# Opposition Brief — Mississippi v. Turner

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 500 U.S. 910

## Text

OP scctiera;
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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1801%3A2. Public record. Not legal advice.