

Id., at 586.

Regardless of benefit or detriment, the broader point remained that “the

inevitable result of such an instruction would be to draw the jury’s attention toward

the very thing—the possible consequences of its verdict—it should ignore.” Id., at

586. 4 Moreover, what to charge is a challenging question:

…if it is proper to inform the jury that commitment to a mental

institution results from a verdict of not guilty by reason of insanity, it

would be equally appropriate that the jury be aware of the statutory

A short word about the one study Jones references, the most prominent part of the result is

that “if a judge told them to disregard the outcomes, 70.6% reported that knowing the outcomes would

influence their decisions.” (Pet. at 21). Of course, Jones offers these number without context, but even

so, whether that is in favor of the defense or in favor of the prosecution, it is likely to detract from the

evidence and the jury’s duty.

4

12

provisions for subsequent release. Because of the numerous approaches

authorized …. no instruction could adequately postulate the impact of

such a verdict on the appellant’s future tenure in the institution. We

agree with the Delaware Court (responding to a similar contention) that

‘(s)uch instruction would have substituted one unacceptable area of

speculation and conjecture for another.’

State v Wallace, 333 A.2d 72, 79 (Me. 1975) (quoting Garrett v. State, 320 A.2d 745,

750 (Del.1974)). See also People v. Goad, 364 N.W.2d 584, 589–90 (Mich. 1984)

(agreeing with Wallace given “the numerous possible contingencies under the

statutory scheme” it is impossible to give fair instruction). 5

Therefore, other

jurisdictions could easily accept that logic, as well, without offending the

Constitution.

Fifth, Jones’s concept of an Eight Amendment violation is flawed. He based

his argument on this Court’s capital jurisprudence related to intellectual disability

and exemption from capital punishment – citing Atkins v. Virginia, 536 U.S. 304

(2002), and Hall v. Florida, 572 U.S. 701 (2014), and, the precedent regarding

competency to be executed, Ford v. Wainwright, 477 U.S. 399 (1986). (Final Brief of

Appellant at 45-46). Here, he subtracts Wainwright and adds Miller v. Alabama, 567

U.S. 460 (2012), to his Roper v. Simmons, 543 U.S. 551, 573 (2005) that was also

referenced in his state court brief, (Final Brief of Appellant at 46). to discuss

Presumably, a defendant would not be able to modify the actual terms of the statute in

conveying information to potential jurors. The South Carolina statute only provides for a required

maximum of one hundred and twenty days in the South Carolina State Hospital, and additional

proceedings determine release or further commitment. S.C. Code Ann. § 17-24-40. Logic supports

that such information would not be particularly helpful to any defendant charged with a particularly

violent crime, but how much more so for a capital defendant where concern of continuing danger arises.

See People v. Meeker, 407 N.E.2d 1058, 1066 (Ill. App. 5 th Dist. 1980) (“If the instruction tendered

here were given it would still appear the jury could prevent defendant’s release only by finding him

guilty. … we find the instruction so uncertain regarding the possibility of post-verdict confinement

that it would not benefit defendant if it were given.”).

5

13

automatic life without parole sentences for juveniles without considering

circumstances of youth. (Pet. at 20). However, his reasoning lacks any basis for

finding Eighth Amendment error apart from the sole fact that he is a capital

defendant. (See Pet. at 20). He then generally asserts how important it was that

jurors could consider his insanity defense because he otherwise had no defense to the

murders of his five small children in a case where the jurors understood that the

State was seeking the death penalty. (Pet. at 20). He asserts that he could not explore

the consequences “in voir dire to eliminate jurors who could not consider an NGRI

verdict.”

(Pet. at 20).

This concedes the point he makes is not one rooted in

punishment, but avoidance of a guilty verdict. The Eighth Amendment, going to

punishment, is not implicated. 6 Further, just because a question to a potential juror

may be “helpful” to a party, does not make the question required under the

Constitution. Mu’Min, 500 U.S. at 416. See, e.g., State v. Poindexter, 431 S.E.2d 254,

255 n. 2 (S.C. 1993) (“voir dire is not to be used as a means of pre-educating or

indoctrinating a jury or … impaneling a jury with particular predispositions”

consequently “the discovery and elimination of biased or prejudiced jurors during voir

dire does not require that they first be informed of the consequences of each potential

verdict.”). 7

Moreover, even if instructed on consequences, the consequences still should not drive the

verdict. See People v. Tally, 7 P.3d 172, 184 (Colo. App. 1999) (instruction authorized “that such

defendant will be committed to a mental institution until it is determined that he or she is no longer

insane. However, the jurors should also be told that such information is given to them only so that

they may know the consequences of any verdict of insanity and that such information should have no

bearing upon their determination of a defendant’s mental status.”).

6

Relatedly, the Supreme Court of South Carolina has expressly ruled that a capital defendant

may not “ask potential jurors about their specific views of the insanity defense during voir dire”

7

14

In sum, Jones has failed to show any split of significance; failed to show an

infringement of a Constitutional right; and for that matter, any error that could be

corrected. His petition should be denied.

II.

The Court should deny certiorari on Jones’s Fourth Amendment

claim where the Supreme Court of South Carolina rejected his

“bored officer only” theory and faithfully applied this Court’s

precedent in rejecting the claim after full consideration of all the

facts presented at the suppression hearing.

Again, Jones fails to show a compelling reason to grant his petition. In this

issue, he is merely seeking another interpretation of the facts since the Supreme

Court of South Carolina rejected his “bored officer only” theory and affirmed by

ordinary application of this Court’s well-established precedent to the full of the facts

developed at the suppression hearing.

Jones submits, though, that this Court has not revisited “the constitutionality

of roadblocks in almost twenty years” in attempting to present a compelling case for

review. (Pet. 22). However, that shows this Court has already announced decisions

that can, and have been, followed by the lower federal courts and the States. He has

again failed to show a compelling reason to grant his petition. As hundreds of other

cases have shown, court routinely apply the relevant guidance as outlined Delaware

v. Prouse, 440 U.S. 648 (1979) and City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

The Supreme Court of South Carolina did so here. Jones simply asks this Court to

including their views on an insanity defense. State v. Stanko, 658 S.E.2d 94, 96 (S.C. 2008).

Recognizing that “the Sixth and Fourteenth Amendments to the United States Constitution provide a

defendant with the constitutional right to a fair and impartial jury of his peers,” noting that “this right

does not entitle a defendant to handpick a jury.” Id., 96-76.

15

review a fact-driven issue. Such a request will seldom support the grant of certiorari

review.

One further point exists to show yet another cause to deny the petition. Jones

complains in his petition that the Supreme Court of South Carolina failed to apply

Brown v. Texas, 443 U.S. 47 (1979), (Pet. at 25), but Jones did not raise any issue or

argument based on Brown to the state supreme court. The issue presented on this

matter was follows:

The trial court erred in denying appellant’s motion to

suppress evidence obtained as a result of an illegal

roadblock conducted by two bored police officers with

minimal oversight and excessive discretion, in violation of

the Fourth Amendment.

Brown appeared nowhere in his brief and was only briefly mentioned in the

reply brief with one parenthetical with summarizing generally, “holding that the

Fourth Amendment requires ‘a plan embodying explicit, neutral limitations on the

conduct of individual officers’,” and one “quoting” the case reference for the same

point. (Reply Brief at 15 and 16). It appeared more fully in the petition for rehearing

after the decision had been made. (See Pet. App. A45). Jones can hardly fault the

Supreme Court of South Carolina for failing to consider that which he did not present.

A.

Resolution by the Supreme Court of South Carolina.

The Supreme Court of South Carolina adequately summarized the controlling

facts as this issue in the direct appeal opinion:

Quite by chance, on the same day Jones disposed of

the children’s bodies, he was apprehended at a safety

checkpoint in Smith County, Mississippi. Deputy Charles

Johnson, one of the two officers conducting the checkpoint,

16

testified that “because things were quiet” on the night of

September 6, 2014, he and Deputy Robert Thompson asked

Smith County Under-Sheriff Marty Patterson for

permission to conduct a safety checkpoint. Sheriff Charlie

Crumpton testified safety checkpoints were intended to

check for driver's licenses, seatbelt violations, proper child

restraints, and proof of insurance. Sheriff Crumpton

estimated approximately ten percent of drivers are ticketed

or arrested at safety checkpoints. He also testified the

department’s verbal policy required that checkpoints be

approved by a supervisor and conducted at a safe location

by two or more officers who wear reflective vests and stop

all vehicles. Deputy Johnson testified he and Deputy

Thompson followed the department’s policy. Deputy

Johnson further testified he was normally equipped with a

portable device to conduct breathalyzer tests on suspected

drunk drivers.

Jones, 891 S.E.2d at 359-360; Pet. App. A14-A15.

The state supreme court noted that Jones had moved to suppress the evidence

discovered as a result of the “ checkpoint, arguing the checkpoint violated the Fourth

Amendment because its primary purpose was general crime prevention.” Id; Pet.

App. A15. The court agreed that the Fourth Amendment applied and reviewed both

the holdings in Prouse and Edmond, along with Michigan Dep’t of State Police v. Sitz,

496 U.S. 444, (1990).

Id; Pet. App. A15-A16. In comparing approved and non-

approved checkpoints as described in those cases, the state supreme court reasoned,

based on the evidence presented at the suppression motion hearing that:

Here, the checkpoint was precisely the type of checkpoint

suggested by the Supreme Court in Prouse and Edmond.

The State presented evidence sufficient to prove the

primary purpose of the Smith County checkpoint was

highway safety, not general crime prevention. Four officers

testified the checkpoint was intended to check for driver’s

licenses, vehicle registrations, and proof of insurance. At

no point did any witness suggest a contrary purpose. As in

17

Sitz, the Smith County Sheriff’s Department had a policy

requiring that all vehicles passing through checkpoints be

stopped in a safe, structured manner. Officers did not have

unbridled discretion as was the case in Prouse; instead,

stops were brief and minimally intrusive. For these

reasons, we hold the trial court did not err in denying

Jones’s motion to suppress.

Id., at 360-361; Pet. App. A16.

B.

Jones fails to show any reason for review because, though

Jones disagrees with the result, the Supreme Court of South

Carolina simply applied well-established precedent to the facts

of his case. If the Court were inclined to grant the petition for

error correction, there is no error to correct.

This Court in a series of cases including Prouse, Edmond, and Sitz, defined the

parameters for a permissible checkpoint. Jones does not attempt to find fault with

the state court’s reliance on the precedent but appears to argue the state court should

have applied the precedent differently here. It is evident that Jones falls back on the

very points at issue in Prouse and Edmond – random and general-purpose stops to

argue the stop was improper. (Pet. at 23). It was not. The evidence of record well

supports the state court resolution.

The deputies did not on their own devise protocol in an effort to stop a specific

vehicle, rather, the deputies followed policy of the Smith County Sheriff’s Department

and requested and received permission for the safety checkpoint. (R. p. 2740 - p. 2741;

p. 2780). The area selected was not chosen for its suspected crime, but because it was

well traveled, large road with adequate lighting and room on both sides of the

highway for a car to pull off without blocking the highway, a place previously used

for these types of checkpoints. (R. p. 2780; p. 6623). The deputies checked driver’s

18

licenses, proof of insurance and proper child restraints. (R. p. 6648). During the night,

“possibly four or five” cars were stopped prior to Jones, each driver was asked for

their driver’s license and proof of insurance. (R. p. 6653). They used their flashlights

to observe the use of any child safety restraints. The stops were minimal and once

everything checked out, each was allowed to proceed. (R. p. 6652). Notably, when

Jones was stopped and rolled his window down, a deputy could immediately smell

what he thought to be burned marijuana and another awful smell, a smell Jones

identified as “garbage.” (R. p. 2743 and 6710). Jones’s eyes were red and had a glassy

appearance, and his speech was slurred. (R. p. 2745). Jones appeared to be under the

influence and was asked to pull over and step out of the vehicle. (R. p. 6654). He

gave consent to search the vehicle. (R. pp. 6654-6655). The synthetic marijuana,

which was illegal in the state, was located, with a bent drink can commonly used to

smoke marijuana. (R. p. 6657; p. 2747-2748).

It was only afterwards that the

connection was made to the missing children. (R. p. 2751; p. 2783; p. 2786-2787; p.

6665).

Jones argues that “law enforcement may not circumvent the dictates of the

Fourth Amendment by using a constitutional purpose as a foundation for the

initiation of a roadblock to then later pursue an unconstitutional purpose.” (Pet. at

23). He also argues “[s]afety is as broad of a category as crime prevention” apparently

suggesting no check point is ever acceptable. (See Pet. at 24). However, in Edmond,

this Court determined that safety checkpoints are a lawful means to protect highway

safety, which is the responsibility of local law enforcement, noting the “vital interest”

19

in safety, and has “suggested that “[q]uestioning of all oncoming traffic at roadblocktype stops” would be a lawful means of serving this interest in highway safety.

Edmond, 531 U.S. at 39 (quoting Prouse, at 663). Jones’s argument lacks factual or

legal support. The evidence at the suppression hearing supports a proper checkpoint

for safety purposes and the Supreme Court of South Carolina logically found “the

checkpoint was precisely the type of checkpoint suggested by the Supreme Court in

Prouse and Edmond.” (Pet. App. A16).

After the above argument in the petition, Jones then appears to veer into

random stop issues, see Pet. at 27, but this safety checkpoint cannot be considered

identical to a random stop. Permission was requested and received, criteria followed

(which included stopping all vehicles), and the location has been previously used for

permissible checkpoints. See United States v. Martinez-Fuerte, 428 U.S. 543, 559

(1976) (approval of “routine checkpoint” sites authorized by “responsible officials”

considering “limited resources” and obligation to “stop only those cars passing the

checkpoint” which limits danger of “abuse or harassing stops”). His remaining

arguments cite to individual state cases in Georgia or Florida, and a general objection

to “random stops.” (See Pet. at 28-31). This Court has already addressed these

concerns in the cited cases. There is no compelling reason to review them once more.

Again, Jones has failed to show a compelling case for this Court to grant his petition.

20

CONCLUSION

For the reasons presented above, this Court should deny the petition.

Respectfully Submitted,

ALAN WILSON

Attorney General

DONALD J. ZELENKA

Deputy Attorney General

*MELODY J. BROWN

Sr. Assist. Deputy Attorney General

TOMMY EVANS

Assistant Attorney General

s/Melody J. Brown

By: ________________________

Post Office Box 11549

Columbia, South Carolina 29211

(803) 734-6305

January 22, 2024

Attorneys for Respondent

21

No. 23-6078

_____________________________

IN THE

SUPREME COURT OF THE UNTED STATES

__________________________

TIMOTHY RAY JONES, JR.,

v.

Petitioner,

STATE OF SOUTH CAROLINA,

__________________________

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF SOUTH CAROLINA

________________________

PROOF OF SERVICE

__________________________

I, MELODY J. BROWN, counsel for the Respondents, certify that I have this

day served the Brief in Opposition on Petitioner by email service on his attorneys of

record, Robert M. Dudek, Esquire, at Rdudek@sccid.sc.gov; David Alexander,

Esquire, at dalexander@sccid.sc.gov; and Lara M. Caudy, Esquire at

Lcaudy@sccid.sc.gov and by depositing a copy of the same in the U.S. Mail, first

class, postage prepaid to address listed below:

Robert M. Dudek, Esquire

David Alexander, Esquire

Lara M. Caudy, Esquire

SC Commission of Indigent Defense

1130 Lady Street, Suite 401

Columbia, South Carolina 29201

This 22nd day of January, 2024.

s/ Melody J. Brown

MELODY J. BROWN

Office of Attorney General

P. O. Box 11549

Columbia, South Carolina 29211

(803) 734-6305

ATTORNEY FOR RESPONDENTS