Petition — Russell v. Tennessee

Supreme Court brief1980

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ei —_ —_—

Supreme Court, U.S,

FILED

3EP 27 1900

K, JR., CLERK

80-524

IN THE

Supreme Court of the United States

October Term, 1980

NO.

J.M. RUSSELL & EUGENE LEAKE,

Petitioners,

STATE OF TENNESSEE,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF TENNESSEE

RUSSELL X. THOMPSON

1655 Poplar Avenue

Memphis, Tennessee 38104

Telephone: (901) 722-8278

Attorney for Petitioners

> ee

sarieniieel

IN THE

Supreme Court of the United States

October Term, 1980

NO.

J.M. RUSSELL & EUGENE LEAKE,

Petitioners,

STATE OF TENNESSEE,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF TENNESSEE

Come now the Petitioners, J.M. Russell and Eugene

Leake, and petition the Supreme Court of the United

States to issue the writ of certiorari to review a decision of

the Supreme Court of the State of Tennessee, and in

support thereof would show unto the Court as follows:

QUESTIONS PRESENTED FOR REVIEW

1. Whether Petitioners were denied a fair trial by

way of prosecutiorial misconduct where prosecuting

attorneys granted prosecution witnesses immunity from

prosecution; and where prosecuting attorneys restored to

prosecution witnesses confiscated money from the sale of

illegal drugs; and where prosecuting attorneys failed to

disclose said grant of immunity and restoration of

confiscated money after a discovery motion under Brady

v. Maryland.

2. Whether Petitioners were denied the right to

remain silent where the Trial Court allowed Defendants

to be cross-examined for impeachment at. trial

concerning their silence after being advised of their right

to remain silent under Miranda v. Arizona, at the time

when the search warrant was served.

3. Whether Petitioners were denied the right to

submit witnesses in their own behalf where the Trial

Court excluded under the hearsay rule testimony of

words of invitation onto premises in a burglary case, and

testimony of words of danger, threat, fear, and

provocation in an assault case.

4. Whether Petitioners were denied the right to

confrontation of witnesses where the Trial Court

admitted into evidence at trial the hearsay contents of

search warrant affidavit.

PARTIES

1. The Petitioners are J.M. Russell and Eugene

Leake, residents of the State of Tennessee. They were the

Defendants in the criminal prosecution that is the subject

of this petition. Thereafter, they were Appellants in an

intermediate and final resort appeal to the Tennessee

Supreme Court.

2. The Respondent is the State of Tennessee, and

was the Plaintiff in the prosecution which is the subject of

this petition. The State of Tennessee was the Respondent

in an intermediate and final resort appeal of the

Tennessee Supreme Court.

iii

TABLE OF CONTENTS

Page

I. Question Presented for Review.................. 2

i ENS oss an 5 dn din's add vw ou Na as 3

Se, PIO ho 51d wb. dbo evs bas baaaees

Pk ae a. ks ica Ci weewen ase eed 6

V. Opinions Submitted Below ................c000: 8

Web. PERO R EMS Go ace ack sb 6's bck bao eu eehcan 8

Wens COUPCRMCHOING! FROVIRIOINS «0565 5 .o.5 ooo oc 0:00:00: sae 0 9

VIII. Statements of the Case, with Statement of

The Facts and where the Federal Question

Was Raised ..... ee ee Ae ee eg 9

iX. Reasons for the the Allowance of the Writ ........ 19

i. Petitioners were denied a fair trial by way

_ of prosecutional misconduct where prosecu-

ting attorneys granted prosecution witnes-

ses immunity from prosecution: and where

prosecuting attorneys restored to prosecu-

tion witnesses confiscated money from the

sale of illegal drugs: And where prosecuting

attorneys failed to disclose said grant

immunity and restoration of confiscated

money after a discovery motion under Brady

i SE 86a ih a rie NE RC ls oi w'u eek 19

2. Petitioners were denied the right to

remain silent where the trial court allowed

defendants to be cross-examined for im-

peachment at trial concerning their silence

after being advised of their right to remain

silent under Miranda v. Arizona, at the time

when the search warrant was served............. 26

3. Petitioners were denied the right to

submit witnesses in their own behalf where

the trial court excluded under the hearsay

rule of words of invitation onto premises ina

burglary case, and testimony of words of

danger, threat, fear, and provocation in an

ES he ea, G2 aida Ag a & Golesi ede ook ws 29

4. Petitioners were denied the right to

confrontation of witnesses where the trial

court admitted into evidence at trial the

hearsay contents of search warrant affidavit ..... 34

Re Er ert eee . 36

XI. Certificate of Service on Counsel................ 37

aie kh 6 dkShEEES Semee de carngeeun 38

A. Opinion, Tennessee Court of Criminal

RE Viwreerukns balan eelaete ein eas 39

Order, Tennessee Supreme Court ......... 54

a 54

IV.

TABLE OF AUTHORITIES

Federal Cases: Pages

Brady v. Maryland, 373 U.S. 83,

ee SS. a 2, 13, 14, 26, 27, 30

Chapman v. California, 386 U.S. 18,

ee, A IS 50a hw mia beceao.s bn de wale 21,29

Chambers v. Mississippi, 410 U.S. 482,

ee er ert 40

DeMarco v. United States, 415 U.S. 449,

Pe, Ds SU Se bbc bok cobew ed cckdeeceke 28

Doyle v. Ohio, 426 U.S. 610,

PO PAs UNOS Si hots cecenvewsvccsci 33, 35

Eberhardt v. Bordenkircher, 605 F.2d 275

Sch UN 6 ures Sona whe enw thd ocd we beue 36, 42

Freeman v. Georgia, 559 F2d 65

es MPI Shiite aos seen e542 ce Sawhees ike 33

Giglio v. United States, 405 U.S. 150,

Oe PEE IS eu en han kW ko nds es ewn 27

Green v. Georgia,99 S.Ct. 2150(1979.......... 41,42

Hill v. United States, 369 U.S. 424,

ee | Re ry Pee ee 38

Jenkins v. Anderson, 48 U.S.L.W. 4693

ee I IE ik bic CMa kG ee hake ees ae 34

Klimas v. Mabry, 599 F2d 842 (9th Cir., 1979)........ 38

Minor v. Biack, 527 F.2d 1 (6th Cir., 1975)........... 34

Miranda v. Arizona, 384 U.S. 436,

Se Mee POIs oc has Pa hcaboes cceien 2, 16,35

Mooney v. Holohan,55_ S.Ct. 340,

Se Ss 6655 see chasee mee 25, 26

Ohio v. Roberts, 48 U.S.L.W. 4874

a Su ele sluras 43, 44

Pyle v. Kansas, 317 U.S. 313,

EL. SERRE SERN A a AER a 26

Safeway Stores, Inc. v. Combs, 273 F.2d 295

RB EIS ET TA Re GA oS Ee RO 39

United States v. Agurs, 427 U.S. 97,

96th S.Ct., 2392 26, 27, 31

United States v. Butler, 567 F.2d 885

I I eh rate! a eI oe ne w Oyen 32

United States v. Gaston, 608 f.2d 607

cee ba et a oe wid 30

United States v. Harris, 498 F.2d 1164

I I Cr 30

United States v. Provenzano, 615 F.2d 37

en Swe bau wba when 30

Washington v. Texas, 288 U.S. 14,

I rN a gta 39, 40

STATE CASES:

Bennett v. State, 530 S.W.2d 788

Ss Seles PORN g RUPEE oo as 00 e edges ceewe ee 37, 43

Commonwealth v. Hollowell, 383 A.2d 909

ee A eee ee Se eee: 30

Ellison v. State, 549 S.W.2d 691

ee Rs a ive Wea hw dw dn con seen es 38

Hiram Curtis v. State, 46 Tenn. 9 :1868).......... 30, 31

People v. Rutherford, 534 P.d 1341 (Cal., 1975) ...... 30

State v. Henderson, 554 S.W.2d 117 (Tenn., 1977)... .43

State v. Hooks, 446 P.d 770 (kan., 1968)............. 43

FEDERAL CONSTITUTIONAL PROVISIONS:

PIII \ 5. Sw biped baccteaaelnule aan 44

Fee CROMER... ce cece ccvattes 17, 18, 33, 36, 44

Sixth Amendment............. 18, 22, 33, 37, 38, 42, 44

Fourteenth Amendment ................... 25, 33, 44

TREATISES:

McCormick’s Law of Evidence, 2nd Ed.

CH es DU Rhos kd deed aceaenseebeal 43

es a EE os oa be Ba make eels ee 38

OPINIONS SUBMITTED BELOW

There has been no formally published opinion by the

Trial Court, intermediate Appellate Court, or Tennessee

Supreme Court. The conduct in the indictment was

returned by the Grand Jury of Shelby County, Tennessee

on September 29, 1978.

The Petitioners were convicted of burglary and

aggravated assault on March 3, 1979, without Bench

Opinion, before the Criminal Court of Shelby County,

Tennessee.

Thereafter, they perfected an intermediate appeal to

the Tennessee Court of Criminal Appeals, which

affirmed theri conviction on May 15, 1980. A copy of the

opinion of Tennessee Court of Criminal Aypeal is

unpublished, and is made Appendix A.

Thereafter, the Petitioners applied for a discretionary

appeal to the Tennessee Supeme Court, which was

denied by order without explanation on August 4, 1980. A

copy of the order of Tennessee Supreme Court is made

Exhibit B to the Appendix.

VI.

JURISDICTION

Petitioners pray for the United States Supreme Court

to review a decision of the Tennessee Court of Criminal

Appeals entered on May iS, 1980; from which an

application for discretionary appeal was taken by the

Defendants to the Tennessee Supreme Court; and the

Tennessee Supreme Court denied permission to appeal

on August 4, 1980. The Tennessee Supreme is the Court

of FINAL RESORT IN THE State of Tennessee.

Petitioners have not prayed for a rehearing to the

Tennessee Supreme Court or for an extension of time to

the United States Supreme Court. There is no cross-

petition for the writ certiorari.

The statutory basis for jurisdiction in this case is 28

U.S.C. 2101 (d), read in conjunction with Rule 20.0 of the

Rules of the Supreme Court of the United States. This

petition is filled within 60 days of the decision of the

Tennessee Supreme Court.

VII.

CONSTITUTIONAL PROVISIONS

Petitioners would show that they have been denied

substantive and procedural due process of law as

required by the Fourth, Fifth, Sixth, and Fourteenth

Amendments to the Constitution of the United States.

The above-cited Constitutional Amendements are

made Appendices C, D, E, and F to this petition.

VII.

STATEMENTS OF THE CASE

This case originated as a criminal prosecution against

the Petitioners, Defendants below, for the offenses of

robbery with a deadly weapon, burglary in the first

degree, and aggravated assault.

The State of Tennessee contended that Defendants,

who were Memphis Police Officers, broke into the

apartment of drug pushers, robbed them, and assaulted

them. The defendants joined issue, and conteded that

they were let into the premises by the lawful lessee; that

one of the drug pushers pointed a pistol and another

started a fight; that they responded in self defense; and

they denied committing an armed robbery, a burglary, or

an assault.

The conduct alleged in the indictment occurred on

September 26, 1978. The indictments were were

returned by the Grand Jury of Shelby County, Tennessee

on September 29, 1978.

On March 3, 1979 the jury returned a verdict of not

guilty on the robbery charges, and guilty on the charges

of burglary first degree and aggravated assault.

Whereupon, the Defendants perfected an appeal as of

right to the Tennessee Court of Criminal Appeals, which

was denied on May 15, 1980. (App. A) Thereafter, they

prayed for a discretionary appeal to the Tennessee

Supreme Court, which was denied on August 4, 1980.

(App. B)

Now, therefore, the Petitioners petition for the

issuance of the writ of certiorari because the Trail Court,

Intermediate Appellate Court, and Tennessee Supreme

Court, have issued rulings on Federal Constitutional

rights of the accused, under the Fourth, Fifth, Sixth, and

Fourteenth Amendments to the Constitution of the

United States uf America, which are in conflict with the

Constitution of the decisions of the Untied States

Supreme Court, United States Courts of Appeal, and the

Supreme Court of the sister states.

The Federal questions, and rights under the Fourth,

Fifth, Sixth, and Fourteenth Amendments to the

Constitution of America, were raised and asserted before

the Trail Court, Intermediate Appellate Court, and

Tennessee Supreme Court.

Petitioners would show that their trial was constitu-

tionally defective for the following reasons, interalia:

1. PETIONERS WERE DENIED A FAIR TRIAL BY

WAY OF PROSECUTORIAL MISCONDUCT WHERE

PROSECUTING ATTORNEYS GRANTED PROSECU-

TION WITNESSES IMMUNITY FROM PROSECUTION;

AND WHERE PROSECUTING ATTORNEYS RE-

STORED TO PROSECUTION WITNESSES CONFISCA-

TED MONEY FROM THE SALE OF ILLIEGAL DRUGS;

ANS WHERE PROSECUTING ATTORNEYS FAILED

TO DISCLOSE SAID GRANT OF IMMUNITY AND

RESTORATION OF CONFISCATED MONEY AFTER A

DISCOVERY MOTION UNDER BRADY V. MARY-

LAND.

A. STATEMENT OF THE FACTS.

The record before the Trail Court reflects that all of

the alleged victims admitted selling marijuana at the

apartment named in the indictment. In the apartment

where the incident occurred, there was $11,000.00,

which the drug pushers admitted was the proceeds of the

sale of marijuana. Furthermore, the police recovered a

bottle containing more than six thousand units of LSD.

Butler, one of the alleged victims, testified that he

had been assured by his lawyer that he would not be

prosecuted; and Davis, another alleged victim, said the

prosecutor told him that he would not be indicted because

the State did not have corroborating proof. None of the

three drug pushers were indicted for possession or sale of

marijuana and LSD by the time of the trail, by the time

the motion for new trial was argued, or by the time of

appeal. They have gone completely unprosecuted for

substantial drug offenses.

the $11,000.00 froin the sale of illegal drugs was

recovered by the police and transferred to the office of the

District Attorney General. Two months prior to the trial,

an assistant prosecutor returned $2,000.00 of the money

to Butler, one of the drug pushers. This came out for the

first time during trial. Another assistant prosecutor stood

up and announced to the Court and jury that the balance

of $9,000.00 would be given over to the DEA (Drug

Enforcement Administration). However, shortly after

trial, the assistant prosecutor signed a motion and court

order by which the Court returned the $9,000.00 to the

drug pushers.

Butler, Woods, and Davis got the benefit of the entire

$11,000.00. They were the chief prosecution witnesses

against the Petitioners, and accused them of robbery,

burglary, and assault.

Prior to the trial, the Petitioners filed a motion for

discovery under State law, and pursuant to Brady v.

Maryland, 373 U.S. 83, 83rd S.Ct. 1194 (1963), asking the

State to disclose any exculpatory evidence. The State

completely failed to disclose that the prosecution

witnesses were given immunity from prosecution for the

possesion and sale of marijuana and LSD, that they had

been given $2,000.00 of the confiscated drug money, and

that they were to receive the balance of $9,000.00 after

trial.

B. Where the Federal Question Was Raised.

Petitioners will show where the Federal questions

were raised by reference to the technical record and

transcript of the evidence included in the record on

appeal submitted to the Tennessee Court of Criminal

Appeals and to the Tennessee Supreme Court.

References to the technical record are made as follows:

(R., vol. 1, p. 1). References to the court reporter’s

transcript of the evidence are made as follows: (Tr. 1).

The petitioners filed a pre-trial motion asking for all

exculpatory evidence under Brady v. Maryland, 373 U.S.

83, 83rd S.Ct. 1194 (1963). (r. vol. 1, p. 25, 31) The

prosecuting attorneys never disclosed the fact that more

than six thousand units of LSD were found at the

apartment of the prosecution wirnesses. The prosecuting

attorneys never diclosed before trail that $2,000.00 of the

money, which was the proceeds of the sale of marijuana,

was restored to the prosecution witnesses twa months

before trial. These facts came out in the cross

examination of the prosecution witness, Lt. Vos, who was

the investigating officer. Counsel for the Defendants

announced to the Court that he had never been advised of

the existence of the LSD. (Tr. 1124-1126) Defense

counsel also only learned that the drug pushers had been

restored $2,000.00 of the confiscated money at trial. (Tr.

79, 80) Whil the drug pusher was being cross examined

about the balance of $9,000.00, the prosecuting attorney

announced a stipulation that the money would be

returned to the DEA. (Tr. 403) After trial, the

prosecuting attorney signed a motion and court order

restoring the balance of the $9,000.00 of the confiscated

drug money to the drug pushers, who had testified for the

state. (R., vol. 1, p. 75, 76, 77)

Counsel for Defendants also stated that he was never

advised that the prosecuting witnesses were promised

immunity from prosecution. However, LT. Vos. stated

that the prosecution witnesses had not been indicted for

possession or sale of marijuana and LSD at the time of

trial. (Tr. 401) Defense counsel further supplemented the

record by filing an affidavit at the time of motion for new

trial stating that the prosecution witnesses had not been

indicted or prosecuted.

The Federal questions were again asserted by motion

for new trial, which was overruled.

Petitioners assigned as error to the Intermediate

Appellate Court that the LSD was not disclosed prior to

trial. The Court of Criminal Appeals ruled that there was

not error because the defense learned of the LSD during

trial, and did not move for sanctions for failure to grant

discovery. (App. A, p. 8) The Petitioners humbly

disagree with the Court because the defense did not gain

the information at a time early enough to properly

investigate and effectively confront witnesses; and

because the defense invoked the only sanction available,

that is it objected to the admission of evidence, which was

overruled by the Trial Court.

The Petitioners also assigned as error to the

Intermediate Appellate Court that the prosecution

witnesses were restored to $2,000.00 prior to trial, and

the balance of $9,000.00 after trial; which money was the

proceecs of the sale of illegal drugs. Again, the

Intermediate Appellate Court ruled that there was no

error because the evidence which was suppressed or

undisclosed at trial in the presence of the Court and jury.

(App. A, p. 10) Petitioners disagreed with the Court

because the payment of the large sum of money so

polluted the witnesses as to deprive the accused of a fair

trial, and because they were not given the information at

an early enough time to investigate and effectively

confront.

The Petitioners further presented this question for

review in petitioning for a discretionary appeal to the

Tennessee Supreme Court, but their appeal was denied

without explanation. (App. C)

2. PETITIONERS WERE DENIED THE RIGHT TO

REMAIN SILENT WHERE THE TRIAL COURT

ALLOWED DEFENDANTS TO BE CROSS-EXAMINED

FOR IMPEACHMENT AT TRIAL CONCERNING

THEIR SILENCE AFTER BEING ADVISED OF THEIR

RIGHT TO REMAIN SILENT UNDER MIRANDA V.

ARIZONA, AT THE TIME WHEN THE SEARCH

WARRANT WAS SERVED.

The Petitioners also assert that they were denied their

right to remain silent where the Trial Court allowed them

to be cross-examined about their silence at the time the

search warrant was served. Lt. Clyde Kennan of the

Memphis Police Department secured a search warrant to

search the apartments of the Petitioners. When Lt.

Kennan served the warrants, he advised the Petitioners

_ of their right to remain, specifically referring to Miranda

v. Arizona, 384 U.S. 468, 86 S.Ct. 1625 (1967). The

Petitioners chose to remain silent.

At trial, the Petitioners testified that they did not

commit robber, burglary, or assault; but that they went

into the apattment; and that one of the drug pushers

pulled a pistol on the lessee of the apartment; and that

the drug pushers started an altercation. The Court

allowed the State to cross-examine the Petitioners, then

Defendants, concerning why they had not given their

explanation at the time the search warrant was served.

Counsel for defendant objected on Fifth Amendment

ground each time the topic of their silence at the time of

the serving of the search warrants was raised by the

State, but the Court overruled the objection.

B. Where the Federal Queston Was Raised.

Counsel for Petitioners repeatedly objected at the

time of trail on Fifth Amendments grounds, and the

Court overruled the defense objections. (Tr. 854,

1007-1008, 1011, and 1047-1049) This error was also

assigned in the motion for new trial, and overruled.

The error was then presented to the Intermediate

Appellate Court. The Court of Criminal Appeals ruled

that there was no error with regard to Petitioner Leake

because when he was asked the question, the defense

objection was sustained. (App. A, p. 14) Petitioner

humbly disagrees with the Court of Criminal Apeals, and

would show that he made repeated objections on Fifth

Amendment grounds, which were overruled. (Tr. 1007,

1009, 1010) Then after repeated overruling his objection,

the Trial Court finally sustained the objection. (Tr. 1011)

The Court of Criminal Appeals further ruled that no error

occurred with regard to Petitioner Russell when he was

asked similar questions, because the Petitioner withdrew

his objection. Petitioners disagree with the Court of

Criminal Appeals because the Petitioner in fact objected

at least twice to the question, and the Court overruled the

defense objections. (Tr. 781, 782, 854; In effect, the

prosecution was allowed to do all of the damage. Then

Petitioner did withdraw his objection and offered to

answer the question. (Tr. 854)

This error was assigned in the request for permission

to appeal to the Tennessee Supreme Court, but was

denied withour explanaton. (App. B)

3. PETITIONERS WERE DENIED THE RIGHT TO

SUBMIT WITNESSE IN THEIR OWN BEHALF WHERE

THE TRIAL COURT EXCLUDED UNDER THE HEAR-

SAY RULE TESTIMONY OF WORDS OF INVITATION

ONTO PREMISES IN A BURGLARY CASE, AND

TESTIMONY OF WORDS OF DANGER, THREAT,

FEAR, AND PROVOCATION IN AN ASSAULT CASE.

A. STATEMENT OF FACTS.

Petitioners would show that they were denied the

right to submit witnesses in their own behalf, contrary to

the Sixth Amendment to the United States Constitution,

because the Trial Court unlawfully restricted the

testimony to be offered by their witnesses.

One of the charges in the indictment was that the

Petitioners were quilty of burglary. The proof was that

the three alleged victims, Butler, Woods, and Davis,

were staying at an apartment leased to John Bass. The

Petitioners knew John Bass because he was the manager

of a Holiday Inn lounge in their police district; and they

also knew Mike Pope, because he was a Holiday Inn

security guard. The Petitioners testified that there was a

warrant outstanding for the arrest of the wife of John

Bass; and that Bass invited them over to his apartment

for a drink to discuss the matter. The alledged victims,

who are drug pushers, were staying in Bass’ apartment.

Mike Pope, the security guard, was present at the time

the invitation was made; however, on objection by the

State, the Court would not allow Mike Pope to testify that

he heard the words of invitation, on the grounds allowed

to testify, he would have corroborated the Petitioners’

testimony that they were invited onto the premises by the

lessee, thereby negating the element of breaking and

entering in a burglary case.

In the aggravated assault case, the Petitioners

testified that the drug pushers started the altercation.

Mike Pope would have testified that he heard one of the

drug pushers shout ‘‘He's got a gun'' right before the

altercation started. However, the Court sustained the

State’s objection to the testimony upon the grounds that

it would be hearsay. Mike Pope was not allowed to testify

to the words of threat, danger, fear, and provocation

uttered by the drug pushers immediately before and

during the altercation.

Petitioner Russell testified that one of the drug

pushers was pointing the gun at John Bass, and that

Petitioner Leake was trying to subdue him. Then another

of the drug pushers ran by Russell, and Petitioner Russell

stopped him.

B. Where the Federal Question Was Raised.

Defendants contend the Trial Court denied them the

right to submit witnesses.

The Petitioners attempted to submit the testimony of

Mike Pope, who overheard John Bass, the lessee, invite

them onto the premises; but the State objected, and the

Court sustained the State’s objection. (Tr. 504, 512-516)

Thereafter, the Petitioners attempted to show that

the language of danger, threat, fear, and provocation was

shouted immediately prior to the altercation, including

the statement ‘‘He's got a gun'’, but the State objected

on hearsay grounds, and the Court sustained the State’s

objection. (Tr. 546)

This error was assigned at the motion for new trial

and overruled.

The Petitioners raised this issue at the Intermediate

Appellate Court; and the Court of Criminal Appeals

agreed that the Trail Court erroneously excluded the

testimony, because words of invitation are not hearsay.

(App. A, p. 15) The Court of Criminal Appeals also stated

that the words ‘‘He's got a gun'’ were erroneously

excluded because they were part of the res gestae. (App.

A, p.16.) However, the Intermediate Appellate Court

stated that these were harmless errors within the

meaning of Chapman v. California, 386 U.S. 18, 87

S.Ct. 824 (1967). (App. A, p. 17) Petitioners humbly

disagree with the Court of Criminal Appeals because the

straight forward testimony of their offered witness could

have changed the jury’s mind, and because harm is

presumed to flow from a Constitutinal error.

This issue was raised in the application for permission

to appeal to the Tennessee Supreme Court, but was

denied without explanation. (App. B)

4. DEFENDANTS WERE DENIED THE RIGHT TO

CONFRONTATION OF WITNESSES WHERE THE

TRIAL COURT ADMITTED INTO EVIDENCE THE

HEARSAY CONTENTS OF A SEARCH WARRANT

AFFIDAVIT.

A. STATEMENTS OF THE FACTS.

Petitioners would show that they were denied the

right to confront witnesses against them where the Trial

Court admitted into evidence at trial the hearsay contents

of a search warrant affidavit. The right of confrontation is

guaranteed by the Sixth Amendment to the United States

Constitution.

The affidavit accused the Petitioners of robbery,

Burglary, and assault. The contents of the hearsay

affidavit came in through the testimony of Lt. Clyde

Keenan. Lt. Keenan was not the affiant. The affiant was

Lt. Vos, and the information in the affidavit was given to

Lt. Vos by Larry Butler, one of the drug pushers.

Therefore, the jury was read the contents of the search

warrant, which contents were hearsay upon hearsay.

B. Where the Federal Queston Was Raised.

Counsel for Defendants objected to the hearsay

testimony in the affidavit during trial; but the defense

objection was overruled. (Tr. 1050, 1051, 1059, 1060)

The issue was also raised at the time of the motion for

new trial, but was overrulled by the Trial Court.

The error was also submitted to the Intermediate

Appellate Court, which ruled no error occured, because

the affidavits were not exhibited to the jury. (App. A, p.

13) Petitioners humbly disagree with the Court of

Criminal Appeals because the record does not reflect that

the affidavit was kept from the jury. The affidavit was a

trial exhibit, ad opposed to an exhibit for indentification;

and Tennessee trial practice is to pass trial exhibits to the

jury.

The question was also raised in the application for

permission to appeal to the Tennessee Supreme Court

but was denied withour explanation. (App. B)

IX.

REASONS FOR THE ALLOWANCE OF THE WRIT

Petitioners would show that review by writ of

certiorari should be granted because the Tennessee

Supreme Court, A State Court of last resort, has decided

a Federal question in a way in conflict with the decision of

the United States Supreme Court, of the United States

Courts of Appeals, and of the Supreme Courts of other

states.

1. DEFENDANTS WERE DENIED A FAIR TRIAL

BY WAY OF PROSECUTORIAL MISCONDUCT

WHERE PROSECUTING ATTORNEYS GRANTED

PROSECUTION WITNESSES IMMUNITY FROM

PROSECUTION; AND WHERE PROSECUTING WIT-

ATTORNEYS RESTORED TO PROSECUTION WIT-

NESSES CONFISCATED MONEY FROM THE SALE OF

ILLEGAL DRUGS; AND WHERE PROSECUTING

ATTORNEYS FAILED TO DISCLOSE SAID GRANT OF

IMMUNITY AND RESTORATION OF CONFISCATED

MONEY AFTER A DISCOVERY MOTION UNDER

BRADY V. MARYLAND.

Prosecutorial misconduct denied Petitioners a fair

trial within the meaning of the Fifth, Sixth, and

Fourteenth Amendments to the Constitution of the

United States of America. The decision of the Tennessee

Supreme Court was in conflict with the decision of the

United StatesSupreme Court, The United States Courts

of Appeals, and the Supreme Courts of other states.

The Petitioners were denied a fair trial and due

process of law by the prosecution’s suppression of

material favorable to the defense of the accused, and in

the following particulars:

1. The prosecution failed to disclose that the

State’s witnesses, three drug pushers, were

granted immunity from prosecution for the

offense of possession and sale of marijuana.

2. The prosecution failed to disclose that the

State’s witnesses, drug pushers, were granted

immunity from prosecution for the offense of

possession of LSD.

3. The prosecution failed to disclose that a

bottle containing six thousand units of LSD was

recovered from the apartment where the prosecu-

tion witnesses lived.

4. The prosecution failed to disclose that prior

to trial the State returned to the prosecution

witnesses the sum of $2,000.00, which confiscated

proceeds from the sales of illegal drugs.

5. The prosecution failed to disclose that after

trial, where the witnesses has testified on behalf

of the State, the State returned the balance of

$9,000.00 of the confiscated drug .proceeds

money.

The State’s witness, Larry Butler, admitted that the

source of the $11,000.00 was from his own sale of

marijuana, a controlled substance. During the trial the

prosecuting attorneys stipulated that the money would

be returned to the DEA (Drug Enforcement Administra-

tion). However, after trial the prosecutors signed a

motion and court order restoring the $9,000.00 balance to

the State’s witnesses.

The Defendants were denied a fair trial and due

process of law under the Fourteenth Amendment by such

prosecutorial misconduct because it polluted the criminal

prosecution, and irrevocably biased and prejudiced the

witnesses against them.

It has long been established that prosecutorial

conduct during the trial of a criminal case must be

consistent with due process of law under the Fourteenth

Amendment. The prosecutor has a constitutional duty to

disclose evidence which would be exculpatory to the

Defendant. The United States Supreme Court imposed

this requirement in a line of case beginning with Mooney

v. Holohan, 294 U.S. 103, 5S = §.Ct. 340 (1935) and

continuing unto United States v. Agurs, 426 U.S. 733,

96 S.Ct. 2392 (1976). In each case succeeding Mooney,

the Supreme Court expanded and elaborated on the

prosecutor’s Constitutional duty to disclose.

In the beginning the Court heldin Pyle v. Kansas, 317

U.S. 213,53 S.Ct. 177 (1942) that the prosecutor could

not knowingly allow a defendant to be convicted upon

perjured testimony of a witness, even if the testimony

was not offered or suborned by the prosecution.

Petitioners would submit that in this case the prosecutor

allowed the investigating officer to testify that he had

only recovered a little bottle containing pills, and not

disclose that the pills were LSD. This discrepancy was

only developed as the result of defense investigation

during trial.

The prosecution’s duty to disclose evidence was

significantly expanded in the landmark case of Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). Brady

made a clean break from the older cases which limited

prosecutorial misconduct to the use of perjured

testimony. In the Brady case, the prosecution failed and

neglected to disclose that a person other than the

defendant had confessed to committing the crime for

which the defendant was charged. The defense had

requested to examine the other person’s pre-trial

statements, but the request was not granted. The

Supreme Court held that the Defendant was denied due

process of law, with the following language:

Suppression by the prosecution of evidence

favorable to an accused upon request violates due

process where the evidence is material to either

guilt or punishment, irrespective of the good faith

or bad faith of the prosecution. (83 S.Ct. 1195)

The Supreme Court further expanded the prosecu-

tor’s duty in the case of Giglio v. United States, 405 U.S.

150,92 S.Ct. 763 (1972). In Giglio, the Court held that

evidence relating to the credibility of a witness must be

disclosed to the defense, in the following language:

Where the ‘‘reliability of a given witness may

well be determinative of guilt or innocence,’’

non-disclosure of evidence affecting credibility

falls within this general rule. We do not, however,

automatically require a new trial whenever a

‘‘combing of the prosecutor’s file after the trial

has disclosed evidence possibly useful to the

defense, but hor likely to have changed the

verdict...’’ U.S. v. Keough, 391 F.2d 138, 148

(2nd Cir. 1968) A finding of materiality of evidence

is required under Brady, supra.

A new trial is required if ‘‘the false testimony

could... in any reasonable likelihood, have

affected the judgement of the jury.’’ Napue,

supra.

Here the government’s case depended almost

entirely on Taliento’s testimony; without it, there

could have been no indictment and no evidence to

carry the case tothe jury.

Taliento’s credibility as a witness was,

therefore, an important issue in the case, and

evidence of any understanding or agreement as to

future prosecution would be relevant to his

credibility, and the jury was entitled to know it.

(92 S.Ct. 766)

Petitioners would particulary call the Court's

attention to the case of DeMarco v. United States, 415

U.S. 449, 94 S.Ct. 1185 (1974), because it is a case

where plea bargaining had gone on with the prosecution

witness prior to trial. The Court set out the priciple of law

as fe" ows:

Unquestionably, had there been a promise to

...e witness prior to his testimony, Giglio v. United

States, citation ommitted, Napue v. Illinois,

citation ommitted, did require reversal of the

petitioner’s conviction. It is clear that there was a

plea bargain between the witness and the

government at some point, the question being

whether it was made after or before petitioner’s

trial. This factual issue was dispositive of the case,

and it would have been better practice not to

resolve it in the Court of Appeals based upon the

materials then before the Court. The issue should

have been remanded for initial disposition in the

District Court after an evidentiary hearing. We,

therefore, grant the petition for certiorari. . . (94

S.Ct. 1186)

Finally, in the case of United States v. Agurs, 427

U.S. 97, 96 S.Ct. 2392 (1976) the Supreme Court

dispensed with apparent requirement in Brady that the

defense request the material evidence. In the Agurs

case, the Defendant was a woman convicted of second

degree murder. The prosecution’s theory was that the

defendant was a prostitute who stabbed a victim in a

robbery attempt. The defense theory was self defense.

The prosecution knew that the victim had been convicted

of violent crimes in the past, but the defense never asked

for his record, erroneously beliecing it would inadmis-

sible. after conviction, defense counsel discovered that

they could have admitted into evidence the alleged

victim's record of violent crimes. In Argus, the Court

confirmed the Brady pricipal of disclosure of material

evidence, in the following language:

The duty to respond to a general request or no

request at all is dependent on the evidence

itself... if the evidence is so clearly supportive of

a claim of innocence that it gives prosecution

notive of duty to produce, the duty should equally

arise if no request is made. (96th S.Ct. 2401)

The above language from Agurs must be read in

conjunction with the case of Chapman v. California, 386

U.S. 18, 87 S.Ct. 824 (1967), which says that an error

must be harmless beyond a reasonable doubt, otherwise

the Appellant should be granted relief.

The Federal Courts of Appeals have uniformly

followed the Brady v. Maryland line of authority. See

United States v. Harris, 498 £.2d 1164 (3rd Cir., 1974))

United States v. Gaston, 608 F.2d 607 (Sth Cir., 1979); and

United States v. Provenzano, 615 F.2d 37 (2nd Cir., 1980)

The Supreme Courts of several states have also followed

the same rule. See Commonwealth v. Hollowell, 383 A.2d

909 (Pa., 1978) and People v. Rutherford, 534 P.2d 1341

(Cal., 1975).

Prosecutorial misconduct has long been disapproved

in the State of Tennessee by the case of Hiram Curtis vy.

State, 46 Tenn. 9 (1868). The defendant was charged with

the offense of ‘‘horse stealing’’. The prosecution kept

secret the availability of the State’s witnesses. The

Supreme Court of Tennessee condemned the practice

wiih the following language:

We are satisfied that an artifice was employed to

induce the prisoner to go to trial by concealing

from him the fact that certain of the State's

witnesses were present in inducing him tho

believe that they were not present while, in fact,

they were and had been concealed by the attorney

for the State. It is easy to see how a fraud might be

practiced upon a defendant by this means, and

whether in this case he actually was injured by the

artifice or not it is sufficient ot see that he might

have been and that the practice if permitted in the

future would open avenues for fraud and

oppression. The duty of the attorney for the State

is to adduce all of the legitimate proof of the

prisoner’s guilt, but it is not his duty to endeavor

to secure conviction which he is not entitled under

legitimate evidence and fair practice. And, if a

defendant cannot be convicted under this rule, the

State has no interest to have him convicted. The

Supreme Court of Michigan reversed a criminal

case for the reason that the District Attorney

knowing of evidence which would make in favor of

the defendant, did not place it before the jury. The

prosecuting officers must discharge their duty to

State, but not resort to strategems to deprive a

prisoner of his legal rights. (46 Tenn. 11)

The Petitioners assert that they were greatly prejudiced

by the failure to disclose material evidence by the

prosecution. Had they known of the existance of the six

thousands units of LSD and the offered immunity from

prosecution, and the restoration to $11,000.00 of

confiscated drug money, then they could have prepared a

long and compelling defense focused on destroying the

credibility of the prosecution witnesses.

In United States v. Agurs, supra., the Supreme Court

stated it would apply the strict standard of prosecutorial

misconduct, for the following reason:

. . not just because they involved prosecutorial

misconduct, but more importantly because they

involved the corruption of the truth-speaking

function of the trial process.

Defendants contend that the prosecution offered

immunity for the three drug pushers who were witnesses

against them. The offer of immunity is an inescapable

' 26

conclusion of fact because many months have elapsed

since the case, and the State has failed and neglected,

obviously through agreement, to indict the drug pushers.

Furthermore, the sum of $11,000.00 was restored to drug

pushers after their testimony for the State. The State

refused to disclose and verify the existence of the

agreement of immunity; however, the witnesses alluded

and suggested that they were the beneficiaries of an

agreement of immunity.

The Government’s failure to disclose that a key witness

was promised dismissal in return for his testimony has

been held to the basis for a new trial in the case of United

States v. butler, 567f. 2d 885 (10th Cir., 1978). Also in the

case of U.S. v. Harris, 498 F. 2d 1164 (2nd Cir., 1974),

certm den 95 S.Ct. 635, the Court of Appeals ruled it to be

reversible error where the government intentionally or

inadvertently failed to correct material, false testimony

relevant to the credibility of government witnesses at

trial, including the evidence concerning any

understanding or agreement as to future prosecution

between the witnesses and the government.

In the case of Freeman v. Georgia, 599 F.2d 65 (Sth Cir.,

1979) the Court held that a police officer’s knowing

concealment of a witness amounted to State suppression of

evidence favorable to the accused, thereby depriving him

of due process, where the evidence might have created a

reasonable doubt.

Therefore, Petitioner would show that they were denied

a fair trial within th meaning of the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution

and this Honorable Court should grant the writ of

certiorari to correct the errors set out in this petition.

2. PETITIONERS WERE DENIED THE RIGHT TO

REMAIN SILENT WHERE THE TRIAL COURT

ALLOWED DEFENDANTS TO BE CROSS-EXAMINED

FOR IMPEACHMENT AT TRIAL CONCERNING

THEIR SILENCE AFTER BEING ADVISED OF THEIR

RIGHT TO REMAIN SILENT UNDER MIRANDA JV.

ARIZONA, AT THE TIME WHEN THE SEARCH

WARRANT WAS SERVED.

The Tennessee Supreme Court completely failed to

follow the direction of the United States Supreme Court

in ruling on the use of post-Miranda warning silence for

impeachment. The United States Supreme Court ruled

upon the law of post-Miranda warning silence in the case

of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240 (1976). In

Doyle, the defendant was advised of his Miranda rights

and declined to give a statement at the time of his arrest.

At trial he gave an exculpatory explanation of his

conduct. The prosecution was permitted by the trial court

to cross-examine and impeach by reference to his silence

at the time of his arrest. The Supreme Court ruled that it

was unfair, in the following language:

The warnings mandated by that case, as a

prophylactic means of safeguarding Fifth

Amendment rights, see Michigan v. Tuekc;,

citation ommitted, require that a person taken into

custody be advised immediately that he has the

right to remain silent, that anything he says may

be used against him, and that he has a right to

retained or appointed counsel before submitting

to interrogation. Silence in the wake of these

warnings may be nothing more than the arrestee’s

exercise of the Miranda rights. Thus, post-arrest

silence is insolubly ambiguous because of what

the State is required to advise the person arrested.

See United States v. Hale, citation ommitted.

Moreover, while it is true that the Miranda

warnings contain no express assurnace that

silence will carry no penalty, such assurance is

implicit to any person who receives the warnings.

In such circumstances, it would be fundamentally

unfair and a deprivation of due process to allow

the arrested person’s silence to be used to

impeach an explanation subsequently offered at

trial. (96S. Ct. 2244, 2245)

The Supreme Court affirmed and repeated the

application of Doyle v. Ohio in recent case of J enkins v.

Anderson, 48 U.S.L.W. 4693 (June 10, 1980). The Sixth

Circuit Court of Appeals has also established this

Proposition in the case of Minor v. Black, 520 F.2d 1 (6th

Cir., 1975).

Petitioners would show that the essence of Doyle v. Ohio

is that a person should not be impeached or penalized for

silence after he has been told he may lawfully remain

silent. The factual situation in the Petitioners’ case is

almost identical to the factual situatuion in Doyle v. Ohio.

The Petitioners were at their respective apartments,

when arresting officers came with the search warrant.

One of the arresting officers advised the Petitioners of

their right to remain silent, specifically referring to

Miranda vy. Arizona, 384 U.S. 468, 86 S.Ct. 1625 (1967).

The Defendants chose to remain silent. Thereafter, the

prosecutor asked the following question to Petitoner

Leake:

Q Fine. And Officer Keenan gave you an

opportunity to explain what you considered a false

accusation out there that night and you didn’t tell

him a word of it, did you? (Tr. 101 1)

Then, the prosecutor asked a substantially similar line of

questions to Petitioner Russell. (Tr. 781) The prosecutor

apparently had not read Doyle v. Ohio, where

substanitially the same kind of cross examination was

performed:

Q (By the Prosecutor) Mr. Beamer did arrive on

the scene?

A (By Wood) Yes, he did.

Q And I assume you told him all about what

happened to you?

A No. (96S.Ct. 2243)

Therefore, Petitioners submit that their trial was

prejudiced by a constitutional error. In the case of

Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir.,

1979), the Sixth Circuit made this statement with regard

to harmless error, in the Fifth Amendment context:

Harmless error, in the context of violation of the

constitutional right of a defendant, is an extremely

narro standard, permitting the State to avoid the

retrial of a defendant, only when it can

demonstrate beyond a reasonable doubt that the

error did not contribute in any way to the

conviction of the defendant.

Harm is presumed tho have flowed from

constitutional error; the burden is on the State to

demonstrate conclusively to the contrary. It is not

enough for the reviewing Court to feel that the

evidence is strong and that the defendant

probably would have been conficted anyway. This

is a decision for the jury to make, unaffected by

improper argument or impermissible inferences

urged by the prosecutor. (605 F.2d 278-279)

3. PETITIONERS WERE DENIED THE RIGHT TO

SUBMIT WITNESSES IN THEIR OWN BEHALF

WHERE THE TRIAL COURT EXCLUDED UNDER THE

HEARSAY RULE TESTIMONY OF WORDS OF

INVITATION ONTO PREMISES IN A BURGLARY

CASE, AND TESTIMONY OF WORDS OF DANGER,

FEAR, AND PROVOCATION IN AN ASSAULT CASE.

Petitioners would show that by excluding testimony of

invitation onto premises and words of danger, threat,

fear, and provocation under the hearsay rule, the

Tennessee Supreme Court and Tennessee Court of

Criminal Appeals has ruled in conflict with the decisions

of the United States Supreme Court and the Sixth

Amendment of the United States Constitution.

The factual predicate for this assertion is that the

Petitioners were charged with burglary, and they sought

to submit testimony of a security guard who overheard

the lawful lessee of the premises invite the Petitioners

onto the premises. The Petitioners were also charged

with assault, and they sought to submit the testimony of a

security guard who heard a drug pusher shout ‘‘He’s got

a gun’’ right before the altercation began. Both offers of

proof were rejected by the Trial Court; and the Trial

Court’s decision was affirmed by the Tennessee Court of

Criminal Appeals and the Tennessee Supreme Court.

Petitioners would show that the exclusion of the

testimony was contrary to well-established principles of

Tennessee law governing hearsay. In fact, the Tennessee

Court of Criminal Appeals ruled that the evidence was

wrongfully excluded. The Court of Criminal Appeals

correctly noted that the hearsay proposition is governed

in Tennessee by the case of Bennett v. State, 530 S.W.2d

788 (Tenn. Cr. App., 1975), which states as follows:

Since a mere instruction or a request or order by

one person to another to do something obviously is

not a statement to fact, testimony by a witness that

he heard the instruction or request or order cannot

without more be heresay. It depends in no way on

the ceracity or credibility of the outpot-court

declarant; it merely relates to the fact that the

other person made the statement, and makes no

assertion with reference to its truth and is not

offered for that purpose. (530 S.W.2d 793)

The Court of Criminal Appeals also acknowledged

that the words ‘‘He’s got a gun’’ should not have been

excluded, but should have been admitted into evidence

as part of the res gestae, citing Ellison v. State, 549

S.W.2d 691 (Tenn. Cr. App., 1976). Therefore, the law of

the case is that evidence was wrongfully excluded in this

cause.

Petitioners would show that it is a denial of due

process of law under the Fourteenth Amendment for a

state to deny a defendant the benefit of established

procedures under state law, where the denial is

fundamentally unfair. As authority for this proposition

see Hill v. United States, 368 U.S. 424, 82nd S.Ct. 468

(1962), and Klimas v. Mabry, 599 F.2d 842 (8th Cir.,

1979). The denial of the submission of the testimony in

this case is fundamentally unfair because it prevented

the defendants in this case from submitting their

witnesses to the jury under the Sixth Amendment.

It is well-established hearsay law in Tennessee and

across the land that certain out-of-court declarations are

not excluded as hearsay. McCormick on Evidence gives

the following treatment of this proposition:

249. Out-of-Court Utterances Which Are Not Hearsay

The hearsay rule forbids evidence of out-of-court

assertions to prove the facts asserted in them.

Manifestly, proof of utterances and writings may be

made with an almost infinite variety of other

purposes, not resting for their value upon the verav ity

of the out-of-court declarant and hence falling outside

the hearsay classification. (McCormick, Ch. 24, Sec.

294).

Professor McCormick goes on to ser out examples

such as verbal acts, words of instruction, and excited

utterances, all of which were acknowledged by the

Tennessee Court of Criminal Appeals.

The United States Courts of Appeals have generally

acknowledged that there are certain cases in which the

hearsay rule is inapplicable. In the case of Safeway

Stores, Inc., v. Combs, 273 F.2d 295 (Sth Cir., 1960), the

Court ruled that the hearsay rule was inapplicable to an

utterance proved as an operative fact. (273 F.2d 296) In

the Safeway Stores case, the Court ruled that words of

warning should not be excluded as hearsay.

The Supreme Court ruled in the case of Washington

v. Texas, 388 U.S. 14, 87 S.Ct. 1920 (1967), that the

right to offer witnesses is fundamental:

The right to offer the testimony of witnesses, and to

compel their attendance, if necessary, is in plain

terms the right to present a defense, the right to

present the defendant’s version of the facts of well as

the prosecution’s to the jury so that it may decide

where the truth lies. Just as an accused has the right

to confront the prosecution of chalienging their

testimony, he has a right to present his own witnesses

to establish a defense. This right is a fundamental

element of due process of law. (87th S.Ct. 1923)

The Supreme Court has also ruled that the application

of state hearsay rules can violate fundamental due

process of law, in the case of Chambers v. Mississippi,

410 U.S. 284, 93 S.Ct. 1038 (1973). in Chambers the

Court acknowledged that ‘‘a number of exceptions have

been developed over the yaers to allow the admission of

hearsay statements...’’ (93rd S.Ct. 1047) In the

Chambers case, the State of Mississippi did not

recognize declarations against penal interest to be an

exception to the hearsay rule. The defendant in that case

sought to offer hearsay testimony that another had

confessed to the crime of which he was charged. The

Supreme Court found that the application of the hearsay

rule violated fundamental fairness:

Few rights are more fundamental than that of an

accused to present witnesses in his own defense.

(Citations omitted) In the exercise of this right, the

accused, as is required of the state, must comply with

established rules of procedure in evidence designed

to assure both fairness and reliability in the

ascertainment of guilt and innocence. Although perhaps

no rule of evidence has been more respected or more

frequently applied in jury trial than that applicable to

the exclusion of hearsay, exceptions tailored to allow

the introduction of evidence which in fact is likely to

be trustworthy have long existed. The testimony

rejected by the trial court here bore persuasive

assurances of trustworthiness and thus was well

within the basic rationale of the exception for

declarations against interes That testimony was also

critical to Chambers’ defense. In these circumstan-

ces, where constitutional rights directly affecting the

ascertainment of guilt are implicated, the hearsay

rule may not be applied mechanistically to defeat the

ends of justice.

We conclude that the exclusion of this critical

evidence, coupled with the state’s refusal to permit

Chambers to cross-examine McDonald, denied him a

trial in accord with traditional and fundamental

standards of due process. (93rd S.Ct. 1049)

In the case of Green v. Georgia, 99 S.Ct. 2150

(1979), the Supreme Court had the following factual

situation. The defendant sought to introduce the

testimony of a fellow inmate in a jail. The fellow inmate

would testify that a third party confessed to having

committed the murder, with which the defendant was

charged. The hearsay testimony of the confession was

excluded under Georgia law. The Supreme Court ruled as

follows:

Regardless of whether the offered testimony comes

within Georgia’s hearsay rule, under the facts of this

case its exclusion constituted a violation of the due

process clause of the Fourteenth Amendment. The

excluded testimony was highly relevant to a critical

issue in the punishment phase of the trial...

(Citations omitted), and substantial reasons existed

to assume its reliability. (99th S.Ct. 2151)

Therefore, Petitioners would show that they were

denied the right to present witnesses in their own behalf

under the Sixth Amendment to the United States

Constitution, and ther were denied due process of law

under the Fourteenth Amendment to the United States

Constitution. Petitioners were denied the benefit of law

of Tennessee in a Tennessee criminal proceeding.

Petitioners would, therefore, again call the Court’s

attention to the case of Eberhardt v. Bordenkircher, 605

F.2d 275 (6th Cir., 1979), where the Sixth Circuit stated

‘‘harm is presumed to have flowed from constitutional

error.’’ Petitioners assert that they had a right to jury

trial where the jury heard all of t..e evidence.

4. PETITIONERS WERE DENIED THE RIGHT TO

CONFRONTATION OF WITNESSES WHERE THE

TRIAL COURT ALLOWED INTO EVIDENCE AT TRIAL

THE HEARSAY CONTENTS OF A SEARCH WATTANT

AFFDAVIT.

Petitioners would show that the Tennessee Supreme

Court, in denying appeal from a decision of the

Tenmessee Court of Criminal Appeals, has decided the

Petitioners’ case in conflict with the confrontation clause

of the Sixth Amendment of the United States

Constitution, because the Tennessee Courts allowed the

jury to be read the hearsay contents of a search warrant

affidavit. The Sixth Amendment clearly grants the

accused the right ‘...to be confronted with the

witnesses against him...''; and the submission of

affidavit testimony denies confrontation and cross-exam-

ination.

Hearsay is defined in McCormick's Law of Evidence

as follows:

Hearsay evidence is testimony in court or written

evidence of a statement made out of court, such

statements being offered as an assertion to show the -

truth of the matters asserted therein, and thus resting

for its value upon the credibility of the out-of-court

assertor. (McCormick, Ch. 24, Sec. 225)

The McCormick definition has been adopted by the

Tennessee Court of Criminal Appeals in the case of

Bennett v. State, 530 S.W.2d 788 (Tenn. Cr. App., 1975).

The Supreme Courts of several states have ruled that

affidavits or depositions cannot be used in a criminal

prosecution. See State v. Hooks, 446 P.2d 770 (Kan.,

1968). The Tennessee Supreme Court has also ruled that

the state could not introduce into evidence the test results

of experts in a drug prosecution, in the case of State v.

Henderson, 5548.W.2d117 (Tenn., 1977).

The Supreme Court has discussed the application of

the hearsay rule to criminal prosecution in the recent case

of Ohio v. Roberts, 48 U.S.L.W. 4874 (June 25, 1980).

The general principle was set out by the Supreme Court

as follows:

In sum, when a hearsay declarant is not present for

cross-examination at trial, the confrontation clause

normally requires a showing that he is unavailable.

Even then, his statement is admissible only if it

bears adequate ‘‘indicia of reliability.’’ reliability can

be inferred without more in a case where the evidence

falls within a firmly-rooted hearsay exception. In

other cases, the evidence must be excluded, at least

absent a showing of particularized quarantees of

trustworthiness.

The Supreme Court went on to state that since the

offered hearsay bore the ‘‘indicia of trustworthiness”’

and the declarant was unavailable, there was not consti-

tutional error. Petitioners would point out that in this

case the hearsay declarants were in fact available within

the constitutional sense in their case.

Therefore, Petitioners would show that they were

denied the right to confrontation by the submission of the

hearsay affidavit in the search warrant. The jury should

nave heard only the testimony of the witness, and the

testimony of the witness should not have been bolstered

by the submission of a plainly hearsay document.

CONCLUSION AND PRAYER

Petitioners respectfully request the Supreme Court,

for all of the reasons set out above, to grant the writ of

certiorari, to reverse the decision of the Tennessee

Supreme Court and the Tennessee Court of Criminal

Appeals below, because the decision of the Tennessee

Courts is in conflict with the Fourth, Fifth, Sixth and

Fourteenth Amendments to the United States Constitu-

tion, the decisions of the Supreme Court, the decisions of

the United States Courts of Appeals, and decisions of the

Supreme Courts of other states.

Respectfully submitted,

{eect Sie

—

RUSSELL X THOMPSON

Attorney for Petitioners

1655 Poplar Avenue

Memphis, Tennessee 38104

Telephone: (901) 722-8828

‘e

XI.

CERTIFICATE OF SERVICE ON COUNSEL

I, Russell X Thompson, Attorney for Petitioners,

hereby certify, pursuant to Rule 28.3 of the Rules of the

Supreme Court, that I have mailed three copies of the

foregoing Petition for Writ of Certiorari to the Supreme

Court of the State of Tennessee to Mr. William M. Leech,

Jr., Attorney General of the State of Tennessee, and to

Mr. Charles L. Lewis, Assistant Attorney General, 450

James Robertson Parkway, Nashville, Tennessee, on this

—___ day of September, 1980.

RUSSELL X THOMPSON

APPENDIX ‘‘A”’

\T JACKSON

MARCH 1980

STATE OF TENNESSE NO. 48, Shelby Criminal

Appellee

Vs. Honorable John P. Colton, Sr.,

Judge

J.M. RUSSELL and

EUGENE LEAKE, (Assault and Battery; Burglary;

Appellanta Aggravated Assault)

FOR THE APPELLANTS:

FOR THE APPELLEES:

Russell X. Thompson

1655 Poplar Ave. William M. Leech, Jr.

Memphis, Tenn. 38104 Attorney General

Nashville, Tenn.

Jack F. Nelson

236 Adams Ave. Charles L. Lewis

Memphis, Tenn. 38103 Assistant Attorney General

Nashville, Tenn.

Joseph L. Patterson

Deputy Administrator

157 Poplar Ave.

Memphis, Tenn.

Henry P. Williams

Assistant District Attorney

157 Poplar Ave.

Memphis, Tenn.

AFFIRMED

LLOYD TATUM, Judge

OPINION RELEASED: MAY 15, 1980

OPINION

The defendants were convicted of first degree

burglary, aggravated assault upon Larry Butler, assault

and battery upon Mike Davis, and assault and battery

upon Emily Woods. They were each sentenced to serve a

penitentiary sentence of ten years in the burglary case,

two years in the aggravated assault case, and, they were

fined $50.00 in each of the assault and battery case. Both

defendants were acquitted of armed robbery. The

penitentiary sentences were ordered to be served

concurrently.

On this appeal, the appellants’ several issues for

review attack generally the following: (a) insufficient

evidence to support the verdicts, (b) prosecutorial

misconduct in several respects, and (c) the rulings of the

court on the admission and exclusion of certain evidence.

We find no reversible error and affirm the convictions.

A summary of the evens of this case is essential to

establishing the proper perspective of the issues before

this court. The defendants were both police officers of the

City of Memphis. The offense occurred from 5:00 to 6:00

A.M. on the morning of September 26, 1978, in an

apartment located in the town of Germantown. The

apartment was rented to John Bass and wife, Annette

Bass. John Bass had quit his job at a Holiday Inn in

Helena, Arkansas. A few days before this incident, John

and Annette Bass had gone to Helena, Arkansas but had

left many of their belongings in the Germantown

apartment. John Bass had arranged to sub-lease the

apartment ot Larry Butler and his girlfriend, Emily

Wood. Approximately four days prior to this incident,

Mike Davis, a friend of Butler’s, moved the apartment.

Butler, Woods and Davis supported themselves by

selling marijuana, and all three were addicted to

dilaudid.

The victims - Butler, Wood, and Davis - all testified

that at approximately 5:00 A.M. on September 26, the

two defendants, dressed in Memphis Police Department

uniforms, broke into the apartment and demanded to

know where fourteen pounds of marijuana was kept.

Butler received lacerations of the head and a broken rib

because he was beaten with a gun and kicked in the ribs.

Wood and Davis were also threatened and beaten. The

victims had previously possessed fourteen pounds of

marijuana but had sold it a day or two before this

incident. The marijuana, it is alleged, belonged to

Butler. Only the three victims and the defendants were

present in the apartment during this incident.

About 6:00 A.M., a Shelby County Deputy Sheriff

knocked on the door in an attempt to serve a detainer

warrant on John Bass, and the defendants left, taking

$300.00 from Butler’s waller and a quantity of cocaine

and dilaudid. The proceeds of prvious drug sales

($11,000.00), which had been hidden in a recliner chair in

the living room, were not discovered by the defendants.

The defendants left a police walkie-talkie in the master

bedroom closet where defendant Russell had been

searching for the marijuana.

Immediately after the defendants left, Emily Woods’

father telephoned and talked with her. She was

screaming that something ‘‘bad had happened. "’ Being

apprehensive and not knowing his daughter’s address,

he telephoned the police and gave them the telephone

number.

Shortly after the defendants left, the Deputy Sheriff

with the detainer warrant again knocked on the door, and

Butler told him what had happened. Being afraid that the

defendants would return for the radio, the victims left the

apartment, took the police walkie-talkie, and went to

Butler’s sister’s home.

The victims had left the $11,000.00 in the apartment

and telephoned to determine if anyone was at the

apartment. One of the Germantown policemen then

present at the apartment answered the phone. At his

request, the victims returned to the apartment and told

the policeman about the robbery. The Germantown

police officers found the apartment ransacked, with

clothing and linens emptied out of closets and drawers.

These officers also observed blood on the bedroom walls

where the victims testified that the defendants had

forced them to stand during the search for the marijuana.

Subsequently, the investigating police officers took

possession of the $11,000.00

Joe Goldberg, a newspaper carrier, testified that he

delivered the Commercial Appeal newspaper in this area

every morning usually between 4:45 and 5:30 A.M.

When he first arrived on this particular day, he observed

a police car and ‘‘a tall, slender, black officer.’’ A few

minutes later, he observed that the black policeman was

accompanied by a white policeman and they were

attempting to forcibly enter the back door of the

aprtment.

Shelby County Deputy Sheriff Bill Murry testified

that at 6:00 A.M., he knocked on the apartment door to

serve the detainer warrant. Although he could see

shadows of people moving about upstairs and could hear

loud angry voices, no one answered the door. The deputy

kicked the door three or four times and started to walk

away when a black Memphis Police Officer came out the

door and said, ‘‘We got a narco bust here.’’ As the

deputy followed the policeman across the parking lot, the

policeman turned and said, ‘‘Wait here at your car, and

we ll get them and bring them back to you, and you can

serve them.’’ The deputy waited and observed a

Memphis Police car back out of a concealed location;

thereafter, a second Memphis uniformed police officer,

who came from the back of the apartment, departed with

the driver of the police car.

Deputy Murry, still attempting to serve his detainer

warrant, returned to the apartment and observed a

partly-dressed white man with a bleeding head, who told

the deputy that he had been beaten by a police officer.

The deputy served the detainer warrant on him and left.

Murry identified the defendant, Leake, as the black

officer he had seen coming out of the apartment.

Defendant Russell’s notebook, found later, contained

a paper bearing the name and address of Emily Wood.

The defendants’ evidence is comprised mostly of

their own testimony and that of Michael Wayne Pope.

Pope at the time of this incident, was a security office at

the Holiday Inn in Mephis where Bass had previously

been eployed. These witnesses testified that the two

defendants were working together on the night of

September 25-26 and that the defendants spent much of

this night drinking and talking at the Holiday Inn where

Pope was employed. Whil Pope did not drink, he

furnished free drinks to the police officers. At about 4:30

A.M. on September 26, the defendants and Pope got in

the squad car in order to go for a sandwich, and Pope

concealed himself in the back seat. Before they left, John

Bass camto the car and invited thento the apartent in

Germantown to drink and to obtain defendants’ advice

concerning a charge against Bass’ wife for forging a drug

prescription. Bass went in his car, and the other three

men followed in the Memphis Police car. Bass had a key

to the apartment, and all four men entered together.

Emily .Wood joined them in the apartment; and, after

some conversation, Bass went upstairs to get some of his

belongings left in the house. Those remaining downstairs

heard a comotion upstairs, and Emily Wood went

upstairs. Shortly thereafter, they heard Emily Wood

scream, then Pope and both of the officers ran hurriedly

up the steps. The officers and Pope observed Bass in a

bedroom on his knees, and Butler was standing nearby

with a pistol. Officer Leake knocked Butler down by

striking him twice and caused him to drop the pistol.

Leake then kicked the pistol away and threw Butler

against the wall. Russell put Davis against the wall and

instructed Pope to get their drinking cups, radio, and

whiskey, because it was urgent for them to leave

immediately. Pope, Bass, and Russell went out the back

door. Russell and Pope got in the squad car, and Pope

again concealed himself. They then picked up Leake, who

had come out of the front door, and drove off. The

defendants were afraid of being seen outside the

Memphis City Limits, and they did not want Pope to be

seen in the squad car because of police regulations.

The defendants soon learned that they did not have

the walkie-talkie; and alter searching elsewhere for it,

they returned to the apartment and found no one there. In

an effort to find their walkie-talkie, the defendants

‘‘Moved stuff around’ in the apartment but did not

locate it. The defendants reported to the Police

Department that their walkie-talkie had been left in an

automobile investigated earlier. Pope made a false entry

on his security report at the Holiday Inn that he was in the

parking area between 4:00 A.M. and 6:00 A.M.

The night auditor at the Holiday Inn where Pope

worked testified that she saw Pope leaving with the

defendants in the patrol car about 4:00 A.M. She also

testified that she saw John Bass talking with the

defendants at this time. There was evidence that Bass

and his wife had checked into another Holiday Inn on

September 25 and checked out at 3:51 A.M. None of the

State’s witnesses saw either Pope or Bass at or near the

apartment.

While we have not burdened this opinion by detailing

all of the evidence contained in this 1,162 page transcript,

we find it sufficient to support the verdicts. It is the

function of the jury to determine the credibility of

witnesses and the weight to be given their testimony.

Braziel v. State, 529 §.W.2d 501, 50S (Tenn. Cr. App.

1975). We cannot disturb a judgment of conviction based

upon a jury verdict unless, after examing the record, we

find the evidence insufficient to support a finding of a

rational jury of guilt beyond a reasonable doubt.

Tennessee Rules of Appellate Procedure 13(e); Jackson

v. Virginia, U.S. »99 S.Ct. 2781 (1979).

We find that the evidence meets this standard and

overrule this issue.

In the next issue. the defendants assert that the State

suppressed material evidence favorable to them in three

particulars: (a) the prosecutor did not disclose that

Butler, Wood, and Davis were granted immunity from

prosecution for drug offenses; (b) the prosectution did

not disclose recovery of six thousand units of LSD found

at the residence of Butler, Davis, and Wood; and (c) the

prosecution failed to disclose that the sum of $11,000.00

had been or would be returned to Larr Butler. We will

discuss these propositions separately, in the respective

order presented.

Regarding the defendants’ first particular, Butler

testified that the Assistant District Attorney told him that

he would be prosecuted for the sale of drugs if the State

could obtain proof, other than the confession, to support

a conviction. He also testified as to his lawyer’s

assurance that he would not be prosecuted. Emily Wood

testified that she did not know whether she would be

prosecuted but that she had been told that she could not

be prosecuted solely on the evidence of her own

confession. Davis testified that he had not been given

immunity but had been advised that he could not be

indicted upon his admission to have sold marijuana

without any corroborative proof.!: The evidence was

conclusive that these three witnesses had not been

indicted on February 26, 1979, the time of the beginning

of the trial, which was approximately five months after

the facts were known to the police authorities.

The record bears no evidence that the State had

bound itself to these witnesses not to prosecute them.

However, it is apparent from these witnesses’ testimony

that as a result of the advice they had received that they

lLWe glean from the testimony of these three witnesses, that they

had beedn advised, in substance, that the corpus delicti cannot be

solely established by a defendant's uncorroborated confession. See

Hodges v. State, 491 S.W.2d 624 (Tenn.Cr.App. 1972); Ashby v.

State, 124 Tenn. 684, 139 S.W.2d 872 (1911).

did not expect to be prosecuted and that no prosecution

had been commenced against them. Based on the

evidence presented, we do not find that they testified

falsely or that the State had suppressed a secret agreeant

with these witnesses or had concealed any false evidence

given by any of them.

In reference to the second particular, the defendants

insist that they were denied constitutional due process

because the prosecution suppressed evidence that the

Germantown Police Department recovered a bottle

containing six thousand units of LSD in the Germantown

apartment. This evidence was elicited to support the

defense theory that the victims were also motivated in

testifying because of an agreement with the State that

they would not be prosecuted for possessing this drug.

Again, there is no evidence of any such agreement not

disclosed to the jury; the Germantown Police Depart-

ment, according to the record, could not establish who

possessed these drugs, i.e., one or more victims or Bass

and wife. In any event, this evidence was not suppressed;

the fact that these pills were found was fully disclosed to

the jury by State witnesses.

The defendants further insist that the State did not

disclose the existence of the LSD in response to a

discovery motion filed by them pursuant to Rule 16,

Tennessee Rules of Criminal Procedure. The record

reflects that the Assistant District Attorney insisted that

defense counsel was advised of the existence of these

drugs, but one of the two attorneys representing the

defendants stated that he was not informed of the drug’s

existence prior to trial. No explicit record is before us

indicating what was shown to defense counsel pursuant

to the Rule 16 motion. Benton v. Anderson, 571 S.W.2d

145 (Tenn. 1978); Murray Ohio Manufacturing Comonay

v. Vines, 498 S.W.2d 897 (Tenn. 1973). However, the

cross-examination conducted by defense counsel indi-

cates that he had learned from some source the facts

surrounding the finding of the pills.

Further, the defendants did not request any of the

remedies provided by Rule 16(d), (2) for failure to

comply with the rule. The pills were made an exhibit to

the witness’s testimony, and no other remedial relief was

suggested. The record does not show error with regard to

the admission of the LSD pills, and no action was taken

with regard to this evidence pursuant to Rule 36(a),

Tennessee Rules of Appellate Procedure.

As above stated, the defendants also contend that

there was a violation of constitutional due process

because the State did not disclose that the $11,000.00

recovered by Germantown Police was returned to the

State’s witness, Larry Butler. Admittedly, this money

was the proceeds of the sale of marijuana.

Butler testified that $2,000.00 of this money was

returned to him by the State prior to trial for living

expenses. With respect to the remaining $9,000.00

Butler testified:

“‘Q. Did anyone tell you that if these officers, police

officers, got convicted that you would get your eleven

thousand dollars back?

A. Notinso many words.

Q. But that’s what you’re hoping to get back, isn’t it

Mr. Butler?

A. I'dlike to.

Q. Yes, sir. And isn’t it true that your purpose of

testifying is to see that a conviction comes down on

these officers? Isn’t that true?

A. I'd like justice done.

Q. And you’ve got eleven thousand dollars hanging

up there, don’t you, Mr. Butler?

A. Yes, sir, I guess you'd say that.

Q. All right. And they told you that they'd give you

your eleven thousand back, didn’t they?

No sir, they didn’t.

No one has told you that?

Well, a couple of people said I should get it back.

And that’s why you’re up there testifying, isn’t it?

Pn Pe ee

Part of the reason.’’

After the defendants were convicted, Butler, through

counsel, filed a petition alleging ownership of the

remaining $9,000.00 and praying that his money be

returned to him after an evidentiary hearing, the trail

court found that Butler was entitled to the money and

ordered it returned to him.

Again, we found no suppression of this evidence by

the State. The defendants sought to impeach Butler’s

testimony by showing that $2,000.00 had already been

returned to him and that Butler fully expected the return

of the remaining $9,000.00 The testimony above-quoted

could leave no doubt in the juror’s mind that Butler

expected the money to be returned to him. Anything that

actually occurred with respect to the money after Butler

testified would not alter Butler’s state of mind at the time

he gave his testimony; that is, he expected to receive the

money after testifying. It was the function of the jury to

weigh Butler’s testimony, along with all of the other

evidence in the case, in the light of Butlers admission that

at least part of his motivation for testifying was his

expectation to receive the money.

In support of their contentions that the State

suppressed the several items of evidence discussed

above, the defendants cite Brady v. Maryland, 83rd S.Ct.

1194 (1963); Giglio v. United States, 92nd S.Ct. 763

(1972); United States v. Agurs, 96th S.Ct. 2392 (1976);

Demarco v. United States, 94th S.Ct. 1185 (1974); Napue

v. Illinois, 360 U.S. 264 (1959). We have no quarrel with

the holdings in these cases, but they are not applicable

here. In each of the foregoing Federal cases, material and

exculpatory evidence was not disclosed before or during

trial but was discovered after trial. In the present case,

the evidence was not suppressed or undisclosed; on the

contrary, the evidence was developed at trial in the

presence of the court and jury.

In the defendants’ fourth issue, they complain that

the State failed to provide accurate addresses for its

witnesses, Butler, Wood and Davis, and that the State

failed to disclosed an accurate address for John Bass until

six days before the trial. The defendants had filed a

pre-trial motion requesting, among other things, names

and addresses if witnesses which would tend to exculpate

the degendants.

With respect to the wirnesses - Butler, Wood, and

Davis - it is obvious from the record that their evidence

did not tend to exculpate or in anywise benefit either

defendant. The State had complied with T.C.A.

§§40-1708, 40-2407 by endorsing the name of these

witneses on the indictment. The defendants did not

object to the testimony of the witnesses on this ground or

take any other action to prevent or nullify any effect of the

failure of the State to furnish this information. Rule 36(a),

Tennessee Rules of Appellate Procedure. furthermore,

there is nothing in the record to indicate when the state

became aware of the new addresses of these witnesses or

whether the State gave the addresses of these witnesses

to the defendants.

As to John Bass, the defendants do not attempt to

show that his testimony would have benefited them in

any respect although he gave a statement to the

Germantown Police Department the day after this crime

was committed. His name was not endorsed on the

indictment, but he was not a witness for the State.

Moreover, the record does not support the

2 Actually, the record does not indicate whether any of this

evidence was furnished to the defense prior to trial. In any event the

jury was made aware of it at trail.

defendants’ insistence that the State did not furnish

Bass’s address promptly. At some time between the

commission of this crime and February 15, 1979, Bass

and his wife moved to Baton Rouge, Louisiana; the

Memphis Police Department was seeking Mrs. Bass to

serve a warrant for drug violation. The record does not

show when the State determined that Mr. and Mrs. Bass

moved to Baton Rouge, Louisiana, but on February 15,

1979, a Memphis Police Officer made a trip to Baton

Rouge and talked with Mrs. Bass’s attorney in the

presence of Mr. Bass. On February 21, 1979, the

defendants’ attorney told the defendants that it was

urgent for them to go to Baton Rouge to talk to Bass. On

February 23, 1979, the defendants and counsel went to

Baton Rouge and talked to Mr. Bass’s attorney, but they

were unsuccessful in their attempt to induce Bass to

return to Memphis for trial. The record does not reflect

when the State informed defendants’ attorney of Bass’s

whereabouts.3 Further, there is no indication in the

record that the State was aware the defendants desired

Bass as a witness or that the State was aware that the

defendants did not have Bass’s current address. A

prosecutor owes no duty to a defendant to provide

defense counsel with unlimited discovery of everything

known by the prosecutor or contained in his file. United

States v. Agurs, 96th S.Ct. 2392 (1976).

Furthermore, although the defendants complain of

haveing insufficient time to compel the trial attendance

of Bass, they made no motion for a continuance or took

any action to prevent prejudice as required by Rule 36(a),

3. Atone point, the defendant, Russell, testified that his attorney

told him of Bass’s whereabouts one week before the defendants made

the trip to Baton Rouge, which would have been February 16 or the

day after a representative of the Memphis Police Department went to

Baton Rouge. At another point, this witness testified that they went

to Baton Rouge two days after their attorney learned that Bass was in

Baton Rouge. Thus, the testimony on this point is conflicting

hearsay. r

Tennessee Rules of Appellate Procedure. For the

serveral reasons stated, this issue must be resolved in

favor of the State.

The defendants next complain that the trial court

erred in admitting search warrants and affidavits the eon

that authorize the search of the defendants’ residences.

The record reflects that the State did not offer the search

warrants and affidavits for exhibition to the jury but

merely to make these documents a part of the record. this

was not error. State v. Davis, 204 Tenn. 553, 322 S.W.2d

232 (1959). Since these documents were not exhibited to

the jury, this issue is overruled.

The defendants next insist that their Fifth Amend-

ment rights were violated when the trial court permitted

the Assistant District Attorney to cross-examine them

with respect to their pre-trial silence. Defense counsel

objected when the State asked Russell whether a certain

police officer gave him an opportunity to tell his ‘‘side of

the story.’’ Before the court could rule on the objection,

Russell asked the trial court to permit him to answer the

question; and defense counsel then informed the court,

‘‘We withdraw our objection. He wants to answer.’

Thus, both Russell and his attorney waived Russell’s

Fifth Amendment rights. When the Assistant Attorney

General asked Leake a similar question on cross-examin-

ation, the trial court sustained his objection. We find no

error here.

The defendants next complain of the trial judge’s

action in excluding as hearsay portions of the testimony

of defense witness, Michael Pope. The trial judge did not

permit the witness to relate that the witness and the

defendants were invited to John Bass’s apartment by

Bass and that Bass represented that the apartment was

his. The defendants further aver that the court sustained

an objection to testimony of a statement made by Emily

Wood after she followed Bass upstairs. The defendants

assert that the testimony would establish the motivation

for the defendants to go upstairs. We note that in many

other instances whil defense counsel was examing this

witness, counsel instructed the witness to refrain from

relating oral pronouncements; in other words, much of

the conversational evidence surrounding the circumstan-

ces of this event was not offered in evidence.

We concur with the defendants that the learned trial

judge erroneously excluded some of Bass’s testimony as

being hearsay. Hearsay evidence is testimony during

trial of a written or oral statement made out of court when

the statement is offered to show the truth of the matters

asserted therin; thus its value is dependent upon the

credibility of the out-of-court declarant. Bennett v. State,

530 S.W.2d 788 (tenn. Cr. App. 1975)>

In Bennett v. State, 530 S.W.2d 788, 793 (Tenn. Cr.

App. 1975), this court held;

‘Since a mere instruction or request or order by one

person to another to do something obviously is not a

statement of fact, testimony by a witness that heard

the instruction or request or order cannot withour

more be hearsay. It depends in no way on the veracity

or credibility of the out-of-court declarant; it merely

relates the fact that the other person made the

statement, and makes no assertion with reference to

its truth and is not offered for that purpose. Upon the

same familiar principle, no hearsay rule is involved in

admitting a newspaper in evidence to prove only that

a certain article or advertisement appeared therein. "'

The oral utterance of Bass inviting the defendants to

his apartment does not come within the hearsay

exclusion. Rather, it is an oral act which was not an

assertion of fact. No credibility of Bass was involved in

any sense; his invitation was a fact in and of itself and,

therefore, is admissable as have a bearing on whether the

defendants forcibly entered the apartment. also see

Richter v. State, 438 S.W.2d 362, 365 (Tenn. Cr. App.

1968); Dillard v. State, 528 S.W.2d.207 (Tenn. Cr. App.

1975).

While we hold the exclusion of the evidence that Bass

invited the defendants and Pope to this apartment was

error, we are satisfied that this did not affect the result of '

the trial. Pope was permitted to testify that Bass led them

to his apartment because he wanted to talk with the

defendants about his wife’s legal problems and to drink

whiskey. Bass stopped at a store on the way to the

apartment and purchased soft drinks to mix with the

whiskey. The witness testified that Bass pointed to the

door of the apartment and that all four of them entered it

together with Bass who was carrying a bottle of whiskey.

Pope testified repeatedly that this was Bass’s apartment

and that Bass had invited them to the apartment. The

defendants themselves were permitted to relate the

express words of Bass. We are quite satisfied that all of

the facts were presented to the jury by Pope although the

converation was not related verbatim.

The trial judge would not permit testimony from Pope

to the effect that Russell said upon entering the upstairs

bedroom, ‘‘He's got a gun.'' This declaration was

sustantially contemporaneous with the main fact at a

time so near as to preclude the idea of deliveration and

fabrication; it was part of the res gestae and should have

been admitted. Garrison v. State, 40 S.W.2d 1009, 1011

(Tenn. 1931); Ellison v. State, 549 S.W.2d 691 (Tenn. Cr.

App. 1976). However, we are fully satisfied that this error

did not affect the results of the trial. Both defendants

testified that he made the utterance. The fact that the

utterance was made is of only nominal consequence, if

any.

We can only discern from the record that after having

gone upstairs, Ms Wood screamed, but made no

assertion, and the scream motivated the defendants and

Pope to follow her. Pope testified that after Wood went

upstairs, he heard ‘‘A female [Wood] make a loud

noise. "When asked to describe the noise, Pope testified,

‘It was like a scream. '’ Pope was permitted to testify that

Wood screamed. We find no error here.

While we think that the error excluding the previously

mentioned evidence as hearsay was mere trial error and

not constitutional error requiring the ‘‘the harmless-be-

yond a reasonable-doubt''rule as mandated by Chapman

v. California 87th S.Ct. 824; 386 U.S. 18 (1967), we can

say that we are convinced beyond a reasonable doubt that

these errors did not affect the results of the trial.

Therefore, the judgements below must be affirmed.

LLOYD TATUM, JUDGE

CONCUR:

MARK A. WALKER, Presiding Judge

JOHN K. BYERS, Judge

APPENDIX B

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE,

Plaintiff-A ppellee,

Vv. Shelby Criminal No. 48

J.M. RUSSELL and

EUGENE LEAKE,

Defendants-Appellants.

ORDER

Upon consideration of the application for permission

to appeal filed by the appelants and the answer of the

Appellants and the answer of the Appellee, the briefs of

counsel and the entire record, the Court is of the opinion

that the application should be denied.

Costs will be borne by the Appellants.

PER CURIAM

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