# Jurisdictional Statement — Davis v. Mississippi > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1852%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1982 - **Citation:** 457 U.S. 1113 ## Text RECEIVED MAR 1 5 1982 0.. tthe. vifR | 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 ’ the Un the judgment ¢ §1257(2). COURT OF THE STATE OF MISSISS ice is abs ve ? i X ited here name 81 6382 se ) ater? a ‘7 . pe aati . “ r) ~~ . ~ 4 7 ~ ; -? ~ » - 4 - de j d, hereby appeal: . ; by given that Malc States from the final nviction entered herei This appeal is taven pursuant r ri) order 8] eI 7) i ATi 6382 i : rig ‘ s ; ws as Al , i ‘ ° y ppea. tf ~= ——— iv 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 IG bY r KENT STRIBLIN 109 Barnett } ling ? ) th Pre tent Srreet . , J ic KSvUT Mi SS ppi 49. Ja (601) 948-5105 "~ Ff Pad % ie 7.1 cc" . i i © “% sUcKket?t » ? Fast é ¥ treet . . . , . JacKkson, Mi sSippi 4920] (601) 354-5668 ATTORNEYS FOR APPELLANT — —— | Pa NO. SUPREME COURT OF THE UNITED STATES kctober Terr 198 sear ve , eer? ALS MAW A Appellant ap 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 t 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 vi 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? "{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 9. 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. 2/ 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 a 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 ; : 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 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 « & ba \. 4% ® ud 19. 25 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) 7. ‘ 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 t 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 ‘ : , > . . 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. rr ° ~~ « , 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 * . " . ‘ , ; ¥ . , ¥ ¥ -O tne november iyiy term. ait APFii ‘ , ; 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 ; . . 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. rT 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. 2/ — 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, + iN 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1852%3A1. Public record. Not legal advice.