Opposition — Missouri v. Crews

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APR 20 1981 ©

IN THE OrriCE OF THE CLERK

SUPREME COURT, U.S.

UNITED STATES SUPREME COURT $

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STATE OF MISSOURI

Petitioner

Vv. No. 80-1393

TERRY GENE CREWS, et al.

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Respondents |

APPLICATION FOR LEAVE TO PROCEED AS A POOR PERSON

Comes now Mary K. Wefelmeyer, on behalf of Respondent, Terry

Gene Crews, and informs the Court that the Respondent was found to

be an indigent at the time he was arraigned on the charges which

lead to the conviction which is the subject of the Petition for Writ

of Certiorari. The trial covrt granted him leave to appeal as a

poor person in the Missouri courts. He does not have the funds or

the financial resources to secure the cost or pay the fees and

expenses associated with this petition.

WHEREFORE, he respectfully prays that the Court grant him leave

to proceed as a poor person.

Respectfully submitted,

MARY K. WEFELMEYER

Attorney for Respondent

Subscribed and sworn to before me this _/7 day

of A) Ont , 1981.

Notary Public

My commission expires: 9/27/¢/

AFFIDAVIT OF SERVICE

STATE OF MISSOURI

Petitioner

TERRY GENE CREWS, et al.

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Respondents

Mary K. Wefelmeyer, Assistant Public Defender, upon oath states

that on April 17, 1981, she served copies of the Suggestions in

Opposition to Petition for Certiorari in the above-entitled cause to

the Attorney General's Office, State of Missouri, Supreme Court

Building, Jefferson City, Mo. 65102, Respondent.

That service to the Attorney General's Office was made by

mailing three copies, postage prepaid, to the above address.

That a copy was served upon the Clerk of the Supreme Court of

the United States, United States Courthouse, Washington, D.C. 20543.

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MARY kK. FE ER Z

Attorney-at-Law

Missouri Bar No. 27345

Public Defender's Office

Municipal Courts Building

1320 Market St.

St. Louis, Mo. 63103

Subscribed and sworn to before me this_/7 day

of A Pike , 1981.

Onstana Chee sTion

Notary Public

My commission expires: G [aale

IN THE

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1981

NO. 80-1393

STATE OF MISSOURI

Petitioner

Vv.

TERRY GENE CREWS

Respondent

SUGGESTIONS IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Mary K. Wefelmeyer

Attorney-at-Law

Missouri Bar No. 27345

Public Defender's Office

Municipal Courts Building

1320 Market St.

St. Louis, Mo. 63103

INDEX

(, fable of Authorities | : ;

Brief in Opposition to Granting

Petition for Writ of Certiorari 2

Questions Presented 2

Reason for Denying the Writ 3

Conclusion 9

Appendix

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TABLE OF AUTHORITIES

Albernaz v. United States, No. 79-1709 (March 9, 1981),

Brintley v. Michigan, 444 U.S. 948 (1979).

Brown Shoe Co. v. United States, 370 U.S. 294 (1962).

Coleman v. Alabama, 399 U.S. 1 (1970).

Eastlake v. Forrest City Enterprises, Inc., 426 U.S. 668 (1976).

Furness, Withy & Co. v. Yang-Tsze Ins. Assn., 242 U.S. 430 (1917).

Garner v. Louisiana, 368 U.S. 157 (1961).

Green v. Elbert, 137 U.S. 615 (1891).

Jankovich v. Indiana Toll Road Co., 379 U.S. 487 (1965).

Mandel v. Bradley, 432 U.S. 173 (1977).

Memorial Hospital v. Maricopa County, 415 U.S. 250 (1973°.

O'Brien v. Skinner, 414 U.S. 524 (1973).

Sours v. State, 593 S.W. 2d 208 (Mo. en banc 1980); vacated and

remanded, 445 U.S. » 64 L.Ed. 2d 820, affirmed after remand,

S.W. 2d 592 (Mo. en: banc 1980), cert. denie ° U.

No. 80-571 (January 26, 1980).

State v. Crews, No. 41073 (Mo. App. April 29, 1980).

United States v. Sampol, 636 F.2d 621 (D.C. Cir. 1980).

United States v. Simpson, 435 U.S. 6 (1978).

United States v. Thirty-Seven (37) Photocra hs, 402 U.S. 363;

reh. den. 403 U.S. 924 (1971).

Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich, 374,

N.W. 94 (1979).

Whalen v. United States, U.S. , 63 L.Ed, 24 715 (1980).

hoe Zacchini v. Scripp-Howard Broadcasting Co., 433 U.S. 562, 53 L.Ed,

Z 9 . .

STATUTES CITED

Rule 21, Rules of the Supreme Court.

§559.225 R.S.Mo. (Supp. 1976).

$560.120 R.S.Mo. (1969).

§560.135 R.S.Mo. (Supp. 1975).

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§ denied, U.S. » No. 80-571 (January 26, 1981), which moots

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“Number 80-1393

IN THE

SUPREME COURT OF TIE UNITED STATES

OCTOBER TERM, 1981

STATE OF MISSOURI,

Petitioner,

Vs.

TERRY CREWS, ET AL.,

Respondents.

BRIEF IN OPPOSITION

TO GRANTING PETITION FOR WRIT OF CERTIORARI

The Respondent, Terry Crews, in opposition to the granting

of the Petition for Writ of Certiorari in this case, states as

follows:

QUESTIONS PRESENTED

1. Whether the Writ of Certiorari should not issue because

Petitioner has not established the source of this Court's juris-

diction, the threshold inquiry appropriate to the disposition of

this case.

2. Whether the Writ of Certiorari should not issue because

the decision issued by the Supreme Court of Missouri refusing to

transfer the decision of the Missouri Court of Appeals was based

upon the authority of Sours v. State, 593 S.W. 2d 208 (Mo. en

banc 1980); vacated and remanded, 445 U.S. » 64 L.Ed, 2d 820,

affirmed after remand, 603 S.W. 2d 592 (Mo. en banc 1980), cert.

the issve raised herein.

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REASONS FOR DENYING THE WRIT

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" THE WRIT OF CERTIORARI SHOULD NOT ISSUE BECAUSE PETITIONER

HAS NOT ESTABLISHED THE SOURCE OF THIS COURT'S JURISDICTION AS

REQUIRED BY RULE 21.1(e) OF THE RULES OF THE SUPREME COURT.

The State of Missouri, Petitioner herein, has filed its

Petition for Certiorari which does not set out, as required by

the Rules of the Supreme Court, the source of this Court's

jurisdiction.

Rule 21 of the Rules of the Supreme Court provides in perti-

nent part:

1. The Petition for Writ of Certiorari shall

contain in the order nere indicated:

(e) A concise statement of the grounds

on which the jurisdiction of this Court is in-

voked showing:

(i) The date of the judgment or

decree sought to be reviewed, and the time

of its entry;

(ii) The date of any order respecting 4

a rehearing, and the date and terms of any

order granting an extension of time within

which to petition for certiorari; and

* (iii) Where a cross-petition for writ

on of certiorari is filed under Rule 19.5,

reliance upon that Rule shall be expressly

noted and the cross-petition shall state

the date of receipt of the petition for

certiorari in connection with which the

cross-petition is filed;

(iv) The statutory provision believed

to confer on this Court jurisdiction to re-

view the judgment or decree in question by

writ of certiorari,

5. The failure of a petitioner to present

with accuracy, brevity, and clearness whatever

is essential to a ready and adequate understand-

ing of the points requiring consideration will be

a_ sufficient reason for denying his tition

(Emphasis Supplied).

The threshold inquiry necessary to the disposition of every

case that comes before the Supreme Court is the source of. this

See noe +O. Vv. United States

U.S. 294, 305-06 (1962).

> Court's jurisdiction. See Brown Shoe Co. v. United States, 370

i Row This principle is embodied in this Court's rules and reflects

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: ” the necessity for the proper presentation of matters to this Court

in order that it may properly dispose ot the vast quantity of mat-

ters competing for this Court's time. These rules are obviously

necessary, and having been established, must not be ignored.

This Court, in Furness, Withy, and Co. v. Yang-Tsze Ins. Assn.,

242 U.S. 430 (1917), noted that petitions to the Supreme Court

are at the risk of the party making them and then stated:

Unless these (petitions) are carefully

prepared, contain appropriate references to

the record and present with studied accuracy,

brevity, and clearness whatever is essential

to ready and adequate understanding of points

requiring our attention, the rights of inter-

ested parties may be prejudiced and the Court

will be impeded in its efforts properly to

dispose of the causes which constantly crowd

its docket. (Emphasis in original).

Id. at 434.

Furthermore, this Court stated in Green v. Elbert, 137 U.S.

615 (1891):

To the proper conduct of the business of

this Court rules are necessary, and, having been

prescribed, reasonable compliance with this is

expected and must be insisted upon. When they

are disregarded, dispensation from the consequences

can Only be extended where the circumstances fur-

nish adequate excuse. Were this otherwise, our

regulations might become more honored in the breach

than the observance, and the recognition of due

rocedure would be seriously weakened and impaired.

(Emphasis supplied).

Id. at 621.

This Court dismissed the writ of error in Green v. Elbert,

supra, stating that:

: (m)ere carelessness in the inception may

have finally resulted in forgetfulness (in not

filing the docket fee); but we cannot, therefore

absolve him from the penalty legitimately attach-

ing to this of our rules. phasis sup-

plied).

Id. at 623.

Petitioner has disregarded this Court's ‘rales and would have

this Court, already over-burdened, glean from its Petition for

Certiorari the source of the jurisdiction of the Supreme Court. — © 4

This Court has provided, by case law and its own rules, that'it

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will not countenance such disregard for its rules, and should not

countenance such disregard here.

II

THE WRIT OF CERTIORARI SHOULD NOT ISSUE BECAUSE THE ISSUE

RAISED BY PETITIONER IS IDENTICAL IN ALL RESPECTS TO THE ISSUE

PRESENTED IN SOURS V. STATE, THE FINAL DISPOSITION OF WHICH MOOTS

THE ISSUE PRESENTED HEREIN.

The issue raised before this Court as a result of the

decision of the Missouri Supreme Court in Sours v. State, 593

S.W. 2d 208 (Mo. en banc 1980) (Sours I) was based on convictions

for the crimes of robbery first degree by means of a dancerous

and deadly weapon, 6560.120, R.S.Mo. 1969 and &560.135, R.S.Mo,.

Supp. 1975, and armed criminal action, 8559.225, R.S.Mo. Supp.

1976, the identical statutes under which Respondent here was

convicted. |

This Court vacated the decision of the Missouri Supreme Court

and remanded the case for reconsideration in the light of Whalen

v. United States, U.S. , 63 L.Ed. 2d 715 (1980). Missouri

v. Sours, U.S. e 64 L.Ed. 2d 820 (1980).

Upon remand, the Missouri Supreme Court, in Sours v. State,

603 S.W. 2d 592 (Mo. en banc 1980) (Sours II) noted that no opinion

of the Supreme Court had considered a statute that contained

wording similar to or identical to that found in Missouri's armed

criminal action statute. Id. at 593. The Missouri Supreme Court

held, based on its construction of Missouri law, that the under-

lying felony, robbery first degree by means of a dangerous and

deadly weapon, was either an included or lesser included offense

of armcd criminal action. See generally, United States v. Sampol, f

636 F.2d 621, 651-55 (D. C. Cir. 1980).

The Missouri Supreme Court has definitively decided, which .

this Court may not dispute, as follows: es

1. “at was the intention of the Missouri General Assembly that

separate and multiple punishnents be imposed for armed criminal

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action and the underlying felony.

; 2. Every element of the underlying felony herein, robbery

: ‘first degree by means of a dangerous and deadly weapon, is in-

cluded in Armed Criminal Action, that is, proof of robbery first

degree by means of a dangerous and deadly weapon does not require

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proof of any additional elements not needed to prove Armed Criminal

Action; that is, Armed Criminal Action includes the underlying

felony and that Armed Criminal Action and robbery first degree

are in law and fact the same. e.g., Whalen v. United States, supra,

Eastlake v. Forrest City Enterprises, Inc., 426 U.S. 663 (1976);

Memorial Hospital v. Maricopa County, 415 U.S. 250 (1973); O'Brien

v. Skinner, 414 U.S. 524 (1973); Garner v. Louisiana, 368 U.S. 157

(1961).

This Court denied certiorari with respect to Sours II.

Missouri v. Sours, No. 80-571 (January 26, 1981). Petitioner,

however, attempts to overlook the effect of the denial of certi- oa

. orari, and seeks to sustain a breath of life to its arguments by

: stating that this Court's most recent pronouncement in this matter

was presumably because the matter was moot. (Petition for Certi-

Orari, at 9).

The facts belie such an allegation. Only Justices Blackmun

3 and Rehnquist would have dismissed the petition for a writ of

4 certiorari as being moot. None of the remaining members of the

Supreme Court would have granted certiorari. Missouri v. Sours,

No. 80-571 (49 U.S.L.W. 3531, January 27, 1980). It is thus clear

that the decision of the Missouri Supreme Court in Sours I, affirmed

in Sours II, is the law of the State of Missouri and that the

decision rendered State v. Crews, No. 41073 (Mo. App. April 29,

1980), must stand. .

Furthermore, the reliance placed on Brintley v. Michigan, 444

U.S. 948 (1979), by Petitioner and Petitioner's allegations that

the decision in Brintley should be controlling because of simi-

larities in the Michigan statutes involved in Brintley and the

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‘Missouri statutes ignores the effect of the holding of the Mis-

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souri Supreme Court that no Supreme Court decision has considered

3 a statute that contained wording similar or identical to that

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found in Missouri's armed criminal statute. Sours vy. State, 603

S.W. 2d at 593.

The Michigan Supreme Court, in Wayne County Prosecutor Vv.

Recorder's Court Judge, 406 Mich. 374, 280 N.W. 2d 794 (1979),

held, in essence, that the Michigan felony firearms statute

created a separate and distinct crime from the underlying felony

so that the two (2) offenses were not the same. This is contrary

to the Missouri Supreme Court's holding that, based on state law,

the armed criminal action statute and robbery first degree by

means Of a dangerous and deadly weapon are the same offen e.

The construction of the armed criminal action statute by the

Missouri Supreme Court is binding upon this Court because the

United States Supreme Court lacks jursidiction to construe state

laws. United States v. Thirty-Seven (37) Photographs, 402 U.S.

363, rehearing denied, 403 U.S. 924 (1971); Coleman v. Alabama,

399 U.S. 1 (1970). As was stated in Memorial Hospital vy. Maricopa

County, Supra at 256, "(I)t is not our function to construe a

state statute contrary to the construction given it by the highest

court of a state. See also, O'Brien v. Skinner, supra.

It is of no import that the Sours court went on to also base

its decision on federal constitutional grounds.

It is undoubtedly "'the settled rule that where

the judgment of a state court rests upon two grounds,

one of which is federal and the other non-federal in

character, our jurisdiction fails is the non-federal

ground is independent of the federal ground and adequate

to support the judgment. Fox Film Corporation v. Muller,

296 U.S. 207, 210, (80 L.Ed. 158,

’ . t. .

cramp v. Board of Public Instruction, 368 U.S. 278, 2861

L. . ’ ’ s.ct. .

Jankovich v. Indiana Toll Road Company, 379 U.S. 487 (1965).

In Jankovich, the Indiana Supreme Court invalidated a city

ordinance as authorizing an unconstitutional taking without

compensation. The decision was based upon both the Indiana con-

stitution and the United States Constitution. This Court held

that the ruling was based upon adequate state grounds and eneees

fore Gismiosed. the writ of certiorari as improvidently granted.

In the same manner, the writ of certiorari should not ‘issue in -

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the case at hand. --

The Missouri Supreme Court based its decision on adequate,

independent state grounds.

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This is not a case... where the lower court

opinion as a whole “leaves the impression that the

court probably felt constrained to rule as it did

because of (decisions applying the 14th Amendment) ,"

minnesots v. National Tea Company, supra, 309 U.S.

at -555, L.Ed. at 922, or “because it felt

under complusion of federal law as enunciated by this

Court so to hold,” Mississippi ex rel. Southern Railroad

Cc any v. ‘ayfield, 340 U.S. 1, 5, 95 L.Ed. 3, 8, 71 S.Ct.

1, orth the result that the state and federal grounds

are "so interwoven that we are unable to conclude that

the judgment rests upon an independent interpretation

of the state law,” State Tax Commissioner v. Van Catt,

306 U.S. 511, 514, 83 L.Ed. 950, 952, 29 S.Ct. 605.

Jankovich, supra, at 443.

In order to follow the established practice of avoiding con- |

stitutionai decisions where possible, United States v. Simpson, |

435 U.S. 6 (1978), the writ of certiorari should not issue because

the lower court's decision is svpported by adequate state grounds.

The Supreme Court's power "is to correct wrong judgments, not to

revise opinions.” Zacchini v. Scripp-Howard Broadcasting Company,

433 U.S. 562, 53 L.Ed. 2d 965, 970 (1977).

Finally, this Court's summary dismissal of Brintley v. Michigan,

supra, does not require the granting of the petition for certiorari

in this case, as Petitioner suggests. An unexp’icated dispusition

of a lower court's decision settles the case fo. the parties but

does not necessarily determine the validity of the lower court's

reasoning as expressed in its ppinion. Mandel v. Bradley, 432 U.S.

173 (1977). Brintley, supra, presented the question whether

separate convictions and consecutive sentences for both a felony

and for felony firearm violate the Michigan and the United States

constitutional prohibitions against double jeopardy. The federal

constitutional issue was never reached, however, for the case was

@ecided as a matter of Michigan's highest court construing its

own statute in light of its own laws. Michigan is entitied to conclia

a decision different from that reached by Missouri and the principle»

involved in the two cases remains unchanged -- since the decisions

were reached by ruling upon adequate, independent state grounds,

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. there ts no substantial fcderal auestion.

This Court's recent decision in Albernaz v. United States,

. No. 79-1709 (March 9, 1981), does not dictate a contrary result

with respect to the issues raised herein. The holding in Albernaz

was based on the finding of the Supreme Court that the statutes in

question represented two (2) separate offenses. Justices Stewart,

Marshall, and Stevens, who Joined in the majority opinion in Whalen,

supra, concurred in the judgment in Albernaz, supra, stating that

a legislature may not provide cumulative sentences for the same

sd crime.

Thus, the result reached by the Missouri Supreme Court in

Sours II, remains unchanged by’the holding in Albernaz.

CONCLUSION _

For the foregoing reasons, the Petition for Writ of Certiorari .

should net be granted,

Respectfully submitted,

Missouri Bar No. - 27345

Municipal Courts Building

1320 Market Street

St. Louis, Mo. 63103

Attorney for Respondent

me

Rule 21

The Petition for Certiorari

1. The petition for writ of certiorari shall contain,

in the order here indicated:

(a) The questions presented for review, expressed in

the terms and circumstances of the case but without

unnecessary detail. The statement of the questions

should be short and concise and should not be argumen-

i

tative or repetitious. The statement of a question pre-

sented will be deemed to comprise every subsidiary ques-

tion fairly included therein. Only the questions set

forth in the petition or fairly included therein will ]

be considered by the Court.

(b) A list of all perties to the proceeding in the court

whose judgment is sought to be reviewed, except where

the caption of the case in this Court contains the names

of all parties. This listing may be done in a footnote.

(c) A table of contents and table of authorities, if

required by Rule 33.5.

(d) A reference to the official and unofficial reports

of any opinions delivered in the courts of administrative

agency below.

(e) A concise statement of the grounds on which the

jurisdiction of this Court is invoked showing:

, (i) The date of the Aduuekt Ge decree sought to

be reviewed, and the time of its entry;

(ii) The date of any order respecting a rehearing,

and the date and terms of any order granting an |

extension of time within which to petition for cer-

tiorari; and

(iii) Where a saab proitadts vita for writ of certiorari

is filed under Rule ‘1s. 5 reliance upon ‘that Rule

shall be expressly noted and the cross-petition shall |

state the date of receipt of the petition for =

orari in connection with which the cross-petition.

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is filed;

(iv) The statutory provision believed to confer on

this Court jurisdiction to review the judgment. or -

decree in question by writ of certiorari.

(f) The constitutional provisions, treaties, statutes,

Ordinances, and regulations which the case involved, set-

ting them out verbatim, and giving the appropriate cita-

tion therefor. If the provisions involved are lengthy,

their citation alone will suffice at this point, and their

pertinent text then shall he set forth in the appendix

referred to in subparagraph 1 (k) of this Rule,

(g) A concise statement of the case containing the

facts material to the consideration ofthe questions

presented.

(h) If review of the judgment of a state court is sought,

the statement of the case shall also specify the state in

the proceedings, both in the court of first instance and in

the appellate court, at which the federal questions sought

to be reviewed were raised; the method or manner of

raising them and the way in which they were passed upon

by the court; such pertinent quotation of specific por-

tions of the record, or Summary thereof, with specific

reference to the places in the record where the matter

appears (e€.g., ruling on exception, portion of court's

charge and exception thereto, assignment of errors) as

will show that the federal question was timely and

Properly raised so as to give this Court jurisdiction to

review the judgment on writ of certiorari.

Where the portions of the record relied upcn under ‘

this subparagraph are voluminous, they shall be included in |

the appendix referred to in subparagraph 1 (k) of this

Rule.

(i) If review of the judgment of a federal court is pr

‘ sought, the statement of the case ‘shall also show the basis :

for federal jurisdiction in the court of first instance.

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(j) A direct and concise argument amplifying the rea-

sons relied on for the allowance of the writ. \ See Rule 17.

(k) An appendix containing, in the following order:

(i) Copies of any opinions, orders, findings of fact,

and conclusions of law, whether written or oral (if

recorded and transcribed), delivered upon the render- :

ing of the judgment or decree by the court whose

decision is sought to be reviewed.

(ii) Copies of any other such opinions, orders, find-

ings of fact, and conclusions of law rendered by courts

Or administrative agencies in the case, and, if refer-

ence thereto is necessary to ascertain the grounds of

the judgment or decree, of those in companion cases.

Each of these documents shall include the caption

showing the name of the issuing court or agency and

the title and number of the case, and the date of its

entry.

(iii) A copy of the judgment or decree sought to be

reviewed and any order on rehearing, including in

each the caption showing the name of the issuing

court or agency, the title and number of the case,

and the date of entry of the judgment, decree, or

order on reheariug.

(iv) Any other appended materials.

If what is required by this paragraph or by subparagtaphs

1(f) and (h) of this Rule, to be included in the petition

is voluminous, it tice, if more convenient, be separately

presented.

2. The petition for writ of certiorari shall be produced in

conformity with Rule 33. The Clerk shall not accept any petition

for writ of certiorari that does not comply with this Rule and

with Rule 33, except that a party proceeding in forma pauperis may

proceed in the manner provided in male a. xg: ‘"

3. All contentions in support of a petition for writ of cer-

tiorari shall be set forth in the body of the petition, as pro-

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vided in subparagraph 1 (j) of this Rule. No separate brief

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in support of a petition for a writ of certiorari will be received,

~ and the Clerk will refuse to file any petition for a writ of cer--

tiorari to which is annexed or appended any supporting brief. .

4. The petition for writ of certiorari shall be as short as

possible, but may not exceed 30 pages, excluding the subject 2

index, table of authorities, any verbatim quotations required

by subparagraph 1 (f) of this Rule, and the appendix.

5. The failure of a petitioner to present with accuracy,

brevity, and clearness whatever is essential to a ready and ade-

quate understanding of the points requiring consideration will

be a sufficient reason for denying his petition.

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