# Petition — Morford v. Elliott > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2642%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 434 U.S. 1040 ## Text 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 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. oe A lntttantit tee kate 4 One ein 6 ad dogpatne £4 bbw seed ae ee ee ee ke = — os acct tc a i a a ENS — 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 wean natant din wis oll Pi Atha tas Lh on) hal ~~ dn nb — 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. va ad i on il ann 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. er en al vi — 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. i we ea — 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 a a ee — 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 jail wasn't suppose [42] to bring guns in the jail. Q. When you were first arrested and brought to the jail were you asked or were you permitted to make a phone call? A. No, I wasn't permitted to make a phone call at first. I asked to make a phone call. Q. Did you get to make a phone call? A. Not right then. Q. When did you get to make a phone call? A. It was either, it was later on that day I believe. Q. Who did you call? A. I called my wife. Q. Do you remember the substance of your conversation with her? A. I called her and asked her if she would see about getting me an attorney. Q. Who was with you when you made this phone call? A. This officer, I don’t know his name, but he was tall and he wore a red shirt every day and he had a crew cut. Q. He was with you when you made the call? A. Yes. Q. Where did you make the call from? A. At this window just beside where they put you [43] inside this locked gate. Q. Did you talk to anyone else about getting you a lawyer? A. Well, when we were arrested I asked Officer Neeley if I could have an attorney before we was put in the line-up. Q. What did he tell you? A. He didn’t say anything. Q. Do you remember anybody else you talked to about get- ting you a lawyer? A. Well, I asked the TBI agent if I could get a lawyer and I asked —-— — Q. When did you ask him about getting a lawyer? A. I asked him the first day and I believe on Friday. He let me use the phone on Friday. Q. Who did you call? A. I tried to call a Chattanooga call, William Brown, Attorney Brown. Q. The first night you were there did Mr. Elliott spend a full night in jail there? A. Did he spend a full night? Q. Did he spend a full night as far as you know? A. Yes, I believe he spent the full night in jail the first night. Q. How about the next night? [44] A. Well, I don’t know. They took him out and they didn’t bring him back. Q. What time did they come and get him? Who came and got him? A. Officer Wilbur Moore. Q. Do you know approximately what time of night it was? A. It was about eight-thirty or nine o'clock. Q. Was it already dark outside or could you tell? A. Yes, it was dark. Q. Did they bring him back that night? A. Well, when they brought him back, you see, we saw them when they brought him back and it was about two-thirty or three o'clock, you know, in the morning. Q. What was his condition or could you see him well enough to know what his condition was? A. Well, I saw him, you see, in the cell I was in I could see through the feeding hole and see out the door and he had on a white shirt and I saw that it had blood on it. He told me that they had jumped on him, you know, and then they took him on downstairs. The Court: What day was that now? A. lL imagine this was Thursday. The Court: You were arrested on Wednesday and you think this was on Thursday. —_—s [45] Q. Sometime Thursday night. A. Yeah, Thursday night. Q. Or early Friday morning. A. Early Friday morning, yes. Q. Past midnight it would be Friday morning. At any time did any of the officers to your knowledge question Mr. John- son? A. No. Q. Do you know why they didn’t question him? A. Because he had an attorney. Q. Who was his attorney? A. I believe it was Mr. Bagwell. Q. Had you had any discussion with Mr. Bagwell about him representing you? A. Yes. I asked Mr. Bagwell if he would represent me or see about getting an attorney. Q. What day was this? A. This was the first day. Q. Did any officer overhear this conversation? A. I am not sure. There might have been one standing at the door but you know we couldn't see the door. Q. When Mr. Elliott was taken out of the jail was he wearing any shoes? A. No, he wasn’t. Q. Did anybody come later and pick his shoes up? [46] A. Yes. Officer Wilbur Moore. Q. What time was this? A. It was about something to three. Q. Had you already seen them bringing Mr. Elliott back? A. Yes. Q. Where did they take Mr. Elliott? A. Well, I don’t, when they brought him back I didn’t know, you know, where they had taken him then and I didn’t find out this until the next morn- ing. Q. Now, you say you were questioned three times by officer Neeley. Is that correct? A. Yes. Q. During the third discussion with Mr. Neeley did Mr. Neeley make any notes? A. Make any notes? —* Q. Yes. A. No. Q. Did he have any way to make notes? Did he have pencil and paper there to where he could make notes? A. No. Q. When you all were arrested and brought to jail was there a crowd of people there at the jail? A. Yes, there was. Q. White people or colored people or mixed people. [47] A. Just white people. Q. Do you know approximately how many was there? A. There looked about like forty or fifty people or maybe more. Q. Was there quite a bit of discussion when you got out of the car? A. There was quite a bit of disturbance and discussion also. Q. What was some of the remarks that you overheard? A. I heard some people saying that we ought to—— General Fisher: I object The Court: Well, I am going to allow it in. General Fisher: I will withdraw the objection, Your Honor. Mr. Colloms: We are not offering this——— The Court: I understand and I have ruled that it can come in. Go ahead. A. Well, I heard some people say, “We ought to hang them now.” Q. Was this said once or twice or several times? A. You know, it was just constant remarks. Q. When you were arrested that first day did you get to see your family? A. No. Q. Did you request to see your family? [48] A. Yes. Q. When did your family come to see you? A. Well, they came the first day. — Q. How do you know they came the first day? A. Well, Otis, he saw my wife. Q. You had made a call that first day to your wife. A. Yes. Q. And she came on up. A. Yes. Q. And she didn’t get to see you. A. No. Q. Do you know whether, did a trusty come back and ask you or tell you that your relatives were out there? A. Yes. Q. Did he ask you if there was anything that you wanted him to tell your faaily? A. Yes. I sent a message to her. I told her, I to'd him to tell her that I wanted a lawyer and for her to try and get me an attorney. Q. And the trusty carried this conversation or message to your relatives? A. Yes. Q. And did you see your relatives the following day? The Court: What is the following day now? [49] Mr. Colloms: If the arrest was on Wednesday this would be on Thursday, your Honor. A. Yes. Q. About what time was it Thursday that you got to see your family? A. I imagine it was about two o'clock. Q. Did you have a discussion with them at that time relative to your regard to get you an attorney? A. Yes. Q. Do you know whether or not they transferred this message on to anybody there at the police station? A. She, I don’t know his name, but I believe it was another trusty in jail and he wore a crew cut, and I think she was asking him about a lawyer and which was the best attorney, you know, to get in Cleveland. Q. Did you overhear this conversation yourself? A. Yes. Q. Do you know what he told your wife? A. Yes. — A-79 — Q. Did he give her any names? A. Yes. He told her Conrad Finnell and, and I forget the other attorney’s name, but it was two attorneys, two or three attorneys that he recommended her to. Q. Again who all did you ask connected with the Sheriff's department to get you a lawyer? [50] A. I asked the TBI agent, Officer Wilbur Moore, Wayne Neeley, and we asked the dis- patcher whoever it was that was taking our names when ihey brought us in. Q. At each time you were questioned and I understand you were questioned three times, and at each time you were ques- tioned did you ask for a lawyer? A. Yes, I asked for a lawyer each time. Q. Did Officer Neeley or anyone else at any time advise you of your right to have counsel present at the questioning? A. No. Q. Did he explain any of your legal rights to you relative to the right to counsel? A. No, no rights were explained. Q. Did you sign anything? A. No. Q. Were you offered anything to sign? A. I don’t remember. I am trying to think. I don’t believe so. Q. Did they present a paper to you and say, “This is your rights. Will you read it and thea sign it and then we will ques- tion you?” A. No. Q. That didn’t happen. A. No. [51] Q. When you did talk to them the third time what was the reason for talking to them? A. Well, I feared for my life. Q. What caused you to have fear for your life? A. Well, by this trusty walking around in the jail and you know, he had shot a black man in jail five times, you know, if he could walk around, and by this dispatcher coming back there with this — A-80 — sawed-off shotgun and by them having jumped on Mr. Elliott and so I thought they were going to do the same thing to me. Q. And it is your testimony that when you were initially ar- rested and brought to the jail that you asked for counsel at that time. Is that right? A. Yes. Mr. Colloms: I believe you can ask him. Cross-Examination By General Fisher: Q. Mr. Mitchum, it is your testimony that the TBI agent never read your rights to you and explained to you that you had the right to remain silent and the right to have an attorney pres- ent. You deny that he ever told you any of these things. A. No. Q. And Officers Neeley and Moore never told you any of these things. [52] A. No. Q. That third meeting with Deputy Moore and Deputy Neeley there Deputy Neeley didn’t take any notes? A. No. Q. Did Deputy Moore? A. No. Q. You are positive of that. A. I am positive. Q. Now, did they put any pressure or threats, direct threats to beat you up at that third meeting before any statement might have been made by you? A. Did they put any direct pressure? Q. Yes. A. Well, not necessarily so. Q. What caused you to make this statement? A. Because, well, I didn’t make a statement. The Court: Well, what is all this about then? There is no use in putting him on then. General Fisher: He is denying he made a statement, your Honor. , 7 sn ae cannlh, deiabie: — A-81 — A. Well, the fact is that I am not denying I made a statement. These were things, you know, they were just asking me leading questions. The Court: Weii, did you make a statement or confession? Did you confess to killing this [53] fellow? That is what this is about. A. No, I didn’t confess to killing anyone. Q. You didn’t confess to shooting Neil McClary with a shot- gun? A. No. Q. You yourself. A. No. Q. You didn’t confess to changing clothes here in Cleve- land? A. No. Q. And you didn’t confess that Johnson and Sharp were in- volved in this murder, and Cline? A. No. Q. In the planning, and Elliott and Arnold? A. No. Q. You didn’t confess that you had a twelve guage shotgun, single barreled, and Elliott and Arnold both had short nosed thirty-eight revolvers? A. No, I didn’t. Q. There at the scene of the crime. A. No, I didn’t. Q. And you didn’t confess that you were under that trailer out there, let’s see, placed under that trailer by William John- son, the trailer where you were caught? A. No, I didn’t. [54] Q. And you didn’t confess that you were under there with Elliott and Arnold? A. Yes, I said I was underneath there with Elliott and Arnold. Q. Okay. And I believe you were next to who under that trailer when you were caught? A. I was next to Elliott. Q. You and Elliott were side by side underneath that trailer. A. Yes. — A-82 — Q. And you didn’t confess that Johnson had let you out there? A. No. Q. Or that Cline was present when you got out of the T-bird? A. No, I didn't confess to that, Genera! Fisher: I believe that is all. Redirect Examination By Mr. Colloms: Q. Do you recall anything during this third conversation with Mr. Neeley about the questions that he was asking you as to their nature? Do you remember any of the specific questions he was asking? A. No, not right off. The Court: Let me ask him one question. Now, [5§] you were arrested on Wednesday the 19th, and this conversation that you had in which you didn’t confess to anything was that on Thursday or Friday or when was it? A. I believe it was Thursday. The Court: Thursday. Do you recall me bringing you up here on Saturday, the 22nd? A. Saturday, yes. The Court: Do you recall me trying to get you to let me appoint you an attorney and you wouldn't let me? A. No. The Court: That you refused to accept an appointed attorney. Do you recall that? A. We didn't refuse to. The Court: Well, do you recall me asking you and you said, “No, we are getting our own attorney. I have been in touch with my people.” I believe it was Harold Brown you were getting, wasn't it? A. I remember you saying that you would give us three days to see if we could get in touch with our lawyer because I hadn't got in touch with a lawyer. I didn’t know whether or not I would have one. — A-83 — The Court: Well, you refused an appointed attorney at that time. All of you did. Don't you [56] recall that? A. Dol recall it? Yes. The Court: You refused an appointed attorney and then I brought you back up three days later and you refused it again. A. Well, you see at this particular time we had already been indicted. We needed a lawyer before we were put in the line-up and before we were ever questioned. The Court: But you didn’t want an appointed attorney. A. Not then. The Court: I see. Okay. That is all I wanted to ask. Mr. Colloms: You may come down. Your Honor, we put on our other proof up in Athens The Court: Yes, but I think we should go ahead and finish the Elliott matter before the State responds. Mr. Colloms: Yes. Mr. Derryberry: May it please the Court, I would rather not put him on first. The Court: Well, that’s all right. Put on whoever you want to. . * * . * . . [57] MRS. MATTIE ELLIOTT, a witness for the Defendant, was called and being duly sworn, was examined and testified as follows on Direct Examination By Mr. Derryberry: Q. Please state your name. A. Mattie Elliott. Q. What is your relationship with Otis? A. 1 am his mother. —_*’ Q. Otis until he was arrested did he live with you? A. Yes, he did. Q. And where was this? A. 1111 Moss Drive. Q. In Chattanooga? A. In Chattanooga, Tennessee. Q. And do you work, Mrs. Elliott? A. Yes, I do. Mr. Derryberry: May it please the Court we would like to ask for the rule. The Court: All right. I don't know who it is, but have you got other witnesses? General Fisher: The state has witnesses that are present. The Court: Who is the state going to use? I take it that they would be entitled to somebody in the courtroom. General Fisher: We would like to have Wayne [58] Neeley in the courtroom with us, please the Court. The Court: All right. Do you all have any other witnesses? Mr. Cate: We have one. The Court: Well, he will have t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2642%3A1. Public record. Not legal advice.