Record and brief — Kelly v. Louisiana

oed

Supreme Court of the United States

i OCTOBER TERM, 1981

JAMES KELLY,

Petitioner

VS.

STATE OF LOUISIANA

Respondent

PETITION FOR WRIT OF CERTIORARI TO

SUPREME COURT

OF THE STATE OF LOUISIANA

PETITION FOR WRIT OF CERTIORARI

WILLIAM NOLAND

ATTORNEY FOR PETITIONER

JAMES KELLY

2739 Tulane Ave.

Mail to: Box 26183

New Orleans, La. 70186

504 / 822-3104

— . e —— e —

AB Letter Service, inc., 327 Chartres St., New Orleans, La. (504) 581-5555

QUESTIONS PRESENTED FOR REVIEW

Whether the Supreme Court of the State of

Louisiana failed tc apply the correct federal constitu-

tional standard in finding a state conviction valid for

purposes of enhancement of punishment under a state

recidivist statute.

ii

TABLE OF CONTENTS

Questions Presented For Review................. i

PI IIS gi occ ce cs ws oc tvpse doses iii

Opinions of the Courts Below................... 2

Jurisdiction of the Supreme Court............... 2

Constitutional Provisions Involved.............. 2

Statement of the Case.............:... ccc eeee 4

ß ̃ Ü5ſVuu w .. 4

Certificate of ooo cece eee 8

TABLE OF AUTHORITIES

Boykin v. Alabama,

395 U.S. 238, 89 S.Ct. 1709,

eee

Burgett v. Texas,

389 U.S. 109, 88 S. Ct. 258,

19L. Ed 2d 319 (1987)ᷣ:n::

Carnley v. Cochran,

369 U.S. 506, 82 S. Ct. 884

„„ „ „„ „„ „ „„

Gideon v. Wainwright,

372 U.S. 335, 83 S.Ct. 792

9 L.Ed 34 790 (10G3)...................

United States v. Tucker,

404 U.S. 443, 92 S.Ct. 589,

„ „

State v. Holden,

375 So.2d 1372 (La. 1979)...............

State v. Lewis,

367 So.2d 1155 (La. 1979)...............

| OTHER AUTHORITIES

Constitution of the United States, Fifth,

Sixth and Fourteenth Amendments......

28 United States Code 1257 ())

Louisiana Revised Statutes 40:969.........

Louisiana Revised Statute 15:529.1........

9 4

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

No.

JAMES KELLY,

Petitioner

VS.

STATE OF LOUISIANA

: Respondent

PETITION FOR WRIT OF CERTIORARI TO

SUPREME COURT

OF THE STATE OF LOUISIANA

James Kelly, pe ioner herein prays that a writ

of certiorari issue to review the judgment entered in

this criminal case on September 8, 1981 and applica-

tion for rehearing denied on October 16, 1981.

2

OPINIONS OF THE COURT BELOW

The opinion of the Supreme Court of Louisiana

is reported at —So.2d—(La.1981) and is reproduced in

the appendix.

JURISDICTION OF THE SUPREME COURT

The judgment of the Supreme Court of the

State of Louisiana was rendered on September 8.

1981. The application for rehearing was filed on

September 22, 1981 and denied by the Supreme Court

of the State of Louisiana on October 16, 1981. Title 28

United States Code, Section 1257(3) confers jurisdic-

tion on this Court to review the judgment in question

by a writ of certiorari.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides:

No person shal! be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment

of a Grand Jury, except in cases aris-

— — the land or naval forces, or in the

Militia, when in actual service in time

of War or public danger: nor shall any

person be subject for the same offense

to be twice put in jeopardy of life or

3

limb; nor shali be compelled in any

criminal case to be a witnessed against

himself, nor be deprived of life, liberty,

or property, without due process of

law; nor shall private property be

taken for public use, without just com-

pensation.

The Sixth Amendment to the United States

Constitution provides in pertinent part:

In all criminal prosecutions, the ac-

cused shall enjoy the right to a speedy

and public trial, *. impartial jury of

the State and district wherein the

crime shall have been committed.

which district shall have been

pose ascertained by law, and to

informed of the nature and cause of

the accusation; to be confronted with

thé witnesses against him: to have

compulsory process for obtaining

witnesses in his favor, and to have the

Assistance of Counsel for his defense.

The Fourteenth Amendment to the United

States Constitution provides in pertinent part:

Section 1. All rsons born or

naturalized in the United States, and

subject to the jurisdiction thereof, are

citizens of the United States and of the

State wherein they reside. No State

shall make or enforce any law which

shall abri the privileges or im-

munities of citizens of the United

States; nor shall any State deprive any

4

person of life, liberty or property

without due process of the law; not

deny to any poor wihtin its jurisdic-

tion the equal protection of the law.

STATEMENT OF THE CASE

On August 24, 1978 officers of the New Orleans

Police Department served a search warrant on 2705

Belmont St., Apartments E and F“, New Orleans,

Louisiana, A quantity of Dilaudid and Preludin was

seized from apartment F“. Defendant JAMES

KELLY was present in Apartment F“ at the time of

the search and seizure. He was arrested and charged

with possession of narcotics with intent to distribute,

in violation of La. R.S. 40:969. Defendant KELLY

was tried before a twelve person jury on November 21

and 22, 1978. The jury returned a verdict of guilty as

charged. Following a hearing on June 18, 1979 defen-

dant JAMES KELLY was adjudicated a multiple of-

fender and sentenced to serve twenty years at hard

labor. His conviction was affirmed by the Supreme

Court of Louisiana on September 8, 1981 and applica-

tion for rehearing denied on October 16, 1981.

ARGUMENT

The State of Louisiana charged petitioner

JAMES KELLY as a multiple offender under La. R.S.

15:529.1. The trial court ruled that the sentence could

5

be enhanced under that statute based on a 1963 and a

1972 conviction.

Petitioner asserted that the 1963 conviction

should not be used for enhancement of punishment

under the State’s multiple offender statute because he

was not represented by counsel at the time of the plea

of guilty. Burgett v. Texas, 389 U.S. 109, 88 S.Ct.

258, 19 L.Ed 2d 319 (1967). United States v. Tucker,

404 U.S. 443, 92 S.Ct. 589, 30 L.Ed 592 (1972). In the

opinion below the Supreme Court of the State of Loui-

siana noted that the defendant was entitled to waive

the presence of counsel when entering a plea of guilty.

However, the record failed to reflect a waiver of the

consitutional right to counsel at the time the guilty

plea was accepted by the trial court. See Carnley v.

Cochran, 369 U.S. 506, 82 S.Ct. 884, 8L.Ed 2d 7

(1962); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.

1709, 23 L.Ed 2d 274 (1969). The 1963 conviction was

constitutionally infirm and could not validly be used

to enhance the penalty imposed in the instant convic-

tion. Gideon v. Wainwright, 732 U.S. 335, 83 S.Ct.

792, 9 L.Ed 2d 799 (1963); Burgett v. Texas, supra.

The 1972 conviction used to enhance the penal-

ty of defendant-petitioner was also constitutionally in-

valid. Defendant-petitioner KELLY entered a guilty

plea to a July 23, 1972 felony offense and was sentenc-

ed to 30 months imprisonment. (Orleans Parish

6

Criminal District Court Docket Case No. 229-396). He

was sentenced as a multiple offender on June 18, 1979

using this 1972 plea for*purposes of enhancement of

sentence.

An examination of the 1972 plea of guilty form

(La. Appeal Record, page 66) and an examination of

the contemporaneous transcript of the Decemer 28,

1972 plea of guilty in matter no. 229-396. (La. Appeal

RECORD, page 68 to page 74) reveals that there was

no affirmative showing through the contem-

poraneously recorded transcript that the plea was

voluntary and made with an awareness of its conse-

quences, and particularly with an awareness of the

waiver of the priv lege against self-incrimination, as

ciscussed in Boykin v. Alabama, 395 U.S. 238, 89

S.Ct. 1709, 23 L.Ed 2d 274(199), and the waiver of

compulsory process under the Sixth Amendment of

the U.S. Constitution, as discussed in State v. Lewis,

367 So.2d 1155 (La. 1969).

On the date of KELLY’S sentence as a multiple

offender, June 18, 1979 State v. Lewis, 367 So.2d

1155, was in effect Lewis established the Louisiana re-

quirement that the minutes or transcript of the plea of

guilty affirmatively disclosed that the accused had

waived his right to jury trial, his right to confront his

accusers, and his privilege against self-incrimination.

See also State v. Holden, 375 So.2d 1372 (1979).

Thus, the 1972 conviction was invalid under

federal constitutional standards as enunciated in

Boykin and applied in Louisiana through State v.

Lewis and State v. Holden.

The present case reflects an incorrect applica-

tion by the State of Louisiana of the constitutional

guarantees provided in the Fifth, Sixth, and Four-

teenth Amendments. Since the Supreme Court of

Louisiana has decided a federal constitutional ques-

tion in a way conflicting with the applicable decisions

of this Court, sound discretion should be exercised to

grant certiorari herein.

RESPECTFULLY SUBMITTED:

WILLIAM NOLAND

CERTIFICATE OF SERVICE

I hereby certify that the foregoing petition for a

writ of certiorari has been served upon the State of

Louisiana by placing the appropriate number of copies

of the same in the U.S. Mail, postage prepaid, ad-

dressed to HARRY CONNICK, District Attorney for

the Parish of Orleans, State of Louisiana at 619 So.

White Street, New Orleans, La. 70119 on the 15th day

of December, 1981.

WILLIAM NOLAND

ATTORNEY FOR PETITIONER

JAMES KELLY

2739 Tulane Ave.

Mail To: Box 26183

New Orleans, La. 70186

(504) 822-3104

4 xipueddy

A-

SUPREME COURT OF LOUISIANA

NO. 81-KA-0033

STATE OF LOUISIANA

VERSUS

HARDEN JOHNSON AND JAMES KELLY

ON APPEAL FROM THE CRIMINAL DISTRICT

COURT, PARISH OF ORLEANS,

STATE OF LOUISIANA,

HONORABLE RUDOLPH F. BECKER, III,

JUDGE

WATSON, Justice.*

Defendants, Harden Johnson and James Kelly,

were charged by bills of information with two counts

of possession with intent to distribute controlled

dangerous substances, to wit: Preludin and Dilaudid.

A jury found James Kelly guilty as charged and

Harden Johnson guilty of possession.

Judges Frederick Stephen Ellis, Morris A. Lottinger, Jr.

and Elven E. Ponder of the Court of Appeal, First Circuit

participated in this decision as Associate Justices Ad

Hoc joined by Justices Calogero, Dennis, Watson, and

A-2

Kelly was adjudicated a third offender and

sentenced to twenty years at hard labor on Count I

and ten concurrent years at hard labor on Count II.

Johnson was sentenced to three concurrent years in

Parish prison on each count. The two defendants have

appealed their convictions and sentences.

FACTS

Search warrants were issued for apartments E

and F in the Magnolia Housing Project. Two officers

banged on the back door of apartment E and Harden

Johnson existed through the front door of Apartment

F into the arms of two other police officers. There are

separate stairwells for the front and rear entranxes of

the two third floor apartments. The officers entered

apartment F with Johnson and discovered James Kel-

ly in the bathroom attempting to dispose of a bottle

marked Vitamin C. The bottle which was removed

from the commode contained eighty yellow tablets

and forty-eight pink tablets. The yellow pills were

Dilaudid, a trade name for dihydromophinone, which

is an opium derivative or “‘downer’’. The pink pills

were Preludin (phenmetrazine) a stimulant or

“upper”. The testimony was that Preludin tablets

have a street value of approximately $18 each and

Dilaudid tablets have a street value from $35 to $55

each. Apartment F is the residence of Harden

Johnson. James Kelly was a visiting friend. Also ar-

A:3

rested in apartment F was Carlin Morgan. A brown

lady’s purse in apartment F contained $316.00.

The bills of information charge the crimes under

the wrong statute. Both Preludin or phenmetrazine,

and Dilaudid are Schedule II drugs. LSA-R.S. 40:964.

Defendants were charged with possession and intend-

ed distribution of Schedule IV drugs under LSA-R.S.

40:969, whereas they should have been charged under

LSA-R.S. 40:967, which deals with Schedule II drugs.

The Louisiana Constitution of 1974 in Article 1

§13 provides that an accused in a criminal prosecution

shall be informed of the nature and cause of the ac-

cusation against him. An information is a written ac-

cusation of crime. LSA-C.Cr.P. art. 384. It must in-

form the defendant of the statutory basis of his of-

fense. State v. Gainey, 76 So.2d 1240 (La.,1979).

However, clerical errors in statutory citations do not

warrant reversal of convictions. State v. Hamilton,

297 So.2d 419 (La., 1974). If an indictment states the

essential facts of an offense charged, an error or omis-

sion in the statutory citation does not require reversal

of a convicton if the error or omission did not mislead

the defendant to his prejudice. LSA-C.Cr.P. art. 464.

The trial allowed the State to amend its answer to

defendants’ bill of particulars to show that the correct

statute is LSA-R.S. 40:967. Defendants were misled

by the erroneous citation and the fact that they were

1.

A-4

charged under the wrong statute is not ground for

reversal of their convictions. State v. James, 305

So.2d 514 (La., 1974). ;

ASSIGNMENT OF ERROR NUMBER ONE

Defendants contend that the trial court erred in

restricting their inquiry into the reliability of the con-

fidential informant whose information provided the

basis for police surveillance, the affidavit and the

search warrant. State objections were sustained to

various questions about the informant. There were no

contemporaneous objections to the rulings, and the

alleged errors cannot be raised on appeal. LSA-C.Cr.P.

art. 841.'

This assignment lacks merit.

LSA-C.Cr.P. art. 841 provides:

An irregularity or error cannot be availed of after ver-

dict unless it was objected to at time of occurence. A bill

of exceptions to rulings or orders is unnecessary. It is

sufficient that a party, at the time the ruling or order of

the court the action which he desires the court to take.

or of his objections to the action of the court, and the

grounds therefor.

The requirement of an objection shall not apply to the

' court's ruling on any written motion.

A-5

ASSIGNMENT OF ERROR NUMBER TWO

Defendants contend that the trial court erred in

not allowing a question about evidence seized relating

to other persons arrested at the same time as Johnson

adn Kelly. There was no contemporaneous objection.

LSA-C.Cr.P art. 841, supra.

This. assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendants contend that the evidence seized

should have been suppressed because the search war-

rant is defective on its face and does not establish pro-

bable cause for the search.

The search warrant initially described the

premises as 2705 Belmont Street, apartment D. The

D was crossed out and replaced with a handwritten F.

The correction was initialled by the magistrate and

the two affiants. It is contended that the handwritten

F resembles a C and this causes an ambiguous

discrepancy which is fatal to the warrant’s validity.

F rather than C is the correct letter. Apart-

ments E and F had been under surveillance. A sep-

arate warrant had been executed for E. This warrant

could not reasonably have authorized the search for of

A-6

any apartment other than F. Officers McNeil and

Peralta, who had conducted the surveillance and ex-

ecuted the affidavits, knew that the two apartments

to be searched were E and F. They were executing the

warrant for apartment E, while other officers were ex-

ecuting the warrant for apartment F, the only other

third floor apartment. There were no danger of the

wrong premises being searched and the description is

therefore not deficient. State v. Cobbs, 350 So.2d 168

(La. 1977). The alteration did not invalidate the war-

rant. State v. Welsh, 371 So.2d 1314 (La., 1979).

It is also contended that the affidavit did not

establish probable cause for the search. The affidavit

recites that a reliable confidential informant had been

presents in Apartment E, the residence of Sharon

Rudolph, and discussed obtaining Dilaudid. Rudolph

was given money by the informant, went to apartment

F, her sister’s residence, returned to apartment E and

produced the purchased narcotics. Rudolph advised

the informant that she had to conceal the drugs in her

sister’s residence because the police were watching

her. The informant was told drugs could be obtained

when Rudolph was not at home directly from her

sister in apartment F. Officers McNeil and Peralta

undertook surveillance of apartments E and F and

observed various people enter and exit the two apart-

ments on Wednesday, August 23. The surveillance

was limited and the detectives, according to their

A-7

testimony on the motion to suppress, could not see the

entrance of apartment F. The informant advised by

telephone on Thursday, August 24, that he had

returned to apartment E but Sharon Rudolph was not

at home. The informant knocked on the apartment F

door of her sister, Harden Johnson, to secure

Dilaudid. Harden asked the confidential informant if

he wanted Dilaudid and when he replied affirmatively

he fetched the narcotics from the rear of the residence.

The two officers undertook another surveillance and

again observed people coming and going from the two

apartments. They then executed the affidavit.

The reliable informant reported that Dilaudid

was available for sale in apartment F on at least two

occasions. The second report was on August 24, the

same day that the search warrant was obtained.

Although the cache of drugs was not observed by the

informant, a sufficient amount was available for sale

on two occasions. Probable cause was established by

the fact that a retail quantity was present on the date

of the warrant and on a prior occasion.

It is contended that the affidavit contains

misrepresentations which invalidate the warrant. Of-

ficer McNeil knew the informant through officer

Peralta. McNeil did not know that the informant had

been used on a prior occasion. However, on that occa-

A-8

sion the information was fruitless. It is contended

that McNeil could not have sworn that the

informant’s information had led to arrests and convic-

tions of persons engaged in narcotics traffic. The

misrepresentation was not deliberate. Officer Peralta

was familiar with the informant’s reliability. After ex-

cising McNeil’s unintentional misrepresentation,

Peralta’s knowledge was sufficient to establish pro-

bable cause. State v. Rey, 361 So.2d 489 (La.,1977).

Objection is made to the surveillance portion of

the affidavit, because the entrance of apartment F,

was not visible. The officers did see individuals com-

ing and going toward what could only have been

apartment F. Moreover, the surveillance portion of

the affidavit is unnecessary to establish probable

cause. Lack of corroboration for the informant does

not invalidate the warrant, when the other details of

the affidavit support a reasonable inference of

reliability. State v. Paciera, 290 So.2d 681 (La., 1974).

This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBER FOUR,

ELEVEN AND FIFTEEN

These assignments relate only to defendant

Johnson. Since her conviction must be reversed on

the basis of assignment of error number sixteen, the

questions raised are moot.

A-9

ASSIGNMENT OF ERROR NUMBER SEVEN

Defendants contend that the trial court should

have severed the trials. The trial judge stated in deny-

ing the motion to sever that he would grant it during

trial if it developed that the two defenses were an-

tagonistic. Johnson did not testify tht the durgs were

Kelly's and stated that she had never seen him with

any drugs. Kelly did nto testify or present any

evidence that exculpated him and inculpated Johnson.

although alleged to be antagonistic, the two defendse

were not. Defendants did not show that justice re-

quired a severance and no prejudice appears from the

joint trial. LSA-C.Cr.P. art. 704; State v. Bradford,

367 So.2d 745 (La., 1978); State v. McGraw, 366 So.2d

1278 (La., 1978).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TEN

It is contended that the trial court erred in

allowing officer David Peralta to testify beyond the

scope of his expertise. Questions about normal

dosage units in illegal sales, the quantity of tablets re-

quired to maintain a drug habit and how many pills

might be taken in a day by an addict are said to be out-

side the witness’s knowledge. The trial court found

the witness to be an expert in the packaging and

A-10

distribution of controlled dangerous substances. The

trial court did not abuse its discretion in allowing the

questions. State v. Carter, 347 So. 2d 236 (La., 1977).

This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBER TWELVE

Defendant Johnson contends that a mistrial

should have been granted. Kelly’s attorney asked

whether known drug addicts had been seen entering

or leaving Johnson’s apartment, and the trial court

did not allow an answer to the question.

Kelly contends that this prejudiced his defense,

because he could have established that others were

responsible for any narcotics found in the residence.

It is argued that the evidence was also relevant to the

question of whether he had a specific intention to

distribute drugs.

Kelly’s guilt rested on the fact that he was

found with the drugs. Officer Peralta testified that an

addict would need at the most approximately two

Dilaudids a day and four Preludin. Addicts generally

keep only a two or three day supply of drugs. Accor-

ding to Peralta, the amount possessed by Kelly had a

street value of between $3,500 a $3,600. An intention

to distribute narcotics can be inferred from the quanti-

A-11

ty in Kelly’s possession. See U.S. v Staten, 581 F.2d

878 (D.C.Cir. 1978) and State v. Sibley, 310 So.2d 100

(La., 1975). Compare State v. House, 325 So.2d 222

(La., 1976) and State v. Harveston, 389 So.2d 63 (La.,

1980). Any evidence of other narcotics offenders at

the residence was iimmaterial evidence of other of-

fenses, which was properly excluded by the trial

judge. n

This assignment of error lacks merit.

ASSIGNMENT OF ERROR

NUMBER FOURTEEN

It is contended that the trial court erred in de-

nying a motion for the jury to view the crime scene. A

view would allegedly have clarified the evidence about

the layout of the two apartments. The matter was

within the trial court’s discretion. LSA-C.Cr.P. art.

762. There was no abuse of discretion because the

evidence about the relative locations of the two apart-

ments and their interior designs was sufficiently clear.

State v. Gallow, 338 So.2d 920 (La., 1976).

The assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER SIXTEEN

Defendant Johnson contends that there as in-

A-12

sufficient evidence to find her guilty beyond a

reasonable doubt of possession of the drugs. Jackson

v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979).

The drugs were not in Johnson’s possession.’

She lived in the apartment where Kelly was found

with them. The officers at the front door had not

knocked or announced their presence. Johnson at-

tempted to exit at that door after hearing a loud noise

by police at her sister’s back door. It can. be inferred

that she was fleeing the scene because she was going

away from the police noise at the back. Since there

was nothing to warn Johnson that police were also at

the front door of her apartment, her encounter with

them at that door must be viewed as accidental. The

inference that Harden Johnson was aiding Kelly’s

disposal efforts is unjustified.

Proximity to a drug or association with a

possessor may establish a prima facie case of drug

possession when colored by other evidence. United

States v. Staten, 581 F.2d 878 (D.C. Cir. 1978).

However, mere association or proximity, without

2. It should be noted that the information concerning

Johnson's sister obtaining drugs from Johnson was con-

tained only in the affidavit and was not evidence

presented to the jury.

A-13

more, is insufficient. Arellanes v. United States, 302

F. 2d 603 (9th Cir. 1962); State v. Cann, 319 So.2d 396

(La., 1975). Dominion over the illegal substance must

be proven. State v. Walker, 369 So.2d 1345 (La.,1979).

Active cooperation in an attempt at drug disposal is

adequate other evidence. United States v. Jackson,

423 F.2d 506 (9th Cir. 1970). The factor is not present

here. The only color of other evidence is Johnson’s at-

tempted exit from the apartment. Flight can show

consciousness of guilt. State v. Bolton, 354 So.2d 516

(La., 1978). However, flight alone, particularly that

here, where there was no question of hot pursuit, is in-

sufficient. See State v. Alford, 323 So.2d 788 (La.,

1975) where evidence of flight was insufficient even

though there was hot pursuit.

Kelly was seen with his hand in the commode

disposing of the only drugs in the apartment. He had

possession of them. The only evidence that Johnson

shared that possession is her attempt to leave the

scene.

If Harden Johnson knew Kelly possessed the

drugs, this would explain her flight but would not suf-

fice to prove constructive possession. The crucial ele-

ment of control over the illegal substance would be

missing. See United States v. DiNovo, 523 F.2d 197

(7th Cir.1975); United States v. Watkins, 519 F.2d 294

(D.C.Cir.1975); United States v. Bonham, 477 F.2d

A-14

1137 (3rd Cir. 1973); and, Montoya v. United States,

402 F.2d 847 (5th Cir. 1968). A rational trier of fact

could not have found Harden Johnson guilty beyond a

reasonable doubt of possession of Preludin and

Dilaudid, and her conviction must be reversed.

ASSIGMENT OF ERROR

NUMBER TWENTY-ONE

Defendants contend that the trial court erred in

not calling Barbara Jean Allen to the witness stand in

the presence of the jury. Barbara Jean Allen had been

examined twice outside the presence of the jury and

answered some questions but invoked her Fifth

Amendment privilege against self-incrimination as to

most inquiries. Her attorney stated that any

testimony about the event of August 23 or 24 would

be incriminating to the witness and that she invoked

the Fifth Amendment in relation to such questions.

The questions the witness answered outside the

presence of the jury were irrelevant to any issues in

the trial.

It is contended that failure to force the witness

to invoke her privilege before the jury restricted the

defendant’s constitutional right to present a defense

in violation of the Sixth Amendment to the United

States Constitution, and Article 1, Section 16, of the

Louisiana Constitution of 1974. It is reversible error

A-15

to allow a witness to claim a blanket privilege. State

uv. Wilson, 394 So.2d 254 (La., 1981). However, when

it is clear to the trial court that the silence of a witness

is justified as to a particular evening because any

testimony could be injurious, a question by question

assertion of the privilege is unnecessary. State v. Dar-

by, —So.2d— (La.,1981). It is improper to call a

witness to the stand solely to impress upon the jury

the fact that the witness will claim the privilege

against self-incrimination. State v. Berry, 324 So.2d

822 (La., 1975); State v. Day, docket no. 80-KA-2766,

—So.2d— (La., 1981).

Once it was determined that witnesses Allen

would invoke the Fifth Amendment as to all questions

relative to August 23 or 24, the trial court did not err

in refusing to have her testify before the jury, State v.

Darby, supra. The rights of confrontation and cross-

examination are guaranteed. Douglas v. Alabama,

380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed. 2d 934 (1965).

However, none of the statements by this witness bore

on a fundamental part of the State’s case and they

would not have bolestered the defense. Douglas, sur

pa. Defendants were not denied testimony which

would have been relevant and material to their

defense. Compare Washington v. Texas, 388 U.S. 14,

87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). It may be trial

error, but not necessarily reversible error to require a

witness to answer questions in front of the jury which

A-16

the witness will refuse to answer on the ground of self-

incrimination. Namet v. United States, 373 U.S. 179,

83 S.Ct. 1151, 10 L.Ed.2d 278 (1963). The better

policy is an examination outside the presence of the

jury such as that conducted by the trial court here.

See United Sttes v. Lacouture, 495 F.2d 12347 (5th

Cir. 1974); United States v. Johnson, 488 F.2d 1206

(Ust Cir. 1973); and, United States v. Bowman, 636

F.2d 1003 (5th Cir. 1981). The trial court did not err in

not requiring the witness to invoke the privilege in

front of the jury. |

This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBER

NINETEEN AND TWENTY

Defendant Kelly contends that the tria! court

erred in finding him to be a third offender.’ LSA-R.S.

15:529.1.

The primary issue is whether defendant Kelly

was properly advised of this consitutional rights as re-

quired by Boykin v. Alabama, 395 U.S. 238, 99 S.Ct.

1709 (1969), at the time of his 1972 conviction. As to

his privilege against self-incrimination, defendant was

3. A 1960 conviction at which Kelly's lawyer was allowed to

withdraw as counsel was not considered.

A-17

told: ‘‘When you plead guilty, you lose or give up cer-

tain rights .... You lose your right to remain silent

because when you plead guilty you're not remaining

silent. Do you understand that?“ State v. Martin,

382 So.2d 933 (La.,1980) held that similar advice was

insufficient since it did not adequately advise the

defendant of his right to remain silent at a later trial

after his plea.‘ However, Martin dealt with a 1976

conviction. In all recent Louisiana felony cases, the

record must affirmatively show that the defendant

was adequately advised of the three rights prescribed

by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23

L.Ed.2d 274 (1971). State v. Williams, docket no.

80-K-2345, — So.2d — (La., 1981). In the case of pleas

entered more than six years ago, the record must

show only that the defendant voluntarily pleaded guil-

ty with a full understanding of ‘‘the connotation and

consequences. State v. Cusher, docket no.

80-K-2518, — So.2d — (La., 1981); State v. Warren

a/k/a Mason, docket no. 80-K-2375, — So.2d — (La.,

1981). Defendant here was adequately advised of his

rights. His plea was knowing and voluntary. The

trial court did not err in using the 1972 conviction to

find defendant Kelly to be multiple offender.

4. Martin was overruled in State v. Williams, 392 So.2d 448

(La., 1980) which held that a defendant cannot collateral-

ly attack his prior conviction in a trial under LSA- R. S.

14:95.1 for possession of a firearm by a convicted felon.

A-18

It is also contended that a 1963 plea was defective

because defendant was not accompanied by counsel.

State v. Coody, 275 So.2d 773 (La., 1973). The minute

entry for that conviction reflects that the Legal Aid

Bureau was appointed as counsel for Kelly the day

before his guilty plea was entered. Defendant was af-

forded counsel. He was entitled to waive the presence

of that counsel when he entered is guilty plea. Kelly

was accompanied by Harry F. Connick, attorney,

when he was sentenced in 1963. The 1963 conviction

was properly considered to enhance Kelly’s sentence.

The testimony of police officer Glen Burmeister,

a fingerprint expert, adequately established that

defendant, James Kelly, is one and the same as the

James Kelly previously convicted.

For the foregoing reasons, the convictons of

defendant, Harden Johnson, for possession of

Preludin a Dilaudid are reversed and vacated. The

convictions and sentence of defendant, James Kelly,

for possession of Dilaudid and Preludin with intent to

distribute those drugs are affirmed.

REVERSED AS TO DEFENDANT HARDEN

JOHNSON: AFFIRMED AS TO DEFENDANT

JAMES KELLY.

A-19

SUPREME COURT OF LOUISIANA

NO. 81-KA-0033

STATE OF LOUISIANA

versus

HARDEN JOHNSON and JAMES KELLY

LEMMON, Justice, Dissenting as to Reversal of Con-

viction of Harden Johnson.

I disagree that there was insufficient evidence

to prove defendant Johnson’s guilt beyond a

reasonable doubt.

The evidence raises the inference that Ms.

Johnson, after hearing the police knock on the door of

the adjoining apartment, either was fleeing the scene

or delaying the police while Kelly flushed the drugs

down the toilet. Either possibility points unmistaken-

ly to Ms. Johnson’s guilty knowledge of the presence

of drugs in her own apartment.

Under the circumstances shown by the evidence

and the inferences reasonably drawn therefrom, a ra-

A-20

tional trier of fact could conclude beyond e reasonable

doubt that Ms. Johnson actively participated in Kel-

ly’s possesion of the drugs. I would affirm the convic-

tion based on the responsive verdict of guilty of

possession. '

1. The jury apparently concluded that the evidence was not

sufficient to support the conclusion beyond a reasonable

doubt that Ms. Johnson had acted with the specific intent

to distribute the drugs.

—

Supreme Court, U.S.

FILED |

In the CLERK 2

Supreme Court of the United States

October Term, 1981

JAMES KELLY,

Petitioner

VS.

SrATE OF LOUISIANA.

Respondent

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE

STATE OF LOUISIANA

BRIEF IN OPPOSITION

WILLIAM J. GUSTE, JR.

ATTORNEY GENERAL OF THE

STATE OF LOUISIANA

HARRY F. CONNICK,

DISTRICT ATTORNEY OF

ORLEANS PARISH

JOHN H. CRAFT,

ASSISTANT DISTRICT

ATTORNEY OF

ORLEANS PARISH

619 South White Stret

New Orleans, Louisiana

Tele: (504) 822-2414, Ext. 605

— —— ne [DIH— --.

AB Letter Service, inc., 327 Chartres St., New Orlen. La. (504) 581-5555

TABLE OF CONTENTS

Page

, cs cckew knees sees ii

e Wm 1

r ̃ A..... Ä ˙—%«ͤ½ Caen 2

TABLE OF AUTHORITIES

CASES Page

Barksdale v. Blackburn, No. 80-3782,

D ũů ͤͤ Tm 8

Boykin v. Alabama, 395 U.S. 238, 89

Ct. 1709, 23 L.Ed.2d 274 (1969)............ 7,10

Brady v. United States, 397 U.S. 742,

90 8 Ct 1463, 25 L. Ed. 2d 747 (1970)............ 8

Brown v. Jerni, 622 F.2d 914

(5th Cir. 1980) cert. denied, 449 U.S.

958, 101 S.Ct. 368, 66 L.Ed.2d 224............. 8

* v. Texas, 389 U.S. 109, 88

S.Ct. 258, 19 L.Ed.2d 319 (1967)............... 3

Gideon v. Wainwright, 372 U.S.

335, 83 S.Ct. 792, 9 L. Ed. 2d 799 (1963).......... 3

McChesney v. Henderson, 482 F. 2d 1101

(5th Cir. 1973), cert. denied, 414 U.S. 1146,

94 S.Ct. 901, 39 L.Ed.2d 10)” 8

State v. Bolton, 379 So.2d 722

r Sr rr rr ne 9

State v. Bowick, NO. 80-KA-2793,

So. 2d D 9

State v. Cusher, NO. 80-K-2518,

So.2d (La. 1981) V 10

State ex. rel Jackson v. Henderson,

255 So.2d 85 (La. 1971) PE 8.9

State v. Holden, 375 So. 2d 1372 (La. 19799 3

State v. Jefferson, 376 So.2d 77 (La. 1980)......... 9

State v. Lewis, 367 So.2d 1155 (La. 1969).......... 8

State v. Martin, 382 So.2d 933 (La. 1980).......... 9

State v. Williams, 392 So.2d 448 La. 1980)......... 9

State v. 2 NO. 80-K-2345,

SSS | 10°

Louisiana Revised Statute 15:529.1.............. 2

Louisiana Revised Statute 40:969................ 2

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

No. 81-1132

JAMES KELLY,

Petitioner

VS.

STATE OF LOUISIANA,

Respondent

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE

STATE OF LOUISIANA

STATEMENT OF THE CASE

On August 24, 1978, officers of the New Orleans

Police Department served a search warrant on 2705

Belmont Street, apartments E' and F“, in the City

of New Orleans. A quantity of tablets proscribed by

Louisiana’s Controlled Dangerous Substances

statutes were seized from apartment F“. Petitioner,

2

James Kelly was present in that apartment at the

time of the search and seizure. He was arrested and

charged with possession of narcotics with intent to

distribute, a violation of Louisiana Revised Statute

40:969. Petitioner was tried before a twelve member

jury on November 21 and 22, 1978. He was found

guilty as charged. Following a hearing on June 18,

1979, petitioner was determined to be a multiple of-

fender pursuant to La.R.S. 15:529.1 and was sentenc-

ed to serve twenty years in the custody of the Director

of the Louisiana Department of Corrections.

Petitioner appealed his conviction and sentence

to the Louisiana Supreme Court which affirmed both

on September 8, 1981. (NO. 81-KA-0033). Petitioner

was denied a rehearing cn October 16, 1981.

ARGUMENT

Petitioner alleges that the convictions used by

the trial court in determining that he was a multiple

offender were constitutionally infirm. In proving that

petitioner was a multiple offender, the State relied

upon two prior conviction, one from 1963 and one

from 1972. Petitioner alleges that both of those con-

victions were unconstitutional and should not have

been accepted by the trial court in the enhancement

proceeding.

3

Petitioner argues that he was not represented

by counsel when he pled guilty in 1963. The record

belies that allegation. The minute entry for the date

petitioner pled guilty in 1963 clearly indicates that ap-

pellant was represented by counsel. The reverse of the

bill of information reads:

“Arraigned July 29, 1963 and pleaded guilty.”

The minute entry for that date reads:

“July 29/63

“Jay

cused for sentence Tuesday,

July 30th 1963.“

(State Court Record, p. 62)

It is obvious, therefore, that peti-

tioner was represented by counsel when

the plea of guilty was entered. That con-

viction was lawfully used to enhance

titioner’s sentence. Burgett v. Texas,

9 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d

319 (1967); Gideon v. Wainwright, 372

noes - 83 S.Ct. 792, 9 L.Ed.2d 799

1972 was constitutio

e

a

——t—— and his right to com-

pulsory process.

4

When petitioner pled guilty in

1972, the trial judge conducted th

following interview with petitioner:

BY THE COURT:

Are you James Kelly, Jr.?

BY THE DEFENDANT:

Yes, sir.

BY THE COURT:

How old are you?

BY THE DEFENDANT:

Thirty-four.

BY THE COURT:

Where were you born?

BY THE DEFENDANT:

New Orleans.

BY THE COURT:

What’s the date of your birth?

BY THE DEFENDANT:

1938, April 16th.

BY THE COURT:

Do you know where your parents

were born?

BY THE DEFENDANT:

My mother was born in Mississippi;

my father was born in Louisiana.

BY 2 — 1 *

ou were originally c in this

case, along with Anita Lynn Kelly,

with possession of heroin with t

intent to distribute. Your at-

torney pled guilty to possession of

heroin which was accepted by the

District Attorney. Is that your

— guilty to possession of

BY THE DEFENDANT:

Yes, sir.

BY THE COURT:

When you plead guilty, you lose or

give up certain rights to a trial by

jury, the right to see the

witnesses against you and inter-

rogate them, cross examine them,

you and/or your lawyer. You lose

your right to remain silent because

when you plead guilty you're not

remaining t. Do you unders-

tand that? ‘

BY THE DEFENANT:

Yes, sir.

BY THE COURT:

You — _ your 1 mb get —

ap ou were foun y

because dese there is no trial

there is nothing from which to ap-

peal. Do you understand that and

you are willing to give up that

right?

BY THE DEFENDANT:

Yes, sir.

BY THE COURT:

By pleading guilty, you waive, give

up, lose, forfeit or whatever you

want to call it all of the rights that

I've just explained to a Are

you satisfied to do that

BY THE DEFENDANT:

Yes, sir.

9

For this ore see one at Se

years at hard labor or a fine of one

thousand dollars or both. Do you

understand that:

BY THE DEFENDANT:

Yes, sir

BY THE COURT:

nas os ee ty because

= fact you are guilty of tis of

ense?

BY THE DEFENDANT:

Yes, sir.

BY THE COURT:

Did 2 force you to do this,

—.— in any way to make

you — guilty?

BY THE DEFENDANT:

No, sir.

BY THE COURT:

You're doing it voluntarily?

BY THE DEFENDANT:

Yes, sir.

(State Court Record, pp. 69-72)

This colloquy was sufficient for the trial judge

to determine that petitioner was aware of the connota-

tions and consequences of his plea of guilty.

7

The proposition inherent in petitioner’s argu-

ment is that express waivers of three specific constitu-

tional guarantees are necessary before a guilty plea

can be properly entered against a defendant. This pro-

position finds its roots in a number of decisions of the

Louisiana Supreme Court interpreting Boykin v.

Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274

(1969).

In Boykin, this Honorable Court held that it

was “error, plain on the face of the record, for the trial

judge t accept petitioner’s guilty plea without an af-

firmative showing that it was intelligent and volun-

tary.” 395 U.S. at 242, 89 S.Ct. at 1711, 23 L.Ed.2d at

279.

This Court went on to note that the waiver of

several federal constitutional rights is involved in a

plea of guilty:

“First is the privilege against com-

p self-incrimination guaranteed by

the Amendment and applicable >

the State by reason of the Fourteenth

Second, is the right to trial by

jury . Third, is the 1 2

nt one’s accusers. . e cannot

resume a waiver of these three impor-

t federal rights from a silent record.

395 U.S. at 243 89 S. Ct. at 1712.

8

Boykin does not, however, require that the

judge explicity inform the defendant of each of those

three rights before accepting a guilty plea. Barksdale

v. Blackburn, No. 80-3782 (5th Cir. 1982); Brown v.

Jernigan, 622 F.2d 914 (5th Cir. 1980), cert. denied,

449 U.S. 958, 101 S.Ct. 368, 66 L.Ed.2d 224; Mc

Chesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973),

cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d

109; see also Brady v. United States, 397 U.S. 742, 90

S.Ct. 1463, 25 L.Ed.2d 747 (1970).

Nevertheless, the Louisiana Supreme Court,

from it first embrace of Boykin in State ex rel

Jackson v. Henderson, 255 So.2d 85 (La. 1971), has re-

quired that pleas of guilty be accompanied by express

waivers of those three constitutional rights.'

As if in recognition that the litany required by

State ex rel. Jackson v. Henderson is a mere embellish-

ment upon Boykin, the Louisiana Supreme Court has

ruled that the requirement, although purported to be

1. In his application, petitioner refers to the right to com-

pulsory process as another required right, citing State v.

Lewis, 367 So.2d 1155 (La. 1969). In a footnote to that

decision, the Louisiana Supreme Court rejected com-

pulsory process as one of the rights, a waiver of which is

required, because it was not mentioned in Boykin. 367

So.2d at 159, Fn. 2.

of constitutional significance is not retroactive and is

only to be applied to pleas of guilty from Louisiana

courts. Pleas of guilty before the date of State ex rel.

Jackson v. Henderson, all federal pleas and all pleas

from other states are, at most, only required to be

demonstrably free and voluntary. State v. Bolton, 379

So.2d 722 (La. 1979); State v. Holden, 375 So.2d 1372

(La. 1979).

In order to enforce its own procedural require

ment, the Louisiana Supreme Court directed that the

only acceptable proof as to the correctness of the collo-

quy be a transcript of that colloquy. State v. Jeffer

son, 376 So.2d 77 (La. 1980).

In 1980, the Louisiana Supreme Court added an

additional requirement that a defendant pleading guil-

ty be informed that the privilege against self-

incrimination extended to the right to remain silent at

trial. State v. Martin, 382 So.2d 933 (La. 1980). Peti-

tioner, on appeal to the Lousiana Supreme Court

relied heavily upon that hypertechnical requirement

which has since been repudiated by the Louisiana

Supreme Court. State v. Bowick, NO. 80-KA-2793,

_____ So.2d ___ (La. 1981); State v. Williams, 392

So. 2d 448 (La. 1980).

The Louisiana Supreme Court has begun to

10

back down on other facets of its extension of Boykin.

As the Louisiana Supreme Court pointed out in its

opinion in the instant case, the litany requirement is

now imposed only in recent Louisiana felony cases.

State v. Williams, NO. 80-K- 2345. 80.280

(La. 1981). In the case of pleas more than six years

old. the record must only demonstrate the essential re-

quirement of Boykin, that the defendant voluntarily

pled guilty with a full understanding of the connota-

tion and consequences. State u. Cusher, NO.

80-K-2518, __.__. So.2d ___ (La. 1981).

The colloquy in the instant case demonstrates

that the judge not only made certain that petitioner

was entering the plea of guilty freely, intelligently,

and with awareness of its connotation and conse

quences in compliance with Boykin but also insured

that petitioner was aware that he was waiving the

three constitutional rights as required by the stricter

Louisiana requirements, recent developments in the

law notwithstanding.

CONCLUSION

The two pleas of guilty introduced against peti-

tioner in the multiple offender proceeding were con-

stitutionally sound. His allegations of error are, con-

11

sequently, without merit. His petition for a writ of

certiorari to the Supreme Court of Louisiana should

be denied.

Respectfully submitted,

WILLIAM J. GUSTE, IR.,

Attorney General of the

State of Louisiana

HARRY F. CONNICK,

District Attorney of Orleans Parish

JOHN H. CRAFT,

Assistant District

Attorney of Orleans Parish

619 South White Street

New Orleans, Louisiana 70119

Tele: (504) 822-2414, Ext. 605