# Petition — Taylor v. Tennessee

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 965

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0990%3A1. Public record. Not legal advice.