Appendix — Rose v. Mitchell
Supreme Court brief1979
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APPENDIX
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM. 1978
No. 77-1701
JIM ROSE, WARDEN.
Petitioner,
VS.
JAMES £. MITCHELL and JAMES NICHOLS, JR..
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
aa a —— lo a “ =
) PETITION FOR WRIT OF CERTIORARI FILED MAY 27. 1978
: CERTIORARI GRANTED OCTOBER 2. 1978
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1977
No. 77-1701
JIM ROSE, WARDEN,
Petitioner,
VS.
JAMES £. MITCHELL and
JAMES NICHOLS, JR.,
Respondents.
APPENDIX
INDEX TO APPENDIX
Page
i Be GI on onc ese denevcnvesncésaveseves 1
Transcript of Proceedings in State Court on Petitioner's
Pee Ge AMINED ono cect cwccc ese ccccevoccccc: 3
Trial Judge Denies Plea in Abatement from Bench ...... 35
Order Overruling Plea in Abatement, March 19, 1973 ... 36
Opinion of Tennessee Court of Criminal Appeals, June
SS ewer er ee rr eee 36
Petition for Writ of Certiorari Denied, Tennessee Supreme
Games, WEassh BA, GOGS 2 cc ccccvctecveweccscvess 42
Petition for Writ of Habeas Corpus—Mitchell ......... 43
nT]
Order to Show Cause, May 19, 1975 ....------s-5000% 53
Response to Order to Show Cause, June 9, 1975 ....--- 54
Petition for Writ of Habeas Corpus—Nichols .....----- 62
Ouder to Show Cause, June 13, 1975 ...--- +--+ + +000 74
Response to Order to Show Cause, July 1, 1975 ....---- 75
Order of Reference to Magistrate, August 6, BOTS ....: 83
Report on Reference from Magistrate, January 28, 1976 .. 84
Order for Further Response, February 17, i ae 98
Further Response, March 1, 1976 .....-----++ss5000: 99
Further Response of State of Tennessee, March 21, 1976,
Affidavit—Peyton J. Smith .....-.----++ss+seeees 102
Order of District Court, April 6, 1976 .....-----++->: 106
Further Response of State of Tennessee, April 12, 1976 .. 108
Further response of State of Tennessee, April 12, 1976,
Affidavit of State Trial Judge ....------+--+s++00° 111
Second Report on Reference from Magistrate, February
«Perri er 114
Memorandum and Order of District Court, February 17,
BT. cacune Seb ypbpeeeeacvevssesevesees 121
Judgment of District Court, February 18, 1977 .......- 123
Order of District Court, March 23, 1977 .....---+--+> 124
Certificate of Probable Cause, April 1, 1977 ....------- 126
Opinion, U. S. Court of Appeals for the Sixth Circuit,
January 9, 1978 .....--- eee errr rere eter 127
Petition to Rehear, January 25, 1978 .....-----+++++: 142
Order, Court of Appeals, March 30, 1978 .....------- 151
,#
James Nichols, James Mitchell,
Defendants,
Vv.
State of Tennessee,
Respondent.
PLEA IN ABATEMENT
Motion for Dismissal of Indictments for Systematic Exclusion
of Minority Groups From the Grand Jury Panel
Defendants, James Nichols, James Mitchell, Moves for Dis-
missal of the Indictments in This Matter as Being Illegal, Void
and Unconstitutional on the Following Grounds.
|
The Array of the Grand Jury of Tipton County, Was Not
Selected, Drawn or Summoned in Accordance With the Law
and Is X Not Representative of the Community From Which
It Was Impanelled Because of Systematic Exclusion of Negroe’s,
Other Minority’s and People of Lower Income, Especially in
Regards of the Position of the Forman, of Said Grand Jury.
2
The Grand Jury Was Without Sufficient Evidence Before
It, Upon Wich to Hand Down the Present Indictment and Its
Deliberations Were Characterized by Conduct and Remarks
Reflecting Racial Hestility Against the Three Male Negro De-
fendants, Contrary to the Fifth and Six Amendments of the
United States Constitution.
3
That the Unconstitutional Manner in Which Members of
the Aforesaid Grand Jury Is Impanelled, and the Unconstitu-
— pe
tional Manner in Which Members of Said Grand Jury Are
Carried Over From One Term to the Next, Completely Re-
moves Its Independent Status as an Accusatory Body, and
Reduces the Said Grand Jury to Nothing More Than an
Extension of the Prosecutors Office to Rubber Stamp Any In-
dictment Presented to Said Grand Jury, as a True Bill Soley
on the Whim and Carprice of a Member of the Tipton County
Prosecutor’s Office. That the Grand Jury is Selected and the
Foreman Appointed Under an Illegal Keyman System.
‘
4
Defendants Further Moves That a Convenient Date Before
Trial Be Set for a Hering of This Notice Where Evidence May
Be Presented and Arguments Made in Support of This Motion.
5
Defendants Further Moves That the Court Enter an Order
Allowing Defendants to Subpoena, Without Cost, Witness to
Appear on His Behalf at Such Hearings.
6
Defendants Futher Moves That the Clerk Be Directed to
Supply Defense Counsel to Assist Defendants, Without Cost to
Said Defendants, With Full and Complete Transcripts of the
Proceedings of the Grand Jury.
7
The Foregoing Statements Are Based on Personal Observa-
tion and Inquiry of Those Who Have Serve on the Tipton
County Grand Jury.
Respectfully submitted
/s/ James N. Nichols
/s/ James E. Mitchell
eat ven ee
Sworn and Subscribed to or Before Me on This Ist Day of
February, 1973.
/s/ David Field
Notary Public
My Commission Expires on the . . . Day of
(Filed Date: 2-8-73)
In the Circuit Court of Tipton County, Tennessee
State of Tennessee .
VS.
James Nichols, Jr.
osmehes \ Nos. 846 and 847
and
James Mitchell
Defendants. |
BE IT REMEMBERED, that the above-entitled cause came
on to be heard on this, the 13th day of March, 1973, at 9:30
a.m., in the above Court, before the Honorable Herman L.
Reviere, Judge, presiding, when and where the following pro-
ceedings were had of record, to wit:
APPEARANCES:
GENERAL ABERNATHY, ESQ.,
and
GENERAL PARKS, ESQ.,
FOR THE STATE OF TENNESSEE
JOHN E. PROCTOR, ESQ.,
and
WILBUR F. CASH, ESQ.,
FOR THE DEFENDANTS
[3] PROCEEDINGS
THE COURT: Make a statement to the Court of just what
the purpose is, and soforth.
MR. PROCTOR: If the Court please, there are two. Number
1 is a plea in abatement to the indictment. It’s a motion for dis-
missal of indictments for a systematic exclusion of minority
groups from the Jury panel. Then, there is a motion to sup-
press alleging certain evidence was procured by the State by
reason of an illegal search. Then, last, the pre-trial motions to
divulge any statements against the interest of the defendants
or any matters of medical, scientific or nature or personal items
that might be heard. Now, we didn’t want to waive, actually
waive. If the plea in abatement to the indictment was sustained,
it would end the other motions.
THE COURT: Mr. Attorney General.
MR. PROCTOR: If the defense would be willing to take up
the motion to suppress out of order, if we can do so without
waiving the plea in abatement which should come first.
THE COURT: The Court would not let the defendant waive
any of its rights, but—let me say this: The last motion, as well as
I understand it, the question of demanding of the State any state-
ments of evidence
[4] GENERAL ABERNATHY: If Your Honor please, we
won't have any trouble at all.
\
THE COURT: I understand there’s no contest here. The
State will provide you with any statements made by these
defendants.
GENERAL ABERNATHY: Yes, sir. Later, we’d be glad
to take it as item by item before Your Honor, but right now,
we've got five or six Memphis policemen up here summoned by
the defendant, and I'd like for them to be able to return to duty
=
as soon as possible. I'd like for the motion to suppress to be
taken up first for that reason only.
THE COURT: Aill right, sir.
MR. PROCTOR: We don’t object to that as long as we
don’t waive.
THE COURT: The Court will protect your rights, sir, and
not waive any of your rights.
MR. PROCTOR: Thank you, sir.
MR. CASH: This is the matter of STATE OF TENNESSEE
,. VERSUS JAMES M. NICHOLS, JR. and JAMES MITCHELL
on two indictments; 847. This first one is a motion to suppress.
(Evidence Heard on Motion to Suppress)
(Witness excused.)
Mr. Cash: Your Honor, we're not going to call any of the
other witnesses in connection with this motion to supress. How-
ever, we do want to go ahead with our motion—our Plea in
Abatement. The motion about the Grand Jury. We'd like to
call the three Grand Jury Commissioners at this time. Those
are our next witnesses. We'd like to call the jury commissioners
to find out how the jury panel was selected.
The Court: All right, Mr. Attorney General, what Mr. Cash
has asked for it the calling of the jury commissioners on selec-
tion of the jury. I don’t know how far this Court’s going to
go into this question, Mr. Cash. The Court can take judicial
notice that this Court has sonsistently had black people on our
juries. There are blacks onethe jury at this term. There were
blacks on the jury at the term of the indictment of these defend-
ants. The Court does not recall of its own knowledge whether
there were blacks on the Grand Jury that indicted. But, at least,
since this Court has been on the Bench; in 1966, I believe it is,
a
there have been blacks serving on the jury for this Court and on
the Grand Juries of this Court. The records—were they marked
as blacks and whites—which the Federal Courts prohibit us from
doing—would indicate this. This Court knows of its own knowl-
edge, and I think the attorneys representing the defendants in
this case know of their own knowledge— Maybe these defend-
ants don’t know this—but the Clerk can be put on; the jury
commissioners can be put on, but there is no reason and the
Court will allow you to put on some proof—but there’s no reason
to go into bringing every citizen in here to show this. This
Court knows this and the Court makes this statement into the
record, so that any reviewing Court will know this—that for
many years, at least, certainly, during the time that these defend-
ants were indicted, there have been blacks serving on the juries
in large numbers and on the Grand Juries in this Court.
As I said, I’m not positive about the particular make-up of
the Grand “Jury but it could be very easily found out and put
into the record what the Grand Jury make-up in this case was—
in this particular case—and I think we should do that.
Mr. Cash: We'd like, also, to find out how these jury com-
missioners go about selecting the Grand Jury to insure that a
proper number of blacks and other minority groups and these
peoples’ peers are in the panel.
The Court: All right, sir.
Mr. Cash: We'd like to call William Simonton.
Whereupon,
WILLIAM SIMONTON, JR.,
was called as a witness, and after having been first duly sworn,
[56] was examined and testified as follows:
Direct Examination
BY MR. CASH:
Q. You're William C. Simonton?
A. Yes, sir.
Q. Jr.?
A. Yes, sir.
Q. Mr. Simonton, you're a citizen of Tipton County, Ten-
nessee?
A. Yes, sir, indeed.
Q. And I ask you whether or not you have served as a jury
commissioner of this county?
A. Yes, sir, I have.
Q. Can you tell me approximately ow many years you've
done so?
A. Approximately 10 years.
Q. In the makeup of the jury commission, or commission-
ers, do you have a chairman?
A. Yes, sir.
Q. I ask you who has acted as chairman—well, back to
November, when you made up the jury panel, who was the
acting chairman of the jury commissioners at that time?
A. I was.
[57] Q. Had you acted as such chairman before that time?
A. Yes, sir.
Q. Now, what I want to ask you, Mr. Simonton, did you
act, also, as jury commissioner for this present term of Court,
the March Term?
A. Yes, sir.
Q. Now, for the November Term of Court when the jury
panel was selected, may I ask you how you obtained the names
that we used to be drawn here by His Honor to act as jurors?
A. Well, the jury panel is kept in a locked metal box. Each
name on a separate card. When we get through with one term,
I lock the box, initial the seal and seal the box. When we get
ready to draw the jurors the next time, I break the seal, un-
lock the box, we tumble the cards and then open the box and
we have a child, I believe—I believe the requirement is that
the child be less than 10 years old, and we have the child
draw the names.
Q. Did you have a child draw these names at the Novem-
ber Term when you got ready?
A. Yes, sir.
Q. Now, I ask you: Where did you get those names that
were in the box?
[58] A. The present jury list is made up from the telephone
book.
Q. And who made that up? Did you and your commission-
ers?
A. The present commissioners have been serving for about
10 years. We made up that list.
Q. And you used the current telephone book at that time
10 years ago?
A. No. No. This present jury panel was selected about two
years ago.
Q. Did you also select this by the use of the telephone book?
A. Two years ago is the first time we have used the tele-
phone book. Prior to that we used the voter registration list.
Q. So, the November Term of Court then you did use a
list that was made up from use of the telephone book?
A. Yes, sir.
Q. What listings or what telephone book did you use?
A. We used the telephone book furnished locally by South
Central Bell, which includes Covington, Mason and Munford
exchanges.
[59] Q. How can you insure from the use of the telephone
book that you’re getting a proportionate number of blacks to
the overall population, for instance, of the community?
— =
A. Well, we are aware of the need to show a proper racial
balance. We have discretion. It’s not just a case of going down
the list and every five names, you pick. We use this only as a
guide.
Q. Well, then, just how do you go about using this discre-
tion? Tell the Court. We'd like to know exactly how that is
determined, as far as you can tell us?
A. Well, we take the telephone book and we go down the
list and we see the name of someone that we know, either in
person or their reputation, to be of good character and we take
that name and put it on the card.
Q. And how do you go about establishing this good reputa-
tion?
A. By reputation. Our commissioners are from three distinct
areas of the county and, among the three of us, we’re pretty well
supposed to know, cither personally or by reputation, people
throughout the county.
Q. And do you make any effort to pick people by, say,
income?
A. No.
[60] Q. Whether or not they’re from the low income, so many
from the medium income and so many from the high income
groups?
A. The thought never crossed my mind, sir.
Q. What do you do to make sure that blacks are on there,—
the number of blacks?
A. We aré aware of the necessity of having a proper rep-
resentation. If you could phrase the question a little bit more
specifically, I could answer you a little bit more specifically.
Q. I'm merely asking you this, Mr. Simonton: How do you
insure that you will have a proper proportionate or a proper
ratio of black members on this jury panel? That’s really my
question.
= =
A. Well, we seek out the names of black citizens who we
know.
Q. Black citizens that you what?
A. Whom we know, either personally or by reputation.
Q. And you don’t make any effort to pick any black mem-
bers that you don’t know or white members that you don’t
know?
A. Black or white, either; no, sir.
Q. So you depend on knowing these people, then; your
knowledge of these people?
[61] A. Either personally, or by reputation; yes, sir. If it’s
just a name to us, we have to pass it up because we don’t know
them.
Q. So if you—lI, more or less, ask you a hypothetical question
—so if you know, say, 10 percent of the blacks and 90 percent
of the whites then that would be the ratio that would be used
on this panel; is that true?
A. If the percentages were valid; yes, sir, that would be the
way that it would be chosen.
[62] Q. So you don’t really make any effort to insure that you
have a proper ratio then, or a mathematical ratio——
THE COURT: Mr. Cash, the Court knows of no requirement
that there be a mathematical ratio. The Court believes the
law to be that the jury commission shall select citizens whom
they feel are qualified under the basis of the law of this
State. They have copies of this law. I believe he’s testified that
they try to put people in there that they know or know their
reputations. I think we ought to be more specific and ask him,
rather than ratios, if they have numbers, or substantial numbers
of blacks or not; whether they do or don’t. There’s no require-
ment that this Court knows of of any ratios, where they be
black, or low income or high income, or whatever. It’s just a
—
general picking of the population of this county in which this
case is being tried.
MR. CASH: We except to the Court’s ruling.
THE COURT: All right, sir. Let’s proceed.
MR. CASH: I have no further questions.
MR. CASH: Do you know the population ratio of black
and white in the county?
A. have approximately 30 percent black population
[63] in thé county, the last figure I saw.
MR. CASH: Thank you.
THE COURT: Mr. Attorney General.
Cross-Examination
BY GENERAL ABERNATHY:
Q. Mr. Simonton, speaking of that 30 percent black popula-
tion, would you know of your knowledge that just, maybe, a
couple of years ago on the change of venue, a case transferred
from Lauderdale County here, involving one Donald Brooks,
who was charged with cutting a white woman’s throat in Lauder-
dale County, would you know that on the trial of that case
there were four members of the Negro race on that jury?
A. No, sir, I wouldn't be aware of that.
GENERAL ABERNATHY: That’s all. Thank you.
THE COURT: Let me ask you a question or two, please, sir.
Do you recall from your own knowledge as to whether you
have, in putting the names in the box and then subsequently
drawing them out, from your knowledge and your discussion
with the other jury commissioners as to whether a sizeable
number of blacks and those of low economic status have been
on the jury panel?
= Po
THE WITNESS: Yes. We have been aware that there has
been a sizeable number of blacks on each jury [64] panel. I —
must say that economic status does not enter into our considera-
tion.
THE COURT: But let me ask you along these lines: Do
you know a lot of people and, consequently, do you know that
their status is both high and low economically?
THE WITNESS: Yes, sir.
THE COURT: Anything further from this witness?
Mr. CASH: No, sir.
(Witness excused.)
MR. CASH: Call William Bibb.
Whereupon,
WILLIAM BIBB,
was called as a witness, and after having been first duly sworn,
was examined and testified as follows:
Direct Examination
BY MR. PROCTOR:
Q. Mr. Bibb, you’re a member of the jury commission; a
member of the three jury commissioners of Tipton County?
A. Tam.
Q. How are the jury commissioners of Tipton County ap-
pointed?
A. By the Judge.
[65] Q. What Judge?
A. The Circuit Judge.
Q. To serve a definite term of office?
A. Four years.
—=
Q. The jury that served back at the—that were indicted
during the November 1972 Term, how was the Grand Jury
selected for that time, that period?
A. Mr. Proctor, we’re given a number of names by the Judge
to be drawn—the number of names.
THE COURT: Excuse me, Mr. Proctor, you don’t mean
the Grand Jury.
MR. PROCTOR: Oh, excuse me. I mean the jury panel.
A. These jury panels. The jurors names are in a lock box
and kept in a safe in the Clerk’s Office. The Chairman opens
the box and the jury commission is called. These names are
called by a child who is under 10 years old, one by one, and
they are selected in this manner.
Q. By what method—where does the jury commissioners get
that list? I think they used to get it from the voters registra-
tion list, but have they departed from that practice? How
were they obtained during the November 1972 Term of Court?
[66] A. They were selected from the telephone directories [66]
of the county.
Q. There would be no way of determining a person’s race—
whether he was black or white, yellow, brown—by the tele-
phone directory; would you?
A. Yes, sir. If you knew this person you would know; yes.
Q. You jury commissioners, at least one of you, would have
a personal knowledge of the individual, either by personal ac-
quaintance or by reputation and from the telephone directory?
A. Of those that we know, as far as it would be possible, in
our particular area of the county.
Q. And if you don’t know the man, either by personal ac-
quaintance or by reputation, they are not picked?
A. They're not supposed to be unless we are pretty well
aware of their reputation.
—
Q. Do you know whether or not—were there any colored
members on the Grand Jury during November of 1972?
A. No, sir, I do not know. We do not select the Grand
Jury.
Q. Would there be any way for the jury commission to know
what proportion of blacks and whites would be on the jury panel
in November of 1972?
[67] A. No, sir. Unless those that we know and as they were
drawn out and taken in the order in which they were drawn.
MR. PROCTOR: I believe that’s all.
GENERAL ABERNATHY: Thank you, sir.
(Witness excused.)
MR. CASH: Call W. D. Davis.
Whereupon,
W. F. DAVIS,
was called as a witness, and after having been first duly sworn,
was examined and testified as follows:
Direct Examination
BY MR. CASH:
Your name is W. D. Davis?
No, sir.
What is it, then?
W. F. Davis.
Where do you live, Mr. Davis?
Where do you live, Mr. Davis?
Out about Charleston.
What Civil District is that?
Fifteen.
How lorig have you lived there?
OFOPrFOOPO PO
— vo
A. All my life.
Q. Mr. Davis, I ask you if you are on the jury [68] com-
mission of Tipton County, Tennnessee?
A. Yes, sir.
Q. How long have you been on it?
A. About 10 years, I imagine.
Q. You're been serving with Mr. William Bibb and with
Mr. William Simonton?
A. That's right.
Q. Now I ask you: Were you serving as such, or just prior
to, the November Term of Court of 1972?
A. Yes, sir.
Q. And did you and Mr. Bibb and Mr. Simonton actually
choose a jury panel for that particular term or Court?
A. Yes, sir.
Q. Will you tell this Court exactly how you went about doing
that?
A. Well, we—there’s a girl—I imagine she’s about six years
old. She draws the names.
Q. Draws these names from where?
A. A box. A locked box. Mr. Simpson would lock it after
each drawing and seal it and initial it and when we'd get ready
to draw another one, he’d open it.
Q. What was done with this box after—Who safeguards it?
[69] A. The Clerk.
The Clerk of the Court?
Yes, sir.
Do you know where he keeps it?
He keeps it in a lock box.
Is that a safe in his office?
Yes, sir. .
rOPr OPO
=
Q. You say it has names in there; where did you get those
names?
A. From the telephone directory of Tipton County,.
Q. How did you go about choosing the names from the tele-
phone directory?
A. Well, we just went down the list and wrote them on the
cards.
Q. Well, did you take every fifth one or tenth one, or what?
A. No. We just went down the list and the ones that we knew
or knew of their reputation, we'd select them on that merit.
Q. Did you make an effort to see that a sizeable number of
blacks was on the list?
A. Yes, sir.
Q. Did you make any effort to determine what [70] pro-
portion of blacks you had?
A. Well, yes, sir, we tried to get proportions from the county.
Q. And you actually went about your selection in that pro-
cedure with a young six-year old girl making a selection out
of the box?
A. That’s right.
Q. Did you use this little girl, prior to the November Term of
Court? Do you recall?
A. Well, I just can’t remember exactly, but Mr. Simonton
usually brought the girl along. He'd bring different ones. He'd
get them off the street after school. We'd usually wait till after
school. We'd have to wait till after school so we could find .
someone that age. I don’t remember their names.
Q. Is any consideration given to their station in life, their
economic status?
A. No, sir. We just went down the telephone book.
Q. You mastly go by what you think their reputation is?
<= Po
A. Yes, sir. They’re supposed to be of good character. That's
my understanding.
Q. And that’s just from your general knowledge?
[71] A. Yes, sir. And in talking to other people.
MR. CASH: That’s all.
GENERAL ABERNATHY: No question. Thank you.
(Witness excused.)
Whereupon,
FRANK McBRIDE
was called as a witness, and after having been {rst duly sworn,
was examined and testified as follows:
Direct Examination
BY MR. CASH:
You’re Frank McBride, Sr.?
Yes, sir.
Live here in Covington?
Yes, sir.
You're a life-long resident of Tipton County, Tennessee?
rFOPO PO
Yes, sir.
Q. Mr. McBride, have you ever acted as foreman of the
Grand Jury of Tipton County, Tennessee?
A. Yes, sir.
Q. Over how many years would you say you did?
A. Oh, ten or twelve years ago I was on for five or six years,
I would say, and then about two or three times [72] since then,
just for one session of Court.
Q. Have you ever known of any blacks acting as foreman
of the Grand Jury?
A. Acting as Foreman?
—= =
Q. Yes, sir.
A. No, sir. I was always foreman when I was on the Grand
Jury.
Q. Have you ever known of any foreman that was a black
man?
A. No, sir.
Q. How were you selected as foreman? Who made that
selection?
A. The Presiding Judge.
Q. And he’s the one———
A. Well, it was back during Judge Walker’s—Judge Walker
was the first one that appointed me.
Q. Your function as foreman is to what—guide the pro-
ceedings of the Grand Jury?
A. That’s right.
Q. Is it your job to get the witnesses in and out of the
Courtroom or the Grand Jury Room?
A. (Nodded affirmatively.)
Q. And move proceedings along?
[73] A. That's right.
Q. To your own knowledge were you careful to—or were
your Grand Jurors careful to weigh all the evidence pro and
con that was presented to the Grand Jury?
A. As far as I know.
Q. And they were to find out if there was probable cause
or was not probable cause?
A. (Nodded affirmatively.)
Q. Were there any colored on the Grand Jury on which
you acted as foreman?
A. Yes, sir.
Q. That's been true at the last several times that you've
acted as foreman?
—_ —_
A. Yes, sir.
Q. How many, as a rule, would you have on your Grand
Jury—one, two, five, or what?
A. Oh, I think we’ve had as many as—usually, if I remem-
ber correctly, it’s three or four.
Q. On your last Grand Jury that you were foreman of,
how many did you have; do you recall?
A. I don’t recall the exact number but, probably three or
four.
Q. You just say “probably”, because you don’t [74] recall?
A. No, I really don’t.
Q. You know there was, at least, some?
A. Yes, there was some.
MR. CASH: That’s all.
GENERAL ABERNATHY: Thank you. No questions.
(Witness excused.)
MR. CASH: Call Peyton Smith.
Whereupon,
PEYTON J. SMITH
was called as a witness, and after having been first duly sworn,
was examined and testified as follows:
Direct Examination
BY MR. CASH:
You're Peyton J. Smith?
Yes, sir.
You're a resident of Tipton County, Tennessee?
Yes, sir.
For how many years, Mr. Smith?
All my life.
POP OPO
aw Tha
Q. Mr. Smith, I ask you, have you performed the duty of
foreman of the Grand Jury of Tipton County, Te.nessee?
A. Yes, sir.
[75] Q. How many times?
A. Quite a few. I was foreman for several years back in
the early ’50’s, and, because of health reasons, I had to re-
sign and then I have served several times since then on occa-
sion of the illness of the foreman at that time and actually
having been summoned to serve on the jury and drawn again
in the Grand Jury. I’ve had to serve then.
Q. When was the last time you served?
A. November Term of Court; °72.
Q. Have you known of any foreman that has been black?
A. No, sir.
Q. Did any blacks serve on the Grand Jury back in the
November Term of Court, °72?
A. Yes, sir.
Q. How many?
A. One that I remember particularly. There might have
been another, but I just happen to remember this one.
Q. Do you recall the name of the individual?
A. No, I don’t recall the name.
Q. But you do recall that there was at least one black;
there may have been two, you say?
A. It could have been another one; I don’t remember [76]
but I know this one in particular because I asked that person
to serve on one of the committees to examine the County
Penal Farm.
Q. Was this black a female or male?
A. Female.
Q. But you don’t recall the name?
A. No, sir.”
—
Q. How were you chosen at the November Term of Court?
Who chose you to be foreman of the Grand Jury?
A. The foreman who had been serving on a permanent
basis at that time could not be’ here and I was asked to come
and appear before this Court and the judge asked me to serve.
Q. Who asked you to appear?
A. Mr. Naifeh, who was the foreman the Term before.
Q. You appeared before His Honor here?
A. Yes, sir.
Q. And His Honor commissioned you or appointed you as
foreman of the Grand Jury for the November Term?
A. Yes, sir.
Q. Was that in writing or was that just oral?
A. Oral.
Q. You never received any commission or appointment in
writing?
[77] A. No, sir.
Q. In your other times that you’ve served—When was the
last time you served before the November Term of Court?
A. Well, as well as I remember, it was two years before and
I served twice.
Q. Were there any blacks on those Grand Juries?
A. Yes, sir, there were several on there each time.
Q. But only on at the November Term?
A. Yes, sir.
MR. CASH: That’s all.
THE COURT: Are there any questions from the State?
GENERAL ABERNATHY: Just one thing, if Your Honor,
please. a,
A
Se
.
= =
Cress-Examination
BY GENERAL ABERNATHY:
Q. In paragraph II of the Defendants’ Plea in Abatement this
question is raised: that the Grand Jury’s deliberations were
characterized by conduct and remarks reflecting racial hostility
against these three male Negro defendants, contrary to the Fifth
and Sixth Amendments of the United States’ Constitution. Now,
Mr. Smith, that’s the charge with reference to the Grand Jury
of which you were the foreman, which returned the indictments
against these men. Did anything like that happen in the jury
room?
A. Not that I recall. I don’t remember anything of that na-
ture. We heard testimony of such witnesses as we called and
there were no inflamatory or degrading remarks made at the
time.
Q. Nothing done reflecting any racial hostility in that Grand
Jury Room?
A. No, sir.
GENERAL ABERNATHY: That’s all.
Redirect Examination
BY MR. CASH:
Q. Who furnished you with the list of the individuals to call
as witnesses before the Grand Jury?
A. They were listed on the bill provided by the Attorney
General.
Q. Were there any blacks on that list?
A. I don’t recall. In fact, I don’t think we called—I don’t
know whether we called all the witnesses or not. Sometimes
we don’t. We merely call the number of witnesses till such time
as the Grand Jury is satisfied and ready to make a decision and
they don’t want to call any more.
Pee
—_—
Q. So you don’t recall how many or if you called any blacks?
[79] A. No. It was quite a few bills we had that day and
I'd have to look at the bills and the indictments and look at the
names before I could tell you.
Q. Mr. Smith, are there any transcripts—Do you have a court
reporter in the Grand Jury room?
A. No, sir.
Q. There is no transcript made of any of the testimony that’s
given by any of the witnesses?
A. No, sir.
Q. You simply question the witnesses that you feel, or that
someone has furnished you, and then when you feel that there
is enough evidence to show probable cause, then you-——
A. (Interrupting) I usually questions the witnesses first to
get basic information to the attention of the members of the
Grand Jury and then I ask, after each witness has been examined,
if there’s anyone in the room that wants to ask any further ques-
tions of that witness. They are, each and every one, given an
opportunity to question the witness.
Q. These proceedings are entirely oral and there’s no written
record of what transpires in there?
A. No written record, other than the names of the witnesses
who appeared are entered into the Courts records.
Q. Then, on the indictments, if there are a number [80] of
names that appear on there, it’s not necessarily all those names?
A. Only the ones that appear.
Q. Only the ones that appear are on the indictment?
A. Only the ones that appear
GENERAL PARKS: (Interrupting) If the Court please, I
think we can eliminate all that. Here are the indictments (in-
_dicating); he’s got a copy of them and they speak for themselves.
Q. (By Mr. Cash) What Id like to find out: Did you call all
=
these persons; Preston Shankle, Charles Lavelle, Jack Blackwell,
Robert Pickard, Bill Stimpson———
A. May I see the document?
THE COURT: I believe he’s stated that they were all listed
on there, but he didn’t necessarily call them all.
MR. CASH: Well, at one time I get one impression——
THE WITNESS: I called one witness Charles Lavelle. If
you'll look on here you can see that.
Q. (By Mr. Cash) He’s the only witness you called out of
that group of pepole that’s listed on there?
A. Yes, sir.
[81] Q. That’s all I wanted to find out.
A. The Grand Jury members were polled to see if they wanted
to hear any other witnesses and they said they did not.
Q. You don’t recall any other witnesses that were called for
that particular indictment?
A. No, sir.
MR. CASH: Thank you.
(Witness excused.)
Whereupon,
JIMMY NAIFEH
was called as a witness, and after having been first duly sworn,
was examined and testified as follows:
Direct Examination
BY MR. PROCTOR:
Q. State your name, please.
A. Jimmy Naifeh.
Q. You haye been recently serving as foreman of the Grand
Jury of Tipton County?
ek ee
ite +o
A. Yes, sir.
Q. How long have you so served?
A. Approximately two years.
Q. Have you ever known of a colored foreman of the Grand
Jury of Tipton County?
[82] A. I haven’t known if there was or if there wasn't.
Q. And you did not serve during the November 1972 Term
of the Circuit Court. I believe Mr. Smith served?
A. That’s correct.
Q. And you don’t know who was on this particular Grand
Jury?
A. No, sir.
Q. Have blacks served on the Grand Jury since you've been
foreman?
A. Yes, sir.
Q. Could you give us some idea of what pruportion of blacks
to whites have served during this period?
A. There are usually two or three blacks.
Q. Have you known of any 18 to 21 year olds that have
served?
A. No, sir. I can’t say that any have or have not. We don't
know their ages.
MR. PROCTOR: That's all.
GENERAL PARKS: No questions.
(Witness excused.)
=
Whereupon,
MRS. HAROLD BILLINGS
was called as a witness, and after having been first duly [83]
sworn, was examined and testified as follows:
Direct Examination
BY MR. PROCTOR:
Q. Mrs. Billings, did you serve on the Grand Jury of Tipton
County at the November 1972 Term of the Circuit Court?
A. I did.
Q. Do you recall whether or not there were any blacks on
the jury?
A. On the Grand Jury or in the room?
Q. On the Grand Jury.
A. Mrs. Buford served with us. She’s sitting back there (in-
dicating).
Q. Were there any others?
A. No, sir, we were drawn out of a hat and that’s the way
it landed.
Q. Do you recall there being more than one witness that
appeared before the Grand Jury in connection with the murder
case in which James Nichols, Jr. and James Mitchell were
charged during that session?
A. November was a long time ago, but, as far as I know,
Lavelle—Sherriff Lavelle was the only witness that we heard
on that.
Q. During the course of the conversation concerning these
[84] parties was there any discussion or anybody—did anybody
vioce any discrimination against them because of their race or
color?
A. No, sir; definitely not.
MR. PROCTOR: That's all. Thank you.
—
Cross Examination
BY GENERAL PARKS:
Q. Let me ask you this, Mrs. Billings: Were your delibera-
tions on that day in reference to investigating this case we're
talking about characterized by conduct and remarks reflecting
racial hostilities against the three male Negro defendants?
A. No, sir. Frankly, we were all scared to death and the
questions we asked were quite serious and we were all serious-
minded about it all. There was no comments of any form.
Redirect Examination
BY MR. CASH:
Q. You just made the comment that you were all scared to
death. Who were you afraid of and why were you afraid?
A. I didn’t mean it that way, but we were serious about it.
I think for all of us it was the first time to be on any type
of jury duty.
[85] Q. You're not implying then that you acted out of fear?
A. No, we were not intimidated. We were serious about it.
It was just kind of an expression.
MR. CASH: I just wanted to clarify that, Mr. Billings. That's
al!.
(Witness excused.)
MR. PROCTOR: Call W. B. Davis.
THE SHERIFF: Mr. W. B. Davis is in Florida. I'm not
sure when he'll be back.
MR. PROCTOR: Marvin E. Gay.
Whereupon,
=
MARVIN E. GAY,
was called as a witness, and after having been first duly sworn,
was examined and testified as follows:
Direct Examination
BY MR. CASH:
Q. Your name is Marvin E. Gay?
A. Yes, sir.
Q. Mr. Gay, did you serve on the Grand Jury back at the
November Term of Court, 1972?
A. Yes, sir.
Q. And at the time did you and the others consider [86]
the indictments against two individuals here, Nichols and
Mitchell?
A. Yes, sir.
Q. How many blacks served on that Grand Jury with you?
A. One.
Q. Was that Mary Ann Buford?
A. Yes, sir, I believe that’s her name. She’s sitting right
there (indicating).
Q. How many witnesses were called to appear before your
group?
A. One, as I know of; Mr. Charles Lavelle.
Q. You don’t recall any others?
A. No, sir.
Q. I ask you: What was the general attitude of the Grand
Jurors relative to the fact that these two, indicted here, were
biack?
A. Would you repeat that?
Q. Did the fact that these two defendants here were black—
did that enter into the discussion of have anything to do with the
. ii t? .
re
an Sans
A. No, sir. Not at all.
Q. You didn’t note any hostility because of race?
A. No, sir. |
[87] MR. CASH: No further questions.
GENERAL PARKS: No questions.
(Witness excused.)
MR. PROCTOR: Call Richard C. Morrison.
Whereupon,
RICHARD C. MORRISON,
was called as a witness, and after having been first duly sworn,
was examined and testified as follows:
Direct Examination
BY MR. PROCTOR:
Q. Your name is Richard C. Morrison?
A. Yes, sir.
Q. You were a member of the Grand Jury that served for
the Circuit Court of Tipton County, Tennessee, at Covington
during the November 1972 Term of Court?
A. Yes.
Were there any blacks that served with you on this jury?
There was one.
Do you recall her name?
Mary Ann Buford.
Q. Were there more than one witness that testified in con-
nection with the indictments where the two blacks, James [88]
Nichols, Jr. and James Mitchell, at that time for the alleged
murders?
A. No, sir.
PrP OPO
=
Q. During that time was there any hostility expressed to-
wards these defendants because they were blacks?
A. No, sir.
MR. PROCTOR: I believe that’s all.
GENERAL PARKS: No questions.
(Witness excused.)
MR. CASH: Call Henry L. Peel.
Whereupon,
HENRY L. PEEL,
was called as a witness, and after having been first duly sworn,
was examined and testified as follows:
THE COURT: Mr. Cash, I think we could save a little
time by agreeing that there was only one black that served on
this Grand Jury.
MR. CASH: All right.
Direct Examination
BY MR. CASH:
Q. You are Henry L. Peel, better kown as Lonzo Peel?
A. Right.
[89] Q. Mr. Peel, were you on this Grand Jury back at the
November Term 1972?
A. Yes, sir.
Q. Did you note any hostility expressed or indicated in any
way relative to these two blacks that were indicted on a murder
charge at that time?
A. No, sir, I did not.
Q. You didn’t note any at all?
A. No, sir:
PSs MA em, ke a -
—_ ee
Q. And your deliberations were strictly on the evidence pre-
sented by the witnesses that appeared in the Courtroom?
A. Yes, sir.
MR. CASH: That’s all.
(Witness excused.)
MR. PROCTOR: Call Mary Ann Buford.
Whereupon,
MARY ANN BUFORD,
was called as a witness, and after having been first duly sworn,
was examined and testified as follows:
Direct Examination
BY MR. CASH:
Q. You’re Mary Ann Buford?
[90] A. That’s right.
Q. Is it Mrs. Buford?
A. Miss.
Q. Miss?
A. Yes, sir.
Q. Miss Buford, you did serve on this Grand Jury back in
November Term of Court, 1972?
A. Yes, sir, I did.
Q. I believe it’s been established you were the only black.
Do you recall that you were?
A. Yes, sir.
Q. Now, Miss Buford, I ask you: You are a member of the
same rice as these two individuals. Was there hostility denoted
in any way relative to the indictments of these two individuals?
A. No, sir, no color or race was even discussed in the case
at all.
=
Q. You didn’t detect any kind of prejudice?
A. No, sir.
Q. Being a black, you would be sensitive to that type of
prejudice, if there were anything?
A. I guess so.
Q. You didn’t detect any?
[91] A. No, sir.
Q. None whatsoever?
A. None whatsoever.
Q. You're sure about that?
A. I'm positive.
MR. CASH: That's all.
(Witness excused.)
MR. PROCTOR: I wonder if we could examine these other
six collectively?
THE COURT: Let the others come around.
MR. PROCTOR: Mrs. O. V. Zenar, Nancy E. Ward, Billy
Wooten, Mrs. W. B. Reeves and J. C. Thornton, Jr.
Whereupon,
MRS. O. V. ZENAR, NANCY E. WARD, BILLY WOOTEN,
MRS. W. B. REEVES, J. C. THORNTON, JR.
were called as witnesses, and after having been first duly sworn,
were examined collectively and testified as follows:
Direct Examination
BY MR. CASH:
Q. Tm going to ask you collectively, all of you did serve
on the Grand Jury at the November Term of Court 1972?
== 93.
Q. And you served on there and you were a part of the [92]
Grand Jury Panel that indicted James Mitchell and James
Nichols, Jr. on first degree murder.
A. (Each witness nodded affirmatively.)
Q. Did you note any prejudice toward them or any others
involved in this relative to their color or their being black?
A. (Each witness nodded negatively.)
Q. You all say that you denoted no racial hostility, either
expressed or implied, or any undertones of it?
A. (Each witness nodded negatively.)
Q. Was there any consideration at all in the indictments
that they were black?
A. (By Witness Thornton) I think we were there for the
consideration of the indictments and not the color. That wasn't
brought up.
Q. You didn’t know whether they were blacks or not?
A. (By Witness Thornton) I didn’t.
THE COURT: Did any of you know that they were blacks?
A. (Each witness nodded negatively.)
WITNESS THORNTON: It wasn't specified.
THE COURT: Anything further?
[93] MR. CASH: Nothing further.
THE COURT: Thank you, lady and gentlemen, for being
here today.
(Witnesses excused.)
THE COURT: Any further witnesses? Do you have any
further matters you'd like to present, Mr. Proctor and Mr. Cash?
MR. CASH: None, to my knowledge.
THE COURT: Do you want to make any statements?
—s4—
MR. CASH: We have these pre-trial motions that have been
filed im this case, Your Honor. Should they be read at this time
or does Your Honor want to go over them and read them?
GENERAL ABERNATHY: If Your Honor please, I believe
right here, and in open Court, we cam agree on most of these
things.
THE COURT: Why don't we just go down them, kind of
numerically, on these things.
GENERAL ABERNATHY: Is Your Honor ruling first on
the Plea in Abatement? If Your Honor please, I would like to
put one witness on for the State.
THE COURT: Alli right.
[94] Whereupon,
H. M. PATRICK,
was called as a witness, and after having been first duly sworn,
was examined and testified as follows:
BY GENERAL ABERNATHY:
Q. Mr. Patrick, you are the Circuit Court Clerk of Tipton
County, and have been for how long?
A. About two and a half years.
Q. Mr. Patrick, the question has been raised about the
systematic exclusion of members of the Negro race from jury
duty in Tipton County. I have just one or two questions I
want to ask you about that.
Do you recall the occasion, approximately two years ago,
when a case wherein Donald Brooks, a member of the Negro
race, had been indicted in Lauderdale County for the throat-
cutting murder of a prominent white lady?
A. Ido.
—=— =
Q. And the case was transferred on application for change
of venue by the defendant to Tipton County for trial? Do you
recall that?
A. Yes, sir; I do, sir.
[95] Q. Do you recall that, upon the final selection of the
12 jurors who sat on that case, four of them were members of
the Negro race?
A. I do, sir. I cam name the names, if you'd like for me to.
Q. What do you personally know, Mr. Patrick—what's the
average—or could you give us any idea about the average ratio
of blacks to whites, whites to blacks, that occurs on practically
ever panel that is selected for jury service here every four
months?
A. With the ones that’s drawn in my office?
Q. And what you've had an opportunity to observe here in
the Courtroom?
A. Well, it’s a good percentage of blacks to the whites. Now,
I wouldn't want to——
Q. (Interrupting) Not a mathematical ratio, but has there
been a very substantial number of members of the Negro race
serving on Grand Juries and Trial Juries in Tipton County since
you've been Clerk?
A. Every Court, sir.
Q. How long have you been Clerk, sir?
A. Since 1970.
GENERAL ABERNATHY: Thank you. That's all.
[96] THE COURT: Any questions?
MR. PROCTOR: No, sir.
(Witness excused.)
THE COURT: All right, sir. On the motion to suppress,
the motion will be denied. Plea in Abatement will be denied.
vs. No. 846
JESSEE FORD, JAMES NICHOLS, JR.
JAMES MITCHELL, THEODORE ROGERS
Motion to suppress is denied and plea in abatement is over-
ruled. Court permits State to amend list of witnesses to be
subpoenaed the names of L. M. Rose and Dan Jones of the
Shelby County Sheriff's Department.
C rt adjourned until March 19, 1973.
/s/ Herman L. Reviere
JUDGE
In the Court of Criminal Appeals of Tennessee
Jackson, March, 1974
5
James Nichols, Jr. and James |
) No. 1
> Hon. Herman L. Reviere,
v. Judge
State of Tennessee, (Furst Deg
Defendant-in-Error._
For the Plaintiffs-in-Error: Wilbur F. Cash and John E. Proc-
tor, Covington, Tennessee
For the Defendant-in-Error: David M. Pack, Attorney Gen-
eral; .Weldon B. White, Jr., Assistant Attorney General;
— 37 —
Will Terry Abernathy, District Attorney General; Preston
Opinion Filed: June 5, 1974
AFFIRMED
WILLIAM S. RUSSELL,
Judge
James Nichols, Jr.. and James Mitchell, the plaintiffs-in-
the murder in the first degree of William Nabors and Claudie
Geees, Plaietifie were tried, found guilty of murder in
the first degree, and sentenced to consecutive sentences of
sixty years in the penitentiary in each case.
The murders arose out of the armed robbery by Nichols
and Mitchell of a cafe in Tipton County. The lengthy record
refiects that Nichols, with a pistol in each hand, informed the
proprietor that it was a stickup and forced him to hand over
the cash register receipts of about five or six hundred dollars.
Nichols also took money from the person of the proprietor
and others, fired several shots into the back room, and fied.
enn te ie Gal tnttn 8 Gon eats cet came extend
were engaged in a dice game. One of Gese geting ee
William Nabors, who was shot in the mouth by Mitchel
Nabors bent over to pick up some change on the floor. Mitchell
also went into the front room and took some money from the
from a .38 calibre pistol. Witnesses in the back room testi
they saw Greer fall after they heard a shot from the front room.
The extensive record contains the testimony of many eye-
witnesses. All of them were in a good position to observe the
=
stickup men at close range over a considerable period of time,
and all witnesses positively identified plaintiffs-in-error as the
men who perpetrated these brutal murders. Nichols was later
arrested with a .38 calibre pistol im his possession, and a
sawed-off shotgun was found at the apartment of Mitchell's
girl friend. In addition, the Memphis police were given a con-
fession to the crime by Mitchell, the substance of which was
related to the jury by the police officer who took it.
In view of the foregoing, we overrule the assignments of
error attacking the legal sufficiency of the convicting evidence.
It is the often-stated rule that this court cannot reverse on the
facts unless the evidence is shown to preponderate against the
vanties of Go juny ont Site 6 Se
Bee v. Sease, 213 Tenn. 15, 372 S.W.2d 173.
The third assignment states that it was error not to sustain
the plea in abatement to the indictment because the proof
showed that no Negro had ever served as foreman of the grand
telephone directory. .
The Tipton County jury commissioners were put on the
stand during the hearing on this matter, and they testified that
they were aware of the need to select a proper racial balance
and sought out the names of blacks they knew personally or
by reputation. A sizable number of blacks and people of low
income were shown to have in fact served on the jury panels.
Past grand jury foremen testified as to the presence of blacks
nae genet A black who served on the grand jury who
coward Negroes on the part of the other jasors. “The question
of whether there has or has not been shown such a systematic
exclusion of racial groups as to violate the nights of an ac-
cused is, necessarily, largely one of fact in each case.” State v.
Johnson, 220 Tenn. 49, 413 S.W.2d 694. The facts here do
an ws
=
not demonstrate a systematic exclusion of Negroes upon racial
grounds, and the assignment of error is overruled.
Plaintiffs-in-error, in their fourth assignment of error, con-
tend that it was error to fail to suppress the pistol and shotgun
obtained as a result of their arrest, said arrest being without a
warrant and no search warrant having been obtained.
T.C.A. § 40-803 permits an officer to make an arrest, with-
oui a warrant, when a felony has in fact been committed, and
he has reasonable cause for believing the person arrested com-
mitted it. The facts show that the police had reasonable cause
to believe plaintiffs-in-error had committed the Tipton County
murders, and that they also knew that plaintiffs-in-error were
to leave town the following day. Under the circumstances, an
arrest was proper. The pistol was found incident to the arrest
and was properly admitted into evidence. Goodner v. State,
3 Tenn.Crim.App. 569, 464 S.W.2d 339. It also appears
that the officers were invited into the apartment to search by
its owner, and a search with the permission of the owner is
not an unreasonable search. Deerfield v. State, 220 Tenn. 546,
420 S.W.2d 649.
The Deerfield case also applies with respect to the seizure
of the sawed-off shotgun, since it was found at another loca-
tion pursuant to a search after the owners of the premises had
voluntarily given the police permission to search.
The fifth assignment of error complains of the action of the
trial court in consolidating for trial the two cases of murder.
The cases were properly consolidated because both murders
arose out of the robbery of White’s Cafe by plaintiffs-in-error.
When the offenses charged are similar, related, or connected
such consolidation is proper. State ex rel. Gann v. Henderson,
221 Tenn. 209, 425 S.W. 2d 616.
The sixth assignment of error argues that it was error not to
sever the trials of Mitchell and Nichols because a confession of
—_
Mitchell was read to the jury. Plaintiff-in-error Nichols reasons
that this confession, made in his absence, denied him the right
to confront Mitchell who did not take the stand. Generally, the
granting of a severance addresses itself to the sound discretion
of the trial court, and we find uo abuse of that discretion here.
O'Neil v. State, 2 Tenn.Crim.App. 518, 455 S.W.2d 597. No
reference to Nichols was made in the confession, and we do not
think the jury was prejudiced against Nichols in hearing it. The
test in granting a severance is a “likelihood of substantial
prejudice” if tried together. Hoskins v. State, — Tenn.Crim.App.
—, 489 S.W.2d 544. The facts in this case do not meet this
test, and the motion for severance was properly denied.
Plaintiffs-in-error, who were indigent, requested a mental
examination to determine if they were capable of defending the
charges against them. In their seventh assignment of error, they
say that it was error for the trial court to refuse to order such
an examination. Both plaintiffs-in-error had been before the
trial court prior to the’request for the mental examination and
had presented, pro se, a motion to suppress certain evidence.
The trial court had other opportunities to observe them, and
concluded that they were capable of conferring with counsel.
We find no basis in the record for a holding of prejudicial »rror
in denying the mental examination.
In the eighth assignment of error, plaintiffs-in-error com-
plain of the trial court’s failure to grant them a continuance until
April 10, 1973 in order to locate additional witnesses who
might have been helpful in their defense. Plaintiffs-in-error were
indicted on November 6, 1972, and the actual trial commenced
on March 21, 1973. The record shows that the trial court did
grant a continuance to obtain additional defense witnesses,
even bringing in one witness plaintiffs-in-error stated they needed
but who was released prior to trial. Four other defense wit-
nesses for whom a continuance had been granted were not put
on by the defense.
wy
We have held that a motion for continuance is within the
sound discretion of the trial court, and we find no abuse of dis-
cretion in denying a continuance. Frazier v. State, 3 Tenn.Crim.
App. 696, 466 S.W.2d 535. Under the facts in this case, we
find that there was a reasonable time in which to prepare a de-
fense, and further delay would have served no purpose. See
State ex rel. Leighton v. Henderson, 1 Tenn.Crim.App. 598,
488 S.W.2d 82. No prejudice has been demonstrated.
The ninth assignment of error states that the trial court erred
in granting a severance as to one Jesse Ford, a co-defendant in-
dicted along with Nichols and Mitchell for the murder of Nabors
and Greer. The plaintiffs-in-error contend that by severing
Ford’s case from theirs, they were deprived of possible help
from Ford's testimony who because of his right against self-in-
crimination, could not be forced to testify against his will on their
behalf. That this argument has no merit can readily be seen,
since even had Ford been tried with plaintiffs-in-error, he would
not have had to take the stand against his will.
The tenth and eleventh assignments of error attack the verdict
as returned by the jury. Upon returning from their deliberations,
the jury announced that they had found plaintiffs-in-error guilty
of murder in the first degree as charged in the indictments, and
fixed their punishment “at not less than 30 years and 1 day and
not more than 60 years for each count; Nos. 846 and 847”. The
trial court recognized that this verdict was in improper form,
since the indeterminate sentence law does not apply to the capital
offenses of murder and rape. Franks v. State, 187 Tenn. 174,
213 S.W.2d 195.
Plaintiffs-in-error maintain that the trial court should have
declared a mistrial when the jury returned the above verdict,
and should not have given them further instructions with
examples as to what form the verdict should be. We cannot
agree. As was said in State ex rel. Myers v. Brown, 209 Tenn.
141, 351 S.W.2d 385, “The Court has the power, and it is
= pm
his duty, when a jury offers to return an informal or insufficient
verdict, to send them back to the jury room with directions to
amend it and put it in proper form”. In light of the above,
the trial court acted properly and the final two assignments of
error are overruled.
Affirmed.
/s/ William S. Russell
Judge
CONCUR:
/s/ Mark A. Walker
Presiding Judge
/s/ W. Wayne Oliver
Judge
In the Supreme Court of Tennessee
At Jackson
James Nichols, Jr. and James Mitchell, >
Petitioners,
v. Tipton Criminal
No. 1
State of Tennessee,
Respondent. ,
IN RE: PETITION FOR WRIT OF CERTIORARI OF
JAMES NICHOLS, JR. AND JAMES MITCH-
ELL
(Filed March 10, 1975)
Upon connsideration of the petition, briefs, and the entire
record in the cause, it is the judgment of this Court that the
Court of Criminal Appeals has correctly dealt with the issue.
The writ is denied 7
PER CURIAM
—_
James E. Mitchell 66684
Full name and Prison Number (if
any) of Petitioner, Case No. 75-222
“ | (To be supplied by
| Clerk, U.S. District
Jim H. Rose (Warden) Court)
Name of Respondent
(Jailor, Warden).
PETITION FOR WRIT OF HABEAS CORPUS
INSTRUCTIONS—READ CAREFULLY
In order for this petition to receive consideration by the Dis-
trict Court, it shall be legibly handwritten or typewritten, signed
by the petitioner and verified (notarized), and it shall set forth
in concise form the answer to each applicable question. If nec-
essary, petitioners may complete the answer to a particular ques-
tion on the reverse side of the page or on an additional blank
page. Petitioner shall make clear which question any such
continued answer refers to.
If you challenge more than one conviction or sentence, you
must do so by separate petitions unless your claims for relief
arise out of the same proceeding.
A petition is not a legal brief. Refer only to cases you
were involved in leading up to this petition. You may file a
separate memorandum of authorities.
Since every petition for habeas corpus must be sworn to un-
der oath, any false statement of a material fact therein may
serve as the basis of prosecution and conviction for perjury. Pe-
titioners should, therefore, exercise care to assure that all an-
swers are true and correct.
an @6 <=
If the petition is taken in forma pauperis (on a pauper’s
oath) it shall include an affidavit (attached to the back of this
form) setting forth information which establishes that petitioner
will be unable to pay the fees and costs of the habeas corpus
proceedings. Even though you may be allowed to file your pe-
tition on a pauper’s oath, costs may be adjudged against you
and execution issued if it later appears that you have sufficient
funds.
When the petition is completed, the original and two (2) copies
shall be mailed to:
Clerk, United States District Court
Western District of Tennessee
Federal Building
Memphis, Tennessee 38103
PETITIONS NOT CONFORMING TO THESE
INSTRUCTIONS WILL BE RETURNED
1. Place of detension: Tennessee State Penitentiary.
2. Name and location of court which imposed sentence:
Criminal Court of Tiption County Covington, Ten-
nessee.
3. The indictment number, or numbers, if known, con-
nected with the offense or offenses for which sentence
was imposed:
(a) NO 447
(b) NO 448
ae sabe
4. The date sentence was imposed and the terms of the
sentence:
(a) March 22, 1973
_(b) Sixty Years for Ist, deg murder
(c) Sixty Years for Aid & abeding, Concetively.
—_
5. Check whether finding of guilty was made:
(a) after a plea of guilty ....
(b) after a plea of not guilty X
(c) after a plea of nolo contendere ....
6. If you were found guilty after a plea of not guilty,
check whether that finding was made by:
(a) a jury X
(b) a judge without a jury
7. Did you appeal from the judgement of conviction or
the imposition of sentence? Yes
8. If your answer to number 7 was “yes” list the following:
(a) the name of each court you appealed to:
I The Tennessee Criminal Court of Appeals
II Tennessee State Supreme Court, Jackson,
Tenn.
(b) the results in each court you appealed to:
I Affirmed
Il Affirmed
(c) the date of each result:
I June 5, 1974
II March 10, 1975
(d) citations of any written opinions or orders entered
pursuant to such results, if known:
I NON
II NON
9. If your answer to number 7 was “no,” give your reasons
for not appealing:
10. Prior to this petition have you filed any of the follow-
ing with respect to this conviction:
(a) any petition for habeas corpus in state or federal
courts? NON
—_—~ =
(b) any petition in state court under any post con-
viction procedure laws? no
(c) any petition in state court by way of coram nobis?
no
(d) any petition in the United States Supreme Court
for certiorari other than petitions, if any, already
given in answer to number 8? no
(e) any other petitions, motions or applications in this
or any other court? no
11. If you answered “yes” to any part of number 10,
list the following with respect to each petition, mo-
tion or application:
(a) the name and location of the court in which each
petition, motion or application was filed:
I
Il
Ill
IV
(>) the specific nature of each petition, motion or
application >
I
ll
Mm
IV
(c) the disposition of each petition, motion or applica-
Jean §
£424
II NoN
fll NoN
IV NoN
(e) citations of any written opinions or orders entered
pursuant to each such disposition, if known:
12. State concisely the grounds on which you base your
allegation that you are being held in custody unlaw-
fully. Do not cite cases except those in which you
were involved.
There is no evidence to support said verdicts.
The evidence preponderates against guilty verdicts and in
favor of their innocence, (3) the court erred in not sustaining
pleas in abatement of defendants alleging racial discrimination
in the selecting of the foreman of the Grand Jury and Jury
commissioners.
(4) The Court erred in not sustaining motion of defendants
to supress exhibits of a .38 caliber pistol and a sawed-off shot
gun obtained during their arrest without a criminal warrant.
(S) The Court erred in not sustaining application of defend-
with first degree murders of Claudie Greer and Wm. A. Nabors.
(6) The alleged confession of James Mitchell incriminates
by inference.
(7) The Court erred in not sustaining of petitions of defend-
ants for a admission to a state Institution for mental observation
and report to the Court under provision of SEC. 33-701, TCA.
— =
(8) The Court erred in not continuing defendants’ cases until
April 16th 1973, in order for them to locate witnesses.
(9) The Court erred in granting motion for severance of the
(10) The Court erred in not ordering a mistrial in said two
cases when the jury returned a verdict finding defendants
guilty of first-degree murder and setting their penalty at “not
less than thirty (30) years and a day and not more than Sixty
(60) years on each Count,” and im ordering the jury to return
to the jury room for further consideration of said case.
G1) The Coun caved in calling Ge jury beck Som Gs pay
they could impose upon said defendants im said case.
That the Trial Court erred in not granting defendant's motion
for a new trial and both cases should be reversed and remanded
to the lower Court for a new trial.
State Concisely and im the same order the facts which support
each of the grounds set out in number 12. Do not cite cases
except these in which you were involved.
The defendants James Nichols, Jr. and James Mitchell were ar-
rested without criminal warrants or search warrants on October
29, 1972, im an apartment occupied by the States Witness,
Antoinette Gilchrist, at 661 St. Paul, Memphis, Tennessee, who
in response to knocks of police officers opened her apartment
door which was entered by the officers, who made observation
and first searched same before securing a consent from her (B_E.
Vol. III pp. 164-167, 170-172).
A .38 caliber snubnose pistol and ring, subsequently made ex-
hibits in the trial of the said cases, were obtained by the officers
at the time of the search of the apartment at 661 St. Paul on
October 29, 1972; and the said pistol was not identified as the
pistol used at Sunny Mans Club in Tipton County, Tennessee,
on October 28, 1972, in the commission of the crimes for which
defendants James Nichols, Jr. and James Mitchell were indicted,
tried and convicted (B. E. Vol. III pp 175, L77-181).
A sawed-off shotgun, obtained by officers on October 29, 1972,
at the home of Mildred Jones and State witness, Eddie Mae
Jones, at 1054 Claybrook, Memphis, Tennessee, as a result of
a consent to search, was introduced as an exhibit at the trial of
the defendants without being identified as the sawed off-shotgun
used at Sunny Man's Club in Tipton County, Tennessee, on Oc-
tober 28, 1972, in the commission of the crimes for which these
was brought to the said home by a person other than either de-
fendants James Mitchell or James Nichols, Jr. (B. E. Vol. Ill
181-184; 187).
IV
No witness who testified in regards to the allegations in the de-
fendant's plea in abatement to the indictments indicated that a
negro ever served as foreman of the grand jury in Tipton County,
Tennessee, and the Jury Commissioners had selected the current
jury panel, out of which the trial jury in these cases was chosen,
from recently published telephone directories, selecting therefore
in person or by their reputations, and all others of both races
were excluded (B. E. Vol. pp. 55-82).
vV
Defendant James Nichols, Jr. was not present in the Security
Unit in John Gaston Hospital, Memphis, Tennessee, shortly after
October 28, 1972, when defendant James Mitchell allegedly
made an admission that on October 28, 1972 he took < sawed-
off shotgun and went into Sunny Man's Club in Tipton County,
Tennessee, and shot twice, but did not know if he killed anyone,
and defendant James Mitchell did not testify as a witness in his
own behalf in the trial of the said two cases, wherein he was
jointly tried with defendant James Nichols, Jr. (B. E. Vol. Il
297-300, B. E. Vol. IV 303-307).
VI
After the charge of the Trial Court the trial jury, who had jointly
tried defendants James Nichols, Jr. and James Mitchell in said
two consolidated cases, retired to the jury room, and after de-
liberating therein, returned to the courtroom and announced to
the Court they had found said defendants guilty of first degree
murder and set the penality for each of the defendants at not
less than 30 years and 1 day and not more than 60 years for
each count. Nos. 846 and 847. The Trial Judge accepted their
findings of guilt but asked the jury to retire once again and fix
the maximum punishment only for each defendant in each case,
whereupon he read to them again the punishment. The jury
again retired but were recalled to the court room where the
Trial Judge charged them that they may fix the punishment
at life in the Penitentiary or at any number of years between
20 years and a day, 30 years, 40 years, 60 years, 75 years,
99 years, or any other number of years above 20 years (B. E.
Vol. IV, pp 353-360).
vil
After the foregoing instructions by the Trial Court the jury again
retired deliberated and returned with a verdict stating: “we, the
a= $§ .
jury, find James Nicholas, Jr. and James Mitchell guilty of First
Degree Murder on two counts; Nos. 846 and 847, and set the
penalty for each of the defendants at a maximum of 60 years on
count NO. 846 and set the maximum penality for each of the de-
fendants at a maximum of 60 years on Count NO. 847” (B. E.
Vol. 4, p 359).
14. Has any ground set forth in number 12 been pre-
viously presented to this or any other court, state or
federal, in any petition, motion or application? Non
15. If your answer to number 14 is “yes” identify:
(a) which grounds have previously presented:
I Non
Non
Il Non
Non
Ill Non
Non
(b) the proceedings in which each ground was raised;
I Non
Non
Il Non
Nona
Ill Non
Non
16. Were you represented by an attorney at any time
during the course of:
(a) your arraignment and plea? Yes
(b) Your trial, if any? Yes
(c) your sentencing? Yes
(d) your appeal, if any, from the judgment of con-
viction or the imposition of sentence? Yes
— yy.
(ec) Preparation, presentation or consideration of any
petitions, motions or applications with respect to
this conviction? Yes
17. If the answer to any part of number 16 was “yes”
list the following:
(a) the name and address of each attorney who rep-
resented you:
eeesesoeseeeeeeaeeee ec oa eae seseaeaeeeeee**
eeeeseceoeeeeeve eo oe eeeeeeeeeeereereereerererrer
o* ene ©e@ ee @ BGG HReee eee eeeeeeeeeeeeeee
(>) the proceeding in which such attorney repre-
sented you:
18. If you are seeking leave to proceed in forma pauperis
(on a pauper’s oath), have you completed the sworn
affidavit setting forth the required information (see
instructions at the beginning of this form)? Yes
/s/ JAMES E. MITCHELL
(Signature of Petitioner)
— va
In the United States District Court
For the Western District of Tennessee
Western Division
James E. Michell,
Petitioner,
| Civil C-75-222
Jim H. Rose, Warden,
Respondent. —
ORDER TO SHOW CAUSE
(Filed May 19, 1975)
It appearing that James E. Mitchell, who is a prisoner of
the State of Tennessee, has filed a petition for writ of habeas
corpus attacking his conviction and sentence imposed in the
Criminal Court of Tipton County, Tennessee;
It is ORDERED that respondent show cause why the writ
and the relief prayed for in the petition should not be granted
and, good cause appearing, respondent is allowed 23 days in
which to answer.
It is further ORDERED that respondent file with his answer
a copy of the technical record and trial transcript as well as
any opinions on appeal of the conviction.
ENTER this 19th day of May, 1975.
/s/ BAILEY BROWN
CHIEF JUDGE
(Illegible)
(Illegible)
/s/ By (Illegible)
Deputy Clerk
= =
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
James E. Mitchell, .
Petitioner
- - Civil No. C-75-222
Jim H. Rose, Warden,
Respondent
RESPONSE TO ORDER TO SHOW CAUSE
Comes the respondent, Jim H. Rose, Warden, anc makes
response to the Order of the Court, filed May 19, 1975, to show
cause why the Writ of Habeas Corpus and the relief prayed for
in this cause should not be granted. The Writ should be denied,
and the relief sought should not be granted.
Exhaustion of State Remedies
Although the Petition shows on its face (p. 3) that the pe-
titioner has sought no relief under Tennessee’s Post-Conviction
Procedure Act, this Petition is a paraphrase of the Assignments
of Error filed by the petitioner upon his direct appeal, and passed
upon by appellate courts of Tennessee. Therefore, the petitioner
has exhausted his remedies at state law before commencing this
action.!
1 See Arthur v. State, 483 S.W.2d 95 (Tenn. 1972).
=
Grounds for Petition
LH
“1. There is no evidence to support said verdict.”
“2. The evidence preponderates against guilty verdicts and in
favor of their innocence.”
These two grounds allege insufficient evidence for convic-
tion. Unless there is a near-complete absence of evidence,
this is not a ground upon which federal Habeas Corpus Relief
may be granted.* The trial transcript in this case clearly shows
that there was ample evidence, based upon personal identification
of the petitioner by numerous witnesses and upon his confession,
that he personally shot one man to death while participating in
a robbery during which another man was also shot and killed.
There is no merit, therefore, to this asserted ground.
III
“3. The Court erred in not sustaining pleas in abatement of
defendants alleging racial discrimination in the selection of the
foreman of the Grand Jury and Jury Commissioners.”
The Trial Judge conducted a hearing on the question of
racial discrimination in the selection of grand jurors and jury
commissioners, which is found at Volume I, pp. 54-96. Evidence
presented in that hearing shows that grand jurors were aware
of the need to avoid racial discrimination, and that they did all
that they could to assure that blacks whom they knew to be of
good character were included as grand jurors. Finally, there was
testimony that there was no hostility whatever among the grand
2 Casias v. Patterson, 398 F.2d 486 (10th Cir. 1968). cert. deni
393 U.S. 1108. ' an
jurors toward the petitioner because of his race. The petitioner
has failed to carry his burden of proof that there was systematic
exclusion of blacks from the grand jury which indicted him.*
1V
“4. The'Coart erred in not sustaining motion of defendants
to surpress exhibits of a .38 caliber pistol and a sawed-off shot
gun obtained during their arrest without a criminal warrant.”
This ground of the Petition is without merit. The Trial Court
conducted a hearing on the legality of these two searches which
resulted in the seizure of a pistol, a ring, and a shotgun (Vol. I,
pp. 6-53, 96). Testimony in that hearing showed that in response
to a telephone call by a reliable informant to Memphis police,
made late at night, saying that the men who had committed
the murders in Tipton County were at a certain address and that
they were going to leave town in the morning, the police went
directly to the address given, since there was not time for them
to obtain a warrant. They knocked on the door and were ad-
mitted, and as they walked in they saw the co-defendant of this
petitioner standing in the apartment with a pistol in his hand.
They obtained a consent to search the premises from the lessee,
and did so, arresting this petitioner and seizing the pistol and a
ring taken in the robbery. Later, upon obtaining consent to
search another apartment, they went there and found a shotgun
left there by this petitioner. It is obvious from the Record that
no unreasonable search or seizure was made, and the evidence
seized was properly admitted. The police acted with reasonable
cause to believe that the men in the first apartment were the
murderers sought, and they lawfully entered the apartment to
arrest them, after which entry the ring and the pistol were in
plain view, and the pistol was near enough that its seizure was
the result of a search incident to the lawful arrest of the men.
3 Swain v. Alabama, 380 U.S. 202 (1965).
—~ -*
It also is clear that the men were admitted to the apartment by
the tenant, who also signed a consent to the search. A question
was raised regarding at what time during the search the consent
had been signed, but this carinot be material since a consent
made during a search is a more informed consent than one made
before a search. In addition, the second search, during which the
shotgun used by the petitioner to kill his victim was seized, was
made at the instance of the tenant and with her signed consent.
The petitioner was deprived of no constitutional or statutory
right by the actions of the police during these searches.
In summary, the search was made upon probable cause, * and
it can also be justified as incident to a lawful arrest,® and during
which the items were in plain view. * In addition, the searches
were made with the consent of the person with the right to con-
trol the premises, * and the petitioner lacked standing to com-
plain of the search. *
Vv
“5. The Court erred in not sustaining application of defend-
ants for separate trials in the two indictments charging them with
first degree murders of Claudie Greer and Wm. A. Nabors.”
This contention is without merit, the petitioner having failed
to point out any prejudice, much less deprivation of constitu-
tional rights, caused by his trial with James Nichols.
* U.S. v. McKinney, 379 F.2d 259 (6th Cir. 1967).
co v. Manarite, 448 F.2d 583 (2d Cir. 1971), cert. denied,
» 4 v. Glassel, 448 F.2d 143 (9th Cir. 1973), cert. denied, 416
? McCravy v. Moore, 476 F.2d 281 (6th Cir. 1973).
‘on U.S. v. Hearn, 496 F.2d 236 (6th Cir. 1974), cert. denied,
—=
VI
“6. The alleged confession of James Mitchell incriminates by
inference, jam James [Nichols], Jr. who was not present.”
This contention is without merit; it could be asserted only by
James Nichols, and not by this petitioner, James Mitchell, who
is the one who made the confession.
vil
“7. The Court erred in not sustaining of [petitions of] defend-
ants for a admission to a state Institution for mental observation
and report to the Court under provision of SEC. 33-701, T.
C. A.”
The Trial Judge conducted a hearing on this question, the
Record of which is found at pp. 1-16, which begins following
page 104 of Volumn I of the Record. This would not be a
ground for Habeas Corpus Relief unless a defendant were so
mentally incapable of participating in his trial and putting forth
his best defense that it was a denial of due process of law.
It is apparent from the Record that the petitioner participated
fully in his defense, and that the Trial Judge was within his
discretion in holding that the petitioner was competent to stand
trial.
Vill
“8. The Court erred in not continuing defendants’ cases until
April-16th 1973, im order for them to locate witnesses.”
This contention is without merit, the petitioner having failed
to show that he was prejudiced in any way by the Trial Court’s
failure to order an additional continuance so that the petitioner
and his co-defendant could locate other witnesses whom they
a ee
claimed to exist. The Trial Court’s efforts to accomodate the
defendants’ requests for additional witnesses are shown in the
Record at Vol. II, pp. 2-33, Vol. IV, pp. 318-319. The wit-
nesses whom the defendant did call, Lonnie Williams (Vol. IV,
p. 308) and James Jackson (B. E. 320), were unable to add
anything to their defense. There was no showing at the time,
and there is no showing now, that there is in existence any person
who can add anything to the defense of the petitioner. The
Trial Court’s refusal to continue the trial indefinitely, to indulge
the petitioner’s hope that some elusive witness might some day
be found, did not deprive the petitioner of any constitutional
or statutory right.
IX
9. The Court erred in granting motion for severance of the
co-defendant Jesse Ford jointly indicted with defendants.”
The petitioner has not shown any way in which he was preju-
diced by the severance of Jesse Ford.
X-XI
“10. The Court erred in not ordering a mistrial im said two
cases when the jury returned a verdict finding defendants guilty
of first-degree murder and setting their penalty at “not less than
thirty (30) years and a day and not more than sixty (60) years
on each count,” and in ordering the jury to return to the jury
room for further consideration of said case.”
“11. The Court erred in calling the jury back from the jury
room and giving them examples of possible maximum sentences
they could impose upon said defendant in said case,”
These grounds allege constitutional error in the Trial Court's
handling of the jury’s erroneous sentence. The jury first an-
nounced that it had found the petitioner and his co-defendant
guilty of first-degree murder, and that it had set a sentence of
not less than thirty (30) years nor more than sixty (60) years
of each of the two counts. This sentence was inconsistent with
the verdict: the sentence was in “indeterminate” form, which
is required for sentences for some crimes by T.C.A. § 40-2707.
That statute applies only to offenses for which punishment must
be set “within minimum and maximum terms.” The punish-
ment precribed for conviction of firsi-degree murder, however,
is not in this form, because there is no maximum term set by the
Act. Therefore, T.C_A. § 40-2707 does not apply where a con-
viction is for first-degree murder.* When the jury announced
that it had found the defendant guilty of first-degree murder,
yet expressed its sentence in indeterminate form, the Trial J sdge
therefore had to send the jury back for reconsideration of the
its sentence in the correct form, and it was properly accepted
by the Trial Court. This is no ground for Habeas Corpus
relief; the practice, which has been approved by the appellate
courts of Tennessee,"® is a reasonable method of meeting such
a problem. The jury had reached a verdict on the guilt of the
defendant, and there was no reason to think that that verdict
would change just because the sentence would have to be
changed; if the jury had felt that it would have said so at the
announcement of the second sentence.
Sammary
The petitioner has shown no deprivation of constitutional
or statutory right which would entitle him to federal Habeas
Corpus Relief. The respondent respectfully suggests that the
Record of the petitioner's trial is sufficient for the determina-
tion of all matters raised in this Petition, and that no eviden-
tiary hearing will be required in this cause.
* Miller v. State, S20 S\W.2d 729 (Tenn. 1975).
1® Jenkins v. State, S09 S.W.2d 240 (Tenn. Crim. App. 1974).
—
WHEREFORE, PREMISES CONSIDERED, THE RE-
SPONDENT PRAYS THAT THIS ACTION BE DISMISS
Respectfully submitted,
/s/ TOM JENNINGS
Assistant Attorney General
414 Supreme Court Building
Nashville, Tennessee 37219
(615) 741-2250
Certificate of Service
I hereby certify that I mailed a copy of this Response to
Mr. James E. Mitchell, No. 66684, Tennessee State Peniten-
tiary, Nashville, Tennessee, this 9 day of June, 1975.
/s/ TOM JENNINGS
Assistant Attorney General
James H. Nichols Jr. 58054
Full Name and Prison Number (if
any) of Petitioner Case No. C-75-265
. (To be supplied by
. Clerk, U.S. District
Court)
Jim H. Rose, Warden
Name of Respondent
(Jailor, Warden). :
PETITION FOR WRIT OF HABEAS CORPUS
(Filed June 11, 1975)
INSTRUCTIONS—READ CAREFULLY
In order for this petition to receive consideration by the Dis-
trict Court, it shall be legibly handwritten or typewritten, signed
by the petitioner and verified (notarized), and it shall set forth
in concise form the answers to cach applicable question. If
necessary, petitioner may complete the answer to a particular
question on the reverse side of the page or on an additional
continued answer refers to.
must do so by separate petitions unless your claims for relief
arise out of the same proceeding.
A petition is not a legal brief. Refer only to cases you were
involved in leading up to this petition. You may file a separate
memorandum of authorities.
Since every petition for habeas corpus must be sworn to under
oh, any false statement of a material fact therein may serve
as th. basis of prosecution and conviction for perjury. Petition-
—
ers should, therefore, exercise care to assure that all answers
are true and correct.
If the petition is taken in forma pauperis (on a pauper's
oath) it shall include an affidavit (attached to the back of this
form) setting forth information which establishes that petitioner
will be unable to pay the fees and costs of the habeas corpus
proceedings. Even though you may be allowed to file your pe-
tition on a pauper’s oath, costs may be adjudged against you and
execution issued if it later appears that you have sufficient funds.
When the petition is completed, the original and two (2) copies
shall be mailed to:
Western District of Tennessee
Federal Building
Memphis, Tennessee 38103
PETITION NOT CONFORMING TO THESE
INSTRUCTIONS WILL BE RETURNED
>. >. >. >. >. > .
2. Name and location of court which imposed sentence:
Criminal Court of Tipton County, Covington, Ten-
nessee
3. The indictment number, or numbers, if known, con-
nected with the offense or offenses for which sen-
tence was imposed:
—
(a) March 22, 1973
(>) Sixty Years for First deg. Murder
(c) Sixty Years for abeding, Consecutively
5. Check whether a finding of guilty was made:
(a) after a plea of guilty ............
(b) after a plea of not guilty X
(c) after a plea of nolo contendere
5. If you were found guilty after a plea of not guilty,
check whether that finding was made by:
(a) ajury X
8. If your answer to number 7 was “yes” list the following:
(a) the name of each court you appealed to:
I Tennessee Criminal Court of Appeals
Il Tennessee State Supreme Court, Jackson,
Tenn.
(b) the result in each court you appealed to:
I Affirmed
Il Affirmed
(c) the date of each such result:
I June 5, 1974
Il March 10, 1975
(d) citations of any written opinions or orders en-
tered pursuant to such results, if known:
I Non
Tl Non
—
9. If your answer to number 7 was “no,” give your rea-
sons for not appealing: Non
10. Prior to this petition have you filed any of the fol-
lowing with respect to this conviction:
(a) amy petition for habeas corpus in state or fed-
eral courts? Non
(b) any petition in state court under any post con-
viction procedure laws? Non
(c) amy petition in state court by way of coram
nobis? Non
(d) any petition in the United States Supreme Court
for certiorari other than petitions, if any, al-
ready given in answer to number 8? Non
(e) any other petitions, motions or applications in
this or any other court? Non
11. If you answered “yes” to any part of number 10, list
the following with respect to each petition, motion
or application:
(a) the name and location of the court in which each
petition, motion or application was filed:
I Non
Il Non
Ill Non
IV Non
(b) the specific nature of each petition, motion or
I Non
II Non
lll Non
IV Non
—
(c) the disposition of each petition, motion or ap-
icati
(e) citations of any written opinions or orders en-
tered pursuant to each such disposition, if
12. State concisely the grounds on which you base your
allegation that you are being held in custody un-
lawfully. Do not cite cases except those in which
you were involved.
l
There is no evidence to support said verdict in each of the above
styled and numbered cases.
2
The evidence perponderates against the verdict of guilt and in
favor of the innocence of the defendants James Nichols, Jr. and
James Mitchell, in each of the above styled and numbered
cases.
—_—_
3
The Court erred in not sustaining the pleas in abatement of said
defendants James Nichols, Jr. and James Mitchell to the indict-
ments in each of the above styled and numbered cases on the
grounds of discrimination the Uncontradicted evidence showing
that no negro has ever serevd as foreman of the Grand Jury
of Tipton County, Tennessee, and the jury commissioners se-
lected the current eligible jurors from telephone directories thus
eliminating the poor class of persons who have no telephone as
well as persons with unlisted telephone numbers.
4
The Court erred in not sustaining the motion of defendants James
Nichols, Jr. and James Mitchell to supress the introduction by
the State of Exhibits of a 38. caliber pistol and a sawed-off
shotgun by officers which were obtained during the course of an
arrest without a criminal warrant or a search warrant for al-
leged offenses not committed in the presence of the arresting
Officers.
5
The Court erred in not sustaining the application of the said
defendants James Nichols, Jr. and James Mitcheli for separate
trials in the above styled and numbered cases, One indictment
charging said defendants and others with the murder of one
Claudie Greer and the other indictment charging said two de-
fendants and other with the murder of one William Nabors.
6
The Court erred in not sustaining the application of said defend-
ants James Nichols, Jr. and James Mitchell, for severance of their
—_ =
trial in each of the above styled numbered cases as testimony
was subsequently introduced by an officer testifying for the
State of an alleged confession or admission on part of the de-
fendant James Mitchell which was not made in the presence or
hearing of the defendant James Nichols, Jr. and as defendant
James Mitchell did not take the witness stand to testify in his
own behalf, this evidence was to some extent incriminating
against defendant James Nichols, Jr. who testified in his own
behalf.
7
The Court erred in not sustaining the petition of the attorneys of
record for the defendants James Nichols, Jr. and James Mitchell
praying for said two to be admitted to some appropriate State
Institution for a period not exceeding 30 days for observation
and to report to the Court on their mental condition under the
provision of Code Section 33-701 of the Tennessee Code An-
notated.
The Court erred in not granting the motion of defendants James
Nichols, Jr. to continue their cases until April 16, 1973, in order
to give them additional time in which to locate the addresses of
witnesses which might have been helpful in their defense.
9
The Court erred in granting the motion of Jesse Ford, a code-
fendant of the defendants James Nichols, Jr. and James Mitchell
and who was jointly indicted with said two defendants in each
of the above styled and numbered cases from their cases, thus
depriving defendants James Nichols, Jr., and James Mitchell
of possible help from the testimony of said co-defendant Jesse
—
Ford who because of his constitutional rights against self in-
crimination could not be forced to testify in behalf of the de-
fendants James Nichols, Jr. and James Mitchell.
10
The Court erred in not ordering a mistrial of the above styled
and numbered cases after the jury returned a verdict finding
defendants James Nichols, Jr. and James Mitchell guilty of first
degree murder and setting their penalty at “not less than 30
years and a day and not more than sixty vears on each count,”
and in ordering the jury to return to the ‘ury room for a further
consideration of the above styled and numbered cases.
11
The Court erred in calling the jury back from the jury room
and giving them further instruction especially examples of possi-
ble maximum sentencing which they could impose upon the
defendants in each of the above cases.
State concisely and in the same order the facts which support
each of the grounds set out in number 12, do not cite
Cases except those in which you were involved
I
The defendants James Nichols, Jr. and James Mitchell were
arrested without a criminal warrant or search warrant on Oc-
tober 29, 1972, in an apartment occupied by the State’s witness,
Antoinette Gilchrist, at 661 St. Paul, Memphis Tennessee, who
in response to knocks of police officers opened her apartment
door which was entered by officers, who made observation and
first searched same before securing a consent to search from
her (B.E. Vol. III pp 164-167, 170-172).
as then
ee 2
A 38. caliber pistol and a ring, subsequently made exhibits in
the trial of said cases, were obtained by officers at the time of
the said search of the apartment at 661 St. Paul on October 29,
1972; and said pistol was not identified as the pistol used at
Sunny Man’s Club in Tipton County, Tennessee, on October
28, 1972 in the commission of the crime for which defendants
James Nichols, Jr. and James Mitchell were indicted, tried and
convicted. (B.E. Vol. III pp 178, 177-181).
3
A sawed-off shotgun, obtained by officers on October 30, 1972,
at the home of Mildred Jones and State witness, Eddie Mae
Jones, at 1054 Claybrook, Memphis, Tennessee, as a result of
a consent to search, was introduced as an exhibit at the trial of
the defendants without being identified as the sawed off shotgun
used at Sunny Man’s Club in Tipton County, Tennessee, on
October 28, 1972, in the commission of the crime for which
these defendants were indicted, tried, and convicted. The said
shotgun was brought to the said home by a person other than
either defendants James Nichols, Jr. and James Mitchell. (B.E.
Vol. III pp 181-184, 187);
4
No witness who testified in regards to the allegations in the
defendants’ plea in abatement to the indictments indicated that
a negro ever served as foreman of the Grand jury in Tipton
County, Tennessee, and the jury commissioner had selected the
current iury panel, out of which the trial jury in these cases
was chosen, from recently published telephone directories, se-
lecting therefore only the persons, both black and whites, whom
they knew either in person or by their reputations, and all other
of both races were excluded (B.E. Vol. I pp. 55-82).
—
5
. Defendant James Nichols, Jr., was not present in the security
unit in John Gaston Hospital, Memphis, Tennessee, shortly after
October 28, 1972, when defendant James Mitchell allegedly
made an admission that on October 28, 1972, he took a sawed-
off shotgun and went into Sunny Man’s Club in Tipton County,
and defendant James Mitchell did not testify as a witness in
his behalf in the trial of the said cases wherein he was jointly
-— with defendant James Nichols, Jr. (B.E. Vol. IV 303-
07).
6
After the charge of the Trial Court the trial jury who had jointly
tried defendants James Nichols, Jr. and James Mitchell in said
two consolidated cases, retired to the jury room, and after
deliberations therein, returned to the courtroom and announced
to the Court they had found said defendants guilty of first de-
gree murder and set the penalty for each of the defendants at
not less than thirty years and one day and not more than sixty
years for each count, Nos. 846 and 847. The Trial Judge ac-
cepted their findings of guilt but asked the jury to retire once
again and fix the maximum punishment only for each defend-
ant in cach case, whereupon he read them again the punish-
ment at life in the penitentiary or at any number of years be-
tween 20 years and a day and life, that is, that is, 20 years and a
day, 30 years, 40 years, 60 years, 75 years, 99 years, or any
other number of years above 20 years. (B.E. Vol. IV, pp 353-
360)
7
After the foregoing instruction by the Trial Court, the jury again
retired (Illegible) Nichols, Jr. and James Mitchell guilty of first
degree murder on two counts; Nos. 847 and 848, and set the
penalty for each of the defendants at a maximum penalty for
each of the defendants at a maximum of sixty years on count
No. 847” (B.E. Vol. 4, p. 359).
14.
15.
16.
Has any ground set forth in number 12 been pre-
viously presented to this or any other court, state or
federal, in any petition, motion or application? No
If your answer to number 14 is “yes” identify
(a) which grounds have been previously presented
I Non
Non
II Non
Non
III Non
Non
(b) the proceedings in which each ground was raised
I Non
Non
II Non
Non
III Non
Non
Were you represented by an attorney at any time
during the course of:
(a) your arraignment and plea? No
(b) your trial, if any? Yes
(c) your sentencing? Yes
(d) your appeal, if any, from the judgment of con-
viction or the imposition of sentence? Yes
17.
18.
=
(€) preparation, presentation or consideration of any
petitions, motions or applications with respect
to this conviction? Yes
If your answer to any part of number 16 was “yes”
list the following:
(a) the name and address of each attorney who rep-
resented you:
I Wilbur Cash—106 Abernathy Bldg.
Covington
I] All of the above mentionings
,ere eee eree sce eee ee eaeaeeeoeunveaaen @ee bebe
sented you:
dale tn Mead i te eo eo ee ee ee ef oe © oF eo oe 2 2 oe oe oe a a a a ae
re vereree eee eee s ee see cans see 6 de 86a 62 be 6 @
If you are seeking leave to proceed in forma pauperis
(on a pauper’s oath), have you completed the sworn
affidavit setting forth the required information (see
instructions at the beginning of this form)? Yes
/s/ JAMES NICHOLS, JR. 58054
(Signature of Petitioner)
—_— =
In the United States District Court
For the Western District of Tennesee
Western Division
James Nichols, Jr., ,
Petitioner,
" | Civil C-75-265
Jim H. Rose, Warden,
Respondent. |
ORDER TO SHOW CAUSE
(Filed June 13, 1975)
It appearing that James Nichols, Jr. has filed a petition for
writ of habeas corpus, it is ORDERED that respondent show
cause why the petition and the relief prayed for therein should
not be granted, and good cause appearing, respondent is al-
lowed 23 days in which to answer.
It appears that petitioner was a codefendant in the Criminal
Court of Tipton County with James E. Mitchell, who has filed
a habeas petition in this court (C-75-222) as to which respond-
ent has answered, and the technical record, transcript, etc.
have been filed along with the answer. It will therefore not be
necessary for respondent to attach such documents to his an-
swer in this cause and this cause will be consolidated with C75-
222 for handling.
It is so ORDERED.
ENTER this 11th day of June, 1975.
/s/ (Illegible)
CHIEF JUDGE
— -a
in the United States District Court
For the Western District of Tennessee
Western Division
James Nichols, Jr.
VS. Civil No. C-75-265
Jim H. Rose, Warden
RESPONSE TO ORDER TO SHOW CAUSE
Comes the respondent, Jim H. Rose, Warden, and makes
response to the Order of the Court, filed June 11, 1975, to
show cause why the Writ of Habeas Corpus and the relief
prayed for in this cause should not be granted. The Whit
should be denied, and the relief sought should not be granted.
Exhaustion of State Remedies
Although the Petition shows on its face (p. 3) that the peti-
tioner has sought no relief under Tennessee's Post-Conviction
Procedure Act, this Petition is a paraphrase of the Assign-
ments of Error filed by the petitioner upon his direct appeal,
and passed upon by appellate courts of Tennessee. Therefore,
the petitioner has exhausted his remedies at state law before
commencing this action.’
1 See Arthur v. State, 483 $.W.2d 95 (Tenn. 1972).
= 76 —
Responses to Grounds for Petition
I-I
There Is Evidence to Support the Verdict. and the Evidence
Does Not Preponderate Against the Verdict of Guilt and in
Favor of the Innocence of the Petitioner.
These two grounds allege insufficient evidence for convic-
tion. Unless there is a near-complete absence of evidence,
this is not a ground upon which federal Habeas Corpus Relief
may be granted.? The trial transcript in this case clearly shows
that there was ample evidence, based upon personal identifi-
cation of the petitioner by numerous witnesses and upon his
confession, that he personally shot one man to death while
participating in a robbery during which another man was also
shot and killed. There is no merit, therefore, to this asserted
ground.
Ii!
The Court Did Not Err in Dismissing the Petitione:’s Plea
in Abatement to His Indictment, Which Was Based Upon a
Claim of Racial Discrimination in the Selection of the Fore-
man of the Grand Jury and of the Jurors Themselves.
The Trial Judge conducted a hearing on the question of
racial discrimination in the selection of grand jurors and jury
commissioners, which is found at Volume I, pp. 54-96. Evi-
dence presented in that hearing shows that grand jurors were
aware of the need to avoid racial discrimination, and that
they did all that they could to assure that blacks whom they
knew to be of good character were included as grand jurors.
Finally, there was testimony that there was 20 hostility what-
2 Casias v. Patterson, 398 F.2d 486 (10th Cir. 1968), cert. denied,
393 US. 1108.
—_ vo
ever among the grand jurors toward the petitioner because of
his race. The petitioner has failed to carry his burden of proof
that there was systematic exclusion of blacks from the grand
jury which indicted him.*
IV
The Court Did Not Err in Overruling the Petitioner's Motion
to Suppress the Introduction Into Evidence of a Pistol and a
Sawed-off Shotgun Seized at the Arrest of the Petitioner.
This ground of the Petition is without merit. The Trial Court
conducted a hearing on the legality of these two searches which
resulted in the seizure of a pistol, a ring, and a shotgun (Vol. I,
pp. 6-53, 96). Testimony in that hearing showed that in re-
sponse to a telephone call by a reliable informant to Memphis
police, made late at night, saying that the men who had com-
mitted the murders in Tipton County were at a certain address
and that they were going to leave town in the morning, the police
went directly to the address given, since there was not time for
them to obtain a warrant. They knocked on the door and were
admitted, and as they walked in they saw this petitioner, James
Nichols, standing in the apartment with a pistol in his hand. They
obtained consent to search the premises from the tenant, and
did so, arresting this petitioner and seizing the pistol and a ring
taken in the robbery. Later, upon obtaining consent to search
another apartment, they went there and found a shotgun left
there by Mitchell. It is obvious from the Record that no un-
reasonable search or seizure was made, and the evidence seized
was properly admitted. The police acted with probable cause
to believe that the men in the first apartment were the murderers
sought, and they lawfully entered the apartment to arrest them,
after which entry the ring and the pistol were in plain view, and
the pistol was near enough that its seizure was the result of a
% Swain v. Alabama, 380 U.S. 202 (1965).
—
search incident to the lawful arrest of the men. It also is clear
that the men were admitted to the apartment by the tenant,
who also signed a consent to the search. A question was raised
regarding at what time during the search the consent had been
signed, but this cannot be material since a consent made during
a search is a more informed consent than one made before a
search. In addition, the second search, during which the shotgun
used by Mitchell to kill his victim was seized, was made at the
instance of the tenant and with her signed consent. The peti-
tioner was deprived of no constitutional or statutory right by
the actions of the police during these searches.
In summary, the search was made upon probable cause,‘
and it can also be justified as incident to a lawful arrest,® and
during which the items were in plain view.* In addition, the
searches were made with the consent of the person with the
right to control the premises,” and the petitioner lacked standing
to complain of the searches.*
Vv
The Court Did Not Err in Refusing to Sever the Trial of the
Petitioner and His Co-Defendant, James E. Mitchell.
This contention is without merit, the petitioner having failed
to point out any prejudice, much less deprivation of constitu-
tional rights, caused by his trial with James E. Mitchell.
4 U.S. v. McKinney, 379 F.2d 259 (6th Cir. 1967).
5 U.S. v. Manarite, 448 F.2d 583 (2d Cir. 1971), cert. denied,
— US. —.
6 U.S. v. Glassel, 448 F.2d 143 (9th Cir. 1973), cert. denied, 416
U.S. 941.
7 McCravy v. Moore, 476 F.2d 281 (6th Cir. 1973).
8 See U.S. v. Hearn, 496 F.2d 236 (6th Cir. 1974), cert. denied,
— US. —.
=
VI
The Court Did Not Err in AHowing Into Evidence Testimony
as to the Substance of James E. Mitchell’s Confession.
This contention is without merit. The Record shows (B.E.
305-06) that Lt. L. M. Rose testified that James Mitchell made
a statement in which he incriminated himself in the shootings
which resulted in the deaths of the two victims. No reference
was made in this testimony to any other persons who might have
been with James Mitchell at the time. Because of the careful
excision of any reference to James Nichols, the petitioner herein,
he could not have been prejudiced by the admission of the testi-
mony of the contents of James Mitchell’s statement.®
VII
The Trial Court Did Not Err in Denying the Petitioner's Re-
quest for a Mental Evaluation.
The Trial Judge conducted a hearing on this question, the
record of which is found at pp. 1-16, which begins following
page 104 of Volume I of the Record. This should not be a
ground for Habeas Corpus Relief unless a defendant were so
mentally incapable of participating in his trial and putting forth
his best defense that it was a denial of due process of law. It
is apparent from the Record that the petitioner participated
fully in his defense, and that the Trial Judge was within his
on in holding that the petitioner was competent to stand
trial.
® Brown v. U.S., 411 U.S. 223, 93 S. Ct. 1565, 36 L.Ed.2d 208
(1973) (harmless error); United States ex rel. Smith v. Montanye,
505 F.2d 1355 (2d Cir. 1974) (statement cumulative); United States
v. Wilson, 500 F.2d 715 (Sth Cir. 1974) (Court excised incriminat-
ing portions).
=
Vill
The Court Did Not Err in Refusing to Continue the Petition-
ers Trial to Give Him Additional Time in Which to Locate
Witnesses.
This contention is without merit, the petitioner having failed
to show that he was prejudiced in any way by the Trial Court's
failure to order an additional continuance so that the peti-
tioner and his co-defendant could locate other witnesses whom
they claimed to exist. The Trial Court’s efforts to accommodate
the petitioners’ request for additional witnesses are shown in
the Record at Vol. II, pp. 2-33, Vol. IV, pp. 318-319. The
witnesses whom the defendants did call, Lonnie Williams (Vol.
IV, p. 308) and James Jackson (Vol. IV, 320), were unable
to add anything to their defense. There was no showing at
the time, and there is no showing now, that there is in existence
any person who can add anything to the defense of the peti-
tioner. The Trial Court’s refusal to continue the trial indefi-
nitely, to indulge the petitioner’s hope that some elusive wit-
ness might some day be found, did not deprive the petitioner
of any constitutional or statutory right.
IX
The Trial Court Did Not Err in Severing Jesse Ford and Try-
ing Him Separately From the Petitioner.
No prejudice has been shown from this action of the Trial
Court.
X-XI
The Court Did Not Err in Refusing to Declare a Mistrial
When the Jury Returned a Verdict Finding the Petitioner and
His Co-Defendant Guilty of First-Degree Murder and Sentenc-
ing Them to Imprisonment for Not Less Than Thirty (30) Years
and One (1) Day, Nor More Than Sixty (60) Years on Each
Count, and the Court Did Not Err, in Instructing the Jury to
Reconsider Its Verdict, in Giving the Jury Examples of Ac-
ceptable Sentences Which Could Be Imposed.
These grounds allege constitutional error in the Trial Court's
handling of the jury’s erroneous sentence. The jury first an-
nounced that it had found the petitioner and his co-defendant
guilty of first-degree murder, and that it had set a sentence of
not less than thirty (30) years and one day nor more than sixty
(60) years upon each of the counts. This sentence was incon-
sistent with the verdict: the sentence was in “indeterminate”
form, which is required for sentence for some crimes by T.C.A.
§ 40-2707. That statute applies only to offense for which
punishment must be set “within minimum and maximum terms.”
The punishment prescribed for conviction of first-degree murder,
however, is not in this form, because there is no maximum term
set by the Act. Therefore, T.C.A. § 40-2707 does not apply
where a conviction is for first-degree murder.'*° When the
jury announced that it had found the defendant guilty of first-
degree murder, yet expressed its sentence in indeterminate
form, the Trial Judge therefore had to send the jury back for
reconsideration of the punishment. After reconsidering the
matter, the jury returned its sentence in the correct form, and
it was properly accepted by the Trial Court. This is no ground
for Habeas Corpus relief; the practice, which has been approved
10 Miller v. State, 520 $.W.2d 729 (Tenn. 1975).
—
by the appellate courts of Tennessee,’ is a reasonable method
of meeting such a problem. The jury had reached a verdict on
the guilt of the defendant, and there was no reason to think that
that verdict would change just because the sentence would have
to be changed; if the jury had felt that it would have said so
at the announcement of the second sentence.
Summary
The petitioner has shown no deprivation of constitutional or
statutory right which would entitle him to federal Habeas Corpus
relief. The respondent respectfully suggests that the Record of the
petitioner’s trial is sufficient for the determination of all matters
raised in this Petition, and that no evidentiary hearing will be
required in this cause.
WHEREFORE, PREMISES CONSIDERED, THE RE-
SPONDENT PRAYS THAT THIS ACTION BE DISMISSED.
Respectfully submitted,
/s/ TOM JENNINGS
Assistant Attorney General
414 Supreme Court Building
Nashville, Tennessee 37219
(615) 741-2250
11 Jenkins v. State, 509 S.W.2d 240 (Tenn. Crim. App. 1974).
= =
In the United States District Court
For the Western District of Tennessee
Western Division
James E. Mitchell, .
Petitioner,
v.
> Civil C-75-222
Jim Rose, Warden,
Respondent. |
and
James Nichols, Jr., )
Petitioner,
v.
rp ~=Civil C-75-265
Jim Rose, Warden,
Respondent. J
ORDER OF REFERENCE TO MAGISTRATE
(Filed August 6, 1975)
UPON CONSIDERATION, it is ORDERED that the Cap-
tioned causes be referred to the Magistrate for a study, report
and recommendation.
ENTER this 6th day of August, 1975.
/s/ BAILEY BROWN
CHIEF JUDGE
—=
In the United States District Court for the
Western District of Tennessee
Western Division
James E. Mitchell, >
Petitioner,
vs. Civil Action
C-75-222
Jim Rose, Warden,
Respondent,
and s
James Nichols, Jr.,
Petitioner, Civil Action
vs. C-75-265
Jim Rose, Warden. g
REPORT ON REFERENCE
(Filed Jan. 28, 1976)
The petitioners in this habeas corpus case were convicted
of a double murder in the Circuit Court of Tipton County,
Tennessee and each given two consecutively sixty-year terms
in the penitentiary. They appealed their convictions to the
Tennessee Court of Criminal Appeals, which affirmed. The
Tennessee Supreme Court denied certiorari. The petitioners
make the same claims here that they made in the Tennessee
Court of Criminal Appeals. Most of these claims are not
properly cognizable in a federal habeas corpus suit, but I will
nevertheless discuss each one, at least briefly.
Prior to the trial the petitioner filed a plea in abatement
which, among other things, asserted that
= =
[t]he array of the grand jury of Tipton County was not
selected, drawn or summoned in accordance with the law
and is not representative of the community from which it
was impanelled because of systematic exclusion of Negroe’s
[sic], other minority’s [sic] and people of lower income,
expecially in regards to the position of the foremen of said
grand jury. [Page 21 Technical Record.]
A hearing was held on this issue. Mr. Frank McBride, Sr.
was called as a witness by the petitioners. (Beginning page 71,
Vol. I.) Mr. McBride testified that, ten or twelve years ago, he
served as foreman of the Tipton County Grand Jury for five or
six years and “then about two or three times since then, just
for one session of court.” He testified that he had never known
of a black acting as foreman of the grand jury. To his knowl-
edge the presiding judge selected the grand jury foreman. He
testified that it was his function as foreman to guide the proceed-
ings and move them along.
Mr. Peyton J. Smith (whose testimony begins at page 74,
Vol. I) testified that he served as foreman of the Tipton County
Grand Jury for several years. He said that he was foreman for
several years in the 1950's but had to resign for health reasons.
He had, however, served several times since then when the
regular foreman was ill. He did not know of any black ever
having served as foreman. Mr. Smith served as foreman during
the November, 1972 term, when the petitioners were indicted.
He explained that he was chosen as foreman for the November,
1972 term in the following manner:
Q. How were you chosen at the November term of Court?
Who chose you to be foreman of the Grand Jury?
A. The foreman who had been serving on a permanent
basis at that time could not be here and I was asked
to come and appear before this Court and the Judge
asked me to serve.
—
Who asked you to appear?
Mr. Naifeh, who was the foreman the Term before.
You appeared before His Honor here?
Yes, sir.
oO FO PO
And His Honor commissioned you or appointed you
as foreman of the Grand Jury for the November term?
>
Yes, sir.
Was that in writing or was that just oral?
Oral. [Pg. 76, Vol. I.j
Mr. Smith testified that it was his practice while serving as fore-
man to question the witnesses first to get basic information to
the attention of the members of the grand jury and then,
after each witness has been examined, to ask other grand jurors
if they wished to ask any further questions.
> oO
It is not entirely clear from the transcript whether Mr. Smith
was chosen as a member of the grand jury panel and then
asked to serve as foreman when the regular foreman became
ill or whether he was simply appointed as foreman. This should
be developed at an evidentiary hearing, as it is most important
in light of the Hale case, which I shall discuss below.
Mr. Jimmy Naifeh testified (Pg. 81, et seqg., Vol. I) that he
had been serving as foreman of the Tipton County Grand Jury
for approximately two years and that he had never known there
to be a black foreman.
Title 40, § 1506 of the Tennessee Code Annotated provides,
in the following language, that the judge of the court having
jurisdiction shall appoint foremen of grand juries:
Judges having criminal jurisdiction in any county are au-
thorized, and required to appoint the foremen of the
grand juries in the counties of their respective jurisdiction;
and said foremen shall hold office and exercise their powers
—=
for a term of two (2) years from appointment, unless for
good cause, in the discretion of the presiding judge, he
may be removed, relieved or excused from office at any
time. Said foreman shall be the thirteenth member of each
grand jury organized during his term of office, having
equal power and authority in all matters coming before
the grand jury with the other members thereof.
T.C.A. 40-1706 provides that an indictment cannot be found
without the concurrence of “at least twelve grand jurors.”
Since the grand jury foreman, under 40-1506, sits as the thir-
teenth member of the grand jury, his vote can be the twelfth
in returning an indictment. T.C.A. 40-1507 provides that
every person appointed as a foreman of a grand jury shall be
at least twenty-five years of age, be a good and lawful man and
possess all the qualifications of a juror. The statutory duties
of grand juries foremen are set out in T.C.A. 40-1510. They
should assist and cooperate with the District Attorney and, out
of term, advise the District Attorney with respect to all viola-
tions and provide him names of witnesses which he may summon
before the grand jury in the next term. T.C.A. 40-1513 (supple-
ment) provides that the grand jury foreman shall receive com-
pensation in the amount of $10.00 per day for each day the
grand jury of which he is foreman is actually in session.
The Tennessee statutory scheme for the selection of grand
jury foremen is not typical. The typical statute provides for the
appointment by the court of a grand jury foreman from the
panel already chosen to serve as the grand jury. See for in-
stance, Arizona Criminal Rule 90; Delaware Superior Court
Criminal Rule 6(c); Florida Code 905.08; Idaho Code 19-1010:
Illinois Code 78-16; Indiana Statutes 9-88; Kentucky Revised
Statutes 5.04; New York Penal Code 190.20; Arkansas Statutes
Annotated 43.903; Mississippi Code § 1780. Other states pro-
vide for the election of the foremen by the grand jury itself.
See, for instance, Massachusetts General Law Annotated
277-677. But the Tennessee statute allows the judge to appoint
=
a foreman from the general population in addition to the
regular grand jury of twelve.
The United States Supreme Court in Whitus v. Georgia, 385
U.S. 545 (1967), pointed out that:
For over four-score years it has been federal statutory law,
18 Stat. 336 (1875) 18 U.S.C. 243, and the law of this
court as applied to the states through the Equal Protection
Clause of the Fourteenth Amendment, that a conviction
cannot stand if it is based upon an indictment of a grand
jury or the verdict of a petit jury from which Negroes were
excluded by reason of their race. Strauder West Virginia,
100 U.S. 303 (1880); See also Pierre v. State of Louisiana,
306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939).
The question of discrimination in the selection of a grand
jury foreman has been previously raised in this court in the
case of Hale v. Henderson, 336 F.Supp. 512, 349 F.Supp. 567,
400 F.2d 655, and 485 F.2d 266. In initially finding that the
petitioner in Hale was entitled to an evidentiary hearing concern-
ing the alleged exclusion of Negroes from the post of grand
jury foremen, this court made the following observation:
We do not understand why lack of systematic exclusion
with respect to venires from which grand juries are drawn
is an answer to petitioner’s claim. As has been stated, grand
jury foremen are appointed from the public at large, not
from the venire; and even if they were appointed from
the venire, it would stil! be possible systematically to ex-
clude Negroes from appointment. If the court (state)
means to say that, if the twelve members of the grand jury
other than the foreman were selected without systematic
exclusion of Negroes, it would be constitutionally imma-
terial if Negroes were systematically excluded from the
position of foremen, we cannot agree. We cannot agree
because Whitus v. Georgia, supra, does not indicate that
a grand jury that is twelve-thirteenths constitutional can
—
render constitutionally valid indictments. [336 F.Supp.
516].
An evidentiary hearing was held on this issue by Judge Mac
Swinford, who heard the matter by special assignment. At the
hearing it came out that the regular grand jury foreman who
had been appointed pursuant to statute by the Cirminal Court
Judge did not in fact serve as the foreman of the grand jury
which indicted Mr. Hale. Therefore Judge Swinford concluded
the following:
Notwithstanding the petitioner's argument that grand
jury foremen have been arbitrarily appointed and that over
a period of history all grand jury foremen so appointed
have been white, it appears that the particular grand jury
indicting the petitioner was composed wholly of men
selected from the venire. The grand jury indicting the
petitioner was not chaired by the regular foreman, but by
the foreman pro tempore, who was chosen from a body
of grand jurors which was selected from the venire. There
has been no evidence produced, nor has it been argued
that the venire was discriminatorily constituted. The court
must conclude that the venire was selected in a manner
that did not systematically exclude blacks. (349 F.Supp.
568.]
Admittedly the court has left unanswered the question
of whether a voting member of the grand jury may be
selected by a process that does not protect against the
systematic exclusion of racial groups. Whitus would seem
to proscribe the deliberate exclusions of blacks from any
voting position on the grand jury, but here it is clear that
blacks were not systematically excluded from any of the
thirteen voting positions of the grand jury that indicted the
petitioner. [349 F.Supp. 569.]
The Sixth Circuit Court of Appeals affirmed Judge Swinford’s
holding. 485 F.2d 266.
=
It appears that the petitioners in the instant case have made
out a prima facie case of systematic exclusion of Negroes from
the post of grand jury foremen. See Anderson v. Johnson, 371
F.2d 84 (6th Cir. 1966); Note, 33 L.Ed. 2d 783; Coleman v.
Alabama, 389 U.S. 22 (1967). No rebuttal evidence was sub-
mitted on the question. Indeed, it would have been awkward
for any to have been tendered, since the Circuit Judge who ap-
pointed the foreman, whose acts were impliedly alleged to have
been discriminatory, was presiding at the hearing on the motion.
I therefore recommend that the court hold an evidentiary
hearing on the question of discrimination in the selection of a
grand jury foreman.’ The hearing can develop, among other
things, whether Mr. Smith, who served as foreman on the grand
jury that indicted the petitioners, was in fact selected from a
venire which in turn had been chosen in a proper manner.
The petitioners also allege that there was discrimination in
the selection of the jury venire.2 There was a hearing in the
trial court on this issue. (Page 54, et seq.) The evidence re-
vealed that the jury panels were drawn by a child at random
from a box which was kept sealed in the clerk’s office. The
names in the box were chosen by the jury commissioners going
through a telephone directory and picking out people they knew,
either personally or by reputation. The commissioners who tes-
tified said that they were aware of the need to include blacks
on juries and that in fact blacks had served on both grand and
petit juries in Tipton County. It was developed that the grand
jury that indicted the petitioners contained one black, a lady
named Mary Ann Buford. Ms. Buford testified (page 86, et seq.)
that she served on the grand jury that indicted the petitioners
2 Mr. Mitchell states under Section twelve of his petition that there
was racial discrimination in the selection of the “jury commissioners,”
but it is clear from subsequent statements that he is actually making
the same complaint as Mr. Nichols, that is that the venire was im-
properly selected by the commissioners.
=
and that there was no discussion of the race of the petitioners
and no hostility expressed toward them.
The evidence concerning the racial makeup of past juries of
Tipton County, the method of selecting jurors, and the inclu-
sion of blacks on juries is somewhat sketchy in the record we
have. I would, therefore, recommend that the court permit the
petitioners to develop additional evidence on this issue at an
evidentiary hearing if they wish to do so in addition to pursu-
ing their claim of discrimination in selecting the foreman.
The petitioners claim that there was no evidence to support
the verdict of guilty against them and that the evidence pre-
ponderated against the verdict. This is not a claim properly
made in a federal habeas corpus suit. Before federal habeas
corpus relief could be granted there would have to be an al-
most complete lack of evidence. Casias v. Patterson, 398 F.2d
486, cert. den. 393 U.S. 1108. Thompson v. City of Louisville,
362 U.S. 199; Martinez v. Patterson, 371 F.2d 815. Any-
way, there is an abundance of evidence to support the verdict.
A host of eye witnesses unequivocally testified that it was the
petitioners who committed the slayings they were charged with.
The petitioners challenge the legality of two searches which
produced an incriminating 38 caliber pistol and sawed-off shot-
gun. On a tip from an informant, officers of the Memphis Po-
lice Department went to 661 St. Paul in Memphis on October
28, 1972 where they had been told the defendant Nichols was
located. When they entered the apartment on St. Paul they
found Mitchell and Nichols and a number of other people, all
of whom they arrested. They knocked onn the door of the
apartment and were admitted by someone other than the de-
fendants. After entering the apartment one of the officers recog-
nized the defendant Nichols, saw a gun in his hand and heard
a noise as though some heavy object had hit the floor. (Page
177.) Later, a police officer asked the owner of the apartment,
Antionette Gilchrist, for permission to search the apartment,
—
which she gave in writing. The .38 revolver was then found in
a closet where a hot water heater was located. (Page 178.) In
the home of Eddie Mae and Mildred Jones at 1054 North
Claybrook a police officer later found a sawed-off ‘12-gauge
shotgun, a box of cartridges and some blood clothing. (Pg.
182.) Before searching they obtained a written consent to search
from Eddie Mae and Mildred Jones.
The petitioners do not claim any interest in the premises
searched. Indeed, they were not even present when the search
was made that produced the shotgun, cartridges and blood cloth-
ing. They therefore have no standing to challenge these searches
even if they were illegal, which is doubtful in view of the con-
sents. United States v. Hearn and Taylor, 496 F.2d 236 (6th
Cir. 1974).
The petitioners were indicted for killing both Claudie Green
and William A. Nabors. They were both tried on these two
indictments at the same time. Their attorneys moved, prior to
the trial, that they not be tried for both these murders at the
same time. The court denied that request, and they claim
here that that was error.
Both Claudie Greer and William A. Nabors were killed dur-
ing the same robbery by, according to the evidence, these pe-
titioners. Whether these charges were tried together or sepa-
rately was a question of state law, within the discretion of the
trial judge. This court cannot pass on purely state law issues un-
less they involve some violation of a federally protected consti-
tutional right. Roddy v. Black, 516 F.2d 1380 (1975). Fur-
thermore, it does not appear that the action of the trial judge
in trying the two charges together was in any way amiss.
The petitioners were jointly indicted for the two murders
on October 28, 1972. On November 16, 1972 the Circuit
Judge entered an order appointing John Proctor and Wilbur
Cash to jointly represent both the petitioners, James Nichols,
—=—
Jr. and James Mitchell. Counsel made a motion prior to the
trial for the state to divulge any statements made against the
interests of the defendants. The prosecuting attorney announced,
however, with regard to confessions and statements, that “[t]he
State has none, so we can just get that much of it out of the
way at this time.” (Pg. 6, Vol. I.) Later, the District Attor-
ney announced that he had learned of a statement made by
the petitioner, Mitchell, to officers of the Memphis Police De-
partment. He moved that the names of the officers who took
the statements be included on the list of witnesses on the in-
dictment and offered to make a copy of the statement and a
cassette recording of it available to defense counsel. (Pg. 98.)
Counsel for petitioners made a motion for a severance, which
was denied.
Later in the trial Lt. L. M. Rose of the Shelby County Sher-
iffs Office testified (beginning at page 303) that on November
2, 1972 the petitioner James Mitchell called him and Inspector
Dan Jones to the security unit of the John Gaston Hospital to
give a statement. Lt. Rose said that Mr. Mitchell was advised
of his constitutional rights and then gave an incriminating state-
ment about the incident he was being tried for and certain
other offenses. The statement had been reduced to writing, but
it was generally conceded (outside the presenc of the jury) that
Mitchell’s statement could not be read into the record without
implicating Nichols. (Pg. 301.) Lt. Rose, therefore, gave a
narrative summary of a statement that involved only Mitchell.
He did not refer to Nichols and, in my opinion, did not give
his narrative in such a way that it might, even inferentially, im-
plicate Nichols. Among other things, he said that Mitchell
said that he, Mitchell, went to his car at Sonny Man’s, got his
sawed-off shotgun, went back in the place and fired twice. On
cross-examination, however, Mr. Cash asked the following
questions which produced the following answers:
Q. I believe you have stated that Mitchell told you that
he had a sawed off shotgun?
=
A. Yes, sir.
Q. So, I’m not going to call any names in this, but, “What
kind of gun did blank have?” “Blank had a shotgun.”
“What kind of shotgun?” “Sawed-off shotgun.” “You
don’t know what gauge that was?” “Twelve gauge.”
Now, this is a statement that’s supposed to have been
made from that tape and you have it right here in the
tape. I call your attention to this and ask you if this
isn’t some other name here, other than Mitchell's?
A. Mr. Cash, you're now involved in something else. You
need to go deeper in that statement. [Pg. 306 et seq.]
The court then, at the request of the prosecuting attorney, gave
an explanation to the jury of the legal reasons for not admitting
the whole statement in<o evidence.
Although Lt. Rose’s initial narrative did not implicate Nichols,
the cross-examination by Mr. Cash did. Not only did it im-
plicate Nichols it inferred that it was he who had, and used,
the sawed-off shotgun, which the other evidence indicates was
not the case. Counsel for Mitchell, of course, had a right and
obligation to bring out any inconsistencies between the narrative
given by Lt. Rose and the actual statement. There was no one
to object to this on behalf of Mr. Nichols since both attorneys
were representing both defendants.
There appears, therefore, to have been a violation of the rule
laid down in Bruton v. United States, 391 U.S. 123 (1968). I
recommend that the court include this issue in any evidentiary
hearing. The court should also consider whether this error, in
the context of the other evidence, would be harmless.*
Prior to the trial the petitioners filed a motion claiming that
“serious doubts” had arisen “in the minds of petitioners as to
3 This could only be Nichol’s issue, although Mitchell also tries to
raise it.
~~
—
the mental stability of the defendants James Nichols, Jr. and
James Mitchell.” They alleged in their petition that they were
then incapable of properly defending the charges against them
due to their mental condition, and asked that they be admitted
to some appropriate state institution for a period not exceeding
thirty days for observation and a report to the court pursuant to
Tennessee Code Annotated § 33-701. This motion was filed
on March 16, 1973. (Page 44 Technical Record.) The motion
was heard on March 19, 1973 (pg. 2 et seq.). The court con-
ducted a full hearing, after which it denied the motion for
psychiatric examinations, and by inference held that the pe-
titioners were capable of assisting in their defense. The peti-
tioners themselves testified at the hearing. From reading the
transcript on this motion, I find nothing to indicate that the
petitioners’ constitutional rights were violated by the court’s not
granting a mental examination. Indeed, I find nothing to indicate
that the judge erred in not granting such an examination.
The petitioners complain that they were denied their con-
stitutional rights because the trial court refused to grant a con-
tinuance. It appeared as the trial started that two witnesses who
had been subpoened, Chester Taylor and Leo Knox, were not
present. After a hearing concerning what these witnesses would
provide—allegedly an alibi—the court recessed the trial for a
day and gave instructions to the Sheriff to make every effort to
locate these witnesses. When the trial resumed Taylor and Knox
were present, but the petitioners had decided they would not
use them. Instead, they wanted some additional witnesses sub-
poened, whose names had allegedly been supplied them by Tay
lor and Knox. After a hearing (pg. 15, ef seg.) the court de-
clined to further continue the trial. I do not believe he abused
his discretion in doing so, and certainly did not deny any con-
Stitutional rights of the petitioners in doing so.
The petitioners complain of the court granting a severance
for their co-defendant, Jesse E. Ford. The District Attorney
_—
asked for a severance as to Mr. Ford, saying that he had in-
tended to use him as a witness. The court granted the severance,
although the prosecutor decided not to use Mr. Ford. It is not
suggested in what manner the granting of a severance as to
Jesse Ford might have infringed the petitioners’ rights guar-
anteed by the United States Constitution. I do not believe that
it did.
The jury returned with a verdict which was, under Tennessee
Law, in an improper form. The following is what the Ten-
nessee Code of Criminal Appeals said on this question:
The tenth and eleventh assignments of error attack the
verdict as returned by the jury. Upon returning from their
deliberations, the jury announced that they had found
plaintiffs-in-error guilty of murder in the first degree as
charged in the indictments, and fixed their punishment “at
not less than 30 years and 1 day and not more than 60
years for each count; Nos. 846 and 847”. The trial court
recognized that this verdict was in improper form, since
the indeterminate sentence law does not apply to the capital
offenses of murder and rape. Franks v. State, 187 Tenn.
174, 213 S.W. 2d 195.
Plaintiffs-in-error maintain that the trial court should
have declared a mistrial when the jury returned the above
verdict, and should not have given them further instruc-
tions with examples as to what form the verdict should be.
We cannot agree. As was said in State ex rel. Myers v.
Brown, 209 Tenn. 141, 351 S.W.2d 385. “The Court
has the power, and it is his duty, when a jury offers to re-
turn an informal or insufficient verdict, to send them back
to the jury room with directions to amend it and put it in
proper form”. In light of the above, the trial court acted
properly and the final two assignments of error are over-
ruled.
peeeuns
— 97 —
This is an issue of state law which was not cognizable in a
federal habeas corpus action.
I recommend that a Writ of Habeas Corpus Ad Prosequendum
be issued to the United States Marshal for this district, the
United States Marshai for the Middle District of Tennessee,
and to the Warden of the Tennessee State Penitentiary to have
the petitioners transported to the Shelby County Jail and lodged
there pending the proceedings on their habeas corpus applica-
tions in this court. I further recommend that separate counsel
be appointed for the defendants because of the Bruton question.
I further recommend that the court hold an evidentiary hear-
ing on the jury and jury foreman selection issues and the
Bruton question. I further recommend that the petitioners’
application to this court be dismissed as to all other claims.
Submitted this, the 28th, day.of January, 1976.
/s/ AARON BROWN, JR.
UNITED STATES MAGISTRATE
=
James E. Mitchell, :
Petitioner,
v. : Civil C-75-222
Jim Rose, Warden,
Respondent, _
and
James Nichols, Jr., >
Petitioner,
” . Civil C-75-265
Jim Rose, Warden,
Respondent. —
ORDER FOR FURTHER RESPONSE
This cause is again before this court following a reference
to the magistrate who filed a report on January 28, 1976.
This court agrees with the magistrate that all claims of
petitioners other than their claims having to do with raciad
discrimination in the selection of the grand jury, including the
foreman of the grand jury, and the claim of petitioner Nichols
based on Bruton v. United States, 391 U.S. 123 (1968), should
be dismissed. It is so ORDERED.
The court disagrees with the magistrate to the extent that
he recommends that a hearing be held with respect to racial
discrimination in the constitution of the grand jury which in-
dicted these petitioners. We are of the opinion, having studied
the record made prior to the trial, that the question of racial
discrimination in the selection of the grand jury was adequately
investigated and that the state trial judge, in ruling that no
discrimination had been shown in the selection of the grand
jury, was the correct decision on the record before him.
le
~~ a
We do, however, agree with the magistrate that, based upon
the same inquiry, it would appear that a prima facie case has
been made with respect to discrimination in the selection of
the foreman of the grand jury. See Hale v. Henderson, 336
F.Supp. 512, 349 F.Supp. 567, 485 F.2d 266. The record
does not indicate any evidence introduced to rebut such prima
facie case.
We further agree with the magistrate that there appears to
nave been a violation of the Bruton, supra, rule with respect to
the petitioner Nichols in connection with the examination of
the officer who testified concerning the statement made by
petitioner Mitchell.
Accordingly, it is ORDERED that respondent further an-
swer these petitions directed to the question concerning dis-
crimination in selection of foremen of the grand jury and in
connection with the claimed violation of the Bruton rule and,
good cause appearing, twenty-three (23) days are allowed in
which to answer.
ENTER this 17th day of February, 1976.
‘s/ BAILEY BROWN
CHIEF JUDGE
In the United States District Court for the
Western District of Tennessee
Western Division
5
James Nichols, Jr.
vs. - Civil No. C-75-265.
Jim H. Rose, Warden. ;
FURTHER RESPONSE
Now comes the respondent, by and through the Attorney
General of Tennessee, and makes further response to the Order
—
of this Court to show cause why the Writ of Habeas Corpus and
the relief prayed for in this cause should not be granted. In that
regard, the most recent Order of this Court in this matter dis-
missed all claims by petitioner Nichols and petitioner Mitchell
(C-75-222) except the claim of petitioner Nichols relative to a
Bruton violation and the claims of both petitioners relative to
the question concerning discrimination in the selection of fore-
men of the grand jury by which they were indicted. In this re-
sponse, the respondent will address only the petitioner Nichols’
claim relative to a Bruton violation. The claim of this petitioner
and petitioner Mitchell regarding racial discrimination in the
selection of the foremen of their grand jury will be addressed in
a separate response. |
I
As reflected by this Court’s Order of February 17, 1976 and
the Magistrate's reference report, there appears to hve occurred
a violation of the Bruton rule with respect to the petitioner
Nichols. Apparently, any violation of the Bruton rule occurred
during the cross-examination of Lt. Rose by the attorney repre-
senting both Mitchell and Nichols. Assuming arguendo, that the
Bruton rule was violated during this cross-examination the re-
spondent respectfully submits that such violation was clearly
harmless error in view of the other evidence against petitioner
Nichols and in light of the United States Supreme Court decision
in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565 (1973).
II
In this regard, the respondent would respectfully show to this
Court that an independent examination of the record as a whole
would reveal that any Bruton error was harmless. The testimony
erroneously admitted was merely cumulative of the other over-
whelming and largely uncontroverted evidence properly before
the jury. This other evidence included an eyewitness identifica-
tion of the petitioner Nichols by more than one (1) witness.
(See State Record, p. 66, 68, 70, 92, 94, 96).
— 101 —
Ill
In Brown the United States Supreme Court rejected the notion
that a Bruton error can never be harmless. It should be noted
in Brown the prosecution introduced on direct examination sub-
stantial portions of each defendant's confessions which impli-
cated the other. In the instant case, any Bruton violation oc-
curred on cross-examination and was not directly admitted
through the State’s direct proof. It should also be noted that,
if a Bruton violation does exist, the instant violation is clearly
less significant than the Bruton violation which was declared
harmless error in Brown.
WHEREFORE, for the above-stated reasons, the respondent
respectfully prays that the claim of petitioner Nichols with re-
gard to an alleged Bruton violation be dismissed.
Respectfully submitted,
/s/ MICHAEL E. TERRY
MICHAEL E. TERRY
Assistant Attorney General
422 Supreme Court Building
Nashville, Tennessee 37219
Certificate of Service
I hereby certify that I have mailed a copy of the foregoing
Response to Mr. James Nichols, Jr. No. 58054, Tennessee State
Penitentiary, Nashville, Tennessee, this 11 day of March, 1976.
/s/ MICHAEL E. TERRY
MICHAEL E. TERRY
Assistant Attorney General
— 102 —
In the United States District Court for the
Western District of Tennessee
Western Division
James E. Mitchell, .
Petitioner,
Vs. \ Civil C-75-222
Jim Rose, Warden,
Respondent. |
James Nichols, Jr. .
Petitioner,
- | Civil C-75-265
Jim Rose, Warden,
Respondent. |
FURTHER RESPONSE
Now comes the respondent, by and through the Attorney
General of Tennessee, and makes further response to the Order
of this Court to Show Cause why the Writ of Habeas Corpus
and the relief prayed for in this cause should not be granted.
In that regard, the most recent Order of this Court in this matter
dismissed all claims by petitioner Nichols and petitioner Mitchell
except for the claim of petitioner Nichols relative to a Bruton
violation and the claims of both petitioners relative to the ques-
tion concerning racial discrimination in the selection of the fore-
man of the Grand Jury by which they were indicted. In a pre-
viously filed further response, the respondent addressed the peti-
tioner Nichols’ claim relative to a Bruton violation. Therefore,
this Response addresses only the question concerning racial dis-
crimination in the selection of the foreman of the Grand Jury
by which both petitioners were indicted.
ecntmetbiadinds date,
— 103 —
(1) As reflected by the Affidavit attached hereto, the State
record previously filed, and the Magistrate’s reference report,
the following facts may be assumed concerning the foreman of
the Grand Jury which indicted the petitioners and his method of
selection:
(a) The foreman of the Grand Jury was Peyton J. Smith.
(b) Mr. Smith was not the regular foreman of the Tipton
County Grand Jury but was selected by the trial judge
to serve as foreman when the regular foreman, Mr.
Naifeh, was unable to serve.
(c) The only reason for his selection as acting foreman,
according to Mr. Smith, was his previous experience
as foreman of the Tipton County Grand Jury.
(d) Mr. Smith did not vote to indict the petitioners since
the indictment was returned on the vote of the other
twelve (12) grand jurors.
(c) There is no evidence anywhere in the record of any
irregularities in the selection of the other twelve (12
grand jurors.
(f) Mr. Smith’s only role in the indictment of the petitioners
was the simple and routine function performed by
the foreman of a grand jury.
(g) Although twenty (20) or more witnesses were prepared
’ to testify before the Grand Jury in this case, only one
(1) witness testified and that witness was the police
officer who had obtained confessions from the peti-
tioners. The other twelve (12) grand juriors voted
to indict the petitioners after hearing the testimony of
this one (1) witness.
(2) The respondent has been unable at this point to ascertain
whether Peyton J. Smith was a member of the regular Grand
Jury venire when he was appointed to act as foreman. Inquiries
—=—
have been made to the trial judge and to the Clerk of Court in
an attempt to ascertain whether Mr. Smith was a regular member
of the Grand Jury venire or was simply selected based upon
his past experience. The results of these inquiries will be for-
warded to the Court as soon as the information is received.
As this Court knows, if Mr. Smith was a member of the regular
Grand Jury venire then petitioners’ claims should be dismissed
according to the authority of Hale v. Henderson, 336 F. Supp.
512, 349 F.Supp. 567, 400 F.2d 655, and 425 F.2d 266.
(3) The respondent further submits that the claims of peti-
tioners should be dismissed based upon the facts now shown
since the only role of Mr. Peyton J. Smith in the indictment re-
turned against petitioners was to perform the supervisory func-
tions of acting foreman. Mr. Smith did not vote for indictment
and obviously the issue was never really in doubt since the
twelve (12) regularly selected members voted for indictment
after hearing only one (1) witness.
WHEREFORE, for the above-stated reasons, the respondent
respectfully prays that the claims of the petitioners Nichols and
Mitchell relative to the question concerning discrimination in
the selection of the foreman of the Grand Jury by which they
were indicted be dismissed.
Respectfully submitted,
/s/ MICHAEL E. TERRY
MICHAEL E. TERRY
Assistant Attorney General
422 Supreme Court Building
Nashville, Tennessee 37219
Certificate of Service
I hereby certify that I have mailed a copy of the foregoing
Response to Mr. James E. Mitchell, No. 66684, Tennessee State
Penitentiary, Nashville, Tennessee and Mr. James Nichols, Jr.,
v — 105 —
No. 58054, Tennessee State Penitentiary, Nashville, Tennessee ,
this 26 day of March, 1976. ;
/s/ MICHAEL E. TERRY
Assistant Attorney General
STATE OF TENNESSEE }
COUNTY OF TIPTON |
Being duly sworn, Peyton J. Smith states and makes oath that
he was the acting foreman of the Tipton County Grand Jury
which indicted James Niciiwls and James Mitchell for first-de-
gree murder on November 6, 1972. Furthermore, the affiant
states that to the best of his knowledge, belief, memory, and
based upon a recent check of the records on file at the Tipton
County Court house, the regular foreman of that Grand Jury,
Mr. Naifeh, was unable to serve as foreman at the particular
term which indicted the petitioners. At that term, the Judge ap-
pointed the affiant to serve as foreman since the affiant had previ-
ously served in that capacity some years prior. Furthermore, the
affiant states that the only reason, to the best of his knowledge,
for his selection as acting foreman was his prior experience as
the foreman of previous grand juries. Furthermore, the affiant
states that he is presently serving in the capacity of foreman of
the Grand Jury of Tipton County. Furthermore, the affiant
states that in all his years as foreman of the Grand Jury or acting
foreman of the Grand Jury of Tipton County he has only once
voted for indictment. In all other cases true bills have been
returned based solely upon the vote of the other twelve (12) grand
jurors. In this regard, the affiant states that he specifically re-
members the case in which he voted for indictment and that case
was not the case involving the petitioners Nichols and Mitchell.
Finally, the affiant states that although some twenty (20) wit-
nesses were called in the case involving the petitioners Nichols
and Mitchell, the testimony of only one witness was heard, after
— 106 —
which all of the Grand Jurors indicated that they had heard
sufficient testimony to establish probable cause and that they
were ready to vote on the indictment.
/s/ PEYTON J. SMITH
Sworn and subscribed before me this 17th day of March, 1976.
In the United States District Court
For the Western District of Tennessee
Western Division
James E. Mitchell, 7
Petitioner,
v. L C-75-222
Jim Rose, Warden,
Respondent, |
and
James Nichols, Jr., ,
Petitioner,
v. | C-75-265
Jim Rose, Warden,
Respondent. | ’
ORDER
(Filed April 6, 1976)
This cause is before the court again following the order of
the court requiring a further response and the further responses
filed pursuant thereto.
~~ 15
In the further response, respondent concedes that there was
a violation of the Bruton rule with respect to petitioner Nichols
but contends that, in view of the weight of the evidence against
Nichols, the error was harmless.
It is therefore ORDERED that this matter be again referred
to the Magistrate for a report and recommendation, after con-
sideration of the State trial court record, as to whether such
Bruton error was harmless with respect to petitioner Nichols.
As to the issue concerning discrimination against blacks in
selection of the foremen of the grand jury, the further response
contains an affidavit by the foreman who states in substance
that he did not vote on the indictment of petitioners and that,
although some twenty witnesses had been called, the twelve
regular grand jurors voted to indict them after hearing the first
witness testify. The further response states’ that counsel for
respondent has not yet been able to determine whether this
foreman was a regular member of the grand jury venire when
he was appointed to act as foreman, that inquiries have been
made in that regard, and that the response will be supple-
mented as soon as such information is received.
It is ORDERED that the further response be supplemented
by affidavit as to whether the foreman was a regular member
of the venire within ten days.
It is so ORDERED.
ENTER this 6 day of April, 1976.
/s/ BAILEY BROWN
CHIEF JUDGE
— 108 —
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
James E. Mitchell, >
Petitioner,
vs. : Civil C-75-222
Jim Rose, Warden,
Respondent. |
James Nichols, Jr., >
Petitioner,
= . Civil C-75-265
Jim Rose, Warden,
Respondent. |
FURTHER RESPONSE
Now comes the respondent, by and through the Attorney
General of Tennessee, and makes further response to the latest
Order of this Court to Show Cause why the Writ of Habeas
Corpus and the relief prayed for in this cause should not be
granted. In that regard, the most recent Order of this Court
in this matter ordered further response as to whether the Grand
Jury Foreman was a regular member of the venire. In this
regard, the respondent states as follows:
(1) The Foreman of the Grand Jury which indicted the pe-
titioners was not a member of the regular venire.
(2) The Grand Jury which indicted the petitioners consisted
of a black individual, Mary Ann Buford.
(3) In support of these facts the respondent herewith submits
a letter from respondent’s counsel to H. M. Patrick, Clerk of
— 109 —
the Circuit Court of Tipton County dated March 25, 1976;
the response of H. M. Patrick dated April 1, 1976; and a certified
copy of the minutes of the Circuit Court of Tipton County from
November 6, 1972 which shows the composition of the Grand
Jury and the Grand Jury venire.
(4) Inquiry has been directed to the trial judge in an effort
to ascertain his considerations in selecting Peyton J. Smith as
Foreman of this particular grand jury. That information will be
provided the Court as soon as it is available.
(5) Based upon the information already before the Court,
respondent concludes that the following facts have been shown:
(a) The "oreman of the Grand Jury was not a member of
the Grand Jury Venire but was selected by the trial
judge to serve as foreman when the regular foreman
was unable to serve.
(b) The Foreman of the Grand Jury did ot vote to in-
dict the petitioners and the indictment was returned on
the vote of the other twelve (12) grand jurors.
(c) Only one (1) witness actually testified and that was a
police officer who obtained confessions from the pe-
titioners. The other twelve (12) grand jurors voted to
indict the petitioners after hearing the testimony of
this one (1) witness.
(d) Among those grand jurors voting to indict the peti-
tioners was a black lady, Mary Ann Buford.
(e) Ms. Buford has previously testified in state court that
there was no indication of any racial prejudice or
discrimination denoted in any way relative to the in-
dictments of the two (2) petitioners. (See State Record,
p. 90).
WHEREFORE, for the above stated reasons, the respondent
respectfully submits that the indictments in this case were re-
— 110—
turned without any hint of racial prejudice or discrimination in
any form. For the sake of argument, it may be said that the
system by which the Foreman of the Grand Jury in Tipton
County in November of 1972 was selected was a system not
completely immune from racial discrimination. Simply stated,
it may have been possible to racially discriminate in the selec-
tion of a Grand Jury Foreman in Tipton County in November
of 1972. However, to afford these petitioners any relief based
upon a possibility which is not supported by any fact or reason-
able inference would be to ignore the realities of this particular
case. For these reasons, the respondent respectfully prays that the
claim of the petitioners Nichols and Mitchell relative to the
question concerning discrimination in the selection of the Fore-
man of the Grand Jury by which they were indicted be dis-
missed.
Respectfully submitted,
/s/ MICHAEL E. TERRY
Assistant Attorney General
422 Supreme Court Building
Nashville, Tennessee 37219
Certificate of Service
I hereby certify that I have mailed a copy of the foregoing
Response to Mr. James E. Mitchell, No. 66684 and Mr. James
Nichols, Jr., No. 58054, Tennessee State Penitentiary, Nashville,
Tennessee, this 12 day of April, 1976.
/s/ MICHAEL E. TERRY
Assistant Attorney General
—illl—
In the United States District Court for the
Western District of Tennessee
James E. Mitchell,
Petitioner,
vs. =
\ Civil C-75-222
Jim Rose, Warden,
Respondent. |
James Nichols, Jr.,
Petitioner,
ns |. Civil C-75-265
Jim Rose, Warden,
Respondent.
FURTHER RESPONSE
Now comes the respondent, by and through the Attorney
General of Tennessee, for the purpose of further responding to
this Court’s Order to show cause why the application for a Writ
of Habeas Corpus should not be granted. In this regard, the
respondent would respectfully show:
(1) As reflected by the attached affidavit of the trial judge,
Herman L. Reviere, Mr. Peyton J. Smith was selected to serve
as foreman of the Grand Jury which indicted the petitioners
because he was willing and because he had experience and
had shown his ability to do that job in the past. Apparently,
Mr. Smith’s race was not a consideration in his selection to
serve as Foreman of this particular Grand Jury.
— 112—
WHEREFORE, based upon all of the evidence before this
Court, respondent respectfully prays that the application for a
Writ of Habeas Corpus can be denied.
Respectfully submitted,
/s/ MICHAEL E. TERRY
Assistant Attorney General
422 Supreme Court Building
Nashville, Tennessee 37219
Certificate of Service
I hereby certify that I have mailed a copy of the foregoing
Response to Mr. James E. Mitchell, No. 66684, and Mr.
James Nichols, Jr., No. 58054, Tennessee State Penitentiary,
Nau, Tennessee, this 12 day of April, 1976.
/s/ MICHAEL E. TERRY
Assistant Attorney General
TO WHOM IT MAY CONCERN:
I, Herman L. Reviere, Judge of the Circuit Court of Tipton
County, Tennessee, make the following statement under oath at
the request of the Attorney General of the State of Tennessee.
I was the Circuit Court Judge for the Criminal Court of
Tipton County, Tennessee at the November Term, 1972. Mr.
Jimmy Naifeh was the regular foreman of the Grand Jury
but was unable to serve because he was going to be out of the
County at the November 1972 term. Mr. Peyton Smith had
served.for me as foremen on previous occasions due to the
absence of the regular foreman and I asked him to serve at this
time.
—113—
Also, Mr. Smith had served as regular Grand Jury Foreman for
my predecessor in 1953 and 1954. Our records do not indicate
that Mr. Smith was on the regular jury panel nor the grand jury
panel in November 1972. We called Mr. Smith because he has
been willing to act in the past and has experience and does a good
job as such foreman.
In my five counties, I do not have a black grand jury fore-
man, although I have a black member of my Jury Commission
in one county. Most all of my Grand Juries and Petit Juries
have sizeable numbers of blacks on them, both men and women.
I don’t appoint Grand Jury Foreman very often because when
their two year term expires, I usually reappoint them, thus they
serve a long time and the problem doesn’t come up very often.
I don’t think that I have really given any thought to appointing
a black foreman but I have no feeling against doing so.
Witness my signature this April 5, 1976.
/s/ HERMAN L. REVIERE
Circuit Judge 16th Judicial Circuit
Sworn to and subscribed to before me this April 5, 1976.
/s/ H. M. PATRICK
Circuit Court Clerk
—114—
In the United States District Court for the
Western District of Tennessee
Western Division
James Nichols, Jr., 7
Petitioner,
VS. . No. C-75-265
Jim Rose, Warden,
Respondent. |
SECOND REPORT ON REFERENCE
(Filed Feb. 15, 1976)
This cause, and that of petitioner's co-defendant, James
E. Mitchell, were previously referred to me for a report and
recommendation. In my prior report I recommended that the
court further consider the charge that there was racial dis-
crimination in selecting the foreman of the grand jury that in-
dicted the petitioners, and I also recommended that the court
further consider the violation by the state trial court of the rule
set out in Bruton v. United States, 391 U.S. 123 (1968). Sub-
sequent to that report the court disposed of the issues concern-
ing alleged racial discrimination in selection of the grand jury
and its foremen, and the State of Tennessee conceded that there
was a violation of the Bruton rule as to James Nichols, Jr.
The only question remaining is whether or not that violation was
harmless error. The court again referred this matter to me
for a report and recommendation on that issue.
After his arrest, the petitioner’s co-defendant, James Mitchell,
was in the security unit of the John Gaston Hospital in Memphis,
Tennessee. Lt. L. M. Rose of the Shelby County Sheriff's
office testified that Mitchell called him and Inspector Dan Jones
— 115 —
to the security unit of John Gaston to give a statement on No-
vember 2, 1972. Lt. Rose testified that Mitchell was advised
of his constitutional rights, after which he gave an incriminating
statement about the robbery and murder in Tipton County,
Tennessee, which he and the petitioner were charged with.
When the state undertook to introduce this confession into the
joint trial of the petitioner and Mitchell, the court concluded
that it could not be read into the record without implicating the
petitioner. But Lt. Rose was allowed to give a narrative sum-
mary of the statement omitting any reference to the petitioner
and implicating only Mitchell. As I stated in my previous re-
port, it appears that Lt. Rose was successful in his effort to
narrate Mitchell’s statements in such a way as to not implicate
or suggest the participation of Nichols in the incident about
which the statement was given. Lt. Rose’s narration of Mitchell's
Statement begins at page 304 of the trial transcript.
Mr. Mitchell told Lt. Rose that he, Mitchell, went to Sonny
Man’s Club in Tipton County on October 28, 1972 and gambled
there. He later left that place and went to another establishment,
but then came back. He first went inside, and then went back
out to his car where he got a sawed-off shotgun. He went back
into Sonny Man’s and started shooting after he hear
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