Opposition Brief — Mississippi v. Turner

OP scctiera;

a7" wihkeric

90-1446

IN THE SUPREME COURT OF THE UNITED STATES

No.

STATE OF MISSISSIPPI,

Petitioner,

Vv.

KEVIN LEWIS TURNER,

Respondent.

me ee ee ee ee ee ee eet ee ee ee”

90-

2) FILED

Supreme Court, U.S.

APR 3 1991

OFFICE OF THE CLERK

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI

T. PATRICK WELCH

P.O. Box 1104,

McComb, Ms. 39648.

(601) 684-4470

CLIVE A. STAFFORD SMITH

83 Walton Street, N.W.

Atlanta, Ga. 30303.

(404) 688-1202

Attorneys for Mr. Turner

TABLE OF AUTHORITIES. . . . «© « « © «© © © © © © © © © © © «

INTRODUCTION . . . ° id . . . 7 . * . 7 s . * . . . . . . .

THE REASONS WHY CERTIORARI SHOULD BE DENIED ........

I. THE DECISION BELOW IS PREDICATED ON ADEQUATE AND

INDEPENDENT STATE COURT GROUNDS, SO THAT ANY GRANT OF

CERTIORARI WOULD BE IMPROVIDENT. .......+ «se -

A. The Supreme Court of Mississippi has ruled that the

issue presented by Petitioner should be resolved on

State Law grounds ..+4+4seesee#se2 © ese © @ @

B. Since two distinct issues which were presented in

this case required reversal of the death sentence,

there probably exist other adequate grounds for

ee ee ee ee ee ee er ee

(i) The Shell v. Mississippi Issue .......

(ii) The Prosecutor's Comment on Silence. ....

II. THERE EXISTS NO CONFLICT IN THE CIRCUITS ON THIS ISSUE

SUCH THAT CERTIORARI SHOULD BE GRANTED ........

COGBGs 2 «© «© &@ th ee ee hw os es © & © 6 6 _e 4

Coesareceen OF GRRVIGE. « + 6 2 es es te ee US Ue oS

. 2

. 3

TABLE OF AUTHORITIES

FEDERAL CASES

, 482 U.S. 496, 107 S. Ct. 2529,

96 L. Ed. 2d 440 (1987) . ~. «© «© « © © © «© «© «

, 439 U.S. 1014,

99 S. Ct. 626, 58 L. Ed. 2d 687 (1978) ...

California v. Ramos, 463 U.S. 992, 103 S. Ct. 3446,

2 ee Be Bo. ee ree

Vv issi ippi, 494 U.S. , 110 S. Ct.

___, 468 be Oe BO FOS (2000)... ww et

Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68

Dp PES - os ye ee lk le

Griffin v. California, 380 U.S. 609, 85 S. Ct.

Sees BO te Mee OO 206 (2065) . 2. «st tw

Jean v. Nelson, 472 U.S. 846, 105 S. Ct. 2992, 86

L. BG. 20 664 (1965) .. © © © © © © © ©

King v. Lynaugh, 850 F.2d 1055 (5th Cir. 1988),

cert. denied, 488 U.S. 1019, 109 S. Ct. 1564,

es Se ee eee eee eee

Lakeside v. Oregon, 435 U.S. 333, 98 S. Ct. 1091,

ee Se ge eae

Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469,

77 G&G. Ea. 24 1201 (1983) . « «© « «© © «© © 2

O'Bryan v. Estelle, 714 F.2d 365 (5th Cir. 1983),

cert. denied sub nom., O'Bryan v. McKaskle,

465 U.S. 1013, 104 S. Ct. 1015, 79 L. Ed. 2d

nr . . cae 8 eee ele ew

Ohio v. Huertas, 498 U.S. , 112 Ss. ct. ‘ee

ae ee ee OD kk a eke vas,

ii

STATE CASES

State v. Arthur, 350 S.E.2d 187 (S.C. 1986) .. .

State v. Brown, 347 S.E.2d 882 (S.C. 1986) ....

Bushnell v. State, 637 P.2d 529 (Nev. 1982) ...

State v. Cockerham, 365 S.E.2d 22 (S.C. 1988) ..

Vv wkins, 357 S.E.2d 10 (S.C. 1987) ...

Mackbee v. State, So. 2d (Miss. Dec. 27,

TE ie. gs kt wile eo a ho a be a A ek

People v. Ramirez, 98 Ill. zd 439, 75 Ill. Dec.

Bak, S07 Mem eae 3h (2063). 2 2 ew tw oe we

State v. an, 298 &.E.2d 92 (8&.C. 1982) ... «

People v. Szabo, 94 Ill. 2d 327, 68 T1ll. Dec. 935,

S47 Bemeam 209 (2983) « 6 we ce ee woe

Turner v. State, 573 So. 2d 657 (Miss. 1990)...

Williams v. State, 445 So. 2d 798 (Miss. 1984) ..

STATUTES

Miss. Code Ann. § 99-19-101 (5) (h) .......

iii

IN THE SUPREME COURT OF THE UNITED STATES

No. 90-

STATE OF MISSISSIPPI, -

Petitioner,

Vv.

KEVIN LEWIS TURNER,

Respondent.

me ee ee ee ee ee ee ee ee ee ee”

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI

COMES NOW, KEVIN L. TURNER, and respectfully files the

following opposition to the State of Mississippi's Petition for a

Writ of Certiorari to the Supreme Court of Mississippi (hereinafter

"Petition").

A. INTRODUCTION.

The Supreme Court of Mississippi affirmed Respondent's

conviction for capital murder, but reversed his sentence of death.

See Turner v. State, 573 So. 2d 657 (Miss. 1990). Respondent had

been indicted as an habitual offender, meaning that if he were

sentenced to life in prison he would have to serve life without

possibility of parole. Id. at 674 n.6. The Court ruled that

jurors, who often believe that "a life sentence means 'five or six'

years" in prison, should be accurately instructed that Respondent

would be ineligible for parole. Id. at 675.

Petitioner, the State of Mississippi, now seeks review by this

1

Court. There are a number of reasons why the petition for

certiorari should not be granted.

B. E ASONS WHY CERTIORARI {e] E N °

The decision below rests on not one, but three, adequate and

independent state law grounds. In any event, the issue in this

case does not merit certiorari review since there is no divergence

of opinion in the lower courts.

I. THE DECISION BELOW I8 PREDICATED ON ADEQUATE AND

INDEPENDENT STATE COURT GROUNDS, SO THAT ANY GRANT OF

CERTIORARI WOULD BE IMPROVIDENT.

There are two distinct species of "adequate and independent

state law ground" -- one, where the judgment of the state court is

actually predicated on state law, rather than the federal

constitution. See, e.g., Michigan v. Long, 463 U.S. 1032, 1041-42,

103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). Two, where there exist

other reasons why the conviction or sentence were reversed,

rendering the state court ruling on a particular issue unnecessary

to the ultimate decision. See, e.g., Ohio v. Huertas, 498 U.S.

_., 111 S. Ct. __ , 112 L. Ed. 2d 837 (1991) (declining to review

continuing viability of Booth v. Maryland, 482 U.S. 496, 107 S. Ct.

2529, 96 L. Ed. 2d 440 (1987)).

The presence of both of these "types" of independent ground in

the decision below render the case an inappropriate subject for

certiorari review.

owe

A. The Supreme Court of Mississippi has ruled that the

issue presented by Petitioner should be resolved on

State Law grounds.

It is true that the lower court failed to make it clear in

Turner whether the decision was predicated on state or federal

grounds. However, in the subsequent decision of Mackbee v. State,

So. 2d , No. O0O3-DP-89 (Miss. Dec. 27, 1990) (not yet

reported), the Mississippi Supreme Court clarified this ambiguity:

We emphasize that we only refer to federal

authorities for illustrative purposes. The

conclusions that we reach are based on the

State Constitution.

Id., slip Op. at 38 n.11 (citing Michigan v. Long, 463 U.S. 1032,

1042, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983)).

Petitioner properly notes as much in a footnote:

We note that in Mackbee, the court below

attempts to evade review of this claim by

stating in a footnote 11 that the federal

authorities cited in that case are for

illustrative purposes only and that the case

is decided under the State constitution.

Petition, at 13 n.2.

So far, so good. Petitioner continues, however, to argue that

"([tjhis statement in Mackbee has no application to the case at bar

- « + [which] is clearly based colely on federal constitutional

law." i, @@ 23 a2. This is not the law. As this Court

explicitly stated in Michigan v. Long:

The jurisdictional concern is that we not

"render an advisory opinion, and if the same

judgment would be rendered by the state court

after we corrected its views of federal laws,

our review could amount to nothing more than

an advisory opinion."

Id., 463 U.S. at 1042 (quoting Herb v. Pitcairn, 324 U.S. 117, 126,

65 S. Ct. 459, 89 L. Ed. 2d 789 (1945)).

In discussing whether a jury should be provided accurate

information regarding probation or parole, this Court has held that

"(ijt is elementary that States are free to provide greater

protections in their criminal justice system that the Federal

Constitution requires." California v. Ramos, 463 U.S. 992, 1013,

103 S. Ct. 3446, 77 L. Ed. 2d 1171 (1983). Whatever the merits of

the federal claim, the Mississippi Supreme Court has accepted this

invitation to decide the case on state law grounds. Thus, no

federal question is presented for review.

B. Since two distinct issues which were presented in this

case required reversal of the death sentence, there

probably exist other adequate grounds for this

decision.

Two other issues were decided favorably to Respondent in the

Mississippi Supreme Court. Either or both would, most likely,+

result in reversal of the death sentence regardless of the

disposition of the habitual offender issue. These issues are not,

to be sure, as clear cut as the one already mentioned. However,

"(ijf there is one doctrine more deeply rooted than any other in

the process of constitutional adjudication, it is that we ought not

1 It should be noted that the court below divided the opinion

up into four sections: Guilt Phase, Sentencing Phase, Reversible

Error, and Recusal. Turner v. State, 573 So. 2d at 661, 667, 673

& 675 (emphasis supplied). However, the fact that these two issues

were not included under the "Reversible Error" category does not

exclude them from being "reversible," just as the failure to

include the habitual offender instruction issue under the

"Sentencing Phase" category does not exclude it from being a

sentencing phase issue.

to pass on questions of constitutionality . . . unless such

adjudication is unavoidable." Jean v. Nelson, 472 U.S. 846, 854,

105 S. Ct. 2992, 86 L. Ed. 2a 664 (1985) (quoting Spector Motor Co.

v. McLaughlin, 323 U.S. 101, 105, 65 S. Ct. 152, 89 L. Ed. 101

(1944)). If the ultimate outcome of the case would likely be

settled on two other grounds, it makes little sense for this Court

to grant certiorari to review a third.

(i) he Shell v. ss e.

The jury was instructed pursuant to Miss. Code Ann. § 99-19-

101 (5) (h), which provides that one aggravating circumstance for

the jury to consider may be whether the crime was "especially

heinous, atrocious or cruel." Although a so-called "limiting

instruction" was given, the Mississippi Supreme Court explicitly

found that this was "'not constitutionally sufficient.'" Turner v.

State, 573 So. 2d at 669 (quoting Shell v. Mississippi, 494 U.S.

, 111 S. Ct. 313, 112 L. Ed. 2d 1 (1990)).

The Mississippi Supreme Court has not yet made clear whether

this error will automatically result in a resentencing trial. See

Clemons v. Mississippi, 494 U.S. ___, 110 S. Ct. ___, i108 L. Ed. 2d

725 (1990) (remanding for a determination whether, under state law,

the court will conduct a reweighing of the evidence, excluding an

invalid aggravating circumstance). Absent some ruling on this

question, this Court's exercise of jurisdiction in this case may

well prove to be fvjile.

(ii) The Prosecutor's Comment on Silence.

Expressing his remorse, Respondent took the stand at the

penalty phase, and admitted his involvement in the crime. In

closing argument, the prosecutor emphasized to the jury:

And you realize that he didn't take the

stand until this stage.

Turner v. State, 573 So. 2d at 670. While the Mississippi Supreme

Court did not expressly reverse on this point, the Court held that

"Tojn retrial this comment should not be repeated." Id.

It hardly bears mention that the prosecution should make no

comment on the defendant's failure to take the stand. See Griffin

v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106

(1965). The Supreme Court of Mississippi cited to Estelle v.

Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981),

where this Court held:

We can discern no basis to distinguish

between the guilt and penalty phases of

respondent's capital murder trial so far as

the protection of the Fifth Amendment is

concerned. Given the gravity of the decision

to be made at the penalty phase, the State is

not relieved of the obligation to observe

fundamental constitutional guarantees.

Id. at 462-63. Indeed, in State v. Hawkins, 357 S.E.2d 10 (S.C.

1987), the court rightly found that "[a]rguments of this nature are

especially egregious in the context of death penalty [sentencing]

proceedings because they violate the Eighth as well as the Fifth

Amendment." Id. at 13 (emphasis supplied).

For this reason, Jower courts which have considered an overt

comment made at the penalty phase in denigration of the right to

remain silent have found a violation of the Fifth Amendment. ?

While not absolutely certain from the opinion below, this error

would seem to vitiate the death sentence, either alone or in

conjunction with the Shell error. Therefore, there is another

independent reason why Respondent's sentence of death cannot stand.

II. THERE EXISTS NO CONFLICT IN THE CIRCUITS ON THIS ISSUE

SUCH THAT CERTIORARI SHOULD BE GRANTED.

In an effort to fabricate a conflict in the lower courts,

Petitioner cites O'Bryan v. Estelle, 714 F.2d 365 (5th Cir. 1983),

cert. denied sub nom. O'Bryan v. McKaskle, 465 U.S. 1013, 104 S.

Ct. 1015, 79 L. Ed. 2d 245 (1984), as the antithesis of the holding

in Turner v. State. Under even passing scrutiny, it is apparent

that the cases are not in conflict. In O'Bryan, the Texas trial

court had instructed the jury in no uncertain terms not to take

parole into consideration. Id. at 388 n.21. This was, perhaps, as

much as the defense could have hoped for, since there was no

allegation that the defendant would not have been eligible for

parole at some speculative time in the future.

Under these circumstances, the Fifth Circuit held that there

was no need for an instruction "about the law governing the Board

of Pardons and Paroles in relation to inmates sentenced to life

2 see, e.g., State v. Cockerham, 365 S.E.2d 22, 23 (S.C.

1988); State v. Arthur, 350 S.E.2d 187, 191 (S.C. 1986); State v.

Brown, 347 S.E.2d 882, 887 (S.C. 1986); People v. Ramirez, 98 Ill.

2d 439, 75 Ill. Dec. 241, 457 N.E.2d 31, 35-37 (1983); People v.

Szabo, 94 Ill. 2d 327, 68 Ill. Dec. 935, 447 N.E.2d 193, 209

(1983); Williams v. State, 445 So. 2d 798, 813-14 (Miss. 1984);

Bushnell v. State, 637 P.2d 529, 531 (Nev. 1982); State v. Sloan,

298 S.E.2d 92, 95 (S.C. 1982).

il aia a al,

imprisonment. ..." Id. at 388. If an accurate instruction had

told the jury that the defendant would be eligible for parole at

some future date, the instruction would not have done the defense

much of a favor. To the contrary, it is clear that the defendant

would benefit from an accurate, categorical statement that he will

never be considered for pardon or parole.

In the other case cited by Petitioner, the en banc Fifth

Circuit found itself procedurally barred from considering the issue

presented in O'Bryan. See King v. Lynaugh, 850 F.2d 1055, 1056 n.1

(5th Cir. 1988) (en banc), cert. denied, 488 U.S. 1019, 109 S. Ct.

1564, 102 L. Ed. 2d 809 (1989). Thus, the Fifth Circuit has not

been asked to consider the issue presented in this case. Before

taking the question on certiorari, this Court should wait to see if

a bona fide conflict ever actually arises, rather than accept the

chimerical "conflict" offered by Petitioner.

To be sure, a conflict between the federal courts of appeal

and the state high courts may occasionally provide the basis for

certiorari jurisdiction. See, e.g., Lakeside v. Oregon, 435 U.S.

333, 336 n.3, 98 S. Ct. 1091, 55 L. Ed. 2d 319 (1978) (decisions of

three circuits in conflict with decisions of two circuits and four

state courts). However, this Court does not have the time or the

resources merely to mollify dissatisfied litigants who feel --

perhaps wrongly -- that a state court erroneously decided an issue.

Rather, certiorari must be reserved for the "conflict[{] among

jurisdictions over an issue which 'imperatively demand[s] a single

uniform rule [and therefore] commands this Court's immediate

attention." Brown Transportation Corp. v. Atcon, 439 U.S. 1014, 99

S. Ct. 626, 58 L. Ed. 2d 687 (1978) (citation omitted; emphasis

supplied) (White & Blakmun, JJ., dissenting from denial of

certiorari).

CONCLUSION

Wherefore, Mr. Turner respectfully suggests that it would be

improvident to grant certiorari in this case.

LA. submitted,

Lait

T. PATRICK WELCH

P.O. Box 1104,

McComb, Ms. 39648.

(601) 684-4470

CLIVE A. STAFFORD SMITH

83 Poplar Street, N.W.

Atlanta, Ga. 30303.

(404) 688-1202

Attorneys for Mr. Turner

Certificate of Service

I hereby certify that a copy of the foregoing document was

mailed this day to Marvin L. White, Jr., Assistant Attorney

General, P.O. Box 220, Jackson, Miss. 39205.

This the 3rd day of April, 1991.

Law Offices

83 Poplar Street, N.W.,

Atlanta, Georgia 30303

(404) 688-1202

Fax 688-9440

3rd April, 1991

Office of the Clerk

Supreme Court of the United States

1 First St, NE

Washington, D.C. 20543 4o SE HG

Re: Mississippi v. Turner, No. 90- °

Dear Sir/Madam:

Please find enclosed the original and nine (9) copies of

Mr. Turner's Opposition to Petition for Writ of Certiorari to

the Supreme Court of Mississippi, and his Motion for Leave to

Proceed In Forma Pauperis.

I remain,

Yo

Clive A. Stafford Smith

Enclosures

Supreme Court of the United States

No. 90-1446

Mississippi,

Petitioner

¥v.

Kevin Lewis Turner

ON CONSIDERATION of the motion of respondent for leave to

proceed in forma pauperis,

IT IS ORDERED by this Court that the said motion, be, and

the same is hereby, granted.

April 29, 1991

Supreme Court of the United States

No. 90-1446

Mississippi,

Petitioner

v.

Kevin Lewis Turner

ON PETITION FOR WRIT OF CERTIORARI to the Supreme Court

of Mississippi, No. 03-DP-006e.

ON CONSIDERATION of the petition for a writ of certiorari

herein to the Supreme Court of Mississippi.

IT IS ORDERED by this Court that the said petition be,

and the same is hereby, denied.

April 29, 1991

A true copy WILLIAM K. SUTER

est:

Clerk of the Supreme Court of the United States

By

Deputy