Petition — Glasscock v. Tennessee

Supreme Court Of The United States

NOVEMBER TERM, 1978

8-861

No.

JOSEPH LAVONNIE GLASSCOCK ............00000- Petitioner

vs.

oR ey ress rey rete Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF TENNESSEE

J. B. Cobb

Atterney at Law

99 N. Third St.

Memphis, Tennessee 38103

(901) 523-0301

Janet Leach Richards

Attorney at Law

99 N. Third St.

Memphis, Tennessee 38103

James L. Elliott

Attorney at Law

Suite 1830

9 N. Second St.

Memphis, Tennessee 38103

Attorneys for Petitioner

TREVATHAN PRINTING COMPANY, NEWPORT, ARKANSAS

INDEX

Page

OE a Sir talent tne ek gE 1

I ea, we cavaceaxs 1

a acne ee ak 2 a 2

QUESTIONS PRESENTED ..............cc0cccccees: 2

CONSTITUTIONAL PROVISIONS INVOLVED ........ 3

STATEMENT OF THE CASE ...................0000: 4

REASONS FOR ALLOWANCE OF WRIT ............. 7

I ss ey ee ee ods aC cand. 8

IN oe) sc tata cabeces cs ceceaks 11

IS ee ee 14

ne res Sh ok 2 a. 19

eg da ia dik Kvireaceens 22

GUIPECATE OF SERVICE .........02.....5.....5: 22

APPENDIX I —

OPINION OF THE COURT OF CRIMINAL

APPEALS OF TENNESSEE .............00e0005 A-2

ORDER OF THE SUPREME COURT

EE an gc eevererryes VTE A-4

APPENDIX II —

MOTION TO QUASH INDICTMENT AND TO

PRE UE MEV EMEENED osc ccccccccccvcccccccecs A-9

APPENDIX III —

DEFENDANT’S FIRST SET OF

SUUREEPIMUEERIUEEED oo ccs cccccsncccoscceccess A-14

APPENDIX IV —

RULES OF PRACTICE AND PROCEDURE”

IN THE CRIMINAL COURTS OF SHELBY

COPRIENE By MUUURUMIEEED 00s cevcccccccvcesvens A-19

APPENDIX V —

MOTIONS FOR NEW TRIALS ................ A-25

APPENDIX VI —

40 T.C.A. 2801, 2804, 2805 AND 2806 ............ A-32

iii

CASES CITED

A. Z. Din v. United States, (9th Circuit, 1956), 232 Fed.

2d 283, Cert. Denied 77 S. Ct. 39, 352 U.S. 827 ....... 18

Benton v. Maryland, 89 S. Ct. 2056, 395 U.S. 784........ 12

Carmona v. Ward, 576 Fed. 2d 405 (1978) .............. 9

Carvajal v. State, 529 S.W.2d 512 ..... ccc ccc eccees 13

Chandler v. Fretag, 348 U.S. 3, 99 L. Ed. 4 (1954) ...... 12

Chewning v. Cunningham, 368 U.S. 443 (1961) ........ 12

Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed.

OR Eo a x cre LYTEY Eyre 8

Coleman v. U. S., CCA Texas, 167 Fed. 2d 837 .......... 18

Cothren v. State, 140 S.W.2d 860 ........... cece ee eee 13

Duchac v. State, 505 S.W.2d 237 (Tenn. 1973) ......... 13

Bee TOR BIE, BO TPE BOE cic vce reerctscccccesceenes 13°

Ex Parte White, 538 S.W.2d 417 .......cccccccccceves 13

Frost v. Corporation Commission of State of Oklahoma,

(1929), 278 U.S. 515, 49S. Ct. 2385 «0... eee eee 14

Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed.

a WEEN sp ihn's Wia'u AWG Wd ible oF 0 ve aiabe o'einiwew'e'd « 8

Gardner v. Florida, 430 U.S. 349, 51 L. Ed. 2d 393, 97

Se ea a een ee ee 8

Gideon v. Wainwright, 372 U.S. 335 ........ cee eee eee 12

Gold v. U.S., CCA N.J., 102 Fed. 2d 350 ......... 0000 18

Gooden v. State, 145 S.W.2d 179 .... cc ccccccccccvcecs 13

Graham v. Tennessee, 547 S.W.2d 531 (1977) .......... 16

Green v. State, 247 S.W. 84, 147 Tenn. 299, 28 ALR 842... 12 —

ce I 8 oho 0 6.0 eb KN bO NHS 0 dees cers 12

GROOT ey Oe OD 6 0 e'c 0 60-60 60 be ERE coceticcce’s 12

Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed.

bis Gls dale Cale sc aiaiah va 0 th 8

iv

Hart v. Coiner, 483 Fed. 2d 136 (4th Circuit 1973), Cert.

Denied 415 U.S. 983, 94 S. Ct. 1577, 39 L.Ed. 2d

EE either te, nod os paesn ckedwees o4h48 a 8

SEOCOG Ge) «Wk Oe sO TE ccs icevcccrccvcsvectoce 18

Hill v. Texas, (1942), 316 U.S. 400, 62S. Ct. 1159 ........ 14

Holt v. State, 24S.W.2d 866, 160 Tenn. 366 ............. 12

Fis G02 TOUOU BES Tas BOO cs px na nccccocrvevtiiniiect 12

Johnson v. State of Kansas, 284 Fed. 2d 344 (1960) ..... 12

Jones v. Boles, 257 Fed. Supp. 293 .........cccccccvees 12

RO Ts Hs MOT Sci vcasactavetveresocene 13

Lighter v. State, 247 S.W. 1065 (S. Ct. Arkansas) ...... 16

Louisville Gas and Electric Company v. Coleman,

(1928), 277 U.S. 32, 48 S. Ct. 423 ... ec ccccccces 14

Miller v. State, 140 S.W.2d 859 .... cece cere eens 13

NAACP v. Alabama, 357 U.S. 449 (1958) .............. 21

People :. Reese, 258 N.Y. 89, 179 N.E. 385 .............. 11

Pietch v. U.S., (10th Cir. 1940), 110 Fed. 2d 817, Cert.

Denied 60 S. Ct. 1100, 310 U.S. 648 ................ 18

Reger v. U. S., CCA Col., 37 Fed. 2d 74 ............005. 18

Remus v. U.S., (6th Cir. 1924), 291 Fed. 501, Cert.

Denied, 44 S. Ct. 180, 263 U.S. 717 .............00e 18

Robinson v. California, 370 U.S. 660 (1962) ............ 11

Rummel v. Estelle, 568 Fed 2d 1193 (1978) ............. 8

BMAP D. BOOA Dae GRE GO cciccvscc be tcccccccsccve 13

State v. Hopson, 112 Ariz. 497, 543 P.2d 1126 (1975) .... 12

Staub v. City of Baxley, 355 U.S. 313 (1958) ........... 21

Stutz v. U. S., CCA Fla., 47 Fed. 2d 1029 ............... 18

Ty Oh SIT oc orc ces cusewiccchestecdeewce 9

ee Oe ES has cuncaaeciencenks sessed’ 12

ue os A NE MEIN EU V's ve ccccessevdcsecccccocucs 13

U. S. v. Cruikshank, (1875), 92 U.S. 542 .............06. 14

U.S. v. Frischling, CCA N.J., 160 Fed. 2d 370 .......... 18

Weems v. U.S., 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793

DUG Sg cca lls CoCb ea Vera a ecenbe ea 8

Vv

STATUTES CITED

28 USC $1257(3) .....ceccccccccccccccccvceveccsvecees 2

Code Ala., Tit. 15, $331 .......cccccccccccscccscvcccves 10

I 5 455. 6.04.53 cans ecccets cicces ss vet 10

FEE bi bcc chicctcccecesesstccccives 10

I Cecccccs ccc ce sec kecccsscseceecvees 10

nn cl cb dectieesccbecbewasess 10

es I MI MED Sc iccebeccccovceccescss 10

DE. Code Ann. Tit. 11, §§4214, 4215 ............... eee. 10

MI C5 Bic csidaccodcesevevtsesed vane 10

SN NI IEE 5's vino 'o cc'eeb'c- ces saacnnicesccowd 10

IIE a, vin'oc ov cle Seleeeesvcsseccavetebede 10

ac ies's'cllviaacees octcedtuasteaeeee 10

I EM 4s dia sv accwesesoessscisatessetues 10

sc adeeiie aaabebabeseng eee 10

Pe BG A IND B45 v cece eines scccccveceeness 10

po SS eee ee ee 10

ME. Rev. Stat. Ann. Tit. 15, §1742 ............eeeeeeee 10

Mich. Comp. Laws Ann. 769.10 ...........cceeeeeeeees 10

Minn. Stat. Ann. 609.155, 609.16 ............. cece ences 10

Vernon’s Ann. Mo. Stat. 556.280 .........ccceccccevees 10

Pe, Se ee I IED Svc ncicc rc ccsyecdcnssces’s 10

, CE Fe I ha ih ce ica ceesacers chap eonce 10

N.J. Stat. Ann. 2a:85-12, 2a: 85-13 ....... ccc cccccvecs 10

ee CE, Es choad bh atutsesevevcccva sews 10

McKennies N.Y. Pen. Code Ann. 70.10 .............4.. 10

Eo od vicsccesdcredbecvseube 10

Cate TE, Fa, ae FO BED 0 cence dc cccsccletcccéess 10

Okla. Stat. Ann. Chapter 21, §51 ............:eeeeeeeee 10

es Ne cn acca cusatenpuduocadens 10

Ce EE Pc diccccicccecesd ceasivvncsneds 10

S.D. Comp. Laws 22-7-1 to 22-7-5 20... cece eee ee eens 10

i CE CPE oc cae bansneckninneasetedwesuns 15

vi

Tenn. Code Ann. 33-709, (As amended) §(e), Acts

1977, Chapter 396, §2, May 28, 1977 ............... 17

Ee TIE bc binics coc po GR Ric Cds chin Kuen ue 10

Ses I UN MPI so: 06-0 0 0.60% <icln o omais oleeie A-32

co ee ee ee A-33

es Se Bs TI es 0 0: tbe 0 ba vs bediew'ee cls oh A-33

Vernon’s Tex. Pen. Code Ann. 12.42 .............cceee: 10

pe a ey ee er ere 10

Rev. Code of WA. Ann. 9.902.000 ..........cccscccccccves 10

a a 66's s 64 K\e'bbcd wie dob Vs bbe 10

I BR, I 6 6 b.0o:0. 0:5 c0sccecersyererTsvecKs 10

inns hss oc sb sececs coddchcwbeecevsan 10

nn, a wc be pv boon ve VERN Cede whe os 10

RGWG BB. AMM. TH. SB, S1S1 .. ws cesiccsccoseesovnvs 10

TEXT CITED

Corpus Juris Secundum, Criminal Law, §1337 p. 923 .... 16

Sleffel, Linda, The Law and the Dangerous Criminal

(Ey UNE UND cS scons cuewiue’ vace de sVack sues 11

Supreme Court Of The United States

NOVEMBER TERM, 1978

No.

JOSEPH LAVONNIE GLASSCOCK .........-eeeeeees Petitioner

vs.

Se GP TD Fk Ga dks od cv bsicecseees ben Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF TENNESSEE

J. B. Cobb, Janet Leach Richards, and James L. Elliott,

retained counsel for petitioner, Joseph Lavonnie Glasscock

pray that a Writ of Certiorari issue to review the Judgment

by the Tennessee Supreme Court entered in the above

cause of August 28, 1978.

OPINIONS BELOW

The Court of Criminal Appeals of Tennessee at Jackson,

wrote an Opinion in this cause, which was styled Joseph

Lavonnie Glasscock v. State of Tennessee, No. 8 and 32

Shelby Criminal, which was filed on March 23, 1978, and it

appeared at 570 S.W.2d 354. Petitioner’s application for a

Writ of Certiorari before the Tennessee Supreme Court was

denied on August 28, 1978, and no Opinion was written by

the Court, and a copy of the Order evidencing said denial

is appended hereto.

2

JURISDICTION

The Judgment of the Supreme Court of Tennessee was

made and entered on August 28, 1978. The Jurisdiction of

this Court is envoked under Title 28 U.S.C. §1257(3), pro-

viding review by the Supreme Court of the United States

of America by Writ of Certiorari where a State Court has

decided a Federal question of substance theretofore de-

termined by this Court, or has decided in a way probably

not in accord with applicable decisions of this Court; or

where any title, right, privilege, or immunity is specially

set up or claimed under the Constitution of the United

States.

QUESTIONS PRESENTED

1. Does the mandatory life sentence without parole

imposed on Petitioner upon conviction of being an habitual

criminal violate Petitioner’s right not to have cruel and

unusual punishment inflicted upon him?

2. Were Petitioner’s constitutional rights to due pro-

cess and/or equal protection under the law, and his right

not to be placed twice in jeopardy for the same offense,

violated when he was tried twice for being an habitual

offender, and where identical evidence was used to enhance

at both trials?

3. Were Petitioner’s constitutional rights to due pro-

cess and/or equal protection violated when trial court re-

fused to give requested Jury Instructions which correctly

stated the law under a Tennessee State Statute and an

Opinion of the Supreme Court of the State of Tennessee?

4. Were Petitioner’s constitutional rights to due pro-

cess and/or equal protection under the law violated when

the trial court denies without a hearing Petitioner’s Pre-

liminary Motion, which denial amounted to an abuse of the

trial court’s discretion?

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment V.

Criminal actions — provisions concerning — due pro-

cess of law — double jeopardy — and just compensation

clauses. —- No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment or an

indictment from a Grand Jury, except in cases arising in

the land or naval forces, or in the malitia, where in actual

service in time of war or public danger; nor shall any per-

son be subject for the same offense to be twice put in

jeopardy of life or limb, nor shall be compelled in any

criminal case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use,

without just compensation.

Amendment VIII.

Criminal actions — cruel and unusual punishment. —

That excessive bail ought not to be required, nor excessive

fines imposed nor cruel and unusual punishment inflicted.

Amendment XIV.

Section 1. Citizenship — due process of law -— equal

protection. — All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abuse

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of right,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction equal protection of the

law.

4

STATEMENT OF THE CASE

Joseph Lavonnie Glasscock, Petitioner in this case,

seeks review of the Tennessee Supreme Court’s affirmation

of his conviction for burglary third degree (39 TCA §904)

and subsequent six (6) to ten (10) year penitentiary sen-

tence (39 TCA §904). He also seeks review of the Tennessee

Supreme Court’s affirmation of his conviction for grand

larceny (39 TCA §4203) and subsequent six (6) to ten (10)

year penitentiary sentence (39 TCA $4204), and also his

conviction at this second trial of being an habitual criminal

(40 TCA §2801). The grand larceny and habitual criminal

convictions occurred in a proceeding subsequent to the one

in which he was convicted of burglary third degree, and

acquitted of being an habitual criminal. Petitioner was in-

dicted in Shelby County, Tennessee for burglary third

degree and habitual criminal. (TR. 1, p. 505). Your Peti-

tioner went to trial on these charges, entered a plea of not

_ guilty by virtue of insanity and was found guilty under the

burglary count but not guilty of being an habitual criminal

(BE2, p. 276). A motion for new trial was made and denied.

(TR. 2, p. 46).

Petitioner was subsequently tried and convicted on a

_reindictment of the charges contained in two (2) prior

indictments, to wit: grand larceny and habitual criminal.

(TR. 1, pp. 52-54). The defendant petitioner therein plead-

ed not guilty by virtue of insanity at the second trial, and

the jury returned a verdict of guilty on both counts. (TR. 1,

p. 63). Petitioner’s motion for a new trial was timely made

and overruled. (TR. 1, p. 70). Both of these cases were

consolidated on Appeal and were filed with the Court of

Criminal Appeals on March 23, 1978, which Opinion can be

fuund at 570 S.W.2d 354.

The Supreme Court of the State of Tennessee denied

Certiorari in an unpublished Opinion on August 28, 1978.

(See Appendix I).

Prior to the first trial Petitioner filed a Motion to Quash

the indictment and to suppress the evidence. This Motion

was again renewed prior to the second trial. (TR. 1, p. 36;

BE2, p. 256; BE1, pp.1-2). These Motions were denied. In

support of the Motion, defendant/petitioner submitted his

first set of interrogatories to the HONORABLE HUGH

STANTON, Attorney General for Shelby County, Tennes-

see. (TR. 1, pp. 31-34). (See also Appendix III). In these

interrogatories were thirty-two (32) questions, the most

important of which were posed in order to determine the

manner in which the Attorney General and the Major

Violators Unit selected offenders to be tried as habitual

criminals.

The Motion and the proof in support of this Motion were

denied because not made within twenty (20) days after

arraignment. (Rule 9, Rules of Practice and Procedure in

the Criminal Courts of Shelby County, Tennessee. See Ap-

pendix IV). This Motion was denied even though the defen-

dant/Petitioner’s counsel was not employed until almost

ninety (90) days after the arraignment. This Motion was

again made and denied at the second trial (BEI, p. 2),

which denial was assigned as error in Petitioner’s Motion

for new trial filed at the end of the second trial, upon

Petitioner’s conviction of being an habitual criminal. (TR.

1, p. 70; See also Appendix V). Counsel for Petitioner in

both trials (BE2, p. 257; BE1, p. 2), filed a Pre-Trial Motion

which included interrogatories to be submitted to the jurors

in the event that they returned a conviction on the habitual

criminal count in either trial. (TM pp. 20-26). The Motion

to submit interrogatories to the jurors after they returned

a conviction on the habitual criminal count in the second

trial was denied. The interrogatories to be submitted to the

jurors reads as follows:

“Would you sentence the defendant, Joseph Glasscock,

to life imprisonment without parole as prescribed under

the habitual criminal statute if you were given the

opportunity to set the sentence yourself for a term of

life or any lessor number of years?”

Petitioner was tried and acquitted of being a habitual

criminal in the first trial, and at the second trial was tried

and convicted of being an habitual criminal. The former

convictions offered as proof in the first trial are the same

convictions which were offered as proof in the second trial.

(BE2, pp. 265-270). A Mr. Stanley Hathaway testified in

both cases as to the prior convictions used to enhance Mr.

Glasscock’s punishment, and on cross-examination at the

second trial testified that he had given the exact same

testimony as he gave in the first trial. (BE1, pp. 498-499;

See Appendix VI).

At the second trial, Petitioner was convicted of grand

larceny, and in the second count of the indictment of being

an habitual criminal, and was given six (6) to ten (10)

years for the grand larceny conviction and life imprison-

ment without parole for the habitual criminal conviction.

In Petitioner’s appeal to the Court of Criminal Appeals

of Tennessee, his assignments of error included the follow-

ing (edited):

a. It was error for the trial judge to refuse to allow

the defendant to show proof as to the Unconstitutionality

of the habitual criminal act as applied in Shelby County,

Tennessee;

7

b. It was error for the trial judge to deny the accused

the right to voir dire the jury as to the applicability of the

habitual criminal act in the incident case;

c. Double jeopardy;

d. It was error for the trial judge to refuse the defen-

dant’s request for special jury instructions in both trials;

e. Improper charge to the jury in both trials;

f. It was error for the trial judge not to admonish the

prosecutor and caution the jury as to the remarks made by

the prosecutor to the jury in the first trial, regarding the

instructions, which were highly prejudicial against the

defendant.

All of the above mentioned assignments of error were

overruled by the Court of Criminal Appeals of Tennessee

in an Opinion dated March 23, 1978.

Petitioner assigned as error in his petition to Tennessee

Supreme Court for Writ of Certiorari to the Court of

Criminal Appeals of Tennessee each of the above assigned

errors. Petitioner’s request for Writ of Certiorari to the

Court of Criminal Appeals of Tennessee was denied, with-

out opinion, by the Supeme Court of Tennessee on August

28, 1978.

REASONS FOR ALLOWANCE OF WRIT

This HONORABLE COURT should review this cause

and grant the Petition for Writ of Certiorari to the Supreme

Court of Tennessee, because all of the issues raised in the

Petition present important constitutional issues decided by

the Supreme Court of Tennessee in a way not in accord

with applicable decisions of this HONORABLE COURT

upholding the constitutional rights of due process of law,

equal protection under *'2 law, and the right not to be

placed in jeopardy twice for the same offense, and the right

against having cruel and unusual punishment inflicted.

FIRST ISSUE

Does the mandatory life sentence without parole im-

posed on the Petitioner upon conviction of being an habitual

criminal violate Petitioner’s right not to have cruel and

unusual punishment inflicted upon him?

In Weems v. United States, 217 U.S. 349, 30 Supreme

Court 544, 54 Lawyer’s edition 793 (1909), the Court held

that a fifteen (15) year sentence of hard labor in chains for

a false entry on an official report violated the Eighth (8th)

Amendment. The Court called the sentence “amazing” in

light of American Commonwealth “precept of justice that

punishment for crimes should be graduated and propor-

tioned to the offense” 217 U.S. at 367.

This proportionality concept has been followed in a

number of cases involving capital punishment. Furmon v.

Georgia, 408 U.S. 238, 92 Supreme Court 2726, 33 Lawyer’s

Edition 2d 346 (1972); Gardner v. Florida, 430 U.S. 349, 51

Lawyer’s Edition 2d 393,97 Supreme Court 1197; Greg v.

Georgia, 428 U.S. 153,49 Lawyer’s Edition 2d 859, 96 Su-

preme Court 2909 (1976); Coker v. Georgia, 433 U.S. 584, 97

Supreme Court 2861, 53 Lawyer’s Edition 2d 982 (1977),

the standard of proportionality has also been applied with

regard to Habitual Criminal Acts. Hart v. Coiner, 483 Fed.

2d 136 (4th Circuit 1973), Cert. denied 415 U.S. 983, 94 Su-

preme Court 1577, 39 Lawyer’s Edition 2d 881 (1974); Rum-

mel v. Estelle, 568 Fed. 2d 1193 (1978); Browning v. Perini,

518 F. 2d 1288 (6th Circuit 1975), vacated on other grounds,

423 U.S. 993, 96 Supreme Court 419, 46 Lawyer’s Edition 2d

367 (1975). In fact, there are some authorities for the

proposition that length of the sentence alone can be viola-

tive of the Eighth Amendment stand against cruel and

unusual punishment. Hart v. Coiner, 483 Fed. 2d 136 (4th

Circuit 1973); Carmona v. Ward, 576 Fed. 2d 405 (1978).

In Carmona the Court stated:

“We accept the proposition that in some extraordi-

nary instances severe sentence imposed for a minor

offense could, solely because of its length, be a cruel

and unusual punishment. 576 Fed. 2d 409.

In Coker v. Georgia, 97 Supreme Court at 2865, the

Court stated:

“Punishment is excessive if it makes no measurable

contribution to acceptable goals of punishment and

hence is nothing more than a purposeless and needless

imposition of pain and suffering.”

In order to define what is cruel and unusual, the courts

have arrived at numerous objective criterion, such as the

nature of the crime, Rummel at 1197, comparisons of pun-

ishments in same or different jurisdiction, Coker at 592-595;

Greg at 179; Weems at 367-377; also Trop v. Dulles, 356 U.S.

92, at 182-183, comparing denationalization penalties im-

posed by other nations; and the legislative purpose and

objective, Hart at 141; Greg at 181-182; Weems at 365. Of

course, it is necessary that courts avoid substituting their

discretion for that of the State Legislature’s, but with the

sentence such as the Tennessee Statute provides, manda-

tory life sentence without parole, the law is totally indepen-

dent of degrees, and on its face appears rather arbitrary.

In Hart, at 141, the Court stated:

10

“Could .a significantly less severe punishment

achieve the purposes of the challenged punishment?”

Tennessee’s statutes with regard to habitual criminals

do not distinguish between violent and non-violent crimes.

(See Appendix VI, 40 TCA 2801, persons defined as habitual

criminals). Likewise, in a comparison with other states,

even though forty (40) jurisdictions in this country have

some version of a long sentence, or even a life sentence for

being an habitual criminal, only Tennessee sentences its

habitual criminals to a life sentence with no suspension,

parole or reduction for good behavior. Code Ala. Tit. 15,

§331; Alas. Stat. 4.55.040; Ark. Stat. Ann. 43-2328; Ariz. Rev.

Stat. 13-1649; Cal. Pen. Code 644; Col. Rev. Stat. 16-13-101;

Conn. Gen, Stat. Ann. 53a-40; Del. Code Ann. Tit. 11,

§§4214, 4215; Fla. Stat. Ann. 775.09; Ga. Code Ann. 27-2511;

Idaho Code 19-2514; Ind. Code 35-8-8-1; Iowa Code Ann.

747.1; Kan. Stat. Ann. 21-4504; Ky. Rev. Stat. Ann. 532.080;

La. Stat. Ann. 15:529.1; Me. Rev. Stat. Ann. Tit. 15, §1742;

Mich. Comp. Laws Ann. 769.10; Minn. Stat. Ann. 609.155,

609.16; Vernon’s Ann. Mo. Stat. 556.280; Rev. Codes of

Montana Ann. 95-1507; Neb. Rev. Stat. 29-221; N.J. Stat.

Ann. 2a: 85-12, 2a: 85-13; New Mexico Stat. Ann. 40a-29-5;

McKennies N.Y. Pen. Code Ann. 70.10; Nev. Rev. Stat.

207.010; Gen. Stat. N.C. 14-7.1 — 14-7.6; Okla. Stat. Ann.

Chapter 21, §51; Gen. Laws of R.I. 12-19-21; Code Laws

S.C, 17-553.1; S.D. Comp. Laws 22-7-1 to 22-7-5; Tenn. Code

Ann. 40-2801 FSeq.; Vernon’s Texas Pen. Code Ann. 12.42;

Vermont Stat. Ann. Tit. 13, §11; Rev. Code of Wa. Ann. 9.-

92.090; W.V. Code 61-11-18; Wis. Stat. Ann. 939.62; Wy.

Stat. 6-9; 22 DC Code 104, 104a; Laws P.R. Ann. Tit. 33,

§131. Only twelve (12) other states provide for required

life imprisonment penalties on a founding of habitual

criminality. Those are Arkansas, Arizona, Colorado, Dela-

11

ware, Florida, Indiana, New Mexico, Texas, Washington,

and Wyoming. Sleffel, Linda, The Law and the Dangerous

Criminal (1st edition 1977, pages 4-15).

It is readily apparent that Tennessee Statutes regard-

ing the habitual criminal do not conform to the criterian

set forth by this HONORABLE COURT with regard to

cruel and unusual punishment. The Eighth Amendment

ban against cruel and unusual punishment applies to the

States through the Fourteenth Amendment. Robinson v.

California, 370 U.S. 660 (1962). It is, therefore respectfully

submitted that this HONORABLE COURT should grant this

Petition for Writ of Certiorari.

SECOND ISSUE

Were Petitioner’s Constitutional Right to due process

and equal protection under the law, and his right not to be

placed twice in jeopardy for the same offense, violated

when he was tried twice for being an habitual criminal, and

where identical evidence was used to enhance at both trials?

In People v. Reese, 258 N.Y. 89, 179 N.E. 305 at 308,

Justice Cardozo, when speaking of the New York Habitual

Criminal Statute stated:

“Unquestionably this inquiry is a criminal case,

and not a civil one, unquestionably it was so conceived

by the law makers, for by the terms of the Statute it is

made the duty of the District Attorney to file the infor-

mation accusing the defendant of the previous convic-

tions. This section from beginning to end speeks the

language of the Criminal Law. Not only is the proceed-

ing punitive in form, it is punitive also in effect. The

answer made to the accusations by the verdict of the

jury may mean that the defendant may be a free man

12

after a brief time of confinement or may mean, on the

other hand, that he be a prisoner for life.”

The fact that an habitual criminal proceeding is a punitive

and criminal proceeding, notwithstanding language to the

effect that it is a status, requires the protection of constitu-

tional safeguards. Thus, in an habitual criminal proceeding,

the defendant is entitled to counsel, and to the due process

requirements of notice and opportunity to be heard. Chew-

ning v. Cunningham, 368 U.S. 443 (1961); Littles v. Cochran,

365 U.S. 525; Gideon v. Wainright, 372 U.S. 335; Greer v.

Beto, 384 U.S. 269; Johnson v. State of Kansas, 284 Fed. 2d

344 (1960). Likewise the defendant in an habitual criminal

proceeding is entitled to the protection of the Fifth Amend-

ment right against self incrimination. Jones v. Boles, 257

Fed. Supp. 293. The right to a jury trial is also guaranteed

in an habitual criminal proceeding. Chandler v. Fretag, 348

US. 3, 99 Lawyer’s Edition 4 (1954).

The Constitutional Fifth Amendment ban against

double jeopardy applies to the States through the Four-

teenth Amendment. Benton v. Maryland, 89 Supreme Court

2056, 395 U.S. 784.

One is placed in double jeopardy when a jury is formed

to try the issue upon the indictment. Green v. State, 247

S.W. 84, 147 Tenn. 299, 28 ALR 842; Better v. State, 205 S.W.

2d 1, 185 Tenn. 218; Holt v. State, 24 S.W.2d p. 66, 160 Tenn.

366. One is also placed in double jeopardy when a prior

factual determination is relitigated. State v. Hopson, 112

Ariz. 497, 543 Pac.2d 1126 (1975). The Fifth Amendment

ban against double jeopardy protects against the second

prosecution for the same offense after acquittal. U.S. v.

Ball, 163 U.S. 662; Green v. U. S., 355 U.S. 184, it protects

against second prosecution after a conviction. In re: Nielsen,

13

131 U.S. 176, and it protects against multiple punishment

for the same offense. Ex Parte Lange, 18 Wal. 163; U.S. v.

Berry, 282 U.S. 304.

It is clear that the same factual determination which

resulted in the defendant being acquitted of being an

habitual criminal in the first trial was relitigated in the

second trial, and upon relitigation the defendant was found

guilty of being an habitual criminal. Petitioner would sub-

mit to this HONORABLE COURT a line of Texas cases

which indicate that where a prior conviction is once used

in a trial to enhance upon an habitual criminal charge, it

may not be used to enhance punishment in any subsequent

habitual criminal charge. Kenny v. State, 79 S.W. 570;

Miller v. State, 140 S.W.2d 859; Cothren v. State, 140 S.W.2d

860; Gooden v. State, 145 S.W.2d 179; Carvajal v. State, 529

S.W.2d 512; Shaw v. State, 530 S.W.2d 838; Ex Parte White,

538 S.W.2d 417.

In Tennessee, the rule of law is clearly established that

double jeopardy attaches when a defendant is convicted or

acquitted, and then in a second proceeding for the same

offense the prosecution offers the same evidence. This is

termed “Same Evidence Rule.” Duchac v. State, 505 S.W.2d

237 (Tenn. 12/17/73). Thus the State of Tennessee ex-

pounds the rule of law requiring protection against double

jeopardy where the same evidence is used in two (2) pro-

ceedings for the same offense, thereby giving Petitioner the

benefit of the law, hence there should be no constitutionally

sufficient justification for denying Petitioner such an

essential right, because he was tried twice for the same

offense using the same evidence. Petitioner was denied

equal protection of the law because he was excluded from

a class granted protection under a Tennessee Rule of Law,

14

and instead forced into an arbitrary class and denied equal

protection under Tennessee law.

This HONORABLE COURT has defined the equal pro-

tection clause of the Constitution to mean that the rights of

all persons must rest upon the same rule under similar

circumstances. Louisville Gas and Electric Company v.

Coleman, (1928), 277 U.S. 32, 48 Supreme Court 423; Frost

v. Corporation Commission of State of Oklahoma, (1929),

278 U.S. 515, 49 Supreme Court 235. The individual States

cannot escape their duty to conform their court procedures

to this definition and protect all citizens in the enjoyment of

the equality of right. U. S. v. Cruikshank, (1875), 92 U.S.

542; Hill v. Texas, (1942), 316 U.S. 400, 62 Supreme Court

1159. The State of Tennessee cannot shirk its duty to apply

its laws equally to all persons within the class designated to

be protected by the law. Petitioner contends that he is

within the laws protected by Tennessee’s Same Evidence

Rule.

Petitioner prays that this HONORABLE COURT

enforce his right against double jeopardy, under due process

of law and equal protection of the law, and not allow him

to be arbitrarily separated from a class normally protected

under Tennessee law.

THIRD ISSUE

Were Petitioner’s rights to due process and/or equal

protection violated when trial court refused to give request-

ed jury instructions which correctly stated the law under

Tennessee Statute and an Opinion of the Supreme Court of

the State of Tennessee?

In both of these trials Petitioner submitted proposed

instructions to the jury based upon his plea of not guilty

15

by virtue of insanity. The portion of the proposed instruc-

tions relevant to these trials is as follows:

“I further charge you that should you find the

defendant not guilty by reason of insanity, the law pro-

vides that under these circumstances the District

Attorney may seek hospitalization of the defendant if

he determines hospitalization could be justified.”

In neither of the trial court’s charges to the jury was

this instruction included. Petitioner’s proposed instruction

was based upon a Tennessee Statute, 33 TCA 709, which

states:

“When a person charged with a criminal offense is

acquitted of the charge and a verdict of not guilty by

reason of insanity, the District Attorney General may

seek hospitalization of the defendant under 33-603 or

33-604 as appropriate, if he determines hospitalization

would be justified.”

This is a portion of the proposed instruction submitted

by the defendant’s counsel which the trial judge omitted

in each of his charges to the jury. Petitioner submits that

this is the portion of the proposed instructions which should

be mandatory in any charge to the jury when the defendant

is pleading not guilty by virtue of criminal insanity. If not,

then any reasonable juror could and would infer that if he

acquitted the defendant by virtue of insanity, the defendant

would be free to walk the streets. As Justice Henry stated

in Graham v. State of Tennessee, a decision handed down

prior to these trials:

“We feel that it is appropriate that we call atten-

tion to a deficiency in Tennessee law relating to the

disposition of a criminal defendant found not guilty by

16

reason of criminal insanity. 33-709 TCA provides

that under these circumstances the District At-

torney General may seek hospitalization if he deter-

mines hospitalization is justified. We do not think that

the disposition of such a defendant should be left to the

discretion of the District Attorney General.”

“The model penal code standards will be applied

(1) In all criminal trials or retrials beginning on or

after the date of the release of this opinion and; (2) In

all cases wherein appropriate special requests were

submitted during the trial of the action or the issue

otherwise was fairly raised in the trial court and sup-

ported by competent and credible testimony, and the

conviction has not become final.”

Larry Gene Graham v. State of Tennessee, (Supreme

Court of Tennessee) , 547 S.W.2d 531 (Jan. 1977).

As stated in CJS Criminal Law, 1337, p. 923; where

proper request is made for instruction which correctly pro-

pounds the law and is warranted by the evidence of plead-

ings in the case, it is the duty of the court to give it and

refusal thereof will constitute error. In further stating the

duty of the court as to jury instructions your defendant

would offer the language of Lighter v. State, 247 S.W. 1065,

an Arkansas Supreme Court decisicn. The Court states as

follows:

“While this Court has uniformly held that it is not

necessary to repeat instructions where the point in-

volved is already embraced in the instructions given, it

is equally settled that it is the duty of the Court to give

instructions presenting the defendant’s side of the case

if there is evidence to support it, and that the defendant

request the proper instructions.”

17

Petitioner submits to this HONORABLE COURT the

amended Statute 33 TCA 709 which although enacted too

late to have any effect upon Mr. Glasscock’s appeal, none-

theless is the proper and preferred law, and which itself

was enacted largely due to the Supreme Court of Tennes-

see’s decision in Graham, which was handed down prior to

Mr. Glasscock’s trial:

33 TCA 709(e) “The Criminal Court, in a trial

before a jury and with the issue of insanity at the time

of the committing of the offense is raised, shall instruct

the jury before it begins deliberation that a verdict of

not guilty by reason of insanity at the time of the com-

mission of the offense shall result in automatic deten-

tion of the person so acquitted in a mental hospital or

treatment center.” TCA 33-709, (as amended) Section

e, Acts, 1977, chapter 396, Section 2, May 28, 1977.

In conjunction, a prosecuting attorney in the first trial

made a highly improper and prejudicial remark to the jury

in his final argument. The exact words of the Attorney

General as taken from the transcript of the trial are as

follows:

“Mr. Cobb is telling you he doesn’t want you to set

him free, he wants you to find him not guilty and that’s

the same thing.”

It is submitted by the Petitioner this comment could

and probably would create in the mind of the juror and

inferrence that the defendant would, if found not guilty on

the grounds of insanity, walk the streets a free man.

Further, the courts of Tennessee did not find error where

the trial judge failed to admonish the Attorney General,

caution the jury and strike from the record this highly

prejudicial remark.

18

Improper remarks, calculated to create, arouse, and

play on the sympathy, prejudice, or passion of the jury to

the detriment of the accused have been condemned by

numerous cases. AZ Din v. United States, (9th Circuit,

1956), 232 Fed. 2d 283, Cert. denied 77 Supreme Court 39,

352 U.S. 827; Pietch v. United States, (10th Circuit, 1940),

110 Fed. 2d 817, Cert. denied 60 Supreme Court 1100, 310

U.S. 648; Remus v. United States, (6th Circuit, 1924), 291

Fed. 501, Cert. denied, 44 Supreme Court 180, 263 U.S. 717.

Petitioner submits that as a defendant pleading not

guilty by virtue of insanity, he is protected by 33 TCA 709,

and by the Rule of Law proposed in Graham, and that he

belongs to the class which should have been protected by

this Statute and this Rule of Law. By not allowing the de-

fendant protection of this Statute and this Rule of Law, the

Court has placed the Petitioner in an arbitrary class said

not to be within the scope of this Statute and this Rule of

Law, thus violating his rights under the equal protection

clause of the Fourteenth Amendment.

It is well established in the Federal Court, that a

properly requested instruction which is not covered in

other instructions should be given, refusal to give the in-

struction will constitute error. Coleman v. U. S.,CCA Texas,

167 Fed. 2d 837; U. S. v. Frischling, CCA New Jersey, 160

Fed. 2d 370; Gold v. U.S., CCA New Jersey, 102 Fed. 2d

350; Hersh v. U. S., CCA California, 68 Fed. 2d 799; Stutz v.

U.S., CCA Fla., 47 Fed. 2d 1029; Reger v. U. S., CCA Colo-

rado, 37 Fed. 2d 74.

Petitioner prays that this HONORABLE COURT

enforce his rights under due process of law and equal pro-

tection of the law and not allow him to be arbitrarily

19

separated from a class normally protected under the laws

of Tennessee and the United States.

FOURTH ISSUE

Were Petitioner’s constitutional rights to due process

and/or equal protection under the law violated when the

trial court denied, without a hearing, Petitioner’s prelimi-

nary Motion, which denial amounted to an abuse of judge’s

discretion?

Prior to both of these trials, Petitioner filed a Motion

to quash the indictment and to suppress the evidence. (See

Appendix II). The Motion was denied in each of the trials.

In support of the Motion, the defendant submitted his first

set of interrogatories to the HONORABLE HUGH STAN-

TON, Attorney General for Shelby County, Tennessee.

These interrogatories were thirty-two (32) questions, the

most important of which were posed in order to determine

the manner in which the Attorney General and Major

Violaters Unit selected offenders to be tried as habitual

criminals. (See Appendix IIT).

Likewise, offered by the defendant as proof was Exhibit

“A”, being the Career Criminal Program Grant Operation,

being identified and made part of the record on the first

(1st) of August, 1977. This proof is offered in order to show

that the manner in which the Attorney General’s office,

through the Major Violaters Unit, selects offenders to be

prosecuted as habitual criminals, does not meet Constitu-

tional Standards. By vesting the ultimate decision to place

the defendant in the Career Criminal Program Operation

with the director of the Major Violaters Unit, the Attorney

General’s office is maintaining a practice of prosecuting

offenders as habitual criminals, which process of selection

4

‘

20

is in violation of due process clause for the Fifth and Four-

teenth Amendments of the Constitution of the United

States, as well as being in violation of the Eighth Amend-

ment’s ban against cruel and unusual punishment.

The proof in support of this Motion and the Motion was

denied because it was not timely made within twenty (20)

days of the arraignment (Section 9, Rules of Practice and

Procedure in the Criminal Courts of Shelby County, Ten-

nessee), even though the defendant’s counsel was not em-

ployed until ninety (90) days after the arraignment. Section

9 of the Rules of Practice and Procedure in the Criminal

Courts of Shelby County, Tennessee, reads as follows:

“Section 9 — All preliminary motions, pleas, in-

cluding pleas in abatement, and cemurrers other than

guilty or not guilty pleas, shall be filed in writing not

more than twenty (20) days after the arraignment

unless an extension of time be granted by the court for

good cause shown. Preliminary Motions, pleas, and

demurrers not filed in conformity with this rule shall

be summarily dismissed by the court. The attorney

filing this motion or plea shall certify in writing that

a copy has been forwarded to the adversary counsel and

the court. All parties will be notified by the clerk of a

hearing date which shall be set by the court as soon as

practical.”

It is the position of the Petitioner that the Twenty (20)

day rule is not mandatory but rather discretionary. In light

of this and in light of the fact that the motions and the proof

offered in support of the motions address themselves to

important Constitutional issues, the defendant would re-

spectfully submit that it is error for the trial judge to

refuse to hear proof on the motions. Rule 6 of the Rules of

21

Practice and Procedure in the Criminal Court of Shelby

County, Tennessee, entitled Waiver of Rules, reads as fol-

lows:

“Section 1 — Whenever in a particular instance,

in the opinion of the trial judge, for good cause shown,

and justice requiring, these rules may be waived.”

Failure to comply with a local procedural rule which

is on its face, reasonable, fair and essential to the orderly

process of litigation, may be an adequate ground for a

judgment against the defendant. But a failure to comply

with local rules does not preclude Supreme Court Review

where such rules have denied the litigant a fair opportunity

to raise Federal Questions in the State proceedings. Staub

v. City of Baxley, 355 U.S. 313 (1913); NAACP v. Alabama,

357 U.S. 449 (1958).

In light of the importance of the Constitutional Issues

at stake, and in light of provisions of the local Rules which

enable the trial judge to waive the Rules and/or grant

extensions, it is submitted by the Petitioner that denial of

his Motion constituted a denial of due process under the

Fifth and Fourteenth Amendments of the Constitution of

the United States. It is therefore, respectfully submitted

that this HONORABLE COURT should grant this Petition

for Writ of Certiorari.

22.

CONCLUSION

In. deference to justice, it is respectfully submitted that

this Petition for Writ of Certiorari should be granted.

Respectfully submitted,

JAMES L. ELLIOTT

Attorney at Law

99 N. Third St.

Memphis, Tennessee 38103

ON BRIEF

J. B. Cops

Attorney at Law

99 N. Third St.

Memphis, Tennessee 38103

(901) 523-0301

JANET LEACH RICHARDS

Attorney at Law

99 N. Third St.

Memphis, Tennessee 38103

(901) 523-0301

Attorneys for Petitioner

CERTIFICATE OF SERVICE

I, James L. Elliott, one of Petitioner’s Attorneys, hereby

certify that a copy of the foregoing petition for Writ of

Certiorari has been served via U. S. Mail, postage pre-paid,

on the Attorney General of the State of Tennessee at his

office located at 450 James Robertson Parkway, Nashville,

Tennessee 37219, on this the 21st day of November, 1978.

/s/ James L. Elliott,

Attorney at Law

A-2

APPENDIX “1”

COPY OF THE OPINION

IN THE SUPREME COURT OF JACKSON

IN THE SUPREME COURT OF TENNESSEE

AT

JACKSON

JOSEPH LAVONNIE GLASSCOCK ..............0005 Appellant

vs.

SI I osc c bc cccccvcccvescccccecs Appellee

COURT OF CRIMINAL APPEALS OF TENNESSEE

MARCH 23, 1978

Certiorari Denied by Supreme Court Aug. 28, 1978.

After two trials before separate juries, the Criminal

Court, Shelby County, John P. Colton, Sr., J., convicted

defendant of third-degree burglary and grand larceny and,

upon a finding by the second jury that defendant was an

habitual criminal, his sentence for larceny was enhanced to

a life sentence. Defendant appealed from both convictions,

and the Court of Criminal Appeals, Daughtrey, J., held that:

(1) the trial court did not err in refusing to order the taking

of pretrial interrogatories aimed at establishing selective

enforcement of the habitual criminal statute; (2) the trial

court did not err in refusing to allow voir dire of prospec-

tive jurors concerning their predilections toward the

imposition of the mandatory life sentence required by the

habitual criminal statute; (3) the fact that the first jury

found that defendant was not an habitual criminal did not

operate to “acquit” defendant of the underlying convictions

recited in the habitual criminal charge and, thus, did not

A-3

bar the enumeration of the same convictions in a subse-

quent recidivist count, and (4) the trial court did not err in

refusing to charge the jury as to the effect of a finding of

not guilty by reason of insanity.

Affirmed.

1. CONSTITUTIONAL LAW Key 250.3(1), 270(4)

CRIMINAL LAW Key 1201

The habitual criminal statute does not violate the due

process or equal protection provisions of the State and

Federal Constitutions. T.C.A. §40-2806.

2. CRIMINAL LAW Key 627.6(1)

JURY Key 131(8)

Trial court did not err in refusing to order the taking

of pretrial interrogatories aimed at establishing selective

enforcement of the habitual criminsl statute; neither did

trial court err in refusing to allow voir dire of prospective

jurors concerning their predilections toward imposition of

the mandatory life sentence required by the habitual crimi-

nal statute. T.C.A. §40-2806.

3. CRIMINAL LAW Key 186, 1202(5)

Action of jury at first trial on third degree burglary

charge in finding that defendant was not an habitual crimi-

nal did not operate to “acquit” defendant of the underlying

convictions recited and jury’s action did not bar State, at a

subsequent trial on an unrelated grand larceny charge,

from enumerating the same underlying convictions in a new

recidivist count. T.C.A. §40-2806.

4. CRIMINAL LAW Key 790

Trial court did not err in refusing to charge jury, as

A-4

requested by defendant, that when a person charged with a

criminal offense is acquitted by a verdict of not guilty by

reason of insanity, the district attorney general may seek

hospitalization of the defendant if he determines hospital-

ization to be justified.

5. MENTAL HEALTH Key 439

Amendment which requires detention for diagnosis and

evaluation of any defendant found not guilty by reason of

insanity was not applicable to trials which occurred prior

to the effective date of the amendment. T.C.A. §33-709.

J. B. Cobb and Janet L. Richards, Memphis, for appel-

lant.

Brooks McLemore, Jr., Atty. Gen., Robert Grunow,

Asst. Atty. Gen., Nashville, Henry P. Williams and Donald

D. Strother, Asst. Dist. Attys. Gen., Memphis, for appellee.

OPINION

DAUGHTREY, Judge.

This appeal represents a consolidation of two cases tried

before separate juries in the Shelby County Criminal Court.

At the first trial the defendant-appellant, Joseph Lavonnie

Glasscock, was convicted of third degree burglary and re-

ceived a sentence of six to ten years. Following a bifurcated

hearing, the same jury found the defendant not to be an

habitual criminal. At the second trial on an unrelated

charge, Glasscock was found guilty of grand larceny. In ad-

dition, he was found by the second jury to be an habitual

criminal, and his six to ten year sentence for larceny was

enhanced to a life sentence under T.C.A. §40-2806.

(

A-5

On appeal from these two convictions, the defendant

attacks (1) the constitutionality of the habitual criminal

statute, (2) the validity of the imposition of a life sentence

for recidivism at the second trial, on the basis of a claimed

double jeopardy violation, and (3) the correctness of the

trial court’s jury instructions. We find no merit to his as-

signments of error, and, accordingly, we affirm both

convictions.

[1, 2] The courts of Tennessee have repeatedly held

that the state’s habitual criminal statute does not violate

the due process or equal protection provisions of the state

and federal constitution; nor does its imposition result in

cruel and unusual punishment. See, e.g., State ex rel. Ves v.

Bomar, 213 Tenn. 487, 376 S.W.2d 446 (1964); Hobby v.

State, 499 S.W.2d 956 (Tenn. Crim. App. 1973). See also

Oyler v. Boles, 468 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446

(1962), holding that selective enforcement of recidivist

statutes is not unconstitutional; cf. Bordenkircher v. Hayes,

434 U.S. 357, 98 S.Ct. 663, 54 L. Ed. 2d 604 (1978). Since the

statute is immune from constitutional attack such as that

launched by this defendant, it follows that the trial court

committed no error in refusing to order the taking of pre-

trial interrogatories aimed at establishing selective enforce-

ment of the habitual criminal statute; nor did the trial court

err in refusing to allow voir dire of prospective jurors

concerning their predilections toward the imposition of the

mandatory life sentence required by T.C.A. §40-2806. The

related assignments of error are therefore overruled.

[3] The defendant next argues that the judgment of

the trial court in the second case finding him to be an

habitual criminal and imposing a life sertence constitutes

double jeopardy because he had been “acquitted” of being

A-6

an habitual criminal at the first trial, under a count which

recited the same prior convictions proved at the second

trial as the basis for the jury’s determination of habitual

criminality. We disagree with this analysis. The action of

the first jury regarding the recidivist count did not operate

to “acquit” the defendant of the underlying convictions

recited in that count, and thus it did not bar the enumer-

ation of those convictions in any subsequent recidivist count.

Pearson v. State, 521 S.W.2d 225 (Tenn. 1975). There was

no double jeopardy violation, and the assignment is there-

fore overruled.

[4] Finally, the defendant complains of the trial

court’s refusal to charge three special requests related to

his insanity defense. Much of the requested material was

fully and coirectly charged by the trial judge with one

exception. The defendant unsuccessfully requested the fol-

lowing jury instruction:

When a person charged with a criminal offense is ac-

quitted of the charge on a verdict of not guilty by

reason of insanity, the district attorney general may

seek hospitalization of the defendant under [T.C.A.]

§33-603 or §33-604 as appropriate, if he determines

hospitalization to be justified.

The defendant insists that this instruction is mandatory as

the result of the Tennessee Supreme Court’s opinion in

Graham v. State, 547 S.W.2d 531 (Tenn. 1977), in which the

court adopted the Model Penal Code’s standard for the de-

termination of insanity, making it applicable to all trials or

re-trials beginning on or after the release of the Graham

decision. It is true that in the course of its opinion, the

Graham court did bemoan “a deficiency in Tennessee law

relating to the disposition of a criminal defendant found not

A-7

guilty by reason of insanity,” pointing out that “ ‘the dis-

trict attorney-general may seek hospitalization’ ” of the de-

fendant. 547 S.W.2d at 544. However, this language was

clearly dicta and must be understood for what it was: a

plea to the legislature to cure the deficiency identified in

the opinion, i.e. the fact that the procedure in question is

purely discretionary with the district attorney. Thus,

nothing in the Graham opinion changes the court’s previous

holding in Edwards v. State, 540 S.W.2d 641, 648-9 (Tenn.

1976), to the effect that it is not error to refuse to charge a

jury as to what the effect of a finding of not guilty by rea-

son of insanity would be, because such a charge “is not

relevant to the issue of . . . guilt or innocence,” and there

are “so many options and alternatives available, depending

upon the mental condition of the accused, it would be highly

conjectural and would involve the jury in speculation as to

what might happen to the accused.” We conclude that

Edwards is controlling on the case before us, and we there-

fore overrule the defendant’s remaining assignments of

error.

[5] Finally, we note that in response to the Supreme

Court’s plea in Graham v. State, supra, the legislature in

1977 amended the provisions of T.C.A. §33-709 to require

detention for diagnosis and evaluation of any defendant

found not guilty by reason of insanity under T.C.A. §40-

2530. Under Subsection (e) of §33-709, as amended, the

jury must now be instructed in each case “in which the issue

of insanity at the time of the commission of the offense is

raised .. . that a verdict of not guilty by reason of in-

sanity . . . shall result in automatic detention of the per-

son so acquitted in a mental hospital or treatment center,”

as provided by §33-709(a). These amendments were not

effective until May 28, 1977, however, and thus are not

A-8

applicable to the trials in the defendant’s two cases, which

occurred on March 3 and March 30, 1977.

The judgment of the trial court is affirmed.

WALKER, J., and ARTHUR C. FAQUIN, Jr., Special

Judge, concur.

IN THE SUPREME COURT OF TENNESSEE

AT

JACKSON

JOSEPH LAVONNIE GLASSCOCK .........00000000: Petitioner

vs.

STATE OF TENNESSEE .......... se ceceececeees Respondent

SHELBY CRIMINAL

MEMORANDUM ON PETITION FOR

WRIT OF CERTIORARI

Upon consideration of the petition for the writ of

certiorari, the briefs of counsel and the entire record, we

are of the opinion that the Court of Criminal Appeals reach-

ed the correct conclusion.

The writ is respectfully denied.

PER CURIAM

A-9

APPENDIX “II”

MOTION TO QUASH INDICTMENT AND TO

SUPPRESS EVIDENCE

IN THE CRIMINAL COURT OF

SHELBY COUNTY, TENNESSEE

St : ‘TENNESSEE,

or “s No. 54455

Division V

JOSEPH GLASSCOCK,

Defendant Set: 1/10/77

MOTION TO QUASH INDICTMENT AND TO

SUPPRESS EVIDENCE

TO THE HONORABLE JOHN COLTON, JUDGE OF

DIVISION V OF THE CRIMINAL COURT OF SHELBY

COUNTY, TENNESSEE:

Comes now your defendant, Joseph Glassceck, by and

through his attorney and would respectfully state and show

unto this Honorable Court as follows:

I.

That the Indictment No. 54455 charging your defendant,

Joseph Glasscock, with Grand Larceny and Habitual

Criminal was obtained by improper procedure based upon

a statute that your defendant charges is unconstitutional

under the 5th, 8th, and 14th Amendments of the Constitu-

tion of the United States and under Article 1, §6 of the

Constitution of the State of Tennessee. In support of this

contention, your defendant would show:

a) That your defendant was originally apprehended

on September 16, 1975 in the parking lot near Sears and

Roebuck Company and told by the officers then present

A-10

that he was being charged with shoplifting and that if

he could produce identification the officers would

write him a summons and release him at that time.

b) Your defendant had no identification on him at

the time and therefore, the officers would not write

him a summons and release him, even though one of

the officers stated to your defendant that he did

recognize him and knew who your defendant was.

c) Your defendant was later transported to the City

Jail and detained in general investigation. He was later

told that he was charged with shoplifting and that he

had a $250.00 bond.

d) Before your defendant could make bond, he was

bound over. on the 17th day of September, 1975 to the

Shelby County Jail and advised that he was being

charged with Grand Larceny and Habitual Criminal.

He was never presented before a committing magis-

trate in the City Court system prior to being bound

over.

e) Your defendant’s bond was set at $5,000.00 when

he was originally bound over to the Criminal Court.

However, when his public defender requested that your

defendant receive a psychological evaluation prior to

standing trial, this Honorable Court arbitrarily and

with no apparent justification, doubled his bond to

$10,000.00.

f) Your defendant further contends that his present-

ment to the Grand Jury on the charge of Habitual

Criminal was an arbitrary decision made by the Attor-

ney General’s Office through its agent, the Major

Violator’s Unit, without regard to your defendant’s

A-ll

past history and the purposes of the Habitual Criminal

Statute. Your defendant contends further that the

purpose of the Habitual Criminal Siatute is to remove

from society those persons that have demonstrated to

the Court on repeated occasions that they are incapable

of rehabilitation and that they are menaces to society.

Your defendant is not a menace to society, is not a

violent criminal, and is capable of rehabilitation, given

proper psychiatric care. Your defendant is not a

habitual criminal, but rather suffers from a drug abuse

problem and needs psychiatric care, not incarcerated

for life.

g) Tennessee Code Annotated, §40-2801 et seq. re-

moves from the province of the judge and jury the

discretion whether or not the defendant should auto-

matically serve a life sentence if indeed he is found to

have been convicted of four (4) previous felonies.

Your defendant contends that no jury would sentence

him to life based on the circumstances of this case and

his past record if they were given the opportunity to

decide between life and a lesser sentence. However,

under the wording of the Habitual Criminal Statute,

the jury has no such discretion and therefore, the

statute constitutes cruel and unusual punishment and

is unconstitutional.

h) Your defendant further alleges that he is denied

a fair and impartial trial by being designated as a

“habitual criminal” under the Career Criminal Pro-

gram as instituted in Shelby County. Under this

program the judges of the Shelby County Criminal

Court System have previously agreed that they will

set high bonds for persons charged under the Habitual

Criminal Statute and that they will expedite the cases

A-12

of defendants charged as habitual criminals, The

probable effect of this is that the judges are already

prejudiced against anyone charged as a_ habitual

criminal from the time that the indictment is returned.

The probable effect of expediting cases is that a high

percentage of the cases will be transferred to the over-

flow judge in Division VIII which will in effect create

a “Career Criminal Judge” who will try a large portion

of the Career Criminal cases and thus, even jurors will

come to expect that anyone tried in Division VIII is

being tried under the Habitual Criminal Statute.

i) Finally the Habitual Criminal Statute as worded,

allowing the jury no discretion in imposing sentence,

gives the prosecution unfair advantage in plea bar-

gaining with anyone who has committed a fourth

offense without regard to severity of the crime, in that

any offer must be weighed against the alternative of

an automatic life sentence without parole, should the

fourth offense be upheld in Court,

II,

All photographs taken by the prosecution are not

properly admissible in the trial of this cause and therefore

should be suppressed for the following reasons:

a) These photographs are posed;

b) These photographs do not accurately depict the

physical surroundings at the time and place of the

alleged crime;

c) These photographs are not the best evidence and

should be excluded under the Best Evidence Rule;

d) These photographs are irrelevant and immaterial

to the issues in this lawsuit.

a

—

A-13

WHEREFORE, PREMISES CONSIDERED, your de-

fendant, Joseph Glasscock, moves this Honorable Court to

quash the indictment, No, 54455 of Grand Larceny and

Habitual Criminal against him and to suppress and exclude

from evidence all photographs taken by the prosecution,

Respectfully submitted,

/s/ J, B, Cobb, Attorney for Defendant

99 North Third St, |

Memphis, TN 38103

Phone No, 523-0301

FILED 12-30-76

J. A, Blackwell, Clerk

/s/ By: J. C. Beasley, D.C.

CERTIFICATE

I, J. B. Cobb, attorney for defendant certify that a

copy of the foregoing has been mailed this, the 30th day of

December, 1976 to adversary counse) \t their usual business

addresses,

/s/ J. B, Cobb

A-l4 ,

APPENDIX “til”

INTERROGATORIES TO HUGH STANTON

(Defendant's first set of interrogatories)

IN THE CRIMINAL COURT OF

SHELBY COUNTY, TENNESSEE

STATE OF TENNESSEE,

vs. No, 54455

Division V

JoserH GLASScocK, Set: 11/29/76

Defendant

DEFENDANT'S FIRST SET OF INTERROGATORIES

Comes now your defendant, Joseph Glasscock, and in

an attempt to contest the validity of the habitual criminal

statute under which he is presently charged, would pro-

pound the following interrogatories to the Honorable Hugh

Stanton, Attorney General for the Criminal Court of Shelby

County, Tennessee:

1, When was it first decided that your defendant,

Joseph Glasscock, would be charged as a habitual criminal

under TCA Section 40-2801 et seq.?

2. Was this determination made by one person or by

more than one person?

3. Name the people present when the determination

was made to present the charge of habitual criminal to the

Grand Jury.

4. If more than one person was present when the

determination was made to charge the defendant with the

habitual criminal statute, was the decision unanimous?

5. If the decision in the preceding interrogatory was

A-15

not unanimous, how many dissenting votes were cast and

who cast the dissenting votes?

6. Were any minutes kept of the meeting if any, in

which determination was made to charge your defendant,

Joseph Glasscock with violation of the habitual criminal

statute?

7. If the answer to the above interrogatory is in the

affirmative, please attach a copy of such minutes, if you

will, without a Motion to Produce.

8, Was any memoranda made in reference to the

determination to charge the defendant, Joseph Glasscock,

with violation of the habitual criminal statute?

9, If the answer to the above interrogatory is in the

affirmative, please attach a copy of such memoranda, if

you will, without a Motion to Produce.

10, Was your defendant Joseph Glasscock, originally

charged with shoplifting in connection with the September

16, 1976 incident at Sears & Roebuck Company, which is the

subject of this suit?

11, If the answer to the preceding interrogatory is in

the affirmative, when was the charge changed from shop-

lifting to grand larceny?

12, If the answer to interrogatory No. 10 is in the

affirmative, how was the charge changed from shoplifting

to grand larceny?

13. If the answer to interrogatory No. 10 is in the

affirmative, why was the charge changed from shoplifting

to grand larceny?

A-16

14. If the answer to interrogatory No. 10 is in the

affirmative, by whom was the charge changed from shop-

lifting to grand larceny?

15. Are there any reports, memoranda or interoffice

memos concerning the format to be used in determining

when a defendant will be charged under the habitual

criminal statute?

16. If the answer to the above interrogatory is in the

affirmative, please attach a copy of such writings, if you

will, without a Motion to Produce.

17. Has there been any discussion in your staff as to

the distinction between repeater criminals whose crimes

are drug-related or brought about by dependency on drugs

as opposed to repeater criminals who attempt to gain money

or property by using violence or force?

18. If the answer to the above interrogatory is in the

affirmative, please summarize said discussions.

19. If the answer to interrogatory No. 17 was in the

affirmative, please attach all reports, minutes, memoranda,

or other writings concerning such discussions, if you will,

without a Motion to Produce.

20. In determining which defendant will be charged

with the habitual criminal act, does the Attorney General’s

office make any distinction between criminals who commit

violent acts as opposed to criminals whose acts are non-

violent?

21. If the answer to the above interrogatory is in the

affirmative, please specify what distinction is made.

22. Was the Attorney General’s Office contacted

~~ ee te

A-17

through its Assistant Attorney General, Hank Williams, by

the defendant’s father, Reverend Glasscock, on or about

June 20, 1976, in an attempt to have the grand larceny

charge against the defendant dropped in order that the

defendant might be involuntarily committed to Tennessee

Psychiatric Hospital?

23. Was the Attorney General’s Office made aware

through its Assistant Attorney General, Hank Williams,

that involuntary hospitalization was indicated and recom-

mended by the Northeast Community Mental Health

Center who had been treating the defendant, and that said

involuntary hospitalization was impossible so long as

criminal charges were pending?

24 Did the Attorney General’s Office review the de-

fendant’s file at this time to determine whether it would be

in the community’s best interest to drop the grand larceny

charge arising out of an April 3rd incident which was drug-

related in order that the defendant might be involuntarily

hospitalized and treated for his drug abuse problem?

25. If the answer to the above interrogatory is in the

affirmative, please attach any memoranda or other writings

concerning this matter, if you will, without a Motion to

Produce.

26. Who presented the defendant’s case to the Grand

Jury?

27. Was the defendant’s case presented as one of

shoplifting or of grand larceny?

28. Was the Grand Jury made aware of the fact that

there was a charge under the habitual criminal statute in

addition to the grand larceny charge before the true bill was

returned on the charge of grand larceny?

A-18 |

29. Were the dates, charges, and circumstances sur-

rounding each conviction made known to the Grand Jury

before it returned a true bill on the habitual criminal

statute?

30. Was the Grand Jury advised of the defendant’s

drug abuse problem?

31. Was the Grand Jury advised of the relationship

between the defendant’s drug abuse problem and his prior

convictions?

32. Was the Grand Jury advised of the relationship

between the defendant’s drug abuse and the charge of

grand larceny presented to the Grand Jury?

Respectfully submitted,

/s/ J. B. Cobb, Attorney for Defendant

CERTIFICATE

I, J. B. Cobb, attorney for the defendant, certify that a

copy of the foregoing has been mailed on this, the —— day

of , 1976 to the Attorney General’s business

address.

/s/ J. B. Cobb

ee ee eee

A-19

APPENDIX “iV”

RULES OF PRACTICE AND PROCEDURE IN THE

CRIMINAL COURTS OF

SHELBY COUNTY, TENNESSEE

RULES OF PRACTICE AND PROCEDURE

IN THE CRIMINAL COURTS OF THE

FIFTEENTH JUDICIAL CIRCUIT OF TENNESSEE

(SHELBY COUNTY)

RULE I

CANONS OF ETHICS

SECTION 1. The Cannons of Professional Ethics

promulgated by the Supreme Court of Tennessee and the

Tennessee Bar Association are adopted as the rules of the

professional conduct, so far as they relate to the matters

within the jurisdiction and cognizance of this Court.

RULE II

FORMER RULES ABROGATED

All former rules of local practice are abrogated.

RULE III

PRACTICE AND PROCEDURE

SECTION 1. All pleadings including written motions,

orders, and decrees shall be typewritten, double-spaced,

upon law paper, having a blank margin on the left of every

page, and shall be captioned on the front page showing the

number of the case, the name of the Court, the style of the

case, the crime charged and the general nature of the paper

filed.

SECTION 2. All cases shall be set for trial chronologi-

cally as indicated, unless otherwise ordered by the Court,

A-20

with cases involving an incarcerated defendant having

precedence. To advance a case on the calendar a petition

setting forth the reasons for such advance shall be filed

with the Clerk of the Court, addressed to all the Criminal

Court Judges. Said Judges shall appoint one of their num-

ber to hear said petition and thereafter shall all jointly de-

termine whether such advance shall be granted, and if so,

when and in which division of the Court the case should be

set.

SECTION 3. All Petitions for probation of sentence

shall be filed together with affidavits, if any, in the Division

of Court in which the case is set with the Clerk of the Court

at least twenty (20) days prior to the hearing by the Court.

SECTION 4. Attorneys for the defense shall write

their names on the jacket containing the Court papers in

the case immediately upon their employment as counsel.

The Clerk is directed to enter the name of such attorney

upon the minutes of the Court. In all cases wherein an at-

torney appears in open Court representing a defendant

upon a criminal charge and his name is entered and plea

made, he shall remain the attorney of record until disposi-

tion of the case, unless otherwise excused by the Court for

good cause shown.

SECTION 5. The Clerk of the Court shall prepare a

calendar of cases three (3) weeks in advance which shall be

published. All attorneys of record at the time the calendar

is prepared will be notified by mail by the Clerk of the set-

ting of their cases.

SECTION 6. In all cases where demand is made for

the Jury to pass on all the punishment, such demand shall

be made before the voir dire of the Jury is commenced.

se

A-21

SECTION 7. Motions for New Trial shall be in writing

stating the grounds therefor, and filed with the Clerk of

the Court, not later than thirty (30) days after the entry

of the judgment upon the verdict of the Jury, and five (5)

days before the hearing by the Court.

SECTION 8. All transcripts, records, narratives, or

other written instruments intended for Bills of Exceptions

shall be delivered to adversary counsel on the sixth (6th)

day prior to the last day allowed for filing in all cases.

Where last day for delivering said transcripts or narratives

to adversary counsel under this rule falls on a Saturday,

Sunday or Holiday, same must be delivered on last day next

preceding such Saturday, Sunday, or Holiday. In all cases

where agreement as to the contents of the Bill of Exception

cannot be reached between counsel, same must be submit-

ted to the Court for settlement forty-eight (48) hours be-

fore the last day for filing same.

SECTION 9. All preliminary motions, pleas, including

pleas in abatement, and demurrers other than guilty or not

guilty pleas, shall be filed in writing not more than twenty

(20) days after arraignment unless an extention of time be

granted by the Court for good cause shown. Preliminary

motions, pleas, and demurrers not filed in conformity with

this rule shall be summarily dismissed by the Court. The

attorney filing the motion or plea shall certify in writing

that a copy has been forwarded to the adversary counsel

and the Court. All partes will be notified by the Clerk of

the hearing date which shall be set by the Court as soon as

practical.

SECTION 10. Where there is more than one defen-

dant in a case, defense counsel may agree on the order they

shall follow. Where they are unable to agree, the order in

A-22

which the defendants are named in the indictment shall be

followed. Such order shall be followed in the voir dire,

pleas, cross-examination, testimony of defendants, and

arguments of counsel.

SECTION 11. The Courts will convene at 9:30 A.M.

SECTION 12. Conferences — Witnesses will be sub-

poenaed to attend at the hour of 9:00 A.M. on the day set

for trial in each case and together with the attorneys will

be present at said hour for conference with the attorney

general or his assistant until the opening of court at 9:30

A.M. Thereafter no time will be granted for negotiations.

It is the positive duty of the District Attorney, his assistants,

and defense attorneys to be ready to dispose of their cases

on the date set.

SECTION 13. All divisions of Criminal Court will

accept transfer of cases that are ready for immediate com-

mencement of trial.

SECTION 14. Witnesses — Subpoenas for witnesses,

both for the state and defendant, shall be issued seven (7)

days prior to the date of trial. No continuance shall be

granted based upon an absent witness unless witness was

subpoenaed in conformity with this section.

SECTION 15. Court files — All papers and records of

the Court shall at all times be under the custody and control

of the Clerk. No person except the Clerk and his deputies

shall be allowed access to the Court files. No files shall be

withdrawn from the office except by the Judges of the

Court, or when they are taken to the Courtroom by the

Clerk and by attorneys upon permission of the Clerk.

No files shall be withdrawn from the Clerk’s custody

et

——~ ome oe

6 oe

A-23

by attorneys without the Clerk first obtaining a recepit

therefor.

RULE IV

COURTROOM DECORUM

SECTION 1. The space within the rail of the Court-

room is reserved for litigants actually engaged in trial and

for attorneys of the local Bar.

SECTION 2. At the opening of each session of Court,

all persons in the Courtroom will rise and with the Judge,

remain standing until Court is formally opened.

SECTION 3. Counsel will stand when examining or

cross-examining witnesses, or when addressing the Court

or the Jury unless excused by the Court.

SECTION 4. Counsel shall not place or leave upon the

tables of the Courtroom any hats, garments, newspapers,

magazines, etc.; nor shall they engage in any conversation,

consultation, or other activity that may be calculated to

disturb the orderly procedure during the proceeding before

the Court.

SECTION 5. Counsel shall be properly attired includ-

ing wearing coat and tie in the Courtroom.

SECTION 6. Counsel shall not engage in repartee or

colloquy and shall address their remarks to the Court in-

stead of each other.

SECTION 7. In making an objection to the testimony,

counsel shall state only the legal grounds therefor, and

shall not attempt to argue said objections in the presence of

the Jury except with leave of Court.

A-24

SECTION 8. The argument of counsel to the jury shall

confined to the issues in the case and supported by the

. Counsel may suggest such facts and circumstances as

ve been etablished by evidence or by knowledge, and the

ble inferences to be drawn therefrom. Argument

must be addressed to the entire Jury, instead of to one or

more individual jurors, as contemplated by the cannon of

professional ethics that forbids counsel to curry favor with

jurors.

RULE V

ENTRY RULES AND AMENDMENTS OF MINUTES

SECTION 1. These rules of Court and all amendments

thereto, shall be entered on the minutes of all six divisions

of Criminal Court as promptly as practicable after adoption.

Reference to said rules by minute entries shall be deemed

sufficient identification thereof.

RULE VI

WAIVER OF RULES

SECTION 1. Whenever in a particular instance, in the

opinion of the trial Judge, for good cause shown, and justice

requiring, these rules may be waived.

Bernie Weinman H. T. Lockard

Judge, Division 1 Judge, Division 4

Arthur C. Faquin, Jr. John P. Colton, Sr.

Judge, Division 2 Judge, Division 5

William H. Williams James C. Beasley

Judge, Division 3 Judge, Division 6

_ —.

5 bad

A-25

APPENDIX “Vv”

PETITIONER’S MOTIONS FOR NEW TRIAL IN

56059 and 56058

IN THE CRIMINAL COURT OF

SHELBY COUNTY, TENNESSEE

STATE OF TENNESSEE,

; No. 56068

er Praimney) Third Degree Burglary

Larceny and Habitual

JOSEPH GLASSCOCK, Criminal

Defendant

DEFENDANT’S MOTION FOR A NEW TRIAL

TO THE HONORABLE JOHN COLTON, JUDGE OF

DIVISION V OF THE CRIMINAL COURT OF SHELBY

COUNTY, TENNESSEE:

Comes now your defendant, Joseph Glasscock, by and

through his attorney, J. B. Cobb, and moves this Honorable

Court for a New Trial. In support of this Motion your de-

fendant would state and show unto this Honorable Court

as follows:

That the defense offered by your defendant in this

cause was “not guilty by reason of criminal insanity.”

That prior to closing arguments, counsel for your

defendant submitted to the Court a jury instruction based

on T.C.A. 33-709 which was outlined and discussed in

Graham v. State, Supreme Court of Tennessee, January 31,

1977. The Court was advised of the authority for the pro-

posed instruction even though said authority was not noted

on the instruction. This proposed instruction, advising the

A-26

jury that the District Attorney General could seek hospital-

ization of the defendant if he were found to be criminally

insane, was denied by the Court.

That the District Attorney General, in his closing argu-

ment stated that if the jury found the defendant not guilty

by reason of criminal insanity, it would be the same as

“setting him free.”

That following closing argument but prior to charging

the jury, counsel for the defendant again requested that the

Court give Defendant’s proposed jury instruction pertaining

to discretionary hospitalization of the Defendant. Said pro-

posed jury instruction was designated Number Three and

is attached to this Motion as Exhibit “A”. The requested

instruction is bracketed.

That counsel for the Defendant argued at that time,

that in light of the District Attorney General’s statements in

closing argument, it would be prejudicial to your Defen-

dant for the jury to be misled in this manner, Without the

benefit of this requested charge, the jury would believe,

erroneously, that if they found the Defendant not guilty

by reason of criminal insanity he would be set free.

Your Defendant contends that the failure to give De-

fendant’s Proposed Jury Instruction Number Three result-

ed in the Jury’s being misled as to the consequence of a

finding of “not guilty by reason of criminal insanity” and

that such refusal was error which prejudiced your Defen-

dant.

Your Defendant further contends that the prosecutor’s

argument to the jury was improper tending to mislead the

jury as to the consequences of a finding of “not guilty by

ee ne ee

A-27

reason of criminal insanity” and that such argument result-

ed in prejudicial error as to your Defendant.

WHEREFORE, your Defendant moves this Honorable

Court for a new trial on the charges of Third Degree

Burglary and Larceny.

Respectfully submitted,

/s/ J, B, Cobb, Attorney for Defendant

CERTIFICATE

I, J. B. Cobb, certify that I have mailed a copy of the

foregoing to opposing counsel this 23rd day of March, 1977.

/s/ J. B, Cobb

FILED 3-24-77

IN THE CRIMINAL COURT OF

SHELBY COUNTY, TENNESSEE

STATE OF TENNESSEE, No, 56059

vs, Grand Larceny and

JOSEPH GLASSCOCK, Habitual Criminal

Defendant

DEFENDANT’S MOTION FOR A NEW TRIAL

TO THE HONORABLE JOHN COLTON, JUDGE OF

DIVISION V OF THE CRIMINAL COURT OF SHELBY

COUNTY, TENNESSEE;

Comes now your defendant, Joseph Glasscock, by and

through his attorney of record, J. B, Cobb, and moves this

Honorable Court for a New Trial and in support of this

A-28

Motion your defendant would state and show unto this

Honorable Court as follows:

I.

That the defense offered by your defendant in this

cause was “not guilty by reason of criminal insanity.”

That prior to closing argument, counselor for your

defendant submitted to the Court a jury instruction based

on TCA §33-709, which was outlined and discussed in

Graham v. State, Sup. Ct. of Tennessee, Jan, 31, 1977. The

Court was advised of the authority for the proposed instruc-

tion even though said authority was not noted on the in-

struction. This proposed instruction advised the jury that

the District Attorney General could seek hospitalization of

the defendant, if he were found to be criminally insane.

Said jury instruction was denied.

Said proposed jury instruction is attached to this

Motion as Exhibit “A”, The requested instruction is

bracketed.

Your defendant contends that without the benefit of

this requested charge, the jury would believe, erroneously,

that if they found the defendant not guilty by reason of

criminal insanity, he would be set free. Your defendant

contends that the failure to give defendant’s proposed jury

instruction resulted in the jury’s being misled as to the

consequence of a finding of “not guilty by reason of crimi-

nal insanity” and that such refusal was an error which

prejudiced your defendant.

II,

That the Court erred in refusing to allow a hearing on

the merits of a preliminary motion attacking the constitu-

tionality of the habitual criminal statute as applied in

La a Tie meee

A-29

Shelby County. The Court based its ruling on the fact that

the written motion was filed more than twenty (20) days

after the date of your defendant's indictment, and that

pursuant to local rules, said Motion was required to be filed

within that twenty day period. This ruling was made in

spite of the fact that your defendant did not employ J. B.

Cobb as his counsel until some ninety (90) days after the

date of indictment and that he was previously represented

by the Public Defender. The Court also made this ruling

in spite of the fact that your defendant was reindicted on

this same charge following a mistrial under the original

indictment No, 55780, all of which your defendant claims

resulted in his being denied a fair and impartial trial. Your

defendant claims that this constituted a reversible error.

ITI.

Your defendant further contends that he was exposed

to “double jeopardy” in this cause in that following the

mistrial under indictment No. 55780 in which your defen-

dant was charged with Grand Larceny of a tape player and

Habitual Criminal, he was reindicted on this same count

and also reindicted on the charge of Burglary Third Degree

of two (2) bicycles from Goodyear Service Store. The

original indictment concerning the bicycles at Goodyear

was indictment No. 52801 which indictment was for the

charge of Burglary Third Degree only. Under the reindict-

ment No, 56068, your defendant was charged not only with

Burglary Third Degree but also Habitual Criminal. At the

trial of indictment No. 56068, your defendant was found

guilty of Burglary Third Degree but was found not guilty

of the charge of being a Habitual Criminal.

Your defendant would show that the same previous

felony convictions which formed the basis of the charge of

A-30

Habitual Criminal under indictment No. 56068 were the

same felony charges which formed the basis of the charge

of Habitual Criminal under this same indictment No. 56059

and that your defendant had already been found not guilty

as a Habitual Criminal for the previous felony convictions.

Your defendant contends that to allow a jury to recon-

sider the question of whether he was a Habitual Criminal

based on the previous felony convictions exposed him to

“double jeopardy” and was reversible error.

IV.

Your defendant further contends that reversible error

was committed in denying your defendant’s interrogatories

to the jury. Your defendant’s counsel prepared several

interrogatories which were presented to this Court while

the jury was deliberating on the charge of Habitual Crimi-

nal. Your defendant’s counsel requested that these charges

be submitted to the jury if and when they returned a ver-

dict of “guilty” as a Habitual Criminal. The purpose of

these interrogatories was to establish your defendant’s

contention that the Habitual Criminal Statute constitutes

a cruel and unusual punishment and is therefore unconsti-

tutional.

This Court refused to allow your defendant’s counsel

to propound these interrogatories to the jury, and therefore,

your defendant contends that this resulted in reversible

error.

V.

Your defendant further contends that this Court’s

refusal to allow your defendant’s counsel to examine the

Attorney General also resulted in reversible error. Your

defendant’s counsel requested an examination of the Attor-

—s

ee

A-31

ney General under oath in order to prove the unconstitu-

tionality of the Habitual Criminal Act as it is applied in

Shelby County. The refusal of the Court to allow the

examination of the Attorney General prevented your defen-

dant from obtaining the information necessary to pursue

his attack on the constitutionality of the Habitual Criminal

Statute as applied in Shelby County, and therefore denied

him the right to a fair trial, and resulted in reversible error.

WHEREFORE, PREMISES CONSIDERED, your de-

fendant moves this Honorable Court for a new trial on the

charges of Grand Larceny and Habitual Criminal.

Respectfully submitted,

/s/ J.B. Cobb, Attorney for Defendant

99 North Third St.

Memphis, TN 38103

Phone 523-0301

CERTIFICATE

I, J. B. Cobb, attorney for defendant, certify that a copy

of the foregoing has been hand delivered this, the 20th day

of April, 1977 to the Attorney General, 157 Poplar Avenue,

Memphis, Tennessee.

/s/ J.B. Cobb

FILED 4-20-77

J. A. Blackwell, Clerk

/s/ By: G. C. Moore, D.C.

A-32 .

APPENDIX “VI”

T.C.A. 40-2801, 2804, 2805, and 2806

CHAPTER 28

HABITUAL CRIMINALS

40-2801. Persons defined as habitual criminals. — Any

person who has either been three (3) times convicted within

this state of felonies, not less than two (2) of which are

among those specified in §§39-604, 39-605, 39-609, 39-610,

39-3708, 40-2712, 52-1432(a)(1)(A) or were for a crime

punishable by death under existing law, but for which the

death penalty was not inflicted, or who has been three (3)

times convicted under the laws of any other state, govern-

ment or country of crimes, not less than two (2) of which,

if they had been committed in this state, would have been

among those specified in said §§39-604, 39-605, 39-609,

39-610, 39-3708, 40-2712, 52-1432(a) (1) (A) or would have

been punishable by death under existing laws, but for

which the death penalty was not inflicted, shall be consider-

ed, for the purposes of this chapter, and is declared to be

an habitual criminal, provided that petit larceny shall not

be counted as one of such three (3) convictions, but is ex-

pressly excluded; and provided, further, that each of such

three (3) convictions shall be for separate offenses, com-

mitted at different times, and on separate occasions. [Acts

1939, ch. 22, § 1; mod. C. Supp. 1950, § 11863.1; Acts 1973,

ch, 212, § 1.]

40-2804. Evidence of prior convictions. — In all cases

where a person is charged under the provisions of this

chapter with being an habitual criminal, the record, or

records, of prior convictions of such person upon charges

constituting felonies, shall be admissible in evidence, but

Pi a ee rs me San SS Ek ae ee wet es

A-33

only as proof that such person is, in fact, an habitual crimi-

nal, as difined in §40-2801, and a judgment of conviction of

any person in this state, or any other state, country, or terri-

tory, under the same name as that by which such person is

charged with the commission, or attempt at commission, of

a felony under the terms of this chapter, shall be prima

facie evidence that the identity of such person is the same.

[Acts 1939, ch. 22, § 7; C. Supp. 1950, § 11863.7.]

40-2805. Verdict and judgment. — When an indict-

ment or presentment charges an habitual criminal with a

felony, as above provided, and also charges that he is an

habitual criminal, as provided herein, upon conviction it

shall be the duty of the trial judge to specifically inquire

of the jury as to whether they find the defendant guilty

both of the felony charged and also as an habitual criminal

or merely of the felony charged in the indictment and the

trial judge shall record the verdict of the jury and enter

judgment accordingly. [Acts 1939, ch. 22, § 6; mod. C. Supp.

1950, §11863.6. }

40-2806. Penalty — Ineligible for parole. — When an

habitual criminal as defined in § 40-2801, shall commit any

of the felonies therein specified or referred to, he shall upon

conviction, under presentment or indictment in form as

herein provided (except where the death penalty is im-

posed), be sentenced as an habitual criminal, and his

punishment shall be fixed at life in the penitentiary, and

such offender shall not be eligible to parole, nor shall said

sentence be reduced for good behavior, for other cause, or

by any means, nor shall the same be suspended. [Acts

1939, ch. 22, § 2; mod. C. Supp. 1950, § 11863.2.]