Petition — Long v. United States

79-1208

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.

JAMES RALPH LONG,

Petitioner,

versus

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Joseph R. Meadows

GRAVES, RILEY, MEADOWS

& WALKER

P. O. Drawer 550

Gulfport, MS 39501

Telephone (601) 864-5221

Attorneys for Petitioner

SCOFIELDS' QUALITY PRINTERS, P. O. BOX 53096, N. O., LA. 70153 - 504/822-1611

TABLE OF CONTENTS

Page

Verdict and Opinion Below .............eceeeeees 2

DIY, Sete ek eh ce Bb g ea ys 0g co's 2

Questions Presented for Review .............002- 2

Constitutional Provisions and Statutes

I ee eS A ree ane 9 40% 3

Be a ere 4

Reasons for Granting the Writ ...............05 6

RSS EP ULES PEON PCLT OR PETE TELE 14

Certificate of Service ........... "h Miciabedtbe stile « 15

Appendix A — Sth Circuit Court of Appeals

SG ar ee a ER EES STS ag sid delouice 6 wala 0 la

Appendix B — Motion for Enlargement of

See icleas ele adc kd baesb4don 00 0000 9a

Appendix C — Letter from the Supreme

CE SRO Ss pneu canes depaviedecicces cov w 18M

TABLE OF AUTHORITIES

Cases:

U.S. v. Abrams, 568 F.2d 411, 423-25 (Sth Cir.,

TO is Fisigwi di A tidieede tin lecsesGiis 66 eic 11

U.S. v. Busic, 592 F.2d 13 (2d Cir., 1978) ..... 12,13

U.S. v. Hall, 583 F.2d 1288, 1293 (5th Cir.,

eG rc Uneaten Ta bea £00k 000% 0850 ee 7

ii

TABLE OF AUTHORITIES (Continued)

Page

U.S. v. Iverson, 588 F.2d 194, 197 (Sth Cir.,

SFR is eck os has Bek vans Pew akha es Seas 7

U.S. v. McCracken, 488 F.2d 406, 409 (Sth

Ri BOOM isn ce Sh ks Fo ve kc kaw Coe ek wks 7,8

Statutes:

Tie 2h, oe, BATT IO) ooo. os vee ccuaelis 3,4

Title 18, USCA, §4205(a)(b) .............. 3,4,12,13

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

JAMES RALPH LONG,

Petitioner,

versus

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

James Ralph Long respectfully petitions for Writ of

Certiorari to review the Opinion of the United States

Court of Appeals for the Fifth Circuit which affirmed

the verdict of the jury in the United States Court,

Southern District of Mississippi, Southern Division,

convicting Petitioner of First Degree Murder, With-

out Capital Punishment.

2

VERDICT AND OPINION BELOW

The verdict of the jury in the United States District

Court, Southern District of Mississippi, Southern

Division, Criminal Action No. $78-00029(C), UNITED

STATES OF AMERICA VERSUS JAMES RALPH

LONG was affirmed by the United States Court of

Appeals, Fifth Circuit, in an unpublished Opinion dated

December 6, 1979, reported at ___ F.2d ___. The

Opinion is included in the appendices.

JURISDICTION

This Petition is filed beyond the time prescribed by

Rule 22. The Clerk of this Court did not present Peti-

tioner’s Motion for Enlargement of Time in which to

file this Petition due to it being received in his office one

(1) day beyond the prescribed thirty (30) day period.

The Motion and response from the Clerk’s office are

included in the appendices. However, this Petition is

filed within the thirty (30) day period requested in the

Motion for Enlargement of Time.

The jurisdiction of the Supreme Court is based on

Title 28 USCA §1254.

QUESTIONS PRESENTED FOR REVIEW

1. Did the Government meet its burden of proof in

establishing the sanity of Petitioner beyond a reason-

able doubt at the time he shot decedent?

3

2. Did the District Court, during a critical phase of

the trial, and in the presence of the jury, prejudice Peti-

tioner and deprive him of a fair trial and effective assis-

tance of counsel by questioning the truth and veracity

of his Counsel?

3. Did the District Court err in accepting the ad-

vice of the United States Attorney that the Court had

no discretion in sentencing and must impose a manda-

tory life sentence with no provision for parole?

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

Title 18, USCA, §1111(b):

Whoever is guilty of murder in the first

degree, shall suffer death unless the jury

qualifies its verdict by adding thereto “with-

out capital punishment”, in which event he

shall be sentenced to imprisonment for life;

Title 18, USCA §4205(a)(b):

(a) Whenever confined and serving a defi-

nite term or terms of more than one year, a

prisoner shall be eligible for release on parole

after serving one-third of such term or terms

or after serving ten years of a life sentence or

of a sentence of over thirty years, except to

the extent otherwise provided by law.

4

(b) Upon entering a judgment of conviction,

the court having jurisdiction to impose sen-

tence, when it is the opinion the ends of justice

and best interest of the public require that the

defendant be sentenced to imprisonment for a

term exceeding one year, may (1) designate in

the sentence of imprisonment imposed a min-

imum term at the expiration of which the

prisoner shall become eligible for parole,

which term may be less than but shall not be

more than one-third of the maximum sen-

tence imposed by the court, or (2) the court

may fix the maximum sentence of imprison-

ment to be served in which event the court

may specify that the prisoner may be released

on parole at such time as the Commission may

determine.

STATEMENT OF THE CASE

The jurisdiction of the United States District Court

was based upon a one-count indictment charging Peti-

tioner with having murdered decedent, a human be-

ing, at the Keesler Air Force Base in Harrison County,

Mississippi, upon lands acquired for use of the United

States Government, within the special maritime and

territorial jurisdiction and under the exclusive juris-

diction of the United States of America, in violation of

Title 18, USCA §1111. To the charge of first degree

murder, Petitioner pled “not guilty by reason of in-

sanity”.

5

During the course of the trial, the Government pre-

sented three (3) witnesses who testified as to Petition-

er’s sanity:

First: The FBI Agent who investigated the case, first

interviewed Petitioner two (2) hours after the shoot-

ing and stated he seemed sane at that time.

Second: An Assistant District Attorney for the State

of Mississippi also interviewed Petitioner some two

and one-half (2%) hours after the shooting and like-

wise stated that Petitioner seemed sane at that time.

Neither witness testified as to Petitioner’s sanity at

the time he shot decedent.

Third: The third Government witness was a psy-

chiatrist. He testified that in his opinion, Petitioner was

sane at the time he shot decedent. However, his

written report, which was received into evidence, made

no mention of Petitioner’s sanity at the time he shot

decedent. The psychiatrist based his opinion on a one

(1) hour interview with Petitioner. :

Significantly, two (2) other Government witnesses

who (a) were eye-witnesses to the shooting and (b) had

known Petitioner and decedent for some years, testi-

fied on cross-examination that in their opinion Peti-

tioner was not sane at the time he shot decedent.

The District Court refused Petitioner’s Motion for

Acquittal at the conclusion of the Government's case.

6

On the last day of the trial, and immediately after the

testimony of Petitioner’s psychologist, the Court ask-

ed Counsel for Petitioner how many other witnesses

he had. Counsel responded that he had two (2) short

ones. The Court reminded Counsel that at the con-

clusion of the prior day’s testimony he had told the

Court he only had one (1) other witness. The Court

asked Counsel if he could depend on that. The Court

then asked Counsel if he was going to tell the Court the

truth or not. This exchange occurred in the presence of

the jury.

On March 2, 1979, Petitioner was found guilty of

First Degree Murder, Without Capital Punishment. He

was sentenced to the custody of the Attorney General

of the United States for life.

Prior to imposition of the sentence, the Court made

inquiry of the Probation and Parole Office, then pres-

ent in Court, concerning the length of time necessary

to complete a pre-sentence investigation. The United

States Attorney advised the Court that it had no dis-

cretion in the matter of sentencing Petitioner in that

the imposition of a life sentence was mandatory. The

Court immediately imposed the life sentence without

further hearing.

REASON FOR GRANTING THE WRIT

A miscarriage of justice occurred in the District

Court and was affirmed by the Court of Appeals for the

7

Fifth Circuit. Without review by this Court, Petitioner

may unjustly remain in prison the rest of his life.

The threshold question here presented, is whether

or not the Government met its burden of proof in

establishing the sanity of Petitioner beyond a reason-

able doubt at the time he shot decedent. In United States v. Mc-

Cracken, 488 F.2d 406, 409, (5th Cir., 1974) the Fifth Cir-

cuit held that wh 1 the Defendant presents a slight

quantum of evidence raising the issue of insanity, the

Government is required to prove sanity beyond a

reasonable doubt. Moreover, in United States v. Hall, 583

F.2d 1288, 1293 (Sth Cir., 1978) the Fifth Circuit held

that when the Defendant introduced “some evidence

which need only be slight” of his insanity at the time of

commission of the offense charged, he establishes a

prima facie case of insanity which places the burden on

the Government to prove the Defendant was sane be-

yond a reasonable doubt. See United States v. Iverson, 588

F.2d 194, 197 (Sth Cir., 1979).

In concluding that the lower Court was correct in

denying Petitioner’s Motion for Acquittal at the con-

clusion of the Government's case, the Fifth Circuit re-

lied on McCracken, supra., and reasoned thusly:

“Several Government fact witnesses testified

that they believed that Long was insane, other

Government witnesses testified that he was

sane. Conflicting evidence thus existed at the

end of the Government's presentation suffi-

cient to justify a denial of the motion.”

Petitioner respectfully submits that this is a con-

clusion not supported by the evidence and testimony

presented by the Government.

At the conclusion of the Government’s case, the

question of Petitioner’s sanity was in this posture:

A. Two (2) Government fact witnesses testified on

cross-examination that they believed Petitioner was

not sane at the, time he shot decedent.

B. Two (2) Government witnesses testified they

believed Petitioner was sane at the time they interviewed him,

two (2) hours and two and one-half (2%) hours respect-

fully after the shooting. Neither testified as to Peti-

tioner’s sanity at the time he shot decedent.

C. The only Government witness who testified

that Petitioner was sane at the time he shot decedent, was the

Government's expert, its psychiatrist. His opinion was

based ona one (1) hour interview, part of which was de-

voted to determining Petitioner's competency to st.ind

trial. It is noteworthy that the expert’s written report

to the Court dealt only with the question of Petition-

er’s competency to stand trial, nothing was mentioned

as to his mental capacity at the time he committed the offense.

In McCracken, supra., the Fifth Circuit further held

that in determining whether or not the Government

ee

9

met its burden to warrant submission of the question

of insanity to the jury, both the amount and kind of evi-

dence presented by the Government are important.

It is respectfully submitted, that with only the testi-

mony of the Government's expert, which was at odds

with other Government witnesses, the amount and

kind of evidence presented clearly failed to establish

Petitioner’s sanity, at the time he shot decedent, beyond a

reasonable doubt.

On the afternoon preceding the day of the trial’s con-

clusion, Petitioner presented his psychiatrist who testi-

fied he had suffered a transient psychotic episode and

did not know the difference between right and wrong

at the time he shot decedent. The next morning, Peti-

tioner presented his psychologist who testified that he

did not know the difference between right and wrong

at the time he shot decedent. At the conclusion of this

testimony, the most crucial stage of the defense, the

following exchange occurred between the Court and

Petitioner’s Counsel:

“BY MR. MEADOWS:

We call Mrs. Garner.

BY DISTRICT JUDGE HAROLD COx:

How many more witnesses do you have,

Counsel?

BY MR. MEADOWS: ‘

Two, Your Honor, very short ones.

a a

10

BY DISTRICT JUDGE HAROLD COx:

You said you were through yesterday after-

noon but for one witness. May I depend on that or

not?

BY MR. MEADOWS:

I told you what, Your Honor?

BY DISTRICT JUDGE HAROLD COx:

You said if you’d put on two witnesses yes-

terday afternoon and I stayed here overtime

to let you put on two witnesses and you said

you had a psychologist this morning and you

were through. Now are you going to tell me the truth

or not?

BY MR. MEADOWS:

Your Honor, with all deference to the

Court, I object to the form of that question in

the presence of this Jury. With all deference to

the Court, I have done my best, Your Honor. I

have two witnesses I need to put on to present

my defense fully and completely to this Court.

That’s the only way I can answer it.

BY DISTRICT JUDGE HAROLD COx:

All right.”

Thereafter, outside the presence of the jury, the

Court refused Petitioner's Motion to instruct the jury

to disregard the statement concerning the truth and

veracity of Defendant’s Counsel.

11

The Fifth Circuit, in dismissing this assignment of

error, found:

“No prejudicial error resulted from the trial

judge’s actions. The limited remarks in this

case falls well below the degree of prejudice

necessary to conclude that Long was deried

his constitutional rights.”

The Fifth Circuit compared United States v. Abrams, 568

F.2d 411, 423-25 (5th Cir., 1978) cert. denied, 437 U.S.

903 (1978) with the case at bar. This was error. In

Abrams, the Fifth Circuit, in commenting on the ex-

change between the District Court and Counsel for

Defendant, concluded that:

“The most questionable exchange occurred

outside the presence of the jury.”

In the instant case, the exchange occurred in the

presence of the jury at the most critical point of Peti-

tioner’s defense.

Finally, it is beyond comprehension how the Fifth

Circuit could hold, in effect, that there are “degrees of

prejudice” in determining whether a defendant has

been deprived of his or her constitutional rights. It is

respectfully submitted that the Constitution makes no

provision for “degrees of prejudice” when considering a

Defendant's constitutional rights before the bar of

justice.

12

There simply must be no prejudice.

Hl.

After the Court had received and read the verdict of

the Jury, the District Judge made inquiry concerning

the length of time needed by the Probation and Parole

Officer to complete pre-sentence investigation. The

United States Attorney advised that in the instant case

the Court had no discretion in imposing sentence in

that a life sentence was mandatory. The Court, rely-

ing on the advice of the United States Attorney, im-

mediately imposed a life sentence upon Petitioner. This

was error.

In United States v. Busic, 592 F.2d 13 (2d Cir., 1978), the

Government appealed from the District Court’s sen-

tence which designated, pursuant to 18 USCA

§4205(b)(1), that the convicted Defendant would be eli-

gible for parole after serving only eight (8) years of a

life sentence rather than the ten (10) year minimum

otherwise applicable under 18 USCA §4205(a).

The Government argued that the District Court had

no authority to designate Defendant’s sentence under

the referenced Section because it was a mandatory

minimum sentence prescribed by 49 USCA

§1472(i)(1)(B) for aircraft piracy resulting in death and

was not covered by §4205(b)(1). The Second Circuit

found that the District Court possessed statutory

authority to make the early parole eligibility designa-

tion. The Court went on to say that a reading of §4205

—_—_. > —

13

indicated that Congress meant to vest the sentencing

Court with authority under §4205(b) to designate that

a person subject to a life sentence be eligible for parole

earlier than the ten (10) year maximum prescribed by

§4205(a).

It should be noted that no objection was made by

Petitioner’s Counsel at the time of sentencing nor was

this point raised before the Court of Appeals for the

Fifth Circuit.

Unfortunately for Petitioner, his Counsel shared

this lack of knowledge with the United States Attor-

ney and the United States District Judge as to the pro-

visions of United States v. Busic, supra. Clearly, this lack of

knowledge which resulted in Counsel’s failure to ob-

ject prior to the imposition of sentence, should not be

allowed to prejudice the rights of Petitioner.

The trial Court had the option to require a pre-sen-

tence investigation so as to determine whether or not

any mitigating circumstances should be considered

which might persuade the Court to provide early

parole eligibility for Petitioner as in United States v. Busic,

supra.

This is not mere surmise or speculation, but a very

real possibility in that the proof showed that Petition-

er had retired from the United States Air Force with

twenty (20) years of unblemished service and had abso-

lutely no prior criminal record.

14

Should the Court refuse to consider this point here

\ raised for the first time, it would merely compound the

mistake of the District Judge, the United States Attor-

ney and Petitioner’s Counsel in denying Petitioner a

valuable right, that of a possible early parole eligibility.

CONCLUSION

This case should be reviewed by this Court, and

thereafter reversed to correct a manifest injustice

which occurred in the Courts below. First, due to the

lower Court’s error in refusing to enter a judgment of

acquittal at the conclusion of the Government's case;

second, due to the District Court’s prejudicial remarks

to Petitioner’s Counsel in the presence of the jury; and

thirdly, due to the United States Attorney, the District

Judge and Petitioner’s Counsel’s lack of knowledge that

the Court had authority to impose a lesser sentence

than was given.

Respectfully submitted at Gulfport, Mississippi, this

the ____ day of February, 1980.

GRAVES, RILEY, MEADOWS

AND WALKER

Attorneys for Petitioner

JOSEPH R. MEADOWS

OF COUNSEL

15

CERTIFICATE OF SERVICE

I, Joseph R. Meadows, of the firm of Graves, Riley,

Meadows and Walker, and a Member of the Bar of the

‘ Supreme Court of the United States, hereby certify

that I have served the foregoing Petition for Writ of

Certiorari on Counsel for Respondent, by depositing

same in the United States Mail, postage prepaid, on the

day of February, 1980, addressed to Honorable

Wade H. McCree, Solicitor General of the United

States, U.S. Department of Justice, Washington, D.C.

20530 and to Honorable Daniel E. Lynn, Assistant

United States Attorney, at his usual business address,

same being P.O. Box 2095, Jackson, Mississippi 39205.

THIS the ___ day of February, 1980.

JOSEPH R. MEADOWS

<->

la

APPENDIX “A”

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 79-5205

Summary Calendar*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES RALPH LONG,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Mississippi

(DECEMBER 6, 1979)

Before AINSWORTH, FAY and RANDALL, Circuit

Judges.

* Fed. R. App. P. 34(a); Sth Cir. R. 18.

2a

PER CURIAM:

On October 2, 1978, James Ralph Long walked into

the Non-Commissioned Officers’ Club on Keesler Air

Base and in the presence of witnesses shot and killed

Currie Fred Glenn. Charged with first degree murder

under 18 U.S.C. §1111, appellant offered as his only de-

fense insanity at the time of the offense. The appellant

urges four points on appeal as grounds for reversal: (1)

denial of his motion for judgment of acquittal made at

the close of the government's case in chief, (2) refusal

to receive into evidence a gun permit, (3) improperly

allowing a lay witness to give “expert opinion” testi-

mony, and (4) prejudicial remarks by the trial judge.

Finding no merit in these contentions, we affirm the

conviction.

The facts are not in dispute. Several witnesses testi-

fied that Long walked into the club in a normal fash-

ion, went to the poker table where Glenn was playing

cards, pointed his pistol and fired. Long then stooped

below the poker table and again fired at the decedent.

He then walked to a nearby poo! table, placed his weap-

on on it, and waited for authorities to arrest him.

The defense was insanity. Long testified that he did

not recall shooting the decedent but that he re-

membered walking into the club and seeing the de-

cedent sitting at the card table with other persons he

mistook for decedent’s brothers; he thought they were

3a

making obscene gestures at him. Long next remem-

bered being in custody of authorities. Several wit-

nesses to the incident, friends of Long who were play-

ing cards with the decedent, stated that they thought

he was insane at the time he shot decedent because he

did not appear to know what he was doing and because

he appeared dazed as if he were ina trance. Testimony

of the arresting FBI agent indicated that although

defendant was in a daze, hecould determine right from

wrong; this agent stated that he had observed FBI

agents who had killed someone exhibit similar symp-

toms. Another witness whoobserved defendant's post-

crime demeanor stated that defendant was sane and

could determine right from wrong despite his dazed

condition.

Three expert witnesses testified regarding Long's

sanity. A psychiatrist testifying for the government in-

dicated that he knew right from wrong at the time of

the crime. A defense psychiatrist testified that defend-

ant suffered a “transient psychotic episode” at the time

of the crime and could not determine right from wrong.

A defense psychologist stated that Long suffered from

latent schizophrenia which was activated at the time of

the crime and could not determine right from wrong.

Testimony regarding the events preceding the homi-

cide indicates that Long and Glenn were friends for

several years until Glenn left his wife and began to date

other women. Long subsequently began to date dece-

4a

dent’s wife. On two occasions prior to the present

homicide, decedent had assaulted Long with a weapon,

on one occasion shooting him in the stomach. Dece-

dent was tried for this incident only days prior to the

present crime and found not guilty by reason of self-de-

fense. On the day of the present crime, decedent al-

legedly called Long, stating that he would kill him. That

night, this shooting took place.

I. Denial of Acquittal Motion

The defense asserts that the trial court erred in not

granting its acquittal motion at the conclusion of the

government's case and at the conclusion of the entire

case because the government failed to meet its burden

in proving defendant's sanity at the time of the offense.

The law regarding this argument was summarized in

United States v. McCracken, 488 F.2d 406 (Sth Cir.

1974). When a defendant presents a slight quantum of

evidence raising the insanity issue, the government is

required to prove sanity beyond a reasonable doubt. In

determining whether the government presented suffi-

cient evidence for submission of the case to the jury,

the amount and kind of evidence and strength of the

government’s case are important factors. Assuming

that sufficient evidence was presented for submission

of the case to the jury, the question of sanity is a fac-

tual matter; the jury’s verdict should be upheld if there

is substantial evidence, viewing the case in the light

5a

most favorable to the government. Substantial evi-

dence is “evidence that a reasonably minded jury could

accept as adequate and sufficient to support the con-

clusion of the defendant's guilt beyond a reasonable

doubt.” Id. at 412, quoting from United States v. Har-

per, 450 F.2d 1032, 1040 (Sth Cir. 1971); see also United

States v. Iverson, 588 F.2d 194, 196 (Sth Cir. 1979);

United States v. Kossa, 562 F.2d 959 (Sth Cir.), cert. de-

nied, 434 U.S. 1075 (1977).

While several government fact witnesses testified

that they believed that Long was insane, other govern-

ment witnesses, including a psychiatrist, testified that

he was sane. Conflicting evidence thus existed at the

end of the government’s presentation sufficient to

justify the denial of the motion. Similarly, after all the

evidence was presented, sufficient evidence had been

presented from which the juty could have found this

defendant sane beyond a réasonable doubt. Long ad-

duced testimony from several friends who observed

the homicide and from expert witnesses indicating that

he was not sane; the government produced its expert

and two lay witnesses who observed him shortly after

the crime indicating that he was sane. In view of the

conflicting evidence, the trial judge correctly refused to

grant the acquittal motion.

II. Refusal To Admit Gun Permit

Long contends that the trial court erred in refusing

to admit a gun permit into evidence. The defense

6a

sought to introduce the permit to show that the

murder was not premeditated. While the govern-

ment’s theory was that Long specifically carried the

gun to the NCO Club to murder decedent, the defense

sought to show that he was carrying the gun pursuant

to the permit after he had been shot by the decedent.

The argument is that the permit was also probative of

Long’s stress (sufficient to activate his latent schizo-

phrenia) from preceding altercations with the dece-

dent. The trial judge sustained the government’s ob-

jection to the permits introduction, stating that he did

not think that the state statute relied upon by the de-

fense for the introduction of the permit “provides any

defense for . . . carrying [the weapon] against this in-

dictment for this federal crime on federal property”.

While this ruling is correct it does not answer the

question of relevancy for the purpose argued. How-

ever, since several witnesses gave testimony indicat-

ing that Long had the permit, any error was harmless.

See United States v. Johnson, 588 F.2d 961, 963 (5th Cir.

1979), cert. denied, 99 S.Ct. 1801 (1979); United States v.

Normile, 587 F.2d 784, 787 (5th Cir. 1979).

III. Opinion Testimony of Lay Witness

It is claimed that the trial judge erred in admitting the

following exchange between the government attor-

ney and FBI Agent O'Neill:

7a

Q. Have you had an occasion to interview

other persons or to be present when other

persons had been involved in a shooting or

particularly a fatal shooting?

A. Yes, sir.

Q. And—

A. I would say that the state of Mr. Long

would be consistent with the other people

who have been through a similar experience.

Q._ That is tosay that the shock is that that

would be normally experienced after having

gone through the ordeal of shooting some-

body, is that what you're saying?

A. I think if I'd just shot someone in the

line of duty I would be in the same state of

shock that I observed with him.

Q. In your opinion it was not an abnor-

mality to be in a state of shock after having

shot someone, is that what you're saying?

A. I think it’d be unusual if he weren’t.

(1st Sup. R. 1, 139-40).

Appellant claims the above testimony amounts to ex-

pert testimony by an unqualified witness and that it is

based on factual experiences different from the facts of

the present case.

A review of the record indicates that this testimony

occurred after the agent had described Long’s condi-

tion as a state of shock. Thus the agent was merely pro-

8a

viding the basis for his opinion that defendant was in a

state of shock. Under Rule 701 of the Federal Rules of

Evidence, lay witnesses may testify regarding their

opinions which are rationally based on their percep-

tions and which are helpful to a clear understanding of

his testimony. The pre-rule law regarding lay testi-

mony required that the witness state the basis for his

opinion. United States v. Minor, 459 F.2d 103, 106 (Sth

Cir. 1972). Under the Federal Rules of Evidence, al-

though the basis need not be stated, the district judge

has the discretion to require that it be established. 3

Weinstein’s Evidence 4 701[02] (1978) at 701-17. See

United States v. Thomas, 567 F.2d 299, 301 (5th Cir.

1978). We find no abuse of that discretion here.

IV. Prejudicial Remarks

Lastly, it is contended that the trial judge prejudiced

Long by questioning the veracity of his attorney before

the jury. The transcript indicates that the trial judge

asked defense counsel how many more witnesses he

planned to call. When defense counsel indicated that he

had two more witnesses contrary to his previous indi-

cation that he had only one more witness, the court re-

minded him of his previous answer and asked him,

“Now are you going to tell me the truth or not?” De-

fense counsel objected to the question and explained

that the two witnesses were required for a complete

presentation of the defense. After argument outside

the jury’s presence, the case proceeded with the testi-

mony of the two defense witnesses.

9a

No prejudicial error resulted from the trial judge’s

actions. The limited remark in this case falls well be-

low the degree of prejudice necessary to conclude that

Long was deprived of his constitutional rights. Compare

United States v. Abrams, 568 F.2d 411, 423-25 (Sth Cir.

1978), cert. denied, 437 U.S. 903 (1978) with United States

v. Candelaria~-Gonzalez, 547 F.2d 291, 297 (Sth Cir.

1977).

The conviction is AFFIRMED.

APPENDIX “B”

IN THE

SUPREME COURT OF THE UNITED STATES

JAMES RALPH LONG,

Defendant-Appellant,

versus ~ No. 79-5205

UNITED STATES OF AMERICA,

Plaintiff-Appellee.

TO: LEWIS F. POWELL, JR., ASSOCIATE JUSTICE

THE UNITED STATES SUPREME COURT

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MOTION FOR ENLARGEMENT OF TIME

Comes now Defendant-Appellant, JAMES RALPH

LONG, through his Attorney of Record, Joseph R.

Meadows, and files this his MOTION FOR EN-

LARGEMENT OF TIME in which to file his PETITION

FOR WRIT OF CERTIORARI with this Court and in

support thereof would show the following, to-wit:

I.

That the UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT did, on or about the 6th day

of December, 1979, render its Opinion affirming the —

Judgment of the UNITED STATES DISTRICT

COURT for the SOUTHERN DISTRICT OF MIS-

‘SISSIPPI wherein Defendant-Appellant was convict-

ed of First Degree Murder under 18 U.S.C., Section

1111, and thereafter sentenced to life in prison. A true

and correct copy of the Court’s Opinion is attached to

this Motion marked Exhibit “A” and made a part here-

of as if fully copied in words and figures herein.

Il.

That immediately upon receipt of the Court’s ruling,

Defendant-Appellant’s Attorney forwarded a copy of

same to him at his place of incarceration at the Federal

Correctional Institution in Memphis, Tennessee re-

questing his advice as to whether or not he desired to

file a PETITION FOR WRIT OF CERTIORARI with

Ala

this Court. Due to an unexplained delay in Defendant-

Appellant receiving the correspondence he did not ad-_

vise his Attorney of his desire to file the referenced

Petition until Friday, December 28, 1979. That the time

for filing this Petition will expire on Monday, January

6, 1980.

Il.

Petitioner would respectfully request this Court

grant an additional thirty (30) days time in which to file

his PETITION FOR WRIT OF CERTIORARI.

IV.

Finally, Defendant-Appellant would show that this

MOTION FOR ENLARGEMENT OF TIME is.not filed

for purposes of delay, but that the-ends of justice may

be served.

WHEREFORE, Defendant-Appellant files this his

Motion for Enlargement of Time and moves this‘Court

to grant thirty (30) days additional time in which to file

his PETITION FOR WRIT OF-CERTIORARI with this

Court.

Respectfully submitted,

JAMES RALPH LONG,

Deferdant-Appellant

ls} JOSEPH 'R. MEADOWS

JOSEPH R. MEADOWS

Attorney for Defendant-

Appellant

i a ia a a

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Joseph R. Meadows

Attorney for Defendant-Appellant

GRAVES, RILEY, MEADOWS & WALKER

P. O. Box 1649

2120 14th Street

Gulfport, Mississippi 39501

(601) 864-5221

CERTIFICATE OF SERVICE

I, JOSEPH R. MEADOWS, Attorney for Defend-

ant-Appellant, do hereby certify that a true and correct

copy of the foregoing Motion for Enlargement of Time

has been mailed, through the United States Mail, post-

age prepaid, to Honorable Daniel E. Lynn, Assistant

United States Attorney, P. O. Box 2095, Jackson, MS

39205.

THIS the 2nd day of January, 1980.

ls} JOSEPH R. MEADOWS

JOSEPH R. MEADOWS

[Received by Clerk’s Office on January 7, 1980.]

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APPENDIX “C”

OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

WASHINGTON, D.C., 20543

January 7, 1980

Joseph R. Meadows, Esquire

Graves, Riley, Meadows & Walker

P.O. Drawer 550

2120 - 14th Street, Suite 100

Gulfport, Mississippi 39501

Re: James Ralph Long v. United States

Dear Mr. Meadows:

The application for extension of time to file a peti-

tion for a writ of certiorari in the above-entitled case

was received on January 7, 1980 and is herewith re-

turned as out-of-time. :

The time for filing a petition for writ of certiorari in

this case expired on January 5, 1980, which is thirty (30)

days from the decision of the United States Court of

Appeals for the Fifth Circuit. Rule 34(2) provides that

all requests for an extension of time must be presented

to the Clerk within the time sought to be extended.

Accordingly, this application cannot be submitted to a

Justice for consideration.

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A petition for writ of certiorari may still be filed in

this case. It will be docketed and sent to the Court with

a notation as to its untimeliness.

Very truly yours,

MICHAEL RODAK, JR., Clerk

ls} PATRICIA A. DEAN

Patricia A. Dean

Assistant Clerk

th

Enc.