Opposition — Taylor v. Tennessee

Supreme Court, U. S,

—™ FILED <«

|

| MAR 19 4977

— CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

76°795

er

MAURICE McKINNEY TAYLOR,

_ Petitioner,

Vv.

STATE OF TENNESSEE,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI

JACK E. SEAMAN

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219

(615) 741-3231

Of Counsel

BROOKS McLEMORE

Attorney General

State of Tennessee

SE

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

=

INDEX

I. Response to Question Presented Number 1 ......

A.

A Conviction May Be Affirmed When Items

Seized During a Search Conducted Without a

Warrant in Violation of the Fourth Amendment

of the United States Constitution Were Admitted

Into Evidence Contrary to the Holding in Mapp

v. Ohio, 367 U.S. 643 (1963), if the Admission

of Such Evidence Was Harmless Error ......

B. The Standard for Determining Whether the Ad-

..

mission Into Evidence of Items Seized During a

Search Conducted in Violation of the Fourth

and Fourteenth Amendments Is Harmless Has

Been Set Forth by This Court in Harrington,

Chapman and Fahy ...............2.-2045:

The Admission Into Evidence of Items Seized

During a Search Conducted in Violation of Pe-

titioner’s Fourth and Fourteenth Amendment

Rights Was Harmless Error ................

The Decision of the Court of Criminal Appeals

of Tennessee Should Not Be Reviewed and Re-

versed Because the Exclusionary Rule as Applied

to the States in Mapp v. Ohio Should No Longer

Be Followed and Should Either Be Overruled

or Modified So as to Make Admissible the Items

Seized in the Instant Case ................

10

II. Response to Question Presented Number 2 ...... 13

A. The Trial Court Properly Exercised Discretion

in Not Striking the Testimony of Witnesses Dunn

and Mason in Whole or in Part in Response to

Their Assertion of Their Fifth Amendment

Rights Not to Incriminate Themselves ....... . 13

B. No Harmless Error Rule Was Applied in the In-

stant Case to the Conflict Between the Witness’

Fifth Amendment Privilege and the Petitioner’s

Sixth Aarerd.uent Right to Confrontation and

GED 9-0 6 6.006 cca sacdevectccss 17

EN ud oe blnn cine node e ual die bd ia oadad 18

Table of Authorities

Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26

L.Ed.2d 419 (1970), reh. denied, 400 U.S. 856, 91

SCX. 23, 27 1.4.26 94 (1970) 0... cece cc ccess 6-7

Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35

EN Se CE ced dcebcdceaseannnceenedds 14

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.

SY Me ED nndedctddaccudundensceseses 7,9, 10

Creasy v. Leake, 422 F.2d 69 (4th Cir. 1970) ........ 8

Dean v. Hooker, 409 F.2d 319 (9th Cir. 1969) ........ 8

Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.

ey ON ET bide dunkedecedenasancocuns 6, 8,9, 10

Fountain v. United States, 384 F.2d 624 (Sth Cir. 1967),

cert. denied, Marshall v. United States, 390 U.S. 1005,

88 S.Ct. 1246, 20 L.Ed.2d 105 (1968) .......... 15, 16

Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23

De Se ED bbb bhndseesccndkeccecns 7, 9, 10

Hoover v. Beto, 467 F.2d 516 (Sth Cir. 1972), cert. denied,

409 U.S. 1086, 93 S.Ct. 703 (1972) .............. 17

Nelson v. Moore, 470 F.2d 1192 (1st Cir. 1972), cert.

Gomted. GES UE, SEE CAGED cs vcccccevecsoccccces 7

Ricehill v. Brewer, 459 F.2d 537 (8th Cir. 1972) ...... »

Stone v. Powell, 428 U.S. —, 96 S.Ct. 3037, 3049, 48

DSRS ce GE oc occddeasdesecocedeccesvess 13

Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889,

OS Bee ee ED oc cv ccncdsebeneccooseses 6,9

United States v. Anderson, 533 F.2d 1210 (D.C. Cir. 1976) 7

United States v. Anglada, 524 F.2d 296 (2nd Cir. 1975) 16

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

nied, Cardillo v. United States, 375 U.S. 822, 84 S.

Ct. 60 (1963) and Margolis v. United States, 375 U.S.

822, 84 S.Ct. 60 (1963), reh. denied, Cardillo v. United

States, 375 U.S. 926, 84 S.Ct. 263 (1963) .......... 14

United States ex rel. Riffert v. Rundle, 464 F.2d 1348

(3rd Cir. 1972), cert. denied, 415 U.S. 927 (1973) .. 7-8

United States v. Gould, 536 F.2d 216 (8th Cir. 1976) .. 16

United States v. Janis, — U.S. —, 96 S.Ct. 3021, — L.Ed.

BE cee GEDTED c cccccccccccesccccecescoesoeeces 13

United States v. LaVecchia, 513 F.2d 1210 (2nd Cir.

PD occconendenncetescbcesddscnesedececeues 7

United States v. Liddy, 509 F.2d 428 (D.C. Cir. 1974)

ee BED. . cnvecedaccsecsapececoseetegasesoes 16

United States v. Melchor Moreno, 536 F.2d 1042 (Sth

PP rrrrrrrrrrrrTrr TT iri tT Ti iy 16, 17

United States v. Newman, 490 F.2d 139 (3rd Cir. 1974) 13, 16

United States v. Quintana, 508 F.2d 867 (7th Cir. 1975) 8

United States v. Quinones-Gonzalez, 452 F.2d 964 (10th

Ge, BPE ccccvcccccccccasccescocecososcosess «

iv

United States v. Rogers, 475 F.2d 821 (7th Cir. 1973) . .13, 16

United States v. Scheffer, 463 F.2d 567 (Sth Cir. 1972),

cert. denied, 409 U.S. 984 (1973) ................

United States v. Stephens, 492 F.2d 1367 (6th Cir. 1974)

United States v. West, 486 F.2d 468 (6th Cir. 1973), cert.

GH, GED GE, GES GGG oc ccivccsseccesecs

Whitley v. Warden, Wyoming State Penitentiary, 401 U.S.

560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971) ........

16

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

i aiwadaxeis

MAURICE McKINNEY TAYLOR,

Petitioner,

V.

STATE OF TENNESSEE,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI

The respondent respectfully prays that the petition for writ of

certiorari to review the judgment of the Court of Criminal Ap-

peals of Tennessee be denied.

STATEMENT OF THE CASE

Pursuant to U. S. Sup. Ct. Rule 40.3, 28 U.S.C.A., respond-

ent submits the following statement of the case as only that

deemed necessary in correcting any inaccuracy or omission in

the statement of the case set forth in the petition for a writ of

certiorari.

or

Mr. James Hunnicutt testified that he was engaged in a fire-

arms business in Atlanta, Georgia (R. 6). On November 16,

1973, he refused to sell firearms to Taylor, the petitioner herein,

and two other individuals when they failed to present proper

identification (R. 7). On November 17, 1973, he sold to one

of Taylor’s companions of the previous day three pistols which

he identified at trial by serial number (R. 7, 19-26).

On the night of the double homicide, a fingerprint was lifted

from a plastic glass in the motel room of one of the victims

(R. 121, 124). That print was compared to the prints of Taylor

by an identification technician who testified at trial that the

lifted print matched the left thumb print of Taylor (R. 174).

The morning of November 29, 1973, Taylor and his two

companions were present at the American Airlines Ticket office

at a hotel in Memphis, Tennessee, where one of his companions

made payment for an airline ticket with a Master Charge card

issued in the name of James Widener, one of the homicide vic-

tims (R. 248, 249). At 2 p.m. on November 29, 1973, Taylor

and his companions were present in a Memphis Sears & Roebuck

Store where one of his companions made purchases with a Sears

revolving charge card issued in the name of James Widener

(R. 256-262).

Prior to the shoot-out at a hotel in Memphis, Tennessee, police

Officers arrested Taylor’s two companions (R. 293). Lt. James

L. Harrison arrested Dunn at approximately 3 p.m. on Novem-

ber 29, 1973, after Dunn walked from room number 11 at the

Cayce Motel (R. 290-293). Lt. Harrison’s partner, Sgt. Sher-

man Chambers, arrested Mason at the same time and place

(R. 339-341). After Dunn and Mason were in custody, the

shoot-out began when someone in room 11 at the motel pointed

a pistol in the direction of Lt. Harrison and discharged it (R.

296, 297). Numerous law enforcement officials arrived at the

motel during the lengthy gun battle which ensued (R. 298). The

=

gun battle ended after several canisters of tear gas were pro-

jected into the motel room and Taylor was forced outside (R.

298, 299). As Taylor exited the motel room, he dropped a

pistol just inside the door when he was confronted by a uni-

formed officer wielding a shotgun (R. 299).

Taylor's pistol was removed from the chair just inside the

doorway to room number 11 at the Cayce Motel when the gun

battle ended and was admitted into evidence at trial without

objection (A. 307-312). The pistol was identified as having

fired the three bullets which were recovered from the bodies of

the homicide victims (R. 368).

Richard Benjamin Dunn was called as a witness by the State

(R. 380). Dunn had the services of retained counsel at the

hearing and several times attempted to invoke the Fifth Amend-

ment privilege against self-incrimination. Most often the trial

judge disallowed Dunn’s assertion of the Fifth Amendment and

required him to answer the questions (R. 386, 387, 388, 389,

397). Dunn corroborated the testimony of the gun shop owner

as to the purchase of the three pistols and testified that he had

given a particular pistol to Taylor (R. 392, 393). Dunn's testi-

mony placed himself, Philip Mason and Maurice Taylor in

Nashville, Tennessee, from the 24th to approximately 10:30

p.m. on the 27th of November, 1973 (R. 396, 397, 403, 405).

Duan testified that they left Nashville at Taylor’s insistence and

over his and Mason’s objections (R. 405). They departed Nash-

ville in a blue Lincoln Continental that Taylor told them he had

purchased (R. 406). Taylor also said he had obtained some

credit cards which Dunn later observed in Taylor’s possession

and with the name of James P. Widener imprinted on them

(R. 406, 407).

On cross-examination, Dunn admitted that he had been in-

dicted by the Davidson County Grand Jury for first degree

murder (R. 422). Dunn admitted further that during the week

of trial he had confessed to being an accessory after the fact to

py

murder in the first degree and had received a sentence of from

four to seven years (R. 422). Dunn testified he had heard of

people being sentenced to confinement for 99 years for the of-

fense of first degree murder and that he had been indicted and

awaiting trial for first degree murder for approximately eight

and a half months before confessing to being an accessory and

receiving a sentence of from four to seven years (R. 424). He

admitted he had been convicted in California for the offenses

of joyriding and possession of a firearm, a hand pistol (R. 425).

During the course of cross-examination, Dunn’s counsel as-

serted the Fifth Amendment privilege to a question regarding

why Dunn left California (R. 426, 427). In response to the

assertion of the Fifth Amendment privilege, Taylor’s attorney

stated, “That answer is satisfactory” (R. 427). Taylor’s counsel

attempted to question Dunn relative to the purchase of pistols

in Atlanta and Dunn’s attorney asserted the Fifth Amendment

privilege (R. 428, 429, 430). The trial judge threatened Dunn

with contempt and required him to answer the questions relat-

ing to purchase of the pistols (R. 428, 429, 430).

The only question of Dunn to which the assertion of the Fifth

Amendment privilege had been allowed during direct examina-

tion related to why he and Mason went to the Nashville Public

Library (R. 400). The trial j. ige allowed Dunn to invoke the

Fifth Amendment privilege relative to those same questions on

cross-examination (R. 435-437). However, Philip Glen Mason

as a witness answered questions relative to why he and Dunn

were at the library and testified that they were researching for

new identification to change his identity (R. 497). A question

by Taylor’s counsel as to when Dunn left California was with-

drawn when the Fifth Amendment privilege was asserted (R.

439, 440).

. Taylor's attorney withdrew a question relative to Dunn carry-

ing a pistol when Dunn’s counsel announced that Dunn was

under a three count indictment in Memphis including a felony

=

firearm count (R. 445, 446). Dunn was not required to answer

questions relative to using credit cards in the Memphis Sears &

Roebuck Store when Dunn’s counsel announced that one of the

other charges in the indictment was for fraudulent use of credit

cards at the Memphis Sears & Roebuck Store (R. 446, 447).

Counsel for Dunn announced that there were activities in Mem-

phis about which he did not object to Dunn testifying and that

there were only certain activities in Memphis which he would

advise Dunn not to answer (R. 448). Taylor’s attorney stated

that he thought he was entitled to ask any questions and ob-

jected to the Court’s not allowing him to do so (R. 448). The

trial judge overruled a subsequent assertion of the Fifth Amend-

ment privilege and required Dunn to answer a question as to

whether or not he had lied in efforts to purchase the three guns

(R. 452, 453).

The direct testimony of Philip Glen Mason was essentially

the same as that of Dunn; however, Mason’s counsel, who was

present to advise him during the course of his testimony, did

not assert the Fifth Amendment privilege as often as was done

during the course of the testimony of Dunn. Mason testified that

he left California because he had been arrested and was facing

charges of armed robbery (R. 490-493). Mason testified he

was not wanted in California with Dunn for fraudulent use of

credit cards (R. 494). However, Mason admitted he was wanted

in California for possession of explosives (R. 494). Mason testi-

fied that he owned a red checked bag (R. 495). The trial judge

permitted assertion of his Fifth Amendment privilege to a ques-

tion whether Mason had used false identification in California

upon the representation that Mason was going to be returned to

California (R. 498, 499). Mason testified further that he left

California while his trial for possessing explosives was ongoing

(R. 504, 505). The cross-examination of Mason showed that

Dunn and Mason had been confined together for several months

prior to Taylor’s trial and had discussed the case (R. 508, 509,

510).

Respondent submits that the decision of the Court of Criminal

Appeals of the State of Tennessee in this case is correct and

should not be reviewed and reversed for the following reasons:

I. Response to Question Presented Number 1.

A. A Conviction May Be Affirmed When Items Seized

During a Search Conducted Without a Warrant in Viola-

tion of the Fourth Amendment of the United States Con-

stitution Were Admitted Into Evidence Contrary to the

Holding in Mapp v. Ohio, 367 U.S. 643 (1963), if the Ad-

mission of Such Evidence Was Harmless Error.

In at least three cases, this Honorable Court has applied the

“harmless error rule” upon consideration of the admission of

evidence seized in violation of the Fourth and Fourteenth

Amendmer .s to the Constitution of the United States. The

earliest application was in Stoner v. State of California, 376

U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), where the

Court was presented with the introduction of evidence seized in

an unlawful search of a hotel room. The Court, citing Fahy

v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171

(1963), stated as follows:

There is thus at least “a reasonable possibility that the

evidence complained of might have contributed to the

conviction.” 376 U.S. at 490, 84 S.Ct. at 893.

The second application of the harmless error rule occurred in

Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d

419 (1970), rehearing denied, 400 U.S. 856, 91 S.Ct. 23, 27

L.Ed.2d 94 (1970). Upon considering the admissibility of .38

caliber ammunition seized in a search, the Court in Chambers

stated:

—7—

Both the District Court and the Court of Appeals, how-

ever, after examination of the record, found that if there

was error in admitting the ammunition, the error was

harmless beyond a reasonable doubt. Having ourselves

studied this record, we are not prepared to differ with the

two courts below. See Harrington v. California, 395 U.S.

250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). 399 US.

at 54, 90 S.Ct. at 1982.

One year later, in the case of Whitley v. Warden, Wyoming

State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d

306 (1971), the Court reviewed a “half-hearted attempt to

argue that the introduction of the illegally seized evidence was

harmless error” and found that the error could not be said to

be harmless under the “applicable standards,” citing Chapman

v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705

(1967), and Harrington v. California, 395 U.S. 250, 89 S.Ct.

1726, 23 L.Ed.2d 284 (1969). 401 U.S. at 569, n. 13, 91 S.

Ct. at 1037, n. 13.

The harmless error rule has previously been recognized by

this Honorable Court as proper for application to the introduc-

tion as evidence items seized in violation of a defendant’s Fourth

and Fourteenth Amendments constitutional rights. It is sub-

mitted that this Court should not now reconsider its earlier rul-

ings and deny application of the harmless error rule in the cir-

cumstances of the case under consideration.

The harmless error rule is a reasonable and valid rule which

is recognized and applied in every circuit court of appeals to the

admission into evidence of items seized in violation of the Fourth

and Fourteenth Amendments. United States v. Anderson, 533

F.2d 1210 (D.C. Cir. 1976); Nelson v. Moore, 470 F.2d 1192

(1st Cir. 1972), cert. denied, 412 U.S. 951 (1973); United

States v. LaVecchia, 513 F.2d 1210 (2nd Cir. 1975); United

States ex rel. Riffert v. Rundle, 464 F.2d 1348 (3rd Cir. 1972),

cert. denied, 415 U.S. 927 (1973); Creasy v. Leake, 422 F.2d 69

(4th Cir. 1970); United States v. Scheffer, 463 F.2d 567 (Sth

Cir. 1972), cert. denied, 409 U.S. 984 (1973); United States v.

West, 486 F.2d 468 (6th Cir. 1973), cert. denied, 416 U.S. 955

(1974); United States v. Quintana, 508 F.2d 867 (7th Cir.

1975); Ricehill v. Brewer, 459 F.2d 537 (8th Cir. 1972); Dean,

v. Hooker, 409 F.2d 319 (9th Cir. 1969); United States v. Qui-

nones-Gonzalez, 452 F.2d 964 (10th Cir. 1971).

B. The Standard for Determining Whether the Admis-

sion Into Evidence of Items Seized During a Search Con-

ducted in Violation of the Fourth and Fourteenth Amend-

ments Is Harmless Has Been Set Forth by This Court in

Harrington, Chapman and Fahy.

This Court has three times stated a rule for determination of

harmless error when confronted with an error of constitutional

magnitude. Respondent submits that these three pronounce-

ments are of sufficiently identical rules so that the determination

of harmless constitutional error has been consistent since the

first ruling in 1963. Alternatively, respondent submits that the

initial pronouncement is more favorable to a criminal defendant

than the subsequent pronouncements. Application of the first

standard, which was applied by the Tennessee Court of Criminal

Appeals in the instant case, results in a most sound determina-

tion of harmless error upon consideration of a constitutional

error.

In Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.

2d 171 (1963), the Court held the admission of evidence ob-

tained in the course of an illegal search to not be harmless error.

The standard applied was “whether there is a reasonable possi-

bility that the evidence complained of might have contributed to

the conviction.” 375 U.S. at 86-87, 84 S.Ct. at 230. In the

following year the Court again applied the standard set forth in

entian

Fahy and again found the admission of such evidence to not

be harmless error. Stoner v. State of California, 376 U.S. 483,

84 S.Ct. 889, 11 L.Ed.2d 856 (1964).

Thereafter, in a case decided in 1967, the Court did hold ad-

mission of items seized in an unconstitutional search to be harm-

less error. In Chapman v. California, 386 U.S. 18, 87 S.Ct.

824, 17 L.Ed.2d 705 (1967), the Court restated the rule an-

nounced in Fahy and then, expressly adhering to the Fahy de-

cision, held, “that before a federal constitutional error can be

held harmless, the court must be able to declare a belief that it

was harmless beyond a reasonable doubt.” 386 U.S. at 24, 87

S.Ct. at 828. In Chapman the Court stated that there was

“little, if any, difference” in the Chapman and Fahy standards

but that the standard of “reasonable doubt” would be more fa-

miliar to and easier to apply by all courts.

The Court again considered this question in Harrington v.

California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284

(1969). The majority in Harrington wrote that they were not

departing from Chapman or diluting it, but only reaffirming it

when they stated:

The case against Harrington was so overwhelming that we

conclude that this violation of Bruton was harmless beyond

a reasonable doubt, unless we adopt the minority view in

Chapman . . . that a departure from constitutional pro-

cedure should result in an automatic reversal, regardless

of the weight of the evidence. 395 U.S. at 254, 89 S.Ct. at

1728.

A dissent in Harrington by Mr. Justice Brennan joined by the

Chief Justice and Mr. Justice Marshall, expressed the belief

that the majority had overruled Chapman by considering the

issue of the substantiality of the evidence and not the effect on

the jury’s decision caused by the tainted evidence. Harrington

v. California, supra, 395 U.S. at 256, 89 S. Ct. at 1729 (dissent-

ing opinion).

= =

Respondent submits that the standard set forth in Fahy, Chap-

man, and Harrington for determining whether constitutional

error is harmless has been the same standard verbalized in vary-

ing terms. Therefore, application of the Fahy standard by the

Court of Criminal Appeals of Tennessee in the instant case

was proper. However, if this Court should rule that the stand-

ards are not the same, respondent submits that the standard

set forth in Fahy, no reasonable possibility the evidence con-

tributed to conviction, is the most beneficial to criminal defend-

ants. Therefore, a determination of harmless error under the

Fahy standard would satisfy the standards in both Chapman

and Harrington. See Harrington v. California, supra, 395 U.S.

at 255, 89 S.Ct. at 1729 (dissenting opinion).

C. The Admission Into Evidence of Items Seized Dur-

ing a Search Conducted in Violation of Petitioner’s Fourth

and Fourteenth Amendment Rights Was Harmless Error.

The items which were seized in the search of the motel room

after the shoot-out with Taylor consisted of a change purse

discovered under a mattress on one of the beds and a key ring

found in a suitcase (R. 312-314). The change purse contained

a diamond ring and a lady’s watch which had been previously

identified as belonging to the female victim and the key ring

contained keys to operate the male victim’s automobile (R. 312-

314). It is the admission of these items which was held to be

harmless error by the court below. Respondent submits that the

lower court’s ruling was correct.

A brief summary of the incriminating evidence not tainted

by a search of the motel room is offered in support of the lower

court’s ruling.

Beginning on November 16, 1973, petitioner Taylor and two

male companions were in Atlanta, Georgia, attempting to buy

—_

pistols (R. 7). The next day at a store where their previous

attempts had been unsuccessful, one of Taylor's companions

purchased three pistols, including the pistol which became the

murder weapon in this case (R. 7, 9, 14, 15, 19-26, 268).

On November 27, 1973, petitioner Taylor was present at

the Pitt Grill in Nashville, Tennessee, the same time the two

to-become murder victims were there which was approximately

one hour before their gunshot bodies were discovered a short

distance from that restaurant and their motel (R. 50-57, 227-

235). A short period of time after the victims’ bodies were dis-

covered, petitioner Taylor’s left thumb print was discovered on

a plastic glass in one victim’s motel room (R. 119-124, 174).

Beginning in the morning hours of November 29, 1973,

Taylor and his two companions were seen together in Memphis,

Tennessee, using credit cards issued to one of the homicide

victims and in the possession of and operating that deceased’s

automobile (R. 256-285). In the afternoon of November 29,

1973, authorities took Taylor’s two companions into custody

and discovered a pistol on each of them (R. 292-295, 340, 341).

Immediately thereafter, a shoot-out occurred between Taylor

and Memphis authorities and the pistol confiscated after Taylor

surrendered was the murder weapon (R. 297-299, 307-309,

368).

Taylor’s two companions in November, 1973, testified that

approximately 10:30 p.m. on November 27, 1973, Taylor came

into the motel room they were sharing in Nashville and an-

nounced that they were leaving town (R. 397, 398, 403, 404,

469, 476, 477). They testified that Taylor was excited and,

even though they objected, he convinced them to leave Nash-

ville (R. 404, 405, 477, 478). The three went to Memphis in

a blue Lincoln Continental (the vehicle of one of the homicide

victims) which Taylor told them he had purchased (R. 406,

479, 480). They testified further that Taylor was then in

—_

possession of credit cards imprinted with the name “James P.

Widener” (R. 407, 481, 482).

The brief statement of the evidence set out hereinbefore

shows that Taylor was in a public place in the presence of the

victims only minutes before the murders. He apparently was

in the motel room of one of the victims. Taylor was in posses-

sion of the murder weapon both before and after the homicide.

Minutes after the homicides occurred, he was excited and

anxious to leave Nashville. At that time, he was in possession

of the automobile and credit cars belonging to one of the

murder victims.

Respondent respectfully submits that the untainted incrimi-

nating evidence is overwhelming and would result in a jury

verdict of guilty unless the jury acted arbitrarily. Therefore,

admission of the watch and ring belonging to the second homi-

cide victim and admission of the keys which operated the auto-

mobile belonging to James P. Widener was harmless error as

found by the Court of Criminal Appeals of Tennessee.

D. The Decision of the Court of Criminal Appeals of

Tennessee Should Not Be Keviewed and Reversed Be-

cause the Exclusionary Rule as Applied to the States in

Mapp v. Ohio Should No Longer Be Followed and Should

Either Be Overruled or Modified So as to Make Admis-

sible the Items Seized in the Instant Case.

All courts should seek to conduct criminal proceedings so

that no innocent man suffers for want of a fair trial. How-

ever, it is submitted that every court also shares the duy to

see that no guilty person escapes justice through a mere ir-

regularity or technicality which in no way affects the deter-

mination of guilt or innocence. It is submitted that this Court

should no longer require the states to adhere to the exclusion-

am 13 a

ary rule in the absence of evidence to warrant the rule which

presently is still unsupported by convincing evidence. See United

States v. Janis, — U.S. —, 96 S.Ct. 3021, 3027, — L.Ed.2d —

(1976).

The costs of applying the exclusionary rule have been rec-

ognized as substantial and application of the rule has often

subverted criminal trials. Stone v. Powell, 428 U.S. —, 96

S.Ct. 3037, 3049, 48 L.Ed.2d — (1976). The respondent

submits that in no way should the exclusionary rule be ap-

plied in the instant case so as to require that the conviction

of petitioner Taylor be reversed.

II. Response to Question Presented Number 2.

A. The Trial Court Properly Exercised Discretion in

Not Striking the Testimony of Witnesses Dunn and Ma-

son in Whole or in Part in Response to Assertion of Their

Fifth Amendment Rights Not to Incriminate Themselves.

It is widely recognized that a trial court is not required to

strike testimony, in whole or in part, of a government witness

asserting his Fifth Amendment privilege against self-incrimi-

nation in a criminal trial. Such recognition is expressed in

United States v. Newman, 490 F.2d 139 (3rd Cir. 1974),

where the Court also cites decisions filed in six additional cir-

cuits recognizing this same principle. 490 F.2d at 145. And,

in United States v. Rogers, 475 F.2d 821 (7th Cir. 1973),

the Court noted that a witness’ refusal to answer questions

upon asserting the Fifth Amendment privilege “may, but need

not necessarily, violate the defendant’s Sixth Amendment right

as to part or all of the witness’ testimony.” 475 F.2d at 827.

However, the question presented does appear to be one not

heretofore decided by this Court. Even though, this Honorable

Court has noted that the constitutional right of -onfrontation

Ee Le

_—

and cross-examination is not absolute. In Chambers v. Mis-

sissippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973),

after noting that the constitutional right of confrontation was

an essential and fundamental requirement for a fair trial, this

Court stated:

Of course, the right to confront and cross-examine is not

absolute and may, in appropriate cases, bow to accommo-

date other legitimate interests in the criminal trial process.

E.g., Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33

L.Ed.2d 292 (1972). But its denial or significant diminu-

tion calls into question the ultimate “integrity of the fact-

finding process” and requires that the competing interest

be closely examined. Berger v. California, 393 U.S. 314,

315, 89 S.Ct. 540, 541, 21 L.Ed.2d 508 (1969). 410 US.

at 295, 93 S.Ct. at 1046.

Thus cases of conflict between a witness’ Fifth Amendment privi-

lege against self-incrimination and a defendant's Sixth Amend-

ment right to confrontation and cross-examination require con-

sideration of the integrity of the fact-finding process.

It is submitted that the authoritative case on this point is

United States v. Cardillo, 316 F.2d 606 (2nd Cir. 1963), cert.

denied, Cardillo v. United States, 375 U.S. 822, 84 S.Ct. 60

(1963) and Margolis v. United States, 375 U.S. 822, 84 S.Ct.

60 (1963), rehearing denied, Cardillo v. United States, 375

U.S. 926, 84 S.Ct. 263 (1963). The circuit court there stated:

Since the right to cross-examine is guaranteed by the

Constitution, a federal conviction will be reversed if the

cross-examination of government witnesses has been un-

reasonably limited. . . . However, reversal need not result

from every limitation of permissible cross-examination and

a witness’ testimony may, in some cases, be used against a

defendant, even though the witness invokes his privilege

against self-incrimination during cross-examination. In

—_

determining whether the testimony of a witness who invokes

the privilege against self-incrimination during cross-exam-

ination may be used against the defendant, a distinction

must be drawn between cases in which the assertion of the

privilege merely precludes inquiry into collateral matters

which bear only on the credibility of the witness and those

cases in which the assertion of the privilege prevents in-

quiry into matters about which the witness testified on

direct examination. Where the privilege has been invoked

as to purely collateral matters, there is little danger of preju-

dice to the defendant and, therefore, the witness’ testimony

may be used against him. . . . On the other hand, if the wit-

ness by invoking the privilege precludes inquiry into the

details of the direct testimony, there may be a substantial

danger of prejudice because the defense is deprived of the

right to test the truth of his direct testimony and, there-

fore, that witness’ testimony should be striken in whole or

in part... . 316 F.2d at 611 (authorities omitted).

In Cardillo, the testimony of two individuals was under consider-

ation. The court found that the limitations on cross-examination

of one of the witnesses related only to collateral matters which

concerned his credibility as a witness and the limitation was

proper. However, as to the second witness, the court concluded

that the limitation was improper because it related to the guilt

of the defendant.

The second most authoritative decision on this issue is Foun-

tain v. United States, 384 F.2d 624 (Sth Cir. 1967), cert. denied,

Marshall v. United States, 390 U.S. 1005, 88 S.Ct. 1246, 20

L.Ed.2d 105 (1968). The court there noted that resolving the

conflict between a witness’ Fifth Amendment privilege and a

defendant’s Sixth Amendment right to confrontation and cross-

examination began with two inquiries which are whether the

Fifth Amendment privilege could be properly invoked, and if

so, whether, even with this restriction, the direct testimony could

=

still be considered by the jury. 384 F.2d at 627. The court

noted that if the limitation on cross-examination deprived a

defendant of testing the truth of the direct testimony that the

portion of the direct testimony which could not be subjected to

sufficient inquiry should be struck. However, the court con-

cluded that “the question in each case must finally be whether

defendant’s inability to make the inquiry created a substantial

danger of prejudice by depriving him of the ability to test the

truth of the witness’ direct testimony.” 384 F.2d at 628.

The standards for considering the integrity of the fact-finding

process when a defendant’s right of confrontation has been

limited by a prosecution witness successfully asserting his Fifth

Amendment privilege as stated in the cases of Fountain and

Cardillo, both supra, have been recognized and applied in vari-

ous circuits. E.g., United States v. Gould, 536 F.2d 216 (8th

Cir. 1976); United States v. Liddy, 509 F.2d 428 (D.C. Cir.

1974) (en banc); United States v. Newman, 490 F.2d 139

(3rd Cir. 1974); United States v. Stephens, 492 F.2d 1367 (6th

Cir. 1974); United States v. Rogers, 475 F.2d 821 (7th Cir.

1973).

At trial where the question is first presented, a witness who

may properly invoke the Fifth Amendment privilege against

self-incrimination should be called as a witness unless his an-

swers to all relevant questions could subject him to prosecution.

United States v. Melchor Moreno, 536 F.2d 1042 (Sth Cir.

1976). In those instances, the witness should be required to

answer all relevant questions to which the judge determines that

he may not properly assert the Fifth Amendment privilege.

United States v. Melchor Moreno, supra; United States v. An-

glada, 524 F.2d 296 (2nd Cir. 1975). The trial judge acted

accordingly in the case under consideration.

It is submitted that application of the Fountain and Cardillo

standards to the particular facts and circumstances present in

—

the instant case results in a determination that the trial judge

properly allowed the witnesses Dunn and Mason to assert their

Fifth Amendment privilege against self-incrimination and thereby

limit petitioner’s Sixth Amendment right of confrontation and

cross-examination and that the trial judge so limited the exercise

of the Fifth Amendment privilege by Dunn and Mason that it

did not affect the integrity of the fact-finding process. A review

of the limited use of the Fifth Amendment privilege which was

permitted by the trial judge is disclosed by the addition to the

Statement of the Case contained hereinbefore.

B. No Harmless Error Rule Was Applied in the Instant

Case to the Conflict Between the Witness’ Fifth Amend-

ment Privilege and the Petitioner’s Sixth Amendment Right

to Confrontation and Cross-Examination.

The proper test for determining conflicts between a witness’

Fifth Amendment privilege again self-incrimination and a de-

fendant’s Sixth Amendment right to confrontation does not in-

volve a determination of whether harmless error is present. As

noted in the preceding discussion, the proper standard deter-

mines whether or not there has been a deprivation of a defend-

ant’s right to determine the truth of the prosecution witness’

direct testimony. If a determination of the truth was not reached

in the trial court, reversal is required. This standard for

review is of the integrity of the fact-finding process and no ap-

plication of a harmless error rule is applied when the court de-

termines that there was no valid fact-finding process.

Although some courts do speak of harmless error in consider-

ing this issue, e.g., United States v. Melchor Moreno, 536 F.2d

1042 (Sth Cir. 1976), and Hoover v. Beto, 467 F.2d 516 (Sth

Cir. 1972), cert. denied, 409 U.S. 1086, 93 S.Ct. 702 (1972),

it is submitted that the proper determination, as set forth above,

is consideration of the integrity of the fact-finding process, even if

a court may express its decision as finding “harmless error.”

—_ we

The lower court in this case reviewed the evidence to deter-

mine if the fact-finding process had been impaired. The court

made no finding of harmless error relative to this question and

affirmed the conviction only after a full review of the trial pro-

ceedings.

CONCLUSION

For the foregoing reasons, the respondent respectfully sub-

mits that the petition for a writ of certiorari should be denied.

Respectfully submitted,

JACK E. SEAMAN

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219

(615) 741-3231