Respondents Brief — Thigpen v. Roberts

NO. 82-1330

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1983

MORRIS L. THIGPEN, COMMISSIONER,

MISSISSIPPI DEPARTMENT OF CORRECTIONS, ez ai.

Petitioners,

VS.

BARRY JOE ROBERTS,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENT

CLEVE McDOWELL

Post Office Box 1205

Cleveland, Mississippi 38732

(601) 846-7050

Attorney for Respondent

CLB PUBLISHERS & LITHOGRAPHERS, INC. © (301) 933-5220

(iy

QUESTION PRESENTED FOR REVIEW

Whether the Court of Appeals applied the correct standard

of review in holding that Respondent, Barry Joe Roberts, has

a substantial double jeopardy claim under the United States

Supreme Court’s holding in J/linois v. Vitale, 447 U.S. 410,

65 L.Ed. 2d 228, 100 S. Ct. 2260 (1980) and under the Fifth

and Fourteenth Amendments of the United States Con-

stitution.

(Ww)

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW .............. i

TABLE OF CONTENTS ...........ccccceccccuceuecces ii

OPINIONS BELOW ........... ccc ccccucuccuccueueuues l

Ps ALR se eduds coke cvacvccquccveccesvacees 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .......... 00.0 ccccuccueees 1

STATEMENT OF THE CASE.............0cccceceuees 2

SUMMARY OF THE ARGUMENT...............0005: 2

ARGUMENT—

I. THE COURT OF APPEALS APPLIED THE

CORRECT STANDARD OF REVIEW

WHEN IT HELD THAT ROBERTS HAS A

SUBSTANTIAL DOUBLE JEOPARDY

CLAIM UNDER THE UNITED STATES

SUPREME COURT’S HOLDING IN IL-

LINOIS V. VITALE, 447 U.S. 410, 65 L.ED.

2d 228, 100 S. CT. 2260 (1980)... ... cece cee eees 3

CITI So sccis .onctevalonsvcbdcesceceaecna 10

(iii)

TABLE OF AUTHORITIES

CASES Page

Bacon v. Sullivan,

200 F.2d 70 (5 Cir. 1952), cert. denied, 345 U.S. 910,

79.B. Cu G51, 97 LBA 1945 (1989).....ccccescccccces 6

Blackledge v. Perry,

417 U.S. 21, 40 L.Ed. 2d 628 (1974) ..... ccc cccceeaees 9

Cutshall v. State,

191 MS 764, 4 So. 2d 289 (Miss. 1941).........c.c00ee 6

Illinois v. Vitale,

447 U.S. 410, 65 L.Ed. 2d 228, 100 S. Ct.

sao ees Cone haa nae execs ~aje and 3,8

Phillips v. State,

379 So. 2d 318, 320 (Miss.) (1980)... ... 0... cece eee 4

Smith v. Smith,

20 So. 2d 701, 704, (Miss. 1945)... ...... ccc cece eens 5

State v. Stewart,

223, N.W. 2d 1101 N.M. App. (1974) cert. denied,

423 U.S. 902, 96 S. Ct. 204, 46 L.Ed. 2d 134.......... 6

CONSTITUTIONAL PROVISIONS

Fifth Amendment to the United States Constitution......... l

Fourteenth Amendment to the United States Constitution... . 1

STATUTES

NE OMT CEP vecedvecevovecndcdccevecscventesh oes 1

CODES

Miss. Code Ann. (1972) §63-3-1201... 0... . cc cece eeeeees 7

Miss, Code Ann, (1972) §97-3-47 .... ccc cece eeeeeeeeee 7

Miss. House Bill No. 182 Chapter 466 (1983)............. 9

OPINIONS BELOW

The Report and Recommendation and Orders of the

United States District Court for the Northern District of Mis-

sissippi, which are unreported, are set out in the Appendix of

the Petition For Certiorari at pages Al to A6. The opinion of

the United States Court of Appeals for the Fifth Circuit

which is unreported, is set out in said Appendix at pages A7

through 13.

JURISDICTION

The judgment of the Court of Appeals was entered on

November 16, 1982, (Petition for Certiorari, P. A7). The

\ Jurisdiction of this Court rests on 28 USC §1254 (1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Miss. Code Anno. § §63-3-1201, 97-3-47 and 99-35-1 et

seq. (1972) are the State’s laws involved in this cause.

1J.S. Constitution Amendment V provides in part that:

. . » Nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb. . .

U.S. Constitution Amendment XIV, Section One, pro-

vides that:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person of

life, liberty, or property without due process of law; nor

deny to any person within its jurisdiction equal protec-

tion of the law.

STATEMENT OF THE CASE

The Respondent sets forth the same Statement of the Case

as is set forth in the Brief for Petitioners herein.

SUMMARY OF THE ARGUMENT

This matter is before the Court on a grant of certiorari to

the United States Court of Appeals for the Fifth Circuit. The

principal issue presented for consideration focuses upon the

question of whether the indictment and prosecution of the re-

spondent for manslaughter by culpable negligence subse-

quent to convictions for offenses which require proof of the

conduct that constituted the culpable negligence necessary

for the manslaughter conviction, i.e., losing control of his

vehicle while driving under the influence, crossing the cen-

terline and colliding with the other vehicles, raises a substan-

tial claim of double jeopardy.

The substance of the argument advanced by the respon-

dent is that the conduct necessary to establish the culpable

negligence for the manslaughter conviction was the same

conduct for which the respondent had been convicted in the

Justice of the Peace Court and therefore constituted

double jeopardy.

Consequently, the Respondent submits that the Court of

Appeals was correct in affirming the grant of habeas and the

case should be affirmed.

3

ARGUMENT

THE COURT OF APPEALS APPLIED THE

CORRECT STANDARD OF REVIEW

WHEN IT HELD THAT ROBERTS HAS A

SUBSTANTIAL DOUBLE JEOPARDY

CLAIM UNDER THE UNITED STATES

SUPREME COURTS HOLDING IN IL-

LINOIS V. VITALE, 447 U.S. 410, 65 L. Ed.

2d 228 100 S. Ct. 2260 (1980).

Addressing the double jeopardy question, the District

Court adopting the Magistrate’s Report and Recommenda-

tion states:

“It is thus apparent that manslaughter by automobile in

violation of Section 97-3-47 cannot be proved without at

the same time proving 1201, and that conduct of

Petitioner that constituted reckless driving — losing con-

trol of his vehicle while driving under the influence,

crossing the centerline and colliding with the other vehi-

cle — is the same conduct that constituted the culpable

negligence necessary for the manslaughter conviction.”

[Emphasis Added] (A 117).

In objecting to the Magistrate’s Report and Recom-

mendation the Petitioners’ stated:

“Section 63-3-1201 and the conduct before the accident

are considered “traffic offenses” in Mississippi. Those

offenses consist wholly of the conduct of an operation of

a motor vehicle upon the highways of this State and do

not involve a wrongful homicide, an element

lacking in the traffic offenses.” (A117).

Here, the Petitioners appear to be saying that the Respon-

dent could have been convicted of manslaughter by culpable

negligence without introducing and relying upon relying upon

the conduct of the Respondent in the operation of his vehicle

4

before the accident. In short, the Petitioners are arguing that

the “‘traffic offenses’’ were not used by the State in the prose-

cution to establish the criminal :egligence, which must be

wanton or reckless under circumstances implying danger to

human life, necessary for an involuntary manslaughter con-

viction with a motor vehicle in Mississippi as was set out in

Phillips v. State, 379 So. 2d 318, 320 (Miss. 1980).

“The Defendant, BARRY JOE ROBERTS, has been

charged by an Indictment with the crime of man-

slaughter for having by culpable negligence caused the

death of BRENDA BONNER. If you find from the

evidence in this case beyond a reasonable doubt and to

the exclusion of every other reasonable hypothesis, con-

sistence with innocence, that (a) the deceased, BRENDA

BONNER, was a living person; and (b) that she died as

a result of the Defendant’s gross negligence demonstrat-

ing a reckless disregard for the safety of human life in

operating a motor vehicle in a reckless manner, while

under the influence of an intoxicant or alcoholic

beverages, on the wrong side of Highway 35N while his

operator’s license had been revoked or suspended by the

Department of Public Safety, and in hitting and striking

a vehicle in which the deceased was a passenger, with

the vehicle operated by the Defendant, then you shall

find the Defendant guilty of Manslaughter. If the State

has failed to prove any one or more of these elements,

beyond a reasonable doubt and to the exclusion of every

other reasonable hypothesis, find the Defendant guilty”

(A98, 99).

The State further by State’s Instruction Number “2” clearly

spelled out what the State considered “‘culpable negligence.”

That Instruction stated:

“Culpable negligence is, as used in these instructions, is

conducted which exhibits or manifests a wanton or reck-

less disregard for the safety of human life, or such indif-

5

ference to the act under surrounding circumstances as to

render his conduct tantamount to wilfulness.” (A 99).

These two jury instructions clearly and unequivocally sup-

port the finding of the Magistrate. One of the misdemeanors

of which Petitioner was convicted was reckless driving which

is set out in Section 63-3-1301 of the Mississippi Code. It

provides that:

“ .. That any person who drives any vehicle in such a

manner as to indicate a wilful or wanton disregard for

safety of persons or property is guilty of reckless

driving.”

In considering the Mississippi manslaughter statute, the Dis-

trict court found that:

Manslaughter is defined in general terms by Miss. Code

Ann. Section 97-3-47 as “killing of a human being, by

the act, procurement, or authority of law. . .”; with

regard to manslaughter by automobile, the Mississippi

Supreme Court has construed the statute to explain that

“the gist of the offense of involuntary manslaughter with

a motor vehicle is criminal negligence, which must be

wanton or reckless under circumstances implying

danger to human life, Smith v. Smith, 20, So. 2d 701,

704 (Miss., 1945), ‘that is to say, in a wanton and

flagrant disregard, automobile in violation of Section

63-3-121, and that the conduct of Petitioner that con-

~ stituted reckless driving — losing control of his vehicle

while driving, colliding with the other vehicle — is the

same necessary for the manslaughter conviction. . .”

[Mag. rpt. and rec., P. 3]. (A 115 at A3 of Petition).

It is therefore urged that the conviction of the Respondent

was based upon conduct for which he was tried upon as mis-

demeanors and which conduct was necessary as elements in

the charge of manslaughter by automobile.

6

Three major cases raised by the Petitioners in support of

their objections were Bacon v. Sullivan, 200 F.2d 70 (5 Cir.

1952), cert. denied, 345 U.S. 910 73 S. Ct. 651, 97 L.Ed.

1345 (A953); Cutshall v. State, 191 M. 765, 4 So. 2d 289

(Miss. 1941) and State v. Steward, 223 N.W. 2d 250

(1974), cert. denied, 423 U.S. 902, 96 S. Ct. 205, 46 L.Ed.

2d 134. In Bacon v. Sullivan, Supra, the Court analyzed the

double jeopardy clause by indicating that the same act may

constitute an offense against two separate statutes if

additional elements of proof are required for conviction on

the latter count. In the Magistrates Report, it was clearly

indicated that the Mississippi Supreme Court had construed

that manslaughter by automobile requires: “. . . criminal

negligence, which must be wanton or reckless under cir-

cumstances implying danger to human life or limb. . .”, id. at

A3 of Petition. The Respondent strongly urges that the

analysis in Bacon v. Sullivan, Supra, is totally different from

the elements of proof required in Respondent’s case in that as

Respondent previously pointed out that the State’s Instruc-

tion included all of the misdemeanor convictions as elements.

It states in part:

**...b) That she died as a result of the Defendant’s gross

negligence demonstrating a reckless disregard for the

safety or human life in operating a motor vehicle in a

reck-

less manner, while under the influence of an intoxicant

or alcoholic beverages, on the wrong side of Highway

35N while his operator’s license had been revoked or

suspended and striking a vehicle in which the deceased

was a passenger with the vehicle operated by Defendant

then you shall find the Defendant guilty of man-

slaughter. . .” (A 99)

>

The State’s Instruction continued:

“If the State has failed to prove any one or more of these

elements beyond a reasonable hypothesis consistent

with innocence, then you shall find the Defendant not

guilty.” (A 99).

It is thus, again urged that in the instant case, manslaughter

by automobile in violation of Section 97-3-47 cannot be

proved without at the same time proving reckless driving in

violation of Section 63-3-1201, and that the conduct of Re-

spondent that constituted reckless driving — losing control of

his vehicle while driving under the influence, crossing the

centerline, and colliding with the other vehicle — is the same

conduct that constituted the culpable negligence necessary

for the manslaughter conviction.

In a second case raised by the Petitioners, Cutshall v.

State, Supra, the case involved only one similar factual situa-

tion which was that the driver was driving under the influence

of intoxicating liquor. This case clearly has a different factual

basis from the instant case which used the misdemeanor con-

duct to establish the culpable negligence necessary for ‘he

manslaughter vonviction.

The Court in that case further held that “. . . one may vio-

late the law and yet not be culpable negligent in fact.” This is

a clear indication that in the instant case, as the State

indicated in its Instructions to the Jury, other elements of

negligence and recklessness were necessary to prove culpa-

ble negligence. The Respondent urges that the Magistrate’s

findings that the conduct covered by the Misdemeanor

charges was the same as that used to establish the culpable

negligence necessary to establish a manslaughter conviction

in the instant case is a correct statement of the law.

8

A third case raised by the Petitioners, State v. Steward,

Supra, is totally different as to its factual and legal basis. The

Iowa case cite is based upon law in the State of lowa which

has no vehicular homicide statute. (Stewart, Supra.).

Because Iowa has no statute covering this offense, it is urged

that the findings in that case which rambled through cases and

statements from Am. Jr. 2d and C.J.S. can be clearly dis-

tinguished from the instant case which has a statutory basis

and a Judicial veneer requiring a showing of a culpable

negligence which argument was adequately dealt with by the

Magistrate in Report and Recommendations. (A 1, 2, 3,

4, of Petition).

In attempting to discredit the Magistrate’s Report and

Recommendations, the Petitioners tried to create the impres-

sion the Magistrate based his complete findings upon J/linois

v. Vitale, 447 U.S. 410. 65 L.Ed. 2d 228 100 S. Ct. 2260

(1980). The Respondent directs the Court’s attention to the

Magistrate’s comments in his Report and Recommendations

at ‘“‘A-2” wherein he states that “Guidance on this contention

is found in J/linois v. Vitale... .”” [Emphasis Added]. In the

Vitale case, Supra., there was a mere possibility that the

State would rely on the ingredients included in the traffic

offenses, whereas in the instant case, if the State had failed to

prove any one or more of these elements, according to its own

Instruction (S-1), the Petitioner could have been found not

guilty. In the instant case, the traffic ingredients were

necessary to establish culpable negligence and therefore, a

conviction.

None of the cases raised by the Respondents in their Brief

relate to legal decisions and issues involving involuntary

manslaughter with a motor vehicle requiring by statute or

judicial veneer, a showing of culpable negligence to sus-

tain a conviction.

9

Since the granting of habeas in this case, the State of Mis-

sissippi has recognized that its prosecution herein is flawed

and has enacted a manslaughter by vehicle statute. That

statute, which is known as the “Drunk Driving Law,” was

passed as House Bill No. 182, Chapter 466, (1983) and at

Section 13, states:

Every person who operates any motor vehicle in viola-

tion of the provisions of subsection (1) of Section 63-1 1-

30 and who in a negligent manner causes the death of

another or multilates, disfigures, permanently disables

or destroys the tongue, eye, lip, nose, or any other limb

or member of another shall, upon conviction, be guilty of

a felony and shall be committed to the custody of the

State Department of Corrections for a period of time not

to exceed five (5) years.”

It should be noted that this law only carries a five (5) year

maximum sentence whereas the culpable negligence statutes

provide for a maximum sentence of twenty (20) years which

is what the respondent received in the instant case.

Additionally, prosecution of the Respondent on the man-

slaughter charge violated his right to due process of law under

the Fourteenth Amendment. Blackledge v. Perry, 417 U.S.

21, 40 L.Ed. 2d 628 (1974), which established a per se rule

that a criminal defendant’s right to due process is violated by

the State substituting a felony charge for a misdemeanor

charge covering the same conduct after the defendant exer-

cised his right under state law to go to appeal and to trial de

nova. The facts of this case fall squarely within Blackledge,

under which Respondent is also entitled to relief.

10

CONCLUSION

The grant of habeas should be affirmed.

Respectfully submitted,

CLEVE McDOWELL, Esq.

P.O. Box 1205

Cleveland, MS 38732

Attorney for Respondent

11

Certificate of Service

I, Cleve McDowell, Attorney for Respondent, do hereby

certify that I have this day served a true and correct copy of

the foregoing brief for respondent to the following counsel:

Mr. Bill Allain, Attorney General

State of Mississippi

PO. Box 220

Jackson, Mississippi 39205

(601) 359-3680

Mr. William F. Boyd, III

Special Assistant, Attorney General

P.O. Box 220

Jackson, Mississippi 39205

Attorney for Petitioners

this day of Nov. 1, 1983

A/K/A Cleve McDowell