Motion to Dismiss or Affirm — Davis v. Mississippi

6

*

„ f- ORIGINAL

RECEIVED

NO. 81-6382 May 2 6 1962

OFFICE OF THE CLERK

IN THE SUPREME COURT, U.S.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

MALCOLM JOE DAVIS,

Petitioner

vs.

STATE OF MISSISSIPPI,

Respondent.

ON APPEAL FROM THE SUPREME COURT OF MISSISSIPPI

MOTION TO DISMISS

BILL ALLAIN, ATTORNEY GENERAL

STATE OF MISSISSIPPI

y BY: CATHERINE WALKER UNDERWOOD

SPECIAL ASSISTANT ATTORNCY GENERAL

and

BY: MARVIN L. WHITE, JR.

SPEICIAL ASSISTANT ATTORNEY GENERAL

OF COUNSEL

Post Office Box 220

Jackson, Mississippi 39205

(601) 354-7343

QUESTIONS PRESENTED

I. Where State Speedy Trial Act Is Not Intrepreted In

Federal Constitutional Terms There Is No Substantial

Federa) Question And No Appellate Jurisdiction.

II. Were The Two Confessions Given By Appellant Properly

Admitted At Trial?

111. Where Appellant Has Failed To Properly Preserve His

Record For Review In the Court Below There Is No

Substantial Federal Question For Review.

TABLE OF CONTENTS

QUESTIONS PRESENTED------------ o---------------------

JURISDICTION----------------------------------------

STATEMENT OF THE FACTS-----------------------~------

I. Where State Speedy Trial Act Is Not

Interpreted In Federal Constitutional

Terms There Is No Substantial Federal

Question And No Appellate Jurisdiction

II. Were The Two Confessions Given By

Appellant Properly Admitted At Trial?

111. Where Appellant Has Failed To Properly

Preserved His Record For Review In The

Court Below There Is No Substantial

Federal Question For Review.

ii

PAGE

TABLE OF AUTHORITIES

CASES PAGE

Barker v. Wingo, 407 UB. 5314 (1972———————————r5ð— 3,4

Cardinal v. Louisiana, 344 U.S. 437 (1969)--------------- 5

Carlisle v. State, 393 So.2d 1312 (Miss.1981)------------ 4

Dover v. State, 227 80. 2d 296 (Miss. 1969) ---------------- 6

Edwards v. Arizona, v. 8. „68 L. Ed. 2d 378, 101 S.Ct.

111 ————— ———— 4 — — 7,8

Harvey v. State, 207 So.2d 108 (Miss.1968)------~-------- 6

Henry v. Mississippi, 379 U.S. 443 (1965) <---------<------ 5,9

Lee v. State, 338 So.2d 399, (Miss.1976)----------------- 7

Loper v. State, 330 So.2d 265 (Miss.1976)---------------- 7

Ratliff v. State, 317 80. 2d 403 (Miss.1975)-------------- 7

Shelton v. Kindred, 279 80. 2d 642 So.2d 312 (Miss.1977)-- 9

State v. Davis, 382 So.2d 1095 (Miss.1980)--------------- 4

Turner v. State, 283 80. 2d 489 (Miss.1980)--------------- 4

United States v. Gray, 421 F. 2d 316 (Sth Cir.1970)------- 7

United States v. Halliday, 658 F.2d 1103 (6th Cir.1981)-- 8

Williamson v. State, 330 So.2d 272 (Miss.1976)----------- 6

STATUTES:

28 U.8.C. § 1257(222————j—r—7r 7 —— 3

Miss. Code Ann. § 99-17-11 (Supp. 1976) --------------- 3,4

iii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

MALCOLM JOE DAVIS,

Petitioner

vs.

STATE OF MISSISSIPPI,

Respondent.

— — — —— — ͤ’Ü——ů —ä—- Üũ

ON APPEAL FROM THE SUPREME COURT OF MISSISSIPPI

MOTION TO DISMISS

JURISDICTION

Appellant seeks to invoke the jurisdiction of this Court

pursuant to 28 U.S.C. § 1257(2). Appellee would assert that juris-

diction does not lie asthe Supreme Court of Mississippi has not in-

trepreted Section 99-17-1, Miss. Code Ann., (Supp.1976) in terms

of the United States Constitution, but in state constitutional

terms only. Certiorari jurisdiction is all that lies in the case and

appellant's sham of using a statute does not change this.

STATEMENT OF THE FACTS

On the morning of Friday March 9, 1975, Carol Matherly was

raped in her home in the secluded subdivision of Hideaway Estates.

She was preparing to go to class at the local junior college after

seeing her two children off to school. She was in her bedroom

putting on her makeup when she heard the back door open. She put

on her glasses and started to go investigate. At the bedroom door

she met a man wearing stockings over his head and hands. A struggle

insued. Her assailant told her to cooperate and be quite or he

would hurt her. She believed him and said she would cooperate.

Davis put a pillow case over Mrs. Matherly's head forced her

onto the bed and raped her. He ten led her to the bathroom, where

he sat her on the toilet and made her take a douche. When this was

complete he told Mrs. Matherly he was sorry. Davis fled, warning

Mrs. Matherly to remain in the bathroom for fifteen minutes so he

could make good his getaway.

When sufficient time had passed Mrs. Matherly dressed and

drove to where her husband worked. Together they went to the police

station and reported the rape. A statement was given and Mrs.

Matherly was taken to her physician's office.

Mrs. Matherly was able to identify her assailant as Malcolm

Joe Davis as he had been to her house on two previous occassions

as a washing machine repairman.

Davis was taken into custody later in the day. He was initially

questioned around 2:00 p.m. after his rights were given to him and

he executed a waiver. He requested an attorney and questioning

ceased. Davis was allowed to speak with his attorney over the

telephone. Later Davis talked with the sheriff and a deputy and

gave a confession after again being read his rights and executing

a waiver, even though he had spoken to his attorney.

ARGUMENT

I. WHERE STATE SPEEDY TRIAL ACT IS NOT

INTREPRETED IN FEDERAL CONSTITUTIONAL

TERMS THERE 1S NO SUBSTANTIAL FEDERAL

QUESTION AND NO APPELLATE JURISDICTION.

Preliminarily appellee must state that this Court has no juris-

diction to hear this case as an appeal under 28 U.S.C. § 1257(2).

28 U.S.C. § 1257(2) states:

By appeal, where is drawn in question the

validity of a statute of any state on the

ground of its being repugnant to the consti-

tution, treaties or laws of the United States,

and the decision is in favor of its validity.

Appellant attempts to invoke this jurisdiction by claiming

that the validity Section 99-17-1, Miss. Code Ann. (Supp.1976),

has been upheld in federal constitutional terms and is repugnant

to that document. Without this sham, as we will show, the only

jurisdiction this court can have is certiorari jurisdiction. In

either case there is a lack of a substantial question as pertains

to Section 99-17-1.

Section 99-17-1, Miss. Code Ann. (Supp.1976), is a state

procedural statute dealing with speedy trial. The statute reads:

Unless good cause be shown, and a con-

tinuance duly granted by the court, all

offenses for which indictments are presented

to the court shall be tried no later than two

hundred seventy (270) days after tne accused

has been arraigned.

There is no federal constitutional requirement that a state

have a statute concerning the issue of speedy trial. Where there

is not state statute, the test applied for federal constitutional

purposes would be the one set forth in Barker v. Wingo, 407 U.S.

514 (1972).

The fact that the Mississippi Legislature enacted a state

“speedy trial" act that only applied to the time period between

arraignment and trial is not repugnant to the federal constitu-

tion.

The intrepretation of this statute is simply a matter of

State law over which the State Supreme Court has exclusive juris-

diction. The court below has not intrepreted this statute ina

federal constitutional context. in fact the Supreme Court of

Mississippi has used the Barker v. Wingo, standard where the period

of time between indictment and arraignment have been of any con-

sequence as they did in the case at bar. SEE ALSO: Carlisle v.

State, 393 Sol2d 1312 (Miss.1981); Turner v. State, 383 So.2d 489

(Miss. 1980); State v. Davis, 382 So.2d 1095 (Miss.1980). The

state met its burden under Section 99-17-1 as Davis was tried in

less than 150 days. It is clear, no substantial federal question

concerning Section 99-17-1 has been presented that can be addressed

under the obligatory appellate jurisdiction of this Court or the

discretionary certiorari jurisdiction.

The only issue this Court could have before it for adjudication

514 (1972), and that only by certiorari jurisdiction. The court

below properly applied the four pronged balancing test set forth

in Barker. The four factors to be considered in this balancing

test are:

1. Length of delay.

2. Reason for delay.

J. The defendant's assertion of his right.

4. Prejudice to the defendant.

We find from the record that the total lapsed time between

indictment, on March 16, 1979, and trial, on April 10, 1980, was

388 days.

The delay from the March 1979 Term to the November 1979 Term

was occasioned by appellant's equest for a complete psychological

examination. The delay from the November 1979 Term until the

April 1980 Term was because of a continuance granted the State

because the District Attorney was was authorized no assistants

under the existing law was required to be before the grand jury for

the entire three week term. The delay was reasonable and constitu-

tionally permissible. There is no substantial federal question

presented here.

Tangentially appellant's raised questions concerning the

authority to appoint assistant district attorneys, have the attorney

general intervene or require the county attorney try the case are

without merit here as they have never been presented to the Missis-

sippi Supreme Court. It is well established that this Court will

not decide issues raised for the first time, Cardinale v. Louisiana,

344 U.S. 437 (1969) and will not review an issue even though it

contains a federal question if there is an adequate State ground

that supports the decision of the court. Henry v. Mississippi,

379 U.S. 443 (1965)

II. WERE THE TWO CONFESSION GIVEN BY

APPELLANT PROPERLY ADMITTED AT

TRIAL.

This issue can be proper for determination only by this Court

through its discretionary certiorari jurisdiction not by way of

appeal jurisdiction as app :llant attempts to assert.

The appellant claims his two confessions were improperly

introduced sgainst him at trial thus were Appellant did not take

the stand to cite any irregularities in his interrogation during

the hearing on the motion to suppress. His only witness was a

Clinical psycholigist, Dr. Cox, who testified that appellant's

will to succeed in this attempt to show involuntariness through

some psychological disorder appeliant had the burden of meeting

the test laid down in Williamson v. State, 330 80. 2d 272, 276

(iss. 1976):

[A] confession will not oridinarily be

excluded merely because the person making

the confession is mentally weak. Uncil

it is shown that a weak-minded person has

divul that nde fe would not have

volunta Sen kes en 12 28 1b In

Tynum v. IIInots, 3727 U.S. 528, 534, 83

S. Ct. 917 920, 9 L. Ed. 2d 922,926 (1963),

that Court said: “We have said that the

question in each case is whether the de-

fendant's will was overborne at the time

he confessed.”

[emphasis supplied)

This burden was met by the defendants in both Dover v. State,

227 So.2d 296 (Miss.1969), and Harvey v. State, 207 So.2d 108 (Miss.

1968). A quick look at the facts of those cases, in contrast to

the facts presented here, clearly shows that Malcolm Davis was not

*“overreached." In Dover,the defendant had an 1.0. of 60! And in

Harvey, the defendant not only had an 1.Q. of 60, he had the mental

age of a five year-old!

Here, the psychologist testified that Malcolm Davis had an

1.Q. of between 91 and 109, which is normal. And, there were no

signe of “organic neurological impairment." The appellant, there-

for, is not a “mentally weak" person.

The psychologist did testify that the appellant suffered

from anxiety and that he had a paranoid“ and “sociopathic” person-

ality.

It is well-settled that the trial judge must determine the

voluntariness of the confession from the totatlity of the circum-

stances. Lee v. State, 338 So.2d 399, 401 (Miss.1976); Ratliff v.

State,317 So.2d 403 (Miss.1975). And, where the defendant claims

to have lacked the mental capacity to exercise his will during

an interrogation, the determination by the trial court “must

necessarily be given great weight.” Lee v. State, supra, 338

So.2d at 401. He was in the best position to consider appellant “s

conduct and capacity, and to observe his demeanor. He is not

bound by the psychologist's testimony, United States v. Gray,

421 F.2d 316, 318 (Sth Cir. 1970), and his conclusion may not be

set aside unless it is manifestly erroneous. Lee v. State, supra;

Loper v. State, 330 So.2d 265, 268 (Miss.1976).

The trial court held an extensive hearing on the Motion to

Suppress. He observed the appellant over long days of trial.

He was in the best position to determine, for example, whether

Dr. Cox (the defendant has an 1.0. of between 91-109, but when

under stress, his mind is “scrambled eggs"), was to be believed,

or whether Sheriff Holliday, ("the man seemed too intelligent“),

was to be believed.

The second prong of appellant's attack is the question of

whether his confessions were obtained in violation of Edwards v.

Arizona, __ U. 8. 6 L.Ed.2d 378, 101 8s. cr. (1981)

As stated by the court below there are parallels between the

case at bar and Edwards factually. However the distinctions are

even greater. Edwards was never afforded the opportunity to

confer with counsel. Davis’ attorney, Rex Jones, was telephoned

and Davis spoke with him upon request. Questioning ceased.

-7-

Edwards told the officers he did not want to talk with anyone and

was told that he must talk with them. Davis on the other hand

told the Sheriff he had spoken to his attorney and was still willing

to talk. The only true factual similarity is the fact that the

second interrogation was initiated by the law enforcement officers.

As required in Edwards there was the discreet inguiry into

voluntariness and a knowing and intellegent waiver. 406 So.2d at 800.

The situation at bar more closely parallels the case of United

States x, Halliday, 658 F.2d 1103 (6th Cir. 1981). In Halliday

the Sixth Circuit said:

In Edwards, the defendant was arrested on

a state criminal charge and questioned by the

police until the defendant said he wanted an

attorney. Questioning then ceased, but the

police resumed interrogation the next morning

without providing the defendant with counsel.

The defendant after being informed of his

Miranda rights stated that he was willing to

talk, and confessed to the crime. The Supreme

Court held that the use of this confession

against the defendant at trial violated his

right to have counsel present during custodial

interrogation. The Court rejected the argu-

ment that the defendant waived his right by

his response to the second police-initiated

interrogation. It held that once an accused

expressed a desire to deal with the police

only through counsel, he is not subject to

further interrogation until counsel has been

made available to him, unless the accused has

himself initiated further communications with

the police.

Edwards emphasizes the necessity of counsel

being ma available’ or of the defendant

having “access” to counsel, 45) U.S. 484-87,

Tol S. Ct. at 1865, 1886, rather than holding

that once the accused requests counsel he ma

attor s. Court a inted counsel was made

ava 12 to him, 23 In addition he retained

and spoke with private counsel. Thus the

no mpermissibly in ate a second

wnterrogation after defendant requested

counsel.

(Emphasis added) 658 F.2d at 1104-1105.

III. WHERE APPELLANT HAS FAILED TO PROPERLY

PRESERVE HIS RECORD FOR REVIEW IN THE

COURT BELOW THERE IS NO SUBSTANTIAL

FEDERAL QUESTION FOR REVIEW,

Appellant claims that a comment made by the assistant district

attorney amounted to a comment on the failure of him to testify.

The court below held that appellant had not presented a sufficient

record on which they could determine the merits of his question.

Appellant filed no bill of exceptions nor did he have closing

arguments transcribed as a part of the record on appeal. There

was a procedural) waiver under state law by not presenting a suf-

ficient record for review. Shelton v. Kindred, 279 So.2d 642 So.2d

312 (Miss.1977). This Court will not review an issue even though

it contains a federal question if there ic an adequate state

ground that supports the decision of the state court. Henry v.

Mississippi, 379 U.S. 443 (1965). Certainly the failure to

present a record sufficient for determination of the issue is

adequate state grounds as the court below found.

Appellant had access to his attorney as did Halliday and the Sheriff

did not impermissibly initial a second interrogation after Davis

requested counsel. Davis was afforded to counsel what his counsel

advised him to do has never come out as appellant has never taken

the stand even prelimi arily to tell us, which is his right. Appel-

lant's confessions were voluntary and there was no violation of

Edwards.

CONCLUSION

For the reasons stated above the appeal should be dismissed

or if treated as a petition for certiorari it should be denied.

Respectfully submitted,

BILL ALLAIN, ATTORNEY GENERAL

STATE OF MISSISSIPPI

BY: CATHERINE WALKER UNDERWOOD

SPECIAL ASSISTANT ATTORN GENERAL

is

BY: MARVIN L. WHITE, JR. 7

SPECIAL ASSISTANT ATTORNEY GENE

OF COUNSEL

Post Office Box 220

Jackson, Mississippi 39205

(601) 354-7343

-10-

STATE OF MISSISSIPPI

COUNTY OF HINDS:

I, Catherine Walker Underwood, a member of the Bar of this

Court, having been duly sworn, do hereby state that to my knowledge

the original and ten (10) copies of the Motion to Dismiss in

No. 81-6382, Malcolm Joe Davis v. State of Mississippi were

deposited in the United States Post Office in Jackson, Mississippi

39205 on May 24, 1982 a date within the time permitted by this Court

for the same. The above was mailed, first class postage prepaid,

to the Honorable Michael Rodak, Clerk, United States Supreme Court,

Washington, D. C. 20542.

ebene leer.

SWORN TO and SUBSCRIBED before me this the 24th day of May,

A.D., 1982.

n = Dy 6, 1908

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