Petition — Morford v. Elliott
Supreme Court brief1978
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Supreme Court, U. S.
FILED
/ Oct 1 i9tT
MICHAEL RODAK, JR., CLERK
— oon
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1977
ROBERT MORFORD, Acting Warden,
Tennessee State Penitentiary,
Petitioner,
VS.
OTIS ELLIOTT,
Respondent.
PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals
for the Sixth Circuit
WILLIAM C. KOCH, JR.
Deputy Attorney General
State of Tennessee
450 James Robertson Parkway
Nashville, Tennessee 37219
Attorney for Petitioner
Of Counsel
BROOKS McLEMORE
Attorney General and Reporter
St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477
a
TABLE OF CONTENTS
Page
CL oo ccc wecsincsesscnessswvseesevunes 2
PE Sc vcbu sh Oe ben keteeGsn yh eae eueeeues 2
CIS 5 ccctenaeapesteensesedneaneees 2
Constitutional and Statutory Provisions Involved ....... 3
I ED Cans cacnsutcessouvebeuseenes 6
A. Proceedings in State courts ... 1... ccc cc ccees 6
B. Proceedings in Federal courts .............445. 7
C. Statement of Facts adduced on Motion to Suppress 8
Reasons for Granting the Writ .............0 eee ees 12
re Pe ee ee ree 13
I. A state prisoner who has been afforded a fair op-
portunity to challenge the voluntariness of his con-
fession in state court should not be allowed to col-
laterally attack the state courts’ findings pursuant
es SEE 6 cores csdeentectaceceeass 13
II. A United States District Court, after reviewing the
entire record of the state proceedings, including
the transcript of the hearing on the state prison-
ers motion to suppress his confession and the opin-
ions of the state appeilate courts concerning the
voluntariness of the prisoner's confession, is en-
titled to presume that the findings of the state
courts were correct pursuant to 28 U.S.C. $2254(d) 15
Ill. The records of the respondent's trial and appeal in
the state courts show with unmistakable clarity
ee
that the trial court and the Court of Criminal Ap-
peals found that the respondent's confession was
UE 3.0.0 400005 00440 Re UES hEe aeons ns 16
IV. The facts deveioped at the hearing on the respond-
ent’s motion to suppress his confession fairly sup-
port the state court’s finding that the respondent's
confession was voluntary ............0000000- 18
V. No worthwhile purpose would be served by requir-
ing the United States District Court to conduct an
evidentiary hearing in this case ............... 19
SPN ons '0.nsceec'eacacuce vs cusnwece<uapeunes 21
Appendices
A. Opinion, Elliott and Mitchum v. State, Bradley No.
73 (Tenn. Crim. filed May 22, 1974) ........... A-l
B. Opinion, Elliott v. Morford, No. 1-75-227 (E.D.
Tenn, tiled Apr. 19, 1976)
C. Opinion, Elliott v. Morford, No. 76-1834 (6th Cir.,
filed July 6, 1977)
D. Bill of Exceptions, State of Tennessee v. Jerry Wayne
Mitchum and Otis Elliott, Bradley Crim. No. 5684,
pp. 1-196
Table of Authorities
Cases:
Brewer v. Williams, — U.S. —, 97 §.Ct. 1232 (1977)... 14
Fay v. Noia, 372 U.S. 429, 83 S.Ct. 822 (1963) ....... 14
Jackson v. Denno, 378 U.S. 382, 84 S.Ct. 1774 (1964).. 14
LaVallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203
SL: sd ea We wn tO UP EESE CEES OBO ce ens saeeebs 16, 17
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966) 18
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041
SEE cv ncidecededese neces Ee vascevsscuvsdase 18
Sims v. Georgia, 385 U.S. 538, 82 S.Ct. 639 (1967) .... 16
Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1976) 12, 13, 14
Swenson v. Stidham, 409 U.S. 224, 93 S.Ct. 359 (1972).. 17
Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745
SE ocgeccebbanassuseseesessbeceae enue 15, 17, 20
Statutes:
Se Se ca cos bese heaeeeee een arr 2, 12, 13, 15
y i | a) rere 3, 4, 12, 15, 16, 20
2B TEBE, CHRP SRIED occ cc cccccccsevesevccccvces 16
Public Law 89-711 [1 U.S. Cong. & Ad. News 1290-
1293 (89th Cong., 2d Sess. 1966)] ...........565- 15
Other:
Article, The Supreme Court, 1975 Term, 90 Harv. L.
EE ee errr Perr rr ye Cre 14
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1977
|
ROBERT MORFORD, Acting Warden,
Tennessee State Penitentiary,
Petitioner,
VS.
OTIS ELLIOTT,
Respondent.
PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals
for the Sixth Circuit
The petitioner, Robert Morford, former Acting Warden of
the Tennessee State Penitentiary, respectfully prays that a Writ
of Certiorari issue to review the opinion of the United States
Court of Appeals for the Sixth Circuit filed on July 6, 1977,
reversing the judgment of the United States District Court for
the Eastern District of Tennessee, Southern Division entered
on April 19, 1976 and remanding the case to the United States
District Court to conduct an evidentiary hearing on the issue
of the voluntariness of the respondent's confession.
OPINIONS BELOW
The opinion of the Tennessee Court of Criminal Appeals
dated May 22, 1974, reversing the respondent’s conviction is
unpublished and is reproduced as Appendix A. The opinion of
the Tennessee Supreme Court reversing the decision of the
Tennessee Court of Criminal Appeals and reinstating the re-
spondent’s conviction is reported at 524 S.W.2d 473. The opin-
ion of the United States District Court for the Eastern District
of Tennessee dated April 16, 1976 denying the respondent's
petition for writ of habeas corpus is unreported and is repro-
duced as Appendix B. The opinion of the United States Court
of Appeals for the Sixth Circuit dated July 6, 1977, reversing
the judgment of the United States District Court, is unreported
and is reproduced as Appendix C.
JURISDICTION
The judgment of the United States Court of Appeals for the
Sixth Circuit was entered on July 6, 1977. This petition for
a writ of certiorari is timely filed within ninety (90) days of that
date pursuant to 28 U.S.C. § 2101(c). Jurisdiction is invoked
under 28 U.S.C. § 1254(1).
QUESTIONS PRESENTED
1. Whether a state prisoner who has been afforded a fair
Opportunity to challenge the voluntariness of his confession in
State court should be allowed to attack the state courts’ find-
ings in a collateral proceeding pursuant to 28 U.S.C. § 2254.
2. Whether a United States District Court, after reviewing
the entire record of the state proceedings, including the tran-
script of the hearing on a state prisoner's motion to suppress his
a vow
confession and the opinions of the state appellate courts con-
cerning the voluntariness of this confession, was entitled to pre-
sume that the findings of the state courts were correct pursuant
to 28 U.S.C. § 2254(d).
3. Whether the facts contained in the records of the state
proceedings which were filed with the United States District
Court in this case show that the issue concerning the voluntari-
ness of the respondent's confession was fully and finally re-
solved in state court.
4. Whether the facts contained in the records of the state
proceedings which were filed with the United States District
Court support the finding that the respondent’s petition was
voluntary.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fifth Amendment to the Constitution of the United
States provides:
No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indict-
ment by a grand jury, except in cases arising in the iand
or naval forces, or in the militia, when in actual service in
time of war or public danger: nor shall any person be
subject for the same offense to be twice put in jeopardy
of life or limb; nor 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; nor
shall private property be taken for public use, without
just compensation.
The Sixth Amendment to the Constitution of the United
States provides:
—
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of
the state and district wherein the crime shall have been
committed, which district shall have been previously as-
certained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the wit-
nesses against him; to have compulsory process for obtain-
ing witnesses in his favor, and to have the assistance of
counsel for his defense.
The Fourteenth Amendment to the Constitution of the United
States provides:
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the
United States and of the state wherein they reside. No state
shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States;
nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any per-
son within its jurisdiction the equal protection of the laws.
ams a
a oe
(1) that the merits of the factual dispute were not
resolved in the State court hearing:
(2) that the factfinding procedure employed by the
State court was not adequate to afford a full and
fair hearing;
(3) that the material facts were not adequately de-
veloped at the State court hearing;
(4) that the State court lacked jurisdiction of the sub-
ject matter or over the person of the applicant
in the State court proceeding;
(5) that the applicant was an indigent and the State
court, in deprivation of his constitutional right,
failed to appoint counsel to represent him in the
State court proceeding;
(6) that the applicant did not receive a full, fair and
adequate hearing in the State court proceedings,
(7) that the applicant was otherwise denied due proc-
ess of law in the State court proceeding;
(8) or unless that part of the record of the State
The power of a United States District Court to grant a writ
of habeas corpus is codified in Title 28 of the United States
Code which provides in pertinent part:
court proceedings in which the determination of
the sufficiency of the evidence to support such fac-
tual determination, is produced as provided for
hereinafter, and the Federal court on a consider-
ation of such part of the record as a whole con-
cludes that such factual determination is not fairly
supported by the record:
§ 2254(d) In any proceeding instituted in a Federal court
by an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court, a de-
termination after a hearing on the merits of a factual issue,
made by a State court of competent jurisdiction in a pro-
ceeding to which the applicant for the writ and the State or
an officer or agent thereof were parties, evidenced by a
written finding, written opinion, or other reliable and ade-
quate written indicia, shall be presumed to be correct, un-
less the applicant shall establish or it shall otherwise ap-
pear, or the respondent shall admit—
And in an evidentiary hearing in the proceeding in the
Federal court, when due proof of such factual determina-
tion has been made, unless the existence of one or more
of the circumstances respectively set forth in paragraphs
numbered (1) to (7), inclusive, is shown by the applicant,
otherwise appears, or is admitied by the respondent, or un-
\
¥
a Toe
less the court concludes pursuant to the provisions of para-
graph numbered (8) that the record in the State court pro-
ceeding, considered as a whole, does not fairly support such
factual deter: \ination, the burden shall rest upon the ap-
plicant to establish by convincing evidence that the fac-
tual determination by the State court was erroneous.
STATEMENT OF THE CASE
A
Proceedings in the State court
The respondent and four of his companions were arrested on
July 19, 1972, severa! hours after the Oakdale Superette lo-
cated in Bradley County, Tennessee was robbed and its owner
killed. During the next several days following his arrest, the
respondent gave a detailed oral confession concerning his in-
volvement in the armed robbery and murder. On July 22,
1972, the Bradley County, Tennessee grand jury indicted the
respondent for first degree murder and murder while perpetrat-
ing an armed robbery.
On October 24, 1972, the respondent filed a motion to sup-
press his oral statements alleging that they had been obtained
in violation of his constitutional rights. The trial court con-
ducted an evidentiary hearing on this motion on October 24,
1972. and again on November 8, 1972, during which twelve
witnesses testified. The transcript of these hearings is reproduced
as Appendix D. The trial court did not make a specific finding
concerning the voluntariness of the respondent's confession at
the conclusion of the proof on November 8, 1972, but did
sever the trial of the respondent and one codefendant from the
other three codefendants.
—<
-_—-———
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TT a EN Cs
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The trial of the respondent and his codefendant commenced
on March 20, 1973. Prior to the empanelling of the jury, the
trial court heard further argument concerning the respondent's
motion to suppress his confession. After this argument and a
tender of proof by the respondent's attorney, the trial court over-
ruled the respordent’s motion to suppress his confession. The
trial was then commenced and on March 21, 1973, the re-
spondent and his codefendant were found guilty of murder in
the first degree and were sentenced to ninety-nine years in the
state penitentiary.
The respondent perfected an appeal, and on May 22, 1974,
the Court of Criminal Appeals reversed his conviction on the
ground that the respondent was entitled to obtain a copy of
the transcript of the hearings on his motion to suppress his
confession prior to the trial. In its opinion, however, the Court
considered the issue of the voluntariness of the respondent’s
confession and found that the evidence in the record fully sus-
tained the trial court's finding that the respondent's confession
was voluntary.
Both the respondent and the State of Tennessee filed petitions
for a writ of certiorari in the Tennessee Supreme Court. While
the respondent again raised the issue of the voluntariness of his
confession in this petition, the Tennessee Supreme Court limited
its review to other issues. On May 27, 1975, the Tennessee
Supreme Court reversed the judgment of the Court of Criminal
Appeals and reinstated the respondent's conviction.
B
Proceedings in the Federal Courts
On November 3, 1975, the respondent filed a pro se petition
for a writ of habeas corpus in the United States District Court
— po
for the Eastern District of Tennessee. The petitioner answered
this petition on November 24, 1975, and at that time supplied
the District Court with verbatim transcripts of the entire state
proceedings involving the petitioner. The District Court then
appointed counsel to represent the respondent, and on March
15, 1975, a supplemental habeas corpus petition was filed.
On April 19, 1976, the District Court declined to grant the
respondent habeas corpus relief after reviewing the pleadings
filed by the parties as well as the entire record of the state pro-
ceedings. The respondent perfected an appeal to the United
States Court of Appeals for the Sixth Circuit. On July 6,
1977, the Court reversed the decision of the District Court and
remanded the case for an evidentiary hearing on the issue of
whether the respondent's confession was voluntary.
c
Statement of Facts Adduced on Motion to Suppress
The respondent was arrested on July 19, 1972, several
hours after the Oakdale Superette had been robbed and its
owner killed. During the next several days following his arrest,
he gave a detailed, oral confession concerning his involvement
in the armed robbery and the murder. On October 24, 1972,
he filed a motion to suppress these statements alleging that they
had been obtained in violation of his constitutional rights. The
state trial court conducted an evidentiary hearing on this mo-
tion on October 24, 1972 and again on November 8, 1972
and on March 20, 1973 overruled the motion to suppress.
During the hearing on his motion to suppress, the respond-
ent stated that he was a diabetic but admitted that he did not
inform anyone of his condition until he was in jail when he told
——— eo
a ‘on
a trusty he needed medicine. (B.E. 75-78).* He also admitted
the police took him to a hospital while he was in jail and that
the doctor, after performing several tests, told him that he did
not need medication. (B.E. 80-81 and 98). There is evidence
in the record that the respondent refused to take the insulin pro-
vided for his use because he thought it was poison. (B.E. 96-
97).
The respondent claimed that he was interrogated briefly on
the day he was arrested, (B.E. 79), and again on the following
day. (B.E. 79 and 112). He admitted that on the day following
his arrest, he sent several messages to Deputies Neeley and
Helton asking to see them. (B.E. 113). He claimed that the
police took him from his cell on the second night he was in
jail and that he was placed in an automobile with Deputies
Neeley and Moore. (B.E. 83). He testified that he was repeat-
edly threatened and eventually taken to a cemetery where he
was hit in the mouth, breaking his denture plate and cutting
his lips. (B.E. 87-89). He also stated that he was forced to
kneel on the ground with his head near a tombstone while a
pistol was discharged close by. (B.E. 90-91).
The respondent testified that he was warned to say nothing,
(B.E. 90), and was driven to the city jail where he told police
his “side of the thing” which was preserved on tape recorder.
(B.E. 92). Even though he admitted being advised of his rights
when he was first questioned, (B.E. 105), he could not remember
whether he was advised of his rights when he gave the taped
statement. (B.E. 107 and 199). He also claimed that Deputy
Neeley to!d him what to say on the tape, (B.E. 108) and that
he made the statement because he was weak from the lack of
medicine and because he feared for his life. (B.E. 94).
* The abbreviation “B.E.” refers to the bill of exceptions con-
taining the testimony and statements made during the hearing on
the respondent’s motion to suppress and on the day of his trial. This
portion of the bill of exceptions is included as Appendix D to this
petition.
=
The respondent's family also testified that when they saw him
on Sunday, four days after the arrest, his lips were swollen, his
shirt was bloody, and his dental plate was cracked. (B.E. 15,
21, 29-31, 62, 380 and 392). The respondent claimed he told
his family not to say anything about what had happened because
he was afraid of the consequences. (B.E. 103).
Tke authorities’ account of the events leading up to the re-
spondent’s confession is diametrically opposed to this account
anc is corroborated in large part by the respondent's own wit-
nesses. His codefendant’s wife testified that she saw the re-
spondent on the day of his arrest and that he asked her to call
his mother so he could get his medicine. (B.E. 23). The respond-
ent’s mother testified that she took tie medicine to the jail the
next day, and even though she could not see her son, a black
deputy promised to deliver his medicine to him. (B.E. 61-62).
The only black deputy in the sheriff's office testified that he went
out of his way to give the respondent his insulin on the day his
mother brought it to the jail. (B.E. 152). There is also evidence
that the trial judge obtained more medicine for the respondent
on Saturday, (B.E. 71 and 120), and that at one point, the re-
spondent’s mother came to the jail at the request of the police
to talk her son into taking the insulin. (B.E. 64).
The respondent was advised of his rights when he was ar-
rested. (B.E. 139). He was noncommittal when he was first
questioned, but on the day following his arrest, he sent notes
to the deputies saying that he would show them where he and
his confederates had abandoned one of the cors used in the
robbery. (B.E. 126, 134, 151 and 316-317).
The police did not take the respondent out during the day
because they were already looking for the car. (B.E. 146).
However, when they were unsuccessful in locating it, they re-
turned to the jail and picked him up. They drove around look-
ing for the car. At no time was the respondent abused or
a
=
harrassed. (B.E. 127, 143-144 and 152). Finally the respondent
claimed that he did not want to “take it” alone, (B.E. 135), and
so the police drove him to the Cleveland City Jail because he
did not want the other defendants to know what he was doing.
(B.E. 162). There, at approximately midnight, (B.E. 146), after
being advised of his rights, (B.E. 126, 150, 166 and 176-177).
and sitting in an office containing a large placard enumerat-
ing these rights, (B.E. 178), the respondent confessed to his
participation in the crime in front of Deputies Neeley and
Moore, Detective Dailey and Assistant Attorney General Mur-
phy. (B.E. 125, 146, 162-163 and 177-178). General Murphy
testified that the respondent was calm when he gave his state-
ment, (B.E. 178), that he was easy to understand, (B.E. 180),
and that there was no blood on his shirt. (B.E. 179). This in-
terview lasted approximately forty minutes. (B.E. 135). As he
was being taken back to jail, the respondent asked for a lawyer.
(B.E. 137).
There is also evidence in the record that the trial judge met
with the respondent several days later in his chambers as the
result of another one of his notes. (B.E. 116). In none of these
notes nor in any of his subsequent letters to the judge did the
respondent mention that he had been physically mistreated.
(B.E. 117-118). The judge did not see any evidence of physical
abuse when he saw the respondent several days after the alleged
beating took place, (B.E. 118), but before he was seen by his
family. The trial judge also stated that the respondent was
responsive and apparently not suffering from his self-deprivation
of insulin when he saw him on July 22, 1973, three days after
his arrest. (B.E. 124 and 192).
=
REASONS FOR GRANTING THE WRIT
This Court has recentiy reaffirmed that state triai and appel-
late courts have sufficient sensitivity to federal constitutional
rights to render unnecessary providing state prisoners the oppor-
tunity to seek collateral review of Fourth Amendment claims
pursuant to 28 U.S.C. § 2254. Stone v. Powell, 428 U.S. 465, 96
S.Ct. 3037 (1976). This decision was premised on important
policy considerations favoring the finality of criminal adjudica-
tions in state courts, promoting comity between state and federal
courts, and making the most effective use of limited judicial
resources. These considerations support the expansion of the
Stone v. Powell ruling to petitions filed pursuant to 28 U.S.C.
§$ 2254 wherein state prisoners are collaterally attacking the
state court’s determination of the voluntariness of their confes-
sions after they were unsuccessful in doing so in state court.
Additional reasons for granting a writ of certiorari in this
case are the need to clarify the presumption of correctness em-
bodied in 28 U.S.C. § 2254(d) which attaches to a state court's
determination of the merits of a factual issue and the need to
determine whether the United States Court of Appeals for the
Sixth Circuit erroneously determined that the merits of the dis-
pute concerning the voluntariness of the respondent’s confession
had not been resolved in the state proceeding and that the deter-
mination of the state courts and the District Court that the
respondent's confession was voluntary was not fully supported
by the record.
a
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=
ARGUMENT
I
A State Prisoner Who Has Been Afforded a Fair Opportu-
nity to Challenge the Voluntariness of His Confession in State
Court Should Not Be Allowed to Attack the State Courts’
Findings in a Collateral Proceeding Pursuant to 28 U.S.C.
§2254.
This Court’s recent opinion in Stone v. Powell, 428 US.
465, 96 S.Ct. 3037 (1976), held that a state prisoner who
had been afforded a full and fair opportunity to litigate his
Fourth Amendment claims in state proceedings would be pre-
cluded from collaterally attacking his state conviction by rais-
ing similar constitutional claims in federal court pursuant’ to
28 U.S.C. §2254. This decision rested upon the recognition
that: (1) state courts are sensitive to federal constitutional
claims, Stone v. Powell, supra, 428 U.S. at 493 n. 35, 96 S.Ct.
at 3051 n. 35; (2) the exclusion of otherwise probative evi-
dence does not necessarily vindicate, but may impair, the fact
finding process at trial, id. at 485, 96 S.Ct. at 3047; (3) there
should be finality in state criminal trials, id. at 491 n. 31, 96
S.Ct. at 3050 n. 31; (4) the friction between state and federal
courts should be minimized where possible, id. at 491 n. 31,
96 S.Ct. at 3050 n. 31; and (5) efforts to more effectively uti-
lize limited judicial resources should be promoted, id. at 491
n. 31, 96 S.Ct. at 3050 n. 31.
While there is not yet a significant amount of federal prece-
dent concerning whether the Stone v. Powell rationale should
be extended to other constitutional claims raised in habeas
corpus proceedings, many scholars,.have commented that the
legal and policy considerations upon which the decision is
based may have implications on the availability of habeas
a"
corpus relief that are greater than this Court's disclaimer con-
tained in footnote 37. See Article, The Supreme Court, 1975
Term, 90 Harv. L. Rev. 56, 213-221 (1976). Further, the
concurring opinion of Mr. Justice Powell and the dissenting
opinion of Mr. Chief Justice Burger in Brewer v. Williams,
— US. —, 97 §.Ct. 1232, 1245-1247 and 1250-1255 (1977),
indicate the Court's desire to explore the propriety of extend-
ing the Stone v. Powell rationale to claims based upon the
Fifth and Sixth Amendments to the United States Constitution.
It must be conceded at the outset that the use of an invol-
untary or coerced confession in a criminal trial casts doubt
upon the fundamental fairness of the trial itself because of the
dubious reliability of such a confession. Jackson v. Denno,
387 U.S. 382, 84 S.Ct. 1774 (1964), and Fay v. Noia, 372
U.S. 429. 83 S.Ct. 822 (1963). However, in light of this
Court's recognition that state courts have the responsibility to
uphold personal constitutional rights, and in fact have demon-
strated an appropriate sensitivity to these rights, it would be
appropriate to extend the Stone v. Powell rationale to cases
such as this one where a state prisoner has fully. albeit unsuc-
cessfully, litigated the issue of the voluntariness of his con-
fession in the state trial and appellate courts. Such an exten-
sion would also be particularly appropriate in cases such as
this one where the record contains overwhelming evidence of
the defendant's guilt.
The extension of Stone v. Powell to habeas corpus petitions
raising Fifth and Sixth Amendment Claims where the federal
courts have determined that the state prisoner was afforded a
full and fair opportunity to raise these issues will also serve
to promote policies which this Court recognized as important
in the context of preventing collateral attacks on state con-
victions based upon the Fourth Amendment.
ee ln nn ae
—
A United States District Court, After Reviewing the Entire
Record of the State Proceedings, Including the Transcript of
the Hearing on the State Prisoner’s Motion to Suppress His
Confession and the Opinions of the State Appellate Courts
Concerning the Voluntariness of the Prisoner's Confession, Is
Entitled to Presume That the Findings of the State Courts Were
Correct Pursuant to 28 U.S.C. § 2254(d).
In response to this Court's decision in Townsend v. Sain,
372 U.S. 293, 83 S.Ct. 745 (1963), and in light of the increas-
ing number of habeas corpus petitions being filed by state pris-
oners, the Congress amended 28 U.S.C. § 2254 in 1966 by
adding subsections “(d)”, “(e)” and “(f)”. Public Law 89-
711 [1 U.S. Cong. & Ad. News 1290-1293 (89th Cong. 2d
Sess. 1966)]. By operation of these provisions, a District
Court may presume that a state court’s determination of a
factual issue which is evidenced by reliable and adequate written
indicia is correct unless it finds that one of the eight conditions
enumerated in 28 U.S.C. § 2254(d) exist. One of the purposes
for the enactment of 28 U.S.C. § 2254(d-f) is contained in the
report of the Habeas Corpus Committee to the Judicial Con-
ference of the United States:
It is the opinion of your committee that the proposed
legislation, if enacted, will be a strong inducement to the
States that have not already done so to provide adequate
post conviction remedies and procedures and to make and
keep available records of evidentiary matter in criminal
and post conviction proceedings, and to the State courts in
criminal proceedings to safeguard the constitutional rights
of defendants.
Senate Report 1797, 3 U.S. Code Cong. & Ad. News,
3663, 3665 (89th Cong. 2d Sess. 1966).
The United States Court of Appeals for the Sixth Circuit predi-
cated their opinion upon an erroneous application of 28 U.S.C.
§ 2254(d)(1) because their conclusion that the absence of spe-
cific findings of fact by the state trial court on the issue of the
voluntariness of the respondent's confession indicated that this
issue was not resolved in the state court.
This conclusion was wrong for two reasons. First, the ver-
batin (ranscript of the respondent's trial in state court, including
the hearing on the respondent's motion to suppress his con-
fession together with the written opinions of the state appellate
couris constitute “reliable and adequate written indicia” of the
state court's decision and of the fact that the merits of the fac-
tual dispute were resolved in the state proceedings. Second, the
United States Court of Appeals erred by holding that the United
States District Court could not rely upon the presumption of
correctness contained in 28 U.S.C. § 2254(d) because the state
trial court did not make specific findings of fact on the issue
of the voluntariness of the respondent's confession. This Court
has ruled that a state trial judge is not required to make formal
findings of fact or write an opinion in order to comply with the
rule that a judge must determine that a confession was freely
and voluntarily given before the confession is submitted to the
jury. LaVaiiee v. Deile Rose, 410 U.S. 690, 93 S.Ct. 1203
(1973) and Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639,
643 (1967).
Ul
The Records of the Respondent’s Trial and Appeal in the
State Courts Show With Unmistakable Clarity That the Trial
Court and the Court of Criminal Appeals Found That the Re-
spondent’s Confession Was Voluntary.
In Sims v. Georgia, supra, this Court held that a trial judge
is only required to determine with unmistakable clarity that a
Ce ae
—
defendant's confession is voluntary before it is submitted to the
jury. This record shows that this was done by the trial court on
March 20, 1973 when the respondent's motion to suppress his
confession was overruled. (BE. 192-196). When the Tennes-
see Court of Criminal Appeals reviewed the respondent's con-
viction, they found that there had been a finding by the trial
court that the respondent's confession was voluntary:
Upon consideration of all the testimony given at the
suppression hearing, the trial judge was of the opinion
that these two defendants knowingly and understandingly
and voluntarily made their respective confessions without
any intimidation or abuse or mistreatment or coercion and
after being fully advised of their rights.
Elliott and Mitchum v. State of Tennessee, Bradley
No. 73 (Tenn. Crim., filed May 22, 1974) at p.
7.
Such interpretations by state appellate courts of the decisions
of state trial courts concerning the voluntariness of a state
prisoner’s confession have been given great weight by this
Court. Swenson v. Stidham, 409 U.S. 224, 230, 93 S.Ct. 359,
363 (1972).
This Court has recognized that a federal judge may legiti-
mately presume, even in cases where there has been no formal
articulation by the state trial court, that the state trier of fact
applied the correct standards of federal law to the facts in ab-
sence of any reason to suspect that incorrect standards were
applied. Townsend v. Sain, supra, 372 U.S., at 314-315, 83 S.
Ct. at 757-758 (1963). See also LaVallee v. Della Rose, supra,
410 US. at 694, 93 S.Ct. at 1203.
In light of the statements of the trial court and the opinion
of the Tennessee Court of Criminal Appeals which were included
in the record filed in the District Court, the District Court could
—=_—
properly find that the state courts had decided with unmistakable
clarity that the respondent's confession was voluntary and, absent
proof to the contrary, that this finding was premised upon ap-
propriate constitutional principles.
IV
The Facts Developed at the Hearing on the Respondent’s Mo-
tion to Suppress His Confession Fairly Support the State Courts’
Finding That the Respondent’s Confession Was Voluntary.
The United States Court of Appeals also concluded that the
determination of the state courts that the respondent's confes-
sion was voluntary was not fairly supported by the record. This
conclusion is not based upon a fair reading of the testimony
adduced at the hearings on the respondent's motion to suppress
his confession. The record developed in this particular case
shows that the respondent's confession was voluntary under
the “totality of the circumstances.” See generally Schneckloth
v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047
(1973).
The respondent's attack on the voluntariness of his confession
is based upon four claims: (1) the police did not advise him of
his rights as required by Miranda v. Arizona, 384 U.S. 436,
86 S.Ct. 1602 (1966); (2) he was prevented from consulting
with counsel prior to confession; (3) the police deprived him
of insulin; (4) the police beat him while he was in custody.
A fair reading of the state record fgils to support these claims.
Rather, the statements of the officers, the respondent's witnesses,
and the trial judge show that the respondent voluniarily con-
fessed because he did not want to “take it” alone. (BE. 135).
The record shows that he was advised of his rights numerous
times prior to his confession. (BE. 105, 126, 150, 166 and 176-
rd
=
178). The record also shows that the authorities took extra-
ordinary steps to make sure that the respondent received the
insulin he claimed he needed, even to the extent of sending him
to the hospital and asking his mother to come to the jail to
convince him to take the insulin after he refused to do so. (BE.
61-62, 64, 71, 120 and 152). The trial judge also stated that
he had seen no evidence of any impairment of the respondent's
faculties when he personally met with him during this time.
(BE. 184 and 192). The record also shows that the respondent
asked for an attorney only after he had confessed. (BE. 137).
Finally, the testimony of the police, as well as that of the
assistant district attorney who was present at the time the con-
fession was given and the trial judge refute the respondent's
claim that he was physically abused prior to making his con-
fession. (BE. 117-118, 127, 143-144, 152 and 179).
This testimony, which was accredited by the state trial court,
the Tennessee Court of Criminal Appeals, and the United States
District Court, provides an ample basis for the conclusion that
the respondent’s confession was voluntary in light of all the
circumstances surrounding his questioning while in custody.
Vv
No Worthwhile Purpose Would Be Served by Requiring the
United States District Court to Conduct an Evidentiary Hearing
in This Case.
In its opinion, reversing the decision of the District Court, the
United States Court of Appeals remanded the case with directions
that an evidentiary hearing be held on the issue of the volun-
tariness of the respondent’s confession. In light of the com-
pleteness of the state record of the hearing on the respondent's
motion to suppress his confession, no useful purpose will be ac-
complished in requiring another evidentiary hearing almost five
—_— po
years after the original hearings were conducted. In addition to
this. there is also the distinct possibility that a second evidentiary
hearing would only serve to cloud the issue because of the
potential unavailability of witnesses both for the State and the
respondent and because of the witnesses’ clouded memories due
to the passage of time.
It is difficult to conceive of any additional proof that would
be put on in a hearing at this time that was not fully developed
five years ago. The respondent has already presented all his
proof, with the exception of his physician, the substance of whose
testimony was considered by the trial judge, and the State has
already produced all its witnesses. These witnesses were sub-
jected to cross-examination, and the trial judge was abl> to
observe their demeanor in order to pass upon their credibility.
Thus any testimony adduced at another evidentiary hearing
would be repetitious and would unnecessarily burden the re-
sources of the State and the District Court.
In none of these proceedings has the respondent alleged any
new facts concerning the manner in which his confession was
obtained which were not thoroughly explored in state court.
Thus, the only benefit to the District Court in conducting another
evidentiary hearing would be the opportunity for the judge to
pass upon the credibility of the witnesses for himself. As long
as the Court has determined that the respondent has been
afforded a full hearing in state court on the question of the
voluntariness of his confession, no provision in 28 U.S.C.
§ 2254(d) requires another evidentiary hearing be held for this
purpose alone. See Townsend v. Sain, supra, 372 U.S. at 312-
313, 83 S.Ct., at 757.
a
Smee
ee ee
—
CONCLUSION
For the foregoing reasons, it is respectfully requested that
the petition for a writ of certiorari be granted and that the judg-
ment of the United States District Court dismissing the respond-
ent’s petition be affirmed.
Respectfully submitted,
WILLIAM C. KOCH, JR.
Deputy Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37219
(615) 741-1671
Attorney for Petitioner
APPENDIX
ee eee ee ee
ees lista. Vi tah,
—*
APPENDIX A
The Court of Criminal Appeals of Tennessee
Knoxville, November 1973 Term
Otis Elliott and Jerry Wayne Mitchum,
Plaintiffs in Error,
State of Tennessee,
Defendant in Error. J
For Plaintiffs in Error:
James G. Cate, Jr.
Cleveland, Tenn. (For Elliott)
(Appointed)
Carl E. Collums
Cleveland, Tenn. (For Mitchum)
(Appointed)
For Defendant in Error:
David M. Pack
Attorney General of Tennessee
William C. Koch, Jr.
Assistant Attorney General
Nashville, Tennessee
Richard A. Fisher
District Attorney General
Cleveland, Tennessee
Opinion Filed: May 22, 1974.
Reversed and Remanded
W. Wayne Oliver
Judge
No. 73
Bradley County
Honorable James C.
Witt, Judge
(Murder in the first
degree while com-
mitting a robbery)
OPINION
Otis Elliott, alias Otis Ellis and Jerry Wayne Mitchum, alias
Jerry Wayne Alexander, the defendants now before this Court,
along with Robert T. Arnold, alias Arnold Robarr and William
E. Johnson and John W. Sharp, were jointly indicted for the
killing of Cornelius C. McClary. The latter three were tried
together in a separate trial.
The first count of the indictment charged first degree murder
in the usual form, and the second count charged murder com-
mitted in the perpetration of a robbery. Represented by separate
appointed counsel, Mitchum and Elliott were tried together.
Although the trial court’s Minutes show that the jury found the
defendants guilty of murder in the first degree and fixed their
punishment at 99 years in the penitentiary, the Bill of Excep-
tions shows that the jury actually found both of them “guilty of
murder in the first degree committed while engaged in the crime
of robbery” and that the trial judge pronounced judgment ac-
cordingly.
In case of such a conflict, the recital in the Bill of Exceptions
is controlling. Church v. State, 206 Tenn. 336, 355, 333 S.W.
2d 799; Helton v. State, 195 Tenn. 36, 255 S.W.2d 694; Bailey
v. State, — Tenn.Crim.App. —, 479 S.W.2d 829. We cannot
over-emphasize the duty of trial judges and their clerks to exer-
cise extraordinary care to see that the court’s Minutes are pre-
pared with scrupulous regard for absolute accuracy.
We summarize the material evidence, both because Elliott
challenges it legal sufficiency and in order to place other con-
tentions of both defendants in proper perspective.
[*2] The deceased was shot to death and robbed in his Brad-
ley County store, called the Oakdale Superette, about 6:30 a.m.
* Numbers appearing in brackets in text indicate original page
numbers of this opinion.
ae
SO EEL + Mew Se a ie
ates
—_ * vo
July 19, 1972. He was shot one time with a 12-gauge shotgun
and four times with .38 caliber bullets fired by at least two
different guns.
Shortly after the store opened that morning, James Brown
went in to buy a quart of beer and some cigarettes. Two Negro
men, one of whom he positively identified in court and at a
line-up as the defendant Mitchum, were standing next to the
counter. After getting his quart of beer, Brown approached the
counter to pay for it and get his cigarettes. At that time one
of the Negro men was behind the counter and one of them told
him in hostile terms to leave. Outside he saw a third Negro man,
whom he icentified in court and at a line-up as the defendant
Elliott, who was standing outside and wearing a blue construction
hard-type helmet. He also saw and spoke to Ed Lewis who had
just driven up. Brown did not see the deceased or any other
person in the store except the two Negro men and they ran out
shortly after he left.
Ed Lewis arrived as Jarnes Brown was coming out of the
store. As he started to get a newspaper from a newsstand, two
Negro men ran out of the store. A 1971 or 1972 green Ford
was parked outside. He went in the store and found the de-
ceased lying dead behind the counter, and called the police.
Sometime prior to the robbery and murder of the deceased,
a Bradley County Sheriff's Department detective had received
a tip that the store was going to be robbed as soon as it opened,
and he had kept the store under surveillance from the top of a
nearby store for four nights, ending about 7:00 a.m. July 18th.
[3] The following morning, utilizing information given this de-
tective previously, an all-points bulletin was sent out for a 1966
T-Bird and a late model Continental Mark III. Later that morn-
ing, officers found the Continental parked at William Johnson's
trailer home in Charleston, Tennessee. No one was in the car
and only Mrs. Johnson was in the trailer. Fresh tracks in the
pe
dew-wet grass led the officers to the next-door home of Willie
Massengill. Three Negro men, including the defendants Elliott
and Mitchum who said their names were Michael Ellis and
Jerry Wayne Alexander, and Robert Arnold (Robarr) were
found under Massengill’s house, and were arrested and advised
of their rights. A search of the area under the house produced
more than $2,000 in currency, some of which was blood-stained.
three rings and a wallet containing registration papers belonging
to the deceased, and a check in the amount of $50 which the
deceased had cashed for the payee the night of July 18.
Except with reference to their motions to suppress certain
evidence and a line-up, which will be considered later, the de-
fendants did not testify.
Fredia Alexander, Mitchum’s wife, testified that his surname
is Alexander; that he called her the day he was arrested and
she went to the jail but was not permitted to see him; that she
saw Elliott the next day and he had blood on his tee shirt and
one of his teeth was out and his lip was swollen.
Elliott's mother testified that he is a diabetic and takes insulin
once a day; that he wears a denture, a partial upper plate,
which she saw in perfect condition the day before his arrest;
that after his arrest she was not permitted to see him until the
following Sunday and then observed that his upper [4] lip was
cut and swollen and his denture was cracked and broken. His
grandmother also said there was nothing wrong with his denture
the day before his arrest. One of Elliott’s friends testified he
had about $120 the night before his arrest and that she gave
him an additional $50 which he needed for a payment on an
automobile.
After an extensive pre-trial hearing, the trial court overruled
the defendants’ motions to suppress and exclude their extra-
judicial inculpatory statements which they claimed were the
aes « am
om tae
en eee dt ee ed
— +
result of violence and threats and were not freely and volun-
tarily made.
Thus, at the trial Detective Wayne Neeley, of the Bradley
County Sheriff's Department, the same officer who was tipped
off that the Superette was going to be robbed and watched it
for four nights as above indicated, testified that he was present
at the city jail when Elliott related that he and another man
were picked up in Chattanooga on the night of the 18th about
midnight, and were told that a big deal was going and were
asked if they would like to make some money; that they came
to Cleveland and changed clothes and prepared for the robbery
in a residence or place of business on Inman Street belonging
to someone named Larry; that they were in two cars, and he
drove one of them to a Chevron filling station just off of Keith
Street and waited there for the others; that when they rejoined
him shortly thereafter, they all drove to a place near where
Peerless Road goes under I-75, and there one car was aban-
doned and they all went in the other car to William E. John-
son’s residence in Charleston, and that he and two of the others
were placed under ihe house next door; and that he was to
receive $15,000 for driving the car. Detective Neeley also
testified that Elliott had sent [5] several notes *» him by the
jailor saying that he wanted to talk to him; that he (Neeley)
and another officer took Elliott out of the jail about 8:30 one
night and kept him out until about 12:30 or 1:00 a.m. because
he had previously stated he could show them where the car
was abandoned, which the officers had been unable to locate;
that Elliott was not taken to a cemetery (as he claimed), but
during the excursion searching for the car they drove by a
cemetery located near where he was arrested; that he did not
fire a gun at or beside Elliott (as he claimed); and that he was
not struck or threatened in his presence (as he also claimed).
Cleveland Policeman John Dailey testified that he drove the
car when he and Detective Neeley took Elliott out of the jail,
and that he was not threatened in any way: and that when they
— * =
returned to the city jail the District Attorney General was
called and when he arrived Elliott made a lengthy statement
concerning his involvement in this crime.
Detective Neeley also testified that he was present on Satur-
day morning following his arrest when Mitchum gave a state-
ment in his office: that Mitchum related he and Elliott were
picked up in Chattanooga and were supposed to get $15,000
to help with a big job; that they came to Cleveland and went
to a place on Inman Street and changed clothes and then drove
in two vehicles to the vicinity of the Oakdale Superette; that
three of them got out and entered the store one at a time as
if they were customers; that he had a shotgun and the other
two had revolvers; that they approached the deceased with the
sole purpose of taking his automobile keys; that a fight oc-
curred when the deceased went for his own revolver, which
was under the counter: that the deceased was shot several times
and he also shot him with the shotgun; that after they had to
shoot him, they got what [6] money they could out of his
pockets; that about this time another defendant came to the
dour and told them to hurry and they ran out of the place and
got into one of the vehicles and drove north on Keith Street
and made a turn at the Chevron filling station and followed
Mouse Creek Valley Road to the underpass where Peerless
Road goes under I-75; that they abandoned a Buick Riviera
at that point and got into the other vehicle and went to Charles-
ton and were placed under a house there: and that during the
fight with the deceased, he was wearing a yellow hat which
fell off. Neeley also testified that he found a yellow hard hat
at the scene; that on the day of his arrest Mitchum asked him
for an attorney and he was advised the court would appoint
one for him, that Mitchum stated he would get a Mr. Brown
from Chattanooga to represent him; and that Mitchum did
not request an attorney before making his statement. Police-
man Dailey also testified that Mitchum did not make any re-
quest for an attorney in his presence.
—*
We have reviewed the entire record of the suppression hear-
ing, including the testimony of the offtcers involved, the former
District Attorney General, Mitchum’s persistent denial of mak-
ing any confession or inculpating statement to the officers, and
Elliott’s testimony. He claimed that the night the officers re-
moved him from jail and took him for a drive he was weak
and dizzy and drowsy from lack of insulin for his diabetic con-
dition; that they intimidated and frightened him with talk about
a shotgun in the car and asked him where he wanted his body
sent; that they took him to a cemetery and one of the officers
struck him and they tried to get him to run so they would have
an excuse to shoot him, and another one of them struck him in
the mouth and broke his partial denture, and then they pushed
him down [7] beside a tombstone and asked him what hap-
pened to the guns used in the robbery and he kept teiling them
he didn’t know and wanted a lawyer and that he wasn’t feeling
good, and that Neeley then fired an automatic pistol by his
head and told him the next shot would go into his head; and
that upon returning to the jail they promised to help him get
some medicine and the District Attorney General came in and
asked him what happened; that he was upset and afraid “they
was going to carry me back out there and so I just started, I
told them my side of the thing”; that a tape recording was made
of his statement and he doesn’t recall what he said and told
that story just to get relief; and that although he was advised
of his rights at the time of his arrest he stated he could not
say whether those rights were or were not repeated prior to
making his taped statement. The Buick Riviera had been found
abandoned near the I-75 underpass and had been pulled in
by a city policeman unaware that it had been involved in this
crime. When they took Elliott out of the jail to help look for
the abandoned car he directed them to the area of the Chevron
filling station and identified it as the place where the car was
left.
Upon consideration of all the testimony given at the suppres-
sion hearing, the trial judge was of opinion that these two de-
— =
fendants knowingly and understandingly and voluntarily made
their respective confessions without any intimidation or abuse
or mistreatment or coercion and after being fully advised of
their rights.
The trial court’s determination with reference to compliance
with the Miranda mandate by interrogating officers, and as to
the voluntariness of statements made by the accused during
custodial interrogation, is conclusive on appeal unless [8] the
appellate court finds that the evidence touching those ques-
tions preponderates against the trial judge's findings. Lloyd v.
State, 223 Tenn. 1, 440 S.W.2d 797; Mitchell v. State, 5 Tenn.
Crim.App. 494, 464 S.W.2d 307. Upon appeal, the defendant
has the burden of showing that the evidence preponderates
against such a finding by the trial judge. Wooten v. State, 203
Tenn. 473, 314 $.W.2d 1; Mitchell v. State, supra. In this case
the evidence fully sustains the trial court's findings. Moreover,
as we have also noted, the insistence of the defendant Mitchum
was that he did not at any time make any inculpatory state-
ments to the law enforcement officers.
Considered in the light of the rules by which we are bound
in reviewing the evidence in criminal cases when its sufficiency
to warrant and sustain the verdict of the jury is challenged,
Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768; Webster
v. State, 1 Tenn.Crim.App. 1, 425 S.W.2d 799; Chadwick v.
State, 1 Tenn.Crim.App. 72, 429 S.W.2d 135, manifestly these
defendants have failed to carry their burden of demonstrating
here that the evidence preponderates against the verdict and
in favor of their innocence. Their guilt was clearly established.
However, the rule which places upon the plaintiff in error the
burden of demonstrating his innocence on appeal by a pre-
ponderance of the evidence only applies where he has had a fair
and impartial trial, and one free from prejudicial error.
Pearson v. State, 143 Tenn. 385, 389, 226 S.W. 538. In this
tN A Al ee, bh gale Attn es 0 tee ode Ye
—* =
case the defendants did not have a fair and impartial trial free
from prejudicial error. We consider first the errors requiring
reversal. The defendants’ complaint that the trial judge er-
roneously overruled their respective motions to furnish them
transcripts of the suppression hearing, and a transcript of the
prior trial of their co-defendants must be sustained.
[9] By Chapter 221 of the Public Acts of 1965 (TCA §§ 40-
2029—40-2043), the Legislature of this State established a sys-
tem to provide for court reporters and official transcripts in
felony and habeas corpus cases. TCA § 40-2037 empowers the
trial court to direct the official court reporter to furnish an in-
digent defendant an official trial transcript if requested. And
TCA § 40-2040 positively enjoins trial judges to provide in-
digent defendants with a free transcript for appeal.
While those statutes expressly apply only to transcripts for the
purpose of appeal, Brown v. State, 1 Tenn.Crim.App. 739, 450
S.W.2d 35, in the light of decisions of the United States Supreme
Court and other federal courts reviewed hereinafter it is now
incontestable that the right of an indigent to a free transcript is
not limited to purposes of appeal. Indeed, the Legislature reco-
gnized this by extending the right to indigent prisoners filing
legally cognizable petitions under the Post-Conviction Procedure
Act. TCA § 40-3813.
The suppression hearing was held in two stages, on October
24, 1972 and November 8, 1972. The order of the trial court
overruling the motion for a transcript of that hearing and for a
transcript of the trial of the co-defendants was made and entered
on March 6, 1973. As the reason therefor, that order recited:
“After hearing the proof in the cause and considering the affi-
davits and exhibits filed, the Court overruled the motion, from
which defendant excepts.” Although this order referred only
to Mitchum’s motion, and no order appears specifically over-
ruling Elliott’s like motion, the obvious fact remains that the
court intended to and did overrule both motions.
—_—
[101 The trial of these defendants was March 20 and 21, 1973.
On the day before the trial began, Mitchum moved for a con-
tinuance because he had not been furnished a transcript of the
suppression hearing nor a transcript of the prior trial of the
other co-defendants, averring that he “has thereby been deprived
by state action of a material aid in his defense.” In overruling
the continuance motion, the court made no reference to the
transcript of the suppression hearing, but said with reference
to the transcript of the prior trial of the other co-defendants:
“Transcripts of the prior, very lengthy trial has not as yet been
prepared and the Court, having heard the prior trial, is of the
opinion that the transcript when prepared will be of little benefit
to the defendants in this trial.”
In Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.
2d 41 (1967), the United States Supreme Court held that denial
of an indigent criminal defendant's request, made when his case
was called for trial, for a free transcript of his preliminary hear-
ing, at which the major State witnesses had testified, constituted
a deprivation of his constitutional right to equal protection of
the laws. A State statute required payment for a prelimiary hear-
ing transcript. Thus, Roberts v. LaVallee, supra, requires that
criminal preliminary hearing proceedings be recorded and that
a free transcript thereof be made available to an indigent de-
fendant for use at trial. Conley v. Dauer, 321 F.Supp. 723, 730
(1970).
In United States ex rel. Wilson v. McMann, 408 F.2d 896
(2nd Cir. 1969), the Court held that denial of the indigent
criminal defendant's request, prior to the commencement of
his second trial, for that part of the transcript of his first trial
which contained the testimony of the undercover agent who
[11] allegedly purchased narcotics from him, and of three other
witnesses who corroborated the undercover agent, deprived the
defendant of his constitutional right to equal protection of the
laws. The Court quoted from Roberts v. LaVallee, supra, the
ee ee ee ee eC ee re
— A-11 —
general statement, well recognized and understood, that “differ-
ences in access to the instruments needed to vindicate legal
rights, when based upon the financial situation of the defendant,
are repugnant to the Constitution.”
In Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30
L.Ed.2d 400 (1971) the trial court denied the indigent defend-
ant’s motion for a transcript of his first trial, which ended in a
mistrial, for use in his re-trial. It appeared, as the Court noted,
that the court reporter, who was acquainted with and a friend
of all the attorneys in the case, would at any time have read
back to defense counsel his notes of the mistrial, well in ad-
vance of the second trial, if counsel had so requested. But the
Court reiterated the settled law with reference to the right of an
indigent criminal defendant to a transcript of prior proceedings
essential to his effective defense or appeal:
“Griffin v. Illinois (351 U.S. 12, 76 S. Ct. 585, 100 L.Ed.
891 (1956)] and its progeny establish the principle that
the State must, as a matter of equal protection, provide
indigent prisoners with the basic tools of an adequate de-
fense or appeal, when those tools are available for a price
to other prisoners. While the outer limits of that principle
are not clear, there can be no doubt that the State must
provide an indigent defendant with a transcript of prior
proceedings when that transcript is needed for an effective
defense or appeal. The question here is whether the state
court properly determined that the transcript requested in
this case was not needed for an effective defense.
“In prior cases involving an indigent defendant's claim of
right to a free transcript, this Court has identified two
factors that are relevant to the determination of need: (1)
the value of the transcript to the defendant in connection
[12] with the appeal or trial for which it is sought, and
(2) the availability of alternative devices that would fulfill
the same functions as a transcript. Mr. Justice Douglas
— A-12 —
suggesis thai the North Carolina courts refused to order a
transcript in this case both because petitioner failed to
make a particularized showing of need, and because there
were adequate alternative devices available to him.
“We agree with the dissenters that there would be serious
doubts about the decision below if it rested on petitioner's
failure to specify how the transcript might have been use-
ful to him. Our cases have consistently recognized the
value to a defendant of a transcript of prior proceedings,
without requiring a showing of need tailored to the facts
of the particular case. As Mr. Justice Douglas makes clear,
even in the absence of specific allegations it can ordinarily
be assumed that a transcript of a prior mistrial would be
valuable to the defendant in at least two ways: as a dis-
covery device in preparation for trial, and as a tool at
the trial itself for the impeachment of prosecution wit-
nesses.”
So, it is no longer open to question that an indigent defendant
is entitled as of right to a transcript of so much of a prior hear-
ing or proceeding involving him as will provide him with the
same basic tools of adequate defense as are available for a price
to non-indigent criminal defendants, unless he has available an
alternative substantially equivalent to a transcript. In the case
before us there is no suggestion that any such alternative was
available to these defendants.
“A defendant who claims the right to a free transcript does
not, under our cases, bear the burden of proving inadequate
such alternatives as may be suggested by the State or conjured
up by a court in hindsight.” Britt v. North Carolina, supra.
The burden is on the State to show that only a portion of the
transcript or an alternative will suffice. Mayer v. City of Chi-
cago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971).
Nor is it permissible to make any distinction between felonies
or misdemeanors. Mayer v. City of Chicago, supra.
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— A-13 —
Applying the long established constitutional principles so
succinctly summarized in Britt, supra, and in the other cases
{13] referred to, the ineludible conclusion is that these defend-
ants were also altogether within their constitutional rights in
requesting a copy of the transcript of the prior separate trial
of their co-defendants, or at least the portion thereof containing
the testimony of 10 prosecution witnesses who testified both in
that case and in this one.
Without the transcript of the hearing to suppress their con-
fessions, and without at least the portion of the transcript of the
prior trial of their co-defendants just indicated, reason compels
the conclusior. that these defendants were deprived at their trial
of the best possible mzans of testing the credibility of the key
prosecution witnesses by cross-cxamination to expose any con-
tradictions or irreconcilable inconsistencies in their former testi-
mony. Unarguably, denying them those transcripts prejudicially
deprived them of a universally recognized powerful weapon of
defense. That was a plain and palpable violation of their Four-
teenth Amendment rights of due process and equal protection
of the laws and was reversible error.
We find no merit in the defendants’ complaint about the ac-
tion of the trial judge in overruiing their motions to suppress
and exclude their pre-trial confessions. The trial court's deter-
mination with reference to compliance with the Miranda man-
date by interrogating officers, and as to the voluntariness of
statements made by the accused during custodial interrogation,
is conclusive on appeal unless the appellate court finds that
the evidence touching those questions preponderates against the
trial judge’s findings. Lloyd v. State, supra. Upon appeal the
defendant has the burden of showing that the evidence pre-
ponderated against such [14] a finding by the trial judge. Wooten
v. State 203 Tenn. 473, 314 S.W.2d 1; Mitchell v. State, 3 Tenn.
Crim.App. 494, 464 S.W.2d 307.
—s
Each of the defendants assigns error directed to the action
of the trial court in overruling their motions for a change of
venue. Those motions were predicated upon allegedly preju-
dicial pre-trial publicity given by news media to the crime and
the prior separate trial of the other co-defendants, resulting in
widespread public attention and excitement. At the outset,
the defendants confront an insurmountable obstacle. We have
here an almost exact repetition of what occurred in the same
court in Francis v. State, ... Tenn.Crim.App. .. ., 498 S.W.2d
107. In the case at hand, the trial court entered two orders
regarding the motions for change of venue. The first, combining
action on Mitchum’s motions for change of venue and for a
transcript of the hearing to suppress any extra-judicial state-
ments and for a transcript of the prior trial of the co-defendants,
said:
“This cause came on to be heard heretofore on the defend-
ant’s motion for a change of venue and to be furnished a
transcript ©f the hearing on his motion to suppress any
statem . he made and to be furnished a copy of the tran-
script of the trial of his codefendants;,
“After hearing the proof in the cause and considering the
affidavits and exhibits filed, the Court overruled the motion,
from which defendant excepts.
“This 6th day of March, 1973.”
The second order relating to various motions of both defend-
ants, including change of venue, recited in pertinent part:
“The Motion for Change of Venue is hereby overruled.
Nowhere does the proof, upon the hearing for a Change of
Venue, or in the prior trial of this matter, suggest that
these defendants cannot receive [sic] a fair trial in this
cause.”
[15] The purported copies of newspaper articles and affidavits
filed with the motions are brought to this Court as part of
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— A-15 —
the technical record only and are not included in the Bill of
Exceptions, nor does it include any evidence heard on the
venue motions.
In Francis v. State, supra, this Court said:
“Although it thus appears that a hearing was conducted
on this motion and that the court heard the defendant,
there is no transcript of that hearing in this record. Nor
are the copies of newspaper articles included in the Bill
of Exceptions and cannot be considered on appeal. Driscoll
v. State, 191 Tenn. 186, 232 S.W.2d 28; Baldwin v.
State, 204 Tenn. 639, 325 S.W.2d 244; Chico v. State,
217 Tenn. 19, 394 S.W.2d 648. The evidence upon which
the trial court based his action is presumed to have been
sufficient in the absence of a Bill of Exceptions. Clark v.
State, 214 Tenn. 555, 381 S.W.2d 898. In the absence of
such a record this court cannot say that the trial judge
acted arbitrarily and abused his discretion to the prejudice
of the defendant by overruling the motion for a change of
venue. That is the test. Absent a clear showing of such
abuse, this Court cannot reverse the action of the trial
judge. Wheeler v. State, 220 Tenn. 155, 415 S.W.2d 121;
Swain v. State, 219 Tenn. 145, 407 S.W.2d 452; Wilson
v. State, 2 Tenn.Crim.App. 138, 452 S.W.2d 355; TCA
§ 40-2201.”
It is rudimentary that a reviewing court is bound by the trial
record and is not permitted to consider matters which are not
included therein. Schweizer v. State, 217 Tenn. 569, 399 S.W.
2d 743; Roberts v. State, 212 Tenn. 25, 367 S.W.2d 480; Hardin
v. State, 210 Tenn. 116, 355 S.W.2d 105; Nance v. State, 210
Tenn. 328, 358 S.W.2d 327; O’Brien v. State, 193 Tenn. 361,
246 S.W.2d 45; Turner v. State, 187 Tenn. 309, 213 S.W.2d
281; Sullins v. State, 1 Tenn.Crim.App. 630, 448 S.W.2d 96.
Nor is there any merit in the defendants’ Assignments com-
plaining of the trial judge’s action in denying their motions for
— A-16—
separate trials. In the first place, neither of these defendants
supported his motion for a severance by an affidavit. [16]
Mitchell v. State, 92 Tenn. 668, 23 S.W. 68; Hoskins v. State,
— Tenn.Crim.App. —, 489 S.W.2d 544.
It is elementary that a motion for a severance is addressed
to the sound discretion of the trial court, and that he will not be
put in error for failure to grant a severance unless it can be
shown that the accused was clearly prejudiced thereby. Hoskins
v. State, supra. The test for determining whether one charged
with a joint crime is entitled to a severance is whether he would
be unfairly prejudiced in his defense by being put to a joint
trial. Hoskins v. State, supra. The defendants have failed to
demonstrate here that their defense was prejudicially limited or
otherwise frustrated by being tried jointly.
Likewise untenable is the insistence of the defendants that
the trial court erroneously overruled a mistrial motion when
Detective Neeley testified that in Mitchum’s oral confession he
implicated Elliott. They argue that this was reversible error
because it violated the rule of Bruton v. United States, 391
U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 proscribing admis-
sion of a non-testifying co-defendant’s confession incriminating
the defendant. As indicated, although neither of these defend-
ants testified during the trial, each of them made an oral cus-
todia! confession which the trial court justifiably found to be in
all respects voluntary and unexceptionable. The Bruton rule
has no application where, as in the case before us, both of the
jointly-tried co-defendants confessed. O'Neil v. State, 2 Tenn.
Crim.App. 518, 455 S.W.2d 597; Briggs v. State, — Tenn.
Crim.App. —, 501 S.W.2d 831.
[17] Moreover, even a violation of the Bruton principle, based
upon the Confrontation Clause of the Sixth Amendment, will
be considered harmless error if the competent evidence of the
accused’s guilt was overwhelming. Harrington v. California,
395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284.
~ Pa a eer ee ae See Te a
— po
Also groundless are the defendants’ Assignments complain-
ing about admission in evidence of the items found by the of-
ficers in the crawl space under the house where they were found
and arrested shortly after the robbery and murder. They base
this protest upon the proposition that the officers did not have
a search warrant. As noted. the police had been tipped off that
the Oakdale Superette was going to be robbed and had been
furnished the names of some of the people who were planning
to commit this robbery and the descriptions of the cars which
would be used. As soon as the murder was reported, the police
broadcasted an all-points bulletin containing the description of
the automobiles. As a result, a short time thereafter one of the
cars was found parke. at the trailer home of William Johnson
(one of the five co-defendants) and tracks in the dew-covered
grass led directly to the opening of the crawl space under the
next-door home of Willie Massengill, where these defendants
and one of the others were found hiding. As soon as they were
arrested, the officers searched the area under the house and
found the above-described items which belonged to the deceased.
Thus, this record fully supports the statement made in EI-
liott’s brief: “To be sure, no personal or proprietary interest of
any of the defendants in the particular house in question has
been shown.” So, conceding that they had no interest what-
ever in the home of Massengill, a disinterested third party who
had neither invited the defendants to hide [18] under his floor
nor given them permission to do so, they had no right to tres-
pass upon his property and seek sanctuary by hiding under his
house, and they have no standing to question the validity of the
search of that area.
Anyone legitimately on premises, even though not claiming
ownership thereof or any interest therein, has standing to raise
a question as to the legality of a search of the premises and
seizure of evidence therefrom. Lanier v. State, 219 Tenn. 417,
410 S.W.2d 411; Jones v. United States, 362 U.S. 257, 80
— A-18 —
S.Ct. 725, 4 L.Ed.2d 697. In Lanier, the Court quoted with
approval the following from Jones v. United States, supra:
. . No just interest of the Government in the effective
and rigorous enforcement of the criminal law will be
hampered by recognizing that anyone legitimately on prem-
ises where a search occurs may challenge its legality by
way of a motion to suppress, when its fruits are proposed
to be used against him. This would of course not avail
those who, by virtue of their wrongful presence, cannot in-
voke the privacy of the premises searched. As petitioner’s
testimony established Evans’ consent to his presence in the
apartment, he was entitled to have the merits of his motion
to suppress adjudicated.” (Emphasis supplied )
See also: Simmons v. United States, 390 U.S. 377, 88 S.Ct.
967, 19 L.-Ed.2d 1247.
Neither of these defendants has at any time questioned the
legality of their arrest. As intruding trespassers upon the Mas-
sengill premises, Obviously their presence there was illegitimate
and they were not entitled to challenge the legality of the search
and the use of its fruits against them.
Mitchum seyvarately assigns as error that the trial court over-
ruled his mot. a to quash the indictment as to him for the rea-
son that Negroes were systematically excluded from the Grand
Jury which indicted him. In Francis v. State, supra, [19] the
defendant undertook to raise the same question in the same
way. There, as here, the motion to quash did not urge any
defect appearing on the face of the indictment: no such defect
appeared in that case and there is none in the present indictment.
We reviewed the law on that subject in Francis, and have done so
in many other cases. See: State v. Smith, 1 Tenn.Crim.App.
163, 432 S.W.2d 501; McGee v. State, 2 Tenn.Crim.App. 100.
451 S.W. 2d 709; Yearwood v. State, 2 Tenn.Crim.App. 552,
455 S.W.2d 612; Shadden v. State, — Tenn.Crim.App. —,
488 S.W.2d 54. In Francis v. State, supra, we said:
— A-19 —
“. .. The settled law of this State is that a motion to quash
an indictment lies only where it is defective or invalid upon
its face. State v. Smith, 1 Tenn.Cr.App. 163, 432 S.W.
2d 501; Yearwood v. State, 2 Tenn.Cr.App. 552, 455
S.W.2d 612.
“In Raine v. State, 143 Tenn. 168, 186, 226 S.W. 189,
195, the Court succinctly stated the rule of law applicable
to motions ty quash an indictment or presentment:
‘Of course, on a motion to quash an indictment, the
infirmity relied on must appear on the face of the
indictment, and extraneous evidence cannot be re-
sorted to for the purpose of establishing such in-
firmity.’
“In State v. Davis, 204 Tenn. 553, 322 S.W.2d 232, the
Court said:
‘. .. A motion to quash an indictment goes soieiy to
the proposition as to whether the indictment is regular
upon its face.
7 * * x * 16 *
‘Motion to quash an indictment will not be sustained
unless it is defective or invalid upon its face. Wireman
v. State, 146 Tenn. 676, 244 S.W. 488; Price v. State,
199 Tenn. 345, 287 S.W.2d 14.’
“The Court reiterated this rule in Smith v. State, 207 Tenn.
219, 338 S.W.2d 610:
‘This assignment must be overruled for at least one
reason and that is a motion to quash will not lie, unless
the indictment is defective on its face. State v. Davis,
204 Tenn. 553, 322 S.W.2d 232’.”
{20} The trial judge committed no error in overruling Mitchum’s
motion to quash the indictment.
— A-20 —
Defendant Mitchum claims the court erred in admitting evi-
dence of his identification at a police line-up, insisting that his
rights were not explained to him and he was deprived of counsel.
The record does not support him. The preponderance of the
evidence heard upon that question by the trial court plainly
establishes the contrary, and shows that the line-up was properly
conducted in all respects.
Moreover, the line-up, two of them in fact, were conducted
before the defendants were indicted. Thus, the requirements of
Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d
1178, and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926,
18 L.Ed.2d 1149, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct.
1967, 18 L.Ed.2d 1199, were inapplicable to the line-ups in
the present case. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877,
32 L.Ed.2d 411; Bracken v. State, — Tenn.Crim.App. —,
489 §.W.2d 261; Russell v. State, — Tenn.Crim.App. —, 489
S.W.2d 535; Maxwell v. State, — Tenn.Crim.App. —, 501
S.W.2d 577.
After carefully considering each of the other Assignments
of Error, we find that they are unmeritorious.
The judgment of the trial court is revrsed and this case is
remanded thereto for a new trial.
/s/ W. WAYNE OLIVER
W. WAYNE OLIVER
Judge
— A-21 —
In the Court of Criminal Appeals of Tennessee
Knoxville, November Session, 1973
Otis Elliott and Jerry Wayne Mitchum, »
Plaintiffs in Error,
No. 73.
| Bradley County.
State of Tennessee, |
Defendant in Error. |
CONCURRING OPINION
(Filed May 22, 1974)
I concur in the result reached by my brother Oliver in this
case, however, I am not in accord with his view that these de-
fendants are entitled to a transcript of an entirely different trial
of co-defendants, although involving the same offense. It can-
not be argued that these defendants are entitled to a fair and
impartial trial. However, to say that this includes a transcript
of a separate trial of their co-defendants even though containing
the testimony of prosecution witnesses who testified in both
cases, goes beyond the scope of any decision of the appellate
courts of this State, or the United States Supreme Court, of
which I have knowledge.
I am of the opinion that, under the decisions of the United
States Supreme Court, these defendants are entitled to a tran-
script of their suppression hearing under the facts of this case.
I concur in the result.
/s/ CHARLES H. O’BRIEN
CHARLES H. O’BRIEN
Judge
— A-22 —
In the Court of Criminal Appeals of Tennessee
Otis Elliott and
Jerry Wayne Mitchum
v.
State of Tennessee
DISSENTING OPINION
(Filed May 22, 1974)
The majority reverses these convictions because of the denial
pre-trial of a transcript of a pre-trial suppression of evidence
(confessions) hearing. I respectfully dissent.
We have before us the transcript .. chat hearing. It was fur-
nished by the Court for purposes of this appeal. It was denied
only as a trial tool, and I think rightly so. The issue upon the
suppression hearing was the voluntariness of the confessions, an
evidence admissibility question. Once that evidence was heard
the fact issue was decided by the trial judge and foreclosed.
Whether or not confessions were freely and voluntarily given,
while admissible again later on the issue of weight to be given
the confessions, was not an issue to be fully litigated again. We
are not dealing with a proceeding such as a preliminary hearing,
which is totally separate and inherently requires duplication upon
the later trial. A suppression hearing is really a part of the trial
itself, and often the issue is not heard and determined until the
regular trial is underway and the question reached in due course.
In reviewing the transcript of the suppression hearing, and the
record of the balance of the trial, nothing appears that would
have been beneficial in transcript form during the balance of the
trial. Counsel and defendants were aware of the testimony upon
the suppression hearing. No prejudice has been suggested or ap-
— A-23 —
[2] pears. To hold that a transcript of what amounts to the open-
ing round of a trial must be furnished instanter is but a step
short of requiring a daily transcript of the trial proceedings.
I do not read the U.S. Supreme Court cases as requiring this.
Roberts v. LaVailee, 389 U.S. 40, 19 L.Ed.2d 41, 88 S.Ct. 194,
simply holds that in a State (New York) where State court re-
porters are present at all preliminary hearings, and make tran-
scripts of same available to all who will pay a set statutory fee
for them, it is a denial of equal protection not to furnish an in-
digent with such a transcript. (I cannot agree that Roberts v.
LaVallee “requires that criminal preliminary hearing proceedings
be recorded and that a free transcript thereof be made availablé
to an indigent defendant for use at trial”, a holding that would
require our State to hire more than a hundred additional court
reporters; but, rather, the case simply holds that where such
provisions have been made the fruits thereof cannot be denied
one because of his indigency. )
Britt v. North Carolina, 404 U.S. 226, 30 L.Ed.2d 400, 92
S. Ct. 431, held that although a state must as a matter of equay
protection, provide an indigent defendant in a criminal prosecu-
tion with a transcript of prior proceedings when the transcript is
needed for an effective defense, such a rule is not violated by a
state’s refusal to furnish a free transcript of a prior mistrial to an
indigent defendant who sought the transcript to prepare for his
second trial, which occurred a month later and resulted in a
conviction for murder, where (1) both trials were before the
same judge, with the same counsel and the same court reporter,
(2) the trials took place in a small town where, according to the
defendant’s counsel, the court reporter was a good friend of all
the local lawyers, and (3) the reporter would at any time have
read back to counsel his notes of the mistrial, well in advance of
the [3] second trial, if counse! had made an informal request.
(The defendant thus having available an informal alternative
substantially equivalent to a transcript.) To determine if such a
transcript is needed for an effective defense or appeal, the U.S.
—_ <a
Supreme Court said that we should consider (1) the value of the
transcript to the defendant in connection with the appeal or
trial for which it is sought, and (2) the availability of alternative
devices that would fulfill the same functions as a transcript. It
is clear that need is the key factor.
In my opinion the holding of the majority that these convic-
tions must be reversed because of the denial of a transcript of
an evidence suppression hearing goes beyond anything that the
U.S. Supreme Court has held, Britt is little more than two years
old, and it significantly qualifies the right. I believe that the tran-
script in this appeal demonstrates that a pre-trial copy of the
transcript of the suppression hearing furnished to the lawyers and
parties who were there and participated would have been of no
discernable value to the defense in the subsequent litigation of
the much broader question of guilt.
Judge Oliver would also hold that a transcript of a prior
trial of others accused of the same crime should have been fur-
nished. I agree with Judge O’Brien that this would go beyond
anything yet decreed by the U.S. Supreme Court and/or our
Supreme Court. While one might conceive of a case wherein
such a transcript might be clearly helpful to a defense and thus
required under Britt, that is not this case. One might conceive
of some possible benefit from having a transcript of any like case
presided over by the same judge, or prosecuted by the same
lawyer; but for the rule requiring a furnishing to attach, it
seems to me that a close connection not only between the cases
but also of the evidence in the two cases should be made to ap-
pear. Two people could be convicted [4] of the same crime on
totally different testimony. It is reasonable to require a defendant
to specify what in a prior proceeding he requires and why it
might be useful to his defense. I find no specification of variance
between witness testimony upon the trial of others and testi-
mony in the instant case. It seems to me to be reaching to hold
that it was reversible error to deny the requested transcripts in
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— A-25 —
the context of this prosecution. The rule involved here must
necessarily be applied on a case basis, and perhaps a situation
could arise that would mandate a furnishing of a transcript of a
suppression hearing and/or the prior trial of another; but I can
detect no real need in this case, even with the benefit of hind-
sight.
I also dissent from the holding that the Bruton rule has no
application simply because both defendants confessed. In the
instant case the defendants separately confessed, directly and
indirectly implicating the other; and these confessions were in-
troduced‘ without even a limiting instruction. I believe this to
be a Bruton violation. The stories were not the same, and were
given at different times out of the presence of the other. I would
hold that this was error; but in the face of the overwhelming evi-
dence of guilt against each man, I could hold the error to be
harmless beyond a reasonable doubt. The related question of
severance denial should be given careful reconsideration by the
trial court should the charges be retried, as it is very difficult to
legally use confessions of a non-testifying co-defendant upon a
joint trial and it is established that neither of these men will
likely testify. In my opinion it is not enough to simply say that
Bruton has no application where both defendants confess.
I would add two things. First, I fail to discern the error in
the Court’s minutes. The convictions were for first degree mur-
der. T.C.A. § 39-2402. Secondly, I would call attention to a
[5] question not raised, but said by our Supreme Court in a
recent Per Curiam opinion to be viable and calling for recon-
sideration by that Court, namely, whether flat (determinate)
sentences as pronounced here are permissible in what were
formerly capital cases, or should such sentences be indeterminate.
See Thurman Clay Barrett v. State, filed by our Supreme Court
in Knoxville on February 19, 1974.
/s/ WILLIAM S. RUSSELL
Judge
— A-26 —
APPENDIX B
In the United States District Court for the
Eastern District of Tennessee
Southern Division
Otis Elliott )
” . Civil 1-75-227
Robert Morford, Acting Warden, Ten-
nessee State Prison.
OPINION
(Filed April 19, 1976)
This is a habeas corpus proceeding filed pursuant to 28
U.S.C. § 2241 in which the petitioner seeks to have his convic-
tion and sentence set aside in the criminal case entitled “State of
Tennessee v. Otis Elliott,” Docket No. 73 in the Criminal Court
for Bradley County, Tennessee, wherein the petitioner was con-
victed upon March 21, 1973, of the crime of a felony murder
and sentenced to 99 years imprisonment. Having alieged an
exhaustion of his state court remedies, the petitioner seeks fed-
eral habeas corpus relief upon the following alleged grounds
for such relief:
1. That his fourth, fifth and sixth amendment rights to the
United States Constitution, as secured through the fourteenth
amendment, were violated by a denial of assistance of counsel
during custodial interrogation, by securing a coerced confes-
sion, and by the admission into evidence of the alleged involun-
tary confession.
it bine a ee
—
2. That the trial court refused to supply the petitioner with
a transcript of the hearing of a pretrial motion to suppress the
confession.
3. That petitioner’s conviction was obtained in violation of
the fourteenth and fourth amendnients to the United States
Constitution in that certain unspecified evidence which was the
product of illegal search and seizure were introduced against
him in trial.
*[2] 4. That the petitioner was denied compulsory process to
obtain the attendance of witnesses.
5. That the confession of a codefendant was introduced into
evidence and said confession made mention of the petitioner
in an incriminating fashion, and was therefore incompetent.
6. That the trial court made repeated prejudicial remarks
during the trial.
7. That certain instructions of the trial court as to the nature
and possible penalties for the crime involved were refused.
8. That the trial court erroneously failed to grant a change
of venue, and
9. That the trial court allowed conclusions of certain lay-
men in lieu of expert testimony.
It is not clear that all of the foregoing grounds were pre-
sented upon appeal of the petitioner’s state court conviction.
Having reviewed the opinions of both the Court of Criminal
Appeals and the Supreme Court of Tennessee, it is not clear
that all of the grounds raised in the instant petition were raised
upon appeal. If the petitioner has not raised a particular ground
upon direct appeal, then the petitioner has not exhausted avail-
* Numbers appearing in brackets in text indicate original page
numbers of this opinion.
— A-28 —
able state court post conviction relief remedies; prior to con-
sideration of any such grounds by this Court, the petitioner
would be required to exhaust all available state court remedies
as to each particular ground.
With regard to the first ground enumerated above, it is clear
that this ground was raised upon direct appeal. The petitioner
contends that statements in the nature of a confession elicited
from him by officers subsequent to his arrest resulted from a
denial of assistance of counsel, resulted from brutality and
physical coercion, resulted from a denial of medical attention,
resulted from mental coercion, threats and brutality, resulted
from an illegal arrest and detention in the Bradley County Jail,
and were otherwise not freely and voluntarily given. A motion
to suppress the petitioner’s confession was filed and two sepa-
rate hearings were had in connection with the motion to suppress,
[3] one such hearing being on October 24, 1972 (BE 2-35), and
the second such hearing being on November 8, 1972 (BE 36-
185). It appears that the testimony given at the hearings upon
the motion to suppress are adequately summarized in the pub-
lished opinion of the Court of Criminal Appeals which has
been filed in this case, in the published opinion of the Tennes-
see Supreme Court in the case of State v. Elliott, — Tenn. —,
524 S.W.2d 473 (1975), and in the answer filed by the respond-
ent in this case. Having reviewed the full record as it pertains
to the admissibility of the petitioner’s statement, it is the opinion
of the Court that the state trial judge conducted a full eviden-
tiary hearing upon the petitioner’s motion to suppress the in-
troduction of the statement and determined that the statement
had not been taken in violation of the petitioner’s constitutional
rights. This ruling was affirmed by both the Court of Criminal
Appeals and the Tennessee Supreme Court. Under these cir-
cumstances, such determination is presumed to be correct under
28 U.S.C. § 2254(d), and the Court is of the opinion that an
evidentiary hearing on this issue is unnecessary. See Townsend
adh — ee ee
_ Peet ae -_
— A-29 —
v. Sain, 372 U.S. 293, 313, 9 L. Ed.2d 770, 786, 83 Sup. Ct.
745 (1963).
Tried with the petitioner was Jerry Wayne Mitchum, alias
Jerry Wayne Alexander. Also codefendants but tried sepa-
rately were William Johnson, Arnold Robarr, James W. Sharp
and James Douglas Cline. The latter defendants were tried
prior to the trial of the petitioner and the defendant Mitchum
(BE 185).
The petitioner sought to have a transcript available at his
trial of the two pretrial hearings upon his motion to suppress
the confession and the transcript of the trial of the codefend-
ants. Both requests were denied by the trial court (TR 81).
See also BE 189. The Court of Criminal Appeals in an opinion
by Judge W. Wayne Oliver would have reversed the denial
of the transcript of both the pretrial suppression hearings and
the denial of the transcript of the trial of the codefendants.
However, in an concurring opinion Judge Charles H. O’Brien
[4] concurred only in the requirement that the petitioner be
entitled to a transcript of the pretrial suppression hearings. Judge
William S. Russell dissented. Thereafter, the Tennessee Supreme
Court reversed the decision of the Court of Criminal Appeals.
The Tennessee Supreme Court found no authority requiring that
the state make available to an indigent defendant the transcript
of testimony in a third party’s trial of witnesses who are expected
to testify against the indigent defendant. With regard to the
transcript of the preliminary suppression hearings in the peti-
tioner’s case, the Tennessee Supreme Court found that while it
would have been better practice to have furnished the transcript
that in this particular case there was no showing that the tran-
script was an instrument needed to vindicate legal rights of
the accused, and that no prejudicial error was committed in
denying the transcript. The holding of the Tennessee Supreme
Court was based upon an analysis of the record wherein it was
shown that of the four witnesses who testified in the suppression
— A-30 —
hearing at the instance of the state, only one testified in the
defendant's trial, being Detective Wayne Neeley. No inconsist-
encies in Detective Neeley’s testimony were found and the at-
torneys cited none upon appeal. No significant variance in the
testimony is obvious to this Court. While there is no question
but that an indigent defendant has a right to a free transcript
of prior proceedings in the indigent’s own case where the tran-
script is needed to vindicate a legal right [(Britt v. North Caro-
lina, 404 U.S. 226, 227, 92 Sup. Ct. 431, 30 L. Ed.2d 400
(1971); Roberts v. LaValle, 389 U.S. 40, 88 Sup. Ct. 194, 19
L. Ed.2d 41 (1967); Griffin v. Illinois, 351 U.S. 12, 76 Sup.
Ct. 585, 100 L. Ed. 891 (1955)], the Court is of the opinion
that under the circumstances of this particular case the failure
to provide the transcript of the suppression hearings was not a
prejudicial error of constitutional magnitude for the reasons set
out in the opinion of the Tennessee Supreme Court and from
a review of the entire record [5] before this Court.
The third ground advanced by the petitioner is that unspeci-
fied evidence was introduced against him as a result of an
illegal search and seizure. The petitioner was arrested while
hiding underneath the home of an individual known as Willie
Massengill, not charged with any involvement in the case. The
petitioner, together with two other negro men, were hiding in
the crawl space underneath the Massengill home, which was
next door to the home of William Johnson, a defendant in the
case. The police had information that the supermarket in ques-
tion would be robbed and had descriptions of the automobiles
which would be used in the robbery, together with names of
certain individuals. Following the robbery and its discovery,
an all points bulletin was sent out for certain automobiles and
that morning the officers found one of the automobiles parked
at William Johnson’s trailer home in Charleston, Tennessee. No
one was in the car and only Mrs. Johnson was in the Johnson
trailer home. However, fresh tracks in the dew wet grass led
the officers to the next door home of Willie Massengill. Upon
— A-31 —
discovering the three individuals hiding in the crawl space,
arrests were made and the defendants were advised of their
rights. A search of the area under the house produced more
than $2,000 in currency, some of which was bloodstained, three
rings and a wallet containing registration papers belonging to
the deceased, and a check in the amount of $50.00 which the
deceased had cashed for a payee on the night preceding the
robbery-murder. The Court of Criminal Appeals pointed out
that the petitioner claimed no personal or proprietary interest
of any nature in the house where he was discovered and ar-
rested, and the Court of Appeals concluded that the petitioner
had no interest whatsoever in the home of Massengill, a dis-
interested third party who had neither invited the petitioner
and others to hide under his floor nor given them permission
to do so, thus the petitioner and others were trespassing upon
Massengill’s property and were seeking sanctuary by hiding un-
der his house, and [6] therefore had no standing to question
the validity of the search of that area. Jones v. United States,
362 U.S. 257, 80 Sup. Ct. 725, 4 L. Ed.2d 697 (1960).
The fourth ground of the petition is that the petitioner was
denied compulsory process to obtain the testimony of Dr. Jesse
Quillian and Joe Bagwell. A review of the transcript demon-
strates that both Dr. Quillian and Mr. Bagwell were subpoenaed
and Mr. Bagwell was certainly present in Court on more than
one occasion. In any event, a review of BE 189-196 refutes
any error of constitutional magnitude. The only purpose for
producing Dr. Quillian was upon the motion to suppress and the
trial court took judicial notice of the matters about which Dr.
Quillian would testify. The testimony of Mr. Bagwell was also
offered only on the motion to suppress as he was obviously
available for testimony at the trial, and it appears that the
testimony of Mr. Bagwell, an attorney in the case, would have
been merely cumulative. The trial court noted that Mr. Bag-
well had been present at the two hearings upon the motion to
suppress, and had not testified. It is not clear whether or not
— A-32 —
this contention was made upon the direct appeal but in any
event it appears that t}!s ground is without merit from a review
of the record before this Court.
The fifth ground advanced by the petitioner in his petition
is that the confession allegedly taken from the codefendant
on trial with the petitioner was put into evidence, and made
mention of the petitioner in an incriminating manner in viola-
ton of Bruton v. United States, 391 U.S. 123, 88 Sup. Ct. 1620,
20 L.Ed.2d 476 (1968). The Bruton rule prohibits, generally,
the use of one codefendant’s confession to implicate the other,
being violative of the nonconfessing codefendant’s Sixth Amend-
ment right of confrontation. The Court of Criminal Appeals
held that the Bruton rule was inapplicable where both defend-
ants confessed. The Tennessee Supreme Court, however, held
that was an oversimplification of the Bruton rule where the con-
fession of one nontestifying codefendant contradicts, repudiates,
or adds to material statements in the confession of the other non-
testifying codefendant, so as to [7] expose the latter to an in-
creased risk of conviction, or to an increase in the degree of the
offense with correspondingly greater pun‘shment. In that cir-
cumstance, the Tennessee Supreme Court held that the Bruton
rule would be applicable. In this petitioner's case, the Tennessee
Supreme Court held that the admission in evidence of the state-
ments by Mitchum contradict the petitioner’s confession and,
when Mitchum did not testify, was a violation of the Bruton
rule and was in error. The Tennessee Supreme Court went on
to say that“. . . in the light of the overwhelming evidence of
guilt of these defendants, other than the confessions, we find the
error to be harmless beyond a reasonable doubt and not to
justify a reversal of this case.” The Tennessee Supreme Court
relied upon Harrington v. California, 395 U.S. 250, 89 Sup. Ct.
1726, 23 L.Ed.2d 284. A review of the record before this Court
leads the Court to the conclusion that the error was harmless
beyond a reasonable doubt. The evidence showed that the peti-
tioner had confessed to being a par‘icipant in the robbery with
— A-33 —
the only difference being whether or not the petitioner was driv-
ing an escape or get away vehicle at a point away from the
scene of the robbery or conducting that activity at the scene
of the robbery. Further evidence of petitioner's involvement was
his arrest while hiding under the crawl space of the Massengill
home where fruits of the robbery and evidence of the murder
were located.
The next complaint of the petitioner is that the trial court
made repeated prejudicial remarks during the trial, in the pres-
ence of the jury, which strongly indicated that the petitioner
should be found guilty. In the first place, there is no indication
in either the opinion of the Court of Criminal Appeals or the
Tennessee Supreme Court that consideration was given to any
such assignment of error. Thus, this Court cannot consider the
contention with respect to improper remarks of the trial court.
Fay v. Noia, 372 U.S. 391, 83 Sup. Ct. 822, 9 L.Ed.2d 837
(1963). Furthermore, the allegations in this respect are purely
conclusionary in nature with no citation to the record. See
Tucker v. United States, 423 F.2d 655 (6th Cir. 1970).
[8] The seventh ground set forth in the petition contends that
the trial court erred in its instructions to the jury. It does not
appear from the opinion of the Criminal Court of Appeals or
the Tennessee Supreme Court that this issue was considered
upon direct appeal, and it is therefore not properly before this
Court. Furthermore, a review of the Court's instructions at BE
407-424 reveals that no such issue was raised in the trial of the
case. Special requests were submitted to the trial court and
were refused, but these special requests had nothing to do with
the nature of the offense and possible penalties.
The eighth ground of the petition sets forth the failure of the
trial court to grant a change of venue for prejudicial pre-trial
publicity. This issue is discussed in the opinion of the Court
of Criminal Appeals. The Court of Criminal Appeals con-
—~ *
cluded that there was no evidence in the bill of exceptions which
supported or refuted the action of the trial judge in denying a
change of venue for prejudicial publicity. Filed in the technical
record are copies of newspaper articles and affidavits filed with
motions, but there is no evidence in the bill of exceptions. The
general rule is that actual prejudice must be shown in order to
set aside a conviction because of pretrial and trial publicity.
Compare Beck v. Washington, 369 U.S. 541, 82 Sup. Ct. 955,
8 L.Ed.2d 918 (1962); Irvin v. Dowd, 366 U.S. 717, 81 Sup.
Ct. 1639, 6 L.Ed.2d 751 (1961); Sheppard v. Maxwell, 384
U.S. 333, 86 Sup. Ct. 1507, 16 L.Ed.2d 600 (1966); and Estes
v. Texas, 381 U.S. 532, 85 Sup. Ct. 1628, 14 L.Ed.2d 543
(1965). There is absolutely no evidence in this case that the
petitioner did not receive a fair and impartial trial or that any
juror had an opinion so as to be unable to decide the case based
solely on the law and the evidence.
Ground No. 9 set forth in the petition is a reiteration of
Ground No. 4, and pertains to the testimony of Dr. Jesse Quil-
lian. There was further colloquy between the Court and de-
fense counsel pertaining to this witness at BE 399-402. There
is no evidence that this issue was considered upon the direct
appeal. The record indicates that the fact that petitioner was
diabetic, [9] under the treatment of Dr. Jesse Quillian and took
insulin was before the jury (see BE 390-391, for example).
An order will enter dismissing the petition for habeas corpus
as being without merit.
FRANK W. WILSON
United States District Judge
el
— A-35 —
APPENDIX C
No. 76-1834
United States Court of Appeals
For the Sixth Circuit
Otis Elliott,
Petitioner-Appellant, On Appeal from the
v. United States District
- Court, Eastern Dis-
Robert Morford, Acting Warden, trict of Tennessee,
Tennessee State Penitentiary,
| Southern Division.
Respondent-Appellee. | |
Decided and Filed July 6, 1977
Before: Edwards and Peck, Circuit Judges, and Cecil, Senior
Circuit Judge.
Cecil, Senior Circuit Judge. This is an appeal by Otis El-
liott, Petitioner-Appellant, from a denial of his petition for a
writ of habeas corpus in the United States District Court for
the Eastern District of Tennessee, Southern Division.
The appellant and his co-defendant, Jerry Wayne Mitchum,
were jointly indicted with three other co-defendants for the
murder of Cornelius C. McClary in a robbery of his store on
the morning of July 19, 1972. One other co-defendant was
separately indicted for the same offense. On motion, Mitchum
and the appellant were granted separate trials from their four
—_—
co-defendants but not separate from each other. The other
four co-defendants were jointly tried from November 27
through December 1, 1972 and convicted in the Bradley
County (Tenn.) Criminal Court. They received sentences rang-
ing from 26 to 99 years.
[°2] Appellant and his co-defendant were jointly tried on
March 20 and 21, 1973 in the Bradley County Criminal Court
and convicted of murder in the perpetration of a robbery. They
were sentenced to imprisonment for terms of 99 years.
The appellant and his co-defendant, Mitchum, appealed to
the Tennessee Criminal Court of Appeals, where their convic-
tions were reversed on the ground that they were denied a fair
trial. The Supreme Court of Tennessee (524 S.W.2d 473)
granted certiorari and reversed the Criminal Court of Appeals,
reinstating the convictions.
One of the claims of the appellant. Elliott, in the District
Court, is that the admission into evidence of an oral statement
of confession violated his Fifth and Fourteenth Amendments
on the ground that the statement was coerced and involuntary.
Before trial the appe!lant filed a motion for the suppression
of the evidence of this alleged oral confession. The trial judge
conducted a hearing on this motion and, without making any
finding of facts as to the voluntariness of the confession, over-
ruled the motion on the morning of the trial and by implica-
tion denied the appellant’s claim of coercion.
At the hearing on the motion, the appellant testified that he
was taken from the jail at about nine o'clock of the second
night of his incarceration by deputy sheriffs and kept out for
about four hours. The deputies in charge were Wayne Neeley,
* Numbers appearing in brackets in text indicate original page
numbers of this opinion.
— A-37 —
Wilbur Moore and Chief Detective John Dailey. Elliott testi-
fied further that he was weakened from being deprived for
four days of the insulin he was required to take, that he was
driven around for several hours and finally taken to a ceme-
tery. Here his handcuffs were removed and he was asked if he
wanted to escape and where did he want his body sent. He
testified that he was severely beaten, his dental plate broken
and other coercive measures inflicted upon him. He also tes-
tified that a gun was fired within two feet of his head and
told that the next one would be in his head. There was cor-
roborative testimony that there was blood on his white t-shirt,
that his mouth was swollen and his dental plate broken.
[3] After he was taken back to jail, Attorney General Earl
Murphy was called and, in the presence of the above named
officers, he gave the alleged confession. Deputies Wayne Neeley
and Wilbur Moore testified at the hearing on the motion to
suppress and each one specifically denied the alleged acts of
coercion. Attorney General Murphy testified that Elliott had
been given his rights, that he said he wanted to make a state-
ment and that his statement was voluntary.
The statement taken by Attorney General Murphy was taped
and recorded but not signed. Deputy Neeley testified that this
recorded statement was identical to a prior oral statement made
by the appellant in the presence of Deputies Neeley and Moore
and Detective Bailey.
At the trial the judge refused to order the playing of the tape
as the best evidence of the confessions. No other objection
was made to the admission of Deputy Neeley’s testimony with
reference to the confession. He then testified to the alleged
oral confession as follows:
“The statement was that he and another gentleman
were picked up in Chattanooga on the night of the 18th
or approximately midnight. They were picked up in
— A-38 —
Chattanooga and asked if they would like to make some
money and that they had a big deal going. He said that
they did, that they would, and they were brought to Cleve-
land and took to a residence on Inman Street or a place
of business where they changed clothes and prepared
for this. He stated then that they took two vehicles within
the vicinity of where this took place. He remained in
one at a Chevron station just off of Keith Street and waited
on the rest of the defendants. Then they joined him
shortly after this took place and they drove to a place
near I-75, where Peerless Road goes under I-75, where
one car was abandoned and they all joined in another
car and went from there on to William E. Johnson’s resi:
dence in Charleston where Elliott and two other subjects
were placed underneath the residence next door to Johnson
a?
[4] Counsel for appellant cross-examined Deputy Neeley with
reference to the actions of coercion claimed by the appellant
and he denied them as he did at the hearing on the motion to
suppress. He also testified that he had no knowledge that
the appellant showed any evidence of effects from lack of insulin
for his diabetic condition. No other witness who had testified
for the State at the hearing on the motion to suppress testified
at the trial.
Mrs. Mattie Elliott, the mother of the appellant, testified at
the trial to the effect that her son was a diabetic and that he
takes U-40 insulin once a day under the direction of Doctor
Jesse Quillian. She further testified that, when she saw her
son in jail,
“* * * he couldn't open his mouth real good because his
upper top lip was swollen bad and he just upped it a
little bit like that because it was cut across the top and
he just told me, you know, that they had hit him in his
— A-39 —
mouth and broke his plate.” “It was cracked and broke
on the side.”
Mrs. Erma Jewell Elliott, grandmother of the appellant, testi-
fied that there was nothing wrong with the appellant's dental
plate the day before he was arrested.
The trial judge instructed the jury with reference to the con-
fession as follows:
“An admission against interest is a statement of fact
made by a defendant, which tends to show the defendant
is guilty of the crime charged. Evidence of such an ad-
mission has been introduced here against the defendants,
but you should be cautious in receiving the evidence for
this purpose.
“This court has permitted admissions of this evidence
of this type but it remains your duty to decide if in
fact such statement was ever made. If you believe it was
[5] not made, you should not consider it. If you decide the
statements were made, you just judge the truth of the facts
stated. In so determining, consider the circumstances
under which the statement was made. Also consider
whether any of the other evidence before you tends to
contradict the statements in whole or in part. You must
not however arbitrarily disregard any part of the state-
ment, but rather should consider all of the statement you
believe is true.
You are the sole judges of what weight should be given
this admission. You should consider it or ther with all
other evidence in the case in determining the defendant's
guilt or the defendant's innocence.”
We note that the trial judge did not explain to the jury
the issue of a coerced or involuntary confession. This is under-
— A-40 —
standable since there was no direct evidence of the alleged
force and abuse testified to by the appellant on the motion to
suppress. There was no objection to the judge’s instructions and
no proposed instructions submitted to the judge on the issue
of the confession. Under Tennessee Statutes this would not be
a basis upon which to charge error. (T.C.A. 40-2517)
In the opinion of the Court of Criminal Appeals of Tennes-
see, it was stated:
“Upon consideration of all the testimony given at the
suppression hearing, the trial judge was of opinion that
these two defendants knowingly and understandingly and
voluntarily made their respective confessions without any
intimidation or abuse or mistreatment or coercion and
after being fully advised of their rights.”
This statement is not supported by the trial record. While we
must assume that the trial judge concluded that the confes-
sion was voluntary, as we stated above, he made no finding
of facts to that effect.
[6] The court said further that the determination of the trial
court
“* * * with reference to compliance with the Miranda
mandate by interrogating officers and as to the volun-
tariness of statements made by the accused during custo-
dial interrogation, is conclusive on appeal unless the appel-
late court finds that the evidence touching those questions
preponderates against the trial judge's findings. (Citations).
Upon appeal, the defendant has the burden of showing
that the evidence preponderates against such a finding by
the trial judge. (Citations). In this case the evidence fully
sustains the trial court’s findings.”
The court further found that the appellant had failed to carry
his burden of proof.
is
—_—
Although counsel for the appellant included in his motion
for certiorari to the Supreme Court of Tennessee, the issue
of the voluntariness of the confession, the court did not directly
pass on that issue. It referred to the appellant’s motion in the
trial court to suppress and to the conclusion of the trial judge
that he had confessed freely, voluntarily, and with a knowl-
edge of his constitutional rights. We accept this as an exhaus-
tion of State remedies om this issue.
We have given a detailed account of the history of the pro-
cedure in this case in the trial court and through the Appellate
and Supreme Courts in order to bring into focus the decision
of the District Judge in the case before us.
The District Judge said:
“Having reviewed the full record as it pertains to the ad-
missibility of the petitioner’s statement, it is the opinion
of the Court that the state trial judge conducted a full
evidentiary hearing upon the petitioner's motion to sup-
press the introduction of the statement and determined
that the statement had not been taken in violation of the
petitioner’s constitutional rights. This ruling was affirmed
by both the Court of Criminal Appeals and the Tennessee
{7] Supreme Court. Under these circumstances, such de-
termination is presumed to be correct under 28 U.S.C.
§ 2254(d), and the Court is of the opinion that an evi-
dentiary hearing on this issue is unnecessary.”
Upon consideration of the record of the trial of the appellant
in the State court, we conclude that the District Judge's reli-
ance on the presumption provided in 28 U.S.C. Sec. 2254(d) is
misplaced. As we have heretofore stated, the trial judge made
no finding of facts on the issue of voluntariness of the confession
presented by the motion to suppress and he did not resolve the
conflict of testimony presented on the hearing of that motion.
—_.
Sec. 2254(d), Title 28, so far as applicable is as follows:
“In any proceeding instituted in a Federal court by an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court, a
determination after a hearing on the merits of a factual
issue, made by a State court of competent jurisdiction in
a proceeding to which the applicant for the writ and the
State or an officer or agent thereof were parties, evidenced
by a written finding, written opinion, or other reliable
and adequate written indicia, shall be presumed to be
correct, unless the applicant shall establish or it shall
otherwise appear, or the respondent shall admit—
(1) that the merits of the factual dispute were
not resolved in the State court hearing; * * *”
(Emphasis added)
In Townsend v. Sain, 372 U.S. 293 at 316, the Court said,
“This Court has consistently held that state factual determina-
tions not fairly supported by the record cannot be conclusive of
federal rights.” (Citations omitted). See also Jackson v. Denno
378 U.S. 369.
We agree with the District Judge and the Supreme Court
of Tennessee that, while it might have been better for the
[8] trial judge to have allowed the appellant a transcript of
the hearing on the motion to suppress, no prejudice resulted to
the appellant by the failure to do so. Only one witness for the
State who testified on the motion to suppress testified at thc
trial and we have not been shown that there was any con-
flict in his testimony on those two occasions.
The Criminal Court of Appeals reversed the trial court for
not allowing transcripts of the hearing on the motion to su-
press and of the separate trial of co-defendants on the ground
that the appellant was denied a fair trial. The Supreme Court
—~
reversed. We agree with the District Court and the Supreme
Court that there is no authority requiring the State to make
available to an indigent defendant a transcript of the testimony
of a third party’s trial.
There is no merit to the appellant's claim that his Consti-
tutional rights were violated by the admission into evidence of
the fruits of a warrantless search of the basement crawl space
where he was arrested. The appellant had no proprietary in-
terest in this property and had no standing to object to the
search.
There is no merit to the appellant’s claim that his Constitu-
tional rights were violated by the denial of a continuance
to permit the attendance of a witness who failed to appear.
This refers to Dr. Jesse Quillian who was the appellant's phy-
sician and the one who prescribed insulin for him. This is
pertinent to the issue of the voluntariness of the confession and
can be considered on a hearing of that issue which will be
ordered herein.
Another claim made on behalf of the appellant is that his
Constitutional rights were violated by prejudicial remarks made
by the trial judge during trial. The District Judge did not
directly pass on this issue, claiming that appellant had not
exhausted his State remedies. Counsel for appellant did pre-
sent the question in his petition for certiorari by the Supreme
Court did not discuss it. We hold that counsel has done all
he could to exhaust State remedies. We note that this is an
[9] appeal in a habeas corpus proceeding and not a direct appeal
from a criminal trial.
Of the alleged improper remarks made by the trial judge
as set forth in the appellant’s brief only two made reference
outside the record, viz., “Sir, I have heard this proof has been
before this court before. Now, * * *” and “This matter has been
—_)
before the court. I will put it that way. * * *” The other re-
marks were discussions before the jury pertaining to the trial
in progress. We do not consider that these remarks would
rise to Constitutional proportions amounting to an unfair
trial.
We find no merit to the claim that appellant’s Constitutional
rights were violated by the trial judge taking judicial notice
of certain facts concerning the requirement of the appellant
to take insulin. The denial of insulin to the appellant for four
days prior to the time that he made his alleged confession is
charged as part of the compulsion that led to the incriminatory
statements made by the appellant. This can be considered
further by the District Judge when he conducts a hearing on
the voluntariness of the confession.
Having concluded that there must be a remand to the
District Judge to conduct a hearing on the issue of the volun.
tariness of the confession, we do not reach the issue of the
alleged violation of the Bruton Rule (391 U.S. 123).
We reverse and remand the case with instructions to the
District Judge to conduct a hearing on the issue of whether
the alleged confession was voluntary.
‘a
—~
APPENDIX D
In the Criminal Court for Bradley County, Tennessee
State of Tennessee
VS.
Jerry Wayne Mitchum, alias Jerry ; Case No. 5684
Wayne Alexander,
Otis Elliott, alias Otis Ellis
BILL OF EXCEPTIONS
Volume One
Filed this 7 day of August, 1973
JOE TALLEY, Clerk
Cleveland, Tennessee
In the Criminal Court for Bradley County, Tennessee
State of Tennessee
Vs.
Jerry Wayne Mitchum, alias Jerry ( ©#S¢ No. 5684
Wayne Alexander, and
Otis Elliott, alias Otis Ellis
INDEX
Page
WITNESS
Motion to Suppress (October 24, 1972)
Roy Townsend:
Direct examination by Mr. Colloms 2-7
Cross-examination by General Fisher 7-8
— A-46 --
Redirect examination by Mr. Colloms
Recross-,examination by General Fisher
Lila Mitchum:
Direct examination by Mr. Colloms
Fredia Mitchum:
Direct examination by Mr. Colloms
Cross-examination by Mr. Fisher
Gloria Smith:
Direct examination by Mr. Colloms
Cross-examination by General Fisher
WITNESS
Motion to Suppress (November 8, 1972)
Jerry Wayne Mitchum:
Direct examination by Mr. Colloms
Cross-examination by General Fisher
Redirect examination by Mr. Colloms
Mattie Elliott:
Direct examination by Mr. Derryberry
Cross-examination by Genera’ Fisher
Erma Elliott:
Direct examination by Mr. Derryberry
Cross-examination by General Fisher
Otis Elhott:
Direct examination by Mr. Derryberry
Cross-examination by General Fisher
Wayne Neeley:
Direct examination by General Fisher
Cross-examination by Mr. Derryberry
Wilbur Moore:
Direct examination by General Fisher
Cross-examination by Mr. Derryberry
8-9
9-10
11-16
16-23
23-26
26-30
30-35
36-51
51-54
54-56
57-62
63-66
67-68
68-69
75-94
94-121
121-129
129-149
149-154
154-174
ve
ws
af
—.
Earle Murphy:
Direct examination by Genera] Fisher 175-179
Cross-examination by Mr. Derryberry 179-181
Bill Gibson:
Direct examination by General Fisher 181-185
Motions (March 20, 1973) 186-196
In the Criminal Court for Bradley County, Tennessee
State of Tennessee )
vs.
Jerry W yne Mitchum, alias Jerry ¢ ©#S¢ No. 9684
Wayne Alexander, and
Otis Elliott, alias Otis Ellis
Appearances:
For the State:
Attorney General Richard Fisher
Assistant Attorney General Eugene Worthington
Special Prosecutor Earle Murphy
For the Defendant Jerry Wayne Mitchum:
Mr. Carl E. Colloms
For the Defendant Otis Elliott:
Mr. James G. Cate
Mr. George M. Derryberry
Bill of Exceptions
{*2] Be It Remembered the above styled cause came on for
hearing on a motion to suppress on this October the 24th,
* Numbers appearing in brackets in text indicate page numbers
of original stenographic transcript of testimony.
—_.
1972, before the Honorable James C. Witt, Judge of the Crim-
inal Court, whereupon the following proceedings were had,
to-wit:
The Court: Now, Mr. Colloms, do you have the case num-
ber on this?
Mr. Colloms: This is Case number 5684.
The Court: Okay. This is a case from Bradley County on a
motion to suppress by two of the defendants who have allegedly
made an admission of guilt. Now, he wanted to use this man as
a witness and I thought we might go ahead with this part of it.
Is that okay?
General Fisher: Yes, Your Honor.
The Court: All right. Go ahead, Mr. Colloms.
* * * * * ” *
MR. ROY MULL TOWNSEND,
a witness for the defendants, was called and being duly sworn,
was examined and testified as follows on
Direct Examination
By Mr. Colloms:
Q. State your name, please. [3] A. Roy Mull Townsend.
Q. Mr. Townsend, are you a resident of Bradley County? A.
Yes, sir.
Q. Back in July of this last year were you in the Bradley
County jail? A. Yes, sir.
Q. As an inmate there. Is that correct? A. Correct.
Q. Do you know the defendant Jerry Wayne Mitchum or
A. I just know him by his name Slim.
Q. And what about Mr. Elliott, Otis Elliott? A. I just know
him by Slim.
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Q. Which one do you know? Do you know one named Slim?
A. I know all of them by their face but I don’t really know
their face.
Q. Where were you in jail in relation to these two defend-
ants in particular? A. The third cell up.
Q. The third cell up from theirs. A. The third cell up from
one of them and one of them the next cell each side.
Q. One of them was the next cell to you. Were [4] you
there when they were initially brought into the jail, the first
time they were brought in? A. Yeah.
Q. And how long did these individuals remain in the jail
before they were taken out at any time? A. Well, I couldn't
exactly say on that to tell the truth.
Q. Do you know what time of the day it was that they were
brought in the first time? A. No, sir.
Q. Was it before noon or after noon? A. I think it was before
noon.
Q. | will ask you if that first day if they were taken out at
any time that you can recall, taken out of the cell? A. The first
day.
Q. The first day or the first night. A. I think they were.
Q. Each one of them or just one of them or who? A. Each
one of them.
Q. And were they taken out individually? A. Individually.
Q. And then brought back and then they would take another
one out. A. They took that other one out that night.
[5] Q. Who did they take out that night? A. The one they
call Slim.
They took him out that night. What time did they take
him out? A. I would say about nine or ten-thirty.
—*
Q. Do you know who in particular took him out? A. No,
I don't
Q. What officer? A. No.
Q. About nine at night you say they took him out? A. Nine
or nine-thirty or something like that.
Q. Did they bring him back that night? A. I don’t know
whether they brought him back or not. I didn’t see them.
Q. You didn’t see him brought back all night. How was he
dressed when he went out? A. All I could see was his legs, the
one they call Slim.
Q. Did he have on any shoes as far as you know? A. As
far as I know he did.
Q. Did they bring him back the next day? A. I couldn't
say.
Q. Do you know a deputy or former deputy Lee Moore?
A. I know Lee Moore.
Q. Was he there at the jail acting as a trusty? [6] A. He
was there acting as a trusty, that’s right.
Q. During this time. A. Yes.
Q. And was it common knowledge around the jail that he
was serving time for having shot a colored guy there in the
jail? A. That's right.
Q. And did these boys come back and were placed back in
the cells the next day? A. I couldn't say. I think they put
the one they call Slim downstairs.
Q. So you don’t know how long he stayed gone? A. No,
Sir.
Q. Or how long the officers kept him out or what they did
with him while he was out. A. I sure don’t.
Q. But they did question each one of them individually?
A. Yes, Sir.
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— A-51 —
Q. During that day. A. Yes.
Q. Do you know whether either Mitchum or the one you
call Slim asked to talk to a lawyer or asked anybody to call
a lawyer that first day they were there? A. I don’t know any-
thing about that.
[7] Mr. Colloms: You may ask him.
Cross-Examination by General Fisher:
Q. They brought them all in and locked them up and then
they took them out One at a time for interrogation. They would
take one out and keep him for a while and then bring him
back and get another one anc they kept that up on up until
nine-thirty and they got the last man A. Well, they didn’t
keep it on up, you know, just for awhile and then at nine-thirty
they-come and got the one they call Slim and took him by
“hisself.”
Q. They took all of them by theirself, didn’t they? A. To
begin with.
Q. All right. A. And that night about nine-thirty or maybe
ten they come back there and got the one they call Slim.
Q. What night was this? A. I don’t remember.
Q. You don’t have any idea which night it was. A. No,
Sir, I don’t know what night of the week it could have been on.
Q. It could have been on Saturday night or Friday night.
A. It could have been.
Q. And they took them to District Attorney General [8]
Earle Murphy at this time, but you don’t know who Slim was,
do you? A. Slim?
Q. Yes. A. I just know his face.
Q. Was he connected to this McClary murder or could he
have been in jail on something else? A. That is what they
claimed he was connected with.
— A-52 —
Q. Now, who is they? A.Well, that is what he was charged
with.
Q. Now, how do you know that? A. Well, that is what they
said. It was on the news and everything and I know that is
what they were questioning him about.
Q. Didn't you tell Sheriff Gibson last night or this morning
that you didn't know Mitchum or anything about Mitchum?
A. I don’t know Mitchum. I don’t know a thing in the world
about him. ‘ don’t even know a thing in the world about this
case.
General Murphy: | have no other questions.
Redirect Examination by Mr. Colloms:
Q. The night that Slim, as you call him, was taken from
the cell, was this the night following the day that he [9] was
arrested?
General Fisher: He is leading, please the Court, and I ob-
ject to it.
Mr. Colloms: That is not leading, your Honor He can
answer yes or no to it. I am not suggesting any answer to him.
The Court: All right. I will let him answer it. I have heard
him answer it before but go ahead. A. It was the same night.
The Court: The night gollowing the day of the arrest. A.
Yes, Sir.
Mr. Colloms: That's all.
Recross-Examination by General Fisher:
Q. Mr. Townsend, you are convicted of rape right now,
aren't you? A. Yes, I have been convicted several times.
Q. Of rape. A. Age of consent, attempt to commit a felony
and rape. This time rape.
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— A-53 —
General Fisher: That's all.
M. Colloms: Your Honor, we would like to excuse this
witness.
The Court: He may go.
[10] Mr. Collums: Your Honor, before we introduce the other
proof, my client’s relatives and so forth, I would like for him
to be present.
The Court: That’s all right. Mr. Cate, what we did we
heard one witness while we were waiting for everybody to get
here. Now, I understand that the defendants should be here
shortly. Let’s take a short recess.
* * - * * * *
Court Was Called to Order and the Following Took Place.
The Court: Mr. Carl Colloms has some witnesses here that
he wants me to hear that might not make it to Cleveland. He
may not make it to Cleveland and so I will hear those witnesses
now and I will continue this to the 8th day of next month. that
is Wednesday of the first week of court.
General Fisher: Okay.
The Court: I am going to hear part of them because he might
not get them all back together again. That is what I was worry
about.
General Fisher: Okay.
The Court: All right, Mr. Colloms, put on whoever [11]
you would like to.
—_ so
MRS. LILA MITCHUM
a witness for the Defendants, was called and being duly sworn,
was examined and testified as follows.
Direct Examination
By Mr. Colloms:
Q. State your name, please. A. Lila Mitchum.
Q. You are the mother of Jerry Mitchum? A. Yes.
Q. Now, back in July your son was arrested and placed in the
Bradley County jail and charged with murder. A. Yes.
Q. Do you know what date this was? A. Not exactly.
The Court: Speak up so that we can pick you up.
Q. When did you get to see your son in the jail? A. I think
it was on the 19th.
Q. Okay. Can you recollect how many days had passed from
the time that the was arrested until you got to see him? A. I
think it was about three.
Q. About three days. [12] A. Yes.
Q. How did you come to know that your son had been
arrested? A. I heard it over the TV.
Q. And what did you do upon hearing that your son had
been arrested and charged? A. Well, I got in touch with an
attorney and he asked me if I had been to talk to my son and
I told him no and he asked me when was I going up there to see
him and I told him as soon as I could see him, and that was
when I, no, I called up there and they said there couldn't be
anyone see him, and we went on——
Q. Now, you say you heard it on the radio, or TV that is?
A. Yes.
Y. And then you called a lawyer. A. Yes.
wa
“a
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— A-55 —
Q. Who? A. Harold Brown.
Q. Is he a lawyer in Chattanooga? A. Yes.
General Fisher: Was that Harold Brown?
A. Yes.
Q. Now, after you talked to him you called the Sheriff's
Office in Cleveland. [13] A. I called him and tried to get him
to come up to Cleveland and he said that he didn’t practice out
of Chattanooga. He said the last time he had practiced in
Cleveland was about four years ago.
Q. Did you call the jail that night? After you heard this on
the TV did you make any effort to call the Bradley County jail?
A. No, we went up the next day.
Q. You went up the next day? A. Yes.
Q. Did you get to see your son that day? A. No. I just got
to the jail, the jailer came and asked me, no, I asked him what
he was charged with and he said murder and I asked him if I
could see him and he said no, there couldn't be anyone see him.
Q. Now, what time of day was this? A. That was in the
evening, I guess it was about six.
Q. Did you discuss with the jailer the fact that your son
wanted a lawyer? A. No, I didn’t talk to him.
The Court: She hadn’t seen her son at that time.
A. I asked him to go ask him what lawyer he wanted and if
he wanted me to get him one.
[14] Q. What was that? A. I told the jailer to go back and
would he give him a message of did he want me to get him a
lawyer.
Q. You told this to the jailer. A. Yes.
Q. Was this somebody that worked for the jail or was this
one of the people A. He didn’t have on a, he was a trusty
I guess.
— A-56 —
Q. A trusty. Did he go back and talk to your son for you?
A. Yes.
Q. And did he bring back some information for you? A.
No, he just told me the name of the lawyer that he wanted.
Q. This trusty told you the name of a lawyer. A. Yes. He
told me to get Harold Brown.
Q. Now, this was the day after your son was charged? Is
that right? A. Yes.
Q. Now. when did you get to see your son? A. It was about
three days after.
Q. You came back up to see him. A. Yes.
Q. Before you left this first day that you were up there did
anybody tell you when you could come back and see [15]
your son? A. No, they just said they wasn’t letting anyone see
them right then.
Q. When you did see your son he was locked up there in the
cell? A. Yes.
QO. Did you see Mr. Elliott? A. I saw him in the back.
He was in a back cell by himself.
Q. Did you go back and talk to him? A. I talked to him.
Q. How would you describe his condition? What did he
look like? A. Well, his lips were swollen, his mouth was swollen
and his plate was broken.
Q. What was broken? A. His plate in his mouth. And blood
on his clothes.
Q. What was he wearing? A. He had on a little white shirt
I believe.
Q. A white shirt. A. Either a white shirt or white pants.
Q. After you had talked to your son, this being the second
time you were up there, did you discuss with anybody there in
control of the jail about your son a lawyer? [16] A. No.
iw
»>—— +}
— A-57 —
Q. The only discussion you had was with this trusty. Is that
right? A. Yes.
The Court: She didn’t say he was a trusty. She said he was
a jailer.
A. He didn’t have on a uniform so I didn't know
The Court: Well, when you started off you said he was a
jailer, didn’t you?
A. Trusty, I guess. I have seen him since I have been going
back and forth.
The Court: Aii vight.
A. He is suppose to be a trusty I believe.
Mr. Colloms: You may ask.
General Fisher: No questions.
The Court: You may come down.
* > x * * * *
MRS. FREDIA MITCHUM,
a witness for the Defendants, was called and being sworn, was
examined and testified as follows.
Direct Examination
By Mr. Colloms:
Q. State your name, please. A. Fredia Mitchum.
Q. Mrs. Mitchum, for the record are you the wife [17] of
Jerry Mitchum? A. Yes.
Q. Back in July of this year your husband was arrested and
charged with a crime in Bradley County? A. Yes, Sir.
Q. Upon being charged and brought to the Bradley County
jail did he make a phone call to you? A. He made a phone call
about two-thirty that evening.
—~
Q. About two-thirty that evening. A. Yes.
Q. And do you know if any particular officer was in his
presence when he made the tele »hone call? A. All I know is
that there was a detective.
Q. A detective. What did he tell you? A. He told me that
they was fixing to charge him with murder and he told them
before he was asked any question he wanted to talk to his lawyer
and then so he said
Genera! Fisher: Excuse me, your Honor, but is she talking
about what he said to her? A. Yes.
General Fisher: I would object to that. He can testify to
that. It would be hard for her to say a detective was present
when this was a telephone conversation.
[18] Mr. Colloms: This wouldn’t be hearsay, your Honor.
The Court: Yes, it might be. I am going to let it in though.
Q. All right. Go ahead. You had a conversation with your
husband. Go ahead and tell the substance of this conversation.
A. He told me to get in touch with Harold Brown and tell him
to come down there because they was fixing to charge him with
murder and then after he got through saying that he told me
to come down there and then he said to wait a minute and he
asked the detective if I could see him and the detective told
him yeah, to tell me to be down there about six o’clock. I went
abovt five minutes after six and there was a short, he said he
was a detective at the jail house, and he said that I couldn't see
him and for me to come back at nine the next day.
General Fisher: We object to what somebody said who said
he was a detective. He should be identified more than that. This
is just getting hearsay evidence into the record. He may have
been a county officer perhaps but we don’t know that.
Mr. Colloms: Well, all she can do is tell what she knows.
ee ee
ae
— A-59 —
The Court: Well, did the man you talked to [19] have on a
uniform?
A. He had on street clothes but he had a badge on. I can
describe him if I see him.
The Court: Well, I will let it in.
Q. Let me go back just a minute. Now, you were having a
conversation over the telephone with your husband? A. Yes.
Q. Now, at this time did you talk to the officer also? A. No,
I heard him in the background.
Q. You heard an officer in the background. A. A detective.
Q. A detective or at least somebody.
The Court: She said a detective. She didn’t say at least some-
body. She heard a detective.
General Fisher: We object, your Honor.
The Court: Go ahead.
Q. And you came up there that afternoon. Is that right? A.
Yes.
Q. Did you get to talk to your husband? A. No.
Q. Did you have a conversation with anybody? A. I seen
Otis in the hall waiting to get I guess fingerprinted.
[20] Q. What was Otis’ condition at that time? A. He was
all right at that time.
Q. Was his lips swollen? A. No.
Q. Did he have any blood on him? A. No.
Q. Did you personally have a conversation with any police
officer there? A. The little short one.
Q. Did you tell him that your husband wanted a iawyer?
A. No, I didn’t.
— A-60 —
Q. Your testimony was that in the first telephone conversation
with you he asked you to get a lawyer for him. A. Yes.
Q. And you did not get to see him that first day? A. No, sir.
Q. You saw him the next day. A. Yes.
Q. Now, did you see him again two or three days later? A.
That Sunday.
Q. That Sunday. And did you see Mr. Elliott also? A. Yes.
Q. What was his condition at that time? [21] A. His face
General Fisher: May it please the Court, I would like to make
an inquiry as to whether we are hearing both motions at this
time or just the Mitchum motion.
Mr. Colloms: Your Honor, this type of evidence has some
effect on my client also.
The Court: Well, as much as I am just hearing it whoever
it might apply to because they may not get to the next hearing
and I just want them to have their say either way.
Mr. Derryberry: May it please the Court, we would like to
question this witness also and this could expedite the matter
the next time we have the hearing.
The Court: Well, I can let you except that I think he is doing
a pretty good job for you. Go ahead, Mr. Colloms.
Q. Now, when you saw Mr. Elliott on this Sunday what was
his condition? A. His lips were swollen and his gums and some
of his teeth was out and he had blood on his shirt.
Q. What kind of shirt did he have on? A. I don’t really re-
member. All I remember is that it had blood on it.
[22] OQ. What color was it? Was it a t-shirt or a button type
shirt? A. I think it was a t-shirt, but I am not for sure though.
Mr. Colloms: You may ask her.
iceman a
---
— A-61 —
General Fisher. Are you going to let them ask her, your
Honor.
The Court: Yes, if they have something that has not been
asked.
Direct Examination
By Mr. Derryberry:
Q. Mrs. Mitchum, I am George Derryberry, and along with
Mr. Cate I represent Otis Elliott. Is the individual Mr. Elliott
you are referring to here in court? I believe that is him sitting
right over there, isn’t it? A. Yes.
Q. You saw him on Sunday, well, you saw him on several oc-
casions and the first time you saw him he was in good condition.
A. Yes.
Q. Now, the second time you saw him was on a Sunday. A.
Right.
Q. Did you talk to him then? A. Yes.
{23] Q. And how far away from you was he? A. About as far
as you are to the end of that.
Q. This close. A. Yes.
The Court: Two feet.
Mr. Derryberry: I think that is all.
Cross-Examination
By General Fisher:
Q. Was that the first time you saw him or the second time?
A. That was the second time I seen him.
Q. Where did vou see him the first time? A. The first time
he was in the hall behind the bars and I was standing out there
where the police are.
— A-62 —
Q. By the steps. A. By the steps.
Q. Did you talk to him then? A. Yes.
Q. What did you all say? A. I was asking him what had
happened and he said, “These people down here are trying to
charge us with murder.” And I said, “Well, where is Jerry.” He
said, “I don’t know.” I said, “How long are you all going to have
to stay?” He said, “I don’t know that either.” He said, “When
you go home will you call my mother and tell her to come down
[24]here and bring my medicine.”
Q. All right. And, well, first, where do you live? A. 731
East 4th Street.
Q. 731 East what? A. 4th Street.
Q. 4th Street. A. Yes.
Q. And where do you work? A. Dupont.
Q. And you don’t know whether he had on a t-shirt or a
dress shirt or what type of shirt? A. No, I don’t remember.
Q. Did he smile at you the first time you saw him? A. No.
Q. Did he smile at you the seccnd time? A. No.
Q. How do you know his upper plate had been broken? A.
I didn’t know he had a plate in his mouth. I thought they were
his real teeth.
Q. How did you know his plate was broken? A. I know his
teeth wer. out but I didn’t know they were plates or his real
teeth or what.
Q. His teeth were out? A. One of them.
[25] Q. Which one? A. I don’t know. It was on his left side.
I don’t know which one. It was up at the top.
Q. You don’t know how it got out or anything, do you?
A. All I know is what he told me.
— A-63 —
Q. When was the first time you saw him? A. The same day
that they were arrested.
Q. And when was the second time you saw him? A. That
Sunday.
Q. Sunday. A. Yes, Sir.
Q. What time of day Sunday? A. Visiting hours.
Q. Now, describe this person that was up there as you walked
in at six o'clock. A. He was short and I would say fat and he
had brown hair, dark brown. I don't know but I can point
him out if I can see him.
Q. Did he had a weapon on? A. Yeah, he had a gun.
Q. Did he have a badge on? A. He had a badge on the
collar of his shirt.
Q. On the collar of his shirt. A. Yes.
[26] Q. He had a badge on his collar. What color was his
shirt? A. I don’t remember. All I know is that he had a badge
on.
General Fisher: I believe that is all.
The Court: All right. You can go back down and have a
seat.
*_ *+ * * © & &
MRS. GLORIA SMITH,
a witness for the Defendants, was called and being duly sworn,
was examined and testified as follows.
Direct Examination
By Mr. Colloms:
Q. State your name, please. A. Gloria Smith.
Q. Mrs. Smith, are you the sister of Mr. Mitchum? A.
Yes, Sir.
an
Q. Did you ever come to the Bradley County jail to see or
attempt to see your brother? A. Yes.
Q. When was the first time you arrived? A. I came on a
Sunday.
Q. In your presence did you hear him request to get a lawyer?
[27] A. Yes. He was talking to all of us, you know, my
mother, my sister-in-law and us, and he was telling us if we
had contacted Harold Brown and we said yes, that we were
still talking to him, you know, about taking the case because he
was, you know, trying to decide whether to take it or not, and
then he said that he would rather not come, you know, from out
of the city, you know, to another county like that.
Q. Did you have any conversation with relation to any
Cleveland lawyers? A. It was, this man, he was sitting, he was
real fat, and he was sitting and he was eating and we asked
him. I mean I asked him the name of a lawyer that was in
Cleveland, because, you know, Mr. Brown said it was best for
us to get a lawyer that was from Cleveland, and he said “Nope.”
Q. What was his answer no in response to? What did you
ask him? A. I was asking him, you know, what kind, you
know, I mean, some names of a good lawyer, what was the
name of a good lawyer in Cleveland, you know, from Cleveland.
Q. Did you see Mr. Elliott this date? A. Yes.
Q. What was his condition? A. He was kind of crying a
little bit and he had on a
[28] Q. He was kind of what? A. He was kind of crying a
little bit. He had a partial plate, and I don’t think he had the
partial plate in because it was bad. I don’t know if there was
teeth missing from the partial plate or if :t was the whole partial
plate but he said they treated him wrong and you know, all this
and that, and said to try to see if they could get them moved
home, you know, to, you know, in Chattanooga, and we said
that we couldn't and his grandmother was telling it would be
— A-65 —
all right and all this, you know. He went on to tell us what had
happened. He said, his teeth was missing and he pulled up his
lip here and it had bled, you know, and his gum was swelled
and his lips were swollen and he said that he never
General Fisher: We object to what he said, your Honor. She
has gone into what he looked like but we object to what he
related to her had happened.
Mr. Colloms: Well, your Honor, whether this is admissi-
ble——
The Court: I want to hear it whether it is admissible or not.
Go ahead and tell what he told you had happened to him.
A. He said that when he first got there there was a whole lot
of remarks made by these police officers and then there was this
black police officer and two or three [29] white police officers
and saying that “Well, we hope you all rot in jail.” He said that
these officers, that one officer, and I don’t know whether it was
white or black, but these shoe strings, they were tied together,
he showed them to us, and I think it was a purple and an orange
and a black shoe string tied together and they said, “Why don’t
you go on and hang yourself?” But this was after he told us
that they had brought him back from this graveyard where they
took him out late at night and put him down on a tombstone and
fired a pistol by his head and said, “Why don’t you just run,
why don’t you just run?” And so he didn’t and he didn’t say
nothing and then I guess he was crying and so on and so forth
and I guess they brought him back to the jail and that is when
they throwed those shoe strings in his cell and said, “Why don’t
you go on and hang yourself and if we ever hear of anything
that went on your people are going to read about you hanging
yourself or killed yourself or something like that?”
Q. That is what Mr. Elliott told you. A. Yes.
Q. Was that the only time you were in the jail and saw either
your brother or Mr. Elliott? A. You mean that Sunday.
— A-66 —
O. Yes. A. Was that the first time I came?
[30] Q. Yes. A. Yes.
Q. And have you seen him since that time ia the Bradley
county jail? A. Yes.
Q. How many times? A. A number of times.
Q. I will ask you if any of these other times if he discussed
with you whether or not he had counsel! or if he wanted counsel?
A. Yes, he was talking, you mean Mr. Elliott?
Q. Yes. A. Yes, he was talking about that he wanted a
lawyer——
Q. No, your brother Mr. Mitchum. A. Yes.
Mr. Colloms: You may ask her.
Cross-Examination
By General Fisher:
Q. What was your first name? A. Gloria.
Q. Are you married? A. Yes.
Q. What is your husband’s name? A. Ronald.
[31] Q. Where do you live? A. At 2001 Ocoee, Apartment A.
Q. Ocoee. A. Yes, O-c-0-e-e.
Q. In Cleveland? A. No, in Chattanooga.
Q. Do you work? A. Yes.
Q. Where do you work? A. At Dupont.
Q. Your brother didn’t complain about his being beaten to
you, did he? A. No.
Q. Your brother at no time, did he hear you and Elliott talk-
ing? A. No, he couldn’t because he was down at the last cell
on the end and my brother and the other, I think it was one
—_—
more, were up, you know, as you come in the door and they
were in I guess he said it was maximum security. They wasn’t
with any other, you know.
Q. Did you go down and ask your brother about what they
had done to Elliott? A. Yes.
Q. And your brother still didn’t complain to you about any
treatment that he had received. [32] A. You mean that Elliott
had received?
Q. No, that Mitchum himself had received. A. No.
Q. Did he discuss with you, either your brother or Elliott,
the confessions that he had made to law enforcement officers?
A. That who had made?
Q. That either Mitchum or Elliott had made. A. No. You
mean that Sunday, right.
Q. Yes. A. No.
Q. Since then have they discussed their confessions they
made? A. What do you mean by confessions?
Q. Of that participation in the crime. A. No.
Q. To what extent they were involved in the murder of Neil
McClary? A. The only thing that they said was that they told
them that they didn’t do it and I think my brother said that he
didn’t want to talk anymore until he did have a lawyer.
Q. He didn’t want to talk to you until he had a lawyer. A.
No, that was what he was telling them when [33] he was talking
to them.
Q. He didn’t want to talk to the officers anymore until he had
a lawyer. A. Until he had a lawyer.
Q. Do you remember whether or not your brother told you
this on that Sunday? A. I believe it was on a Sunday. Yes, I be-
lieve it was on a Sunday, that first Sunday.
— A-68 —
Q. Did he, your brother, discuss with you his involvement
in the crime? A. No,
Q. Did Elliott discuss with you at any time his involvement
in the crime? A. No. Do you mean whether they were actually
in it or——
Q. The affair of shooting Neil McClary or dividing the
money or A. Oh, no, that they were just, that they were
in Cleveland and somewhere and the police were there, or
they were somewhere and I forget where it was and they went
up underneath this house because they were scared, you know,
because they wasn't from there and I guess it was a small town
and that the police came up under there and got them and just
took them on down and booked them for murder of which they,
he didn't know anything about.
{34} Q. And where are you all from? A. Chattanooga.
Q. Both Elliott and Mitchum are from Chattanooga? A.
Yes.
General Fisher: That's all.
Mr. Colloms: That's all. You may come down.
The Court: Wait a minute and let me ask a question. Did
you have something you wanted to ask?
Mr. Derryberry: No, sir.
The Court: Did you, he was telling you about wanting a
lawyer. Did he tell you along about this time, had he been
telling you about me going to appoint him a lawyer?
A. | beg your pardon.
The Court: Did he tell you that the Judge was wanting to
appoint him a lawyer?
A. 1 don't
The Court: Did he ever tell you that?
— A-69 —
A. I remember that he said that he didu'i think he want a
court appointed lawyer.
The Court: Did he tell you that the first three times he and
Elliott apppeared before me that they refused a court appointed
attorney? Did he tell you about that?
[35] A. No. I recall him saying something about that he didn't
want a court appointed lawyer.
The Court: He did tell you that.
A. Yes.
The Court: All right. You may come down,
Mr. Colloms: That is all the proof right now, your Honor,
except for the defendant and———
The Court: It is noon now and inasmuch as we are going
to have to hear this anyway I believe we ought to just hear
the rest of it up at Cleveland, don't you?
Mr. Colloms: That's all right.
The Court: Is that all right with you, General?
General Fisher: I just want to satisfy the defendants, please
the Court.
The Court: Well, we are going to hear them all and all the
proof they have got as far as that is concerned, Mr. Colloms,
and I don't want to cut you off on anything, but it is noon
and I take it that these boys will have to be at the hearing
anyway to hear the rest of it.
(This was all the proof introduced and proceedings had at
the Hearing on the Motion to Suppress heard on the 24th day
of October, 1972, in Athens, Tennessee.)
{36} Cleveland, Tennessee
November 8, 1972
— el
Be It Remembered this cause came on for hearing on a
motion to suppress on this the 8th day of November, 1972, be-
fore the Honorable James C. Witt, Judge of the Criminal Court,
whereupon the following proceedings were had, to-wit:
The Court: This is State of Tennessee versus Jerry Wayne
Mitchum and Otis Elliott, case number 5684. Part of this mat-
ter was heard previously and I will continue hearing it today.
Mr. Colloms, who do you have first.
Mr. Colloms: I have my client, Mr. Mitchum.
The Court: All right. Come on up here, Mr. Mitchum.
MR. JERRY WAYNE MITCHUM,
a defendant, was called and being duly sworn, was examined
and testified as follows:
Direct Examination
By Mr. Colloms:
Q. For the record state your name, please. A. Jerry Wayne
Mitchum.
Q. Mr. Mitchum, you under the nature of today’s proceed-
ings, do you not? A. Yes, I do.
Q. When you were arrested back in July you were brought
and locked up in the Bradley County jail. Is that [37] cor-
rect? A. Yes.
Q. Were you locked up in a separate cell or in a cell with
the other individuals? A. Well, first I was locked up in a cell
with two other individuals,
Q. Were you questioned the first day that you were ar-
rested by anyone from the Sheriff's department? A. Yes.
Q. Do you know approximately what time this was? A.
It was about I would say ten in the morning.
—
Q. Did you make any statement at that time? A. No, |
didn't.
Q. When were you questioned again?
The Court: Mr. Colloms, could we get the date in here. |
am really lost on the date. If he knows or if you can get it
in here.
Q. Do you recall the date that you were arrested? A. It
was July the 19th.
Q. Of 1972. A. Yes.
Q. Now, you say you were questioned about ten o'clock in
the morning that you were arrested? A. Yes.
Q. Were you questioned again that day? [38] A. Yes.
Q. About what time? A. It was about six-thirty in the
evening.
Q. Did you make a statement at that time? A. No.
Q. When you were questioned were you questioned indi-
vidually or along with the other gentlemen? A. We were ques-
tioned individually.
Q. Where were you questioned at? A. I guess it was in a
detective's office, or Sheriff's office.
Q. Is that in the main jail building or in a separate build-
ing? A. It is a separate building.
Q. Now, you say you were questioned twice that first day.
Were you questioned at any other time? A. I was questioned
I believe the next day.
Q. What time of the day was it? A. It was at night.
Q. At night. Who was present during these three question-
ings? A. Which questioning?
—_*
Q. The first one. Let's go back to the first one. Who was
present at that time? A. Officer, Detective Wayne Neeley and
Wilburn [39] Moore and I guess it was a TBI agent.
Q. The first time you were questioned. A. Yes.
Q. Who was present at the second time? A. Officer Wayne
Neeley.
Q. No one else. A. There was some more people but I
don't know their names.
Q. How many were there? A. I would say about three.
Q. And the third time you were questioned who was pres-
ent then? A. Detective Necley and Officer Moore.
Q. Now, the first night that you spent in jail was there any-
thing unusual that happened that caused you to have any fear
for your personal safety? A. Well, on the first night that I was
in jail | was told that there was a trusty or inmate there that
had shot another inmate in this particular jail
General Fisher: Your Honor, could we have who was tell-
ing him this.
The Court: Tell, if you know, who was telling you this.
A. This was a Townsend, an inmate here, and a trusty and
I don't know the trusty’s name.
[40] The Court: He was a prisoner but he was a trusty.
A. Yeah, he was a prisoner but he was a trusty.
The Court: And he was telling you these things.
A. Yes.
The Court: Was he white or colored?
A. Well, this one was white.
Q. What did this individual or these individuals tell you?
A. Well, he told me that this trusty——-—
— A-73 —
The Court: Excuse me. Ask them not to be using that phone
in there, It interferes with what we are doing. All right, go
ahead.
A. Well, I was told that there was a black man in jail ac-
cused of shooting a police officer, accused of murdering a police
officer and so I was told that a deputy came in and shot this
inmate in the county jail, he said he had shot him five times,
and they told me that the same man that shot him was housed
in the same jail, that his cell was unlocked and that he could
get out any time he wanted to, you know, and they told me,
you know, that it was the same guy that serves your breakfast.
So I asked them, I said, “You mean to tell me they don’t lock
him up.” And they said, “No, they don’t lock him up.” I asked
them why and they said they guessed because he was the police,
you know, and they said, “He can do what he wants to and go
where he wants to.”
[41] Q. Was this the first night you were in jail? A. Yes, it
was the first night.
Q. Did this cause you to have any concern for your safety?
A. Yes, it did.
Q. Did you see this gentlemen yourself the first day or the
first night that you were in the jail? A. Well, I saw his legs.
I could just see out of this feeding hole, you know, where they
feed you at and this inmate there, Townsend, he told me that
it was him, you know, that was feeding that morning.
Q. Did you see the dispatcher or any other officer come back
into the cell area that first night? A. Yeah. About, I imagine
it was about one-thirty or two o'clock the dispatcher came back
through what they call the drag, it is a door they open to come
back and check on you, and well, he came back and I noticed
that he had a brace on his leg and he had a sawed-off shotgun
and so he came up to our cell and stopped, and so, you know,
I was making like I was asleep, playing like I was asleep, and
so he walked on and so | got up, you know, got up and stood
am 16 =
up over here by the toilet, the toilet stool, because | was afraid
of him, you know. I didn’t know what he was doing in the jail
with a shotgun because I thought at all times, you know, of-
ficers or personnel who worked, you know, at a jai
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