# Record and brief — Kelly v. Louisiana

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Record and brief
- **Published:** January 1, 1982
- **Citation:** 456 U.S. 925

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0917%3A0. Public record. Not legal advice.