Record and brief — Stallings v. Fletcher

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FILED

No. APR 28 1999

ALEXANDER L. STEVAS

Cl Crp.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

—-

JAMES C.STALLINGS, - - - - Petitioner

LLOYD FLETCHER and

STEVEN L. BESHEAR, : : : Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

C. THOMAS HECTUS

GITTLEMAN, CHARNEY & BARBER

800 Marion E. Taylor Building

Louisville, Kentucky 40202

(502) 585-2100

Counsel for Petitioner

OLIVER H. BARBER

GITTLEMAN, CHARNEY & BARBL“R

800 Marion E. Taylor Building

Louisville, Kentucky 40202

(502) 585-2100

Of Counsel for Petitioner

April 2% , 1982

WESTERFIELD-PONTE CO., 619 W. KENTUCKY—P.O. BOX 3251, LOUISVILLE. KY.

QUESTIONS PRESENTED FOR REVIEW

Whether Petitioner Was Deprived of the Unfettered Assis-

tance of Counsel and Due Process of Law as Interpreted

by This Court in Brooks v. Tennessee When the State

Trial Court Ordered Petitioner to Either Testify Before

His Last Witness, or Not at All?

II.

Whether Petitioner’s Conviction Was Obtained in Violation

of Due Process of Law When the State Trial Court

Admitted Evidence Which Was the Fruit of a Warrant-

less Search Conducted in Violation of the Fourth

Amendment to the United States Constitution, as Inter-

preted by This Court in Mincey v. Arizona and Mich-

igan v. Tyler?

TABLE OF CONTENTS

PAGE

EE ci ccacekcdinecheseveneunainens i

EE oes re ckeaubaedenekéwuenades ii

ENE OT ETE TT CTT CTT Tee Ce iii

SME ccacecncdcédhdenseedencacdsedencece 1

PN iinet dU aes sdbgewsebnndhseeesscaneens 1

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

IE II oockec vacccevccedeencsensese 2-13

REPO PEP PETC TT OT CET CTTT TT TTT TOTT TTT 13-25

I. The Opinion of the Sixth Cireuit Court of Ap-

peals Holding That Petitioner Was Not Denied

Due Process of Law and the Unfettered Assis-

tance of Counsel by the State Trial Court’s

Order Compelling Petitioner to Testify Before

His Last Witness Conflicts With the Decision

of This Court in Brooks v. Tennessee ........ 13-17

II. The Opinion of the Sixth Circuit Court of Ap-

peals Upholding the Warrantless Search of

Petitioner’s Residence and Seizure of Items

Therefrom Which Were Subsequently Admitted

as Evidence at Petitioner’s Trial Violated the

Fourth and Fourteenth Amendments as Inter-

preted by This Court in Mincey v. Arizona and

I Gi BD ocikcccccccenedbeedecensecs 18-25

ST ices dhncouesesesucedenesauensasdeneees 25

te. <2 .6 ssesakeensebeseuesusees 26

TABLE OF AUTHORITIES

PAGE

Bell v. State, Miss., 5 So. 389 (1889) ............... 17

Brooks v. Tennessee, 406 U. 8. 605, 92 S. Ct. 1891, 32

i MU SG. pk bene ccc decdsbucesecs 12, 16-17

Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038,

Sir ee OE EE needidcceccdccsascsesectce 16

Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23

Sic Se I EE 0.8 46566640sbn0eeekenciedes 23

Michigan v. Tyler, 436 U. S. 499, 98 S. Ct. 1942, 56

Pe CUED i ccpacdnddecedcusedacds 12, 22, 23

Mincey v. Arizona, 437 U. S. 385, 98 S. Ct. 2408, 54

S & ff error errr 12, 23-24

Nassif v. District of Columbia, D.C., 201 A. 2d 519

Dn. d44 cdecbiaseenetedaddnusédds ots wenneucs 17

Schneckloth v. Bustamonte, 412 U. S. 218, 93 S. Ct.

2041, 36 L. Eid. 854 (1973) ..........ccccccccess 22

Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed.

DED <.ciuerenilaes wavdebpedeenaneenes 23

Townsend v. Sain, 372 U. S. 293 (1963) ............. 13

Stallings v. Commonwealth, Ky., 556 S. W. 24 4 (1977) 3,11

Vale v. Louisiana, 399 U. S. 30, 90 S. Ct. 1969, 26

SN ED sccvngencesahesssuatecsces< 21

SUPREME COURT OF THE UNITED STATES

October Term, 1981

No.

James ©. Stanuinacs, - - - - ~~ Petitioner

Luioyp FLETCHER and

Steven L. BesHearR, - - - - Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner, James C. Stallings, respectfully prays

that a Writ of Certiorari issue to review the opinion of

the United States Court of Appeals for the Sixth

Circuit entered on February 17, 1982, affirming the

denial of habeas corpus relief.

OPINION BELOW

The opinion of the United States Court of Appeals

for the Sixth Circuit was rendered on February 17,

1982. No hearing was sought. [Appendix, herein-

after A., pp. 27-30].

JURISDICTION

The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. § 1257(3). The opinion of the United

States Court of Appeals for the Sixth Circuit was

rendered on February 17, 1982,

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the United States Con-

stitution, in pertinent part:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreason-

able searches and seizures, shall not be violated. ...

The Fifth Amendment to the United States Con-

stitution, in pertinent part:

No person . . . shall be compelled in any criminal

case to be a witness against himself . . ..

The Sixth Amendment to the United States Con-

stitution, in pertinent part:

In all criminal prosecutions the accused shall enjoy

the right . . . to have the assistance of counsel

for his defense.

The Fourteenth Amendment to the United States

Constitution, in pertinent part:

No state shall . . . deprive any person of life,

liberty, or property, without due process of law

STATEMENT OF THE CASE

On October 14, 1975, Petitioner, then a detective

with the Owensboro, Kentucky police, was indicted by

the Daviess County Grand Jury for murder by ‘‘inten-

tionally killing Catherine Stallings, Michael Stallings

and Phillip Stallings during the commission of arson

in the first degree.’’ [Transcript of Record, ‘herein-

after T.R., p. 3]. Petitioner was first tried and con-

victed of the charged offenses in April, 1976. This

conviction, however, was reversed on appeal. Stallings

v. Commonwealth, Ky., 556 8. W. 2d 4 (1977). Peti-

tioner was then tried a second time. This trial ended

in a mistrial when the jury was unable to reach a’

verdict.

Petitioner’s case went to trial for the third time in

December, 1978. For this third trial, a change of

venue was ordered to Jefferson County, Kentucky.

[T.R., pp. 9-10].

Prior to this trial, Petitioner moved to suppress

evidence seized at the scene of the fire. [T.R., pp. 82-

83]. Petitioner alleged that the evidence in question

was seized after the fire was extinguished, and without

a warrant. [Jd.]. Petitioner’s motion for a hearing

was denied. [Transcript of Pretrial Hearing, here-

inafter P.H., pp. 15-30].

Douglas Richardson, a patrolman with the Owens-

boro Police Department, was the first officer to arrive

at the scene. [T.E. II, p. 325]. Richardson saw fire

coming from the second story of the Stallings home.

[T.E. II, p. 326]. Richardson found Petitioner at the

scene, who said to Richardson ‘‘they cut my tires and

they cut my screen and now this.’”’ [Jd.]. Petitioner

also told Richardson that an intruder had shot at him-

self and his wife, and that Petitioner had rolled from

the bed, grabbed his revolver from the nightstand, and

returned fire. [‘T.E., II, p. 327].

Officer MeGlothin of the Owensboro Police was

the second officer to arrive at the scene. [T.E. II,

p. 341]. Upon arriving, McGlothlin asked Petitioner

what had happened to his wife, and Petitioner an-

swered ‘‘the son-of-a-bitch shot her.’’ [Jd.].

Fred Wahl, Chief Deputy Coroner of Daviess

County, testified that Mrs. Stallings had been shot five

times. [T.E. III, p. 399]. Two of Petitioner’s chil-

dren died of smoke inhalation.

Jack Braden, a detective with the Owensboro Police

Department, testified that he had formerly worked witn

Petitioner in doing investigative work. [T.E. ITI,

p. 413]. Braden testified that Petitioner said he pur-

sued the armed intruder and found that the stairway

leading upstairs was on fire. [Jd.]. Petitioner then

woke his daughter Jamie, and carried h's wife outside.

[Id.]. Braden identified several photographs of the

scene, including a photograph of closet doors contain-

ing bullet holes from Petitioner’s shots. T.E. ITI,

p. 427]. Petitioner objected to the admission of this

testimony on renewed search and seizure grounds.

[T.E. III, p. 425]. Braden also testified that, based on

the angle of entry and exit, the shots fired into the

closet door could not have been fired from the position

described by Petitioner. [T.E. III, p. 434]. Defense

objection to this testimony was overruled. [Jd.].

Braden testified that after questioning Petitioner, he

returned to the scene to get his car. [T.E. ITI, p. 437].

A search of Petitioner’s car disclosed an RG .38 pistol

in the car’s trunk. [T.E. III, p. 439]. Finally, Braden

testified that two or three weeks before the fire, he was

called to the Stallings house to investigate a break-in.

[T.E. III, p. 443]. Braden had found the window to

the back door broken. [T.E. ITI, p. 445].

Charles Porter of the Owensboro Police testified

that he also took part in the investigation of Petition-

er’s case. [T.E. III, p. 479]. Porter arrived at the

scene at 4:45 A.M. [T.E. ILI, p. 480]. Petitioner ob-

jected to testimony concerning other weapons found

at the scene. [T.E. III, p. 494]. Trial defense counsel

again moved for an evidentiary hearing to determine

the legality of the search previously challenged. [T.E.

III, p. 495]. Petitioner’s request for a hearing was

again denied. T.E. III, p. 497]. Officer Porter then

testified that a revolver, a .357 magnum, and a .25 auto-

matic were found in the house. [T.E. III, p. 498].

Porter also identified a .38 Smith and Wesson found in

the glove compartment of Petitioner’s car. [T.E. III,

p. 500].

The Commonwealth next introduced the previous

trial testimony of Officer Fred Hall. [T.E. ITI, p.

523]. According to Hall, Petitioner had also told him

that he owned three guns—a model 60, a .357 magnum,

and a .25 automatic—but did not mention an RG .38.

[T.E. III, p. 530]. Neither did Petitioner mention the

gun found in his car’s glove compartment. [Jd.].

Hall testified that he had once picked Petitioner up

at his home, that Petitioner was apparently angry at

the time, and that in response to the question ‘‘ What

have you got—trouble at home?’’, Petitioner said ‘‘T

am going to have to kill all those damn son-of-a-bitches

someday.’’ [T.E. IV, pp. 538-539].

Bob Norris, formerly an officer with the Owens-

boro Police, identified an arrest report dated October

5, 1969, showing that he, an Officer Long, and Peti-

tioner had on that date arrested an individual for

carrying a concealed deadly weapon. [T.E. IV, pp.

562-563]. The weapon was confiscated and later re-

leased to Norris and Officer Long. ['T.E. IV, pp. 563-

564]. Norris and Long flipped a coin for the gun and

Norris won. [T.E. IV, p. 565]. According to Norris,

he later sold the gun to Petitioner. [T.E. IV, p. 566].

Norris identified the RG .38 previously introduced by

the Commonwealth as the gun he had sold to Peti-

tioner. [T.E. IV, pp. 566-567].

Willard Weidemann of the Owensboro Police testi-

fied that he participated in a search of the Stallings

house after the fire was brought under control. ['T.E.

1V, p. 597]. Weidemann observed bullet holes in the

bedroom closet doors and had the doors removed. [T.E.

IV, p. 598]. The doors were introduced into evidence.

[T.E. IV, p. 600]. Weidemann also identified and in-

troduced into evidence a Model 60 Smith and Wesson,

containing five spent cartridges, which was found on

the bedroom floor. [T.E. IV, pp. 601]. Weidemann

also identified a .357 magnum ['T.E. IV, pp. 614-615],

its cartridges [T.E. IV, pp. 617-618], a .25 automatic

[T.E. IV, pp. 619-620], and its shells. [Jd.].

Oswald Maglinger, Assistant Chief of the Owens-

boro Fire Department, testified that the fire had al-

ready ventilated through the roof upon his arrival at

the scene at 4:20 A.M. [T.E. IV, p. 665]. Maglinger

stated that a fire started by natural causes would not

have reached this intensity so quickly. [T.E. IV, p.

669]. The two-by-fours showed a deep charring which

Maglinger stated was suggestive of an accelerant.

| T.E. LV, p. 673]. It was Maglinger’s opinion that the

fire originated at the foot of the stairs leading to the

second floor. [T.E. IV, p. 674].

George Gordon, an Owensboro fireman, testified

that he could smell gasoline on the second floor of the

house. [T.E. V, p. 688]. Samples of wood, carpet,

and ashes for testing were cut from the stairease with

a power saw. [T.E. V, p. 690].

Walter Freeman, Chief of the Owensboro Fire

Department, also testified that, in his opinion, the fire

was started with an accelerant. ['T.E. V, p. 701].

Clay Cessna, of the State Police Arson Division,

testified that he removed samples from the base of the

stairway, and from the first and second floors, and took

them to the Crime Lab. [T.E. V, p. 721]. Cessna

stated as his opinion that the fire was the result of

arson. [T.E. V, p. 723].

Barry Marston, a chemist with the State Crime

Lab, testified that he received the samples taken from

Petitioner’s home, Petitioner’s bluejeans, and the var-

ious gasoline samples for testing. [T.E. V, p. 782].

Marston’s testing revealed that the samples of wood,

ashes, and carpet, taken from the Stallings staircase,

as well as Petitioner’s bluejeans, contained traces of

‘flammable petroleum hydrocarbon having the char-

acteristics of gasoline.’”’ [T.E. V, pp. 785-788].

During a recess held at this point, trial defense

counsel objected to the intention of the trial court to

compel Petitioner to present his case, until finished,

without recessing for the evening. [T.E. V, pp. 814-

817]. Petitioner’s objection was overruled.

Next, David Williams, a firearms expert with the

State Crime Lab, testified that he had received the five

guns seized from Petitioner’s home and car as well as

the recovered spent shells. [T.E. V, pp. 820-821].

Trial defense counsel stipulated that the shells re-

covered from the body of Mrs. Stallings were fired

from the RG .38. [Jd.]. Williams testified that the

shells recovered from the closet doors were fired by the

Smith and Wesson Model 60. [T.E. V, p. 824]. Wil-

liams also testified that he had determined the angle of

incidence of the bullets which had struck the closet

doors and had concluded that the shots were fired into

the doors at a downward angle, from a point five to six

feet away and no lower than fifty-two inches from the

floor. [T.E. V, pp. 827-829]. Williams also received

and tested Mrs. Stallings’ nightgown for firearm resi-

duc and found residues indicating that two of the shots

had been fired from only one foot away. [T.E. V,

pp. 834-835]. Williams further testified that the swab

taken from Mrs. Stallings’ right wrist tested positively

for firearm residues, indicating a range of approxi-

mately two feet. [T.E. VI, p. 841].

David Orahood, a pathologist, found powder burns

on Mrs. Stallings’ arms, and was of the opinion that

the victim could not have been shot from the foot of

the bed. ['T.E. VI, pp. 880; 885]. This concluded the

Commonwealth’s case.

At this point, the trial court recessed the jury until

5:00 p.m. with directions to come back ‘‘prepared for

a long session.’’ ['T.E. VI, p. 907]. Defense objection

was overruled. [T.E. VI, pp. 909-910]. The trial

court agreed to permit the defense to present one wit-

ness on the following day —a chemist who was then

unable to be present — but refused to permit Petitioner

to take the stand on the following day after the chemist.

[T.E. VI, p. 917].

Kenneth Stallings, Petitioner’s brother, testified

that Petitioner had told him on several occasions be-

fore the fire that he had received threatening phone

ealls and that Petitioner had even had his phone num-

ber changed. ['T.E. V’, pp. 978-979]. Ken Stallings

also related that someone had, previous to the incident,

tried to break in his brother’s door. ['T.E. VI, p. 980].

Cleveland Stallings, Petitioner’s father, testified

that approximately a week before the incident Peti-

tioner told him that Mrs. Stallings’ keys had been

stolen. [T.E. VI, p. 983]. Petitioner’s father also

corroborated the preceding testimony concerning

threatening phone calls and the attempted break-ins.

John Rogers, an investigator for the defense, testi-

fied that the pattern of shots fired into Mrs. Stallings

was reflective of the bucking of a gun for which an

inexperienced gunman would fail to correct. ['T.E.

VII, pp. 998-1000].

Jamie Stallings, Petitioner’s surviving daughter,

testified that, on the morning of the fire she was

awakened by her father who told her to leave the house.

[T.E. VII, p. 1006]. After they had exited the house,

Jamie saw her father attempt to get inside, but he was

driven out by the smoke. ['T.E. VII, p. 1008]. Jamie

had not smelled gasoline. ['T.E. VII, p. 1010].

At this point, trial defense counsel announced to

the court that all of the defense witnesses had testified,

with the exception of Petitioner and the chemist who

would be unavailable until the next day. [/T.E. VII,

p. 1013]. Petitioner’s request that Petitioner be al-

lowed to testify the next day after the chemist was

again overruled. [Jd.].

Petitioner then took the stand. Petitioner related

that before the incident he had received a number of

threatening phone calls; that two screens to the house

had been cut; and, that someone had tried to break in

on two occasions. ['T.E. VII, p. 1014]. On the morn-

ing of the fire, Petitioner related that he was awakened

by a man standing at the foot of his bed. [T.E. VII,

p. 1016]. Petitioner rolled off the bed as shots were

fired. ['T.E. VII, p. 1017]. Petitioner picked up his

gun from the floor, fired back, and pursued the intruder

until he discovered the fire. [T.E. VII, p. 1018]. Pe-

titioner testified that the bluejeans introduced by the

commonwealth were not his. ['T.E. VII, p. 1027].

Petitioner denied having threatened his family in the

presence of Fred Hall, or having purchased two gallons

of Amoco gas. [T.E. VII, p. 1030]. Petitioner also

denied that he was the owner of the RG .38. [T.E.

VII, p. 1032].

On the following day, Petitioner called his final

witness, Peter Armendarez, a chemistry professor at

Berea College. ['T.E. VII, p. 1085]. Dr. Armendarez

examined the test results and data of the Crime Lab

with reference to the trace hydrocarbons found on the

bluejeans, carpet, and other samples from Petitioner’s

home, and concluded that the hydrocarbons were not

Amoco gasoline, as contended by the Commonwealth.

[T.E. VII, pp. 1096-1097].

Following Dr. Armendarez’s testimony the defense

requested that it be allowed to recall Petitioner to the

stand to ask some questions previously forgotten.

[T.E. VII, p. 1119]. This request was denied. [Jd.].

Petitioner’s testimony was entered into the record as

an avowal. ['T.E. VII, pp. 1120-1122].

Contrary to Petitioner’s plea, Petitioner was con-

victed of the intentional murder of his wife and the

wanton murder of his children. ['T.E. VIII, p. 1184].

Judgment sentencing Petitioner to two consecutive

twenty year terms was entered accordingly on De-

cember 29, 1979. ['T.R., pp. 280-281].

PROCEDURAL HISTORY

All issues raised herein were likewise raised at trial.

On appeal to the Supreme Court of Kentucky, Peti-

tioner’s convictions were affirmed. [Stallings v. Com-

monwealth, 79-SC-306-MR (January 15, 1980) (Mem-

orandum Opinion Per Curiam) }.

As to Argument I herein, the Supreme Court of

Kentucky held that the trial court did not err in re-

quiring Petitioner to testify before his final witness,

notwithstanding the holding of this Court in Brooks

v. Tennessee, 406 U. 8. 605, 92 S. Ct. 1891, 32 L. Ed. 2d

358 (1972).

Argument II raised herein was reviewed and dis-

posed of in the following manner:

‘* Appellant raises other allegations of error. Suf-

fice it to say that we do not find these allegations

to be meritorious and they will not be addressed.’’

[Stallings v. Commonwealth, 79-SC-306-MR, p. 3].

After being denied federal habeas corpus relief in

the United States District Court for the Western

District of Kentucky, Petitioner appealed +o the United

States Court of Appeals for the Sixth Circuit. The

Sixth Circuit found that the trial court’s order requir-

ing petitioner to proceed with his own testimony be-

fore all of his witnesses had been called did not violate

due process, where it appeared that the last witness

which Petitioner’s attorney had intended to call was

not available until the following day. Accordingly, the

Sixth Circuit found that Petitioner’s reliance upon

Brooks v. Tennessee was misplaced.

As to Petitioner’s allegation that evidence was ad-

mitted against him in violation of the Fourth and

Fourteenth Amendment, the Sixth Circuit found that

both the police search and the arson search were justifi-

ably initiated without a search warrant, pursuant to this

Court’s opinion in Michigan v. Tyler. Notwithstanding

the wholly separate homicide scene investigation, the

Sixth Cireuit found that Mincey v. Arizona had no

application to the facts of this case. It is important

to note that there was no evidentiary hearing, to which

petitioner asserted he was entitled pursuant to Town-

send v. Sain, 372 U. 8. 293 (1963). While the Sixth

Circuit found it would have been a ‘‘preferable pro-

cedure”’ to have held a hearing, the Sixth Circuit found

no error in the determination of the state courts as to

the conduct of the investigation. Nonetheless, the

Sixth Cireuit also accepted for purposes of decision,

Petitioner’s allegation that the critical evidence was in

fact seized some six to twelve hours after the fire was

extinguished.

ARGUMENTS

Petitioner Was Convicted in Violation of His Guarantees

to Due Process of Law and the Unfettered Assistance

of Counsel Where the State Trial Court Compelled

Petitioner to Either Testify Before His Last Witness,

or Not at All.

During an in-chambers hearing held prior to the

close of the Commonwealth’s case, the trial court ruled

that the presentation of Petitioner’s case would begin

immediately after the close of the Commonwealth’s

case and would be concluded that evening. The record

reflects that the following exchange then took place

between the court and trial defense counsel:

Members of the jury you are now recessed until

five o’clock. When you come back at five o’clock,

be prepared for a long session. [JId.].

Trial defense counsel stated the basis for his objection

to the ruling of the trial court as follows:

Your Honor, I think it is per se unfair to begin

the case at this hour for the defense, in a much as

it has been another long day. We have pursued

the case for four days at the Commonwealth’s di-

rection. I know the Court feels that it may have

been dragged out due to unnecessary cross exam-

ination by the defendant, however, we have dis-

cussed that before.

I think the heart of my argument is supported by

the Supreme Court case—the U.S. Supreme Court

ease of Brook versus Tennessee which says that

the defendant has a right to testify at any time

during the course of his defense and that does

not mean at the close of Commonwealth’s case, it

means before he rests his case and as reported to

the Court that was anticipated to be tomorrow.

All along this has been scheduled as a five day

case and tomorrow is Friday and the jury is

tired and now here we are being requested to pre-

sent our case to a jury which has had a full day

at five o’clock when the prosecution had four days

of avguing its case in front of a fresh jury and

now here we are being requested, in fact, forced,

to present our case and we are only permitted

tomorrow to put on a chemist from Owensboro.

I would think that there is no compelling reason

for the case to be finished today. There was no

prosecution deadline announced. I don’t believe

that the Fourteenth Amendment, Due Proces and

Due Protection clauses are going to be fully af-

forded my client and I think that he has a right

to present his defense in a manner equitable with

the Commonwealth’s manner. ['T.E. VI, pp. 910-

912].

The trial court ruled that the defense could call one

witness on the following morning, i.e., a chemist who

was unable to be present earlier. [T.E. VI, p 915].

However, the trial court did not retreat from its ruling

that the balance of Petitioner’s case must be presented

that evening. [T.E. VI, p. 917]. The trial court ad-

ditionally denied a defense request that Petitioner be

permitted to testify the following morning after the

chemist. [Jd.].

Petitioner, in accordance with the trial court’s rul-

ings, proceeded to examine his witnesses. When all

the witnesses had testified with the exception of Pe-

titioner and the absent chemist, trial defense counsel

made the following motion:

First of all, I have run out of witnesses. By this

I mean, I have used the witnesses that are the

defense’s portion of the case with the exception

of two. Let the record refle*t that it is ten minutes

to eight p.m. on this, the 14th day of December,

and, Your Honor, in all due respect the defend-

ant’s testimony is quite lengthy and I would like

to have the jury consider his testimony as the last

stage in this trial.

I know you have ruled, sir, I don’t want to upset

you or aggravate you but I would like for you to

reconsider and let us go home and have the de-

fendant testify tomorrow. ['T.E. VII, p. 1013].

Petitioner’s motion was again denied. [Jd.] Peti-

tioner then took the stand.

At the conclusion of Petitioner’s testimony, trial

defense counsel requested a mistrial based on the trial

court’s rulings:

It is now nine-fifteen and I ask the Court for a

mistrial based upon the Judge’s failure to carry

the case over until tomorrow morning as antici-

pated and that further I do not feel that I have

competently represented my client in the manner

to which he is entitled to under the law. Lastly,

because I have now lost the effectiveness of the

defendant testifying just prior to the jury re-

ceiving the case, that effectiveness has been lost

and the defendant has been severely prejudiced

and that is all I have. [T.E. VI, p. 1063].

Predictably, Petitioner’s motion was denied. [Jd.].

The right of an accused to a fair trial includes the

right to a fair opportunity to defend against the state’s

accusations by calling witnesses and presenting evi-

dence in his own behalf. “hambers v. Mississippi,

410 U. S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).

Petitioner submits that in the instant case he was de-

prived of a fair trial by the ruling of the trial court

which forced him to choose between taking the stand

prior to another witness, or not testifying at all.

In Brooks v. Tennessee, 406 U. 8. 603, 92 S. Ct.

1891, 32 L. Ed. 2d 358 (1972), this Court held uncon-

stitutional a statute requiring a defendant to take the

stand prior to other defense witnesses or forego his

right to testify. Explaining the deprivation of due

process worked by the statute, the Court stated:

Whether the defendant is to testify is an important

tactical decision as well as a matter of constitu-

tional right. By requiring the accused and his

lawyer to make that choice without an opportunity

to evaluate the actual worth of their evidence, the

statute restricts the defense—particularly counsel

—in the planning of its case. Furthermore the

penalty for not testifying first is to keep the de-

fendant off the stand entirely, even though as a

matter of professional judgment his lawyor might

want to eall him later in the trial. The accused is

thereby deprived of the ‘‘ guiding hand of counsel’’

in the timing of this critical element of his defense.

While nothing we say here otherwise curtails in

any way the ordinary power of a trial judge to

set the order of proof, the accused and his counsel

may not be restricted in deciding whether, and

when in the course of presenting his defense, the

accused should take the stand. Id., at 1895. (Em-

phasis added).

The ruling of the state trial court, like the statute

challenged in Brooks, compelled Petitioner to testify

prior to other witnesses, at an extremely disadvan-

tageous time or not at all. The trial court’s ruling

thus deprived Petitioner of due process. Cf. Nassif

v. District of Columbia, D.C., 201 A. 2d 519 (1964) ;

Bell v. State, Miss., 5 So. 389 (1889).

Because the state trial court violated Petitioner’s

right to due process of law by requiring him to testify

before his last witness, his conviction must be vacated.

Accordingly, the Court should review the disposition

of his case by the Sixth Cireuit Court of Appeals,

II.

Petitioner’s Convictions Were Obtained in Violation of Due

Process of Law Where the Trial Court Admitted Evi-

dence Seized Pursuant to a Warrantless Search of Peti-

tioner’s Residence.

Prior to Petitioner’s trial, trial defense counsel

moved to suppress all evidence seized in a warrantless

search of Petitioner’s home conducted by firemen and

police officers after the fire had been extinguished.

['T.R., pp. 82-83]. This evidence consisted of the fol-

lowing: 1) three guns and the cartridges in them re-

moved from Petitioner’s bedroom ['T.E. IV, pp. 601-

603, p. 606, p. 615, p. 618, pp. 619-620] ; 2) closet doors

from Petitioner’s bedroom [T.E. IV, pp. 598-599];

3) spent shells found inside the closet ['T.E. IV, p.

633]; 4) numerous photographs of the bedroom ['T.E.

III, p. 427; T.E. 1V, 622]; and 5) pieces of carpet

and wood removed from the staircase of Petitioner’s

home with a power saw [T.E. V, p. 720]. All of the

foregoing evidence was introduced at Petitioner’s trial.

Moreover, chemical analysis of the seized carpet and

wood samples was introduced to show that the fire had

been set with an accelerant. Also, testimony as to the

angle of entry of bullets into the closet doors was used

to discredit Petitioner’s account of the incident.

During a pre-trial argument on Petitioner’s motion

to suppress, Petitioner alleged that the complained of

search had taken place after the fire was extinguished

and that the search had extended into ‘‘the defend-

ant’s dresser and in his closet’’ [P.H. p. 16]. Peti-

tioner alleged that the fire was completely extinguished

by 7:30 a.m., but firemen had remained at the scene

‘until late in the afternoon . . . for the purpose of

securing evidence,”’ [P.H., p.17]. Although Petitioner

submitted that the fire was controlled by 7:30 am.,

and that the search had continued throughout the day

and extended into such areas as dresser drawers, the

trial court ruled that the search was justfied by

‘exigent cireumstances”’ [P.H., p. 29]. The trial court

also stated: ‘‘My finding is based on the representation

that you made to me about the facts. I’m not having

an evidentiary hearing” [P.H., p. 30; p. 21 (Emphasis

added) ].

During trial, Petitioner renewed his objection to

the admission of the seized evidence. ['T.E. ITI, p. 425,

p. 494]. Petitioner also requested that an evidentiary

hearing be held “‘for the purpose of determining

whether or not these persons had time to obtain a

warrant, whether there were exigent circumstances to

circumvent the necessity for a warrant...’ ['T.E.

III, p. 495]. Petitioner’s request was denied. ['T.E.

III, p. 497].

Despite the lack of a hearing, certain facts sur-

rounding the challenged search may be gleaned from

the record. Charles Porter of the Owensboro Police

testified that he and Detectives Braden and Nickens

returned to the scene after questioning Petitioner at

7:45 am. ['T.E. III, pp. 493-494]. According to

Porter ‘‘[w]e went back to the scene of the house,

different investigators and different detectives, and

we started getting some helv from the State Police

and checking out the house and looking for weapons,

anything that would help us in the investigation of

this homicide.”’ ['T.E. III, p. 494]. Porter stated that

the fire was ‘‘under control’’ by 6:45 a.m. [T.E. III,

p. 481]. Firemen remained on the seene ‘‘all day .. .

or three fourths of the day.’’ [T.E. III, p. 506].

Detective Weidemann testified that ‘‘we had De-

tective Hall and State Detective Nickens and an alcohol

and firearms and tobacco man by the name of Dave

Carmin, he was there, and we searched the crime scene

inside and out.”’ [T.E. IV, p. 596]. According to

Weidemann ‘‘[t]his was a thorough search.”’ [Jd.].

The police ‘‘went directly to the bedroom where the

shooting had occurred’”’. ['T.E. IV, p. 597]. Wiede-

mann ordered the closet doors, which contained bullet

holes, removed. ['T.E. IV, p. 598]. Weidemann testi

fied that Detective Nickens found the Model 60 under

some fallen insulation. [T.E. IV, p. 601]. The .357

magnum was found inside the closet ‘‘in plain view

when the doors were opened’’. ['T.E. III, pp. 614-616

emphasis added)]. The .25 automatic was found in a

dresser drawer. ['T.E. IV, pp. 618-619]. Spent shells

were found in the closet. [T.E. IV, p. 620]. Weide-

man was at the scene ‘‘till almost dark that night’”’ and

remained in the bedroom ‘‘[{a]ll but an hour and a

half.”’ [T.E. IV, p. 624]. Weidemann had first en-

tered the house at 6:00 a.m. [Jd.]. According to Weide-

mann ‘‘[t]here were officers continuously in the bed-

room.”’ [T.E. IV, p. 625]. The search included ‘‘sift-

ing through the insulation that fell’’ and forcing open

a locked gun cabinet. [T.E. IV, pp. 626-627]. In

response to the question ‘‘Did you have any reason to

believe that somehdy might remove from the scene

the evidence of that crime?’’ Weidemann responded,

‘*No, not while I was in charge of it.”’ [T.E. IV, p.

625].

Clay Cessna, an officer with the Arson Division of

the Kentucky State Police, supervised the removal

of samples of carpet and wood from the staircase of

the Stallings home. [T.E. V, p. 721]. The samples

were taken for laboratory testing to ascertain whether

an accelerate had been used. [T.E. V, pp. 722-723].

Cessna was in the house ‘‘from approximately six

thirty in the morning until noon’”’ and was ‘‘back in the

house later that evening and back in the house on dif-

ferent occasions’’ for ‘further investigation.’’ [T.E.

V, v. 731]. According to Cessna, the fire was extin-

guished by 6:30 am. [T.E. V. p. 732].

From the foregoing it is obvious that Petitioner’s

home was subjec*ed to an exhaustive warrantless search

which continued for ten to twelve hours after the fire

was controlled. The search was primarily concerned

with investigation of the apparent homicide and had

as its focal point the bedroom.

It is, of course, a fundamental principle that

‘*searches conducted outside the judicial process,

without prior approval by judge or magistrate, are

per se unreasonable under the Fourth Amendment—

subject only to a few specifically established and well-

delineated exceptions,’ Vale v. Louisiana, 399 U. 8.

30, 90 S. Ct. 1969, 1971, 26 L. Ed. 2d 409 (1970). The

burden of proof rests with the state in justifying a

warrantless search. Schneckloth v. Bustamonte, 412

U. S. 218, 93 8S. Ct. 2041, 36 L. Ed. 854 (1973).

In Michigan v. Tyler, 436 U. 8. 499, 98 S. Ct. 1942,

56 L. Ed. 2d 486 (1978), this Court was confronted

with a case factually similar to the case at bar. This

Court, dealing with a search conducted to determine

the cause of a fire, found that the scene of a fire may

present exigent circumstances necessitating immediate

investigation ‘‘to preserve evidence from intentional

or accidental destruction.”’ [Jd., at 1950]. The Court

stated its holding as follows:

In summation, we hold that an entry to fight a fire

requires no warrant, and that once in the building,

officials may remain there for a reasonable time

to investigate the cause of the blaze. Thereafter,

additional entries to investigate the cause of the

fire must be made pursuant to the warrant pro-

cedures governing administrative searches. [cites

omitted]. Evidence of arson discovered in the

course of such investigations is admissible at trial,

but if the investigating officials find probable cause

to believe that arson has occurred and require

further access to gather evidence for a possible

prosecution they may obtain a warrant only upon

a traditional showing of probable cause applicable

to searches for evidence of crime. (Emphasis

added).

The search conducted in the instant case is distin-

guishable from that in 7'yler in that is was not a search

intended merely to discover the cause of an unex-

plained blaze, but was instead expressly directed at

gathering evidence of homicide. The search was not

confined to the point of origin of the fire and damaged

areas, but ranged throughout the house, into closets

and closed drawers. There was no showing by the

Commonwealth that exigent circumstances demanded

an immediate search of so extensive a nature. [The

scope of a warrantless search is, of course, strictly

circumscribed by the purpose which legitimates the

search. Terry v. Ohio, 392 U. 8. 1, 88 S. Ct. 1868, 20

L. Ed. 2d 889 (1967) ; Chimel v. California, 395 U. 8.

752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969) ]. Moreover,

there was no showing by the Commonwealth that the ten

to twelve hours during which officers remained in and

searched the house was a ‘‘reasonable time’’ as required

by Tyler. It cannot be assumed that whatever exi-

gency existed, if any, continued throughout the day

so as to preclude the brief delay needed to obtain a

warrant.

learly, the mere fact that a fire has taken place at

the scene of a crime does not, alone, justify an un-

limited warrantless search. A more specific showing

of exigency is required.

That a specific showing of exigent circumstances is

required was clearly announced by this Couii in

Mincey v. Arizona, 437 U. 8. 385, 98 8S. Ct. 2408, 54

L. Ed. 2d 56 (1978). The Court in Mincey rejected the

claim of the state that a murder scene presented a

per se emergency requiring an immediate search:

We do not question the right of the police to re-

spond to emergency situations. Numerous state

and federal cases have recognized that the Fourth

Amendment does not bar police officers from mak-

ing warrantless entries and searches when they

reasonably believe that a person within is in need

of immediate aid. Similarly, when the police come

upon the scene of a homicide they may make a

prompt warrantless search of the area to see if

there are other victims or if a killer is still on the

premises. Cf. Michigan v. Tyler, supra, —— U.S.,

at ___-____, 98 8. Ct, at 1950-1951.

And the police may seize any evidence that is in

plain view during the course of their legitimate

emergency activities. Michigan v. Tyler, supra,

——. U.S. ——, 98 S. Ct., at 2037-2038.

But a warrantless search must be ‘“‘strictly cir-

cumseribed by the exigencies which justify its

initiation,’’ Terry v. Ohio, 392 U.S., at 25-26, 88

S. Ct., at 1882 . . . [d., at 2413-2414].

The Court, dismissing the general allegation of the

state that exigent circumstances had existed, observed :

There was no indication that evidence would be

lost, destroyed or removed during the time re-

quired to obtain a search warrant. Indeed, the

police guard at the apartment minimized that

possibility. And there is no suggestion that a

search warrant could not easily and conveniently

have been obtained. [Jd., at 2415-2416].

In the instant case, there is no dispute that the

Commonwealth failed to show any particularized ex-

igencies which would have justified a ten-to-twelve

hour long search of petitioner’s home. Nor are such

circumstances indicated by the trial testimony; thus,

the trial court’s finding of exigent circumstances can

ouly be regarded as unfounded. Because evidence

obtained in the unlawful, warrantless search was intro-

duced at Petitioner’s trial, petitioner’s conviction must

be vacated.

CONCLUSION

Petitioner’s case presents significant issues con-

cerning the constitutional restraints upon the power of

a trial judge to control the order of proof in criminal

eases, and the ability of the State to enlarge narrow

exceptions to the constitutional requirement of 2 war-

rant incident to the search of a home. The decision of

the Sixth Circuit is additionally in direct conflict with

prior decisions of this Court. For these reasons, a

writ of certiorari should issue to review the judgment

and opinion of the United States Court of Appeals for

the Sixth Circuit.

Respectfully submitted,

C. THomas Hectus

GITTLEMAN, CHARNEY & BARBER

800 Marion E. Taylor Building

Louisville, Kentucky 40202

(502) 585-2100

Member, Bar of the Supreme Court

of the United States

Counsel for Petitioner

O.tver H. BArser, JR.

GITTLEMAN, CHARNEY & BARBER

800 Marion E. Taylor Building

Louisville, Kentucky 40202

(502) 585-2100

Of Counsel for Petitioner

CERTIFICATE OF SERVICE

I, C. Thomas Hectus, counsel for petitioner, hereby

certify that the attached Petition for Writ of Certiorari

and Notice of Appearance was served on Respondents by

depositing three copies of the aforementioned documents

in the United States mail, first-class postage prepaid, on

April 7, 1980, addressed to respondent’s counsel, Hon. Paul

E. Reilender, Assistant Attorney General, Commonwealth

of Kentucky, Capitol Building, Frankfort, Kentucky 40601.

C. Tuomas Hectus

Member, Bar of the Supreme Court

of the United States

Counsel for Petitioner

wane

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

81-5499

James C.Statuincs, - - ~- Petitioner-Appellant

Luoyp FLetcHer and

Steven L. BesHear, - - Respondents-A ppellees

ORDER—Filed February 17, 1982

Before: Enoet and Kennepy, Circuit Judges and Duncan,

District Judge*

This habeas corpus appeal arises out of the conviction

of petitioner James C. Stallings in the Jefferson County,

Kentucky Cireuit Court of one count of murder in the

shooting death of his wife and one count charging murder

of three of his children during the commission of arson of

his home. From the denial of his petition by the district

court, Stallings raises nine separate issues.

The most serious claim of error reduces to a claim that

Stallings was denied an evidentiary hearing to which he is

entitled under Townsend v. Sain, 372 U.S. 293 (1963), in

order to determine whether the search of his fire-ravaged

home, which occurred after the fire had been extinguished

and without a search warrant, violated petitioner’s Fourth

and Fourteenth Amendment rights.

*Hon. Robert M. Duncan, Judge, United States District Court

for the Southern District of Ohio, sitting by designation.

Stallings had been twice tried before the trial and con-

viction which is the subject of his petition. The first trial

ended in a conviction which was reversed by the Kentucky

Supreme Court. The second trial resulted in a hung jury.

Prior to the commencement of the third trial, Stallings

sought and was refused a pretrial evidentiary hearing on

his motion for suppression of the evidence which was dis-

covered and seized from his home. After a colloquy in

which the prosecution and defense counsel argued in a

general way what they expected the proofs to show, the

state trial judge opined that, based upon the undisputed

facts as represented to him by counsel, it appeared as a

matter of law that exigent circumstances justified the war-

rantless search and seizure. At the same time, the trial

judge ruled that if new evidence should develop before the

trial, he would reconsider his ruling. No evidentiary hear-

ing, however, was ever held although the suppression mo-

tion was renewed at trial just before the government pre-

sented the challenged evidence.

In upholding the search both the state trial judge and

the habeas judge found the warrantless search to be justi-

fied by the exigencies facing the police and the arson in-

vestigators, but in so finding appeared to have concluded

that the search had ended by noon of the morning in which

the fire was extinguished. Notwithstanding this, it appears

to have been asserted by petitioner that at least some items

were seized after the noon hour. It also appears, however,

that fire fighting officials and investigators had remained

on the scene of the fire continuously from the time they

first arrived on the scene to extinguish it until well later

into the afternoon and after the investigation had been

completed. It does not appear to have been claimed, nor

does any evidence brought to the attention of the court

indicate, that any evidence offered at the trial was ob-

tained later than this time.

In the opinion of the court it would have been a prefer-

able procedure for an evidentiary hearing to have been

held, especially since, the search being warrantless, the

burden was upon the government to prove the exigency

which was claimed to obviate a search warrant. It also

would have been appropriate for the respondent to have

provided the habeas corpus court and this court with any

information which might exist concerning whether during

or preceding the other two trials, similar suppression mo-

tions had been made and ruled upon; we are obliged to

observe that greater diligence in this respect might have

resolved the issue and made the task here considerably less

difficult. Nonetheless it does appear that upon its review

of the same issue, the Kentucky Supreme Court, in uphold-

ing the search, found that “[t]he investigation conducted

was not extended for an unreasonable period of time.” It

is the opinion of the court that this determination, even

though made without the benefit of an evidentiary hearing,

was not in error. There is no suggestion, after this case

was tried on the merits on three separate occasions, that

any item of critical evidence was seized from the premises

after the first day. In the absence of an evidentiary hear-

ing, we feel obliged to accept for purposes of our decision

petitioner’s allegation that the critical evidence was seized

sometime in the afternoon of the day of the fire, some six

to twelve hours after the fire was extinguished.

The court is of the opinion that the search which con-

tinued following the extinguishing of the fire but for the

limited time involved here did not violate the guidelines set

down by the Supreme Court in Michigan v. Tyler, 436 U.S.

499 (1978) and Mincey v. Arizona, 437 U.S. 385 (1978).

It is true that the police investigation of the bedroom

where Stallings’ wife was shot was primarily concerned

with the shooting and not the fire, but considering Stal-

lings’ statements to police and under the circumstances,

both the police and the arson investigators had every rea-

son to suspect that the gunman who murdered Mrs. Stal-

lings was also the arsonist (and killer of the three Stallings

children). To find the gunman was to find the arsonist.

In this respect the arson investigation, which focused on

the stairs and upstairs area of the house, and the police

search of ithe downstairs bedroom shooting scene were

closely interrelated. Although conducted by police and not

arson investigators, the search of the bedroom was an

integral part of the arson investigation. We therefore

hold that both the police search and the arson squad search

were justifiably initiated without a search warrant, and did

not extend for an unreasonable time, under Michigan v.

Tyler, supra. Mincey v. Arizona, supra, has no application

to the facts of this murder-arson case.

The court is of the opinion that none of the other issues

raised on appeal has merit. Petitioner’s reliance upon

Brooks v. Tennessee, 406 U. S. 605 (1972), is misplaced

insofar as that decision is claimed to have made unconsti-

tutional the trial court’s order requiring the defendant to

proceed with his own testimony before all of his witnesses

had been called, where it appeared that the last witness

which petitioner’s attorney had intended to call was not

available until the © lowing day. Likewise, we find no

deprivation of due process to have occurred when the state

trial judge disallowed further defense voir dire of pro-

spective jurors concerning their understanding of reason-

able doubt nor concerning their ability to objectively eval-

uate the defense to be raised. The state trial court’s in-

struction on the presumption of innocence, burden of proof,

and essential elements of the offenses were at least min-

imally sufficient under constitutional standards which

guide auu control federal appellate review in habeas cases.

Likewise, there was no error of constitutional proportions

in the claim that the state trial court improperly instructed

the jury on wanton murder when appellant had been in-

dicted for intentional murder.

Finally, the court finds no merit in the claim that the

revision in Kentucky’s criminal procedures between the

dates of offense and trial, which reduced from 15 to 5 the

number of peremptory challenges available to a defendant,

amounted to an Ex Post Facto law violative of Article I,

Section 10 of the Constitution and the Fourteenth Amend-

ment. The change was procedural only and did not affect

the substance or elements of the crime of which petitioner

was charged and convicted. In all events, there was no

showing of any prejudice in theory or in fact. Accordingly,

Ir Is Onperep that the judgment of the district court is

affirmed.

ENTERED BY ORDER OF THE CouRT

(s) John P. Hehman

Clerk

RENDERED: JANUARY 15, 1980

SUPREME COURT OF KENTUCKY

79 SC 306 MR

James C. Stallings - - - - - Appellant

Commonwealth of Kentucky - - - - Appellee

Appeal from Jefferson Circuit Court

Honorable Charles M. Leibson, Judge

No. 78 CR 1095

MEMORANDUM OPINION PER CURIAM

AFFIRMING

James C. Stallings was convicted of the intentional

murder of his wife and wanton murder of three of his

children. He was first tried and convicted on October 14,

1975. This conviction was reversed on appeal. Stallings

v. Commonwealth, Ky., 556 S. W. 2d 4 (1977). A second

trial resulted in a hung jury. Stallings went to trial for the

third time in December, 1978, and was again convicted of

the charged offenses. From this conviction he was sen-

tenced to forty (40) years’ imprisonment. He now appeals

from this conviction. We affirm.

Briefly stated, the facts adduced at trial indicated that

a fire was discovered at appellant’s home on the morning

of August 12,1975. It was determined by investigators that

the fire was deliberately set. Appellant testified that he

awakened on the morning of the fire and saw a man

standing at the foot of his bed. Appellant further testified

that he fell to the floor to get his gun and the intruder shot

appellant’s wife several times. Appellant gave chase to

the intruder and discovered the fire. He managed to arouse

one of his daughters; he then picked up his wife and fled

the burning home. He was unable to re-enter the house

to save his other three children who perished in the fire.

Appellant presents several issues for review by this

court. He alleges that the trial court erred in admitting

evidence which was the fruit of an unlawful search. It is

appellant’s contention that evidence seized, during a war-

rantless search of the burnt house, should not have been

admitted into evidence. We do not agree. The firemen and

police officers had a right to search the premises in order

to determine the cause of the fire and four homicides. The

investigation conducted was not extended for an unreason-

able period of time.

Appelant contends that it was error to compel him to

present his case during an evening court session. Appel-

lant does not state nor does he demonstrate that his counsel,

the witnesses, or the jury became tired and inattentive. It

is not error to conduct evening court sessions in this Com-

monwealth. Anderson v. Commonwealth, Ky., 353 8. W. 2d

381 (1961). We believe that appellant wrongly relies upon

Brooks v. Tennessee, 406 U. S. 605 (1972), to support his

contention that the trial court erred when he was compelled

to testify before his final witness. To accommodate ap-

pellant the trial court allowed his last witness to testify

on the last day of the trial. Appellant took the stand on

the evening before the last witness testified. The trial

court was not under obligation to allow appellant to delay

the trial by testifying after his final witness.

Appellant also contends that he was substantially preju-

diced when the trial court did not impanel the jury in

accordance with KRS 29A.060(3) and RCr 9.30. The

method used to select the jury was not in strict compliance

with the statute. When the method to be used was ex-

plained, defense counsel stated “I think I will object to

that.” The record shows that he made this statement be-

cause he thought that the would not be able to question the

jurors individually. When it was explained to him that

individual jurors could be questioned counsel did not raise

another objection. Although we do not approve of devia-

tion from the jury selection statutes, appellant did not

properly preserve this issue for review and we do not find

this procedural defect to be grounds for a reversal.

Appellant raises other allegations of error. Suffice it

to say that we do not find these allegations to be meritorious

and they will not be addressed.

The judgment is affirmed.

All concur, except Stephens, J., who did not sit.

Attorneys for Appellant:

JACK EMORY FARLEY, Public Advocate

LINDA K. WEST, Assistant Public Advocate

Third Floor, State Office Building Annex

Frankfort, Kentucky 40601

Attorneys for Appellee :

ROBERT F. STEPHENS, Attorney General

REID C. JAMES, Assistant Attorney General

State Capitol

Frankfort, Kentucky 40601

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

No. C 81-0202-L(B)

James C. Stallings - - - - - Petitioner

Lloyd Fletcher, et al. - - - - - Respondents

ORDER—Entered June 24, 1981

For the reasons set forth in the Memorandum filed this

date,

Ir Is Orperep that the petition of James C. Stallings

for a writ of habeas corpus be and it is hereby denied and

this action is dismissed with prejudice.

There is no just reason for delay, and this is a final

and appealable Order.

This 24th day of June, 1981.

Copies to:

Counsel of record

(s) Thomas A. Ballantine, Jr.

United States District Judge

MEMORANDUM—FEntered June 24, 1981

This petition for a writ of habeas corpus it before the

Court on the motion of the respondents te dismiss. A brief

discussion of the factual background is indie: ved.

Petitioner, an Owensboro, Kentucky, detective, was

indicated by the Daviess County Grand Jury which charged

him with one count of murder in the shooting death of his

wife and one count charging the murder of three of his

children during the commission of arson of his dwelling.

He was convicted on both counts of the indictment but his

conviction was reversed, Stallings v. Commonwealth, Ky.,

556 S. W. 2d 4 (1977), and a second trial ended in a mis-

trial when the jury deadlocked.

After a change of venue to Jefferson County, petitioner

was tried and convicte n Jefferson Circuit Court on both

counts. He was sentenced to consecutive terms of 20 years

on each count. His conviction was affirmed by the Supreme

Court of Kentucky in an unpublished per curiam memo-

randum opinion, Stallings v. Commonwealth, Ky., 592

S. W. 2d 465 (1980). Certiorari was denied by the Supreme

Court of the United States, Stallings v. Kentucky, — —

U. S. —~, 101 S. Ct. 129 (1980).

Petitioner has advanced a litany of errors which he

contends are of constitutional magnitude. We will treat

them separately.

Petitioner first argues that the refusal of the trial court

to permit him to testify after calling his last witness, a

chemist, was constitutional error, citing Brooks v. Ten-

nessee, 406 U. S. 603, 92 S. Ct. 1891 (1972). This reliance

is misplaced. Brooks struck down a state statute that re-

quired a criminal defendant to testify first in his own de-

fense or surrender his right later to testify. We do not

have that situation. Petitioner’s witness was unavailable

at the time petitioner’s counsel wanted to introduce his

testimony. The trial court, in the exercise of his discre-

tion and in an effort to bring the lengthy trial to a con-

clusion, refused to adjourn the trial until the next day

when the witness would be (and was) available to testify.

If this action were error — and we do not hold that it was —

it was a state procedural error not cognizable in a federal

habeas corpus proceeding. Combs v. State of Tennessee,

530 F. 2d 695 (6th Cir. 1976).

Petitioner’s first argument is without merit.

II.

Petitioner next argues that the trial court’s denial of

his motion to suppress evidence seized without a warrant

at the scene of the fire was a violation of his Fourth

Amendment protection against unreasonable search and

seizure.

It appears that while firefighters were still battling the

fire at petitioner’s home, police were investigating both the

shooting of petitioner’s wife and burning of his home. They

entered the home and seized three guns from petitioner’s

bedroom, closet doors with bullet holes in them, spent bul-

lets found in the closet after the doors were removed,

photographs of the bedroom and carpeting and wood re-

moved from the staircase where it was believed the fire had

originated.

Petitioner contends that the warrantless search dictates

that the evidence seized should have been suppressed. We

disagree.

The record discloses that fire fighters were present at

the time the items were seized. We further note that the

police were investigating the homicide of petitioner’s wife

which they were told by petitioner had been caused by an

intruder.

We believe that the situation before the Court repre-

sents a combination of Michigan v. Tyler, 436 U. S. 499,

98 S. Ct. 1942 (1978), and Mincey v. Arizona, 437 U. S. 385,

98 S. Ct. 2408 (1978).

In Tyler the Court faced a situation in which entry to

fight a fire was accompanied by a warrantless search to

determine the cause of the fire. Certain evidence was

seized. The Supreme Court rejected the argument that the

fact that the investigators left the scene at 4:00 a.m. when

because of darkness, smoke, and steam, they could not ade-

quately investigate, mandated that reentry after daylight

be pursuant to a search warrant. The Court wrote:

“Under these circumstances, we find that the morning

entries were no more than an actual continuation of

the first, and the lack of a warrant thus did not invali-

date the resulting seizure of evidence.” 436 U. S. at

511, 98 S. Ct. at 1951.

In Mincey police conducted an extensive warrantless search

of defendant’s apartment over a 4-day period after a police

undercover officer had been shot and killed. Holding that

the exigency of a warrantless search abated when the

emergency threatening life and limb terminated, the Court

nevertheless recognized that under strictly circumscribed

conditions a warrantless search may be conducted:

“We do not question the right of the police to respond

to emergency situations. Numerous state and federal

cases have recognized that the Fourth Amend-

1The Court went on to hold, however, that a search warrant

would be required for later entries after the initial exigency had

ended.

ment does not bar police officers from making warrant-

less entries and searches when they reasonably believe

that a pevson within is in need of immediate aid.

Similarly, when the police come upon the scene of a

homicide they may make a prompt warrantless search

of the area to see if there are other victims or if a

killer is still on the premises. (Citation omitted.)

‘The need to protect or preserve life or avoid serious

injury is justification for what would be otherwise

illegal absent an exigency or emergency,’ Wayne v.

United States, 115 U. S. App. D. C. 234, 241, 318 F. 2d

205, 212 (opinion of Burger, J.). And the police may

seize any evidence that is in plain view during the

course of their legitimate emergency activities.” 437

U. S. at 392, 98 S. Ct. at 2413.

In the case before this Court the authorities were con-

fronted with a fire and a homicide. They had been told

by petitioner that an intruder had shot his wife. We con-

clude that the warrantless search, which was ended by noon,

was clearly justified by the exigencies facing the police and

the arson investigators.

We reject petitioner’s second argument.

Il.

Petitioner next advances the argument that due process

was violated when the trial court limited his counsel’s voir

dire examintion of the veniremen. He complains that the

trial court’s refusal to allow questioning of the members of

the panel concerning their understanding of the concept

of reasonable doubt was constitutional error.

Ky.R.Cr.P. 9.38 provides:

“The court may permit the attorney for the com-

monwealth and the defendant or his attorney to con-

duct the examination of prospective jurors or may

itself conduct the examination. In the latter event

the court shall permit the attorney for the common-

wealth and the defendant or his attorney to supplement

the examination by such further inquiry as it deems

proper. The court may itself submit to the prospec-

tive jurors such additional question submitted by the

parties or their attorneys as it deems proper.”

We believe that the quoted rule vests the trial court

with wide discretion in controlling voir dire examination

and in the absence of a showing of abuse of that discretion

the trial court’s determination will not be disturbed. It

is only when the limitation imposed threatens to undermine

the purpose of voir dire that abuse of discretion will be

found. United States v. Anderson, 562 F. 2d 394 (6th Cir.

1977). We believe that refusing to permit questioning

concerning a prospective jurors’ understanding of reason-

able doubt falls far short of undermining the purpose of

voir dire.

The Seventh Cireuit has recently manifested a trend

away from any definition of reasonable doubt in jury in-

structions. We agree with the language in United States

v. Lawson, 507 F. 2d 433 (7th Cir. 1974) :

“We are here dealing with ordinary English words

of common acceptance. ‘I doubt that’ is a common ex-

pression. It is ordinary practice in negligence cases

to instruct on the standard of care of a reasonable man.

It would not seem to serve much purpose to resort to

the antonym and define reasonable doubt as being

doubt that was not unreasonable under the evidence.

The phrase is not esoteric, such as res psa loquitur,

nor is it confusing similar to other more common

words such as ‘proximate’ or some of those employed

in patent law.

Because of the very commonness of the words,

the straining for making the clear more clear has the

trap of producing complexity and consequent confu-

sion. That this difficulty may be surmounted is evi-

denced by the attempts which have been approved,

although the language of approval has frequently im-

plicitly suggested the difficulties of articulation. That

the difficulties may be surmounted, however, does not

mean in our opinion that the effort has to be made.”

507 F. 2d at 442.

We conclude that the refusal of the trial court to per-

mit the proposed voir dire did not amount to a denial of

due process.

IV.

Petitioner’s fourth argument also attacks the action of

the trial court in denying his request to interrogate the

prospective jurors about their beliefs concerning his de-

fense that he was “framed.” As we have pointed out above,

limitations on voir dire lie within the sound discretion of

the trial court and absent an abuse of that discretion those

limitations will not be disturbed. United States v. Ander-

son, supra. We determine that the analogy between voir

dire examination concerning an insanity defense and the

defense asserted by petitioner is inapposite. United States

v. Allsup, 566 F. 2d 68 (9th Cir. 1977), relied on by peti-

tioner dealt with jury attitudes toward a subjective standard

— that of mental capacity. The proposed questions which

were rejected by the trial court in this case dealt with

factual issues, and we cannot conclude that their exclusion

was an abuse of discretion.

Petitioner next takes aim at the trial court’s instruction

on the presumption of innocence.

The Court instructed the jury that “the law presumes

a defendant to be innocent of a crime. ” Petitioner

relies on Taylor v. Kentucky, 436 U. S. 478, 98 S. Ct. 1930

(1978) in support of his argument. This reliance is mis-

placed. In Taylor there was no instruction on the pre-

sumption of innocence . T he Supreme Court, in the holding

that an instruction on the presumption of innocence is a

due process safeguard, wrote:

This Court has declared that one accused of a crime

is entitled to have his guilt or innocence determined

solely on the basis of the evidence introduced at trial,

and not on grounds of official suspicion, indictment,

continued cusiody, or other circumstances not adduced

as proof at trial. See e. g. Estelle v. Williams, 425

U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976). And

it long has been recognized that an instruction on the

presumption is one way of impressing upon the jury

the importance of that right. (Citations omitted.)

While use of the particular phrase ‘presumption of

innocence’—or any other form of words—may not be

constitutionally mandated, the Due Process Clause of

the Fourteenth Amendment must be held to safeguard

‘against dilution of the principle that guilt is to be

established by probative evidence and beyond 2 rea-

sonable doubt.’ Estelle v. Williams, supra, 425 U. S.,

at 503, 96 S. Ct., at 1693. The ‘purging’ effect of an

instruction on the presumption of innocence, Thaxton,

supra [483 F. 2d 1071, 1073 (C. A. 5 1973) ], 483 F. 2d,

at 1073, simply represents one means of protecting the

accused’s constitutional right to be judged solely on the

basis of proof adduced at trial.” 436 U. S. at 435, 98

S. Ct. at 1934.

Subsequent to Taylor the Supreme Court in Kentucky v.

Whorton, U.S. ——, 99 S. Ct. 2088 (1979), held that

the failure to give the presumption of innocence instruction

does not in and of itself violate the Constitution. If the

failure to give a presumption of innocence instruction is

not per se a constitutional violation, we are at a loss to

perceive how constitutional error can be present where

the trial court in fact gave an instruction on presumption

of innocence which comported with state law. Ky.R.Cr.P.

9.56.?

We determine that petitioner’s fifth argument is devoid

of merit.

VI.

Petitioner next attacks the failure of the trial cour* to

give his tendered instruction describing the burden of prwof.

The instructions of the trial court of which petitioner

complains read as follows:

“1) MURDER as to Cathryn L. Stallings:

You will find the Defendant guilty, under this In-

struction if, and only if, you believe from the evidence

beyond a reasonable doubt all of the following:

(a) That in Daviess County on or about August 12,

1975, he killed Catheryn L. Stallings by shooting her

with a pistol;

AND

(b) That in so doing he caused Cathryn L. Stallings’

death intentionally and not while acting under the in-

2An identical instruction was recently approved by the Sixth

Cireuit in Smith v. Sowders, No. 81-5093, decided March 24, 1981.

fluence of extreme emotional disturbance for which

there was a reasonable explanation or excuse under the

circumstances as he believed them to be.”

The elements of the crime of murder are set forth in KRS

507.020(1) :

“A person is guilty of murder when:

(a) With intent to cause the death of another per-

son, he causes the death of such person or of a third

person; except that in any prosecution a person shall

not be guilty under this subsection if he acted under

the influence of extreme emotional disturbance for

which there was a reasonable explanation or excuse,

the reasonableness of which is to be determined from

the viewpoint of a person in the defendant’s situa-

tion under the circumstances as the defendant believed

them to be. However, nothing contained in this section

shall constitute a defense to a prosecution for or pre-

clude a conviction of manslaughter in the first degree

or any other crime; or

(b) Under circumstances manifesting extreme in-

difference to human life, he wantonly engages in con-

duct which creates a grave risk of death to another

person and thereby causes the death of another

person.”

Petitioner relies on In re Winship, 397 U. S. 358, 90 S. Ct.

1068 (1970), in which the Court articulated the following:

“Lest there remain any doubt about the constitu-

tional stature of the reasonable-doubt standard, we

explicitly hold that the Due Process Clause protects

the accused against conviction except upon proof be-

yond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged.” 397

U. S. at 364, 90 S. Ct. at 1073.

We of course accept this basic concept. We disagree,

however, with petitioner’s application of it to the in-

structions of the trial court. The instructions clearly told

the jury that petitioner could be found guilty only if the

jury found beyond a reasonable doubt every element of the

crime charged.

As was said in Milton v. Wainwright, 407 U. 8S. 371,

92 S. Ct. 2174 (1972): “The writ of habeas corpus has

limited scope; the federal courts do not sit to retry state

cases de novo but rather to review for violation of federal

constitutional standards.” 407 U. S. at 377, 92 S. Ct. at

2178. We find no violation of constitutional standards in

the court’s instructions.

VIL.

Petitioner further attacks the court’s instructions as

deficient in that they did not parrot the language of KRS

507.020.

We start with the fundamental proposition that jury

instructions correct as a matter of state law are not re-

viewable in a habeas corpus proceeding, Pilon v. Borden-

kircher, 593 F. 2d 264 (6th Cir. 1979), unless the instrue-

tions rise to the level of constitutional error. The Supreme

Court of Kentucky has held that the trial court’s instrue-

tions were correct as a matter of state law and we are

unable to perceive any constitutional error in the instrue-

tions,

VIII.

Finally, petitioner contends that the trial court erred

in instructing the jury under the wanton murder section of

the statute. KRS 507.020(1)(b). Petitioner contends that

this is a fatal variance and thus error.

“A variance occurs when the proof introduced at trial

differs materially from the facts alleged in the indictment.”

(Emphasis added). Uniied States v. Beeler, 587 F. 2d 340

(6th Cir. 1978).

Only if the variance creates a substantial likelihood that

a defendant may have been convicted of a crime other than

that charged by the indictment is the variance fatal.

United States v. Beeler, supra.

We conclude that there was no material variance in the

crime charged and the proof at trial. As is pointed out

in Section 8.02(c), Brickey, Kentucky Criminal Law (1974) ;

“The Penal Code abolishes felony murder as a

separate and distinct theory of liability, and treats

such homicides as murder only if committed intention-

ally or wantonly under circumstances manifesting ex-

treme indifference to human life. This does not

preclude a murder conviction for an unintentional

homicide occurring during the commission of a felony,

”

In summary, we hold that if there were a variance it

was harmiess error in light of petitioner’s denial of his

participation in the events from which his conviction arose.

CONCLUSION

For the reasons set forth in this Memorandum, the pe-

tition for writ of habeas corpus will be dismissed and an

appropriate order has been entered this date.

June 24, 1981

(s) Thomas A. Ballantine, Jr.

United States District Judge

uoIsodde

Office - Supreme Court, U.S.

FILED

JuN -@ 1962

ALEXANDER L. STEVAS,

——ccerK-

No. 81-2002

SUPREME COURT OF THE UNITED STATES

October Term, 1981

versus

LLOYD FLETCHER and

STEVEN L. BESHEAR - - - ~- _ Respondents

On Writ of Certiorari to the United States Court

of Appeals for the Sixth Circuit

RESPONSE TO PETITION FOR WRIT

OF CERTIORARI

STEVEN L. BESHEAR

Attorney General

K. GAIL LEECO

Assistant Attorney General

Capitol Building

Frankfort, Kentucky 40601-3494

PAUL E. REILENDER, JR.

Assistant Attorney General

Capitol Building

Frankfort, Kentucky 40601-3494

(502) 564-7600

Counsel for Respondents

WESTERFIELD-BONTE CO., 619 W. KENTUCKY—P.O. BOX 3251, LOUISVILLE, KY.

QUESTIONS PRESENTED

Whether the Petitioner Was Denied Due Process of Law

When the Trial Court Ordered Him to Testify Before

His Last Defense Witness?

II.

Whether Petitioner Was Denied Due Process of Law When

the Trial Court Admitted Evidence That Was Seized

Without a Warrant by Police and Fire Authorities at

the Petitioner’s Home on the Day of the Fire?

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ..................0005. i, 2

PPV TTTTTIT TCT TTT T Tere 1- 2

PEE 046 H0seensedciusoccevecccccvcseses 2

CONSTITUTIONAL PROVISIONS INVOLVED ... 2

STATEMENT OF THE CASE .................... 2- 3

REASONS FOR DENYING WRIT ................ 3

GEE 6 BA Sncccedscnesecscncsevesececcecses 3-13

I. The Trial Court Did Not Deny the Petitioner

Due Process of Law by Compelling Him to Tes-

tify Before His Final Witness ................ 3- 5

II. The Trial Court Did Not Deny the Petitioner

Due Process of Law When It Admitted Into

Evidence the Evidence Gathered by Police and

Fire Authorities at the Petitioner’s Home on the

EE dbo 444400-0h6490806000000008 5-13

TET 656 escdcwvdceccccccccssescesevcess 14

PROOF OF SERVICE .........ceeccecccccceeees 15

TABLE OF AUTHORITIES

Cases: PAGE

Anderson v. Commonwealth, Ky., 353 S. W. 2d 381

DN ne snéagehcdtebsdeutededdendar&ecéces 4

Brooks v. Tennessee, 406 U. S. 603 (1972) ........ 4

Combs v. State of Tennessee, 530 F. 2d 695 (6th

NE eget hatte dk doug eae ee tee onda dade 5

Coolidge v. New Hampshire, 403 U. S. 443, 465-466

DE +24 dbdcedatintneetdsdcdkddeesesenecwe 12

Gillihan v. Rodriquez, 551 F. 2d 1182 (10th Cir.

Di Od adit eeuelUeeeUeictdceeedgksdecelecus 5

Harris v, Uinted States, 390 U. S. 234, 236 (1968).. 12

Michigan v. Tyler, 436 U. S. 499 (1978)....... 7, 8, 10, 11

Mincey v. Arizona, 437 U. S. 385 (1978) ........ 7, 10,11

Moore v. Cowan, 560 F. 2d 1298, 1302 (6th Cir.

Di hi cine Gecbdghekédedaunetacevednedcue< 6

Stone v. Powell, 428 U. S. 465 (1976) ............. 5

United States v. Jackson, 448 F. 2d 963, 970 (9th

a i 13

Constitutional Provisions:

United States Constitution, Fourth, Fifth, Sixth,

and Fourteenth Amendments ................ 2

SUPREME COURT OF THE UNITED STATES

October Term, 1981

No. 81-2002

JAMES C. STALLINGS - - - - Petitioner

Lioyp FLETCHER and

Steven L. BEsHEAR - - - - Respondents

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT

RESPONSE TO PETITION FOR WRIT

OF CERTIORARI

May it please the Court:

The respondents, Lloyd Fletcher and Steven L.

Beshear, pray that the petition for writ of certiorari

to review the Order of the United States Court of

Appeals for the Sixth Circuit rendered February 17,

1982, be denied.

OPINION BELOW

The opinion of the United States Court of Appeals

for the Sixth Circuit was rendered on February 17,

1982 (Petition’s Appendix, hereinafter PA 27-30).

The Memorandum Opinion Per Curiam of the Ken-

tucky Supreme Court was rendered on January 15,

1980 (PA 32-34). The Order and Memorandum of

the United States District Court was rendered on

June 24, 1981 (PA 35-47).

JURISDICTION

The jurisdictional requisites are adequately set

forth in the petition.

QUESTIONS PRESENTED

Whether the Petitioner Was Denied Due Process of Law

When the Trial Court Ordered Him to Testify Before

His Last Defense Witness?

II,

Whether Petitioner Was Denied Due Process of Law When

the Trial Court Admitted Evidence That Was Seized

Without a Warrant by Police and Fire Authorities at

the Petitioner’s Home on the Day of the Fire?

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitutional provisions involved are the

Fourth, Fifth, Sixth and Fourteenth Amendments to

the United States Constitution.

STATEMENT OF THE CASE

The respondents accept the petitioner’s statement

of the case as substantially correct. Any disputed facts

germane to the issues raised in his petition will be

referred to where applicable in the arguments of re-

spondents’ response as hereinafter set forth. The re-

spondents’ method of citation to the trial record and

evidence will be to the Joint Appendix filed by the

parties in the Sixth Circuit hereinafter cited as ‘‘J.A.”’

REASONS FOR DENYING THE WRIT

This Honorable Court should deny the petitioner’s

petition for writ of certiorari since the Sixth Circuit

correctly found that this Court’s holding in Brooks v.

Tennessee was not violated when the petitioner was

required to testify before his last defense witness.

Further, the Sixth Circuit’s Opinion correctly found

that the evidence was properly admitted at trial and

thus did not violate the Fourth and Fourteenth Amend-

ments as interpreted by this Court in Michigan v.

Tyler and Mincey v. Arizona.

ARGUMENT

The Trial Court Did Not Deny the Petitioner Due Process

of Law by Compelling Him to Testify Before His

Final Witness.

In order to accommodate the petitioner, the trial

court allowed his last witness to testify on the last day

of the trial because the witness was not available at

the time trial counsel wanted to introduce his testi-

mony. Stallings then took the stand on the evening

before the last witness testified. It was clearly not

error for the trial court to conduct an evening court

session in order to bring the long trial to an end.

Anderson v. Commonwealth, Ky., 353 S. W. 2d 381

(1961). Further, the trial court was not under obliga-

tion to allow the petitioner to delay the trial by testify-

ing after his last witness.

In the instant case, all of the witnesses for the

defense had testified before Stallings, save a chemist

who was permitted to appear on Stallings’ behalf on

Friday morning as he could not be present on Thurs-

day (Joint Appendix, hereinafter J A 219, 261). There-

after, Stallings testified in his own defense, was cross-

examined, and the court recessed. The last defense

witness then testified the next morning. (JA 276).

The petitioner’s reliance upon Brooks v. Tennessee,

406 U. 8. 603 (1972) is clearly misplaced. In that

case, a Tennessee statute requiring that a defendant

testify prior to other defense witnesses or waive that

right was held unconstitutional. In the case at bar,

Stallings was not required to testify before other de-

fense witnesses. To the contrary, the record discloses

that Stallings testified after all other defense witnesses

except the chemist who appeared on Friday. That he

was required to testify before that particular witness

was the result of Stallings’ own failure to have the

witness present on Thursday.

The record does not reflect that Stallings was preju-

diced or impaired in the presentation of his defense

by being compelled to testify before his last defense

witness.

In addition, assuming it was error for the trial

judge to compel Stallings to testify before his last

defense witness (and clearly it was not error), this is

nothing more than an alleged state trial error for

which Stallings sought review in the District Court

and the Sixth Circuit, and is now seeking review in

this Court. As this Court is aware, state trial or pro-

cedural errors are not reviewable on a petition for a

writ of habeas corpus absent extreme circumstances

which do not exist here. Combs v. State of Tennessee,

530 F. 2d 695 (6th Cir. 1976); Gillihan v. Rodriquez,

551 F. 2d 1182 (10th Cir. 1977). Thus, the respond-

ents respectfully submit that this particular issue pre-

sents no federal question and, therefore, cannot be a

basis upon which to grant federal habeas corpus relief.

The petitioner’s petition for writ of certiorari should

be denied.

Il.

The Trial Court Properly Admitted the Evidence Gathered

by Police and Fire Authorities at the Petitioner’s

Home on the Day of the Fire.

The respondents would first point out that a peti-

tioner may not be granted federal habeas corpus relief

on the grounds that evidence was obtained in an un-

constitutional search or seizure violative of the Fourth

Amendment, where the state court provided an oppor-

tunity for a hearing on the subject. Stone v. Powell,

428 U. S. 465 (1976).

In the case at bar, Stallings made a motion to sup-

press the admission of the allegedly illegally obtained

evidence. (JA 64-65). Although a full-blown sup-

pression hearing was not held, the respondents submit

that Stallings was given a full and fair hearing on the

matter at the pre-trial hearing. (JA 11-21). As ean

be seen from the joint appendix, fifteen pages of the

pre-trial hearing were devoted to discussion of Stall-

ings’ motion to suppress this evidence. Stallings’

motion to suppress was denied by the trial court at

the pre-trial hearing. (JA 20). Since Stallings in

this case received a fair litigation of his claim in the

state court proceedings, he would not be eligible for

federal habeas corpus relief on that ground in this

ease. See also: Moore v. Cowan, 560 F. 2d 1298, 1302

(6th Cir. 1977).

Even if this Court finds that Stallings was not

given an opportunity to litigate this claim, the trial

court did not commit error by refusing to suppress the

evidence.

At the pre-trial conducted on November 17, 1978,

Stalling moved to suppress all evidence seized by fire

and police authorities at his home on the day of the

fire. Stallings contended in his motion that the search

of his residence was illegal as no warrant was obtained

after the fire had been extinguished. (JA 64-65).

The items challenged as fruits of the allegedly

illegal search consisted of (1) three guns removed from

Stallings’ bedroom, (2) the bedroom closet doors con-

taining bullet holes, (3) spent bullets found inside the

bedroom closet, (4) photographs of the bedroom and

(5) pieces of carpeting and wood removed from the

staircase of Stallings’ home, where the fire was be-

lieved to have begun. All of this evidence was sub-

sequently introduced by the prosecution at trial, to-

gether with a chemical analysis of the carpet and wood

samples showing the fire had been set with an acceler-

ant and testimony regarding the angle of the bullet

holes found in the closet doors, which tended to dis-

prove Stallings’ version of the incident.

At the pre-trial hearing, the prosecution noted that

all the evidence of which Stallings complains was

gathered while the fire was still ‘‘hot,’’ and that fire-

men were on the scene continuously during the process.

(JA 11). That firemen were in fact at the Stallings’

home during the gathering of this evidence was con-

ceded by trial counsel. (JA 12-13). The Common-

wealth added further that all of the evidence chal-

lenged at the hearing was obtained prior to noon on

the day of the fire. (JA 14-15). It is also notable the

crime was being investigated on the report of Stallings

himself—that an intruder killed his wife and started

the fire which resulted in the death of his children.

(JA 48-49).

Those eases relied upon by Stallings, Michigan v.

Tyler, 436 U. S. 499 (1978), and Mincey v. Arizona,

437 U. S. 385 (1978), do not dictate that habeas corpus

relief should have been granted in the case at bar.

The respondents submit that the contrary is shown by

these cases. (JA 49-50).

Although it was disputed whether there was evi-

dence seized after noon on the day of the fire, the

Sixth Circuit felt compelled to accept the petitioner’s

contention that critical evidence was seized some six

to twelve hours after the fire was extinguished (PA

28-29). Nonetheless, the Sixth Circuit went on to hold

that both the police and arson squad search were justi-

fiably initiated without a search warrant and did not

extend for an unreasonable time under Michigan v.

Tyler, supra. Respondents agree.

In Michigan v. Tyler, a midnight fire broke out at

a furniture store in Oakland County, Michigan. The

loeal fire department responded immediately and were

extinguishing only smoldering embers by the time the

fire chief arrived about 2:00 a.m. It was his responsi-

bility to determine the cause of the fire, and he began

his investigation with a police detective around 3:30

a.m. Pictures were taken, but due to darkness and

heavy smoke, his efforts were abandoned for the time.

The fire was completely extinguished by 4:00 a.m. and

all firemen departed. No search warrant was ob-

tained or consent given by the owner of the store to

investigate the fire at the time of the blaze, or when

the fire chief and the police resumed their investigation

later that morning. At that time, they took sampies

of carpeting, sections of a stairway, and searched

through the rubble to look for any other signs of

evidence.

The United States Supreme Court found that the

fire chief’s re-entry of the building later that morn-

ing was no more than a continuation of his initial

investigation, and that the lack of a warrant did not

invalidate the resulting seizure of evidence. In refut-

ing the Michigan Supreme Court’s opinion that a war-

rantless entry to fight a fire ends with the dousing of

the last flame, the Court stated:

**We think this view of the firefighting function

is unrealistically narrow. . . . Fire officials are

charged not only with extinguishing fires, but with

finding their causes. Prompt determination of

the fire’s origin may be necessary to prevent its

reoccurrence, as through the detection of continu-

ing dangers such as faulty wiring or defective

furnace. Immediate investigation may also be

necessary to preserve evidence from intentional or

accidental destruction. . . . For those reasons,

officials need no warrant to remain in a building

for a reasonable time to investigate the cause of

a blaze after it has been extinguished. And if the

warrantless entry to put out the fire and determine

its cause is constitutional, the warrantless seizure

of evidence while inspecting the premises for

these purposes also is constitutional.’’ (436 U.S.

at 510).

The Supreme Court affirmed the Michigan Su-

preme Court’s reversal of Tyler’s conviction because

investigators made a warrantless visit to the scene of

the fire four, seven, and twenty-five days after the

occurrence of the blaze to obtain further evidence.

These searches were not made within a ‘‘reasonable

time’”’ after the fire. Still, the morning re-entries were

deemed to be constitutionally permissible.

In the instant case, the firefighters were on the

scene of the fire continuously, and for no longer a

period of time than was permitted in Michigan v.

Tyler, supra. As the Sixth Circuit found, none of the

evidence gathered at the fire scene was obtained later

than six to twelve hours after the fire was extinguished.

(PA 29). The evidence specifically gathered by the

state arson investigator, the samples of carpeting

and wood, was clearly competent and was properly

admitted.

Although the Sixth Cireuit held otherwise in the

ease at bar, the decision in Mincey vy. Arizona, supra,

presents a similar situation involving a search at the

scene of a homicide. In Mincey, the United States

Supreme Court reversed the defendant’s conviction

where the warrantless search of his apartment lasted

for four days. The Court observed:

‘*We do not question the right of the police to

respond to emergency situations. Numerous state

and federal cases have recognized that the Fourth

Amendment does not bar police officers from mak-

ing warrantless entries and searches when they

reasonably believe that a person within is in need

of immediate aid. Similarly, when the police

come upon the scene of a homicide they may make

a prompt warrantless search of the area to see if

there are other victims or if a killer is still on

the premises. (Citation omitted.) The need to

protect or preserve life or avoid serious injury is

justification for what would be otherwise illegal

absent an exigency or emergency. (Citations

omitted.) And the police may seize any evi-

dence that is in plain view during the course of

their legitimate emergency activities. (Citations

omitted.) ”’

Even were Stallings’ contention that the police offi-

cers exceeded their authority under the Mincey stan-

dard in the search which was conducted in the instant

case, it must be remembered that the facts which exist

here were different than in Mincey. This was not a

fire or a homicide. It was both. Three children were

burned to death as a result of arson. Stallings’ wife

was intentionally shot to death. The police had a clear

right to be on the scene. a

Several of the challenged items of evidence were in

plain view of the police officers, who had a right under

Michigan v. Tyler, supra, and Mincey v. Arizona, supra,

to search the premises. For example, the bullet holes

in the closet doors of Stallings’ bedroom were clearly

evident upon entry to that room. (JA 141). These

doors were properly seized as evidence. Upon their

removal, the spent bullets found on the closet floor

and the .357 magnum pistol were in plain view. (JA

154). The Model 60 pistol was found on the floor

beside Stallings’ bed and would have been in plain

view of anyone entering the bedroom had the fire not

caused insulation from the ceiling to cover. (JA 145).

That the police had to move the insulation should not

defeat the plain view doctrine under such cireum-

stances. Certainly, the taking of pictures of the bed-

room was not improper. The respondents can only

agree that the discovery of the .25 automatic pistol in

a dresser drawer was improper if the drawer was

closed, which is not indicated by the record.

In Coolidge v. New Hampshire, 403 U. 8S. 443, 465-

466 (1971), it was stated:

‘*Where the initial intrusion that brings the police

within plain view of such an article is supported,

not by a warrant, but by one of the recognized

exceptions to the warrant requirement, the seizure

is also legitimate. . . . Finally, the ‘plain view’

doctrine has been applied where a police officer is

not searching for evidence against the accused,

but nonetheless inadvertently comes across an in-

criminating object. Harris v. United States, 390

U. S. 234, 88 S. Ct. 922, 19 L. Ed. 2d 1067; Frazier

v. Cupp, 394 U. S. 731, 89 S. Ct. 1420, 22 L. Ed.

2d 684; Ker v. California, 374 U. S. at 43, 87 S. Ct.

at 1635, Cf. Lewis v. United States, 385 U. S. 206,

87 S. Ct. 424, 17 L. Ed. 2d 312.

What the ‘plain view’ cases have in common is

that the police ofix cr in each of them had a prior

justification for an intrusion in the course of

which he came inadvertently across a piece of evi-

dence incriminating the accused.”’

Harris v. United States, 390 U. 8. 234, 236 (1968)

specifically notes:

“It has long been settled that objects falling in

plain view of an officer who has a right to be in

the position to have that view are subject to seiz-

ure and may be introduced in evidence.’”’

Clearly, evidence of arson, such as gasoline fumes,

the intensity of a fire, and the occurrence of four homi-

cides, coupled with the confusion of such a seene do

not require the seeking of a warrant. ‘‘The Fourth

Amendment was not intended to handeuff the police

in their reasonable efforts to handeuff criminals.”’

United States v. Jackson, 448 F. 2d 963, 970 (9th Cir.

1971).

It must be finally noted that the most telling evi-

dence against the accused, i.e., the obvious presence of

arson as determined from the samples of wood and

carpeting taken from the Stallings’ residence, and the

murder weapon found in Stallings’ car trunk upon a

consent search, were properly obtained. The guns

found in Stallings’ bedroom, the spent bullets found

in his closet, and the closet doors themselves did not

appreciably add to the Commonwealth's evidence

against him. If error did exist in the introduction of

these exhibits, it must be deemed harmless. The re-

spondents submit again, however, that Stallings has

demonstrated no error and fails to raise a significant

constitutional question. The petition for writ of

certiorari must be denied.

CONCLUSION

WHEREFORE, based on the foregoing, the respond-

ents ask this Court to deny the petition for writ of

certiorari.

Respectfully submitted,

Steven L. BesHEAR

Attorney General

K. Gat. LEEco

Assistant Attorney General

Capitol Building

Frankfort, Kentucky 40601-3494

Pav E. REILENDER, JR.

Assistant Attorney General

Capitol Building

Frankfort, Kentucky 40601-3494

(502) 564-7600

Counsel for Respondents

CERTIFICATE OF SERVICE AND OF

MAILING FOR FILING

I, K. Gail Leeco, hereby certify that ae ~y of the brief

in opposition to petition was served upon the petitioner by

depositing it in a United States mailbox, with first-class

postage prepaid, addressed to Hon. C. Thomas Hectus, 800

Marion FE, Taylor Building, Louisville, Keataeky 40202,

Counsel for Petitioner herein, on this the day of

June, 1982, All parties required to be served have been

served. Copies have been mailed for filing in this Court,

addressed to the Clerk of this Court, on the same date and

by the same method.

K. Gam Lerco

Assistant Attorney General

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