Opposition Brief — Scroggy v. Kordenbrock

GFFICE OF THE CLERK

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2

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¢ _

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a

COUNTERSTATEMENT OF QUESTION PRESENTED

WHETHER THIS COURT SHOULD GRANT

PLENARY REVIEW OF THE 6802 PAGE

« RECORD IN THIS CASE SOLELY BECAUSE

PETITIONER DISAGREES WITH THE EN

BANC MAJORITY OPINION FINDING THAT

THE INTRODUCTION OF THE ILLEGALLY

PROCURED CONFESSION WAS NOT HARMLESS

UNDER CHAPMAN VV. CALIFORNIA, 386

U.S. 18 (1967)?

TABLE OF CONTENTS

PAGE

‘ COUNTERSTATEMENT OF THE QUESTION PRESENTED........-.222-- i

TABLE OF CONTENTS... .cccwcccccccccecesccsseesccesessccees ii

TABLE OF AUTHORITIES... . cc ccccccccccccccveveeseeessccscces iii

OPINION BELOW. . cc ccccccccccccccccccscccccrvesscsessceesces 1

JURISDICTION. .......--. Core eee r reese seseresereseseseseseoors 1

CONSTITUJTIONAL PROVISIONS INVOLVED... . 2c eee erence ees ccess 2

STATEMENT OF THE CASE. .cccccccccccccsscescccccescescccsesee 2-12

PETITIONER’S MISSTATEMENTS OF FACT... -cccccccccccccsccces 12-14

, REASONS FOR DENYING THE WRIT

A. SUMMARY OF ARGUMENT... wc ccc cceccccesccscvcccsces 14

B. PETITIONER’S CONFUSION AS TO RESPONDENT’S

ARGUMENT........ TEEPE CECOLEC OCS eee eT eee 14-15

C. THE SIXTH CIRCUIT DID NOT MISAPPLY

CONTROLLING CASELAW..... cc ccc ccccccccvcsccces 16-17

D. THE SIXTH CIRCUIT’S OPINION HAS NOT

CREATED A CONFLICT WITH THE 11TH CIRCUIT..... i7-2¢

E. THE SIXTH CIRCUIT DID NOT IGNORE ONE

OF ITS OWN PRIOR DECISIONS..................-. 20-21

F. TWO JUDGES DID NOT REFUSE TO APPLY

HARMLESS ERROR ANALYSIS............22.222008- 22743

G. THIS COURT HAS ESTABLISHED CLEAR AND BRIGHT-

LINE BOUNDARIES FOR DEFINING MIRANDA AND

FIFTH AMENDMENT VIOLATIONS.............2222-. 23-24

H. THE SIXTH CIRCUIT’S DECISION WAS CORRECT........ 25-29

CONCLUSION. ccc ccccccccceseveseeresececeesesesecesesesece, 29-30

CERTIFICATE OF SERVICE... csccccccccccecccceseccccsccessccce 30

-il-

TABLE OF AUTHORITIES

CASES

Ake v. Oklahoma, 470 U.S. GO (1908). ..scccecsccescess 28

Burks v. Perini, No. 85-3507 (6th Cir.

ee es CRON Sk coca vacua 6eneebieeeneanees < 20,23

California v. Ramos, 463 U.S. 992 (1983)............ 23

Chapman v. California, 388 U.S. 10 (1967)........... 11,12,14,18

21,23,29,30

Christopher v. Florida, 824 F.2d 836

CARE ELE. BSF Pec crt vcsanssovessieds cece ccccccce 20

Kordenbrock v. Scroggy, 919 F.2d 1091

FG CEs BO 665 4kb cee eewek oe rere rrrrr rs errs ee

. 25,26,28

Martin v. Wainwright, 770 F.2d 918

(ZACH Cif. SSB). .scces WEEUUTTOLTLELETC TE TT ee 17,18,19

. Minnick v. Mississippi, U.S. P

111 S.CE. 486 (1990) wc ccceccccvvces ee becesseses coe 24

5 Michigan v. Moseley, 423 U.S. 96 (1975)...... oeeees os 12,23,24,30

Miranda v. Arizona, 384 U.S. 436 (1966) ..cccccccecces 20,228,138, 22

223, 24,29

Oregon ¥v. Elstad, 470 U.8. 296 (1965) ..ccccvesssceses 16,17,20

RULES

Kentucky Rule of Criminal Procedure 9.42(d).......... 12

Rules of the United States ¥

Court of Appeals For The Sixth Circuit 24(a)(c)... 20,21

-i11-

NO. 90-1293

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

GENE SCROGGY, WARDEN Petitioner

versus

PAUL KORDENBROCK Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Respondent, Paul Kordenbrock, through counsel,

respectfully requests that this Court deny the Petition For Writ

of Certiorari to the United States Court of Appeals for the Sixth

Circuit.

OPINION BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit is reported as Kordenbrock v. Scroggy, 919 F.2d

1091 (6th Cir. 1990).

JURISDICTION

Petitioner seeks to invoke the jurisdiction of this

Court pursuant to 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Petitioner has stated Amendments V and XIV of the

United States Constitution are involved.

Since Petitioner is seeking review of a capital trial

and death sentence, Amendment VIII is also involved.

STATEMENT OF THE CASE

The basic facts are not in dispute. At approximately

9:30 a.m., on January 5, 1980, Paul Kordenbrock (Respondent) and

Michael Kruse walked into the Western Auto Store in Florence

Kentucky, with the intent to take some guns. The two men had

agreed to just rob the place -- “no way was anyone to get hurt.”

Respondent took the two proprietors of the store to the

back and had them lay on the floor. Kruse’s attempt to get some

guns was interrupted by the unexpected entrance of Jack Webster

and his eight year old son. Kruse waited on them, informed them

that he could not assist them and, with that, they left.

At that point, Kruse gained access to the guns by

“breaking the glass case. With that Respondent shot Mr. Thompson

and Mr. Allen in the neck from a distance of seven to eight feet.

Mr. Allen died immediately. Mr. Thompson survived.

The night before the incident Respondent had arrived at

a party at his sister’s house “in bad condition.” He was “kind

of woozie” and he had slurred speech. He also had red eyes.

Gary Ramell, one of the revelers, reported that Respondent was

“spaced out” and pretty messed up. The party lasted until 1:00

A a.m.

Some seven hours later Respondent awoke and drank two

beers and ingested two Quaaludes. He took one more Quaalude

thirty minutes later.

Jeff Piper testified that he saw Respondent some 30

minutes before the incident. At that time Respondent was "very

high on Quaaludes.” Respondent’s speech was somewhat slurred and

his eyes were messed up.

Piper had seen Respondent this way quite a few times

for Respondent had purchased “street ludes” from him “almost

every day” for the three prior months.

Respondent purchased ten Quaaludes from Piper and drove

off toward the Western Auto Store.

Gary Ramell, who had seen Respondent at the party the

night before, saw him 30 minutes to an hour after the incident.

He testified that Respondent seemed “kind of mellow, he didn’t

seem like he had a problem in the world” and that he was a

"little giassy eye[d].”

Richard Fehler testified that he also saw Respondent

shortly after the incident. Respondent seemed to be a little

jittery. He was definitely high -- he was “messed up when [he}

came here.” It seemed tc Fehler that Respondent was on

Quaaludes. Fehler indicated that this messed up state continued

all day culminating in Respondent driving down the Interstate

over 100 miles per hour.

Respondent was arrested for the murder at 10:10 p.nm.,

the next day. He was taken to the police station where an

intensive interrogation began at 11:34 p.m.

Respondent was swept from his familiar surroundings,

placed into tight police custody and was faced with antagonistic

forces.

The lead interrogator, Detective Charles Seay, had

known the victim for twenty-three years, had sat and talked to

him for hours on end, had gone to the same church, knew Mr.

Allen’s wife, and saw his kids grow up. It is interesting to

note that Respondent acknowledged that the person during the

interrogation who instilled the most fear in him was Detective

Seay.

Over halfway through the interrogation, the

interrogators were becoming frustrated with Respondent’s

reluctance to tell them anything meaningful about the crime.

Respondent was reminded at that time by Detective Seay that he

did not have to talk and followed up with "I would rather you

tell me that you don’t want to talk than just sit here.”

Respondent immediately responded ”Can’t talk, right now I can’t

talk.”

As a seasoned veteran of the Kentucky State Police,

Detective Seay knew what that unequivocal statement meant. Yet

he pressed on for, as he admitted, he wanted to get the matter

wrapped up that night. The interrogation continued.

At that point the interrogators turned up the heat

regarding Respondent’s girlfriend. They indicated to Respondent

that his girlfriend would be arrested unless he gave a full

confession. They told Respondent that his girlfriend’s "ass is

going to jail” unless he confessed. They falsely informed him

that his girlfriend could be kept in jail in Cincinnati for three

days without any charges being brought against her. And they

reminded Respondent that if he did not confess that his

girlfriend would be put through an ordeal that she would not soon

forget.

Yet, as all admitted, Respondent was still a most

reluctant interrogatee and he refused to give ae fuller

confession.

Later, Detective Seay informed Respondent that they had

arrested Kruse, his co-defendant, with one of the stolen guns and

at that point he asked “now what he wanted to tell us.” Paul

responded “I told you all that I can stand tonight.” To which

the interrogators responded “do you want the girls hassled by the

Cincinnati P.D.?” And the interrogation continued.

Eventually the interrogators wanted to start writing

Respondent’s confession. Yet he was steadfast ”“Sir, I can’t tell

you no more tonight.” To which the interrogators responded, “Yes

you can Paul, hey, if you can take it, we can take it.”

And the interrogation continued with constant threats

to Respondent’s girlfriend. Eventualiy Respondent’s resistance

was broken down -- “As long as you don’t hassle them girls, I’1ll

tell you.”

Prior to trial, Respondent moved the trial court to

suppress his confession. Despite the fact that he was forced to

bargain away his right not to incriminate himself, and in spite

of the fact that he unequivocally attempted to cut off

questioning on numerous occasions, the trial court permitted the

Commonwealth to introduce Respondent’s confession at trial.

In that confession, Respondent made no reference to the

use of drugs and contended that he shot the proprietors so they

would not get up. He demonstrated no remorse. It basically

spelled out a cold, calculated, intentional murder.

Because the trial court ruled that the confession was

admissible, Respondent had no choice but to undertake the

unenviable task of turning this damning evidence into his favor.

In undertaking this task, Respondent let it be known that he was

being forced into this position by the erroneous ruling of the

trial judge and that his trying to make the best of a bad

Situation was not a waiver of his objections to that erroneous

ruling.

Accordingly, Respondent gave an opening statement

admitting the killing but denying it was intentional. This

opening was qualitatively different from the cold, callous

confession. -

Respondent’s theory of the case, after the confession

was ruled admissible, was to admit the killing but to establish

that it was not intentional because of his highly intoxicated

state.

The testimony at trial established that Respondent had

been on vast quantities of drugs for an extended period. On the

morning of the incident he was under the influence of Quaaludes,

marijuana and beer.

Dr. Don Nelson, a professor of pharmacology at the

University of Cincinnati College of Medicine, testified that as a

result of the drugs which Respondent had used on the day of the

crimes, he was less likely to do complex planning and to

formulate complex thoughts. Respondent was also less likely te

appreciate that his conduct was criminal.

Dr. Nelson also testified that considering the amount

of drugs which Respondent was on and had been ingesting for quite

a while, his mental functions were significantly impaired. That

is, his ability to make judgments about his conduct or to

meaningfully deliberate higher or ethical moral legal decisions

was greatly diminished.

In sum, the drugs which Respondent had been taking were

interfering with his ability to reason and diminished his ability

to use his brain. According to Dr. Nelson, someone like

Respondent would be deemed physically and psychologically

addicted to taking drugs. The taking of drugs after such an

extended use would no longer be a voluntary act. It had become a

disease.

The Commonwealth readily accepted this theory of

defense when, in arguing that an instruction should be submitted

to the jury on the theory of wanton murder for Respondent’s co-

defendant, it stated that the “wantonness would certainly be the

fact that he went in there with this guy that he knew to be on

drugs.” That prosecutor further stated ”[Kruse] went in there

with a guy [Respondent] with a gun that he knew was on drugs, or

into jointly rob a store with some nut like that.”

Despite the fact that Respondent was not allowed to

use supporting testimony from a psychiatrist, the jury still

deliberated for seven and a half hours before finding that

Respondent intentionally killed Mr. Allen.

The evidence at the penalty phase established that

Respondent came from a family of ten children. At the age of

thirteen he was taken to a social service agency by his mother

because of family difficulties.

There is no doubt that Respondent desired a different

<elationship with his dad. As was testified to at trial,

Respondent indicated that he would have liked to have been closer

and to have done more things with his dad. There was no doubt

this caused Respondent much emotional turmoil during the most

difficult part of his life.

From 1973 until 1975 Respondent served in the Marines.

While there, he and his brother-in-law were required to view a

rather gruesome incident that stemmed from the inability of one

of the Marines to adjust to the pressure of life. According to

his brother-in-law, he and Respondent “watched one guy dive off a

third story building and we stood there at attention and watched

him bleed to death.”

While Respondent was never in combat, he was in a

battalion landing team which had to be ready for combat at any

place in the world within six hours notice. He was honorably

discharged from the Marines; unfortunately, he came home with a

severe drinking problem.

In 1977 another gruesome trauma occurred in

Respondent’s life -- this time to him. He was so torn up while a

passenger in a motorcycle accident (his face smacked into a road

sign) that the hospital nurses who took care of him knew him as

“the boy without a face.” Respondent remained unconscious with a

broken jaw for two and one-half days. He spent a month in the

hospital recuperating with the assistance of a heavy amount of

drugs. The accident was so serious that there was some question

as to whether or not he would be able to make it. The injury was

so extensive that his own sister was unable to recognize him at

the time.

His drug use increased dramatically after this

accident. He was unable to do all of what he had done before and

he had a very difficult time coping with that reality; it changed

his personality.

His drug use continued and expanded unabated. His

sister, Angel Kordenbrock, believed that he got heavily involved

in drugs in order “to be accepted...to be accepted by his

friends, more or less, and to run away from himself.” It was

clear from everyone who knew him as he was growing up that

Respondent could not have done that which he did in the Western

Auto Store “if he wasn’t on drugs.”

Throughout his life Respondent was always a follower,

never a leader.

Since Respondent was arrested for these crimes, he

changed “like night and day.” He was truly sorry for the pain

and anguish he had caused by his actions. As an Episcopalian

Minister testified at trial, ”I saw Paul as being very remorseful

and hurting very deeply over what he had done, in sort of a

childlike way. Paul had a very difficult time as I perceived it

in expressing his hurt, and I felt his ashamedness.”

Respondent was also seen as being “pretty humble and

kind of quiet” as a result of what he had done. Also as a result

of this incident, he developed a “sense of humanity” about

himself. Those who knew him well in his childhood testified that

Respondent “wasn’t in his right mind when he did it, most

definitely. He couldn’t have been in his right mind.”

Terry Hall, Respondent’s sister, asked the jury not to

kill him because “he knows what he did was wrong and he is

changing his ways and I would like to see him have a chance to

come full circle and maybe make something good out of his life.”

Unfortunately, he was sentenced to die. It was a close

call for the jury; prior to returning its verdict, it wanted to

"know if [it could] recommend a life sentence with no parole?”

After Respondent’s direct appeal in state court proved

unsuccessful, he filed a writ of habeas corpus in the United

States District Court for the Eastern District of Kentucky. That

Court and the initial panel of the United States Court of Appeals

for the Sixth Circuit found that Respondent’s confession was

procured in violation of Miranda v. Arizona, 384 U.S. 436 (1966).

Yet, those two bodies concluded that the Commonwealth’s use of

this confession during this case-in-chief was harmless.

The Sixth Circuit, en banc, granted a Petition for

Rehearing on the question of whether or not the introduction of

-10-

the improperly procured confession was harmless. The majority,

like the dissenters, found that the confession was indeed taken

in violation of Miranda. However, the majority of the en banc

court, after reviewing the massive record in this case, deemed

the introduction of the improperly procured confession not to be

harmless under Chapman v. California, 386 U.S. 18 (1967) and its

progeny. Kordenbrock v. Scroggy, 919 F.2d 1091 (6th Cir. 1990).

As the majority observed in its opinion, in order for

the Commonwealth to have proved Respondent guilty of capital

murder the Commonwealth had to establish beyond a reasonable

doubt that he committed the homicide with the intent to kill.

The majority opinion correctly noted that “the most harmful piece

of evidence the state had on the issue of his premeditated intent

to kill was the unlawfully obtained confession.” Id. at 1099.

Its introduction also tended to undermine Respondent’s clain,

that he was under the influence of drugs and alcohol at the time

of the shooting and that the shooting was a reflex action.”

The majority of the Sixth Circuit correctly concluded

that the improperly prcecured confession not only supplied the

only concrete evidence of an essential element of capital murder

but it also fatally undermined Respondent’s defense of diminished

capacity -- ”“[t]he inadmissible statements in the confession tend

to establish premeditation and are hence inconsistent with the

impulsive, reactive and reckless behavior associated with events

caused by the influence of drugs and alcohol.” Id. at 1098.

Petitioner now asks this Court to conduct its own

plenary review of the massive record in this case simply because

-ll-

it feels that the majority’s harmless error ruling is wrong.

Petitioner is not attacking and could not attack the finding by

all who have reviewed this issue in the federal system that the

confession was procured in violation of Miranda v. Arizona and

Michigan v. Moseley, 423 U.S. 96 (1975).

PETITIONER’S MISSTATEMENTS OF FACT

At the outset, Petitioner uses the most damning part of

the illegally procured confession as part of its Statement of the

Case to demonstrate that Respondent’s actions were intentional.

At page 6 of the Petition for Writ of Certiorari Petitioner

states that Respondent “fired from a distance of seven to eight

feet at both men’s heads ‘so they wouldn’t get up’.”

The fact that Respondent has to use this improperly

introduced quote to establish the element of intentionality

conclusively demonstrates how its introduction could not possibly

be harmless under Chapman v. California, supra.

Next, Petitioner did not fully explain the

circumstances surrounding Respondent personally giving an opening

statement in this case. At the outset, it must be noted that

prior to trial the trial court appointed Respondent to be co-

counsel in this action. Secondly, under Kentucky Rules of

Criminal Procedure (RCr) 9.42(d), a defendant is given a personal

right to make an opening statement. That rule reads in pertinent

part that “(t]he defendant or his attorney may make his opening

statement.”

Another misstatement which needs to be corrected is

Petitioner’s contention that during closing argument

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i |

“Respondent’s counsel reiterated the confession” (Pet. for Cert.

9). During the closing argument Respondent’s counsel actually

reminded the jury that Respondent had confessed upon being

arrested (after all the confession was introduced over his

objection) but he spent the rest of the closing argument, as he

did during the entire trial, distancing Respondent from that cold

confession. Respondent’s defense was that while he may have shot

the two men he did not do so with the intent to kill them.

Neither Respondent or his counsel “reiterated” that portion of

the improperly introduced confession which portrayed him as a

cold blooded, intentional murderer.

Also Petitioner leaves this Court with the impression

that the decision to reverse Respondent’s conviction and sentence

was by the narrowest of margins "a 7-6 vote” (Pet. for Cert. 11).

However, as this Court can clearly glean from the front cover of

the United States Court of Appeals for the Sixth Circuit Opinion

in this case, eight members of the en banc panel voted to reverse

as to the sentence of death. Judge Norris joined the.majority on

that point.

Finally, but perhaps most important, Petitioner has

misstated Respondent’s basic argument. Petitioner is

inexplicably contending that Respondent’s argument below was that

his opening statement was “compelled” and involuntary.

Respondent has neither heretofor nor is he now arguing

that the issue in his case is whether he was prejudiced by giving

an opening statement. Respondent’s argument is simply that the

Commonwealth has fai’e:d to meet its burden of establishing beyond

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a reasonable doubt that its use of Respondent’s improperly

procured confession as an integral part of its case-in-chief was

harmless under Chapman v. California, supra.

REASONS FOR DENYING THE WRIT

A.

SUMMARY OF ARGUMENT

Petitioner is asking this Court to grant plenary review

simply because of its contention that the Sixth Circuit

erroneously resolved the factual question of whether or not the

introduction of the illegally procured confession was harmless

under Chapman v. California, supra. Since Petitioner is not

arguing that the en banc decision by the Court of Appeals is

wrong on the law, and since the Sixth Circuit has carefully and

correctly applied the proper harmless error analysis to this

massive record, this Court’s limited exercise of its certiorari

jurisdiction is unwarranted. (The State Transcript of Record

contains 1347 pages; the State Transcript of Evidence contains

4824 pages; and the evidence generated in the Federal District

Court contains 631 pages.)

B.

PETITIONER’S CONFUSION AS TO RESPONDENT’S ARGUMENT

As noted above, the bulk of Petitioner’s pleading prays

that this Court undertake its own review of the 6802 page record

in this case to determine whether or not the Sixth Circuit’s en

banc factual resolution of the harmless question was clearly

erroneous. The majority of the remainder of Petitioner’s

-14-

argument is based upon its apparent confusion as to what

Respondent has argued throughout the entire review process.

Petitioner states on more than one occasion that ”[t]he

question in the present case is whether Respondent’s personal

confession to the jurors during his opening statement was made

knowingly and voluntarily.” (Pet. for Cert. 15). See also page

13 where Petitioner contends that “”Respondent argued he was

‘compelled’ to confess at trial.”

The issue in this case is not whether Respondent was

“compelled” to confess at trial; rather, the issue is whether or

not the introduction of the improperly procured confession was

harmless when viewed in the entire context of Respondent’s

lengthy trial.

Respondent has never argued that the opening statement

prejudiced him. He has merely asserted that because of the

tangible and qualitative difference between the opening

statements (wherein he pleaded his actions were not intentional

and he beseeched the jury for mercy) and the confession (which

demonstrated Respondent to be an intentional, cold, calculating

and avaricious murderer who is worthy of no sympathy), that

Respondent personally giving an opening statement could not be

deemed a waiver of his objection to the introduction of the

confession.

In resolving whether or not to grant review, this Court

should not be mislead by Petitioner’s 11th hour case of

confusion.

Cc.

THE SIXTH CIRCUIT DID NOT MISAPPLY CONTROLLING CASELAW

Petitioner contends that the Sixth Circuit’s en banc

majority opinion "specifically rejects this Court’s decision in

Oregon v. Elstad, 470 U.S. 298 (1985).” (Pet. for Cert. 13).

The Sixth Circuit did not reject this Court’s holding

in Oregon v. Elstad; rather, the Sixth Circuit correctly rejected

Petitioner’s argument that Oregon v. Elstad was applicable.

As this Court will remember, in Elstad the question was

whether or not a second confession procured from an in-custody

defendant was tainted by an improperly procured earlier

confession. That earlier confession, unlike Respondent’s, had

been suppressed by the trial court. Elstad unsuccessfully argued

that his subsequent confession had been tainted by the earlier

confession.

Petitioner’s Elstad argumentation is inextricably bound

in its heretofore mentioned confusion as to what Respondent is

actually arguing. If indeed Respondent was arguing that the

error committed in this case was the improper compelling of his

opening statement, then Oregon v. Elstad might have’ some

applicability. However, that argument has not been raised and is

not before this Court.

Again, the issue is whether or not the introduction and

use by the state in its case-in-chief of Respondent’s improperly

procured confession was harmless under this Court’s well-

established Chapman standard. Elstad is not a harmless error

case. It simply is a case which gives lower courts guidance on

-16-

how to resolve questions of wh2ther or not an improperly procured

confession later taints any further confessions taken from an

in-custody defendant.

D.

THE SIXTH CIRCUIT’S OPINION HAS NOT CREATED

A CONFLICT WITH THE 11TH CIRCUIT

Oregon v. Elstad, supra, was applicable to the 11th

Circuit’s determination as to whether or not’ subsequently

procured confessions were tainted by an initial improperly

obtained confession in Martin v. Wainwright, 770 F.2d 918 (11th

Cir. 1985) (modified on other grounds in 781 F.2d 185 (11th Cir.

1986), Cert denied, 479 U.S. 909 (1986). However, neither Elstac

nor the rationale of the 11th Circuit in applying Elstad is

applicable herein given the reality that the initially procured

confession was introduced and used against Respondent and no

argument is being made that a subsequent confession was

inadmissible as the result of the taint of that first confession.

In Martin v. Wainwright, supra, the 11th Circuit did

have before it the question of whether or not the introduction of

the improperly procured initial confession was harmless under

Chapman. The 11th Circuit, after reviewing the entire record in

the case, concluded that the errer was harmless because Martin

had given a “far more detailed description of the murder” in a

subsequent confession which had been ruled admissible under an

Elstad analysis.

Unlike the confession of Respondent, the improperly

admitted confession in Martin had merely indicated that he had

-17-<

killed the victim. Furthermore, the 11th Circuit noted that in

addition to the admissible confession:

The jury had before it the testimony

of Martin’s accomplice, Gary Forbes,

who gave a lengthy account of the

robbery, kidnapping, and sexual

battery of Patricia Greenfield, and

who told the jury how Martin, armed

with a knife, lead the blindfolded

young woman down a dirt road at

Lantana Dump and returned fifteen or

twenty minutes later, saying that he

had killed Greenfield by stabbing

her in the throat. Finally, the

jury was presented with the

unrebutted testimony of a= state

pathologist, who examined

Greenfield’s body and found the

cause of her death to be the

multiple stab wounds in the throat.

Id. at 933.

Since the Sixth Circuit’s harmless error analysis in

this case was the same as the 11th Circuit’s in Martin, there is

not a conflict between the two decisions. The 11th Circuit had a

markedly different fact situation before it in conducting its

Chapman analysis.

An llth Circuit case closer on point is Owen v. State

of Alabama, 849 F.2d 536 (11th Cir. 1988).- In that case the 11th

Circuit had before it a case where an on-duty uniformed police

officer was murdered by two blasts from a shotgun at the scene of

a traffic stop. (Id. at 537). A confession was procured from

Owen in violation of Miranda.

At trial Owen raised a diminished capacity defense

(insanity) wherein he presented psychiatric testimony (which

Respondent was estopped from doing in this’ case). The

psychiatrist was required to relate to the jury the details of

-18-

the shooting as explained to him by Owen. Furthermore, Owen’s

ex-wife also testified that Owen had telephoned her on the night

of the shooting and had given her details as to the circumstances

of the killing.

As in this case, the state had argued that the intent

to kill “was evident from the facts of the crime and the cold

blooded method in which the killing was carried out.” In

rejecting this argumentation, the 1ith Circuit stated:

Assuming arguendo that the intent to

kill can be inferred from the nature

of a crime, we cannot say that the

admission of Owen’s police

confession did not contribute to his

conviction. Since the police

confession was the only direct

evidence of intent, it is likely

that the admission of that statement

prejudiced Owen. Id. at 541 fn. 2.

The Court concluded that since’ the improperly

introduced confession suggested "that he had an intent to kill

and that he understood what he had done,” its admission was not

harmless error because it contradicted his diminished capacity

defense.

Contrary to Petitioner’s contention, Owen is more

directly on point than Martin. But the bottom line is that in

both instances the 11th Circuit undertook the appropriate Chapman

analysis in concluding that Owen was entitled to relief but

Martin was not. Likewise, the Sixth Circuit has undertaken the

proper Chapman analysis in this case and after its review of the

entire, lengthy record, its conclusion regarding harmlessness is

unassailable.

-19-

Before passing, it is important to note that the 1lith

Circuit has recognized that in harmless error jurisprudence “the

admission of an unlawfully obtained confession rarely is

‘harmless error’...[bJecause confessions carry ‘extreme probative

weight.’” Christopher v. Florida, 824 F.2d 836, 846 (11th Cir.

1987). |

One final note: The dissenters in the Sixth Circuit

did not rely on Oregon v. Elstad as providing a basis for

undermining the majority’s opinion. For that matter, Oregon v.

Elstad was not even mentioned by the dissent.

THE SIXTH CIRCUIT DID NOT IGNORE ONE

OF ITS OWN PRIOR DECISIONS

Petitioner contends that the en banc majority has

ignored its own precedent -- Burks v. Perini, No. 85-3507 (6th

Cir. November 25, 1986) (unpublished opinion).

At the outset, Burks v. Perini was fully discussed and

argued before the en banc panel in the Sixth Circuit. Secondly,

the majority opinion specifically addressed the District Court’s

reliance on Burks v. Perini, and correctly found that reliance to

be “misplaced.” Kordenbrock v. Scroggy, supra at 1099. Thus, it

strains credulity to argue that the Sixth Circuit has ignored its

own precedent.

Before passing, it is important to note that Burks was

an unpublished opinion of the Sixth Circuit which, by very

definition, means that it was not worthy of full text

publication. See generally Rule 24(a) of the Sixth Circuit Court

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of Appeals -- Criteria for Publication. See also Subsection c of

that Rule where the Sixth Circuit has indicated that the use of

unpublished opinions “is disfavored.”

Before passing, again it is important to note that the

dissent in the Sixth Circuit panel did not make a meaningful

attempt to show that Burks v. Perini controlled the outcome of

this case. The reason for that is evident when one realizes the

factual distinctions between both cases.

In Burks, the defendant admitted an intentional

killing, but contended he acted in self-defense. In effect, that

case presented the jury with a true klack and white factual

issue. The defendant in Burks stated that I committed the crime,

I did it intentionally, but I am entitled to an acquittal because

of self-protection. Unlike Respondent, Burks did not rely on a

diminished capacity defense since there was no evidence of

alcohol or drug intoxication.

The facts as introduced against Burks totally belied

his theory of self-protection. At trial, an eyewitness

"testified that Burks, without provocation, shot Fletcher in the

stomach and then shot him in the back as he was running toward

the bar.” Furthermore, two admissions of guilt were given by

Burks prior to the Miranda violation in that case. In that

context, it was understandable why the Sixth Circuit panel

concluded, in this unpublished opinion, that the improper

introduction of Burks confession was harmless under Chapman.

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F.

TWO JUDGES DID NOT REFUSE TO APPLY HARMLESS ERROR ANALYSIS

Petitioner pounces upon some loose language in Judge

Nelson’s concurring opinion to argue that he and Judge Ryan

refused “to consider the harmless error rule in a capital case.”

(Pet. for Cert 29).

At the outset, Judge Ryan stated unequivocally that the

reason he could not vote to affirm was because he was “unable to

say, beyond a reasonable doubt, that the unlawfully admitted

confession did not contribute to the verdict and subsequent death

sentence in this case.” Kordenbrock v. Scroggy, supra, at 1135.

Judge Ryan reasoned as follows:

The illegally admitted confession is

not only an explicit and damning

admission of the killing, it is, by

its language, tone and content, as

well as the absence of any claim of

diminished capacity or uncertainty

of purpose, powerful circumstantial

proof of the clear headed intention

to execute both victims. It is a

complete and unqualified confession

of premeditated murder, strikingly

inconsistent with the defendant’s

courtroom claim of diminished

capacity. As such, it is the most

powerful, although not the sole,

evidence in the record of

defendant’s malice and

premeditation. Id.

Finally, in total refutation of Petitioner’s claim that

he refused to apply the harmless error standard in a capital

case, Judge Ryan stated ”I cannot say, beyond a reasonable doubt,

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that such evidence did not ‘contribute to the verdict’. Chapman

v. California, 386 U.S. 18, 23 (1967).” (Id. at 1135-1136).

A careful and correct reading of Judge Nelson’s opinion

demonstrates that he was not rejecting the harmless’ error

analysis in a death penalty case; rather, he was reflecting the

now well established reality in death penalty jurisprudence that

"“{djeath cases can be different for jurors as well as for

judges.” Id. at 1133. Judge Nelson, in undertaking his harmless

error analysis, clearly took into consideration the oft quoted

maxim that the "qualitative difference of death...requires a

correspondingly greater degree of scrutiny of the capital

sentencing determination.” California v. Ramos, 463 U.S. 992,

998-999 (1983). It also must be noted that Judge Nelson

specifically “”concur[red] in the conclusions” by the majority

that the improper use of the confession was not harmless under

Chapman v. California, supra. (Id.).

G.

THIS COURT HAS ESTABLISHED CLEAR AND BRIGHTLINE BOUNDARIES

FOR DEFINING MIRANDA AND FIFTH AMENDMENT VIOLATIONS

Petitioner asserts, without explaining why, that review

by this Court is “essential to clarifying the boundaries of the

Fifth Amendment when a technical Miranda violation occurs.”

(Pet. for Cert 12). The fact that such assertion is unsupported

is understandable: This Court has consistently given clear and

brightline koundaries as to what interrogators can do when an

in-custody citizen expresses a desire to cease interrogation.

See Miranda v. Arizona, supra and Michigan v. Moseley, supra.

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As this Court recognized in Miranda, just giving a

defendant the neieeihcaians will not suffice for after that, "[iJf

the individual indicates in any manner, at any time prior to or

during questioning, that he wishes to remain silent, the

interrogation must cease. Id. at 473-474. This Court recognized

that ”“{(wjithout the right to cut off questioning, the setting of

an in-custody interrogation operates on the individual to

overcome free choice in producing a statement after the privilege

has once been invoked.” Id. at 474.

This Court had occasion subsequent to Miranda to

clearly define what the “right to cut off questioning” meant. As

it recognized in Michigan v. Moseley, supra, when a defendant

exercises “his option to terminate questioning he can control the

time at which questioning occurs, the subjects discussed, and the

duration of the interrogation.” Law enforcement officers are

mandated to “scrupulously honor” a defendant’s invocation of his

right to control the time and duration of the interrogation.

Nothing subsequent to the decisions in Miranda and

Michigan v. Moseley have clouded the clear guidelines found in

those two cases. For that matter, this Court recently reaffirmed

its dedication to the bright line principles espoused in Miranda

in a closely analogous situation where a defendant has exercised

his right to counsel during an interrogation. See Minnick v.

Mississippi, U.S. , 111 S.Ct. Rptr. 486 (1990).

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H.

THE SIXTH CIRCUIT’S DECISION WAS CORRECT

When all of the wheat is removed from the chaff, it is

clear that Petitioner is protesting that the Sixth Circuit

decided this case incorrectly. However, Petitioner has not

demonstrated how and why the majority’s opinion was incorrect.

It just contends that the dissenting opinion was more correct.

It is understandable why Petitioner fails to take a

frontal assault on a majority opinion. Chief Judge Merritt’s

harmless error analysis is unassailable.

In undertaking this harmless error analysis, the Chief

Judge was correct to state that such an ”inquiry is fact specific

and requires an analysis of the particular facts at hand” Id.

In undertaking this inquiry, the Chief Judge initially

and correctly noted that "the portion of [Respondent’s)

confession taken after the Miranda violation -- other than the

inferences to be made from the fact the robbery and shooting --

was the only concrete, non-circumstantial piece of evidence the

state had to prove the premeditation element of the crime.” In

demonstrating the impact that the improper introduction of this

confession had on the jury the Chief Judge made the following

comments:

Both as an element of the offense

and as a reason for imposing the

death penalty, the state attempted

to prove that {Respondent }

consciously formed an intent to kill

independently and uninfluenced by

any effects drugs and alcohol may

have had on his mental and emotional

state. Logically a juror could

easily reason that the inadmissible

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statement that [Respondent] fired

“at their heads so that’ they

wouldn’t get up” implies a mental

process of deliberation and

forethought sufficient to exclude

drugs and alcohol as an immediate or

direct cause of the homicide. Id.

at 1097-1098.

The Chief Judge correctly pointed out that the defense

of diminished capacity presented by Respondent turned on what the

juror felt was his reasons for killing: Was it his conscious

intent to do so or was it the direct but unintentional result of

the influence of drugs of alcohol? Since the inadmissible

statements in the confession tended to establish premeditation

and were “inconsistent with the impulsive, reactive and reckless

behavior associated with events caused by the influence of drugs

and alcohol”, its introduction could not have been harmless as to

both guilt and innocence and as to sentencing. Id. at 1098-1100.

As to the question of whether the improper introduction

was harmless at sentencing, the Chief Judge pointed out that it

was Clear from the record that the jury was struggling with its

decision as to what punishment to impose. “Indeed, after some

deliberation the jury asked if they could sentence [Respondent]

to life without parole indicating an interest in imposing the

harshest possible sentence short of death.” Id. at 1098.

Again it must be noted that Petitioner has really not

taken on Chief Judge Merritt’s harmless error analysis in this

case. Rather, it indicates that the dissenter’s opinion, after

reviewing the same extensive evidence, came to the more correct

resolution. Instead of arguing how this was more correct,

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Petitioner merely quotes the dissenter’s harmless error analysis.

While it is true that the dissenting opinion came to a

different conclusion, it cannot go without noting that that

particular opinion failed to take into consideration the most

important testimony which was introduced in Respondent’s defense

during the trial. Dr. Don Nelson, a Professor of Pharmacology at

the University of Cincinnati College of Medicine, testified that

as a result of the drugs which Respondent had used on the day of

the crimes, he was less likely to do complex planning and to

formulate complex thoughts. In effect, the drugs that Respondent

was taking were interfering with his ability to reason and were

diminishing his capacity to carry out purposeful and intentional

acts.

By the dissenting opinion’s failure to mention Dr.

Nelson’s testimony vis-a-vis Respondent’s defense of diminished

capacity in its harmless error analysis, it fails to give

adequate weight to the strength of his defense and to the

eviscerating effect that the improperly introduced confession had

on that defense.

Before passing it is ‘important to note that while the

dissenting opinion ignored Dr. Nelson’s testimony when

undertaking i*s harmless error analysis regarding the confession,

the dissent did use Dr. Nelson to show that Respondent was not

harmed by failing to have the testimony of a psychiatrist (Dr.

Nizny) at the trial.

Respondent argued below that he had been thwarted in

his attempts to put on the testimony of Dr. Nizny in support of

-27<

ae

Respondent’s theory of defense. Dr. Nizny would have testified

that Respondent was mentally ill and emotionally disturbed at the

time of the incident. Dr. Nizny would also have been able to

testify that Respondent did not have the intention to end

anyone’s life.

In rejecting Respondent’s argument (the dissent was

actually the majority on this issue below), the dissent concluded

that Respondent’s constitutional rights under Ake v. Oklahoma,

470 U.S. 68 (1985) “were adequately protected by the testimony of

Dr. Eljorn Don Nelson”, Kordenbrock v. Scroggy, supra at 1119.

The dissent’s conclusion was based on its finding that Dr.

Nelson’s testimony was “sufficient to establish the defense of

diminished responsibility and mental capacity.” Id. at 1120.

The absence of any discussion of the impact that the

improper confession had on the testimony of this most important

witness fatally undermines Petitioner’s contention that the

dissenting opinion was more correct in the harmless’ error

analysis. 1s

Petitioner had his day in court in the Sixth Circuit.

The issue was fully briefed and competently argued by both sides.

The Sixth Circuit reviewed the entire record in this case and

concluded, contrary to Petitioner’s position, but consistent with

the applicable law governing confessions and harmless error, that

the complained of error was prejudicial to Respondent.

Now Petitioner is beseeching this Court to undertake a

Similar review of the voluminous record in this case in hopes

that this Court will reach a contrary finding. In the absence of

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a}

any real or pere _.. misapplication of constitutional law, this

Court is, in essence, being asked to substitute its judgment for

the en banc panel of the Sixth Circuit Court of Appeals.

Institutionally this Court is simply not set up to

undertake such a task. If it granted cert in situations where a

Petitioner simply contends that a reviewing court’s factual

resolution of the properly applied harmless error standard is

incorrect, then this Court would be mandated to review every

record which contained a constitutional error no matter the size

of that record -- even if its 6802 pages as found in this case.

This Court’s limited time is precious. There are too

many important constitutional issues that need to be resolved.

Undertaking harmless error analysis in cases such as this where

there has been no challenge as to the appropriateness of the

applicability of the constitutional rules would be a travesty of

justice for those litigants who have legitimate claims for this

Court to hear and resolve.

CONCLUSION

Petitioner has asserted no special and specific reasons

why this Court should grant a writ in this case. The Sixth

Circuit correctly applied the applicable controlling decisions.

The Court’s decision did not create a conflict with the 11th

Circuit; rather, both circuits approach to the clear guidelines

that this Court has laid down in regard to Miranda and Chapman

are consistent. The en banc Sixth Circuit fully addressed and

found to be inapplicable a non-published prior opinion by one of

its panels. Judge Ryan clearly used the Chapman standard and

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Judge Nelson’s harmless error analysis is reflective of the

Gualitative difference of death cases. Miranda and Michigan v.

Moseley set out in unequivocal fashion the procedures which

interrogators must follow and what they can and cannot do once a

defendant exercises his control over the timing and duration of

in-custody interrogation. Finally, the Sixth Circuit’s factual

resolution of the properly applied harmless error standard is not

er ai submitted,

fe -

Gott Lael

fIMOTHY T. RIDDELL

ASSISTANT PUBLIC ADVOCATE

clearly erroneous.

COUNSEL OF RECORD

oS

Fd

Ff C. a a

EDWARD C. MONAHAN

ASSISTANT PUBLIC ADVOCATE

COUNSEL FOR RESPONDENT

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing has been mailed via United States Postal Service, first

class, postage prepaid on this 21st day of March, 1991, to the

Honorable Michael Harned and the Honorable Carroll Ullerich,

Assistant Attorneys General, Commonwealth of Kentucky, Capitol

Building, Frankfort, Kentucky 40601.

Pe ie

Poe a Lill

Lal. 7.

Fal /

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