Jurisdictional Statement — Davis v. Mississippi

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RECEIVED

MAR 1 5 1982

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| SUPRE*”” ; :

81 6382

SUPREME COURT OF THE UNITED STATES

October Term, 1981]

MALCOLM JOE DAVIS

Appellant

STATE OF MISSISSIPPI

Appellee

ON APPEAL FROM THE SUPREME

COURT OF MISSISSIPPI

JURISDICTIONAL STATEMENT

PF. KENT STKIBLING

309 Barnett Building

200 South President Street

Jackson, Mississippi 39201

(601) 948-5105

DIXON L. PYLES*

Pyles & Tucker

507 East Pearl Street

Jackson, Mississippi 39201

(601) 354-5668

*Counsel of Record

March 13, 1982

SUPREME

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the judgment ¢

§1257(2).

COURT OF THE STATE OF MISSISS

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d, hereby appeal:

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by given that Malc

States from the final

nviction entered herei

This appeal is

taven pursuant

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———

Supreme Court of the State of Mississippi, entered in

this cause on December 16, 1981, pursuant to the pro-

visions of 28 USC §1915, and Rule 46 of the Rules of

this Court, and in support thereof attaches the affidavit

0 f

the appellant.

Appellant's statement as to jurisdiction is

being filed with this motion and appellant's affidavit.

Dated March 13, 1982

MALCOLM JOE DAVIS - Appellant

r KENT STRIBLIN

109 Barnett } ling

? ) th Pre tent Srreet

. ,

J ic KSvUT Mi SS ppi 49. Ja

(601) 948-5105

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JacKkson, Mi sSippi 4920]

(601) 354-5668

ATTORNEYS FOR APPELLANT

—

—— |

NO.

SUPREME COURT OF THE UNITED STATES

kctober Terr 198

sear ve , eer?

ALS MAW A

Appellant

LAL i ) i

Appessee

AT at . nw ae , . "

ari ‘ st i

A i ‘ aa ‘

FORMA Pé.UPERIS

I, Malic T e Davis eing tftirst

| .

Gep é ind iy ia the appeiiant, ' ne i

case tnat it support i my t10 t procee

' t

without being required to prepay tees, costs

security thereior I state that because of

I am unable to pay the cos

give security therefor. That I believe i am

to redress.

I am presently confined in the Mis

Penitentiary, pursuant tc a sentence imposed

conviction of rape in the Circuit Court of Pearl River

County, Mississippi.

I was granted the right, by order of the state

court judge, to proceed with my appeal to the Mississippi

Supreme Court in forma pauperis.

My conviction was affirmed by the Mississippi

Supreme Court. I seek to obtain a review on the merits

by appeal to determine whether the criminal conviction

should be reversed.

1 further swear that the responses set forth

below relating to my ability to pay the cost of prose-

cuting the appeal are true.

1. I am not presently gainfully employed.

2. I have not received, since March 8, 1979,

any income frem a business, profession or other form of

self-employment, or inthe form of rent payments, interest,

dividends or other source.

3. 1 do not own any cash, savings or checking

account.

4. 1 am the father of three young children.

However, because of my incarceration in prison, I am

unable to provide any support fcr them.

I understand that false statements in this

affidevit will subject me to penalties for perjury.

This affidavit is made in good faith.

A more detailed statement setting forth the

grounds on which I believe I am entitled to a reversal

of the conviction will be set forth in the "Jurisdictional

Statement” to be filed on my behalf.

4h hey A ts cS, it~

MALCOLM JQE DAVIS

poner: TO AND SUBSCRIBED BEFORE ME, this the

day of , 1982.

aie.

My Commission Expires: Ak PUBLIC —

Wy Cosamission Expires Jan 23, 198%

vii e

QUESTIONS PRESENTED FOR REVIEW

. 1. Is § 99-17-1 (1976) of the Mississippi Code

Annotated (MCA) repugnant to the speedy trial provision

of Amendment VI to the Constitution of the United States

under the ruling of the Mississippi Supreme Court that

the statute precludes the counting of 252 days of delay

between arrest and arraignment despite the precedents of

this court which require that all pretrial time (399 days)

be counted because of the particular protection and rights

of the federal constitutional speedy trial clause?

<¢. is the appellant presumed to be denied Ais

anterests and rights under the speedy trial. prov:

ae en)

between arraignment and the trial because the dis

ea to be with the grand jury and try no

Cases curing tne entire November 1979 tesym, and the state

purposely failed and refused to utilize the services of the

county attorney or envoke either of two state statutes [MCA

2)] to obtain additional prosecu-

torial assistants?

3. Were the appellant's rights to due process of

law under Amendments V and XIV denied when the state courts

acGmitted into evidence two “confessions” which the fact

Gemonstrated were procured as the result of inducements

to the prececents established by this court?

4. Were the rulings of the Mississippi courts in :

violation of the appellant's Amendment V rights and contrary

to the precedents of this court in Miranda v. Arizona and

viii e

Edwards v. Arizona when the two confessions were ruled

voluntary and admissible despite the fact that they were

obtained by continued questioning after the accused had

exercised his rights to remain silent and have his counsel

present during the custodial interrogation? .

%. Did the Mississippi Supreme Court apply an erroneous

Standard for determining whether the appellant waived his

right to have his counsel present during the 11:60 pe™m =

2:00 a.m. interrogation based solely upon a conclusion of

the court that because appellant's counsel failed to appear

on the afternoon of March 9, 1979, he waived the presence

of counsel and willingly answered the questions of the

sheriff?

6. Did the refusal of the trial court to grant a

Mistrial and the majority of the Mississippi Supreme Court

to reverse the conviction because of the comment of the

assistant district attorney during the initial summation

to the jury “[tjhat all the defendant had to do at the

tame was to deny he committed the offense,” and the explana-

tion of the court that the prosecutor was referring to

March 9 and 10, 1979, violate the rights of the appellant

and Amendments V and XIV as the dissenting opinion stated?

ix.

. LIST OF PARTIES IN MISSISSIPPI

: SUPREME COURT

The appellant, Malcolm Joe Davis, and the

appellee, the State of Mississippi, were the only

. : parties in the state trial and appellate court

TABLE OF CONTENTS

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES ec cccececscessaesscoeseceseces

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS...

AFFIDAVIT IN SUPPORT OF MOTION FOR LEAVE TO

PROCEED IN FORMA PATIPERTS co cccccocesnceeseeeseecese”

QUESTIONS PRESENTED FOR REVIEW. .ccccccccccesveces

LIST OF DAMPERS s cece eee ee eeeeee ee oeooeeseesseesees

TABLE OF AUTBORITIES ec ccccecesceececesceesssesseseces

CONSTITUTIONAL PROVISTIONScccccoecesceceeseseesesn

STATUTES ccc cce eS eeeeeseeeeseceeeseveseseeoseseces

MOCHA sc cece CeeS OOOO OEECOEOEOSESOESEEOESOSEOS

JURISDICTIONAL STATEMENT ccococecee eee eeeseeesesee

OPINIONS DRT As ce eee eseeseseesoeeSesaeeeseeeeesesess

Mid) DE ish ian pls FPP rr rTrTTrTrrEeTETECCPELeLere

CONSTITUTIONAL PROVISIONS INVOLVED... ccesecceccccs

STATUTE IMVOLVEDcccceceeeeee eens eeeeeees *eeeeee

STATEMENT OF Cie 6 668660000660 00066008606686006086880

Pretrial Proceedings. ccccccceccesscevseseses

Proceedings During The Trial. .csccrcccseesecs

Proceedings in The Mississippi Supreme Court.

The Mississippi Supreme Court Gave

Validity to MCA § 99-17-11 (1976)

Which is Repugnant to Speedy Trial

Requirements of Amendment VI Because

the Statute Precludes Counting 252

Days of Prearraignment Delay....sseceseeees

Amendment V and the Precedents of

the United States Supreme Court

are contrary to the Decisions of

the State Courts that the "Confessions"

Were Voluntary and Admissible.....sseeeeees

Comments by Prosecutor and Court on

the Appellant's Failure to Testify

Violated His Amendment V Rights...........<-.

é.

xi. °

HOW THE FEDERAL QUESTIONS WHERE RAISED

AND DECIDED IN THE STATE COURTS ec cccccceceecegeccece

THE FEDERAL QUESTIONS ARE SUBSTANTIAL... eeeeeeeeees

I. Davis’ Amendment VI Right To Speedy

Trial Was Denied By State Court

Validation of MCA § 99-17=-1 Which

Precluded Counting 252 Day Delay

Between Arrest And ArraignMent....eeeeeess

Ii. The Mississippi Supreme Court Declined

To Follow the Precedents Established By

This Court And Thus Deprived Davis Of

His Rights Under Amendments V and XIV;

Misapplied “Miranda” and "Edwards" In

Upholding the Admission Into Evidence

of Two Involuntary “Confessions.”......+--

Ili. The Majority Of The Mississippi Supreme

Court Also Refused To Follow The Prece-

dents Of This Court Relative To The

Comments Of The Assistant District

Attorney and The Interpretative Explana-

tion Of The Trial Judge To The Jury On

Appellant's Failure To Testify And

Violated Hiis Rights Under Amendment V.....

CONCTAIS TOM cece eeeeeeeeeeseeseseeeeseseseeeesesess

CERSIFICATE Or BERViCwcccceececeseeeeseseeeoesseeseceee

INDEX OF APPENDICES

Appendix Description

A Reported opinion entered on

December 16, 1961, 406 So.2d 795

B Unreported opinion entered on

Cc Collected and unreported pages

entered December 16, 1981

D Petition for Rehearing

E Motion to Dismiss because

accused deprived speedy trial

F Reasons of trial judge for over-

ruling motion to dismiss

G Motion For New Trial

ii Assignment of Errors

I MCA § 25-31-21 (1972)

J MCA § 7-5-53 (1972)

September 9, 1961

xii.

TABLE OF AUTHORITIES

Cases

Ascraft v. Tennessee, 322 U.S. 143, 88 L Ed 1192,

64 S ct 921

Atchison T. & S. F. T. Co. v. Public Utilities

~~ Comm'n (1953) 346 U.S. 346, 348-399

Barker v. $ (1972) 407 U.S. 514, 517, a4, 2

E1921 32, 533

Bitner v. State, 293 So. 2d 339, 341 (Miss. 197%)

Blackburn v. Alabama (1960) 361 U.S. 199

Brown v. Mississippi (1936) 297 U.S. 278

Brown v. State, 340 So 2d 718 (Miss. 1976)

Chambers v. Florice 309 U.S. 227, 240

Cohen v. California (1971) 403 U.S. 15, 17-18

Coyote v. United States, (CA 10 1967) 380 P. 2d

305, cert. den., 19 L Ed 2d 484

Davis v. State, 406 So. 2d 795 (Miss. 1981)

Dickey v. Elorida (1970) 398 U.S. 30-37-38, 51, 25

52, 53, 26 L Ed 2d 26, 31, 32, 99 S Ct 1564

Dillingham v. United States (1977) 423 U.S. 64

Edwards v. Arizona (May 18, 1981) US ’

68 L Ed 2d 376, 101 Ss ct 1880 °°

Ferguson v. Boyd, (CA 4 1977) 566 F.2d 873

Goldblatt v. Town of Hempstead (1962) 369 U.S. 590

Hadley v. State (Wis 1975) 223 NW2d 461, 78 ALR id

273, 264

Hanrahan v. United States, 121 U.S. App DC 134,

39, 348 F.2d 363 368 (1965)

Hedgepeth v. United States, 124 U.S. App DC

SSI, 294 and N. 3, 364 F.2d 684, 687,

and N. 3 (1966)

odges v. United States, 408 F.2d 543, 551

(cA 8 1969)

Klopper v. North Carolina (1976) 386 U.S.

213, 222

Lambert v. State, 199 Miss. 790, 25 So 2d 477

~——{ 1946)

Lathrop v. Donahue (1961) 367 U.S. 820, 824-827

Page

5, 26,

30, 31

33, 35

34, 35

32, 33

2, 18,

20, 32

, 27,

28, 29

22, 30

xiii. bd

Lego v. Twomey (1972) 4U4 US 477

Lisenba v. California, 314 U.S. 219, 86 L Ed 166,

S ct 260

Malinski v. New York (1945) 324 U.S. 401, 404

Miranda v. Arizona, (1966) 384 U.S. 436, 16 L Ed

2d 694, 86 S Ct 1602

Patterson v. State, 357 So. 2d 113, 115-117

Miss. 1978

People v. Troaut (1960) 54 Cal 2d 576, 80 ALR

2a 1416

Pollerd v. United States 352 U.S. 354, 1 L Ed

2d 399

Prince v. State, 93 Miss., 46 So. 587 (1908)

Reck v. Pate (1961) 367 U.S. 433

Reddick v. State 72 Hiss. 1008, 16 So. 2d

O0 (1855)

Rogers v. Richmond (1961) 365 U.S. 534

Smith v. Hooey (1969) 393 U.S. 607

Smith v. United States, 135 U.S. App. D.C. 284,

~~ 418 FlO2d 1136, 1123, 1124 (1960)

State v. Pruitt (NC) 212 SE 2d 92

State v. Wallace (Wis) 207 NW 2d 8685

State v. Watson (NM) 485 P. 2d 197

Strunk v. United States (1973) 412 U.S. 339, 340,

-$3¢°

Unitec States v. Lustman, 258 F.2d 475, 477-478

(CA 2 Cir 1958

United States v. Mann, 291 F. Supp. 268, 271

(1968)

United States v. Marion (1971) 404 U.S. 307, 313,

316, 317, 92S Ct 455, 30 L Ed 2d 468, 478

United States Vv. Provoo 17 FRD 183 (DC Md), 350

U.S. 857

Ramsey (1977) 431 U.S. 606

United States ve

United States v. Reed, 285 F. Supp. 738, 741

pC De 1968)

United States v. Wade (1967) 388 U.S. 218, 227

United States v. West, 504 F.2d 253, 256 (DC

Cir 1974) ,

Watts v. Indiana (1949) 338 U.S. 49, 54

Wilson v. United States (1896) 162 U.S. 626

Page

iS, 35,

xiv.

Constitutional Provisions

U.S. Const. amend. V

U.S. Const. amend. VI

U.S. Const. amend. XIV

Statutes

28 U.S.C. §1257(2)

28 U.S.C. §1915

28 U.S.C. §2103

Miss. Code Ann. §7-5-53 (1972)

Miss. Code Ann. §9-7-41 (1979) 6,

Miss. Code Ann. §13-1-9 (1972)

Miss. Code Ann. §25-31l-21 (1972)

Miss. Code Ann. §99-17-] (1976)

Miscellaneous

American Bar Association Relating to Speedy Trial

Approved draft 1968; pp. 11-13

Approved draft 1971; pp. 112-113

Approved draft 1972; pp. 48-50

29 Am Jur 2d Evidense §550

Child, 10 Akron L Rev. 216, 262, 277

Fed. Rule Crim. Proc. 48(b)

Jellinek, The Declaration of the Rights of Man

and of Citizens (1901) p. 98

Jones, 29 Baylor L Rev. 1, 3, 4 36,

Lederer, The Law of Confession - The Voluntar-

iness Doctrine, 74 Mil L Rev. 67, 76,

es » 85, 35,

Dix, Mistake, Ignorance, Expectatior, of

Benefit, and Modern Law of Confession,

1975 Washington U L Q 275, 296-297

Rule 46 - Rules of Supreme Court

27, 31

passim

SUPREME COURT OF THE UNITED STATES

October Term, 1981

MALCOLM JOE DAVIS

Appellant

STATE OF MISSISSIPPI

Appellee

N APPEAL FROM THE SUPREME COURT

OF THE STATE OF MISSISSIPPI

JURISDICTIONAL STATEMENT

Appellant, Malcolm Joe Davis, respectfully

seeks an appeal to review the final judgment and opinion

of the Supreme Court of Mississippi entered on December

16, 1981.

OPINIONS BELOW

The modified opinion of the Mississippi Supreme

Court in Davis v. State, 406 So. 2d 795 (Miss. 1981), on

Rehearing December 16, 1981, is reproduced in Appendix A.

The unreported opinion of the Mississippi Supreme Court

decided September 9, 1981, is reproduced in Appendix B.

The corrected and unreported portions only of the Septem-

ber 9, 1981, opinion issued by the Mississippi Supreme

Court are reproduced in Appendix C.

JURISDICTION

—

Jurisdictien of this court is invoked pursuant

to 28 USC §1257(2). Cases sustaining the jurisdiction of

this court are: Cohen v. California, (1971) 403 U. 5S.

15, 17-18; Atchison T. & S. F. R. Co. v. Public Utilities

Comm'n (1953) 346 U. S. 346, 348-349; Lathrop v. Donohue

(1961) 367 U. S. 820, 824-827; Goldblatt v. Town of

Hempstead (1962) 369 U. S. 590. This appeal presents

he question of the validity of Mississippi Code 1972

Annotated (MCA) §99-17-1 (1976) on the ground that this

statute is repugnant to the appellant's rights pursuant

to Amendments VI and XIV to the Constitution of the United

States.

Appellant was arrested on March 9, 1979, and

charged with rape. Trial was not begun until April 10,

1980, 399 days later and resulted in his conviction.

Appellant moved, on April 3, 1980, to dismiss the indict-

ment for failure of the court to give him a speedy trial

in compliance with Amendment VI. Appellant's motion to

dismiss was overruled. The trial court held MCA §99-17-1

(1976) was valid and that the statute was not repugnant

to nor violative of Amendment VI.

On appeal, appellant's conviction and sentence

were affirmed on September 9, 1981, by the Mississippi

Supreme Court (App. B). One judge dissented and tiled

‘se

an opinion holding that the conviction violated Davis'

Amendment V rights. The appellant timely filed a peti-

tion for rehearing, reproduced as Appendix D. On

December 16, 1981, the Mississippi Supreme Court modi-

fied its previous opinion, but deried the rehearing

(App. A).

Timely notice ot appeal to this court was

filed in the Supreme Court of Mississippi on March ___.*

1982. Since the Supreme Court of Mississippi expressly

rejected appellant's challenge to MCA §99-17-1 (1976),

and, otherwise ruled contrary to this court's decisions

on the constitutional issues presented in this case,

this matter is properly brought to this court by appeal.

In the event that the court does not consider

the appeal the proper mode of review, appellant requests

that the papers whereupon this appeai is taken be regarded

and acted upon by writ of certiorari pursuant to 28 USC

§2103.

CONSTITUT'ONAL PROVISIONS INVOLVED

Amendment VI to the United States Constitution

provides:

"In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the state

and district wherein the crime shall have

been committed, which district shall have

been previously ascertained by law, and to

be informed of the nature and cause of the

accusation; to be confronted with witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to

have the assistance of counsel for his

defense."

Amendment XIV, Section 1 to the United States

Constitution provides:

"(NJo state shall make or enforce any

law which shall abridge the privileges

or immunities of citizens of the United

States; nor shall any state deprive any

—s

person of life, liberty, or property,

without due process of law; nor deny

to any person within its jurisdiction

the equal protection of the laws."

Amendment V to the United Stétes Constitution

provides:

"“INJo person. . .shall be compelled in

any criminal case to be a witness against

himself, nor be deprived of life, liberty,

or property, without due process of Law;

STATUTE INVOLVED

MCA §99-17-1 (1976) provides:

“[Ijndictments to be tried within 270 days of

arraignment.

“Unless good cause be shown, and a con-

tinuance duly granted by the court, all

offenses for which indictments are pre-

sented to the court shall be tried no

later than two hundred seventy (2/70)

days after accused has been arraigned.”

STATEMENT OF THE CASE

Appellant, Malcolm Joe Davis, was taken into

custody and charged with rape on March 9, 1979 (A. 3a).

He was indicted March 16, 1979. Thirteen months later

on April 10, 1980, his trial was begun. At 3:00 a.m.

on Sunday, April 13, 1980, the jury returned a verdict

of guilty. Circuit Judge R. 1. Pritchard sentenced the

appellant to 30 years imprisonment.

Pretrial Proceedings

When the appellant was taken into custody his

"Miranda" rights were read to him (A. 3a). He denied

any knowledge of the rape and requested the presence of

his attorney (R. 652, 653). An officer telephoned his

lawyer in Hattiesburg, Mississippi. The attorney said

he would come to Picayune and confer with the accused

(R.°655). Davis so informed the officers. Davis said:

"I don't want to talk about it." (R. 643). However,

the officers continued to question” the appellant

without the presence of his attorney.

During the continued interrogation following

Davis’ expressed desire to deal with the officers only

through counsel, one of the interrogators promised the

accused:

"lilf you talk to us. . .we'll cooperate

with you every way we can. . .I told him

it would be best. . .It would make it

easier on yourself (R. 669, A. 4a)"

At 11:00 p.m. on March 9, 1979, the sheriff

and an auxiliary deputy "[a]sked to have him (Davis)

gotten out of the cell where we could talk with him”

(R. 782). Appellant was again informed of his “Miranda”

rights. He told the sheriff that his attorney was coming

to confer with him. The sheriff wrote out three different

confessions, and at the direction of the sheriff, the

appellant signed his name to two of them, implicating

himself in the alleged crime.

The grand jury indicted appellant on March 16,

1979, and the Pearl Kiver Circuit Court set the case for

call on March 26, 1979. Davis and his counsel appeared

before the circuit judge. The court did not arraign the

accused at that time because of its custom of refusing

to arraign unless the case was to be tried during the

term s® as not to start the running of the 270-day period

set up in §99-17-l1. Davis’ case was never scheduled to

be tried during the March 1979 term, whicn began on March

12 and ended Sunday, April 22, 1979.

0 the initial opinion released September 9, 1981,

the Mississippi Supreme Court wrote "(N]o interrogation

occured that afternoon. . ." (B. 4a). In the modified

opinion the state court said: "[S]ome interrogation was

continued that afternoon, but no prejudicial or incrimi-

nating statements were obtained from Davis. . ." (A. 3a).

—

On March 30, 1979, Davis filed the first of

two motions to suppress the confessions alleging viola-

tion of Amendments V, VI and XIV to the United States

Constitution, because the incriminating statements were

made without counsel being present, at a time of great

mental stress, and prior to his appearance before a

magistrate.

On April 26, 1979, four days after the March

1979 term had ended, the court entered an order, on the

motion of one of appellant's counsel, continuing the

case to the November, 1979 term. The order was a nullity.

It did not delay the trial.

The pertinent provisions of MCA §9-7-41 (19/9)

effective Frebruary 22, 1979, provides:

"(T]he court terms in the Fifteenth

Circuit Court district shall be as

follows:. . .Pearl River County On

the second Monday of March for

(42) days and on the first Monday of

November. . .(18) days each for both

civil and criminal business. 7”

The 18-day, November, 1979 term of the Pearl

River County Circuit Court began on Monday, November 5.

The court set Davis’ trial for November 16, 1979. The

appellai.: moved for a special venire of jurors on Novem-

ber 7, and filed a list in the office of the clerk of 13

witnesses to be subpoenaed for the trial. On November 13,

the district attorney moved ex parte and was granted a

continuance to the April 1980 term for the trial of Davis.

The non-intrinsic reason given for the delay was the

state's lack of prosecutorial manpower, because "([nJo

assistant district attorney was provided. . .(and) the

District Attorney's presence was required. . .with the

Grand Jury. =

On November 15, 1979, Davis’ counsel appeared

and objected, without success, to the delay. At the

insistence of counsel, Davis was arrainged on that date.

(F. 2a-6a). On November 30,° 1979, Davis’ case was preset

to begin on April 10, 1980.

On April 3, 1980, the appellant moved to dismiss

the indictment and to be discharged because he had been

deprived of a speedy trial guaranteed by Amendment VI as

a result of the unreasonable delay (399 days) in bringing

him to trial. The motion to dismiss is reproduced as

Appendix E. On April 7, 1980, the trial judge considered

and overruled the motion to dismiss. Set forth in Appen-

dix F are the detailed reasons of the court which in effect

justified the delay on the basis of MCA §99-17-1 (1976),

which said for good cause twe continuances were granted

in this case.

Proceedings During

The Trial —

During the trial the state offered into evidence

the “confessions.” The appellant objected on the ground

that the incriminating statements were not voluntary

because they were the product of duress fear and compul-

sion. Davis’ will was overbourne by his reaction to tte

psychological pressures on characteristics personal to

him.

The state was under an evidentiary burden to

prove “beyond a reasonable doubt" that Davis voluntarily

made the incriminating statements and freely confessed

to the crime charged in the indictment.

In an attempt to meet this burden the state,

over objection, was permitted by a series of leading

questions directed to the non-expert law enforcement

officer to elicit testimony that the accused appeared to

be “sane,” "“Unintoxicated" and "not drugged" when he was

being interrogated.

—

. "°

ta ao

‘ .

pa 8.

Se The accused presented the uncontroverted ex-

wy :

ey pert testimony of Dr. Daniel Cox, clinical psychologist:

"{I}) don't think Malcolm Davis knew what

: he was doing.

a "A. I do not believe Malcolm Davis

’ knew what he was doing when he signed

; those things. I don't think he was

Ss capable of making that decision with-

; out counsel. He had no counsel.

PnP "A. At the times Malcolm Davis was

~:* alleged to have signed those two docu-,

a ments it's my professional opinion that

ae, he would have signed anything simply to

relieve the stress that he felt, the

anxiety, the nature of his own disturbances.

It was like a resolution of the conflicc.

He would have signed literally anything."

(R. 592, 593, 850, 854)

The trial court overruled the objection of the

P appellant, and admitted the confessions into evidence.

When the court admitted documents into evidence, the

incriminating statements were given to the jury to read.

The district attorney caused a state witness to

display before the jury certain articles and objects

implying a connection with the alleged crime. After

the prejudicial display the state announced that no

attempt would be made to offer the items into evidence.

The court overruled the appellant's objection and motion

for mistrial. Other than the statement of the prosecutrix

the state introduced no evidence to establish the corpus

delecti of rape. There was no evidence that the prosecutrix

Cy surrendered because of fear arising out of a reasonable

apprehension of great bodily harm. There was no evidence

that she had had sexual intercourse on March 9, 1979. The

excessive and inaccurate corments of the trial judge during

the trial was a form of evidence which changed the factual

matrix within which a jury customarily operates; structured

a verdict of guilty; relieved the state of the burden of

establishing “beyond a reasonable doubt" the charge in the

indictment; and shifted to the appellant the burden of

proving his innocence. The appellant moved to quash the

Special venire on the ground that the panel as drawn

was Violative of his rights under Amendments VI and XIV.

Appellant's statistical evidence demonstrated that the

jury was not drawn from a representative cross section

of Pearl River County. A disportionate number of jurors

were drawn from the district wherein the prosecutrix lived.

Statements of the assistant district attorney

and the interpretative remarks of the trial judge called

the attention of the jury to the fact that the appellant

had not testified and denied the offense with which he

was charged. Counsel for the appellant objected and

moved for a mistrial because the comment violated Davis'

rights under Amendment Vv. The objection was overruled

and the motion denied.

At the conclusion of the state's case, the

appellant moved for dismissal and acquittal because the

State had failed to meet its burden of proof. The court

denied the motion.

The appellant timely filed his "Motion for New

Trial,” reproduced as Appendix G. Specifically set forth

were charges that the trial court erred: in failing to

Gismiss and Gischarge the accused because of the violation

of his right to a Speedy trial accorded under Amendment VI;

in admitting into evidence the “confessions” in violation

of the accused’ Amendment v rights, because the incrimina-

ting statements were not the voluntary acts of Davis, since

2/ Closing arguments are not customarily taken by

the official court reporter. Appellant's counsel under-

stood the assistant prosecutor to Say: “(AJ1ll Malcolm

Davis had to de was to come in here and deny he committed

the offense."

3/ The trial judge ruled that the assistant dis-

trict attorney said "[T}hat all the defendant had to do at

that time was to deny he committed the offense.” The court

explained that the reference was to March 9, 1979.

def

10.

he was mentally unable to resist the psychological

pressures, and because of the promised leniency ana re-

ward if he would "talk" to the law enforcement officers;

in failing to grant a mistrial because of the comments

of the assistant district attorney on the appellant's

failure to testify together with the interpretative remarks

of the trial judge thereasto which were violative of Davis'

Amendment V rights.

On April 21, 1980, the trial court overruled

appelianc’s motion for a new trial. On May 23, the trial

court entered its order allowing the appeal in forma

pauperis.

Proceedings In the

Mississippi Supreme

Court

The federal questions in this appeal were pre-

sented in the Mississippi Supreme Court. The manner in

which the questions were raised and the disposition thereof

are set forth herein un“er the separate sub-headings.

The Mississippi Supreme Court

Gave Validity to MCA §99-17-1 (1976)

Which is Repugnant to Speedy Trial

Requirements of Amendment VI because

the Statute Precludes Counting 252

Days of Prearraignment Delay

=—_ +

The Mississippi Supreme Court rendered its

original opinion (App. B) on September 9, 1981. The

appellant filed a petition for rehearing (App. D)

challenging the factual finding and conc!usions of

law. The state court rendered a modified opinion on

December 16, 1981, wherein it charged some of the origi-

nal findings but nevertheless denied the rehearing (App. A).

The opinions of the Mississippi Supreme Court violated

Davis’ right to a speedy trial when it upheld the validity

of MCA §99-17-1 (1976) which is repugnant to his rights

under Amendment VI (App. A).

ll.

The Mississippi Supreme Court points out in

the opinions (App. A, B) that

Se 6 ee -eae. go come q . Glenna oe «+. <a 6 = = a

“[Djavis filed a motion to dismiss the

indictment based on the state’s fallure

to bring him'to trial within the 270 da

time period of MCA §99-17-1 (Supp 19805.

This motion was overruled because the

delay was the result of continuances

granted.

"{Wle are of the opinion there was not

untimely delay between arraignment and

trial date.

“[tjhe time prior to arraignment is not

computed to determine compliance with

this statute. . . (Emphasis added)

“(t]he delay. . .is not unreasonable in

view of the Fact the Court belo6w has”

two terms of criminal court each year,

March and November terms. Defendant”

cannot be heard tc complain about the

first continuance from March 1979 to

the November 1979 term Lecause defense

requested it to complete psychological

tests of defendant. The state requested

and was granted the continuance from

the November 1979 term to the March 1980

term. . .the continuence, in our opinion,

was not unreasonable because the trial

court found the District Attorney was

required to be befcre the grand jury

the entirety of that term. We. ,

think beth continuances were necessary

and reasonable. . .and surely nor viola-

tive of MCA §99-17-1 (Supp. 1980) which

permits continuances for good cause.

“{Wle . . .are of the opinion the delay

did not infringe on Davis” constitutional

right to a speedy trial. —

"(Wile are unable to state there was error

in not dismissing the indictment. . .there

was some testimony that appellant's in-

carceration contributed both to his mental

and physical deterioration, it was not

conclusive on the trial judge as he had

other factors to consider in conjuntion

with it, such as appellant's physical

appearance and demeanor, testimony cf

deputies and the sheriff as to appellant's

mental and physical condition. . . the

appellant's right to a speedy trial was

not violated” (App. A 4a, 5a, B 4a-6a)

(Emphasis supplied)

12.

The decision of the Mississippi Supreme Court

(App. A) squarely rejected the appellant's assignment

of error reproduced as Appendix H that

"[T)]he failure of the court to grant tte

defendant a speedy trisl violated his

constitutional rights under Amendment VI,

which is made obligatory on the state by

Amendment XIV, aggravated his mental

condition because of the prolonged in-

carceration prior to his trial was unduly

oppressive; maximized his anxiety and .

concern which accompanied the puLlic

accusation of the appellant; and greatly

impaired his ability to defend himself.”

(App. H)

The Mississippi Supreme Court ruled that the 252

days from March 9 (date of arrest) to November 15, 1979,

(date of arraignment) could not be computed as a part of

the 270-day limit under MCA §99-17-1 (1976). The 147

days from November 15, 1979, to April 10, 1980, (the date

when the trial began) were the only days the state courts

considered under §99-17-1.

Appellant contended and argued in the state

courcs that each of the 399 days, between the arrest

and the commencement of the trial, are required under

Amendment VI to be counted as a part of his rights to a

Speedy trial. To exclude the 252 deys is to give validity

to MCA §99-17-1 which is repugnant to Amendment VI to the

Constitution of the United States.

Amendment V and the Precedents

of the United States Supreme

Court are Contrary to the De-

cisions of the State Courts

that the "Confessions" Were

Voluntary and Admissible

The appellant assigned as error (App. H 2a) the

admission into evidence by the trial court of two signed

confessions:

"(Tlhe procurement, use and admission

into evidence of the several involuntary

confessions deprived the defendant of

the essenti#l elements of due process

13.

guaranteed by Amendment V; of the right

to effective assistance of counsel in

violation of Amendment VI..."

The Mississippi Supreme Court conceded it found

: troublesome two aspects of the admission into evidence of

the incriminating statements

“(W)hether they were voluntarily given

and whether there was an intelligent

waiver of counsei. . . (A 5a)

"T]he circumstances of this case

parallel rgpher closely the facts

of Edwards®?’. . .Both cases concern

_ a second police-initiated interroga-

tion. . .Davis reported to tte officer

that the gh torney would come to the

sheriff's?’ office that afternoon and

confer with him; however, the attorney

did not come to the sheriff's office

and confer with Davis that date except ase

in tne telephone conversation. Some

nine hours later the sheriff and a

deputy talked with Davis and obtained

the confession. Davis told the sheriff

he had spoken to his attorney, but he

was still willing to talk to the sheriff

at that time We conclude that after

Davis’ counsel failed to appear in the

afternoon, he willingly waived the

presence of counsel aid willingly

answered quest ions of the sherif

(A. 6a) ¢

The conclusion of the state appellate court has

absolutely no basis in fact. Davis never willingly waived

the presence of counsel nor did he willingly answer questions.

The Mississippi Supreme Court declined to give effect in

Davis’ case to the legal principles clearly spelled out

~ Edwards v. Arizona (May 18, 1981) OC Re

68 L. Ed 2d 378, IOI S. Ct I8s80

2! nevis did not report that the attorney would come

to the sheriff's office. Alttough the statement is minor in

importance to the issues involved, the statement does demon-

strate the cavalier manner in which the Mississippi Supreme

Court treated the detailed facts. Davis reported that the

attorney would come to the Criminal Justice Center in Picayune

approximately 50 miles southwest cf Hattiesburg. The sheriff's

office is located in Poplarville, 30 miles southwest of

Hattiesburg.

14.

in Edwards to the effect that having exercised his right

at I:55 p.m. to have counsel present during interrogation

the appellant did not validly waive that right during the

11:00 p.m. - 2:00 a.m. interrogation.

The misleading factual statements of the Mississippi

Supreme Court is again demonstrated:

"([S)heriff Holliday testified Davis did

not make a request to contact his attorney,

explaining as follows: ‘Whenever I read

his rights, and he signed the waiver of

rights, he told me that he had spoken to

his attorney, but he was still willing

to talk to me.*" (A. 4a)

The record presents a different picture. At no

time did Davis ever tell the sheriff he was willing to

talk to the officer. The sheriff "[j]ust started talking

to him about things in general" (R. 525). The statement

in the opinion that Davis was willing to talk to the

sheriff about things in general does not support the

conclusory staterent that the appellant was willing to

talk to the sheriff about the alleged crime.

The factual differences in the Edwards and

Davis cases are so minute as to not to be distinquishable

in the application of the legal principles. Davis never

voluntarily waived the presence of his counsel at any time;

he never abandoned nor relinquished any right or privilege.

As in Edwards the Mississippi Supreme Court applied an

etroneous standard for determining Davis’ right to counsel

by focusing on the voluntariness of the two confessions

rather on whether he understood his right to counsel and

intelligently relinquished that right. Both the trial and

appellate courts illegally and arbitrarily ignored the

uncomtroverted testimony of Dr. Cox that Davis did not

know what he was doing when he signed the waiver of rights

and the two confessions, because he was incapable of making

the decision without counsel and he had no counsel present.

Davis invoked his right to have counsel present

at 1:55 p.m. on March 9, 1979, to advise him during the

“oft

15.

custodial interrogations. The valid waiver of that right

was’ not and could not be established by the mere "conclu-

sion" of the state appellate court judges that just be-

cause the lawyer did not come to the “sheriff's office"

on the afternoon of March 9, that Davis waived his right

to have counsel present. The mere showing that he responded

to the police-initiated interrogation after being again

' advised of his rights was not sufficient in Edwards nor

in Davis to validate the confessions. The use of Davis’

“confessions” against him at the trial violated his rights

under Amendment V and XIV to have counsel present during

every phase of custodial interrogation. Once Davis ex-

pressed his desire to deal with the law enforcement officers ’*

only through counsel, the sheriff could not legally further

Miranda v. Arizona, (1966) 384 U.S. 436, 16 L. Ed 2d 694,

86 S. Ct 1602, unless the appellant himself initiated

further communication, exchanges, or conversation with the

law enforcement officers, i.e., an actual Overture by Davis

toward the sheriff. This the appellant did not do.

Davis’ rights under Amendments V and XIV were

violated in the same manner as were the rights of Edwards.

Comments by Prosecutor and

Court on the Appellant's

Failure to Testify Violated

His Amendment V Rights

The appellant had a consitutional right to

remain silent. Permitting the prosecution to use that

right as a weapon to convict him violated Davis’ rights

under Amendment V and made applicable to Mississippi

under Amendment XIV. The guarantee against selt-incrimi-

nation of Amendment V forbids either comment on Davis’

faiiure to testify made by the assistant district attorney,

or the clairvoyant perceptive explanation of the remarks

mo |

16.

by the trial court of the meaning of the statements

which the trial judge made to the jury.

The Mississippi Supreme Court, as far as can

be ascertained, refused for the first time in its long

history to follow the unbroken line of cases which reverse

and remand for remarks made by the state's attorney on the

failure of the accused to testify. Patterson v. State,

357 So. 2d 113, 115-117 (Miss. 1978). .

In refusing to condemn the comment of the

assistant prosecutor, the Mississippi Supreme Court

indulged in unjustified assumptions, resorted to the con-

clusion of justification which the court speculated Was

in turn evoked by the fact that Davis first denied his be,

participation in the alleged crime and later confessed.

In upholding the trial court's failure to

grant Davis a mistrial on the argument of the assistant

district attorrey, the Mississippi Supreme Court said:

“(T]he appellant also contends it was

reversible error because the trial

court refused to grant a mistrial when

the assistant prosecutor in the closing

argument was allowed to comment on the

failure of the defendant to testify

in his own behalf. Since defense

counsel dic not preserve the closing

argument for the record®’ or by a

bill of exceptions o: otterwise, we

must assume the court‘s ruling in this

regard is correct. The byial court

dictated into tke record the

following:

"Let the record show that the Assistant

Attorney was arguing the case, and in

his argument of speaking of the times

that the statements were made by

es ee ee ee

~ There is no provision in Mississippi statutes

fer closing arguments to be taken and preserved in the record

by the court reporter.

— wi,

presence of ..e jury.

17.

defendant and in réference to those

Statements, he made the statement

that_all the defendant had to do at

that time was deny he had committed

the offense. Upon him stating that,

the defense attorneys have now moved

the court for a mistrial. The court

finds that the statements made by the

Assistant District Attorney were made

in the 9 March, 1979, and in the early

morning of 10 March, 1979, and in

conjunction with the statements tlhat

were made to the Sheriff and other

witnesses at said time and place and

were not in any manner referring to

any other time, place, circumstance

or situation, for this reason, the

motion will be overruled. '

“"{I)£ the attorney's statement could

reasonably be construed by the jury as

a comment on Davis’ failure to testify,

then it would be immaterial that the

attorney intended to refer to a situation

other than the trial-in-chief Reddick " @

v. State, 72 Miss. 1008, 16 So. 2d 490

(1895).

In the dissenting opinion the state Supreme

Court judge said:

“[M)ississippi Code Annotated §13-1-9

(1972) requires, and this court has

held in numerous decisions. that no

comment whatsoever shall be made

upon the defendants fallure to

testify In a case. We have sone

further and nel, no comment can be

made which could be construed by the

jury _as a comment on the failure by

the accused to testify. Brown vs

State, 340 So. 2d 718 (Miss. 1976),

Lambert v. State, 199 Miss. 790, 25

So. 2d 477 (1946), Reddick v. State,

72 Miss. 1008, 16 So. 490 (1895).

“[Als_ttis court said in Prince v.

State, 9S Miss., 46 So. 587 (1908),

the jury cannot avoid being keenly

cognizant of the defendart”s failure

to testify, and the defendant being

manifestly the one person most {n-

terested S the outcome, the jury

can only wonder why he did not

test S34 -_To make any kind of com-

ment that can be construed as a

statement to the jury as ‘Well, if

he is not guilty, he could have

deried ft," can only result tn

serious prejudice to the defendant's

statutcry and constitutional rights

under the Fifth Amendment to the

Constitution.

mltea

—_——— - — ee eee

= - —--

18.

“(Tjhe Court stated in pertinent part

° ". . .The Assistant Attorney wa:

arguiny, the case, and in his argu-

ment of speaking of the times that

the statements were made by the

defendant and in reference to those

Statements, he made the statement

that all the defendant had to do

at that time was deny that he com-

<1} MM —

mitt d rhe ife co”

mi ec Line Oi ense.

oor gy} — : m >a ; :

fr )or weive UrOrs under tnose cir-

= ’ y . , ‘

Cun tances to restrict tneir t OULNCS

’ ’ ‘ad j y — .

solely to the detendant tatements

y= 7 ll le . y ¥

to the iaw otficiais, ana not i

’ , , ' 7

instantly be alerted by this < ent

' ‘ onl . ' « " ’ ‘a

the defendant could } ive enied hil

_— ” , ;

RulLit as a witne 8 rron tne witne

=, " , ~* .

cnair each wculd irst require i

a | . as t as : . ’ ’ *

i ) uly i . Cw ‘ ‘ cy!

‘ e S +

( t he assistant pr 7 ror « t i

‘ . . * *

pe rt trued a 7 ¢ ‘ t ‘

failure f the defen int to ‘

f T t ‘ l ter< ‘ na é >

i ; A ) ’ ;

i i ida ‘ ‘A a } 4- ida)

, pnasi Suppiled)

ine Crjai court found that the i istant dis-

trict attroney said in his arvgumenr ¢ thie iry

,. , ’ > , ,

il ‘ et.

, . , . : } }

i i ime w ‘ J i ‘

*-- rm

tte tne Tier ‘ pha

> ¥ -

4, psied)

, = 4 7 ™

rhe ajority of the Missi ip} ipreme Court

said they had difficulty in determining the prejudicial

‘

effect of the statement on the iry s verdi (A i)

= . ee wT — — oe pte bond

The majority “assumed” the trial court properly resolved

the question

Abandoning the historic rule which it announced

in Reddick v. State, cited supra, and which it has followed

without exception since 1895, the majority of the Mississippi

Supreme Court in Davis v. State on the basis of conjecture

alone, in the total absence of facts, reached the conclu-

sion that the assistant district attorney was frustrated

and perhaps mesmerized by the fact that Davis first denied

his participation in the crime and when he was promised

leniency, suffered coercion, had his will overbourne, he

involuntarily signed two confessions, thereby forfeiting

his rights under Amendment V which permitted the prosecutor

« &

4% ®

ud 19.

7 as to call the jury's attention to the fact that Davis did

o . : £,

ae not testify.

¥ Perhaps most amazing of all, is the statement

> of the majority of the Mississippi Supreme Court as a

¢ .

i “* justification for denying Davis his constitutional rights:

she

“"[Njor do we have, as did the trial

roe court, the benefit of defense counse!'s

‘ argument which might have prompted

* . — - — _—_ ; - 7 ; .

J the comment of the assistant district

wal attorney in reply.” (A 7a) (Emphasis ~

©. supp lied)

‘ When the assistant district attorney made the

" offending comment he was making the prosecutions’ opening

$ summation. The defense counsel had not argued to the jury.

As far as is known no judicial tribunal in the United States

has ever held that the argument of defense counsel would

{ provide the prosecution with license to suspend Amendment V

and MCA §13-1-9 (1972) and comment to the jury on Davis’

failure to testify.

“Consistency” is not a “jewel” in ae Circuit

Court of Pearl River County nor in the Supreme Court of

Mississippi. For the trial court said the assistant

prosecutor argued "[t]jhat all the defendant had to dc

at that time (March 9 and 10, 1979) was deny he commited

the offense." On March 9, the law enforcement officers

; read Davis a statement of the "Miranda" rights in the

following language.”

"{¥]ou must understand your rights

pefore we ask you any questions.

ees” have the right to remain silent

"[Ajnything you say can be used against

you in court, or other proceedings.

"TY¥YTou have the right to talk to a

lawyer for advise before we question

you and have him with you during

uestioning. . ~ (R. 327, 608) .

tiaskasts supplied).

Davis denied any knowledge of the rape and

requested the presence of his attorney, and stated he

didn't want to talk.

: 20.

"Miranda" requires that Davis be told that he

has the right to remain silent and no derogatory inference

can be drawn from his silence. The Mississippi Suvreme

Court in Davis v. State told the appellant that if he

. initially remains silent, the state may take away his

rights under Amendment V and call the jury's attention

to the fact that he has not testified

"ltlo draw a derogatory inferencs

from mere silence is to compei the

respondent to testify; and the

customary formula of warnin;, should

be changed, ard the respondent

should be told, ‘if you say anything

it will be used against you; if you

do not say anything that will be

ised against you.*" Bitner

e, 293 So. 2d 339, 341 (Miss

The Repugnance of §99-1/7-1 to

Amendment VI Was Again Demon-

strated When the Mississipp.

Supreme Court Upheld the Validity

of the State Statute Following

Appellant's Petition for Rehearing

The question of the validity of MCA §99-1/7-1 on

the ground that the state statute was repugnant ¢t Amend-

ment VI was again presented tc the Mississippi Supreme

Court on October 8, 1.%l, in paragraph 10 of the Petition

for Rehearing (App. D 4a-5a)

"'Tihe Mississippi Supreme Court er ed

in the September 9 1981 gecisio i

"(a) refusing to hold the delay of 39%

days between Davis’ arrest and the be-

ginnin f his trial vi ited hi sixth

Amendment right to a speedy tria

"(b) failing to hold that MCA §99-!/7-

under the circumstarces existing in

this case i8 unconstitutional on [ts

f F l - 7

ace and as app

"fc) holding tha the failure of Pearl

River County to have a prosecuting

attorney available at the November, 1979

term in a cimely manner justified a

continuance “for good cause

"(d) refusing to hold that the delay

399 davs between arrest and trial gave

prima facie merit to Davis’ challenge

to the lack of a speedy trial

"(e) refusing to hold frem the uncontra-

dicted evidence of the psychological

expert that Davis’ incarceration contri-

buted to his ‘mental and physical con-

—

dition’ and in accepting the lay

testimony of law enrorcemer

, mt

$ ; , :

elicited by leading questions that the

appellant appeared ‘normal.*” (D 4a-5a)

(Emphasis supplied)

HOW THE FEDERAL OQUESTIONS Wi

RAISED AND DECIDED IN THE STATE

COURTS

inne ippellant properly rais« the tederal

questions presented for review in this court a hown i

the "Pretrial Proceedings” (pt 4-7) ‘Proceedings Durir

the Triai™ (pp i-10) and "Proceeding the Mi i ipp

Supreme Court” (p. 10) Since the apne i 7 rt i

the at Ve named t ti ‘ . tj il tate ‘ ,

the method t wi mh the tederal questi were i1sed and

the dis{ l thereot i eacn i ta ‘ rar to the

Tis if i t ‘ : < lla it ; lee ‘ i ite t I

necessary t repeat the details i t i é

appea

DERAL QUESTIONS ARE

IBSTANTIAI

; va jal SAGea c Malc« if c iva ; t s

appeal, seeks to have the United tate prem irt

as the ultimate umpire, reconcile and a ist the trué

boundaries between his individual right with tt e of

the State of Mississippi The federa! constituticnal

questions presented in this appeal are substantial, in

trat the issues are of real worth and importance t the

appellant and to society as a whole The King r the

reconciliations and ad‘ustments between the individual

and the local governments “|ijs the highest problem that

+ } IT — TP at 4 + Sot P 3/

thoughtful consideration of human society has to solve

lellinek, The Declaration

Man and of Citizens (1901) p. 96.

‘

O41 tne Right » ot

se.

oh. ,

> . .

22.

; 2 . : : ’ . . .

Pe In this portion of the "Jurisdictional State-

‘ : . P

. ment’ Davis demonstrates that his rights under Amerdments

as .

V, VI and XIV were ignored by the state.

° ~~ « , I

2 Davis’ Amendment VI Right To

3 Speedy Trial Was Denied By

2 State Court Validation of MCA

Z, §$9-17-1 Which Precluded Counting

252 Day Delay Between Arrest ,

_ And Arraignment

“y

The Sixth Amendment to the Constitution of the

United States guarantees to all persons a “speedy trial"

in criminal prcsecutions by the federal government. In

1967 this court ruled that an accused's right to a speedy

trial protects a fundamental right and is made obligatory

upon the states, including Mississipppi, under the due

clause of Amendment XIV. Klopper v. North Carolina (1967)

i at. 386 U.S. 213, 222.

From the time of his arrest on March 9, 1979.

Davis has remained in prison. Amendment VI was applicable

to the appellant on the above date for then he became ar

accused. The computation of time under MCA §99-17-1 does

not begin until arraignment. Under Amendment VI the time

begins to run when "[t]he putative defendant in some way

became an ‘accused. '" United States v. Marion (1971),

> 404 U.S. 307, 313, 316, 317. Justices Douglas, Brennan

and Marshall ir a concurring opinion indicated the right

to a speedy trial applied to pre-indictmert stages of the

Marion case. “[tjhe actual restraints imposed by arrest

and the holding to answer a criminal charge. engage

the particular protection of the speedy trial provision

of the Sixth Amendment.” Dillingham v. United States

(1977), 423 U. S. 64. "“[t]}he actual restraints imposed

by arrest and holding to answzr a criminal charge” engage

the right and protections of the speedy trial provisions

23.

of Amendment VI. United States v. Ramsey (1977), 431

U.S: 606.

Under Amendment VI the 252-day period between

the arrest on March 9, and the arraignment would have

counted in the delay. Under MCA §99-17-1 the Mississippi

Supreme Court effectively held that Amendment VI and its

speedy trial guarantees are displaced by the state

Statute. MCA §99-17-1 is repugnant to Amendment’ VI rela-

tive to the starting point for countiny, time.

court observed with reference to the speedy trial right:

“Itlhis constituticnal puaranty has

universally been thought essential

to protect at least three basic de- are

mands of criminal justice in the Anglo-

American legal system: ‘[{1] to prevent

undue and oppressive incarceration prior

to trial, [2] to minimize anxiety and

concern accompanying public accusation

and [3] to limit the possibilites that

long delay will impair the ability of

an accused to defend himself.'"

The stéete court held that the 147 days subse-

quent to the arraignment and the commencement of the trial

Was not unreasonable: (1) because the trial court “[h]as

two terms of criminal court every year, the March and

November terms" (A 4a); (2) because Davis cannot be heard

to complain about the continuance from March to November,

1979, for the defense requested it to complete psychological

tests of defendant; and (3) because the state requested and

Was granted a continuance from the November 1979 term to

the April 1980 term “[bjecause the trial court found the

District Attorney was required to be before the grand jury

the entirety of that term and there was no assistant district

attorneys tv try the case at this term." (A 4a).

The Mississippi Supreme Court chose to ignore

the facts concerning the request of appellant for a con-

tinuance to the November 1979 term. As set fortt herein-

before (p. 6) the Mississippi Legislature by an act effective

. .

‘

a%-

_ — ' ‘ ‘ . ‘ ine & apa +> >

FCOrUary 2d, ADis, MCA g9~-/-4i CO provide tcnat

+he rc} ? rT —rF ¢he Da Si woy "iene ‘ . >

tne MAIrCnN 27/7 CeOrM OL Che re BLver CLATOCuie Course

shri lA on ry >? . ‘ vw “oh +} }

SnouUusG pegin on tine Of marcn sh ddy

P ¥ ] } ;

MPL £2dy A je

tne term ended th trial

° ’ '

. -_" = ’ y . “An? , ‘

Cc ae CrastClcou dai *>a*' I *< eeu sbive di aa i "

> . " . ‘ , ; ¥ . , ¥ ¥

-O tne november iyiy term. ait APFii <0, sa? Or z 21c

, + a, > ‘ , ; a

OL GeLlay The ~-riadit OL VAaVIS. a fie State nad never set

" a ' »* ; ’ wis ‘ . ‘ ‘ --) ’ ‘

“~42Vi5 -raadsaz GUIAN Or OL VC MATCH ay y LCi . a iit Urcel

. . > . > «, > , ° ¢

“*a2S5 a CUI 2CeC wes dd “ad ae SVC. Cu GB aa Peeters | . a sat

w ' . ; & -s ‘ . Zz a +

WAVILS Aidt 745 GAULYO i Jrivasiveu wy J La s i Aw

+» ‘ *» “

WesOae tne ve : Cathie . Witil 4 4 —> &+Aae aaat 2 ‘ P

, . ‘ . ‘

eUprens . iti. ma nave “On sSQq z Z . ‘

2 J

> > ‘ " 7 > ™ ‘ . ; .

e¥lsGi COUITLC Gated sf tia J 7 dy tO transis ' ‘ enacan

> . . > ’ . y ‘ ’

~O MANGAS COU ~Or -ne purpose navain 52 tp :

;

a ps CnoO 4 ist anc s Cnsatrist.

4 : J

we . > ‘ ‘

> * ‘> ++ -* »~ * 4: a sa . . . ‘

_ , ‘ . — > .

awd« ua wCsad a2 eemsd Gas ; < ‘ ¥ ‘ ‘ , " pads &

” . . : > . . oe

a@ COnLCIAnNUaNnce aud rant . = a" i ‘ ‘ it ,

, . — ‘ .

@GG4inSC Che a@ppesz.zant ana Constituts P z i -

‘ y ‘ . ,

. Tie ~+ ‘\ eV a . ay tCridadi-.

: P

&BVen ii Cie ~act gcemonstrat a % at ivj ISneU

‘ y , , ¥ " a 28 ° . ‘ . > ‘

OF a2 GOLay VY prCpare 118 OWN Case, a an COnSta 4

+ Ff . > > ’ r*

a waiver = 845 FTAQNC CO @ Speecy ridi-c s | pers

> ’ ‘ 4 " ; ‘ *y >

Cererecvee 425 &@2 Wisi id eC iay i. ~ne riaa rw i 2 wy

‘ os . _ " S « "

the Mississippi Supreme yur is a 20G Causi ircum-

° , ' + Ys. ? - «> . ‘ v

Vent vavis CONSLATULIONa, Frignt to a speec trial. Sarnrez

as sA7 . — .

Veo Will azZiazijigs SV We Juntys Janie

bed 9 > >

aj sat a as no 4 r.7CC ‘ -~-GAe P

~ » ° , > . .

iné 2 IMpOossivis -O sn Ji i

ce 4 » 4 y + me . 9 ‘

precis¢ time ii tne process wnen tn

> . > > ws ° ™

~-nat ne MASSASSiIppi ocupreme

» r+ - rf a > . ier : ’ P : «+ 7 .

LOurt conrusec tne orcer datec August 3, 1979, to have

r wie ‘ = . “ ",r so WwW 71 . ™ . - ;

Vavis examined by wie VCOTGeE Wilkerson, re AL Iris in

Hattiesburg.

25.

right must be asserted or waived,

but that fact does not argue for

placing the burden of protecting

the right solely on defendants.

A defendant has Hg duty to bring

himself to trial—' the State has

the duty as well as the duty of

insuring that the g5iel is consistent

with due process .2/ Morever, for

the reasons earlier expressed,

society has a particular interest

in bringing swift prosecuticns,

and society's representatives

are the ones who should protect

that interest.”

One of the reasons for repudiation of the

demand-waiver rule given in Barker v. Wingo was that it

placed defense couns) in an awkward position for

"If counsel is willing to tolerate

some delay because he finds it

reasonable and helpful in preparing

his own case, he may be unable to

obtain a speedy trial for his client

at the end of that time.” (407 U.S.

at p. 527).

Barker repudiated the demand-waiver rule in its

totality. This court held ttat a reasonable request by

counsel for time to prepare for trial cannot be interpreted

as a wilful delay of the trial or be used by the state

courts to circumvent Davis’ constitutional right to a

speedy trial. The 252 days should not have been excluded

by the state courts.

20) ur Chief Justice Burger wrcte for tke court

in Dickey v. Florida:

"Although a great many accused persons seek to

put off confrontation as long as possible, the right to a

prompt inquiry into criminal charges is fundamental and

the duty of charging authority is to provide a prompt

trial." 398 U.S. 30-37-38, 26 L. Ed 2d 26, 31, 32, 90S.

Ct. 1564 (1970) footnote omitted.

27/

— As a circuit Judge, Mr. Justice Blackmun

wrote:

"The government, and for that matter the trial

court are not without responsibility for the expeditious

trial of criminal. cases. The burden for trial promptness

is not solely upon the defense. The right to a ‘speedy

trial’ is constitutionally guaranteed and, as such,

is not to be honored only for the vigilant ard the knowledge-

able. Hodges v. United States, 408 F. 2d 543, 551 (CA 8

1969) ."

26.

Standardizing the American Bar Association

staridards Relating to Speedy Trial (approved drafi 196%,

pp. 11-13) recommends vesting contrcl over the criminal

calendar in the trial court and assigning the proserutor

the responsibility of periodically filing reports with

the court setting forth the reasons for delay as to each

case fcr which he has not requested trial within a pre-

scribed time fcllowing charging. Standards 3.8 relating

to the function of the trial judge (approved draft 1972,

pp. 48-50) and Standard 5.1 pertaining the function of

the prosecutor (approved draft 1971, pp. 112-113) made

similar recommendations.

Davis does not fall into that catagory of

defendants who consciously seek to delay the trial on

the merits. While the legal principles in Barker v.

Wingo are controlling in Davis’ case, the fact situation

in Barker are sharply distinguished Barker admitted he

did not wish to be tried In a concurring opinion Mr.

Justice White stated:

serge

[ijt is apparent that had Barker not

so clearly acquiesced in the major de-

lays involved in this case the results

would have been otherwise. . ." (407

U.S. at p. 537)

The state courts were of the opinion that the

252 days of delay between arrest and arraignment did not

“lilnrfringe on Davis’ constitutional

right to a speedy trial" (A 4a) because

"Itlhe court below has two terms of

criminal court each YeuRy the March

and November term. . .4¥

10/—

~~ Effective April 15, 1981, the Legislature again

amended MCA §9-7-41 to read:

“Pearl River County: On the second Monday of March

and on the first Monday of November, eighteen (18) days each,

for both civil and criminal business; and on the third Mon-

day of June and on the third Monday of September, twelve (12)

days, for civil business exclusively, when no grand jury shall

be drawn or impanelled unless ordered by the court; and on the

first Monday of April, twenty-four (24) days, for both civil

and criminal business, when no grand jury shall be drawn or

impaneled unless ordered by the court.

29.

Mr. Justice Powell, in Barker said:

"(T]he approach we accept is a

balancing test.

"IWle identify four such factors:

Length of delay, the reason fcr

delay, the defendant's assertion of

his right, and prejudice to the

maa (407 U.S. at pp. 530,

The delay of 13 months (399 days) is so excessive

that it leads prima facie to the inquiry of whether there

was a denial to Davis of a speedy trial. The delay is

explainable because of the negligence of the state to have

available in a timely manner prosecutorial manpower. Davis

asserted his right on November 15, 1979, when he was

arraigned.

The delay attributed by the state courts to Davis

was not a delay. The March 1979 term had ended when the

order was entered. All of the suggested Barker factors are

present in Davis’ case. After the November 1979 delay, seven

of the 13 witnesses for which subpoenaes were requested by

the appellant for the November 1979 term were unavailable

to testify for the April 10, 1980 trial. However, no burden

is placed on Davis to show he was prejudiced. Dickey v.

Florida, cited supra, 398 U.S. at pp. 52, 53.

"(O}]ne court has stated ‘we think

thet a showing of prejudice is not

required when a criminal defendant

is asserting a constitutional right

under the Sixth Amendment.’ United

States v. Lustman, 258 F. 2d 475,

477-478 (CA2 Cir 1958), some have

held that prejudice may be assumed

after lengthy delays, e.g. Hedgepeth

v. United States, 124 U.S. App. DC

291, 294 and N. 3, 364 F. 2d 684,

687, and N. 3 (1966).

“lijt seems that inherent in prose-

cutorial delay is “potential sub-

stantial pre aia United States

v. Wade, 388 US. 218, 227.

(1967), to the interests protected

by the Speedy Trfal Clause...

_peejudice say_teirly be presumed

simp] y_beceuse_ everyone knows that

memories fade, evidence is lost, —

and the burden of anxiety upon any

criminal deferdant increases w:th

the passing months and years.”

31.

"(A]lthough West was not prejudiced

at his trial by the pretrial delay,

he was in jail for thirteen moyphs

between his arrest and trial. +

Extended pretrial detention oppresses

the accused and distroys the presumption

of innocence. See J. Skelly Wright, J.,

concurring in part and dissenting in

part in Smith v. United States, 135 U.S.

App. D.C. 284, 418 F. 2d 1120, 1123,

1124 (1960); Barker v. Wingo, supra 40/7

WOR Se re

The West court recognized that even though the

reason for the 13 months delay was calender conjestion

and lack of judicial manpower, such institutional delays

must still be charged to the government. (504 F. 2d at

p. 256, 407 U.S. at 531.) “The public interest in speedy

trials can only be protected by imposing sanctions on

the government when the criminal justice system is re-

sponsible for unjustifiable pretrial delays" (504 F. 2d

at p. 256).

The state purposefully and negligently tailed

to try Davis at the March 1979 term, refused to avail itself

of the Mississippi statutes (MCA §§25-31-21 and /-5-53

(1972) te secure additional assistant district attorneys,

failed to utilize the services of the county attorney,

and delayed the preset November 1979 trial because of

the unavailability of prosecutorial manpower. These

were actions for which the state is solely responsible,

thus denyins, the appellant a speedy trial which requires

under the governing federal constitutional provision and

judicial decisions that the judgment of conviction and

sentence be vacated, and the cause remanded to the Mississippi

Supreme Court with instructions to dismiss the indictment

and discharge Ma)colm Joe Davis.

— Davis was also in jail for 13 months between

his arrest and trial.

33.

309 U.S. 227, 84 L. Ed 716, 60

S Ct 472, Lisenba v. California,

314 U.S. 219, 86 L. Ed 166. 62 S

Ct 280; Ascraft v. Tennessee,

322 U.S. 143, 88 L. Ed 1192,

64 S Ct 921." (Emphasis supplied)

Under “due process” the accepted test is the

13/

voluntariness of two of the three confessions.“ The

test of admissibility "[i]s that the confession is made

ment of any sert. Wilson v. United States (1896) 162

U.S. 626. There is the element of inducement in Davis’

confession for he was promised that “if he would talk

it would be easier for him and the law enforcement officers

would do what they could for him." The uncontroverted

testimony of Dr. Cox demonstrates “compulsion.” Davis’

will was overbourne at the time he signed the confessions

and cannot be deemed the product of a rational intellect

and a free will, Reck v. Pate (1961) 367 U.S. 433 In-

voluntary confessions are inadmissible because societal

respect for the dignity and integrity of the human being

dees not permit officers of the state to overcome the

individual will by coercion This court has noted "(t]he

strongly fele attitude of our society that important human

values are sacrificed when an agency of the government, in

the course of securing a conviction, wrings a confession

out of the accused against his will." Blackburn v. Alabama,

(1960) 361 U.S. 199.

The American judicial system is "“accusatorial"

as opposed to “inquisitorial.” Society carries the burden

13/ ,

—'The Davis case has many similarities to Chambers

v. Florida. 309 U.S. 227. Davis’ first confession given near

midnight on March 9, 1979, was rejected by the Sheriff.

In Chambers this court said: "“[T]he rejection of the first

‘confession,’ given in the early hours of Sunday morning,

because it was found wanting ‘demonstrates the relentless

tenacity which ‘broke’ petitioners’ will and rendered them

helpless to resist their accusers further.” (309 U.S. at

p. 240).

be.’ 34.

$v : of proving its charge against Malcolm Joe Davis, not out of

rd his mouth, but by evidence independently secured through

OR skillful investigation or other legitimate means, Watts

mit v. Indiana (1949) 338 U.S. 49, 54. The circumstances of

Malcolm Davis being physically detained and incarcerated;

; the details of the persistent interrogation of the defendant

after he told law enforcement officers he did not know

anything about the rape, and did not want to talk about the

ft matter; the recounting of the signing of the two confessions

betwen 11:00 p.m. and 2:00 a,m. all have been heretofore

* set forth. The evidence of the personal characteristics

’ of Davis has been expertly examined and evaluated, all

of which conclusively established the involuntary signing

of the two incriminating statements because of his suscepti-

bility to the inducements used, and the coercive pressures

of the stressful situation created by the law enforcement

officers in procuring the "confessions. The totality of

the facts ard circumstances surrounding the confessions

overwhelmingly establish that the incriminating statements

were inv >luntary because the will of Malcolm Davis was

overbourne. The rulings of the trial court and the use

of the confessions in evidence resulted in the conviction

of the defendant and deprived him of his constitutional

rights guaranteed to him by Amendments V, VI anc XIV.

In a series of decisions beginniny, in 1936, with

Brown v. Mississippi, 297 U.S. 278, this court radically

changed the law relative to confessions. Limitations on

the admissibility of confessions were imposed. The circum-

stances by which a confession is obtained is a part of the

process vy which the state procures a conviction, and there-

fore subject to the requirements of the due process clause

of Amendment XIV.

The trial court in the defendant's case improperly

admitted the two confessions despite the conclusive evidehtce

35. .

that Davis made the incriminating statements under

duress, fear, compulsion, and the promised reward of an

easier situation. Davis’ constitutional rights were

violated because his conviction was based, in part if

not wholly, on the two involuntary confessions. The

improper admission of the confessions requires the re-

versal of the conviction, even if it could be said that

there is ample other evidence to Support the conviction.

Rogers v. Richmond, (1961) 365 U.S. 534.

The early cases dealt with physical violence.

Virtually all courts now recognize that psychological

pressures can produce involuntary confessions.

Child, 10 Akron L Rev. 261, 262; Lederer, The Law of Con-

gession - The Voluntariness Doctrine, 74 Mil L Rev. 67,

80-82 (1976). In Blackburn v. Alabama, (1960) 361 U.S.

199, the Supreme Court has said that “the efficiency of

the rack and the thumbscrew can be matched, given the

proper subject, by more sophisticated codes of persuasion."

The uncontroverted testimony of Dr. Cox Clearly established

that Davis was “the proper subject,” in this case. In recog-

nition of this, all courts have come to accept that the

coercion prohibited by the Constitution may include any

kind of duress or inducement, physical or mental, that deprives

@ person, such as Davis, of his powers to make a voluntary

rational free will judgment to confess. Since Brown v.

Mississippi, cited supra, the cases have gradually come to

Stress psychological inducement in considering the issue of

involuntariness. Blackburn v. Alabama, cited supra; Ferguson

v. Boyd, (CA 4 1977) 566 F. 2d 873; People v. Troaut, (1960)

54 Cal 2d 576, 80 ALR 2d 1418.

It was thought by many that Miranda v. Arizona,

(1966)384 U.S. 436, which required the giving of a specified

warning to an accused prior to custodial interrogation would

down grade the importance of the voluntary confession. It «

2 .

~ *

36. ‘

is now clear that such has not been the case. Child,

10 Akron L. Rev. 261, 277; Dix, Mistake, Ignorance,

Expectation of Benefit, and Modern Law of Confessior,

1975 Washington U L Q 275, 296-97; Lederer, 74 Mil L.

Rev. 67, 76.

Thus, even in a case where the Miranda warnings

were properly given and a waiver properly taken, the ul-

timate test of admissibility of a confession still remains

whether it was voluntarily made, and a confession that

was physically or psychologicall coerced is still inad-

missible, regardless of compliance with Miranda. Coyote

v. United States, (CA 10 1967) 380 F. 2d 305, cert. den. 19

L. Ed 2d 484; State v. Watson (NM) 485 P. 2d 197; State |

v. Pruitt, (NC) 212 SE 2d 92; Child, 10 Akron L Rev. 261,

277. In the case of Malcolm Davis, the confession was in

violation of Miranda and it was al sx involuntary

Under the “totality of circumstances" test used

in determining whether a confession was voluntarily made,

Mississippi courts were required by the decisicnal law of

this court to take into consideration the personal character-

istics, attributes and background of Malcolm Davis. Jones,

29 Baylor L Rev. 1, 4; Lederer; 74 Mil L Rev. 67, 85: Steele

1 Nat J Crim Defense 111, 117-18; State v. Wallace (WIS)

207 NW 2d 885. The law required the Mississippi courts to

carefully balance Malcolm Davis’ personal characteristics

with the pressures to which he was subjected when the in-

criminating statements were secured. The state courts in

this case wholly ignored and disregarded the uncontradicted

evidence of Davis’ capacity to resist the overtures and

pressures on March 9 and 10, 1979. Steele 1 Nat J Crim

The burden of proof was on the state to establish

beyond a reasonable doubt that the two confessions were

voluntary. Lego v. Twomey (1972) 404 U.S. 477; Jones, 29

37. .

Baylor L Rev. 1, 3; Lederer 74 Mil L Rev. 67, 89.

In Miranda v. Arizona (1966) 384 U.S. 436, 444,

eee CeO

this court spelled out with some specificity the rules to

be followed pertaining to the admissiblity of statements

obtained from any individual who is subjected to custodial

police interrogation in order to assure that the individual

is accorded his privilege under the Fifth Amendment to the

Constitution not to be compelled to incriminate himself.

The Mississippi court totally disregarded the rights of

Davis under Amendment V, compelled him to incriminate

himself in two confessions, and admitted the statements

into evidence with the result he was convicted of the

crime of rape and sentenced to prison for 30 years. In

Miranda this court said:

"(Pjrior to any questioning the

person must be warned that he has

a right to remain silent, that

any statement he does make may be

used against him, that he has the

right tc the presence of an attorney,

either retained or appointed. The

defendant may waive effectuation of

these rights, provided, the waiver

is made voluntarily, knowingly and

intelligently If however, he in-~

dicates in any manner and at any

stage of the process that he wishes

to consult with an attorney before

speaking there can be no questioning.

Likewise, tf the tndtviduat ts atone-

and indicates in any manner that he

dees not wish to be interrogated,

the police may not question him

The mere fact that he may have

answered some questions or volun-

teered some statements on his own

does not deprive him of the right

to refrain from answering any further °

inquiries until he has consulted with

an attorney and thereafter consents

to be questioned. . ." (384 U.S.

at pp. 444, 445)

{[Algain we stress that the modern

ractice of in-custody interrogation

is psychological rather than physically

Oriented. As we have stated before,

since Chambers v. Florida, 309 U.S.

227. . .this court has recognized

that coercion can be mental as well

as physical, and that the blood of

the accused is not the only hallmark

38.

of an unconstitutional inquisition.

Blackburn v. Alabama, 361 U.S. 199

. . «" (384 U.S. at p. 448)

(Emphasis supplied)

The law enforcement officers violated Davis’

Amendment V rights by continuing tc question him without

his attorney being present.

On May 18, 1981, this court rendered its decision

in Edwards v. Arizona, _ U.S. » O& L. Ed 2d

378, 101 S. Ct 1880. The Mississippi Supreme Court said

“(T]he circumstances in this case parallel rather closely

the facts of Edwards. . ." (A. 6a).

Edwards, as was Davis, was arrested on a state

criminal charge. He was informed of his rights as required

by Miranda v. Arizona, 384 U.S. 436, as was Davis. Edwards

was questioned by the police on January 19; 1976, until he

said he wanted an attorney. Davis was questioned at 1:55

p-m. on March 9, 1979, and also said he wanted a lawver.

In Edwards the questioning ceased. In Davis, it did not

cease. The law enforcement officers continued to question

Davis and promised that if he would talk to them it would

be easier. In Edwards the officer came to the jail,

Stated they wanted to talk to him, again informed Edwards

of his Miranda rights, and obtained his confession “when

he said he was willing tc talk." In Davis, the sheriff

and an auxillary deputy came to the jail at 11:00 p.m.,

had the appellant brought out of his cell, again informed

Davis of his Miranda rights, obtained three confessions, *

two of which he signed implicatiny himself in the crime.

Davis never expressed his willingness to talk. In Edwards,

the trial court ultimately denied petitioner's motion to

suppress his confession finding the confession to be volun- .

tary, and he was thereafter convicted. In Davis, the trial

court denied two motions to suppress, and he was also there-

after convicted. In Edwards the Arizona Supreme Court held

ees >.

that during the January 20 meeting he waived his right to

39.

, remain silent and his right to counsel when he voluntarily -

‘a,

7 0 gave his statement after again being informed of his rights.

§ In Davis the Mississippi Supreme Court said “"([D)javis made

i an express waiver of his rights while Edwards evidenced

i ‘ opposition to the interrogation.” (A. 6a)

g This court said in Edwards that the use of his p

. confession against him at his trial violated his right

a under the Fifth and Fourteenth Amendments to have counsel

; present during custodial interrogation as declared in Miranda, +

e supra. Having exercised his right on January 19, 1976, to

oly have counsel] present during interrogation, Edwards did not

Ms validly waive that right on the 20th. .

a The Mississippi Supreme Court said in Davis: "(Wie

conclude that after Davis’ counsel failed to appear in the

Ns afternoon, he willingly waived the presence of counsel and

willingly answered questions of the Sheriff (A. 6a) (Emphasis

" supplied. )

_" Miranda and Edwards both require that Davis have

- counsel present during custodial interrogation. At no time

during the interrogation was Davis’ counsel present. The

failure of the Mississippi courts to hold that the admission

of the two confessions was improper violated Davis’ rights

under Amendments V and XIV of the Constitution of the

United States.

After Davis invoked his right to remain silent

and to have the assistance of counsel at 1:55 p.m. on March

9, 1979, the state illegally continued to interrogate him

in the absence of counsel; and the state did not meet its

heavy burden of establishing that the appellant intentionally

waived his constitutional rights in signing, the two con-

fessions which were introduced into evidence. Further, .Davis'

' confessions could not be said to be voluntary because a }aw

40.

enforcement officer told the appellant that if he would

ar talk to the law enforcement officers, it would make it :

lighter on the accused.

; Davis did not validly waive the right tc have

counsei present during the three hours of interrogation

which begun at 11:00 p.m. on March 9, 1979.

c -t In Edwards this court said the petitioner did

not waive his right to have counsel present because

“(t]he Arizona Supreme Court applied an

erroneous standard for determining waiver °

where the accused has specifically in-

voked his right to counsel. It is reason-

ably clear under our cases that waivers

of counse) must not only be voluntary,

but constitute a knowing and intelligent

relinquishment or abandonment of a known

right or privilege, a matter which de- a.

. pends in each case ‘upon the particular

facts and circumstances surrounding the

case, including the background, experi-

ence and conduct of the accused. '"

Johnson v. Zerbst, 304 U.S. 458, 464,

82 L. Ed 1461, 58 S Ct 1019, 146 ALR

357 (1938). See Faretta v. California,

422 U.S. 806, 835, 45 L. Ed 2d 562,

95 S Ce 2525 (1975); North Carolina v

Butler, 441 U.S. 369, 374-375, 60 L. Ed

2d 286, 99 S Ct 1755 (1979); Brewer v.

Williams, 430 U.S. 387, 404 51 L. Ed

2d 424, 97 S Ct 1232 (1977); Fare v.

Michael C., 442 U.S. 707, 724-725,

61 L. Ed 2d 197, 99 S Ct 2560 (1979).

A "conclusion" of the Mississippi Supreme Court

that Davis waived his rights because counsel did not appear

"in the afternoon” is also “[a]n erroneous standard for

determining waiver. The state courts never separately

focused on whether Davis had knowingly and intelligently

. relinquished his right to counsel, as required by Edwards,

(68 L. Ed 2d at p. 385

"(T]he waiver of constitutional

‘ guarantee is a matter of federal

constitutional law. The Supreme

Court announced in Johnson v. Zerbst,

364 U.S. 458. . .(1938), a standard

that has been repeated and affirmed;

the burden is upon the state to demon-

strate ‘an intentional relinquishment

or abandonment of a known right or

privilege.’ Id. at 464. . .The

Supreme Court has consistently re-

quired adherence to a ‘totality of .

circumstances’ test in assessing

41.

the effect of constitutional waivers.

See North Carolina v. Butler, 441 U.S.

369. . .€1979); Boulden v. Holman,

384 U.S. 478. . .(1969).

"IA]s we recently noted ‘[i]n con-

sidering the voluntariness of a

confession this court must take intc

account a defendant's mental limita-

tions, to determine whether through

susceptibility to surrounding pres-

sures or inability to comprehend the

circumstances, the confession was not

a product of his own free will.’

Janek v. Estelle, 623 F. 2d 629, 937

(5th Cir. 1980. . .) A fundamental

concern is a mentally deficient accused's

vulnerability to suggestion. See Sims

v. Georgia, 389 U.S. 404. . .(1967);

Calombe v. Connecticut, 367 U.S. 568

.(1961)54/ (footnote omitted.)

(Henry v. Dees, No. 79-2585 decided

Oct. 8, I98I, slip opinion pp. 12046-

12052. sare

Ill.

The Majority Of The Mississippi Supreme

Court Also Refused To Follow The Precedents

Of This Court Relative To The Comments

Of The Assistant District Attorney and

The Interpretative Explanation Of The

Trial Judge To The Jury On Appellant

Failure To Testify And Violated His

Rights Under Amendment V.

Again the precedents established by this court

do not support the decision of the majority of the Mississippi

Supreme Court but require the reversal of Davis v. State.

The self-incrimination guaranty of the Fifth

Amendment, in its bearing on Mississippi and the other

states by reason of the Fourteenth Amendment, forbids

either comment by the prosecution on accused's silence and

the explanation of the trial judge in the presence of the

jury. Griffin v. California (1965) 380 U.S. 609, reh den

381 U.S. 957.

The facts pertaining to the comment, euplenstion

and ruling of the trial court and the decision of the

Mississippi Supreme Court have been set forth hereinbefore

at pages 15-20 in the subsection "Comments by Prosecutor e«

42. .

and Court on Appellant's Failure To Testify Violated

His Amendment V Rights.” The dissenting opinion in this

case correctly states che law as it has existed in

Mississippi since 1895. The facts and statements set

forth hereinbefore will not be repeated.

The statements were comments on the appellant's

failure to testify in his own behalf, and necessarily

directed the attention of the jury to the fact tirat Davis

had not testified. Smith v. State, 87 Miss 617, 40 So.

230. MCA §13-1-9 (1972) as well as Amendment V forbids

comment upon the failure of an accused to testify without

regard to the character of the comment.

In Griffin v. California, supra, this court said; ~

"(T]he Fifth Amendment, in its direct

application to the federal government

and its bearing on the states by rea-

son of the Fourteenth Amendment, for-

bids either comment by the prosecution

on the accused's silence or instructions

by the court that such silence is evi-

dence of guilt; hence, a state may not

validly apply to a state criminal pro-

secution a state constitutional provision

that in any criminal case, whether the

defendant testifies or not, his failure

to explain or to deny by his testimony

any evidence or facts in the case against

him may be commented upon by the court

and by counsel, and may be considered

by the court or the jury.”

Davis’ liberty should not depend on the struggle

of the Mississippi Supreme Court to determine whether or

not the prosecutor's remarks were “evoked” or prompted by

anything. The questions to consider "(i]s what the jury

probably through. United States v. Hardman, 447 F. 2d 853;

855. The dissenting Mississippi Supreme Court judge thought

that:

“For twelve jurors under those circum-

stances to restrict their thoughts solely

to the defendant's statements to the law

officials, and not also instantly be

alerted by this comment tho defendant

could have denied his guilt as a witness

from the witness chair, each would first

require a lobotomy...."

43.

CONCLUSION

For the foregoing reasons, probable juris-

diction of this appeal should be noted.

Respectfully Submitted,

DIXON | ! .

({ insei i Record)

Dated March 13 ° Lvs

I KENT TRI ING

S09 Barnett ling

} South Presidert Street

Jackson, Mississippi 39201

} ; cine

(601) 948-5105

I f, TUCKER

507 East Pearl treet

Jackson, Mississippi 39201

(601) 354-5668

COUNSEL FOR APPELLANT

NO. .

SUPREME COURT OF THE UNITED STATES

October Term, 198]

MALCOLM JOE DAVIS

Appellant

STATE OF MISSISSIPPI

Appellee

CERTIFICATE OF SERVIC!

I hereby certify that on this 13th day of

March, 1982, I caused to be delivered personally the

Original and two copies of the Notice of Appeal To The

Supreme Court of the United States; three c pies of the

Motion for Leave to Proceed In Forma Pauperis; three copies

of the Affidavit In Support of Motion For Leave to Proceed

On Appeal in Forma Pauperis; three copies of the Juris-

dictional Statement in the above entitled case to counsel

of record for the Appellee, at the address listed below:

Honorable Bill Allain

Attorney General of Mississippi

Carol Gartin Building

Jackson, Mississippi

Mr. Robert Womack, Clerk

Mississippi Supreme Court

Carol Gartin Building

Jac*+30n, Mississippi

I further certify that all parties required to be

a Z

Po ted fo,

F. KENT STRIBLING \

309 Barnett Building ¥4

200 South President

Jackson, Mississippi 39201]

Of Counsel for Appellant

served have been served.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.