# Appendix — Rose v. Mitchell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1085%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1979 - **Citation:** 443 U.S. 545 ## Text 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? 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 ) 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 ) 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 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1085%3A2. Public record. Not legal advice.