Petition — Standard v. Cowan

| FILED

IN THE

SUPREME COURT OF THE EXITED STATES

October Term, 1977

No. 418-4 €3

MICHAEL RAY STANDARD .- _ Petitioner-Appellant

versus

HENRY E. COWAN,

Superintendent Respondent-Appellee

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHN TIM McCALL

200 Interchange Building

S35 West Jefferson Street

Louisville, Kentucky 40202

Counsel for Pctitioncr, Michal

Ray Standard

Member of the Bar of the Supreme

Court of the United States

WESTERFIELD-GONTE CO., 619 W. KENTUCKY-P.O©. BOX 3251, LOUISVILLE, KY.

TABLE OF CONTENTS

PAGE

Ne ec cece cc tsecccsesecss ii

EE ee 1- 2

De ee cueweesascecess 2

esis 6 db 550 cosa eines sscecees 2- 3

I ILE 3- 5

Reasons for Granting the Writ .................... -11

I 12

Appendix A-1—Mandate in the Kentucky Court of

SES 13

Appendix A-2—Partial summary judgment of the

United States District Court ................... 14-25

Appendix A-3—Final summary judgment as to all

issues in the United States District Court for the

Western District of Kentucky at Louisville on Pe-

titioner’s Petition for Writ of Habeas Corpus ....26-28

Appendix A-4—Opinion of the United States Sixth

EEE ere 29-30

TABLE OF CITATIONS

Cases: Pace

Brewer v. Williams, 430 U.S. 387, 51 L. Ed. 2d 424,

es Me Be yy rere Seren 9,10, 11

Coker v. Georgia, 483 U. S. 584, 53 L. Ed. 2d 982,

ee a, I EEE 4 oo 0k Ws ko bc pth neiacnce ee 6,7

Furman v. Georgia, 408 U.S. 429, 33 L. Ed. 346, 92

EE i Vdc We kuseintostNveetsaskes 5, 6

Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d

_ BF Be ee Fe reer rier ree 9,10, 11

Schick v. Reed, 419 U. S. 256, 42 L. Ed. 2d 430, 95

ye EE id wae kasd babs &6e 0. bne0 ede’ ar 7

Stewart v. Massachusetts, 408 U. S. 845, 33 L. Ed.

ee S F Os eee) er err 6

Williams v. Kentucky, 408 U. S. 938, 33 L. Ed. 759,

Se TE oc Ch bbceceavavasscesyaes 5

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

MicHArn Ray STANDARD - Petitioner-A ppellant

v.

Henry FE. Cowan,

Superintendent :

Respondent-A ppellee

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

OPINION BELOW

Petitioner was convicted of armed robbery, rape,

indecent and immoral practices, sodomy, and armed

burglary in the Jefferson Circuit Court, Louisville,

Kentucky, on September 25, 1974. He appealed that

conviction to the then Kentucky Court of Appeals and

that conviction was affirmed in a per curiam opinion

that was not to be published on September 19, 1975.

His petition for rehearing in the Kentucky Court of

Appeals was denied on November 14, 1975. A copy of

the mandate in the Kentucky Court of Appeals is

marked A-1 in the Appendix attached hereto. Peti-

tioner filed a Petition for Writ of Habeas Corpus in

2

the United States District Court, Western District of

Kentucky on January 28, 1976. On March 23, 1977

Charles M. Allen, Judge, United States District Court

entered a partial summary judgment for the Respond-

ents with a memorandum opinion attached hereto. Ap-

pendix A-2. On September 8, 1977 the District Court

entered a final judgment granting the Respondent’s

summary judgment with reference to all issues. Ap-

pendix A-3. That opinion was appealed to the United

States Court of Appeals for the Sixth Cireuit and their

opinion was filed on July 3, 1978 affirming the District

Court’s denial of the Petition for Writ of Habeas

Corpus. Petitioner then filed a Petition for Rehearing

En Bane which was denied on August 16, 1978. A copy

of those opinions are presented to the court in the

Appendix marked A-4.

JURISDICTION

The opinion of the Sixth Cireuit Court of Appeals

affirming the District Court’s denial of the Petition for

Writ of Habeas Corpus was rendered and entered on

July 3, 1978. The Sixth Cireuit’s denial of the Peti-

tion for Rehearing Fn Bane was filed on August 16,

1978. The jurisdiction of this court is invoked under

28 U.S.C. Section 1254(1).

QUESTIONS PRESENTED

A. Whether Petitioner’s sentence of life without

possibility of parole for rape constitutes eruel and

unusual punishment when it was the most severe

punishment possible at the time of his conviction; and

3

B. Whether a statement used against Petitioner

at his trial was obtained in violation of his Fifth, Sixth,

and Fourteenth Amendment Rights under the United

States Constitution.

STATEMENT OF THE CASE

The Petitioner, Michael Ray Standard, was in-

dicted by the February 1974 term of the Jefferson

County, Kentucky Grand Jury and charged by a seven-

teen (17) count indictment number 151108. The of-

fenses for which Petitioner was tried are as follows:

Count Three (3) of the Indictment charged Petitioner

with armed burglary of the dwelling house of Janie

Junot; Count Six (6) charged Petitioner with the rape

of Janie Junot; Count Eight (8) charged Petitioner

with forcing Janie Junot to indulge the indecent and

immoral practices ; Count Nine (9) charged Petitioner

with committing the act of sodomy upon Janie Junot;

and Count Ten (10) charged Petitioner with armed

robbery of Janie Junot. A trial by jury was held in

the Jefferson Circuit Court, Louisville, Kentucky, the

Honorable George Kunzman presiding, on September

23rd through the 25th, 1974, on those five (5) counts of

the indictment. The jury retired and returned a ver-

dict of guilty on all five (5) charges. The jury fixed

the punishment for these convictions as follows: Ten

(10) years on the count of armed burglary of the dwell-

ing house; life without possibility of parole on the

count of rape; five (5) years on the count of indecent

and immoral practices; five (5) years on the count of

4

sodomy; and a life sentence on the count of armed

robbery.

Prior to the trial and prior to an indictment, on

February 2, 1974, the police called the Petitioner at his

place of work and asked him to come to the station after

work. (T.E., p. 110)'. When he arrived, Petitioner

was asked to stand in a line up, and he did so volun-

tarily. (T.E., p. 273). When identified by a woman

as the man who raped her, Petitioner was arrested.

(T.E., p. 274). Petitioner immediately hired an at-

torney, who informed the police that Petitioner would

not make any statements in his absence. (T.E., p. 120).

Despite this, the police removed Petitioner from the

jail to accompany them on their execution of a search

warrant of his home. (T.E., p. 120). During which

they obtained a statement used against him in this trial.

Petitioner objected to testimony regarding this state-

ment and moved to suppress such testimony. (T.E.,

p. 119). Petitioner also moved for a mistrial and a

continuance based on the fact that the Commonwealth’s

Attorney had not produced a statement for pre-trial

inspection, despite a court order directing such produe-

tion. (T.E., p. 19).

On September 19, 1975 the Kentucky Court of Ap-

peals affirmed the judgment against Petitioner. On

November 14, 1975 the Kentucky Court of Appeals

denied a Petition for Rehearing.

On January 28, 1976, Appellant filed a Petition for

Writ of Habeas Corpus in the United States District

I'T EB. refers to pages of the transcript of evidence in State

Court that were attached to the original Habeas Corpus petition

and are a part of the record.

i)

Court for the Western District of Kentucky at Louis-

ville. On March 23, 1977, a partial summary judgment

was granted against Petitioner without an evidentiary

hearing. A final summary judgment with reference to

all issues was granted without an evidentiary hearing

on September 8, 1977.

Petitioner appealed these decisions to the United

States Court of Appeals for the Sixth Cireuit and on

July 3, 1978, that Court entered an opinion affirming

the District Court’s summary judgment. On August

16, 1978, the Sixth Circuit Court of Appeals denied

Petitioner’s Petition for Rehearing En Bane.

REASONS FOR GRANTING THE WRIT

I. Petitioner’s Sentence of Life Without Possibility of

Parole for Rape Constitutes Cruel and Unusual Punish-

ment When It Was the Most Severe Punishment Possible

At the Time of His Conviction.

In September of 1974 Petitioner was convicted of

several offenses, the most serious being rape for which

he was sentenced to life without possibility of parole.

The alleged victim of this offense was an adult woman

who suffered no physical injuries in conjunction with

this alleged attack.

In 1972, this court invalidated the death penalty in

effect in Georgia in Furman v. Georgia, 408 U. S. 429,

33 L. Ed. 2d 346, 92 S. Ct. 272 (1972). On that same

day, this Court issued a memorandum decisions vacat-

ing death penalties in a great number of states includ-

ing Kentucky. Williams v. Kentucky, 408 U. S. 938,

33 L. Ed. 2d 759, 92 S. Ct. 2870 (1972). Each one of

6

these memorandum decisions referred to Stewart v.

Massaciiusetts, 408 U.S. 845, 33 L. Ed. 2d 744, 92 S. Ct.

2845 (1972), which states the reason behind the vaca-

tion of these judgments; ‘*The Appellant in this case

was sentenced to death. The imposition in carrying

out of the death penalty constitutes cruel and unusual

punishment in violation of eighth and fourteenth

amendments,’’ Stewart then cites Furman v. Georgia

for that proposition. All of these decisions were

rendered in June of 1972.

Kentucky’s legislature did not pass a new death

penalty statute until i974. Thus, at the time the of-

fense involved here was allegedly committed in Novem-

ber of 1973 and Appellant was tried, there was no death

penalty in effect in Kentucky. The next most severe

penalty was life without possibility of parole. How-

ever, rape of an adult woman was the only crime for

which one could receive that penalty. The most severe

punishment for a murder was life with possibility of

parole.

This Court, in Coker v. Georgia, 483 U. 8. 584, 53

L. Ed. 2d 982, 97 S. Ct. 2861 (1977), stated:

‘It is difficult to accept the notion, and we do not,

that the rapist, with or without aggravating cir-

cumstances, should be punished more heavily than

the deliberate killer as long as the rapist does not

himself take the life of his victim.”’

This language in Coker appears to be dispositive of

the issue at hand. When the Petitioner is tried and

convicted he received the most severe punishment pos-

7

sible under Kentucky law. His sentence is much more

severe than that of a deliberate murderer.

The Sixth Circuit Court of Appeals, however, felt

that this court’s holding in Schick v. Peed, 419 U.S.

256, 42 L. Ed. 2d 480, 95 8S. Ct. 379 (1974) meant that

the sentence of life without possibility of parole could

never constitute cruel and unusual punishment under

the United Sates Constitution. Petitioner agrees that

in and of itself, the no parole clause may or may not

offend the Constitution, however, like the death penalty,

it may be unconstitutionally applied in certain cases.

That is exactly the situation in the present ease. Life

without parole for rape only, when it is the most severe

punishment under the law, is clearly unconstitutional

as applied under these’cireumstances.

As for the factors discussed in Coker, in determin-

ing the effect of the sentence, Petitioner would like to

bring to this Court’s attention that if the crime for

which the Petitioner was convicted was committed

today, he would receive a maximum sentence of ten

(10) to twenty (20) years in the penitentiary. Appel-

lant’s sentence is excessive and unjust and it is clearly

unconstitutional under this Court’s reasoning in Coker.

Petitioner respectfully requests this Court to correct

that injustice,

II. A Statement Used Against Petitioner At His Trial Was

Obtained in Violation of His Fifth, Sixth, and Four-

teenth Amendments Rights Under the United States

Constitution.

The Petitioner was convicted of armed burglary,

rape, indecent and immoral practices, sodomy, and

armed robbery, all arising from a single incident in-

volving one woman. The evidence of guilt against the

Petitioner was noc overwhelming. The proof against

him consisted of a stale eyewitness identification, made

some three (3) months after the alleged incident and a

statement allegedly made by the Petitioner while in a

police car traveling from the jail where he was in-

earcerated to his home for the alleged purpose of ex-

ecuting a search warrant. There was no scientific

proof of any kind, nor were there any other witnesses

to the alleged incident.

The facts surrounding the alleged incident are

briefly as follows: Appellant had been charged with

the crimes listed above. Although he had not yet been

indicted, Petitioner had been charged and arraigned.

At the time of the arraignment, Counsel for Petitioner

advised the police officers that the Petitioner would not

be making any statements and he wanted to be advised

of any contact the police wanted to have with his client

and he would make himself available so that he might

be present. The police officers agreed to this request

and, in fact, had counsel accompany them and Peti-

tioner to a local hospital so that scientific tests might be

made. Thereafter, the police obtained a search war-

rant for Petitioner’s home. They then surreptitiously

®

9

removed Petitioner from the jail without notice to his

counsel, and took him along when they executed the

warrant. There was absolutely no reason why Peti-

tioner had to go along on this trip as he did not have

the key to the house and the door had to be broken

dcwn in order that they might enter the home. While

in the car, Petitioner allegedly made an incriminating

statement. Petitioner objected to the use of the state-

ment at trial. The statement allegedly made by the

Petitioner was ‘‘(H)ave you caught the white man ski

mask rapist yet ? Well, I'll bet he’s seared shit-

less since you’ve caught me.”’

While the Kentucky Court of Appeals opinion did

not even address this issue, the United States District

Court and the United States Sixth Circuit Court of

Appeals stated that the statement was made voluntarily

prior to the indictment and was not the product of

interrogation or police stimulation. However, trickery

by the police can take many forms, This was reeog-

nized by this Court in Brewer v. Williams, 480 U.S.

387, 51 L. Ed. 2d 424, 97 S. Ct. 1232 (1977) and Massiah

v. United States, 377 U. S. 201, 12 L. Ed. 2d 246, 84

S. Ct. 1199 (1964). In Brewer, the police elicited a

statement from the Defendant by appealing to his

religious nature. In Massiah, the agent obtained a

statement through eavesdropping. In the present case,

the alleged statement was made while the officers were

supposedly engaging impellent in ‘‘small talk’’ while he

was out of the presence of his counsel.

Tn its opinion, the Sixth Circuit Court of Appeals

stated that ‘ton inspection of the records having ascer-

10

tained with the statement which was introduced at the

Petitioner's trial and to which he now objects was made

before his indictment and was not the product of in-

terrogation or police stimulation. cM

Petitioner believes that the pre-indictment state-

ment issue was disposed of in Brewer, supra, The De-

fendant in that case had been booked, arraigned, and

incarcerated, but had not yet been indicted. Yet the

court relied on Massiah, which seems to indicate that

the rights defined in Massiah attached prior to indict-

ment or whenever ‘‘advisary proceedings have com-

meneed against an individual . . .’’ (Brewer, p. 488).

Since Massiah controlled in Brewer it must be con-

trolling in the instant case as the prosecution had

reached the same stage in both cases. Clearly this

Court cannot distinguish this case from Brewer and

Massiah on that basis.

Since it is apparent that it does not matter in this

case whether or not Appellant had been indicted, we

must examine in what manner the statement was

obtained.

The United States District Court and the Sixth

Cireuit Court stated that Petitioner's rights were not

violated as the statement was not a product of inter-

rogation or police stimulation. While it may not have

been an interrogation as strictly defined, it was clearly

obtained through the use of ‘‘trickery’’ or police

stimulation. Im Massiah, supra, the police were not

even talking to the Defendant who was out of jail on

bond. In that case, the Court held that the Sixth

11

Amendment prohibits the extraction of incriminating

statements from a person without presence of counsel.

Obviously, there is no distinction between interrogation

and voluntary statements made outside the presence of

counsel after a person’s Sixth Amendment Rights have

attached. In Brewer, supra, at page 437, the Court

stated ‘* That the incriminating statements were elicited

surreptitiously in the Massiah case, and otherwise here,

is constitutionally irrelevant.”’

Petitioner firmly believes that both the United

States District Court and the United States Court of

Appeals misunderstood the ramifications of Brewer in

light of Massiah, supra, and ask this Court to examine

that analysis and clarify these decisions.

Since this case is not one of clear guilt, the use of

this statement might well have been determinative of

guilt or innocence. Thus, Petitioner respectfully re-

quests this Court to grant the Petition for Writ of

Certiorari in this case.

ESS

12

ll

ow

CONCLUSION

The reasons for granting a writ, set forth above,

clearly enunciate substantial questions of constitutional

law. These issues have led to a great deal of confusion

SO ae nt tl ee

in the lower courts and should be settled by this Court.

We urge this Court to grant Certiorari to decide these

questions,

Respectfully submitted,

Joun Tim McCay

200 Interchange Building

S35 West Jefferson Street

Louisville, Kentucky 40202

Counsel for Petitioner, Michael

Ray Standard

Member of the Bar of the Supreme Court A P P E N D I X

of the United States

13

APPENDIX A-1

COMMONWEALTH OF KENTUCKY

75 Term—September 19, 1975

Micuaen. Ray STanparp ;

Ind. #151108,

: File #75-60

CoMMONWEALTH oF Kentucky

Appeal from a Judgment of the

Jefferson Circuit Court

MANDATE—Issued Noveimbcr 14, 1975

The Court being sufficiently advised, delivered herein

an opinion per curiam, and it seems to them there is no

error in the judgment herein.

It is therefore considered that said judgment be af-

firmed; which is ordered to be certified to said court.

It is further considered that the appellee recover of the

appellant its cost herein expended.

A copy—Attest:

By: (s) Frances Jones Mills, C. C, A.

Issued: November 14, 1975

Appellant’s Petition for Rehearing Denied—11/14/75

14

APPENDIX A-2

IN THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. C 76-0040 L(A)

Micuaet Ray StTanparp ° : - Petitioner

v.

Héexey E. Cowayx, Superintendent, Kentucky

State Reformatory - - - - Respondent

PARTIAL SUMMARY JUDGMENT

—Filed Mareh 23, 1977

Respondent, having moved for summary judgment, and

there being no genuine issue as to any material facts,

Ir Is Onperep anv Avsupcep that the respondent’s mo-

tion be and it is hereby sustained as to the admission of an

allegedly incriminatory statement made by the petitioner

in the absence of his counsel and without Miranda warn-

ings, and as to petitioner’s claim that a number of errors

at the trial court level denied him his Fourteenth Amend-

ment rights to a fair trial.

Ir Is Furntuer Orpverep ann Apsupcep that the Court

reserves any decision at this time upon the claim made that

the sentence of life without privilege of parole on peti-

tioner’s conviction of rape constitutes cruel and inhuman

punishment, in violation of the Eighth and Fourteenth

Amendments, pending decision by the United States Court

15

of Appeals for the Sixth Cireuit in the cases of Alton

Moore, Jr. v. Henry E, Cowan, No. 76-1859 (6th Cireuit) ;

Edward Earl Stover v. Henry E. Cowan, No, 76-1889 (6th

Cireuit) and Donnie Darrell Randolph v. Henry Cowan,

No. 76-2378 (6th Circuit).

Ir Is Furruer Orperep AND Avgupcep that this is not a

final and appealable judgment.

(s) Charles M, Allen

MEMORANDUM OPINION—Filed March 23, 1977

This is an action brought pursuant to 28 U.S.C. See.

2254 for a writ of habeas corpus. The respondent has

moved to dismiss, which motion we construe as one for a

summary judgment, pursuant to Federal Rules of Civil

Procedure 12(b). Inasmuch as the petitioner has exhausted

available state remedies, and the questions presented raise

no issues of material fact, the respondent’s motion will be

granted in part.

On September 25, 1974, petitioner was convicted in state

court of burglary, rape, indecent and immoral practices,

sodomy, and armed robbery and was sentenced by the jury

to 10 years, life without privilege of parole, 5 years, 5 years,

and life, respectively. An appeal to the Kentucky Court of

Appeals resulted in an affirmance of the above conviction

and sentences on September 19, 1975.

The constitutional violations, which are alleged in the

petition and were raised on appeal, are as follows: (1)

admission of an incriminatory statement made by the peti-

tioner in the absence of counsel and without Miranda warn-

ings violated his Fifth and Fourteenth Amendment right

against self-incrimination and his Sixth and Fourteenth

Amendment right to counsel;' (2) a number of errors at

1Although the Sixth Amendment claim was not included in the

petitioner’s appellate brief, it was expressly raised in his petition for

rehearing; therefore, we conclude that this issue was “fairly presented

“ ot) Kentucky Court of Appeals. See Picard v. Connor, 404 U. S. 270

16

trial denied petitioner of his Fourteenth Amendment right

to a fair trial; and (3) the sentence of life without privilege

of parole on the rape conviction constitutes cruel and un-

usual punishment, in violation of the Eighth and Four-

teenth Amendments.

SELF-INCRIMINATION AND RIGHT TO COUNSEL

Insofar as relevant to the first issue and resolving all

fact questions in petitioner’s favor, the record discloses

that he was arrested on or about February 2, 1974, and he

retained counsel immediately thereafter. Counsel advised

petitioner to make no statements to the police, and on or

about February 12, counsel advised the police that peti-

tioner would make no statements and was not to be ques-

tioned in his absence. Subsequently, on or about February

13, two police officers, without notifying counsel and pur-

suant to a search warrant, drove the petitioner from the

county jail to his home, where a search was conducted. On

the return trip to the county jail, the following conversa-

tion took place:

Petitioner: “I heard that you all caught that ski

mask man (rapist).”

Officer Martin: “No we ain’t caught him.”

Petitioner: “I bet he’s scared since you guys

caught me in that area.”

Prior to this conversation, which was admitted as an

incriminatory statement at trial, over objection, petitioner

was given no Miranda warnings. On the other hand, it is

undisputed that this particular exchange was pursuant to

a general conversation which did not concern the charges

against the petitioner, was not in response to any question-

ing by the police officers, and occurred prior to his indict-

ment on February 18, 1974.

We hold that the exclusionary rule of Miranda v. Ari-

zona, 884 U. S. 436 (1966), does not apply to the statement

17

made by petitioner, since it did not stem from any “cus-

todial interrogation,” which was defined in Miranda, supra

at p. 444, as “questioning initiated by law enforcement

officers after a person has been taken into custody or other-

wise deprived of his freedom of action in any significant

way.” Moreover, petitioner’s reliance on Williams v.

Brewer, 509 F, 2d 227 (Sth Cir. 1974), cert. granted, 423

U. S. 1031 (1975), is misplaced, since the Eighth Circuit

noted that the “conversation” in which the police engaged

the petitioner in that case was directed at the crime with

which he was charged and was initiated with the specific

purpose of finding out information concerning the where-

abouts of the victim of the crime.

Therefore, since the record fails to show, and no allega-

tion has been made, that the conversation preceding peti-

tioner’s statement was in any manner related to the crime

with which he was charged or designed to elicit incrimi-

nating information, or that petitioner’s statement was

otherwise involuntary, or the product of compulsion exerted

by the officers, the Court finds that petitioner’s statement

was voluntary and that it was not inadmissible under the

Miranda decision, which reads in pertinent part as follows,

supra at p. 478:

“The fundamental import of the privilege against

self-incrimination while an individual is in custody is

not whether he is allowed to talk to the police without

the benefit of warnings and counse!, but whether he can

be interrogated . . . . Volunteered statements of

any kind are not barred by the Fifth Amendment and

their admissibility is not affected by our holding to-

day.”

See, also, United States v. Harris, 460 F. 2d 1041 (Sth Cir.)

cert. den., 409 U. S. 877 (1972); United States v. Littlejohn,

441 F. 2d 26 (10th Cir. 1971).

18

With regard to petitioner’s Sixth Amendment claim, it

follows that since his incriminatory statement was not the

product of interrogation, petitioner had no right to counsel

on the basis of Miranda, supra; Escobedo v. Illinois, 378

U. S. 478 (1964); and their progency, which hold that cus-

todial interrogation is a crucial stage to which the right to

counsel attaches.

Further, the Court notes that the Supreme Court’s de-

cisions in Massiah v. United States, 377 U. S. 201 (1964) ;

McLeod v. Ohio, 381 U. S. 356, reh. den., 382 U. S. 874

(1965), summarily reversing 1 Ohio St. 2d 60, 203 N. EK. 2d

349 (1964), on the authority of Massiah, supra; Beatty v.

United States, 389 U. S. 45 (1967), summarily reversing,

877 F. 2d 181 (5th Cir. 1967), on the authority of Massiah,

supra, have been interpreted by a number of circuits as

holding that the admission of a post-indictment incrimina-

tory statement to police officers or their agents in the

absence of counsel violates a defendant’s Sixth Amendment

right to counsel, even though the statement may have been

voluntary and not procured by interrogation or deception

on the part of the officers or their agents, unless there has

been a clear and knowing waiver of that right. See, Milani

v. Pate, 425 F. 2d 6, 7 (7th Cir.), cert. den., 400 U. S. 867

(1970) ; United States v. Missler, 414 F. 2d 1293, 1802 (4th

Cir. 1969), cert. den., 397 U. S. $18 (1970); O'Connor v.

New Jersey, 405 F. 2d 632, 634 (8rd Cir.), cert. den; sub

nom Yeager v. O’Connors, 395 U. 8. 923 (1969) ; Hancock

v, White, 378 F. 2d 479, 482 (1st Cir. 1967) ; but see, United

States v. DeLoy, 421 F. 2d 900, 901, 902 (5th Cir. 1970) ;

United States v. Garcia, 377 F. 2d 321, 324 (2nd Cir.), cert.

den., 389 U. S. 991 (1967).

However, no court has held that the exclusionary rule

of Massiah, supra, applies to pre-indictment statements;

rather, the circuits that have considered this question have

held that, except at custodial interrogatories, there is no

Sixth Amendment right to counsel at confrontations be-

19

tween investigatory officers and the accused prior to in-

dictment, Wallace v. United States, 412 F. 2d 1097, 1101

(D.C. Cir. 1969), cert. den., 402 U. S. 943 (1971) ; Caton vy.

United States, 407 F. 2d 367, 373 (8th Cir.), cert. den., 395

U.S. 984 (1969) ; Collins v. Wilson, 368 F. 2d 995, 996-997

(9th Cir. 1966). In light of the Supreme Court’s decision

in Kirby v. Illinois, 406 U. S. 682 (1972), we believe this is

the correct rule and hold that petitioner’s Sixth Amend-

ment right to counsel was not violated by the admission of a

pre-indictment incriminatory statement made without the

presence of counsel. See, United States v. Lemonakis, 485

FP, 2d 941, 953-954 (D.C. Cir. 1973), cert. den., 415 U. S. 989

(1974).

The Court does observe that while no constitutional

right of the petitioner was violated by the admission into

evidence of his incriminatory statement, the prosecutor

may have violated the ABA Canon of Ethies by using a

statement which was obtained at a confrontation between a

defendant and a government agent without notice to de-

fendant’s retained counsel. See, e.g. United States v. Le-

monakis, supra, at pp. 954-956; United States v. Thomas,

474 F. 2d 110, 111-112 (10th Cir.) cert. den., 412 U. S. 932

(1973).

FAIR TRIAL

The petitioner next argues that the total effect of the

following errors was to deny him of his Fourteenth Amend-

ment right to a fair trial: (1) trial court’s refusal to grant

petitioner’s motion for a continuance based on the prose-

eutor’s failure to disclose petitioner’s pre-trial incrimina-

tory statement, in violation of the court’s order pursuant

to Kentucky Rules of Criminal Procedure 7.24(1)(a); (2)

trial court’s refusal to declare a mistrial after the prose-

eutor “paraded victims of other crimes” allegedly com-

mitted by the defendant before the jury; (3) trial court’s

refusal to allow Dr. Templer, a psychologist and expert

witness, to testify concerning petitioner’s psychological and

20

mental condition; (4) trial court’s refusal to admit the

results of a lie detector test, which were favorable to peti-

tioner; (5) various acts of prosecutorial misconduct pre-

judicial to the petitioner; and (6) trial court’s refusal to

comply with the jury’s request that petitioner’s and peti-

tioner’s witnesses’ testimony be read to them.

The Court holds that the above alleged trial-errors did

not, either individually or cumulatively, deny petitioner of

any specific constitutional protection nor were so preju-

dicial as to amount to a denial of due process. See, Man-

ning v. Rose, 507 F. 2d 889, 892-893 (6th Cir. 1974).

First, assuming that the trial court’s order pursuant to

Ky. R.Cr. 7.24(1)(a) required pre-trial disclosure of peti-

tioner’s incriminatory oral statement to Officer Martin, the

petitioner has failed to show with any par‘icuiarity how he

was prejudiced by the Court’s ru'ing derying a continuance.

Instead, the record reveals that the petitioner on cross-

examination explained the reason why he made the state-

ment, and the Court fails to see how a continuance could

have been of any benefit to the petitioner. Whether to

grant a continuance is a matter within the sound discretion

of the trial judge, and we do not find that he abused that

discretion in this case.

With regard to the allegation that the prosecutor was

allowed to “parade the victims” of other crimes with which

netitioner was charged before the jury, the Court finds that

there is no evidence whatsoever on the record, nor any

assertion to the effect, that the jurors, or any one of them,

were made aware of the identity, or relationship to the

ease, of the two women named in other counts of the in-

dictment, which were not the subject of the instant trial,

who appeared pursuant to a subpoena by the Common-

wealth on the first day of trial. This case is easily distin-

enishable from that cited by petitioner, Turpin v. Common-

wealth, 352 8. W. 2d 66 (Ky. 1961), where other charges

pending against the appellant were clearly brought to the

———

21

attention of the jury. Thus, the Court holds that the trial

court did not err in denying a motion for a mistrial on the

basis that two women, who were named victims of other

counts of the indictment against the petitioner, were

present in the courtroom,

The third and fourth errors that petitioner contends

were committed by the trial court concern rulings on the

admissibility of evidence. We take cognizance that the

admission of evidence in a state trial may raise a consti-

tutional question on a habeas corpus petition where “funda-

mental fairness” has been impugned, see, e.g., Lisenba vy.

California, 314 U. S. 219, 236, reh. den., 315 U. 8. 826

(1941) ; Maglaya v. Buchkoe, 515 F. 2d 265, 268 (6th Cir.),

cert. den., 423 U. S. 931 (1975); Burks v. Egeler, 512 F. 2d

221, 223 (6th Cir.), cert. den., 423 U. S. 937 (1975), but the

Court finds that the trial court did not abuse its discretion

by refusing to admit the two pieces of evidence in contro-

ver,

As regards Dr. Templer’s testimony, the effect of that tes-

timony would have been that the petitioner did not have

the personality type nor the low intelligence typical of the

normal rapist. It was not established on avowal, however,

that the personality type or intelligence of the “normal

rapist” is a matter of general acceptance among psycholo-

gists. As the Ninth Circuit pointed out in United States v.

Amaral, 488 F. 2d 1148, 1152 (9th Cir. 1973), in connection

with proffered expert testimony concerning the credibility

of eyewitness identifications, because expert testimony runs

the risk of having an aura of special reliability or trust-

worthiness, courts have imposed the test that the testimony

comport with a generally accepted explanatory theory, and

the trial judge is given broad discretion in ‘balancing the

probative value of the tendered expert testimony against its

influence on the jury. Therefore, we hold that the trial

court did not abuse its discretion, nor commit constitutional

error, in refusing to permit Dr. Templer’s testimony.

22

Further, it is clear that the reliability of lie detector

tests has not yet been firmly enough established to hold that

a trial court’s refusal to admit the results of these tests

constitutes a denial of due process such as will support a

habeas corpus petition. See United States v. Fay, 284 F. 2d

426 (2nd Cir. 1960), cert. den. sub nom Sadowy v. Fay, 365

U. S. 850 (1961). :

Fifth, petitioner claims that he was denied a fair trial

because of certain acts of alleged prosecutorial misconduet,

to wit: (1) indicating that petitioner’s alibi witness did not

leave work until later than the time to which she testified,

without later substantiating that implication, (2) referring

to the offense charged as a “bona fide rape,” (3) directly

addressing a juror who sought to ask a question of a wit-

ness, (4) asking petitioner’s alibi witness whether she occa-

sionally called in sick for petitioner at his place of em-

ployment, (5) asking petitioner’s alibi witness questions

that might imply that she had been coached or encouraged

to come up with an alibi for petitioner by petitioner’s coun-

sel, and (6) arguing in closing that the jurors should not

acquit due to fear of repercussions if they found petitioner

guilty.

While we find some of the above acts, notably (1) and

(6), somewhat reprehensible, we hold that none of them,

individually or cumulatively, were so prejudicial as to arise

to a constitutional deprivation of a fair trial. Moreover,

the discrepancy brought out in regard to (1) was not dam-

aging to petitioner’s alibi defense, as he himself brought out

after further questioning on cross-examination, and the re-

mark referred to in (3) was addressed to the witness, not

the juror.

Finally, after carefully reviewing the record, the Court

finds that the trial court did not refuse to comply with the

jury’s request for a rereading of petitioner’s and peti-

tioner’s witnesses’ testimony, but demonstrated a willing-

ness to reread all portions of the transcript that the jury,

23

after further deliberation, determined it needed. Thus,

United States v. Rabb, 453 F. 2d 1012 (3rd Cir. 1971), is not

authority for petitioner’s position.

CRUEL AND UNUSUAL PUNISHMENT

Petitioner was sentenced by the jury to life without pos-

sibility of parole for rape of a female over 12, pursuant to

K.R.S. 435.090, which provided for any of the following

punishments: death, life without privilege of parole, life,

or 10 to 20 years. He maintains that his sentence of life

without parole is cruel and unusual in violation of the

Eighth and Fourteenth Amendments, as interpreted in

Furman v. Georgia, 408 U. S. 238, reh. den., 409 U. S. 902

(1972). In support of his argument, petitioner states that

he had no prior criminal record, that the new Kentucky

Penal Code, effective January 1, 1975, in K.R.S. 510.040,

makes the penalty for the type of rape of which he was con-

victed 10 to 20 years, and that life without parole for rape,

without other bodily injury, is “offensive to contemporary

standards of decency.”

In five recent post-Furman, supra, decisions, all decided

July 2, 1976, Gregg v. Georgia, No. 74-6257 ; Jurek v. Texas,

No. 75-5394; Woodson v. North Carolina, No. 75-5491;

Proffitt v. Florida, No. 75-5706; and Roberts v. Louisiana,

No. 75-5844, the Supreme Court has reviewed the death

penalty provisions of various states in light of the Eighth

Amendment’s prohibition of cruel and unusual punishment.

The three tests articulated in the Stewart, Powell and

Stevens opinion, announcing the judgment of the Court in

Gregg, supra, at p. 16, for determining whether a punish-

ment is cruel and unusual are the following: (1) Does the

punishment involve the unnecessary and wanton infliction

of pain or is it per se excessive or otherwise unacceptable?

(2) Is the punishment grossly out of proportion to the

severity of the crime? (3) With regard to the death pen-

alty, are there clear and objective standards to guide the

24

sentencing body, which standards take into account the

circumstances of the offense and the character and propen-

sity of the offender?

Obviously, since only two members of the Supreme Court

would have held that the death penalty was per se ex-

cessive and unacceptable by contemporary standards, we do

not find that life without parole is per se unacceptable.

Nor do we feel that life without parole is grossly dispro-

portionate to the crime of rape, despite the fact that the

1974 Kentucky Legislature saw fit to lower the penalty for

first degree rape.

Inasmuch as K.R.S. 435.090 gave the jury a wide range

of punishments to choose among without any objective

criteria to be used in making the choice, if the third test

enunciated by the Court in Gregg, supra, were applicable

to punishments other than the death penalty, petitioner’s

punishment would have to be vacated as violative of the

Eighth and Fourteenth Amendments. However, the follow-

ing language at pp. 23-24 of the Stewart, Powell and

Stevens opinion in Woodson, supra, convinces us that this

is not the position of the Supreme Court.

“While the prevailing practice of individualizing sen-

tencing determinations generally reflects simply en-

lightened policy rather than a constitutional impera-

tive. we believe that in capital cases the fundamental

respect for humanity underlying the Eighth Amend-

ment . . . requires consideration of the character

and record of the individual offender and the cireum-

stances of the particular offense as a constitutionally

indispensible part of the process of inflicting the pen-

alty of death.”

“This conclusion rests squarely on the predicate that

the penalty of death is qualitatively different from a

sentence of imprisonment, however long.” (Emphasis

added. )

25

In addition, while the Court in Woodson, supra, and

Roberts, supra, ruled that statutes making the death penalty

mandatory for specified crimes violate the Eighth and Four-

teenth Amendments, in Walters v. California, 425 U. S. 967

(1976), the Court dismissed without opinion an appeal

raising, in part, the question of whether a California stat-

ute making life without parole mandatory for kidnapping

with bodily injury, was cruel and unusual “for want of sub-

stantial federal question.”

We understand that the United States Court of Appeals

for the Sixth Cireuit is now considering an appeal from

two judgments entered by the Honorable Chief Judge

Rhodes Bratcher, in the Western District of Kentucky, dis-

missing claims made by habeas corpus petitioners that a

life sentence without parole for the offense of rape con-

stitutes cruel and inhuman punishment under the Eighth

Amendment, and violates the Equal Protection rights of the

petitioners who are black and who allege that this punish-

ment has been discriminatorily levied against blacks.

We believe, therefore, in the exercise of the utmost

caution and in the interest of judicial economy, that it would

be best, at this time, to defer any judgment with respect to

the Eighth Amendment claim of the petitioner. We under-

stand that the two cases now pending in the Sixth Circuit

will be argued orally at the April, 1977 term, and we prob-

ably can expect a definitive opinion from that court in the

late spring or early summer of this year.

With reference to the claim of Equal Protection raised

by the petitioner in the case at bar, we note that he did not

expressly raise this question in the state courts and we do

not consider this issue at this time because of his failure

to exhaust state remedies.

An interlocutory judgment in accordance with this opin-

ion has been entered this day.

Date 3-23-77 (s) Charles M. Allen

United States District Judge

ee: Counsel of Record

26

APPENDIX A-3

IN THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. C 76-0040 L(A)

MicuaeLt Ray STanparp, - - - - Petitioner,

v.

Henry E. Cowan, Superintendent, Kentucky

State Reformatory, - - + = Respondent.

JUDGMENT—Entered September 8, 1977

The Court, having previously entered a partial summary

judgment for respondent, and having entered its memo-

randum opinion, and being fully advised in the premises,

Ir Is Now Orperep anp Apsvupcep that, respondent is

granted summary judgment with reference to all issues

advanced by the petitioner in support of his application for

a writ of habeas corpus.

Iv IsFurrHer OrperepD AND ApsupceD that this is a final

and appealable judgment and there is no just cause for

delay.

Dated 9/8/77

(s) Charles M. Allen

United States District Judge

ec: Counsel of Record

to

~

MEMORANDUM OPINION—Entered September 8, 1977

This Court previously entered a memorandum opinion

and partial summary judgment in this habeas corpus action

filed by the petitioner, Michael Ray Standard. The Court

specifically reserved the question of whether or not a life

sentence without parole for rape without other bodily in-

jury is cruel and unusual punishment in violation of the

Eighth and Fourteenth Amendments. The Court reserved

judgment because of the pendency of four cases raising the

same point in the United States Court of Appeals for the

Sixth Circuit, which have now been decided under the name

of Alton Moore, Jr. v. Henry E. Cowan, Warden, Nos.

76-1859, 76-1889, 76-2377, 76-2378, on August 26, 1977. In

Moore the court held that the no-parole sentence does not

constitute cruel and unusual punishment, nor is it uncon-

stitutional because it applied to one sex only.

In reaching its conclusion, the court relied upon the

reasoning of Schick v. Reed, 419 U. S. 256 (1974) and to

the statement made at p. 267, which is as follows:

“The no-parole condition attached to the commutation

of (petitioner’s) death sentence is similar to sanctions

imposed by legislatures such as mandatory minimum

sentences or statutes otherwise precluding parole; it

does not offend the Constitution. 419 U. S. 256, 267

(emphasis added).”

We note with some interest that the court, in Moore, Jr.

v. Cowan, Warden, supra, did not refer to Coker v. Georgia,

No. 75-5444 decided June 29, 1977, where the Supreme Court

concluded that a sentence of death with respect to the rape

of an adult woman “is grossly disproportionate and ex-

cessive punishment for the crime of rape and is therefore

forbidden by the Eighth Amendment as eruel and unusual

punishment.” Coker did not, of course, reach the question

28

of a life sentence without parole for the offense of rape

and, therefore, is not in point here. We do point out, how-

ever, that Mr. Justice White, at pp. 12 and 13 of the

plurality opinion, states that the court does not discount the

seriousness of rape as a crime. We note also his statement

that “(s)hort of homicide, it is the ‘ultimate violation of

self?” and that it is often accompanied by physical injury

to the female and can also inflict mental and psychological

damage, as well as undermine the community’s sense of

security.

In light of the decision of the Sixth Circuit in Moore, Jr.

v. Cowan, Warden, supra, we hold that the life sentence

without parole for the crime of rape does not violate the

Eighth Amendment to the Constitution. Moore, Jr., is

controlling on us in the absence of a Supreme Court case

deciding the point and there is no such case.

We have this day entered judgment disposing of this

case.

Dated 9/8/77

(s) Charles M. Allen

United States District Judge

ee: Counsel of Record

29

APPENDIX A-4

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 77-3574

MicnaeL Ray Stanparp : - Petitioner-A ppellant

v.

Henry E. Cowan, Superintendent - Respondent-Appellee

ORDER—Filed August 16, 1978

Before: Weick, Epwarvs and CreLesrezze, Circuit Judges.

On receipt and consideration of a petition for rehearing

en bane: and

No active judge having moved for such hearing; and

The motion having been referred to the panel which

heard the appeal; and

Finding in the petition no argument advanced which

this court had not considered before entry of its order,

Said petition is hereby denied.

Entered by order of the Court

John P. Hehman, Clerk

(s) Grace Keller, Chief Deputy

30

ORDER—Filed July 3, 1978

Before: Weick, Epwarps and CELEBREzZzE, Circuit Judges

On receipt and consideration of an appeal from denial

of a petition for writ of habeas corpus, under 28 U.S.C.

§ 2254 (1970); and

Noting that petitioner had been convicted on. a number

of charges, the most serious of which was the charge of

rape, for which appellant received a sentence of life, with-

out possibility of parole; and

Further noting petitioner’s claim that he had been

denied his Sixth Amendment right to counsel, in violation

of Massiah v. United States, 877 U. S. 201 (1964) and

Brewer v. Williams, 480 U.S. 3887 (1977), but on inspection

of the record having ascertained that the statement which

was introduced at petitioner’s trial and to which he now

objects was made before his indictment and was not the

product of interrogation or police stimulation, Cf. Brewer

v. Williams, supra; and

Noting further that the penalty of life without possi-

bility of parole for the crime of rape has thus far never

been held to be cruel and unusual punishment, which was

prohibited to the states by the Kighth Amendment. Cf.

Coker v. Georgia, 483 U. S. 584 (1977), see Moore v. Cowan,

560 F. 2d 1289 (6th Cir. 1977),

Now, therefore, the judgment of the District Court is

affirmed.

Entered by order of the Court

(s) John P. Hehman

Clerk