Petition — Taylor v. Tennessee

FILED

DEC 13 1976

MICHAEL RODAK, JR., CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1976

MAURICE McKINNEY TAYLOR,

Petitioner,

vs.

STATE OF TENNESSEE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF TENNESSEE

JAMES R. WyYRSCH

1050 Home Savings Building

1006 Grand Avenue

Kansas City, Missouri 64106

Attorney for Petitioner

-_

E. L. Menpennatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3080

TABLE OF CONTENTS

CI noe ee

ac A Se Se

QUESTIONS PRESENTED—

1. Whether the Opinion of the Court of Criminal

Appeals Should be Reviewed by This Court: (a)

Because the Court Decided This Case in a Way

Probably Not in Accord With Applicable Decisions

of This Court, To-Wit: This Court Has Never

Held That a “Harmless Error” Rule Is Applicable

to Violations of Rights Guaranteed Under the

Fourth Amendment to the United States Constitu-

tion, e.g., Mapp v. Ohio, 367 U.S. 643 (1963); (b)

Because the Court Has Decided a Queston of Sub-

stance Not Heretofore Determined by This Court,

To-Wit: the Court Decided That in Cases Involv-

ing Violations of Rights Guaranteed Under the

Fourth Amendment to the United States Constitu-

tion the Rule Which May Have Been Stated by

This Court in Fahy v. Connecticut, 375 U.S. 85

(1963), Would Govern the Facts of This Case,

Rather Than Rules Which Have Been Stated in

Two Other Cases by This Court, Namely, Chap-

man Vv. California, 386 U.S. 18 (1967), and Harring-

ton v. California, 395 U.S. 250 (1969)

2. Whether the Opinion of the Court of Appeals

(a) Decided a Federal Question of Substance in a

Way Probably Not in Accord With an Applicable

Decision of This Court, Namely, Pointer v. Texas,

380 U.S. 400 (1965) in That the Trial Court in This

Cause Erred in Not Striking the Testimony of Wit-

Il

nesses Dunn and Mason in Whole or in Part After

They Asserted Their Fifth Amendment Rights Not

to Incriminate Themselves; (b) the Court of Ap-

peals Has Decided a Question of Substance Not

Heretofore Decided by This Court, Namely,

Whether It Is Proper to Apply a Harmless Error

Rule, or Whether the Proper Remedy Is to Strike

the Testimony of Those Witnesses Who Assert

Their Fifth Amendment Rights While Testifying

Against an Accused cstaniieanemianentiestaneeiaiiies snhhenes 3

CONSTITUTIONAL PROVISIONS INVOLVED ........ 3

STATEMENT OF THE CASE ...0....0.......:c-:cececssesseeeseceee ce 4

REASONS FOR GRANTING THE WRIT ...................... 9

ii RE ETC DESERET RR SE aT 17

APPENDIX—

Opinion of the Court of Criminal Appeals of Ten-

TE © scdiithcaliseiilctipssthtenhiaiunisentatinciiguisiahitetahiapinisidinattitstitire Al

Order Denying the Petition for Writ of Certiorari

in the Supreme Court of Tennessee ........................ Al10

Order Extending Time to File Petition for Cer-

tiorari by Mr. Justice Stewart .....00..0.00.00.....eeeeee All

Table of Citations

Bruton v. U.S., 391 U.S. 123 (1968) ..0...............ccccccccsccceocese 16

Chapman v. California, 386 U.S. 18 (1967) 9,11,14

Fahy v. Connecticut, 375 U.S. 85 (1963) ........ 9, 10-11, 12, 14

Gideon v. Wainwright, 372 U.S. 335 (1963) 000 .. 10

Harrington v. California, 395 U.S. 250 (1969) ....9, 11, 12, 14

Holloway v. Wolfe, 482 F.2d 110 (8th Cir. 1973) 0... 12

Howard v. Rumble, 452 F.2d 904 (3rd Cir. 1971) 00... 12

ll

Mapp v. Ohio, 367 U.S. 643 (1963) ............ccccceecceeteeeeeeeee 9,10

Milton v. Wainwright, 407 U.S. 371 (1972) .......0.0000.... 12

Park v. Huff, 506 F.2d 849 (5th Cir. 1975), en banc,

cert. denied, 44 U.S.L.W. 3201 (Oct. 7, 1975) ............ 17

Payne v. Arkansas, 356 U.S. 560 (1958) ~....0000 0. 10

Pointer v. Texas, 380 U.S. 400 (1965) 0.00.00... eee. 14, 16

Powell v. Stone, 507 F.2d 93 (1974) .0.......cececcceceeceeeeees 12

Schneble v. Florida, 405 U.S. 427 (1972) 0.0.2.0... 12

Smith v. Illinois, 390 U.S. 129 (1960) -20002... ecco 16

Stone v. Powell, 96 S.Ct. 3037 (1976) 0.000.000. 10

Toomey v. Ohio, 273 U.S. 510 (1927) 20... eee ceeeeseeneeeees 10

US. v. Anderson, 500 F.2d 1311 (5th Cir. 1974) ............ 12

U.S. v. Basurto, 497 F.2d 781 (9th Cir. 1974) ................ 12

U.S. v. Cardillo, 316 F.2d 606 (2nd Cir. 1963) ................ 17

U.S. v. Harris, 501 F.2d 1 (9th Cir. 1974) 0000... 17

U.S. v. Morris, 485 F.2d 1385 (5th Cir. 1973) ................ 16-17

U.S. v. Scott, 511 F.2d 15 (8th Cir. 1975) 0000000. 17

Vaccaro v. U.S., 461 F.2d 626 (5th Cir. 1972) .....00........ 12

In the Supreme Court of the United States

OCTOBER TERM, 1976

MAURICE McKINNEY TAYLOR,

Petitioner,

vs.

STATE OF TENNESSEE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF TENNESSEE

Petitioner, Maurice McKinney Taylor, prays that a

writ of certiorari be granted to review the judgment of

the Court of Criminal Appeals of Tennessee entered in

this case on June $%, 19764

OPINIONS BELOW

The opinion of the Court of Criminal Appeals of Ten-

nessee is not yet reported and is reprinted in the Appendix

hereto at page Al. The order of the Supreme Court of

Tennessee of August 16, 1976 denying Petitioner’s Petition

for Certiorari is reprinted in the Appendix at page A10.

Mr. Justice Stewart’s order extending the time for filing

this Petition for Certiorari to December 14, 1976 is re-

printed in the Appendix at page All.

2

JURISDICTION

The judgment of the Court of Criminal Appeals of

Tennessee was entered on June 8, 1976. The Petition for

Certiorari to the Supreme Court of Tennessee was denied

on August 16, 1976. Mr. Justice Stewart, by order entered

on November 10, 1976, extended the time for filing the

Petition for Certiorari to this Court to December 14, 1976.

This Court has jurisdiction under 28 U.S.C. 1257(3).

QUESTIONS PRESENTED

1. WHETHER THE OPINION OF THE COURT OF

CRIMINAL APPEALS SHOULD BE REVIEWED BY

THIS COURT: (a) BECAUSE THE COURT DECIDED

THIS CASE IN A WAY PROBABLY NOT IN ACCORD

WITH APPLICABLE DECISIONS OF THIS COURT, TO-

WIT: THIS COURT HAS NEVER HELD THAT A

“HARMLESS ERROR” RULE IS APPLICABLE TO

VIOLATIONS OF RIGHTS GUARANTEED UNDER THE

FOURTH AMENDMENT TO THE UNITED STATES

CONSTITUTION, E.G., MAPP V. OHIO, 367 US. 643

(1963); (b) BECAUSE THE COURT HAS DECIDED A

QUESTION OF SUBSTANCE NOT HERETOFORE DE-

TERMINED BY THIS COURT, TO-WIT: THE COURT

DECIDED THAT IN CASES INVOLVING VIOLATIONS

OF RIGHTS GUARANTEED UNDER THE FOURTH

AMENDMENT TO THE UNITED STATES CONSTITU-

TION THE RULE WHICH MAY HAVE BEEN STATED

BY THIS COURT IN FAHY V. CONNECTICUT, 375 US.

85 (1963), WOULD GOVERN THE FACTS OF THIS

CASE, RATHER THAN RULES WHICH HAVE BEEN

STATED IN TWO OTHER CASES BY THIS COURT,

NAMELY, CHAPMAN V. CALIFORNIA, 386 US. 18

(1967), AND HARRINGTON V. CALIFORNIA, 395 U.S.

250 (1969).

3

2. WHETHER THE OPINION OF THE COURT OF

APPEALS (a) DECIDED A FEDERAL QUESTION OF

SUBSTANCE IN A WAY PROBABLY NOT IN ACCORD

WITH AN APPLICABLE DECISION OF THIS COURT,

NAMELY, POINTER V. TEXAS, 380 U.S. 400 (1965) IN

THAT THE TRIAL COURT IN THIS CAUSE ERRED IN

NOT STRIKING THE TESTIMONY OF WITNESSES

DUNN AND MASON IN WHOLE OR IN PART AFTER

THEY ASSERTED THEIR FIFTH AMENDMENT RIGHTS

NOT TO INCRIMINATE THEMSELVES; (b) THE

COURT OF APPEALS HAS DECIDED A QUESTION OF

SUBSTANCE NOT HERETOFORE DECIDED BY THIS

COURT, NAMELY, WHETHER IT IS PROPER TO AP-

PLY A HARMLESS ERROR RULE, OR WHETHER THE

PROPER REMEDY IS TO STRIKE THE TESTIMONY

OF THOSE WITNESSES WHO ASSERT THEIR FIFTH

AMENDMENT RIGHTS WHILE TESTIFYING AGAINST

AN ACCUSED.

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. CONST. amend. IV

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. V

No person . . . shall be compelled in any criminal

case to be a witness against himself, nor be deprived of

life, liberty, or property, without due process of law... .

4

U.S. CONST. amend. VI

In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against

U.S. CONST. amend. XIV, Sec. 1

. nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

STATEMENT OF THE CASE.

This is a Petition for Writ of Certiorari presented by

Petitioner who was charged in the Davidson County

Criminal Court, Division 2, Nashville, Tennessee, with

murder in the first degree, being charged in the deaths of

James Widener and Mildred Hazlewood (TR pp. 3, 4; BE

p. 529). Defendant was found guilty by a jury of both

counts of murder and sentenced to concurrent terms of

life imprisonment (BE pp. 565-566).

The State’s evidence was bottomed upon circumstan-

tial evidence, there being no witnesses produced who saw

the demise of James Widener and Mildred Hazlewood.

The latter two persons were found dead in an alley in

downtown Nashville, Tennessee around 10:00 P.M. on

November 27, 1973 (BE pp. 50-57; 58-62; 86). The victims

died from gunshot wounds (BE pp. 100-108; 110-114). The

investigation of the authorities revealed that Petitioner

1. The Technical Record (hereinafter “TR p. ........ ”) in this

cause is numbered pp. 1-........ and consists of the pleadings, minute

entries and orders of the Court, notice of appeal, and other record

entries. The Bill of Exceptions (hereinafter “BE p. ........ ") con-

sists of pp. 1-569 and is the record of the trial testimony of the

witnesses and the other proceedings in the trial court.

5

(hereinafter “Taylor” or “Defendant”) was seen in the

general area of the crime near the motel where Mrs.

Hazlewood was registered on November 27, 1973, at about

9:00 P.M. In fact Taylor was observed in the same res-

taurant where the victims had dinner prior to their deaths

(BE pp. 227-232). Thereafter, Defendant, a Negro male,

was observed with two other Negro males in Memphis,

Tennessee several days after the murders, doing the fol-

lowing:

Defendant was observed with Dunn and Mason, the

other Negro males, using Widener’s Master Charge credit

card to purchase an airline ticket, although Taylor did not

himself use the card (BE pp. 247-253); Taylor, Dunn and

Mason, on or about 3:00 P.M. on November 29, 1973, were

observed in Memphis Sears & Roebuck Store where several

purchases were made by Dunn, using Widener’s Sears

charge card; after a purchase was made which required

further checking by the store, Dunn produced by way of

identification the car title to Widener’s car and Widener’s

Master Charge card; whereupon, the police were called,

and the three fled in Widener’s automobile (BE pp. 256-

273; 277-280). During the day of November 29, 1973,

Widener’s automobile was parked in a Memphis parking

lot (BE pp. 283-289). About 3:00 P.M. in Memphis on

November 29, 1973, police officers arrested Taylor, Dunn

and Mason in a Memphis Motel after a shootout, and at

the scene of this fracas found a gun which was ultimately

shown to be the murder weapon and a coin purse, ring and

watch belonging to the victims (BE pp. 289-346; 362-376;

47-48; 71-74).

Subsequently, Dunn and Mason decided to become

witnesses against Taylor, and they testified that although

Taylor never told them he had killed Widener and Mrs.

Hazlewood, he was gone from the motel room the three

6

were sharing in Nashville the day and time of the murders;

that shortly after the time of the murders, Taylor was

excited, told the others that everyone had to leave town

immediately; that thereupon the three left in Widener’s

automobile, went to Memphis, Tennessee, parked the car

in Memphis and used Widener’s credit cards in Memphis.

The two further testified that the murder and two other

weapons had been purchased prior to the murders in

Atlanta, Georgia; the two further testified that on the

evening of the murders Taylor had fired his weapon into

the ceiling of their motel room in Memphis (BE pp. 405-

421; 458-488). The State also called witnesses to corrob-

orate Dunn and Mason’s story with regard to the firing

of the weapon into the ceiling of the motel room (BE pp.

511-514; 517-522), and with regard to the purchase of the

weapons, including the murder weapon (BE pp. 5-29).

Taylor’s fingerprint was said to be “lifted” from a glass

which was found in the motel room occupied by one or

both victims prior to their deaths (BE pp. 119-125; 136-

184).

Defendant offered no testimony or evidence on his

behalf (BE p. 528). Defendant’s attorney in the trial court

made no opening or closing statement (BE pp. 2; 528).

The State at trial attempted to introduce into evidence

Exhibit 19, which was a coin purse, and Exhibit 20, which

was a watch and ring, which the State showed belonged

to the victims (BE pp. 47-49). The watch and ring were

found in the coin purse, which in turn was found under a

mattress in the motel room where Taylor was arrested

(BE pp. 320-324). A keyring with an identification tag

containing Widener’s license plate number was also found

in the motel room in a closed suitcase on the floor. Testi-

mony about this evidence was also permitted (BE pp. 320-

324). Defendant’s counsel in the lower court made an oral

7

‘motion as to the admission of this evidence to exclude this

evidence because there was no search warrant (BE pp.

311-312). The court thereupon excused the jury and held

a hearing outside the presence of the jury (BE p. 312).

Over objection, the evidence was admitted into evidence

(BE pp. 320-324). The defendant assigned as error in his

motion for new trial the admission of these items into evi-

dence (TR p. 32), which was overruled by the court on

January 3, 1975 (TR pp. 37-38). Thereafter, this point

was presented to the Criminal Court of Appeals in Tennes-

see by brief and was decided adversely to Petitioner.

Thereafter, Petitioner applied to the Supreme Court of

Tennessee for a writ of certiorari and included as an as-

signment of error that this evidence was improperly ad-

mitted into evidence. After the Petition for Writ of Cer-

tiorari was denied, Petitioner has sought review of this

issue in this Court.

During the direct examination of State’s witness Dunn,

the Assistant Attorney General asked Mr. Dunn a question

with reference to his involvement in the purchases at the

Sears & Roebuck Store in Memphis; Dunn asserted his Fifth

Amendment right and the court sustained the Fifth Amend-

ment privilege of Mr. Dunn (BE pp. 412, 413). Witness

Dunn was asked on cross-examination why he left Cali-

fornia in a hurry prior to coming to Tennessee. The court

permitted the witness to assert his Fifth Amendment priv-

ilege with respect to that.matter (BE p. 439). The court

generally sustained the assertion of Dunn’s Fifth Amend-

ment privilege with respect to his activities in Memphis

after the murders (BE pp. 443-450), to which ruling the De-

fendant excepted (BE pp. 447, 450). At the beginning

of Mason’s testimony, the court announced to the jury

that an attorney representing Mr. Mason would be in the

courtroom and that the attorney would be permitted “to

8

stand here and make proper objections, if any, to tie ques-

tions that the State’s lawyer asked him, questions involving

constitutional rights to not give evidence against himself.”

(BE p. 457). Thereafter, the court announced it would

make the same ruling in Mason’s case as it had made with

respect to Dunn’s testimony, the court stating ‘‘so you can

understand, we’ll try to follow the same outline of rulings

and permit the questions or not as I did this other witness.”

(BE p. 458). During direct examination of witness Mason,

the court sustained the assertion of the Fifth Amendment

privilege by witness Mason with respect to his activities in

the Sears & Roebuck Store in Memphis (BE p. 84) and

with respect to the question whether Mr. Mason was ar-

rested with a gun in Memphis (BE pp. 487-488). During

cross-examination, the court sustained the apparent asser-

tion of the privilege of Mason with respect to (a) whether

or not he fled California because he was charged with

armed robbery (BE p. 493) and (b) whether or not he had

ever carried false identification in California (BE pp. 498-

499). (The defendant excepted to this latter ruling at BE

p. 499.) Defendant assigned the limitations on cross-exami-

nation and the improper assertion of the Fifth Amendment

privilege in his motion for new trial (TR p. 32), which was

overruled by the court (TR pp. 37-38). Thereafter, the de-

fendant raised the matter before the Court of Criminal Ap-

peals of the State of Tennessee and in his Petition for Writ

of Certiorari to the Supreme Court of Tennessee. After

being overruled in both courts, he brings this Petition to

this Court for certiorari for review of this issue.

REASONS FOR GRANTING THE WRIT

1. The Opinion of the Court of Criminal Appeals of

Tennessee should be reviewed by this Court:

(a) Because the court decided this case in a way

probably not in accord with applicable decisions of this

Court, to-wit: this Court has never held that a “harmless

error” rule is applicable to violations of rights guaranteed

under the Fourth Amendment to the United States Con-

stitution, e.g., Mapp v. Ohio, 367 U.S. 643 (1963);

(b) Because the court has decided a question of

substance not heretofore determined by this Court, to-wit:

the court decided that in cases involving violations of rights

guaranteed under the Fourth Amendment to the United

States Constitution the rule which may have been stated by

this Court in Fahy v. Connecticut, 375 U.S. 85 (1963), would

govern the facts of this case, rather than rules which have

been stated in two other cases by this Court, namely Chap-

man v. California, 386 U.S. 18 (1967), and Harrington v.

California, 395 U.S. 250 (1969).

In any event, under any of the standards which the

Court may wish to apply, the Constitutional error in this

case cannot be said to be “harmless”.

Facts concerning the illegal search and seizure are

well stated by the Court of Appeals in its Opinion, re-

ported at pages A4-A6 of the Appendix to this Petition and

need not be restated here. Petitioner submits that the

Court of Appeals was correct in deciding that the watch,

ring, coin purse and keyring seized from a Memphis motel

room were seized in violation of this Petitioner’s rights

under the Fourth Amendment to the United States Con-

stitution.

10

Petitioner submits, first, that the Court of Appeals

decided this case contrary to its own decisions. This Court

has held in Mapp v. Ohio, 367 U.S. 643 (1963), that the pro-

hibition against unreasonable searches and seizures as pro-

vided for in the Fourth Amendment to the United States

Constitution was applicable to the States through the in-

strumentality of the due process clause of the Fourteenth

Amendment to the United States Constitution—and this

protection included the exclusion of evidence obtained in

violation of the Fourth Amendment. Since that time, this

Court has, it is respectfully submitted, created no exception

to the exclusionary rule. This Court, in fact, left intact,

the exclusionary rule last Term. Stone v. Powell, 96 S.Ct.

3037 (1976). Justice Powell’s discussion of the Fourth

Amendment in the latter case nowhere mentions a “harm-

less error” rule—rather, the Opinion emphasizes the fact

that illegally seized evidence is an affront to judicial in-

tegrity. 96 S.Ct. at pp. 3046-3049. It is submitted that the

prohibition against unreasonable search and seizure in-

volves a constitutional right so basic to a fair trial that

any infraction thereof can never be treated as harmless

error. Thus, this Court has held in Gideon v. Wainwright,

372 U.S. 335 (1963) the violation of the right to counsel

could not be treated as harmless error. Similarly, in Payne

v. Arkansas, 356 U.S. 560 (1958), the Court held the pro-

hibition against coerced confessions could never be treated

as harmless error. Also, in Toomey v. Ohio, 273 U.S. 510

(1927), this Court has held that a violation of the right

to an impartial judge could never be treated as harmless

error.

Many lower courts, however, have read three decisions

of this Court as announcing a “harmless error” rule with

respect to errors of a constitutional dimension. The Court

of Appeals in this case, for instance, held that Fahy v.

11

Connecticut, 375 U.S. 85 (1963) announced a rule that, in

search and seizure cases where a defendant’s Fourth

Amendment rights have been violated, the standard of

review “demands only that there be a reasonable pos-

sibility that the evidence complained of might have con-

tributed to the conviction.” (Opinion, at p. A7 of the

Appendix hereto.)

It is respectfully noted, however, that this Court never

reached the determination of “harmless error” in Fahy.

In Fahy, there was no question under the facts of that case

the evidence introduced was prejudicial, so that the Court

did not decide whether it was possible for there to be

“harmless error” in the introduction of the illegally seized

evidence.”

Subsequently, in Chapman v. California, 386 U.S. 18

(1967), this Court adopted a different formulation govern-

ing review of errors of a constitutional magnitude. In

Chapman, the Court held that a constitutional error is

harmless where it is established beyond a reasonable doubt

that the error did not contribute to the verdict. 386 U.S.

at pp. 21-22. However, this case arose, not in the context

of a Fourth Amendment violation, but rather in the context

of an improper comment by the prosecutor on the ac-

cused’s failure to testify, a Fifth Amendment matter. In

still another context, this Court in Harrington v. California,

395 U.S. 250 (1969),appeared to change the rule yet again

2. Among the matters considered as showing that the

illegally seized can of paint and a brush were prejudicial were:

(1) use of the evidence to corroborate the testimony of an of-

ficer as to the petitioner’s presence near the scene of the crime

at about the time that it was committed; (2) use of the evidence

as a basis for opinion testimony to the effect that the evidence

matched the markings of swastikas painted on the synagogue;

(3) some indication of the use of the illegally seized items to

obtain a confession; and (4) the cumulative effect of the evi-

dence causing defendants to take the stand and admit their acts.

12

with respect to review of constitutional error by shifting

the inquiry from whether the error contributed to the

verdict to whether the untainted evidence was so over-

whelming that the error was harmless beyond a reasonable

doubt. At p. 254. See also Milton v. Wainwright, 407

U.S. 371 (1972); Schneble v. Florida, 405 U.S. 427 (1972).

The different formulations of this Court have resulted

in different standards being applied in the lower courts.

Thus, in U.S. v. Anderson, 500 F.2d 1311 (5th Cir. 1974),

the Court followed the Harrington test, and said that evi-

dence obtained by an illegal search and seizure was insig-

nificant compared with the untainted evidence. In Powell

v. Stone, 507 F.2d 93 (1974), reversed on other grounds

in this Court, cited supra, the Court followed the Chapman

standard, mixing it apparently with the Fahy test, and

stated that the sufficiency of the evidence was not at

issue. At page 99. The Court then suppressed the evi-

dence because the evidence did in fact contribute to the

conviction. Other courts, in the Fourth Amendment area,

have followed the Fahy or Chapman test. U.S. v. Basurto,

497 F.2d 781, 791 (9th Cir. 1974); Howard v. Rumble,

452 F.2d 904 (3rd Cir. 1971); Vaccaro v. U.S., 461 F.2d

626 (5th Cir. 1972); Holloway v. Wolfe, 482 F.2d 110,

116 (8th Cir. 1973).

Thus, it appears that the Court of Appeals in deciding

this case in light of the Fahy standard may have been

in error not only because this Court has never decided

that the harmless rule applies in Fourth Amendment cases,

but also was in error because it may not have decided

the matter in accordance with the applicable “harmless

error” rule, if such exists.

In any event, the facts of this case—regardless of

the standard employed—clearly show that the evidence

illegally seized and admitted into evidence against Peti-

13

tioner was such that his Fourth Amendment righis were

violated.

According to the Court of Appeals, the illegally seized

evidence was harmless because “the coin purse found be-

tween the mattresses on the bed and car keys found in

the suitcase did no more to incriminate defendant than

it did the other occupants of the room. As a matter of

fact the evidence admitted tends to exculpate more than

implicate him. While it is true defendant was one of

three occupants of the motel room he did not establish

any proprietary interest in the bed where the jewelry

and coin purse were found. If the evidence is to be ac-

cepted as it appears in the record the car keys were found

in the suitcase which was the property of Richard Ben-

jamin Dunn, and it was Mason who drove the automobile

from Nashville to Memphis. On the other hand, the de-

fendant’s thumb print was found in the motel room oc-

cupied by ‘the victim, Hazlewood. He was observed in

an adjacent restaurant at the same time the victims were

present there, only a few minutes before the homicide

occurred. The death weapon was found in his possession.

According to his co-defendants, it was he who brought

Mr. Widener’s automobile to the Driver Motel where they

were staying in Nashville. It was he who insisted they

leave Nashville; and he who produced the credit cards

belonging to the victim, Widener, after they arrived in

Memphis.” (Appendix at pp. A7-A8).

However, the record reflects clearly that the case was

a circumstantial one against this defendant. Moreover,

the items illegally seized formed an important and neces-

sary part of the evidence against this Petitioner. Thus,

co-defendant Dunn testified that the suitcase which con-

tained the keyring of one of the victims, which was

found in the motel room, belonged to Taylor (BE pp.

14

451-452). Co-defendant Mason testified that the suitcase

sure wasn’t his (BE pp. 495-496). Dunn testified further

that the coin purse containing the watch and ring found

in the motel room wasn’t his and that Taylor had a coin

purse (BE p. 412). The murder weapon was found in

the motel room, in plain view, which all three of the de-

fendants occupied—the weapon was found by the door (BE

pp. 308-309). The co-defendants’ testimony was substan-

tially impeached. Thus, both had plead guilty to being

accessories after the murder in this cause (BE pp. 489,

381). Dunn was twice convicted before (BE p. 388). Ma-

son had fled California to avoid charges there (BE p.

493) and had been at least arrested for armed robbery,

possession of explosives, and fraudulent use of a credit

card (BE pp. 493-494). The fingerprint evidence alluded

to by the court was testified to by an “expert” who initially

failed to finish high school and who had learned his art

from a correspondence school (BE pp. 186-189). Identifica-

tion by a witness of Taylor at the restaurant just prior

to the murders was made in court without challenge by

Taylor’s trial counsel to the pretrial identification proce-

dure (apparently no line-up was ever held), but in any

event, this fact alone was certainly insufficient to charge

or convict Taylor of the murders (BE pp. 227-235). Thus,

whether the standard applied is Fahy, Chapman, or Har-

rington, the evidence complained of was certainly impor-

tant and necessary to the State’s case. Without this evi-

dence, certainly the State’s evidence was not “overwhelm-

ing”.

2. The Opinion of the Court of Appeals (a) decided

a federal question of substance in a way probably not

in accord with an applicable decision of this Court, namely,

Pointer v. Texas, 380 U.S. 400 (1965) in that the trial

court in this cause erred in not striking the testimony

15

of witnesses Dunn and Mason in whole or in part after

they asserted their Fifth Amendment rights not to incrim-

inate themselves; (b) the Court of Appeals has decided

a question of substance not heretofore decided by this

Court, namely, whether it is proper to apply a harmless

error rule, or whether the proper remedy is to strike

the testimony of those witnesses who assert their Fifth

Amendment rights while testifying against an accused.

Both Dunn and Mason gave extensive testimony and

gave particular testimony concerning defendant’s actions

in Memphis, Tennessee and that the defendant had given

them items recovered from the victims (BE pp. 405-421;

458-480).

During the direct examination of State’s witness Dunn,

the Assistant Attorney General asked Mr. Dunn a question

with reference to his involvement in the purchases at

the Sears & Roebuck Store in Memphis; Dunn asserted

his Fifth Amendment right and the court sustained the

Fifth Amendment privilege of Mr. Dunn (BE pp. 412,

413). Witness Dunn was asked on cross-examination why

he left California in a hurry prior to coming to Tennessee.

The court permitted the witness to assert his Fifth Amend-

ment privilege with respect to that matter (BE p. 439).

The court generally sustained the assertion of Dunn’s Fifth

Amendment privilege with respect to his activities in

Memphis after the murders (BE pp. 443-450), to which

ruling the Defendant excepted (BE pp. 447, 450). At

the beginning of Mason’s testimony, the court announced

to the jury that an attorney representing Mr. Mason would

be in the courtroom and that the attorney would be per-

mitted “to stand here and make proper objections, if any,

to the questions that the State’s lawyer asked him, ques-

tions involving constitutional rights to not give evidence

against himself.” (BE p. 457). Thereafter, the court an-

16

nounced it would make the same ruling in Mason’s case

as it had made with respect to Dunn’s testimony, the

court stating “so you can understand, we'll try to follow

the same outline of rulings and permit the questions or

not as I did this other witness.” (BE p. 458). During

direct examination of witness Mason, the court sustained

the assertion of the Fifth Amendment privilege by witness

Mason with respect to his activities in the Sears & Roebuck

Store in Memphis (BE p. 84) and with respect to the

question whether Mr. Mason was arrested with a gun

in Memphis (BE pp. 487-488). During cross-examination,

the court sustained the apparent assertion of the privilege

of Mason with respect to (a) whether or not he fled

California because he was charged with armed robbery

(BE p. 483) and (b) whether or not he had ever carried

false identification in California (BE pp. 498-499). Clearly,

the limitations on the inquiry by counsel below was con-

stitutional error. The inquiries were relevant and material

and were not obviated by other cross-examination.

This Court held in Pointer v. Texas, 380 U.S. 400

(1965), that the Sixth Amendment right of an accused

to confront the witnesses against him is made obligatory

upon the States by the Fourteenth Amendment. Thus,

the right of confrontation is a federally protected right

which the States must respect.

The right of cross-examination has been said by this

Court to be at the core of the right of confrontation.

See Bruton v. U.S., 391 U.S. 123, 126 (1968); Pointer,

supra. This Court has held, for instance, that the right

of confrontation is violated when an accused is prevented

from asking the correct name and address of the principal

witness against him. Smith v. Illinois, 390 U.S. 129, 133

(1960). When the right of cross-examination is improperly

abridged, serious constitutional error occurs. E.g., U.S.

17

v. Morris, 485 F.2d 1385 at pp. 1386-87 (5th Cir. 1973).

U.S. v. Harris, 501 F.2d 1, 8 (9th Cir. 1974) (cross-examina-

tion is principal means of testing witness reliability and

credibility). See also Park v. Huff, 506 F.2d 849, 860

(5th Cir. 1975), en banc, cert. denied, 44 U.S.L.W. 3201

(Oct. 7, 1975) (confrontation clause guarantees rigorous

and searching cross-examination).

The courts have held that when a witness refuses

to answer questions on cross-examination, his testimony

should be stricken in whole or in part. U.S. v. Cardillo,

316 F.2d 606 (2nd Cir. 1963); U.S. v. Scott, 511 F.2d 15,

20-22 (8th Cir. 1975). This the court did not do, but

apparently relied on some “harmless error” rule.

It is respectfully suggested that this Court has never

adopted a “harmless error” rule in this Sixth Amendment

context. It has in fact not ruled directly what the remedy

will be when a witness invokes the Fifth Amendment

privilege. Lower courts have said the testimony should

be stricken in whole or in part. Some, like the court

below, say the error is “harmless”. This Court should re-

solve the confusion in the courts below.

CONCLUSION

For these reasons, a Writ of Certiorari should issue

to review the judgment and opinion of the Court of Crim-

inal Appeals of Tennessee.

Respectfully submitted,

JAMES R. WyYRSCH

1050 Home Savings Building

1006 Grand Avenue

Kansas City, Missouri 64106

(816) 221-0080

Attorney for Petitioner

Al

APPENDIX

IN THE COURT OF CRIMINAL APPEALS

OF TENNESSEE

NASHVILLE, OCTOBER SESSION, 1975

No. B-2751 DAVIDSON COUNTY CRIMINAL

MAURICE McKINNEY TAYLOR,

Plaintiff-in-Error,

Vv.

STATE OF TENNESSEE,

Defendant-in-Error.

Hon. John L. Draper, Judge

(Murder, lst Degree, Two Counts)

FOR PLAINTIFF IN FOR DEFENDANT IN

ERROR: ERROR:

Robert T. McGowan R. A. Ashley, Jr.

Assistant Public Defender Attorney General

303 Metro Court House Supreme Court Bldg.

Nashville, Tennessee Nashville, Tennessee

R. Jackson Rose

Assistant Attorney General

213 Supreme Court Bldg.

Nashville, Tennessee

Aaron Wyckoff

Asst. District Attorney Gen.

lst Floor, Metro Courthouse

Nashville, Tennessee

A2

John E. Rodgers

Asst. Dist. Attorney General

lst Floor, Metro Courthouse

Nashville, Tennessee

AFFIRMED

OPINION FILED: June 8, 1976

CHARLES H. O’BRIEN, JUDGE

OPINION

(Filed June 8, 1976)

Defendant was convicted on a two count indictment

charging him with murder in the first degree in the deaths

of James P. Widener and Mildred L. Hazelwood. He was

sentenced to life impristnment.

Defendant first says the trial court erred in allowing

a medical examiner to give his opinion as to whether

or not a bullet in one of the bodies had not only separated,

but to also express an opinion that this bullet was designed

to separate.

The transcript of the record and defense brief in this

case do not comply with the rules of this court in that

there has been no attempt to abridge the record (Rule

1); nor any effort made to omit from the Bill of Exceptions

immaterial or uncontroverted matter which does not bear

on the grounds assigned in the trial court for new trial

(Rule 2); nor does the brief make reference to the pages

of the record where the errors complained of appear (Rule

14). Nevertheless, despite these discrepancies we have

examined this Yoluminous record carefully to determine

if there was error in the trial proceedings.

A3

The error first complained of by defendant did not

actually occur. The medical examiner’s qualifications as

an expert were stipulated. In addition to the stipulations

he testified he had been County Medical Examiner for

approximately eight (8) years and in that capacity ex-

amined approximately fifty gunshot wounds annually. An

attempt was made by State’s counsel to elicit an opinion

from the doctor to the effect that certain types of bullets

would explode on impact. Although it is not so stated in

the record, it is evident that the district attorney intended

to relate this type bullet to those missiles extracted from

the bodies of the victims. Defense counsel properly ob-

jected, and questioning in this vein was disallowed by

the trial Judge. The doctor was allowed to testify that

a projectile which had entered the brain of one of the

victims had separated and was removed in two pieces.

Also, that he removed part of a projectile from a head

wound in the other victim. A hypothetical question was

posed by the district attorney regarding the effect on the

human body if a bullet exploded upon impact. Objection

to this line of questioning was sustained. The doctor was

allowed to testify about the effect upon a human body

where a bullet separates upon impact. In light of the

examination of the bodies of the victims by the doctor

which disclosed that the death missiles had in fact sepa-

rated upon impact, we do not find any abuse of the trial

judge’s discretion in allowing this testimony. We think

the doctor was fully qualified to testify as he did on

the basis of his experience as County Medical Examiner.

Had the admission of this testimony been error, it could

be no more than harmless error in view of the fact that

a fire arms examiner for the Tennessee Bureau of Criminal

Identification subsequently testified that the projectiles

taken from the bodies of the victims had been fired from

a weapon taken from defendant at the time of his arrest.

A4

That these bullets were jacketed hollow points, the primary

design and function of which was to cause the nose of

the bullet to explode, expand, or mushroom upon impact.

By the second assignment it is urged that the trial

court erred in qualifying a police officer as a fingerprint

expert and allowing him to give expert testimony concern-

ing fingerprints.

Testimony of Metro Police Officer Jimmy Rogers was

offered for the purpose of making a comparison between

a latent fingerprint found in a motel room occupied by

one of the homicide victims and an identified fingerprint

of the defendant. In a lengthy out-of-jury hearing the

trial Judge determined that the witness was qualified as

an expert to testify in the area in which his testimony

was offered. It appears he was a graduate of an FBI.

Improved Correspondence Course, had some three years

experience and training under the supervision of an expert

in the field, and had himself testified as an expert approx-

imately ten times prior to the trial. His testimony regard-

ing his area of expertise was subjected to rigid cross-

examination. The qualification of an expert witness is

@ matter within the sound discretion of the trial court,

and his decision in such matters will not be reversed

on appeal, absent a clear abuse of discretion. Fortune

v. State, 277 S.W.2d 381, 197 Tenn. 691; Murray v. State,

377 S.W.2d 918, 214 Tenn. 51. We find no reason to disturb

the trial court’s ruling on this issue.

Defendant complains that the trial court erred in al-

lowing in evidence the fruits of a search conducted by

the Memphis Police Department in a motel room, without

the benefit of a search warrant.

Several days after the homicides the defendant was

apprehended in Memphis, Tennessee in the company of

AS

Richard Benjamin Dunn and Philip Glenn Mason, who

were co-defendants prior to submission of guilty pleas

to the lesser offense of accessories after the fact to murder.

These three were arrested at the Cayce Motel in that

city. They had endeavored to use credit cards owned

by the deceased, James P. Widener, and had abandoned

his automobile in which they had travelled to Memphis,

after hearing news reports that a state-wide search was

being conducted for them. Dunn and Mason were appre-

hended outside of the motel room occupied by defendant,

a shoot-out occurred resulting in defendant’s ultimate sur-

render. When defendant emerged from the motel room

he was carrying a large red suitcase. He dropped a pistol

inside the door which proved to be the murder weapon.

Officers entered the motel room to determine if there

was anyone else present, and for the further purpose of

securing evidence in the room. The pistol was lying in

a chair immediately inside the front door. At that time

all three defendants were in custody and in the process

of being transported to the Memphis Police Station. A

thorough search of the motel room was made. A coin

purse containing a diamond ring and a wrist watch was

discovered under the mattress of one of the beds. These

items were the property of the victim, Mildred Hazelwood.

There were two suitcases in the room in addition to the

one deposited by this defendant on the front porch. The

keys to the car owned by the victim, James Widener,

were found in one of the suitcases. Objection was made

to the admission of this evidence because the police had

not obtained a search warrant. After an out-of-jury hear-

ing the trial Judge ruled that the evidence was admissible.

He stated the basis for his reasoning to be that when

police flush suspects in a murder case out of a house

they have got to go in and see what they can find which

might lead them to the murder. He reasoned that the

A6

defendants had lost the care, custody and control of the

room upon their arrest, and if the room had been sealed

and a search warrant obtained there would have been

no defendant present to serve a warrant on. That any

warrant obtained had to be served on the operators of

the motel, therefore, defendant had no standing to object

to the search without a warrant. That the police had

a duty to protect the defendant’s property and the search

made was in the nature of an inventory search.

Defendant cites only State law to sustain this assign-

ment, but does seem to suggest that he relies on a viola-

tion of his rights under the Federal Constitution as well.

We shall examine the question from both views since

we have reached the conclusion that his honor the trial

Judge did err in allowing the admission of the evidence

complained of.

Without reiterating the reasons set forth by the trial

Judge for the admission of the evidence, it is sufficient

to say that the Tennessee Constitutional provisions against

unreasonable searches and seizures are identical in intent

and purpose with the 4th Amendment of the United States

Constitution. (Constitution of Tennessee, Art. 1, Sec. 7)

(U.S. Constitution, Amend. 4): Sneed v. State, 423 S.W.2d

857, 221 Tenn. 6; Ellis v. State, 364 S.W.2d 925, 211 Tenn.

321. The guidelines delineating the limit beyond which

a warrantless search may not proceed are set out in Chimel

v. Calif., 89 S. Ct. 2034, 395 U.S. 755, 23 L.Ed.2d 686,

which holds in summary that police officers must whenever

practical, obtain advance judicial approval of searches and

seizures through warrant procedures; that an arrest does

not justify a routine search through closed or concealed

areas in a room where the arrest occurs; that a search,

under circumstances such as those existing in this case,

may not extend beyond the search of the person arrested

ete Dh a iat ss * ihe —

A7

and the area in his reach, if the search is to retain the

distinction of being classified as reasonable. There was

no justification, under the facts of this case, for the search

into the suitcases, and between the mattresses on the bed

by the Memphis police officers. The five basic exceptions

to the requirement for a search warrant are (1) consent,

(2) incident to a lawful arrest, (3) probable cause to

search with exigent circumstances, (4) in hot pursuit, (5)

a stop and frisk situation. None of these elements were

present in this case. We can only view the search as

illegal and improper.

It does not necessarily result however that the failure

of the police officers to comply with the constitutional

restrictions regarding searches and seizures requires an

automatic reversal in this case. The harmless error statute

in this State provides, in pertinent part, that no verdict

or judgment shall be set aside or new trial granted on

account of the improper admission or rejection of evidence

unless, in the opinion of the appellate court to which

application is made, after an examination of the entire

record in the cause, it shall affirmatively appear that the

error complained of has affected the results of the trial

(T.C.A. Sec. 27-117). The Federal criteria demands only

that there be a reasonable possibility that the evidence

complained of might have contributed to the conviction. ©

Fahy v. Conn., 84 S.Ct. 229, 375 U.S. 85. It is plain that

the trial Judge’s error in admitting the evidence obtained

in the unlawful search of the Memphis motel room did

not violate either standard. The jewelry and coin purse

found between the mattresses on the bed and the car

keys found in the suitcase did no more to incimrinate

defendant than it did the other occupants of the room.

As a matter of fact the evidence admitted tended to ex-

culpate more than implicate him. While it is true defen-

A8

dant was one of three occupants of the motel room he

did not establish any proprietary interest in the bed where

the jewelry and coin purse were found. If the evidence

is to be accepted as it appeared in the record the car

keys were found in the suitcase which was the property

of Richard Benjamin Dunn, and it was Mason who drove

the automobile from Nashville to Memphis. On the other

hand, defendant’s thumbprint was found in the motel room

occupied by the victim, Hazelwood. He was observed

in an adjacent restaurant at the same time the victims

were present there, only a few minutes before the homi-

cides occurred. The death weapon was found in his posses-

sion. According to his co-defendants it was he who brought

Mr. Widener’s automobile to the Driver Motel where they

were staying in Nashville. It was he who insisted they

leave Nashville; and he who produced the credit cards

belonging to the victim Widener, after they arrived in

Memphis.

Finally, defendant says it was error to limit his right

of cross-examination, and confrontation of State witnesses,

Richard Benjamin Dunn and Phillip Glen Mason.

These witnesses were his co-defendants against whom

the charges of Ist degree murder were stricken,

Defendant’s brief correctly states the law to be that

he has the right to cross-examine a witness who has testi-

fied to material matters so long as his cross-examination

is relevant to a material issue in the law suit. Monts

v. State, 379 S.W.2d 34, 214 Tenn. 171; Davis v. State,

212 S.W.2d 374, 186 Tenn. 545. We have examined this

record carefully and find that both of these witnesses

were cross-examined extensively, and that the cross-ex-

amination covered every relevant facet of their participa-

tion and knowledge of the circumstances surrounding the

A9

charge against defendant. Both of these witnesses were

represented by counsel at trial who advised them when

it would be appropriate for them to assert their rights

under the 5th Amendment of the United Constitution to

avoid incriminating themselves in regard to other criminal

matters in which they were involved. Except for a few

limited instances the witnesses were required to respond

to the cross-examination under the threat of contempt

charges. Those times when the 5th Amendment was

pleaded and sustained generally involved matters which

were not material, and had no relevance to the issue at

hand, that is the guilt or the innocence of this defendant.

The only benefit to the defendant which might have been

attained by requiring answers to those questions would

have been to attack the credibility of the witnesses. This

was otherwise successfully accomplished and any addi-

tional benefit which might have been attained by cross-

examination certainly did not outweigh the right of these

witnesses to avoid incriminating themselves in reference

to other charges pending against them.

The judgment of the trial court is affirmed.

/s/ Charles H. O’Brien

Judge

CONCUR:

/s/ William S. Russell

Presiding Judge

/s/ William A. Harwell

Judge

A10

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

DOCKET NUMBER B-2751 C.C.A.

DAVIDSON CRIMINAL

MAURICE MCKINNEY TAYLOR,

Petitioner,

VS.

STATE OF TENNESSEE,

Respondent.

ORDER

(Filed August 16, 1976)

On considering the petition for certiorari and briefs

filed in this case and the entire record, the petition of

Maurice McKinney Taylor is denied at cost of petitioner.

PER CURIAM

All

SUPREME COURT OF THE UNITED STATES

No. A-385

MAURICE McKINNEY TAYLOR,

Petitioner,

Vv.

TENNESSEE.

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

Upon Consideration of the application of counsel for

petitioner (s),

It Is Ordered that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and the

same is hereby, extended to and including December 14,

1976.

/s/ Potter Stewart

Associate Justice of the Supreme

Court of the United States

Dated this 10th day of November, 1976.