Petition — Smith v. Mississippi

No. 82~-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

4

3

:

“

WILLIE ALBERT SMITH,

Petitioner,

- against -

STATE OF MISSISSIPPI, Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF MISSISSIPPI

DAVID M. CORWIN

140 Henry Street

Brooklyn, New York 11201

ATTORNEY FOR PETITIONER

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. nt SES 7 ES NER RETIANE TN

l. Where defense counsel is competent in some of

the cross-examination of prosecution witnesses at a capital

trial but is absolutely supine in the face of the prosecution's

aggressive thrust at voir dire and in closing argument and

fails to protect his client's interests at trial against the

argumentative approach of the prosecution, may counsel be

deemed to have rendered his client ineffective assistance?

2. Should the standard for counsel's ineffective

assistance be the farce and mockery test or should that standard

be uniformly replaced by the “reasonable competence” standard?

3. Where police enter a dwelling under exigent circum

stances without a warrant and briefly spot evidence on the

premises before leaving to try to find and save 4 crime victin,

may they return after resolution of the emergency exigent cir-

cumstances and, still without a warrant, search for, identify

and seize evidence?

QUESTIONS PRESENTED ....---+++sererers

TABLE OF CASES ..c-ccecerercrrecnreere

CITATION TO OPINION BELOW ......+++++>

JURISDICTION eeeeneeeeeeeneeeerenaeenee

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE een eeeen eevee ee eee

AND DECIDED BELOW ....sseeenneeere

REASONS POR GRANTING THE WRIT .....-+-

CONCLUSION eevee eeeeeoeeeeveeeeeeneeree*

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PAGE

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«if Akr naciage y » $45 F.2d 457 (Sth Cir.), cert.

deni a Uv. * 941 (1977) eee. ee ee ee ee ee ee ee ee

‘Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962) ......

Chimel Vv. California, 395 u.s. 752 (1969) eweeveeeeneeeene

| Coolidge v. New Hampshire, 403 U.S. 443 (1971) .....+..-

v. Pitzharris, 586 F.2d 1325 (9th Cir., 1978,

cert. denied, 440 u.s. 945 (1980) eeeneeeeeoeeeaeeeenereeee

| Dyer v. Crisp, 613 F.24 275 (10th Cir.) (en banc),

} cert. denied, 445 vu.s. 945 (1980) *weeeeeeveeneeeeveeeeeeneeneee

| Gaines v. Hopper, 430 F. Supp. 1173 (M.D. Ga. 1977) ...

I wenry v. State, 154 $0.24 289 (Miss. 1963) .........+--

Sete yw. United States, 389 0.8. 347 (1967) ...ccvcceese

Martullo v. Maryland, $61 F.2d 540 (4th Cir. 1977),

cert. denied, 435 u.s. 1011 (1978) “se ee eee eeeen er eeee eee

McMann v. Richardson, 397 U.S. 759 (1970) ...csewesenes

Mincey v. Arizona, 437 U.S. 285 (1977) cccaceeceennwees

Moore v. United States, 432 F.2d 730 (3rd Cir. 1970) ..

Moran v. Morris, 478 F. Supp. 145 (C.D. Cal. 1979) ....

Reynolds v. Masbry, 574 F.24 978 (8th Cir. 1978) ......

Rickenbacker v. Warden, 550 F.2d 62 (2nd Cir. 1976) ...

Rogers v. State, 307 So.2d 551 (Miss. 1975) ......00-.-

Romero v. U.S., 51 U.S.L.W. 3284 (U.S. October

i2, 1982) ene ee ee eeeneaeneeveeeaeeeewneeeneeeeeneneeeeevnaneeeewn eevee

United States v. Bosch, 584 F.2d 1113 (lst

cir. 1978) “ns eee @#eeeeeeeeeeeeeeeeeeeeeeeneeweeeeeee eevee ee

United States v. Brand, 556 F.2d 1312 (5th

Cis. 1977) i i i ee a ee ae ae

United States v. Bridgeman, 173 U.S. App. D.C. 150,

523 F.2d 1099 (1975), cert denied, 425 U.S. 961 (1976)..

u.s. v. Butler, 504 P.2d 220 [oc Cit.; 1974) *“**e @e * # ©

u.8. v. Caster, $22 F.24 666 (D.C. Cir., 1978) wccoesese

United States v. DeCoster, 159 U.S. App. D.C. 326,

S67 F.28 1197 Sth Cie. (1973) 1.220. EO ee

United States v. Nelson, 459 F.2d 884 (6th

Cir, 1972) oe ee ee eeeeeeweeereenenenererer eerie ere em rhc emer rele we eel eh hel el ale!

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United States v. Toney, 527 F.2d 716 (6th Cir.

1975), cert. denied, 429 U.S.

1 0.8. ex rel. Lee Vv. Rowe, 446

838 (1976) ..--+0+-

F. Supp. 1039

(N.D. tli. 1978) eeweesebeneCeewueceotoeeeeeeeeeee

U.S. ex rel. Williams v.

(7th Cir.), cert. denied, 423

Warden of Maryland Penitentiary v. Hayden, 387

+ $10 F.2d 634

U.S. 876 (1975)

*

U.S. 294 (1967) oases eeaeeseeteeoneeeeeee nee eeree*

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11

EOIN AEE ARNE ASN inate aN

:

No. 82-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

WILLIE ALBERT SMITH,

Petitioner,

—

STATE OF MISSISSIPPI,

Respondent.

PETITION "OR WRIT OF CERTIORARI

TO THE SUPREME COURT OF MISSISSIPPI

Petitioner respectfully prays that a writ of certiorari

issue to review the judgment of the Supreme Court of Mississippi.

CITATION TO THE OPINION BELOW

The opinion of the Supreme Court of Mississippi, Smith

v. State of Mississippi, 419 So.2d 563 (Miss., 1982) is set

out in Appendix A, infra.

JURISDICTION

The judgment of the Supreme Court of Mississippi was

entered on August 11, 1982. Jurisdiction of this Court is

invoked under 28 U.S.C. §1257(3), petitioner having asserted

below and asserting here deprivation of rights secured by

the Constituticn of the United States.

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Fifth, Sixth, Eighth and Fourteenth

Amendments to the Constitution of the United States.

Mrs. Shirley Williams, a white store clerk at a con-

venience outlet in Jackson, Mississippi was seized outside the

Tote-Sum store on Robinson Street in the early morning of March

15, 1981, according to two black males driving by or stopped --

their account was unclear -- in a car in the read. The person

using force upon Mrs. Williams, according to the two male

blacks, was a short-medium height black male. The two purported

witnesses, one of whom was a strapping specimen, saw no weapon

being used by the assailant but were too afraid to intervene.

Instead they told a Jackson police officer later about the

alleged incident. The police officer returned to the scene of

the alleged abduction and searched the area.

Later the police spotted a red Pinto, which had been

described as the assailant's car, and stopped it, seizing the

occupant with what might most appropriately be referred to as

a great deal of vigor. The soon-to-be defendant claimed that

the officers dropped a shoe belonging to the assault victim

in his car while the officers claimed to have found it there.

Defendant willingly directed the officers to the address of

the person, Edward Charles McDonald, from whom he had borrowed

the car. The officers obtained defendant's address ~~ about

which they never queried defendant -- from McDonald and drove

there.

Allegedly deeply concerned for Mrs. Roberts' safety,

the officers rushed into defendant's dwelling at 109 Keystone

Court without a warrant. They briefly glanced at various cloth<}

ing and effects of defendant in his bedroom and then left the

dwelling to search the grounds where they found Mrs. Roberts’

corpse. After satisfying themselves that Mrs. Roberts was

beyond help, the officers, still without a warrant, returned

et - “ i ,

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‘| to defendant's home and continued to search for evidence that the

defendant had been involved with the victim and for identifica-

tion of him according to the description of the purported eye-

witnesses.

Defendant's explanation of the circumstances was that

he had stayed at a wedding party late into the morning and re-

turned home somewhat intoxicated and then decided to take 4

package to the University Medical Center. A defective muffler

on his car caused him to return home to make repairs where he was

frightened by lights inthis house and the shadow of a large male

with an afro hair style. Defendant then fell asleep; awakening

he drove once again down Robinson Road where the police picked

him up.

It was pointed out at trial that the key alleged eye-

witness to the abduction, one Thomas, had been unable to identify

the defendant at a showup before the trial and had tentatively

identified him from photographs the day before the trial. Thomas

himself was in trouble with the criminal justice system and faced

at the very least revocation of parole and perhaps even a long

sentence. This problem may have caused him to make an identifica

tion at the behest of law enforcement officals, defense counsel

stated at trial.

No fingerprint evidence was taken by the police althoug

appropriate surfaces such as the plastic of the victim's credit

cards were available. No plaster of Paris casts were taken of

the shoe prints leading down the drag trial behind defendant's

home leading to the ditch where the victim's body was found,

although the prints had been undisturbed and were available for

examination. :

Furthermore, the defendant steadfastly maintained

his innocence in the face of competent police interrogation and

never confessed to any involvement with Mrs. Roberts. Thus the

evidence against defendant was almost entirely circumstantial

as the pramicatien, sii recognized and pointed out at voir dire.

~~ 3

'

-“Ineffectiveness of Gregg as defense counsel was demonstrated

|by his supineness at voir dire, nost obviously envinced by his

‘i vetting the prospective jurors that he knew that the entire

‘|| sackson, Mississippi community was fed up with convenience store

| robberies and that he nevertheless hoped that each juror could

| maintain an objective attitude regarding his client's case

| (transcript 404-405).

| Similarly, on voir dire, Mr. Gregg dwelt on what he de-

| scribed as the fear and stress involved in deciding a capital

| case and the problems facing prospective jurors in being exposed

|to gruesome kinds of evidence. Speaking to a combat veteran of

|worl War II on the panel, defense counsel approached this problem

violent contexts (transcript 428-436).

;

i

Purther, Mr. Gregg asked prospective jurors whether the

jGefendant's common law marital relationship would cause them any

|prejudice against his client, and he did the same with the de-

I €endant's drunkenness on the night he was supposed to have mur-

dured Shirley Roberts (transcript 451-453). Here again, he seen-

ed to be doing the prosecution's work for it.

Furthermore, in closing, which he was forced to do himself

after trying to put on his son, a college student, Gregg stated,

"Ladies and gentlemen, I certainly don't usually put titles on

my efforts to address the jury but I put 4 title on this one.

And that title is: Why me, dear God, why me? But when the

mother of this young man appeared at my office with some members

of his family and announced that they wanted to employ me to

defend Willie Albert Smith who was charged with the murder --

the brutal murder that I had read about -~- was in jail for

the murder of a white woman, again I said: "Dear

;

]

| | Goa, why me?’ On that particular day I thing (sic) if I could have

| found the back door I would have ran out but I would have had to

| go by them and that would be rude.” (transcript, 1403).

| While in our adversary system of justice, the give and take

| between evenly matched counsel might be likened to a cock fight,

| the kind of bear-baiting that occurs in a capital trial where the

| witness takes the stand and his counsel is so worried about his

| public image that he will not take aggressive measures to protect

his client's interests is clearly impermissible, e.g.

A. I wasn't having no intention of running. Runni

for what? For you to bring me back up here and Kilt me?

| Q. Is that what you want us to do?

| A. what?

| Q. That's the second time you have said we want to bring

| you back and kill you.

A. ‘There ain't no telling what you want to do, you know.

| Q. Is that what you want us to do?

A. No. (Transcript, 1308)

And further:

Q. You wanted the cop to kill you that morning. What's

different about now?

A. I didn’t want him to kill me.

Q. But you wouldn't fight him.

A. Say what?

Q. You wouldn't try to push him off.

A. What I'm gonna fight him for?

°. You wouldn't even try to push him off.

A. What I want to fight him for? I couldn't push him.

Q. You answer the questions. You don't ask the questions.

(Transcript, 1309)

Defense counsel's first objection to argumentativeness came

considerably later in the trial (transcript, 1531).

‘The DA further discussed what had transpired in conference

| between counselor Gregg and defendant Willie Albert Smith re-

| garding the length of sentence available for Smith if he took a

guilty plea. The wide-ranging, aggressive inquiry of the DA should

| at the least have met with an objection as to attorney-client

privilege, but there was none (transcript 1527-1528).

Moreover, the prosecution called the victim's daughter to the

stand to identify exhibits (her mother's effects) which had been

previously received, marked and identified into evidence. The main

purpose of this exercise seemed to be the obtaining of the girl's

breaking down on the stand. There was no objection as to lack of

materiality by defense counsel (transcript, 1038). .

Despite occasional objections to the prosecution's bringing

in evidence of rape such as pubic hair found in bed-clothes and in

the victim's pubic area (defendant's hair), the defense did not

continuously and effectively object to such evidence regarding a

crime not mentioned in the indictment. See testimony of technician

Andrews, transcript 1112-1116.

Harassment of the defendant with repetitious and non-pro-

bative eliciting of details as to his apartment's layout and how

he tossed his clothes off occurred without objection, transcript

1177-1182. Much more grossly overreaching was the prosecution's

constant reference to the victim's breast area and her brassiere

(which was introduced into evidence without any groundwork being

laid for its probative value), see e.g. transcript 1192, query as

to whether defendant pulled the victim's bra up. Finally, at

transcript 1298, the DA asked rhetorically the defendant, “You

don't know how her bra got pulled up either, do you?" and finally

| at transcript 1299, “Was she screaming while you were choking her,

Mr. Smith?" All this transpired without objection as to inflam-

matoriness by the defense.

gee the defense was effective in cateilal out that the defendant

I}naa never confessed under competent interrogation while incar-

TN edaks, that the positive eye-witness identification claimed by

| the prosecution was made from photographs the day before trial and

j Bot at the shop where the witness failed to identify Mr. Smith

| (counsel pointed out that one of the two purported eye-witnesses

| was facing revocation of bail and perhaps time in jail on another

H

|

;

charge), and that no positive fingerprint identification had been

|

'

made of defendant although proper surfaces such as that on victim's

loredit cards had been available, and plaster of Paris casts of

|

| footprints leading to the site where the victim's corpse had been

dumped in a ditch had never been made or identified to defendant's

shoes.

In regard to morale in taking on the prosecution in the

admittedly difficult task of taking on the prosecution in an inter-

racial murder, with rape of the victim constanly implied, however,

defense counsel was sadly lacking, and his failure to press his

case without regard to unpopularity or public opinion amounts to

ineffectiveness in representation.

HOW THE FEDERAL QUESTIONS WERE RAISED AND PRESENTED BELOW

Appellate counsel for the defense petitioner in the Missis-

sippi Supreme Court did not raise the question of trial counsel's

competence. At 419 So.2nd 563, 574, the Mississippi Supreme Court

stated, “At the trial the defendant was ably defended by astute

counsel retained by his family.”

The Pourth Amendment issue of search and seizure without a

warrant, a procedure strictly circumscribed by the Chimel v.

California, 395 U.S. 752 (1969), was raised both at trial and on

appeal in the Mississippi Supreme Court, which feund that the

reentry of defendant's promises after the condition of exigent

of circumstances (rescue of a crime victim) had expired was justified

|lby a Scead reading of Coolidge v. New Hampshire, 405 U.S. 443

(1972). oe N

REASONS FOR GRANTING THE WRIT

In assessing an attorney's competence and his adequacy in

| rendering an accused reasonably effective assistance of counsel

| conscientious and diligent effort is the gravamen of the require-

ment, U.S. v. Bridgeman, 523 F.2d 1099 (CADC, 1975). Where a

| motion that might have been helpful is omitted by counsel, the

issue probative of incompetency is whether the motion would have

prevailed and whether such a victory would have turned around the

result of the trial for the defendant, Gaines v. Hopper, 430 F.

Supp. 1173 (MD Ga., 1977). While, generally, review of competency

centers on adequacy of preparation of the case rather than a poor

choice of trial strategies, Brubaker v. Dickson, 310 F.2d 30 (9th

Cir., 1962), failure to raise an insanity defense at trial where

it was the only effective defense available was held in U.S. ex

rel. Lee v. Rowe, 446 F. Supp. 1039 at 1045 (ND I1l., 1978) to be

evidence of incompetence or ineffectiveness. The basis for

finding that the Lee counsel failed to pursue the best trial

strategy was found in inadequate preparation of the case, but the

Lee decision nevertheless does fault an attorney for a poor choice

of tactics. Furthermore, where an attorney admits that his trial

efforts resulted in being “sandbagged” by the prosecution and he

fails in suppressing key evidence infirm from a Pourth Amendment

point of view, failure to afford effective representation can be

found, provided the error is not harmless, Moran v. Morris, 478 F.

Supp. 145 (CD Cal., 1979).

The court made a finding of ineffective representation where

counsel had no previous trial experience and had misrepresented

his membership in the local bar. Tactically poor judgment may not —

| alone be sufficient to trigger a finding of ineffectiveness but

|[einases, aS $04 F.2d 220 (D.C. Cir., 1974).

In the case at bar, defense attorney Gregg, citing angina pain

| Jat the close of trial, offered to put on his son, an undergraduate

Jat Mississippi College, to make the closing argument. While

| nurturance and training of the oncoming generation may be an

| important value in our society, had attorney Gregg succeded in his

lwish to put on a person without bar membership or law school

|training in a crucial stage of the trial, the Butler situation

|would have been triggered.

| Originally, the test for counsel's adequacy in representa-

| tion was the farce and mockery standard, to wit that the attorney's

| general performance must be so deficient that the resultant

| proceeding must make a farce and a mockery of the notion of

| Justice. Cooper v. Fitzharris, 586 F.24 1325 (9th Cir., 1978),

| noted that several circuits once held to this test and subsequently

| abandoned it, $86 F.2d 1325 at 1328. Today's modern standard held

| by the majority of circuits* states that mere reputability of

| counsel will not in and of itself refute a challenge to counsel's

|competent conduct of a criminal trial but that effective assis-

|| tance must offered that is “‘within the range of competence

l* The decisions of the circuits abrogating the farce and mockery

j test 2 che reasonable competence test are as follows:

| ster, 159 v.38. fhe. td peg 326; 331, 487 F.2d

ited sech, $84 F.2d 1113,

11121 (ist Cir., 1978) 5 Wo rev, Unit S 432 F.2d 730, 736

pass ee teed, =. 2d $40, 543 (4th

j(3rd Cir., 1970); Marz

icir., 1977, cert. ¢ J. (1978); Axe idge vege

ee ped F.2d 457, sag (Sth Cir.), cert. denied 431

: Toney, $27 F.2d 716, 720 (6th Cir., 1975), cert.

a9 0-8. O30 (1976); ‘United states ex rei. Milbions v.

aie Ft a zoey. ais? 7.24‘ 978 rt. den 1970), Se

v 4 * hee F ht hd

vege 4 1978), cert. denied,

as (Bg 3 F.2d 275, 278 (10th

8. (1980); and 4 byer GEisee §

icir.) (en banc), cert. +B. 943 (1980). The Second

test is exemplified

SS es retention of the farce and mockery

v n, $50 F. 24 62, 65 (2nd Cir., 1976).

-9~

_ comands of attorneys in criminal cases,'" ibid at 1329, citing

| an mardson, 397 U.S. 759 at 771 (1970).

| In dissenting from the denial of certiorari in Romero v.

|] v.S., docket 81-6463, 51 U.S. Law Week 3284, Mr. Justice White

| noted that the influential Second Circuit had remained steadfast

' in its adherence to the farce and mockery test while every other

| circuit has adopted a “reasonable competence” standard or some

| variant thereof. Mr. Justice White strongly implied the necessity

| of harmonizing this conflict and securing a uniform standard for

| effecti-eness of counsel's assistance,

| The state of Mississippi maintains the farce and mockery test

| of competence, Henry v. State, 154 So. 24 289 at 296, (1963); Rogers

| v. State, 307 So.2d 551 at 553 (1975). In addition, the

| Mississippi courts have held that where an accused retains his own

| counsel, he is barred from questioning that attorney's competency,

Miller v. State, 231 So.2€ 178 (1970).

| The Mississippi Supreme Court believed that the cursory

observations of the officers the first time they came into the

| premises at 109 Keystone Court was a “search” for evidence. The

| court rationalized that to preserve the integrity (if that is the

right word) of the intrusion, they had to rush out of the house in

| pursuit of Mrs. Roberts' welfare to attempt to locate her on the

grounds when it became obvious that she was not in the defendant's

apartment. Having found Mrs. Roberts’ body the court reasoned that

the police might return inet without a warrant --- to continue their

“search”. In its tortured reasoning the court stated at 419 So. 2d

1 563 at $73, “The original search in the present case was not

completed due to the overriding importance of first locating Mrs.

| Roberts." The court blithely ignores the fact that afters finains

Mrs. Roberts the officers were still without a warrant and now had

no exigent reasons for being on the premises at 109 Keystone Court,

ire, 403 U.S. 443 (1971).

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rinncscnaabeson ene ntnsers

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(1971). ‘purthermore, the court makes a great leap of faith in

entertaining the notion that the over-the-shoulder glances into

the bedroom of the officers in search of Mrs. Roberts the first

| time they entered 109 Keystone Court constituted a “search” or even

the beginnings of a search.

While it was held in U.S. v. Brand, 556 F.2d 1312 (Sth Cir.,

1977) that where an officer legally entered a house to assist

ambulance attendants with a drug overdose victim, other officers

could follow legally even when and though the exigent circum-

stances justifying the initial entry no longer existed (a re-

sult which the instant petitioners question given the reasoning of

the court in U.S. v. Carter, 522 F.2d 666 at 674, infra), the

officcrs rmat confine their intrusion to the scope of the original

invasioa vuless a warrant is issued mandating a more wide-ranging

search. Here the initial intrusion involved a cursory~-at-best

“search,” and pace Brand no justification for more than a glance

at the inside of the dwellilng existed for returning officers.

The seriousness of the offense of homicide with which a

defendant was charged did not, of itself, present such exigent

circumstances as to justify a four-day search of an apartment after

arrests were made, especially since no emergency threatening life

and limb or the integrity of the law enforcement process was

involved (no warrant had been issued), Mincey v. Arizona, 437 U.S.

365 (1977). It was held that the original intrusion of the

apartment to arrest Mincey (cf. to find Mrs. Roberts) was not so

great as to justify the additional intrusion of the four-days'

intensive search.

While officers need not announce their purpose before con-

ducting an otherwise authorized search if such an announcement

would allow the escape of the suspect or the destruction of

critical evidence, Katz v. U.S., 389 U.S. 347 (1967), see also

#lle

ca himel california, 395 U.S. 752 (1969) defined as

: ] unreasonable a warrantless search incident to a lawful arrest that

| went beyond defendant's person and that area from which he might

| feasibly have obtained a weapon or something that might have been

used in evidence against him. Further, U.S. v. Nelson, 459 F.2d

| 684 (6th Cir., 1972) saw at least one circuit court strictly and

| narrowly limit exigent circumstances exceptions allowing

| warrantless searches, particularly when applied to residential

The problem is, as stated in U.S. v. Carter, 622 F.2d 666

| (D.C. Cir., 1975), that Coolidge may be seen by some courts as a

bludgeon for destroying the strict limitations on warrantless

| searches incidental to the seizing of a perpetrator established by

: Chimel. Carter involed hot pursuit of an individual with an arrest

but not a search warrant and entry of his attic to search for

| dangerous contraband with the rationale that his armed cohorts

might be hiding there.

The Carter court stated:

In considering the circumstances of this seizure in the

context of “plain view" analysis, it is of consequence

that we heed warning of the Supreme Court in Coolidge v.

New Hampshire that “to permit warrantless plain-view

seizures without the limit would be to undo much of what

was decided in Chimel...* 522 F.2d 666 at 674.

The circumstances of Carter, the possible presence of armed

men in the house where a cache of stolen arms was located, did not

| present sufficient justification for a “protective” search of the

entire house; it was stated that a rule permitting warrantless

| searches residence-wide in any instance where an arresting officer

| hypothesized the presence of armed felons or noticed a potential

vantage point for a sniper might very well abollish the Chimel

doctrine for all but plate glass houses, ibid at 675.

The police in the instant case barely noticed much less seized

any evidence in their first exigently justified entry into 109

+12-

|] Limitations on what they might search for and seize on a second |

i} visit the 109 Keystone Court premises without any justification of

| exigent circumstances.

CONCLUSION

The writ of certiorari should be granted.

Respectfully submitted,

ASSEN

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140 Henry Street

Brooklyn, N.¥. 11201 ;

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